[The following notes of oral exchanges at the session were taken to help identify speakers and otherwise facilitate review of audio recordings. They have not been compared to those recordings and should be understood to provide only a sense of what was said. In other words, they are not formal transcripts, and they may contain inaccuracies.]

Speakers are identified by their initials in the transcript. For a full list, click here.

Session 1: “Cultural heritage” or “cultural property”?

DS: [Introduces the rapporteur and sponsors.]

DS: Opening remarks – I am sitting in for John Merryman. The topic of the panel is to give the history of the field, in order to create a starting point for the conference.
Cultural property vs. cultural heritage – two ways of thinking about the field.
Since 1954, the approach to the field had been from the spoils of war, so that the focus was material property. Cf. the Hague convention. Since then, there’s been a movement towards intangibles. This movement was originally mostly lawyers; now it involves also anthropologists and other social scientists.
The question of Heritage vs. Property picks up on this historical distinction. Property entails: alienation of the object in question, the right to do with it what you want; an emphasis on individual rights. Heritage entails: group rights as opposed to individual rights. Heritage is not necessarily control or possession but a sense of belonging; it is harder to characterize than property rights.
The goal of the sessions is to think about topics; where we have interests, we will pursue them in the roundtables for greater focus. We want something helpful to the development of the field. There will be free time between sessions to talk amongst ourselves, for the informal development of ideas. [Return to Synopsis]

LP: "Cultural property" is worrying because lawyers assume an automatic application to cultural property because of use of the word “property”. But cultural suggests: not exclude but access to people; not alienation but prohibitions; the same legal aspects applying to property.
How did “property” come about? The earlier language was more specific – it cited, e.g., monuments, artifacts, books. But as lists were getting longer, there seemed a need for a collective term. “Property” was used first in 1954 in international (Hague). [Someone whose name I didn’t catch] thinks the phrase “cultural property” was first used in the American effort to return WWII spoils.
Where are we going today in heritage law?
I prefer heritage as a term. Property has load of implications: it is used and, automatically, assumptions are made about action. Heritage has not had a specific legal meaning. It was used first in 1972 in international. Merryman thinks heritage carries over loads of emotive nationalism – this is a potential problem but I don’t think it is serious. [Return to Synopsis]
I want to ask: what is a suitable term?
Now we’re looking at heritage in different way – in context, intangible. Cf. Japanese legislation in 1954 – the Japanese was translated into English as “intangible cultural property” – which UNESCO translates as “intangible cultural heritage.”
This isn’t just a quibble for lawyers. The language of international conventions is used by a lot of non-lawyers: we need a parallel of understanding, an ability to relate to broader community.

RH: I got into the field indirectly. My work on nationalism in Quebec: national patrimony through heritage legislation. It was a way to study nationalism. Cultural heritage became an elementary struggle in the work. Attitude towards cultural/heritage preservation –emic, native beliefs, but needs to be etic. Legal discussion seems to me to be the natives doing their thing.
Useful reading – reflections on culture and cultural rights: discuss historical irony that high-tech cultural theorists claim that culture is unbounded, that it can’t be owned, that it is reflexive (i.e., to act on it is to change it). [Return to Synopsis] It is ironic that at the moment that intellectuals are treating culture from a constructivist perspective (i.e., not property-like), subordinated peoples are making use of older culture theory to pursue their political and cultural agendas. This creates a dilemma – situating oneself as theoretician versus situating oneself as a politically-motivated actor. Strategic essentialism splits the difference – it is okay to essentialize one’s own culture because it is the only way to maneuver in a domain that is ruled by powers beyond one’s control. [Return to Synopsis] As a culture critic disinterested in (legal) workings, I see interesting questions about what cultural theory is being conveyed and drawn on in the journal.
Questions:
1. Universal vs. Particular in “international” in title of journey. In the Boasian perspective, all culture is particular by definition. Once you define a term, someone uses it; once she uses it, she puts it in a context, and it changes. Can’t use the term so that it sits still; humans don’t say culture; they enact it. But in law, there is a search for definitions on several axes.
International – weak term (just particular cultures coming together) or strong sense (international agreement) or strongest (universal government, society that purports to get it right for all humankind). There is no act of cultural preservation that is not a culturally particular act. There is not one story that can be defined.
2. Temporality; temporal lineages. This is harder to talk about. Deep heritage vs. new heritage. Idea that there is one grand story of humanity, of civilization. But there are many ways to measure time in the telling of human history. There are different notions of what counts as heritage; on what part of the timeline it exists. For example, cave paintings are called early art, as if there is just one art, one story about how human art began. More recently, heritage vs. politically expedient action of politically-motivated actors.

KS: [in reply to RH] It is the International Journal not the Journal of International Property.Most European languages – “property” is strange. German: Kulturgut, French: Bien veritage, Italian: Bene culturale. In German, French, Italian – the equivalent to cultural property is much broader. “Cultural heritage” is a limited term. This is typical of English. [Return to Synopsis]

RH: What do you get out of “cultural goods”?

KS: [….]

RH: Value?

AB: “Cultural goods” suggests a commodity. It contradicts an anti-commodification value.

JN: […]
1. “Cultural goods” – with a commodification flavor – crept into EU deliberations. Goods is very different from good – makes the problem even more difficult because of connotation of commodification.
2. Name of journal – reconsider name because cultural property.

PO: When journal was set up in ’89, I proposed cultural heritage. But it was knocked down.

DL: It is now 15 yrs later. The meanings of words have changed. Can you say something about how you feel word heritage has changed? I think: heritage has been politicized and property has become simply a negative.

PO: I agree – heritage politicized. More widely used in international administrative system. Property has pejorative connotation; it is not acceptable. [Return to Synopsis]

LP: In English, there is a great range of words – property, inheritance, succession, patrimony. We have to use something; heritage is the best. I agree with DL that the term is now used as rallying cry. But we have to use something.

DS- This was considered by society’s board briefly after the litigation with Oxford and the hiatus. The board decided that the heritage of the journal was “property.” It was a commercial decision.

SU – publisher – if hoped to maintain library subscriptions, name change would be bad.

LR – Let’s put a question mark at end. Are we trying to apply one term to fit multiplicity of situations? Situations where the question – “who has control over x?” – is different from “who gets to designate?” – we want to be talking about specific roles and situations. Terms might vary depending on situation. For example, an international convention might purposefully choose a retrospective term like heritage, whereas the law of a state might want to preserve the future of a people, asking them to choose the language. My preference is to think about what the issues are and then what is the appropriate terminology.

MC – Why do we have to choose between terms? Let’s use them when they are more appropriate. They overlap but are not coincident. Both have connotation of ownership. “Property” equals proprietors. “Heritage” doesn’t name the owner but implies that the owner is very large. One must ask who owns, how, how they behave, how affect, destroy culture.

FS – Instead of using both, is there a neutral word? E.g., [some] convention [I missed the name] uses “objects” which appears neutral.

LP – When working with international instruments – they include a clause that says all 6 languages are equally authentic. Using multiple English terms will create havoc.

AB - [….]

MC – We will never succeed in banishing either term from international vocabulary.

JN – There is a trend away from reliance on the use of “property” and towards “heritage.” Property lawyers don’t talk of “cultural property.”

SK – In anglo-american law, there is no contradiction between intangibles and “property.” Cf. law of intellectual property. The tendency is in the direction of commodification of intangibles. That is the larger context in this legal tradition. Not an accident.

DL – A question for the lawyers: are property and commodification same?

SK – Yes.

DL – Property, then, is too narrow.

NS – We are opposing words. If something is property, it retains that quality. But heritage is not a permanent quality, even at the one moment because of different opinions on a set of objects. There needs to be a word on top of heritage that renders something capable of being heritage, e.g., “heritage resources.” I respect need for international conventions to identify something as something, but in cases of disputed heritage – more vivid by the nature of heritage – there is a desire to exclude – what is our heritage is not their heritage. Heritage standing alone is something like beauty, patriotism, freedom – it is hard to give it objective, agreed-upon meaning. As the journal’s name, heritage leaves something in air. [Return to Synopsis]

LP – Isn’t that what we need to do?

NS – No, the reverse: can objects be assimilated into a system of heritage thought? To leave it as “heritage” equates only to anything that is old.

SU – Are you suggesting that we have out by using heritage as an adjective as opposed to a noun?

NS – Yes.

LP – The statute on movable cultural heritage doesn’t get added to.

NS – “Movable” does the work.

LP – But we need a global term. Internationalism – a culture of internationalism itself is based on compromise, coordinating interests to prevent conflict. [Return to Synopsis]

RH – General model: all of modern western social science is about the movement from the medieval period to the modern and about destructiveness of modernity. Is this language always a rearguard action trying to protect the past from the onslaught of modernity? I think so – these terms take on aspects of life and convey a language of value – by giving value, you give resources to groups whose life aspects are being bulldozed. Is the cultural heritage movement from French Revolution all about the tragedy of modernity and the attempt to fight back? I don’t buy any attempt to come up with pure term. All terms are compromised.

CC – You are equating heritage with nostalgia?

RH – Yes. A model of progress is always tugged at by a model of nostalgia.

PF – Let’s step back from this discussion. In Latin countries the term is “patrimony.” This is ambiguous – it can be property but also refers to something linked to state. “Heritage” is a better word to translate patrimony.

KS – I have a question about what LR said. “Heritage” might have a retrospective connotation. If true, this matches the German with its connotation of retrospective attitude. [Return to Synopsis]

MC – [….]

PF – Patrimony means something related to a father so its meaning can comprise even the present.

PO – Does patrimony have connotations of nostalgia?

PF – Yes, but not only this.

HP – A comment on what RH just said. Historians argue that modernity and nationalism evolved together because the nation state wanted to educate their citizens about heritage. So you can’t separate modernity from nostalgia.

RH – Yes; they generate each other.

HP – In Japan, the term is bunkazai hozon, meaning culture [?], where zai means “goods” and hozon means “heritage” [?or “protection”]. “Goods” is material, “heritage” is tradition; it encompasses a larger framework.

RP – Perhaps resolve by focusing on [...]. The interest of most people is nostalgia. International Journal of Cultural Protection – the title leaves open what it is seeking.

CC – “Protection,” not “preservation”?

RP – “Protection” is wider.

DL – “Protection” in another session. There’s a new book on nostalgia and on sublime historical experience – the French Rev and nationalism mark a divide. But it is historically fallacious to suggest that heritage did not exist previously. For example, very consequential in late Roman empire. There are many nostalgias with different roots and different consequences. [Also,] There is already another journal called the International Journal of Heritage Studies. A remark to LP and PO – no one has asked a question about cultural – why “cultural”? Both individual and collective.

RH – Why cultural? Because modernity is conceptualized as a rational project in political and economic domains that destroys all – culture is the soft realities that will be ground up by the hard truth of political and economic factors. All these discourses are trying to objectify that which is being destroyed by modernity by giving it a value that modernity can understand.

DL – Everything that is solid melts into the air, but culture doesn’t because culture isn’t solid.

LR – Retrospective. People are always re-conceptualizing the world. They need the resources with which to do that. They need the resources of the past to reconfigure the categories of their own experience as they move through time. Only “retrospective” ignores how people need to use resources prospectively. Make them available to people against those who would take it away from them – the ability to work with these things. That’s preservation, patrimony, etc. I think of cultural property as a unit – don’t break it up. There are lots of examples like Taliban destroying Buddha that have little to do with modernity. Trying to keep people thinking prospectively.

MB – Instead of arguing over cultural property and heritage – since term changes – I like RP’s comment on focusing on goals. I don’t know what the goals of heritage movement are in a global sense. There are a lot of unattractive goals. E.g., Ulster march, Japanese whalers. Whatever rubric we choose – what are you trying to accomplish, what are the standards? [Return to Synopsis] Is it locals setting the agenda? This would allow more autonomy and diversity. [Return to Synopsis]

LP – It’s all about giving people maximum choice. [The heritage movement] coincides with the international human rights movement. “Heritage” means that these people have a choice about what to do with the objects. Rights are certain basic things that everyone has that enable them to be in control over their future. This can lead to contradictions, of course. [Return to Synopsis (maximum choice)] [Return to Synopsis (historical link)]

LR – The analogy is more like freedom of speech than property? Cultural freedom.

LP – Speech and heritage are both rights.

LR – Rights has a whole discourse but freedom does not. One has the capacity to utter these things but not in direct harming of others. Cultural freedom, cultural integrity. Where you build your analogies is important. The better analogy is to freedom of speech. [Return to Synopsis]

AB – Freedom of speech crops up in dialogue – appropriating culture. I want to be able to transform culture because I want to express myself.

NS – I don’t care if it violates copyright law, for example.

AB – Something else.

NS – There is an alternative parallel to human rights: the environmental movement. Not the legal manipulation of what is termed cultural property/heritage. Rather, the preservation of material ecology. There are difficulties in fact. There is the unprecedented destruction of material of all kinds – that is old – in the face of development. Once we decide there is something valuable to be preserved, there is this protective aspect to keep alive the possibility that there will be something left to discuss – once we have done that, we can talk about the rules of how to talk about them. The first thing to worry about is the preservation in the first place. First we preserve the Ulster marching society and then decide how they ought to be treated. Barcelona Easter-week. [Return to Synopsis]

MB – How do you preserve it without it continuing? Documenting without enacting?

NS – Sure – document it. There are lessons to be learned from negative.

AB – Once you preserve something, you bound it and stop it potentially from being a vibrant part of lived cultural experience. The notion that we’re destroying culture all the time; but we are also creating culture all the time. One of the problems with preservation is that, if we preserve too effectively, we stop people from renegotiating it, and it is killed. [Return to Synopsis]

RH – No, it becomes a vibrant part of another cultural life, the institutions that routinize and maintain it.

CC – Will we be talking about tourism?

SK – Heritage in modern American political speech means tourism – an economic enterprise, an object of legislation. The essence of commodification. [Return to Synopsis]

NS – This is true all over the world. As Richard said, Auschwitz is transformed from concentration camp to tour. I’m talking about preventing destruction – e.g., Etruscan tombs, WWI military equipment. Because of commodification and markets – distributed and its context being lost. Our two main challenges are physical destruction and intellectual destruction.

RH – Who cares if stuff is destroyed? Why presuppose preservation?

NS – Presumably there are some things to be learned from human patterns of behavior. We are cutting this possibility off from the future.

RH – That sounds like self-serving native rationalization: we need data, social scientists. We can learn as much about humans from destruction. [Return to Synopsis]

NS – That’s the anthropologist saying it.

RH – […]

SK – There is an intermediate position: not just destruction but transformation. It is worth reflecting on what the Rockefellers have done here [at Pocantico].

CC – Will we be talking about the culture of [?] {tomb robbers}?

AB – We will at another session.

SU – To comment on what LR said [about retrospective and prospective resources] – if they don’t know the past, they don’t know who they are – but this is not true of American youth – punk culture is intellectually nihilistic but very vibrant and understands entirely who they are. Perhaps the assumption that the past is necessary for continuity is up for debate.

LR – I was thinking of Steinbeck. People in a situation where they are literally moving from one life to another – makes sense. People can be heirs to the past without being aware of it; they can recognize it when they confront it, however.
In response to RH [who asked about preservation], who gives a damn? The response is: let them – whoever they are – decide that. What would you keep with you of your childhood? You can’t take it all with you.

DL – Aren’t we all heirs to some past we don’t understand all the time? Internationalism should be about: we’re all heirs to all our past all the time. Perhaps there’s too much stuff. Historians and archaeologists have more data than they know how to use.

CL – Responding to RH on modernity and rupture and DL’s nostalgia. We’re speaking so much of constructiveness. But is there not also a biological/cognitive structure – memory – that is necessary for people to negotiate what it means to be in the world. There’s a Getty exhibit – deep structures of knowledge – symbolic capital, etc. – as, for example, classical antiquity is.

HP – To add to what Clare said: there was pre-modern heritage but different construction. Protected ancient burial grounds but as clan identity. This was re-registered as properties (from Western system) with the advent of the nation state.

CL – A system of knowledge classification.

HP – But the transformation process is very interesting – Buddhist icons moved from temples to museums. Change from sacred to other meaning. Makes temple less authoritative symbol without museum. Native population/religious orders always in tug of war with developers/states.

LP – Closing remark. Starting this discussion is not only theoretical. There is a practical impact. Once you call something cultural property, it makes it harder to protect because it is commodified.

DS – How in the world do I end and summarize? I won’t try. I count at least 5 topics that came up. I am asking you to think about what notes you’ve taken. Talk to the people who disagree or initiated an idea. Use the informal time at the conference.

AB – What we hope to do is think about what are the pressing issues and questions with regard to the topic. What are the primary issues to revisit in roundtable? The next steps for field, for the journal?