Shared Responsibility Shapes New Paradigm of Cultural Property of Shared Interest

de Clippele, Marie-Sophie
(2020) ICOMO 20th General Assembly and Scientific Symposium | Scientific Symposium Abstracts 2020 | Theme: Shared Cultures, Shared Heri — Location: Sydney (5.October.2020)

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According to actual legislation, the legal burden of protecting cultural heritage mostly rests on the shoulders of the public or private owner, but this might be rebalanced following the idea of shared responsibility. The first part of the research describes the heritage practice and legislations in Belgium from 1835 onwards, in order to show an increased interference in ownership rights by the competent public authority. The second part assesses this descriptive analysis by relativizing it with other elements, such as the burden also resting on the public authority as steward. Moreover, it exhaustively examines case law changes regarding the excessive burden imposed on the owner in compensation claims, indicating a concern for a balanced State intervention. Finally, the third and central part, is more forward-looking, critically and radically putting into question property right, and revisits it in favour of cultural heritage. Relying on legal theory, and in particular on the theory of the commons, this research develops the model of a “cultural property of shared interest”, which would better take into consideration the interests and rights of each actor. This model welcomes the collective actor(s), in all its(their) multiple forms, varying in space and in time. These actors would take place between the owner and the public authority, taking both on the side of the right on the ‘thing’ (collective access, use and enjoyment cultural rights) as on the side of the interest to the ‘thing’ (cultural interest to conservation and transmission). The other side of the model is the shared responsibility towards cultural heritage, allowing for a better distribution of the burden between the owner, the public authority and the collective actor(s). Certain legal tools in private law (contract, foundation, trust), and certain alternative financial modes (sponsoring and patronage, crowdfunding) might operationalise it.
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de Clippele, M.-S. (2020). Shared Responsibility Shapes New Paradigm of Cultural Property of Shared Interest. In Steve Brown, Ona Vileikis (ed.), ICOMO 20th General Assembly and Scientific Symposium | Scientific Symposium Abstracts 2020 | Theme: Shared Cultures, Shared Heri (1 ed., p. p. 508-509). ICOMOS International. https://hdl.handle.net/2078.5/164739