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Edited by Frauke Lachenmann and Rüdiger Wolfrum

The Max Planck Yearbook of United Nations Law (UNYB), founded in 1997, appears under the auspices of the Max Planck Foundation for International Peace and the Rule of Law. The first part, ‘The Law and Practice of the United Nations’, concentrates on the legal fundamentals of the UN, its Specialized Agencies and Programmes. The second part, ‘Legal Issues Related to the Goals of the United Nations’, analyses achievements with regard to fulfilling the main objectives of the UN. The UNYB addresses both scholars and practitioners, giving them insights into the workings, challenges and evolution of the UN.

Cultural Heritage in the European Union

A Critical Inquiry into Law and Policy

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Edited by Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini

Cultural Heritage in the European Union provides a critical analysis of the laws and policies which address cultural heritage throughout Europe, considering them in light of the current challenges faced by the Union. The volume examines the matrix of organisational and regulatory frameworks concerned with cultural heritage both in the Union and its Members States, as well as their interaction, cross-fertilisation, and possible overlaps. It brings together experts in their respective fields, including not only legal, but also cultural economists, heritage professionals, government representatives, and historians. The diverse backgrounds of the authors offer a cross-disciplinary approach and a variety of views which allows an in-depth scrutinisation of the latest developments pertaining to cultural heritage in Europe.

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Andrzej Jakubowski

Abstract

This chapter critically investigates the dialectics between the concept of Europe’s common heritage and the Member States’ national heritages within the EU constitutional legal framework. The analysis is twofold. First, the chapter explores to what extent constitutional regulations of the EU Member States in relation to cultural heritage may be perceived as those truly forming EU constitutional principles, derived from common constitutional traditions of its members. Secondly, it analyses the evolving notion of cultural heritage within the EU primary law, constantly (re)interpreted in the EU policy documents in light of global developments in the field of cultural heritage governance. Accordingly, this chapter attempts to understand whether and to what extent the concept of Europe’s common cultural heritage, under EU law, goes beyond the sum of Member States’ heritages and their internal cultural policies and regulations which those states reciprocally protect and enforce through the EU legal instrumentarium and mechanisms. In other words, it discusses whether the EU constitutes just a platform to enhance, enforce and reconcile individual cultural heritage interests of its members, or perhaps it is already an organisation that has developed its own constitutional cultural heritage principles, common or collective in nature.

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Cynthia Scott

Abstract

This chapter explores invocations of notions of a shared, common or European heritage by the European Community in the 1970s and 1980s, as policy makers attempted to identify and make known a European identity that would support the integration process. While much of the scholarship on the history of European identity-building has focused on the increasing involvement of the EC in the cultural sector despite the lacking explicit competence, the problematic issues of defining a truly shared European identity, or the relative (in)consistency of emphasis over the years on conceptions of European unity, diversity, or unity in diversity, this chapter takes a different tack. By retracing these notions in documents of the European Community it uncovers connections between ideas of heritage, as a source of identity, and the Community’s internal and external mobilisations that began drawing it into the emerging international system of heritage preservation governance. Drawing on new distinctions being made in critical heritage studies around definitions of cultural diplomacy and heritage diplomacy, the chapter argues that more than stealthily gaining competence in the cultural sector alone, the EC began laying the groundwork for a heritage diplomacy both in, and by, the European Union that would take off in 1992.

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Evangelia Psychogiopoulou

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This chapter explores the place of cultural heritage within the EU, considering the splitting of competences between the Union and the Member States, as well as the variety of EU actions and policies during time. It firstly deals with the way in which cultural heritage is construed at the EU level. Although there is no specific definition of what cultural heritage truly is in the texts of the Treaties, the vagueness of the constitutional texts allows the EU institutions to fill in this notion with rather broad definitions, allowing the EU institutions considerable flexibility when adopting cultural heritage actions and measures. Then, the chapter offers a survey of the EU actions in cultural heritage pre- and after the Treaty of Maastricht, where EU competences in this matter first arose. From this survey, a clear picture of the instrumental uses of cultural heritage by the EU institutions arises: in the period before Maastricht cultural heritage has been exploited with the aim of promoting integration between the Member States. After Maastricht, this instrumental use of culture and cultural heritage has been potentiated and diversified with a view of exploiting the socio-economic benefits of cultural heritage in a large number of policy areas – not confined to culture. Yet, behind this ‘heritagization’ of such an array of EU policies lurks the danger of an ‘instrumental overload’ which could turn out in an incapacity to treat pure cultural heritage matters seriously.

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Edited by Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini

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Edited by Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini

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Alicja Jagielska-Burduk

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This chapter explains that the EU plays an important role as an initiator of changes in cultural heritage management and use of available cultural resources in the Member States. All EU activities concerning culture should be in line with the values declared in the EU founding treaties: cultural policy (Art. 167 tfeu) and safeguarding of cultural heritage (Art. 3 teu). Common responsibility for cultural heritage within the EU is subsidiary to local and national activities taken up by the Member States’ authorities. The concept of common heritage is one of the pillars of the integrated approach to cultural heritage. Together with copyright law, it becomes more and more visible in education policies and programmes of the EU Member States as developing culture awareness among citizens is the first step to enhancing sustainable development in EU countries. Educational activities supported by the EU are provided in various direct and indirect forms. Accordingly, this chapter deals with the ‘Europeanization’ of education systems and programmes in the EU, highlighting its key characteristics and drawbacks.

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Francesca Fiorentini

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This chapter analyses of more than forty EC/EU Trade Agreements with third countries currently in force, respectively divided in four groups, according to the geographical location of the countries involved and to the presence or not of annexed Cultural Cooperation Protocols. The inquiry aims at detecting, if any, the place for culture, cultural diversity and cultural heritage considerations in the EC/EU Common Commercial Policy throughout the development of this policy before and after relevant institutional events like the Treaty of Maastricht (1992), the Lisbon Treaty (2009) and the entry into force as EU law of the unesco Convention on Cultural Diversity (2007). As well-known, these institutional events enlarged the scope of the EU Common Commercial Policy – originally limited to trade in goods and progressive elimination of customs tariffs – to include cultural and audiovisual services and imposed the taking into account of cultural diversity considerations in all the EU policies, including trade policy. Therefore, the interest arises in verifying how culture, cultural diversity and, if any, cultural heritage considerations have been dealt with at the operative level within the wide array of EU Trade Agreements, and what effective use is currently being made of these notions in the context of the EU Common Commercial Policy.

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Alexandra Xanthaki

Abstract

This chapter focuses on minority cultural heritage and identifies a substantial gap in its protection in the EU. It argues that although the cultural heritage of minorities and their contribution is recognized within the EU, such recognition falls short of the emerging international standards of the protection of cultural heritage of sub-national groups. Traditionally, the EU is focusing on the culture that celebrates the common EU culture, so sub-national groups have not been at the core of relevant developments. Intangible cultural heritage within EU member states are somewhat protected by European minority rights instruments, but the tangible cultural heritage of minorities is very much in the control of the state. The chapter maintains further that the standards of non-discrimination, recognition and protection of minority rights that bound EU member states are inadequate to address important issues of minority control of their cultural heritage and to guarantee their effective participation to the development of and decision-making on minority cultural heritage.