Enjoying cultural heritage is a human right and new technologies can help

Return of cultural heritage to former colonized countries and destruction of monuments and sites in conflict-affected areas are today’s main challenges in the field of Art and Cultural Heritage Law. But new technologies will be the next big challenge.

The law and policy regulating the manifold manifestations of art and cultural heritage have thickened swiftly in the past few decades to respond to the recrudescence of old threats and the appearance of new challenges. A new continuing education programme has been launched at the University of Geneva, the Certificate of Advanced Studies (CAS) in International Cultural Heritage Law.

Policy and legal developments have occurred to regulate the activities of the actors of the cultural heritage world – artists, art market professionals, collectors, museums, formerly subjugated indigenous communities, banks, insurance and transport companies, investment funds and free ports – and to accommodate their pressing demands as regards their rights, prerogatives, and obligations.

Prof. Marc-André Renold is the holder of the UNESCO Chair in the International Law of the Protection of Cultural Heritage and the Director of this new Certificate. Dr Alessandro Chechi is Senior researcher and lecturer at the Art-Law Centre of the University of Geneva and the coordinator of the new programme.

What are today’s main challenges in the field of Cultural Heritage Law?

Marc-André Renold – One of the main challenges connected to heritage is the question of the return of colonial cultural objects to African States. Our current focus is also on the destruction of cultural heritage in States which undergo conflicts, like Afghanistan today. Conflicts are an issue for the people, but in connection to people, very often we are observing the destruction of cultural heritage. In Afghanistan, the Taliban have damaged an important part of cultural heritage in the past and we fear this might continue. A dedicated module of the new programme will address this theme.

The destruction and looting of monuments and sites in conflict-affected countries triggered the adoption of various policy and legal instruments at the national and international levels in the past decades, not only to stop the loss of and trafficking in cultural objects, but also to fight organized crime and to prevent money laundering and terrorism financing. Crucially, this worldwide effort does not only concern States and international organizations, but also the actors of the global trade in cultural objects, which are called on to inter alia exercise enhanced due diligence and controls and comply with anti-money laundering regulations.

Alessandro Chechi – Connected to art, new technologies are clearly the next challenge, but the return of cultural heritage to former colonies remains an even bigger challenge. Geneva is the perfect place to discuss the return of objects as missions and embassies of the States concerned are located here. States are claiming objects that were stolen as far as 200 years ago, but the museums who acquired these objects, often by donation or bequests, resist restitution claims. Also, some countries facing claims don’t want to return the objects when they think they could be stored in better condition in their own museums.

COVID is another challenge of course. The sanitary situation and the regulations around it affect the intangible cultural heritage, which is one of the expressions of the right to participate in cultural life. The right to perform cultural activities or to enjoy cultural life is restricted, although it is recognized as such by courts and mentioned in the Universal Declaration of Human Rights of 1948. Furthermore, the pandemic is an amplifier of problems in our field: illicit trade is somehow also facilitated.

Can new technologies help meet the challenges facing art law?

AC: We have the perception that new technologies are a good thing. But they are also used by criminals. Cryptocurrencies are favoured by money launderers, while drones can be used by clandestine diggers to spot archaeological sites. Moreover, cultural objects are sold illegally on internet platforms. The use of the internet cannot be regulated easily, but cooperation between States should be fostered in this regard.

M-AR: New technologies are clearly a progress, and we will have a module on this topic in our certificate. One topical concern is NFTs (Non-Fungible Tokens): everyone talks about them in the art market right now. NFTs are dematerialized works of art. Instead of owning a painting or a sculpture, you will own a unique web link. This could lead to a dematerialization of the art market, where people are only buying the right to a work of art. People have been acquiring these NFTs for impressive amounts of money. The market is changing, but we will have to see if it is for the long term or not. On the issue of authenticity, so important in the art market, the question will not anymore be to know if a work of art is an original or a fake, but rather to know if the token is real or has been tampered with! Forgers have existed forever in the field of classical art; they may just change their ways of proceeding.

And what about cultural heritage specifically?

M-AR: New technologies could be good news for cultural heritage: the real object could potentially be returned to the country of origin, and at the same time continue to be exchanged on the virtual market…

AC: I remember an expert saying that any evolution of the art market has an impact on individual objects, so if the market would give more value to the virtual object, there is a risk that traditional institutions would care less of the material object, which may no longer be restored or protected. In 200 years from now we may completely lose interest for material objects, and just be content with a tablet setup with links or holograms.

MAR: I think that original pieces will still be important, but that will not prevent artists to create virtual works of art. The market will change and so will museums: they might become much more of a life experience than a repository of objects. This change in what museums are for the public has already started.

Can the law do something against this tendency?

AC: The law might intervene in the future. Every state has an obligation to take care of cultural heritage, but it can be interpreted differently depending on countries. According to the evolution of the market, the law will evolve, but not always in a protective direction. Moving to virtual can be considered as positive. The political climate, as well as economic or health restrictions, will influence these decisions.

M-AR: International treaties as well as general principles and customary international law exist but they are always subject to interpretation. It’s a moving environment. Litigation in national or international fora is sometimes what makes the law evolve The University’s role is to train people to reflect on these issues and stay critical. Participants active in culture or governments will help the law to evolve in a positive way. We will bring in international law and some aspects of the relevant national laws, for a better understanding of actual practices. Participants will also bring us their experience from their countries.

Many peace-related organizations have their headquarters in Geneva. How can you involve them?

MAR: These organizations are typically those that would benefit from such a programme as they will learn the tools to be more efficient in the field.An interesting example is L’Appel de Genève. This Geneva-based non-governmental organization aims to convince non-State armed groups to comply with the rules of international humanitarian law. They have come to realize that non-State armed groups are often very much involved in the protection of cultural heritage in times of armed conflicts.

Furthermore, environmental NGOs might also develop an interest in cultural heritage. This is the case because, for instance, climate change can affect the natural environment as well as the built environment, including sites, buildings, and monuments. There will be representatives of international organizations and NGOs teaching in the course.

This article has also been published in the newSpecial magazine (April 2021).