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Hastings Environmental Law Journal

Abstract

Several international policy documents define the environment as made of “natural heritage” and “cultural heritage” together, along the lines of concepts such as “biosphere” or “ecosystem” which have been introduced relatively recently to define the complexity of humanenvironment interactions. Nevertheless, distinguishing natural heritage from the cultural one helps analyse situations where damage inflicted to the former negatively impacts the latter. In fact, cultural heritage sits under siege worldwide due to polluting activities and environmental degradation, which are causing irreparable damage to—or even the disappearance of— valuable expressions of civilisations’ legacy. Most damages are transboundary, thereby calling into question bilateral forms of States’ liability; others involve a globalised dimension of climate change, addressed through “trusteeships” whereby the international community establishes centralised compliance schemes which are built on incentives and sanctions while do not necessarily provide for clear-cut liabilities. Yet, this uncertainty on the liability schemes to be applied to different sources of environmental damage to cultural heritage in peacetime remains underexplored in legal scholarship, which rather tends to focus on the protection of cultural heritage in armed conflicts, on environmental damages exclusively considering the environment’s natural elements, on state liability within domestic jurisdictions only, or on liability as a corollary of state responsibility. Two categories of events are to be assessed: those where a home damage to the environment results in damage to cultural heritage abroad, and those where the damage to both occurs directly extraterritorially; these both may occur due to state initiatives, or through malpractices of corporations which are neither owned nor controlled by the State. Strict, absolute, or “soft” liabilities are invoked by private parties when their property is violated, or by States when their heritage as a collective good is damaged, but might also involve the international community as a whole when such cultural expressions are deemed of public interest and conceptualised as “global commons.” When it comes to damages of this sort, it is unlikely that States purposively caused them or even deliberately refrained from preventing them; what is more, these damages often occur as a result of concurrent actions by multiple countries over extensive periods of time. Consequently, the legal analysis on liabilities warrants to be framed under a broader cosmopolitan solidarity and burden-sharing perspective, whereby States voluntarily uphold the convenience of selected forms of international liability, in order to protect cultural heritage and contain one of the most perilous side-effects of deregulated anthropisation. To this end, China’s metamorphosis from lawrecipient to law-maker status on the international plane is worth focusing on. By scrutinising Beijing’s approach to (international) environmental law during the “Western humiliation” period, the WW2 aftermath, the “Cultural Revolution”, and the transition to world power status under the label of “socialist market economy with Chinese characteristics,” it is possible to draw inferences on what liability schemes for cultural heritage protection are deemed desirable in Chinese politics and discourses. An investigation of the values underpinning China’s policies over the last decades facilitates the tracing of the normative spillovers from environmental law to cultural heritage law (and vice versa), as well as the debunking of implementation asymmetries between domestic and international preferences.

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