À qui incombe la charge? La responsabilité partagée du patrimoine culturel, une propriété revisitée
(2019)
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- Abstract
- (en) The research analyses the legal burden of cultural heritage, mostly resting on the shoulders of the public or private owner, according to actual legislation. At the same time, the research develops a normative model for a more balanced distribution of the burden, taking various interests and rights of the different actors (owner, public authority but also the collective actor) into consideration. From a historical analysis of Belgian cultural heritage law, the research demonstrates an increased intervention of the public authority in property right. It also measures this intervention and proposes forward-looking ways to rebalance the legal burden for the protection of cultural heritage. The research field is limited to Belgian law on architectural heritage (monuments and sites) and on movable cultural goods, as these both areas particularly highlight the tension between individual and collective interests. The first part of the research meticulously describes the heritage practice and legislations from 1835 onwards, through an analytical reading grid, 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, in the evaluation exercise, this research 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 part, which lies at the heart of the research, is more forward-looking, critically and radically putting into question property right, in order to contextualise it and to revisit 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 would welcome the collective actor, in all its multiple forms, and who would take place between the owner and the public authority, taking both on the side of the right on the object (collective access, use and enjoyment) as on the side of the interest to the object (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. The research operationalizes this two-headed model by revisiting property and, complementarily, by studying responsibility. It explores certain legal tools in private law (contract, foundation, trust), and certain alternative financial modes (sponsoring and patronage, crowdfunding).
- Affiliations
USL-B SIEJ USL-B CEDRE USL-B CIRC 
UCLouvain SSH/IRIS-L/CIRC - Centre interdisciplinaire de recherches en droit constitutionnel et administratif UCLouvain SSH/IRIS-L/CDRE - Centre d'études du droit de l'environnement UCLouvain SSH/IRIS-L/SIEJ - Séminaire interdisciplinaire d'études juridiques
Citations
de Clippele, M.-S. (2019). À qui incombe la charge? La responsabilité partagée du patrimoine culturel, une propriété revisitée.