Shared responsibility for cultural heritage, a collective dimension

de Clippele, Marie-Sophie [USL-B]

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 PhD 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 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 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(s), in all its(their) multiple forms, varying in space (from individual citizen to the universal community) and in time (past, present and future generations). The upcoming of virtual forms of the collective actor also implies to determine criteria for its legitimation. Following the concept of a “cultural property of shared interest”, the collective actor(s) 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 rights, stemming from the fundamental right to cultural heritage) 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). The research operationalizes this two-headed model by revisiting property and, complementarily, by looking into the concept of shared responsibility. It explores certain legal tools in private law (contract, foundation, trust), and certain alternative financial modes (sponsoring and patronage, crowdfunding).