Art Law & Balances. Increased Protection of Cultural Heritage Law vs. Private Ownership: Towards Clash or Balance?

In: International journal of cultural property, Band 22, Heft 2-3, S. 259-278

Abstract

Abstract:Private ownership and cultural heritage protection are two interests in continuing tension. The traditional conception of property right is based on an absolute individual right to the peaceful enjoyment of possessions. However, interference in this right may restrict its exercise and impose charges on the owner, such as classification measures and conservation easements. This paper formulates a hypothesis about an increased protection of cultural heritage along with that of private ownership.Against the background of a complex constitutional allocation of cultural powers, Belgian law provides a pertinent illustration of this development. At the one hand, Belgian governments have been adopting more extensive legislation protecting cultural heritage. On the other hand, Belgian courts, traditionally reluctant to recognize any compensation right when the protective measure only restricts the ownership, gradually appear to undertake a more thorough analysis of the fair balance between the conflicting interests, notably in favor of the owner.The authors gauge the merits of a new model of cultural heritage protection.