Katja Lubina

This report, which has been written for the 2008 Thematic Congress of the International Academy of Comparative Law in Mexico City from 13 to 15 November 2008, outlines the protection of cultural heritage in the Netherlands at the brink of the Dutch ratification and implementation of the 1970 UNESCO Convention on Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property. Methods for protecting cultural heritage are usually categorised according to at least one of the following four criteria: (a) the form in which the cultural heritage presents itself (tangible or intangible; movable or immovable); (b) the geo-political circumstances surrounding it (peace or wartime); (c) the place where it is located (on land or underwater); or (d) the status of its possession (legal or illegal).

In following the questionnaire prepared by Professor Kono as the General Reporter of the Conference’s session on the protection of cultural heritage this report adopted a more integrated and community-oriented perspective on the protection of cultural heritage. This approach, which takes into account the interest of non-Western countries and their organisation of the protection of cultural heritage, has been highlighted in the ‘Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage’ (available at http://portal.unesco.org/culture/en/files/23863/10988742599Yamato_Declaration.pdf/Yamato_Declaration.pdf (last visited 10 June 2008). The Declaration (see in particular paras. 4 and 9) emphasises the importance of “safeguarding both categories of heritages in their own rights, taking into account their interdependence but also their distinctive characters”. Further to the emphasis accorded to the protection of intangible cultural heritage this approach puts great wight to position, role and involvement of communities in protecting cultural heritage.

Analysing the existing instruments available in the Netherlands for the protection of cultural heritage from this integrated and community-oriented perspective shows that the Dutch national legislation for the protection of cultural heritage follows a non-integrative approach. The different categories in which cultural heritage has been classically divided are each dealt with in seperate laws: Dutch law strictly distinguishes beteen tangible and intangible forms of cultural heritage. Whereas the first group is regulated in various legal statutes again distinguishing between immovable and movable cultural objects the protection of intangible cultural heritage is not law-based.

As for the basic national concepts the analysis of the scattered laws shows that the Dutch concept of cultural heritage is based on the principle of property rights in the sense that tangible cultural heritage is primarily considered someone's property and only secondarily as cultural heritage. The importance of property rights is reflected in the fact communities are not granted a specific role in the protection of cultural heritage unless they own it and qualify as legal entities. Further to the emphasis of property rights the “culture” of the Dutch legal system for the protection of cultural heritage is characterised by values such as pragmatism, soberness, emphasis of legal certainty and market values.

Cite as: Katja Lubina, Protection and Preservation of Cultural Heritage in the Netherlands in the 21st Century, vol 13.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2009), <http://www.ejcl.org/132/art132-4.pdf>.

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