For The Oxford Companion to Law (Oxford University Press 2008)

This term refers to artifacts considered to be of significant cultural or historical value. Typically these are monuments, archives, archaeological finds and sites, works of art and craft, and items of ethnological interest. Their value is related to claims that they have a special connection with a community, such as a nation or ethnic group, that they are integral to the identity of such a group, and that they provide significant information about a group or about humanity. ‘Cultural heritage’, and its close cognate ‘patrimony’, are collective terms for such objects and sites. For example, an ancient Mayan sculpture may variously be valued as cultural property because Mayan civilization is claimed as ancestral precursor to some contemporary communities in central America, because it is part of a history of human artistic achievement and can thereby command a significant price in the art market, because academics study the artifact as evidence of the history and workings of Mayan society, or because such items are collected by museums.

There is disagreement over how old objects and sites need to be to qualify as cultural property. The terms ‘cultural property’ and ‘cultural heritage’ also include and frequently refer to intangible artifacts such as historical events and narratives, myths and legends. Nor is the definition of what particularly constitutes cultural property at all static; the field of cultural heritage is characteristically one of competing claims to significance, value and ownership. For example, a Mayan sculpture legally acquired by a European museum and held in their collections may become subject to a claim of ownership by a community or state in central America, with demands for the repatriation of the work to its claimed place origin or indigenous home.

The most significant recent international instruments dealing with cultural property are the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which has 100 signatory nations, and the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage.

Pressing issues regarding cultural property include:

• the loss of ancient sites because of development or deliberate destruction;
• the looting of ancient sites and the associated illicit trade in antiquities;
• repatriation claims for cultural property to be returned to its place or people of origin;
• protective and regulatory legislation dealing with imports and exports of cultural property.

There is considerable disagreement around some key questions such as:

• ownership of cultural property — can anyone own the past?
• sovereignty — is there a place for state involvement and ownership?
• is collective ownership of cultural property defensible?
• stakeholder interests — who can claim ownership and on what grounds?
• cultural identity — how is identity connected with cultural property?
• (professional) ethics and responsibilities — how should museums deal with claims for repatriation or with the art market?

In competing claims to access and ownership, five arguments are used to justify the possession of an item of cultural property:

• identity — where the property is claimed to be part of cultural, religious or other identity.
• origin — the item is argued to belong where it was made or comes from.
• ownership — the item is claimed as legal property.
• curation — in the absence of any other care, possession is claimed by those who have looked after an item.
• academic expertise — a party may claim an item on the basis that they can make the most of its educational value to inform people of their heritage.

These various arguments are based on different views about the rights and responsibilities of interested parties and imply different regulatory mechanisms. Suc views include:

• that collectors have a right to own pieces of the past;
• that the past should be in the care of officially sanctioned stewards or custodians (not private individuals);
• that people generally should have a protected right to preserve, foster and enrich those aspects of culture that represent their identity;
• that it is right and responsible to maximize the retention and transmission of information about the past and about culture.

The difficulty in achieving settlement of competing claims to cultural property on the basis of clear definition and regulation of such rights, responsibilities, interests and arguments has led to the treatment of cultural property in terms of conflict resolution, with a focus not upon a specific kind of artifact or property but upon diverse local relationships with the remains of the past that beg negotiation around shared human values, such as the significance of the past for the present.