Museums Revisited: The Position of the Museum in the New Governance of the Protection of Cultural Heritage and Cultural Diversity

Chapter 2
Museums Revisited: The Position of the Museum in the New Governance of the Protection of Cultural Heritage and Cultural Diversity

Lucky Belder*


We regard our museums as treasure houses of cultural manifestations and traditions that provide historical and cultural context to social relations and contribute to cultural diversity. In recent decades, the international community developed a framework of international law supporting the protection of museums as guardians of cultural heritage and cultural diversity.

The ICOM Statutes, adopted during the 21st General Conference in Vienna, Austria in 2007 present the following definition: ‘A museum is a non-profit, permanent institution in the service of society and its development, open to the public, which acquires, conserves, researches, communicates and exhibits the tangible and intangible heritage of humanity and its environment for the purposes of education, study and enjoyment’.

At the 2012 ICOM/UNESCO Rio de Janeiro Meeting of 2012 it was recommended that more nation states ought to ratify existing international legal instruments addressing the protection and promotion of museums and their collections. To support these objectives it was advised to advocate the importance of museums as forums for cultural diversity.1 At the same time it was recommended that it was necessary to work on international cooperation mechanisms for the protection and promotion of museums and collections. This points to an increasing tendency in international law where the realisation of policy objectives is being achieved by soft law and new governance tools. While these instruments always have a basis in treaty law, the realisation of policy objectives depends on a variety of collaborative platforms in which governmental institutions as well as civil parties participate. In our global network society, this indicates that the position of museums is being revisited. This also signifies that museums should perhaps reconsider their position within this new playing field of objectives and interests. This contribution aims to provide, first, a short overview of the existing international legal framework in UNESCO cultural heritage conventions and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. In Europe, the 2005 Council of Europe Faro Convention presented general principles on the value of cultural heritage to society. The European Union, having only had subsidiary powers for the protection of cultural heritage and the shaping cultural policies for Member States, nevertheless recognised the importance of mainstreaming the protection of cultural diversity in all its policies in the TFEU. This demonstrates that these instruments give a legal basis for new governance tools in which museums are expected to participate as responsible actors. The subsidiary nature of the EU policies on cultural diversity has resulted in alternative tools to obtain policy objectives and the use of soft law instruments. This means that museums are not only the objects of top-down legislation, but are increasingly expected to participate in and contribute to networks that are part of new governance policies.

UNESCO Cultural Heritage Conventions


The main source of international law on the protection of cultural heritage is UNESCO, the UN specialised agency of international law for the protection of cultural heritage. The most important Conventions concerning the protection of cultural heritage were the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1982 World Heritage Convention, the 2003 Convention on the Safeguarding of Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural expressions.

The 1970 Convention on Illicit Trade in Cultural Property

The 1970 Convention concerned the protection of cultural objects against the ‘dangers of theft, clandestine excavation and illicit export of cultural property’.2 To this end cultural institutions such as museums as well as libraries and archives are to ensure that their collections are kept in accordance with universally recognised moral principles.3 Article 2 of the Convention states that ‘international co-operation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting therefrom’ and that ‘States Parties are to oppose such practices with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping making the necessary reparations’.4

The cultural property relevant to the 1970 Convention is outlined in Article 1 of the Convention. States Parties are to designate which objects they consider to be of importance for archaeology, prehistory, literature, art or science within specific categories such as rare collections (a), antiquities more than a 100 years old (e), objects of ethnological interest (f) and property of artistic interest (g).5

States Parties are to establish the necessary measures to prevent museums and similar institutions within their territories from acquiring cultural property, and also to prohibit the import of cultural property stolen from a cultural heritage institution in another State Party, provided that such property is documented as part of the inventory of this institution.6 This means also, that the documentation of these cultural objects should include references to the historic context of the collection, the provenance of collection items, as well as references to the original cultural community and the historic context of the individual collection.

Article 5 stipulates that States Parties are to establish and update a list of important public and private cultural property whose export would constitute an ‘appreciable impoverishment of the national cultural heritage’.7 Furthermore, under Article 5(c) national states are to promote the development or the establishment of scientific and technical institutes (museums, libraries, archives, laboratories, and workshops… ) to ensure the preservation of cultural property. This also relates to the obligations regarding the obligation of States Parties to provide for the educational means to contribute to the awareness of the value of cultural property.8

The 1972 World Heritage Convention

The 1972 World Heritage Convention was initiated after a number of serious threats to well-known heritage monuments, starting with the flooding of the Abu Simbel Temples in Egypt due to the building of the Aswan Dam in Egypt in 1960.9 The international response to this threat resulted in the UNESCO raising of funds and the organisation of expertise to dismantle the temples and move them to higher ground. This was followed by massive international support for restoration projects after the flooding of Venice in 1966. The success of these initiatives signalled a rising consensus on the need for international cooperation in case of serious threats to monuments of international importance.

The main objective of the 1972 Convention was the protection of monumental cultural heritage. The aim was to establish an international network to monitor the preservation of designated monuments in national states, and to support collaborative projects, research and education. Chapters I and II of the Convention regard general obligations of states parties, both national and international. Article 4 sees a duty to identify, protect, conserve, present, and transmit to future generations the cultural heritage situated on a State Party’s territory. Article 5 sets policy objectives for national states to ‘endeavor, in so far as possible, and as appropriate for each country to develop and support heritage studies and research, and to establish institutions to realise these objectives’. These objectives may be regarded as contributing to the raising of awareness on the importance of the safekeeping of the monuments that are considered to be part of the cultural heritage.

On an international level, the Convention contains policy objectives with regard to international cooperation, which imply a shared responsibility towards national heritage as part of the world heritage.10

The 2003 Safeguarding of Intangible Cultural Heritage Convention

The 2003 Safeguarding of Intangible Cultural Heritage Convention builds on the work in the World Heritage Convention. The conceptual framework of the World Heritage Convention was based on a concept of cultural heritage which could rely on the Classic-Christian tradition of monumental building. Non-Western cultures, on their part, either have far fewer monumental remnants from the past, or these monuments have lost their significance to their contemporary cultural communities or national governments. Intangible cultural heritage as such has no physical presence, although manifestations thereof may take on a physical form. The definition in Article 2 of the Intangible Cultural Heritage Convention clarifies this aspect of intangibility by referring to

… the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

The Intangible Cultural Heritage Convention operates on the central criterion of Representative Value, highlighting the social and cultural context of manifestations of intangible cultural heritage and its role in the community.11 This is further emphasised by the procedure for the nomination of elements of intangible cultural heritage for the Convention’s List, which requires that a nomination must follow ‘the widest possible participation of the community, group or, if applicable, individuals concerned and with their free, prior and informed consent’.12 States Parties to the Convention are under obligation to develop national policies on the identification and the drawing up of inventories in Articles 11 and 12. Moreover they are to ensure the development and promotion of intangible cultural heritage by – among other things – fostering scientific, technical and artistic studies (Article 13(c)), as well as fostering the creation of institutions for the transmission of intangible heritage through forums and spaces (Article 13(d) under i); and the establishment of documentation institutions and facilitating access (Article 13(d) under iii).

The 2005 UNESCO Convention on the Diversity of Cultural Expressions

The focus on cultural diversity was translated in the 2005 Convention into the objective of protecting the diversity of cultural expressions and the support of cultural industries with the purpose of securing a diversity of cultural goods and services. Cultural expressions are thereby repositioned in an economic context: providing the services of conservation and access and generating spin-off economic transactions in local economies.

Article 1 states the objectives of this Convention to be the protection and promotion of the diversity of cultural expressions by creating the conditions for cultures and their expressions to flourish and to interact freely. The market of cultural expressions is to be supported by policies aimed at the safeguarding of cultural identity and intercultural relations. The scope of the Convention is global with specific attention to the needs of emerging economies and developing countries. One important objective is therefore the strengthening of international cooperation to enhance the capacities of developing countries. These objectives are guided by principles enumerated in Article 2 such as the principle of respect for human rights and fundamental freedoms, the principle of sovereignty; the principle of international solidarity, the principle of complementarity of economic and cultural aspects of development and the need to support sustainable development; and the principles of equitable access, openness and balance.

In particular in Article 6(e), the Convention regards the support of public and private museums in the context of the development and promotion of the free exchange and circulation of ideas, cultural expressions, and cultural goods and services. Articles 8, 9 and 10 relate to Cultural heritage institutions as centres of knowledge and research, information sharing and education. Article 12 refers to international cooperation, the reinforcement of partnerships and the promotion of the use of new technologies. In this context, the digitisation of heritage collections is regarded as an important instrument in generating new business models targeting local as well as global markets.

Guidelines for the International Treaties on the Protection of Cultural Heritage

The operationalisation of these cultural conventions depends on their implementation in the national jurisdictions in the states parties. This process is supported by Convention Committees which consist of a rotating representation of the countries involved. The work on the objectives of the cultural heritage conventions is further supported by operational guidelines and, in the case of the Intangible Cultural Heritage Convention, by operational directives. These guidelines are regularly revised and updated and contain further rules on the implementation of all the aspects that are relevant in this operationalisation. As such they are part of the soft law on the protection of cultural heritage which has been defined as those ‘rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain indirect-legal effects, and that are aimed at and may produce practical effect’.13

So if the provisions in the conventions lay down the general rules, the guidelines and directives outline the meaning of these provisions for the work of cultural heritage institutions. As such therefore, they are an important indication of the developments of the rules of conduct within the conventions and an indication of developments in thinking on the governance of cultural heritage conventions in general.

The most recent version of the Operational Guidelines for the World Heritage Convention dates from 2013, the last of more than 15 revisions since 1977.14 Since the revision of 2005, it is stated that these guidelines address not only the States Parties, the Committee and the Advisory Bodies, but also the ‘site managers, stakeholders and partners in the protection of World Heritage properties’.15