In keeping with contemporary times and the importance of an analytical framework based on the foundations of Law given that there is no, proprio sensu, duality between Law and Culture, what matters above all is the study of particular topics stemming from the protection and enjoyment of cultural heritage and cultural assets.
All of these themes require research produced by interdisciplinary teams drawing both on the field of Law and beyond, indeed, reflecting a particular characteristic of this new branch of juridical science. In effect, while concerns over the protection of cultural heritage have over the course of time been raised at the international level as well as the European Union and internal level of each member state with the resulting regulations now composed of norms and principles that govern the protection, preservation, enjoyment, dissemination and management of cultural goods, of no less importance is the private law perspective in terms of the rights of individuals, rights in rem, of contracts, guarantees and insurance policies.
Furthermore, the Right to Cultural Heritage needs constant dialogue with other fields of knowledge external to Law, including History, Architecture, Archaeology, Conservation, Restoration and Anthropology in order to leverage a globalised vision of the theme in question. Hence, aware of the diversity and multiplicity of questions relating to the benefit of cultural goods, we would set out the following themes and problems, of unquestionable contemporary relevance and notable complexity, as the scope for subsequent research:
1. Benefiting from Cultural Goods in a Democratic Society.
With benefiting corresponding to the idea of gaining some kind of advantage, enjoyment or pleasure from an object, from a good, cultural benefiting takes on a duality, even a twofold reality. In practice, just as artists may appreciate their works as the respective creators as may others, third parties, enjoy the object, this cultural good. We may therefore distinguish between two distinctive levels, two facets to cultural benefit. On the one hand, the benefit to the artist, the creator. On the other hand, the benefit to the third party, the individual, the publics that contemplate, visualise, enjoy the artistic object, the cultural good.
However, whenever the benefit to the artist interconnects with authorial issues, the public benefit elicits questions of unavoidable importance worthy of careful and close attention within the framework of this project. Thus, as the enlightenment philosophers theorised about Taste, as the Italian Penal Code of 1930 alluded to obscene objects, susceptible to offending decency, as the National Socialist archetype expanded the scope of degenerative, it remains equally true that other restrictions and different constraints have arisen in more recent times. Whether in terms of that designated as subversive art in Brazil or the repercussions of the #MeToo movement in the museums of the United States and the United Kingdom, this also extends to the controversy surrounding the Robert Mapplethorpe: Pictures exhibition at Serralves.
However, while we do not encounter in the legislation of European countries, for example in the Portuguese Framework Law for Museums, directives of an aesthetic, political, religious or ideological nature, but rather the demand for the promotion of responsible citizenship through the affirmation of museums as institutions open to society, it is no less true that there remain limitations on the enjoyment of cultural goods, especially museum reserve, bibliographic and archival objects. This framework extends to include themes as disparate as public access, specifically the price and opening times, as well as exhibition restrictions according to the directives of institutions, their curators or even the artists themselves. This particularly focuses on the level of access, the period of exhibition and the entrance price or the placing in reserve collections. Furthermore, other issues derive from protecting the integrity of the work, its substance, aesthetic orientations, the trends of institutions, curators and artists, incorporating the most appropriate conditions for protecting and conserving cultural goods. For example, even when works of art have been legally acquired, there is the need to ascertain whether artists or creators reserved the right to exhibit their works for themselves.
The functions of museums, libraries and archives are not limited to safeguarding the collective memory or conveying the cultural heritage to future generations. They also need to strive to address the concerns and fears of the dynamics underlying contemporary society. It is therefore logically worth evaluating the restrictions and limitations on enjoyment but, equally, the public service activities carried out by these institutions. This specifically extends to their interventions in acquiring the works of new artists and the restrictions as regards the breakup of public and private collections located within the national jurisdiction. Correspondingly, the scope of this topic extends to court decisions as regards leading collections and objects of art, specifically the Miró and Elipse collection as well as the more recent controversies surrounding the preservation of the Berardo Collection.
Furthermore, heritage protection, particularly classification and inventorying, contains the objective of fostering effective cultural benefits. In practice, while classification determines whether a good holds a priceless cultural value, inventorying involves the system surveying, updating and exhaustively detailing the cultural goods existing at the national level within the scope of their respective full identification. Hence, this includes classified objects or objects undergoing classification and as well as other goods that, while not deserving of classification, nevertheless hold civilizational and cultural value. Thus, this extends to the inventorying of public goods, both the objects owned by the state or other collective state entities, and the inventorying of privately held objects, in reference to the property and goods owned by private collective entities and individuals.
In sum, there is, consequently, the need to ascertain the validity and consistency of the measures enacted to protect and inventory cultural goods as well as the restrictions and limitations on benefiting and, in general terms, the public service activities carried out by museums, libraries and archives so as to ascertain the effective extent of the cultural benefit as a structural objective for open and democratic societies.
2. Between the Restitution and Return of Cultural Goods
The problematic framework surrounding the restitution of cultural goods is anything but recent. Issues arose, for example, in the writings of the archaeologist Quatremère de Quincy when he took a stand against the appropriation of the cultural goods of defeated peoples within the context of the Napoleonic campaigns. We may also recall the many consequences of the conflicts throughout the 20th century: specifically, the contested acquisition of the Parthenon sculptures or the impressive collections of works of art illegally appropriated by both Soviet and German troops. In the latter case, the German constitutional court ruled in 1968 that the legal prescriptions corresponding to the Nazi period, specifically those that had legitimated the seizure of goods from enemies of the people and the State, no longer held any juridical value in virtue of their running counter to essential juridical principles . In turn, in 2009, the British parliament, within the scope of encouraging the restitution of objects looted or illegally appropriated during the Nazi regime, enacted legislation for the restitution of cultural goods.
Furthermore, this takes into consideration the directives of the UNESCO Convention of 1970 and that of UNIDROIT of 1995. In practice, UNESCO opted to highlight the importance of restitution, stipulating the need for states to implement measures designed to confiscate and return on request by the state of origin, any goods looted from museums, civil or religious public monuments or any similar institution, located in the territory of another state. We may also point to the state obligations arising from subsequent material norms. Nevertheless, the universe of goods susceptible to restitution remains extremely limited. The scope extends only to goods robbed from a museum or a public, civil or religious monument or some similar institution located in the territory of another state. Due to the shortcomings of the UNESCO Convention, the UNIDROIT Convention set out to protect not only the interests of the state but also the individual persons harmed by the confiscation or theft cultural goods. Nevertheless, the UNIDROIT Convention is no uniform law and does not even provide a minimum set of rules of a legal nature. Instead, this references norms at the national level and attributes competences to state courts in terms of ruling on periods for the restitution or return of cultural goods.
In turn, the 2014/60/EU Directive of the Parliament and Council aimed at eliminating some of the restraints existing in terms of returning cultural goods. In these terms, the member states may undertake the restitution of cultural goods neither protected nor defined as national heritage and, furthermore, do not need to be included within any category or comply with limitations in relation to any particular duration or financial value. According to this Directive, member states should enact legislative that provides for restitution cases to lapse after a period of three years counting from the date when the competent central authority of the requesting state gained knowledge of the location of the respective cultural good and the identity of its owner or holder. Within the framework, attention turns to Law no. 30/2016 of 23 August that transcribes the Directive into Portuguese legislation. This highlights the principle of protecting cultural goods that attributes the Portuguese state with the duty of diligence as regards the material return of cultural goods originally from the territory of another member states from where the good was exported illegally, whenever so protected or defined by any member state as national heritage of artistic, historical or archaeological value.
Nevertheless, while there is an undeniable strengthening of the grounds for the restitution of cultural goods, we encounter another trend and not necessarily symmetrical or favourable. This references the return of cultural goods to the peoples of Africa and South America in the wake of the colonial era campaigns of appropriation. As is known, this subject rose to the top of the agenda following the Report into the Restitution of African Cultural Heritage (2018), written by the Senegalese academic Felwine Sarr and the French historian Bénédicte Savoy, under the sponsorship of President Macron. We would note that this Report expresses doubts about the extent of temporary restitution. Not only is this practice deemed ambiguous but also qualifies as an oxymoron. In effect, the conclusions stem from the idea that the term restitute means to return to the legitimate owner, for usage and enjoyment, with the inherent recognition of ownership over the good.
Within the scope of establishing the complexity around this theme, the Report announces the existence of over eighty thousand objects originally from Sub-Saharan Africa in the collections of French museums. Indeed, while a proportion of these objects stem from private donations, others came from mass looting, exploration campaigns and ethnographic or scientific missions. Hence, the Report advanced with relevant criteria for a mass restitution as well as a chronogram detailing the transfer. This stipulates the swift restitution of objects deriving from military campaigns; the functional work of military or administrative officials during the colonial period (1885-1960); the work carried out by scientific missions prior to 1960 and those resulting from restoration projects or loans that had extended over time. This also advocates for complementary research as regards objects integrated into French museum collections in the post-1960 period. Finally, there is the recommendation that French collections retain those goods acquired in a legitimate and documented fashion, or those acquired in the art market in full compliance with the directives of the UNESCO Convention of 1970.
While the document was greeted with some reservations and scepticism, the French parliament went on to subsequently approve legislation authorising the return of cultural goods originally from African states. Subsequently, the French government reached bilateral agreements with African states in order to bring about the return of some cultural goods. In turn, in June 2022, the Belgian parliament approved a law recognising the alienable nature of goods connected to the colonial past of the Belgian state and correspondingly determining the legal framework designed for the restitution and return of cultural goods. Furthermore, in the same year, Nigeria signed an agreement with the Federal Republic of Germany designed to return a significant quantity of works known as the Benim bronzes. Naturally, this subject has also risen up the Portuguese agenda in keeping with the important collection of objects sourced from the former colonies and held in the collections of museums and other cultural institutions. Correspondingly, there is a clear need to accompany this issue with particular care and attention, especially as regards the terms and conditions for inclusion in any eventual agreements for restitution taking into consideration the relevant legal framework for the protection of cultural heritage and the eventual need for subsequent corresponding alterations.
3- Intangible Heritage and Tradition
While the UNESCO Convention for Safeguarding the Intangible Heritage was approved in Paris in October 2003, recognising not only the profound interdependence between intangible cultural heritage and its material counterparts but also the negative effects of the globalisation processes and the social transformation that may take place due to the lack of the appropriate means to safeguard intangible cultural heritage, we should recall that the Portuguese Republic not only ratified the Convention but also approved legislation that established the juridical regime for safeguarding intangible cultural heritage . Thus, just as intangible cultural heritage derives from, and among others, the artistic expression of groups and communities, in events of a performative nature, social practices, rituals and sporting events, drawing learning and competences from both progressive and traditional techniques , the applicable regime is governed by the principles of prevention, equivalence, participation in transmission and accessibility . Furthermore, the policy for safeguarding intangible cultural heritage specifically integrates its promoting as a means of bearing witness to the identity and collective memory; the definition of norms, methodologies and procedures capable of defending such heritage; support for programs and project safeguarding oral traditions and expressions, artistic forms and expressions of a performative character, social practices and festive events, knowledge and practices related to nature and the universe of competences under the auspices of traditional processes, techniques and learnings; fostering scientific, technical and artistic studies as well as research methodologies appropriate to the effective safeguarding of intangible culture heritage.
Furthermore, beyond the object, principles and policies for safeguarding, what also requires attention is the applicable scope of safeguarding measures and legal protection procedures. In summary, the scope and restrictive powers of the juridical regime for safeguarding intangible culture heritage. In effect, this only considers intangible culture heritage as that deemed compatible with the national and international stipulations binding the Portuguese state in the field of human rights as well as the demands for mutual respect among communities, groups and individuals. We would add that this restrictive delimitation of powers is not unique to Portuguese law. Indeed, article 2 of the aforementioned UNESCO Convention, after maintaining that intangible heritage, handed down from generation to generation, undergoes constant recreation by communities, contributing to generating feelings of identity and continuity, then stipulates the obligation to take only into account that heritage compatible with the existing international human rights framework and those imperatives for mutual respect among communities, groups and individuals.
We therefore face an impressive restriction on the legal scope. In effect, beyond intangible heritage having to be constantly recreated by communities, eradicating that which falls into disuse and attributing intangible heritage only to whatever takes human rights and the mutual respect between communities and individuals into account. Therefore, we are to exclude such traditional rights and practices that violate human rights such as, and for example, female genital mutilation or the sacrifice of children and adolescents, gladiatorial fights to the death or other practices infringing on human dignity. In practice, alongside a static perspective on the protection of intangible heritage, there is a preponderant and overwhelming dynamic aspect driving harmonisation with the structural values prevailing in contemporary society. Correspondingly, according to Regina Abreu, in a study dedicated to commemorating the tenth anniversary of the UNESCO Convention on protecting intangible cultural heritage coming into effect, sought to dismiss the fossilisation of practices and expressions of a supposedly cultural nature.
While the Convention does not explicitly refer to the animal kingdom, the restrictive and modernising prism certainly does not remain neutral. On the contrary, and as Scovazzi highlights, it is not by chance that there have been no applications attempting to register activities or practices, even if traditional, harmful to animal wellbeing as intangible culture heritage . There have been other incidents of controversy in various legal systems as regards whether specific practices involving animals take on a cultural nature. In Brazil, such issues became a constitutional issue in terms of cock and bull fighting as well as the vaquejada cowboy bull chasing tradition. In Portugal, this was the case with the recently prohibited shooting of pigeons and with bullfighting very much on the political agenda. In all these cases, tradition is clearly present alongside claims of a cultural dimension. There is the corresponding need to ascertain whether or not these traditional practices may be incorporated within the scope of intangible culture heritage. This naturally also extends to questioning other traditional practices that do nevertheless ensure animal wellbeing.
4- Memory, Culture and Heritage.
Memory has been present throughout the entire history of mankind. Not only does Memory constitute the awareness of times past but this also depicts a matrix of philosophical considerations of a gnoseological nature, featuring various aesthetic and artistic trends. There are also the historicist currents that contrast individual memories with collective memories, the memories of the conquerors and the memories of the conquered and in addition to voluntary memories and involuntary memories. This should also overlook neither the memories of techniques and technologies nor, and above all, the irreconcilable dichotomy between memory and that forgotten.
However, while Memory establishes the mainstay between the past and the present, if it is also present in historiography, Memory then also provides a fundamental dimension of Human Culture. In practice, this accepts the existence of two types of memory, the communicative, focused on the recent past, and the cultural, constituted by the heritage bestowed by texts, monuments, artefacts, historical, artistic and archaeological objects, cultural goods, both tangible assets and intangible. Hence, as Jan Assmann recalls, cultural memory stretches back to the mythical times of origin, crystalizing experiences of the past and displaying a strong if inevitable interconnection with identity. Thus, cultural memory enables the tracing of a narrative image of the past all the while simultaneously deepening our own identities.
Beyond those denominated by the laws of historical memory, cultural goods play an undoubtedly high profile role within this identity focus. As we know, beyond the narratives, the historical accounts, the true Memory is found in the archives, the inventories, the libraries, the collections, the museums, the monuments, papers, materials, artefacts, in archaeological objects and their respective contexts prior and subsequent to excavation, discoveries or recoveries from the aquatic or subaquatic environments. Therefore, far more than any representation or historical reading, what matters is preserving, caring for and valuing Memory and Heritage. Furthermore, the right to memory and the preservation of the heritage and cultural assets belonging to distinct societies ends up strengthening the plurality of multiple identities, whether in terms of gender, ethnicity, religion, nationality or territory.