The history of cultural property is strongly connected to wars and armed conflicts. If on one side wars represented a means for the enlargement of national territory and neutralisation of enemy populations, ritorsions against theirs cultural property had principally an economic and symbolic value. Damage the signs of a culture was an expression of contempt and superiority. More after the cultural heritage of the loosing nation represented the war plunder of winners and part of the reward for the troupes. Before XVIIII century, cultural property of a certain value (gold or silver) and objects of art was subject of races, damaged during conflicts or used as a war refund.
The interest of the International Community increased in a parallel way to the evolution of armed conflicts and their devastating effects. The protection of cultural property during armed conflicts has been codified in several conventions, since the end of XIX century till our days.
The Slovenian Law for protection of cultural property in her second article states that should be considered as cultural property: areas or complexes, constructions or buildings of various kind, objects or groups of objects and every materialized proof of human creativity and multiplex activity, the evolution of society and hers processes, characteristic for single defined periods into the history of a Nation or wider, is to be considered of public interest because of their historical, cultural and civil importance.
The peculiarity of this subject can be found in the fact, that it doesn’t enter in contact with just one legal and cultural sphere but it acts in the wide open space of the international community. The definition of cultural heritage has to take into consideration all the criteria and needs of various legal traditions and the different concepts of cultural heritage existing in the single nations.
No definition regarding the object of protection has been able to reach a global consensus. For that reason, every single State decides the extension of cultural heritage on its own soil in total autonomy. The concept of cultural heritage varies from State to State, and that makes necessary for every international document, to define its own area of application, specifying the meaning of terms like cultural object, monument or heritage.
Generally, the conservation of cultural heritage consists in provisions and actions of safeguard, in conservation and common use of patrimony. On the other hand, in a strict sense it is represented by the actions of public institutions, dedicated to the protection of all kinds of cultural heritage (mobile or not), administered by specialized institutions.
Physically is possible to protect the cultural heritage where it is (in situ), with an apposite maintenance and the protection of the area. In alternative the object can be removed from his original collocation and deposited by an engineered structure. The legal protection is formed by the introduction of special official registers, protecting the areas at risk, establishing the procedures of safeguard and emission of licences, establishing the duties of owners and possessors of cultural property, etc.
The function of protection in the law of cultural heritage is not to be seen only as an instrument of physical safeguard but as an integral protection of his cultural value in relations to his territory of origin
In the ambit of cultural heritage protection is possible to recognize two aspects of this protection. The first one regards the safeguard of the patrimony during armed conflicts and the second represents the protection in times of peace.
The formation of legal protection of cultural property, objects of art and historical documents in time of peace goes back just to the XXth Century as a direct consequence of the reformation of modern international law. It evolved from coexistence to direct cooperation of the international community, passing trough international organisations.
On the other side, the protection of cultural heritage during armed conflicts has a much longer tradition. By the opinion of Vladimir Brgulyan the start of this protection on the international scale coincides with the introduction of a rule, by the League of Delf approximately by 1100 before Christ, which prohibited the complete destruction of cities.
The World War II brought new raids of cultural objects by the nazist’s troupes. In that time United Nations took full conscience of the problem, instituting the UNESCO in 1946. The first Convention of this organisation was exactly the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflicts with the annexed Regulation. This has been the first the first international document, entirely and exclusively dedicated to the protection of cultural heritage in war periods and the first document containing a definition of “cultural object”.
Talking about commerce of objects of art, the various States can be considered as importers, exporters or transition States. The most common distinction has on one side all those States which support free market and, on the other side, those where commerce is limited and where a special permit is necessary for exportation.
On the international scale have been approved some documents in order to prevent the illicit traffic of art. Among those the most important role is given to the UNESCO Convention of 1970 on the Means of Prohibition and Preventing the Illicit Import, Export and Transfer of Cultural Property.
All the requests for restitution of cultural patrimony are a direct consequence of the prohibition of illicit exportations. Once the illegality of the transition is found, the damaged State has the possibility to request the restitution of the goods. There appears only one problem, addressed by the related international documents, consists of the property of those who have acquired a certain good legally and in good faith.
Cultural property can be transported out of their original location during the armed conflicts (stolen by the invaders as spoils) or illegally exported (in the ambit of illicit traffic of objects of art) in pacific times. In the same way are also divided the regulations connected to their restitutions.
Excluding some examples of international regulation regarding the protection of cultural property during armed conflicts, their legislation remained for a long time an exclusive responsibility of single States. Vaster forms of international cooperation were first manifested just in the second part of 1900, especially to contrast the phenomena of illicit traffic of works of art.
With the diffusion of the idea, that it is not to be protected just our own cultural property but even others, several States started the search of proper means for the pursuit of goals of common interest. The solution has been found in the stipulation of conventions, drawn in the way to unify the regulation in use for cultural property and in the institution of international organisations. The organisation of United Nations for Education, Science and Culture (UNESCO) was founded in 1945 with a constitutive act which entered in use a year later, after the subscription of 20 states founders (Australia, Canada, France, Greece, Mexico, Great Britain, United States, etc.).
