La fruizione dei beni culturali: i nuovi diritti

Access to and enjoyment of cultural heritage in the Italian legal system: potential recognition as a fundamental right and current protection through collective and diffuse interests

di Michele D’Addetta [*]

Sommario: 1. The right of access to and enjoyment of cultural heritage in international law: an overview of its normative content in international instruments and practice. - 2. The Italian regime of protection of cultural heritage and cultural rights. - 3. Access to and enjoyment of cultural heritage and the concept of fruition. - 4. Avenues for the protection of access to and enjoyment of cultural heritage in the current Italian system. - 4.1. Public class action. - 4.2. The “new class action”. - 4.3. The relation between the protection of the environment and cultural heritage: the role of environmental organisations for the protection of cultural heritage. - 5. A possible avenue: the protection of the Raech through fundamental rights. - 6. Implications of the ratification of the Faro Convention in the Italian legal system for the Raech. - 7. Conclusions.

This contribution explores the compatibility of the human right of access to and enjoyment of cultural heritage (Raech) with the Italian legal system. It begins by outlining the normative content of Raech from an international law perspective, then examines the key challenges surrounding its implementation within the Italian legal framework. Particular attention is given to the implications of Italy’s ratification of the 2005 Council of Europe Convention on the Value of Cultural Heritage for Society (Faro Convention) [1]. Finally, the analysis assesses some legal mechanisms that could potentially be used to redress instances of inadequate access to and enjoyment of cultural heritage.

L'accesso e la fruizione del patrimonio culturale nell'ordinamento italiano: il potenziale riconoscimento come diritto fondamentale e la tutela attuale attraverso interessi collettivi e diffusi
Questo contributo esplora la compatibilità del diritto umano di accesso e godimento del patrimonio culturale (Raech) con l'ordinamento giuridico italiano. Il contributo inizia delineando il contenuto normativo di Raech dal punto di vista del diritto internazionale, per poi esaminare le principali sfide legate alla sua attuazione all'interno del quadro giuridico italiano. Particolare attenzione viene data alle implicazioni della ratifica da parte dell’Italia della Convenzione del Consiglio d’Europa del 2005 sul valore del patrimonio culturale per la società (Convenzione di Faro). Infine, l'analisi valuta alcuni meccanismi legali che potrebbero essere utilizzati per rimediare a casi di accesso e fruizione inadeguati del patrimonio culturale.

Keywords: access; cultural heritage; human rights; Italian legal system.

1. The right of access to and enjoyment of cultural heritage in international law: an overview of its normative content in international instruments and practice

The right of access to and enjoyment of cultural heritage (Raech) has made its way into international human rights law and practice, primarily as an integral part of the right to participate in cultural life. In her seminal 2011 “Report on the Right of Access to Cultural Heritage”, the Independent Expert - now special rapporteur - in the field of Cultural Rights (hereinafter Srcr), stated that the Raech “forms part of international human rights law”, finding its legal basis, inter alia, in the right to take part in cultural life, protected by Article 15.1 (a) of the International covenant on economic, social and Cultural Rights (Icescr) [2].

Along the same lines, the Parties to the Faro Convention recognised that the rights relating to cultural heritage are inherent to the right to participate in cultural life, as defined in the Universal declaration of human rights (Udhr) [3].

According to the Srcr: “(a)ccess to and enjoyment of cultural heritage are interdependent concepts - one implying the other. They convey an ability to, inter alia, know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage, as well as to benefit from the cultural heritage and creations of others, without political, religious, economic or physical encumbrances” [4].

The Srcr identified a total of five dimensions of the Raech: the i) physical, ii) economic, iii) informational, iv) access to decision-making processes and v) access to remedies.

The concepts of access to and enjoyment of cultural heritage have gained prominence within international legal instruments of both hard and soft law. For instance, article 22 of the African Charter on Human and People’s Rights states that “(a)ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind”. References to access and enjoyment can equally be found in the Asean Declaration on Cultural Heritage [5] and the UNESCO Hangzhou Declaration [6].

The 2007 Fribourg Declaration on Cultural Rights [7] was the first document at the international level to specifically address cultural rights. Based on a text drafted by a group of experts under the auspices of UNESCO, it was not ultimately endorsed by the organization. Article 3 (c) of the Declaration states that everyone has the right, alone and or in community with others: “(T)o access, notably through the enjoyment of the rights to education and information, cultural heritages that constitute the expression of different cultures as well as resources for both present and future generations”.

Not least of all, the Faro Convention identifies a right to benefit from cultural heritage, using an enlarged, cross-disciplinary concept of heritage and referring to several aspects of access and enjoyment, such as the economic, information and participation dimensions.

At the same time, an increasing number of international judicial and monitoring bodies have addressed issues pertaining to various aspects of access to and enjoyment of cultural heritage. Although the three regional human rights courts - the African Court on Human and Peoples’ Rights (Achpr), the European Court of Human Rights (Ecthr) and the Inter-American Court on Human Rights (Iacthr) - have never explicitly acknowledged the existence of a general, universal right to heritage or, more specifically, the Raech, they have increasingly been called upon to adjudicate on issues pertaining to access to and enjoyment of cultural heritage.

Very significant in this regard is the Ecthr case Zeynep Ahunbay et al v. Türkiye, Austria and Germany [8], which concerned the relocation and partial destruction of the heritage site of Hasankeyf, in Türkiye. Although the Strasbourg judge rejected the possibility of protecting cultural heritage through the human rights enshrined by the European Convention on Human Rights (Echr), the case has contributed to drawing attention to the appreciation of access and enjoyment of cultural heritage protection through a human right lens.

The Iacthr and Achpr have also dealt with cases concerning access to and enjoyment of cultural heritage, mainly in relation to indigenous peoples. The Iacthr got to recognise that the lack of access for members of indigenous communities to ancestral lands - including the cultural heritage related therewith - could engender physical, psychological and moral suffering [9]. Its findings resonate with those of the Al-Mahdi case of the International Criminal Court’s (Icc): in its reparations’ decision, the ICC recognised different forms of harms and compensations, including for members of local communities, as consequences of the destruction of the cherished Timbuktu mausoleums and mosques ordered by Al-Mahdi [10].

Other international courts and bodies have dealt with certain aspects of access to and enjoyment of cultural heritage. For example, the International Court of Justice (Icj) has in more than one case touched upon the relations of communities with their traditional ways of living, including access to practices and elements of intangible cultural heritage [11]. A recent order of the Hague Court addressed to Azerbaijan concerning access to and enjoyment of cultural heritage in the Nagorno-Karabakh region is a notable development in this regard [12].

Within the United Nations Human Rights system, the Committee on Economic Social and Cultural Rights (Cescr) and, even more, the Srcr have been playing a major role in the definition of the normative content of the Reach and the monitoring of States’ obligations through their different procedures. In particular, the Srcr has extensively contributed to this through thematic reports, allegation letters and urgent appeals, as well as country visits reports, to give substance to the normative content of the Reach [13].

In hindsight, the Raech is the most advanced formulation of a right to cultural heritage at the international level. It appears as a valuable articulation of such a right since it recognises the complex interactions that human beings have with cultural heritage. In addition, it might prove useful for the identification and monitoring of State human rights obligations in relation to the latter.

2. The Italian regime of protection of cultural heritage and cultural rights

Before delving into the analysis, it is important to make a terminological consideration concerning the usage of the English term “cultural heritage” within the context of the Italian legal framework.

The Italian Constitution recognises, at its Article 9, the protection of historic and artistic heritage of the Nation (“patrimonio storico ed artistico della Nazione”) and landscape (“paesaggio”) as one of its fundamental principles [14]. Cultural heritage does not precisely correspond to “patrimonio storico ed artistico” mentioned in the Constitution, nor does it entirely align with “beni culturali” (cultural goods) mentioned in the main legislative framework governing cultural property, which is the Code of Cultural Goods (Codice dei Beni Culturali) [15].

A more accurate Italian translation for cultural heritage, aligning with international standards, would be that of “eredità culturale” [16]. In the present contribution, we will adopt the definition provided by the SRCR in her 2011 Report [17], which encompasses both the aforementioned concepts of “patrimonio storico ed artistico” and of “beni culturali”.

Although the Italian Constitution encourages the development of culture, it lacks, except for certain rights of linguistic minorities [18], explicit provisions on the protection of cultural rights, as enshrined by the major international instruments, notably the Udhr and the Icescr. Partially as a consequence of that, the examination of cultural rights has only recently gained attention in Italian legal scholarship [19].

Moreover, although set forth as a constitutional principle, the protection of cultural heritage is not explicitly linked to the enjoyment of one or more fundamental rights. Indeed, neither the right to participate in cultural life nor a generic right to cultural heritage are expressly protected by the Italian Constitution. As it has been noted by Repetto, despite the emphasis frequently placed on the cultural dimension of fundamental rights and, more in the background, on culture as a constitutive element of the Constitutional State [20], it is still difficult to identify a right to culture in unitary terms [21].

Not surprisingly, the Raech has never been dealt with by the Italian judicial practice, neither as such nor as a component of the right to participate in cultural life. This is far from being an isolated case, as in many legal systems there is a constitutional and legislative vacuum about this right and the right to culture in general [22]. As Lixinski notes, there is a discrepancy between the conceptualisations of cultural heritage at the domestic level and the elaborations about it at the international one [23]. This is true also in the case of Italy: reflections about cultural rights, the connection between cultural property and human rights or the participation of individuals and communities in heritage-related decision-making processes are practically non-existent in the Italian judicial practice, both at constitutional or lower level.

The reasons behind this vacuum are manifold. Three features of the Italian system are particularly relevant in our view:

1) As seen, there is no recognition of the right to participate in cultural life or, more specifically, of a right to cultural heritage at constitutional level;

2) The Italian legal regime considers cultural goods mostly as assets with a cultural value for society; therefore, they are regarded as objects of general interests and not of fundamental rights. Moreover, the focus amongst Italian specialists, including at ministerial level, has traditionally been on built heritage, with very little attention given to intangible cultural heritage and the links between practices and human beings. Furthermore, Italy lacks that propulsive forces for the recognition of cultural rights which are indigenous peoples’ cultural claims: the latter have been the object of decisions and laws, such as in Australia [24] and in Colombia [25], which have undoubtedly made the discourse about human rights and heritage advance at domestic level [26];

3) Differently from other legal regimes [27], the Italian one has constantly shown a certain reluctance towards the recognition of collective actions for the protection of rights, as well as of collective interests. This has consequences, also, on the availability of actions for the protection of cultural heritage initiated by collective entities, such as associations.

Nevertheless, as we will explore later, there are compelling arguments to surmount these challenges and argue for the compatibility of the Raech with the Italian legal system.

3. Access to and enjoyment of cultural heritage and the concept of fruition

In relation to access and enjoyment and their different dimensions identified above, attention shall be drawn to a key element of the Italian system of protection of cultural heritage: the concept of fruition (fruizione).

Article 2(4) of the Code states that cultural goods belonging to the public are intended for the fruition by the community, compatibly with the needs of institutional use and provided that there are no needs for protection. Article 1(3) of the Code assigns the task of supporting the conservation of cultural heritage and promoting public use and to the State and to the local public bodies.

Again, in Article 3 of the Code, in the definition of protection, it is clarified that protection and conservation are supported by the “purposes of public use”. Lastly, the concept of fruition is reiterated in Article 6 of the Code, which states that valorisation serves to ensure the best conditions for public use and enjoyment of cultural heritage. An indication in this sense comes also from Consiglio di Stato - the Court of last instance for administrative justice - according to which tangible cultural heritage, in particular monuments, should “respond to the fundamental need for a use consistent with the protected cultural value and instrumental to its full enjoyment by the community” [28].

Fruition has been regarded as a central element of Italian cultural heritage law by legal scholarship [29]. Fruition, “embodies the most evident consequence of an approach that goes beyond the previous paradigm, focused on protection (...), to reach a model in which public access and fruition are the ultimate end of the overall action of public authorities”. This perspective even positions fruition as one of the defining elements contributing to the potential recognition of a fundamental right to culture [30].

On a closer look, fruition closely aligns to the concepts of access to and enjoyment of cultural heritage illustrated above. However, the Italian legislator has never framed fruition as a right. Additionally, there is a complete lack of explicit indications in this regard in domestic case law. Instances where limitations to fruition are considered as violations of constitutional, human or subjective rights are notably absent. The large majority of the decisions by domestic tribunals has focused on other aspects of fruition, in particular the attribution of competences on cultural heritage between the State and the Regions [31]. Thus, the protection of cultural heritage has never been linked to the enjoyment of fundamental rights [32].

4. Avenues for the protection of access to and enjoyment of cultural heritage in the current Italian system

As many other legal regimes, the Italian one affords protection to heritage through criminal law norms sanctioning harmful acts against it. These can be perpetrated by individuals and public bodies: the most relevant provision with regard to the latter case is Article 733 of the Criminal Code, sanctioning the crime of damage to the national archaeological, historical or artistic heritage [33].

It is important to stress that criminal law norms do not directly protect Raech, as a right of individuals or communities on cultural heritage. What they protect is, instead, critical assets bearing a cultural value, as well as the general interest of society on the latter. Certainly, criminal law norms can be instrumental in the protection of cultural heritage by affected individuals and collective entities, as they enable them to intervene in criminal proceedings upon demonstrating the harm incurred [34].

In the subsequent paragraphs, we will examine the potential pursuit of a legal action for the protection of the Raech before a judge as a violation of a right independently of any criminal proceedings. Before doing that, however, we will illustrate the collective actions (latu senso) that could be currently relevant for the protection of access to and enjoyment of cultural heritage. These include: a) the public class action, b) the “new class action” and c) the action for the protection of diffuse interests in environmental matters.

4.1. Public class action

The so-called public class action can be initiated against the public administration - or the concessionaires of public services - by a group of users and consumers when the latter suffer a “direct, concrete and actual damage to their interests” [35]. Legal actions can also be initiated by associations or committees in defence of users or consumers. Other subjects can then join the individual or the association, thus forming a group of users or consumers who are “holders of legally relevant and homogeneous interests” [36].

The “damage to their interests” regards a series of limited cases: if the public administration has not observed one or more deadlines, if it has not adopted general administrative acts (mandatory and not having a regulatory content) which had to be compulsorily issued no later than a certain term, if it has violated some obligations contained in its Service Charter (Carta dei Servizi [37]), or if it has not respected certain qualitative and economic standards. The public class action has thus rather strict limits [38].

It is important to underline that the purpose of the public class action is not the reparation of the damage suffered by users or consumers, but the restoration of the correct performance of the public administration or the correct provision of the public service by the concessionaries. The interest to which the legislation refers would be no other than a diffuse interest, as the interest of a whole community, or a collective interest, as in the case of organisations of users/consumers, opposed to the exclusive interest of an individual.

Therefore, with the public class action the plaintiff can obtain the removal of any dysfunction and trigger a type of assessment which moves towards a screening of fairness. This controlling step entails a quite extensive examination by the judge on the determination of the correct performance of the function or the service.

Although the public class action has been very seldom used thus far, it has been considered as having potential in the field of the protection of the environment [39]. The normative framework of this action does not exclude its use in cases of poor performances also in relation to the protection of cultural heritage by the public administrations or concessionaries of public services. Indeed, the domains in which the public administration or concessionaries can act are not specified by Legislative Decree No. 198, and cultural heritage - at least for what concerns its tangible manifestations - is certainly an area where State organs take action.

Consequently, individuals could potentially employ the public class action to limit the activity of public administration or concessionaries of public services. However, this would be limited to the restoration of the activity of the public administration or concessionaries of public services and would not address the compensation of damages, as would happen, instead, in case of ascertained violations of subjective rights.

4.2. The “new class action”

Law No. 31 of 2019 introduced the so-termed “new class action”. The latter can be filed not only by consumers, as it was in the past, but also by professionals, companies, investors, shareholders and workers. The right to standing has been attributed, in addition to the members of a “class”, also to associations and non-profit organizations whose statutory objectives include the protection of “homogeneous individual rights” (diritti individuali omogenei), provided that these organisations are part of a list established by the Ministry of Justice. All these subjects can access justice against bodies managing public services or services of public utility “in relation to acts and behaviours implemented in the performance of their respective activities”.

The range of entities that individuals can target with this action does not encompass public institutions, typically entrusted with heritage protection. The applicability of this action in relation to cultural heritage is confined to the action of providers of cultural services. Nevertheless, our expansive definition of access to and enjoyment of cultural heritage, comprehensive of economic aspects, would enable us to explore concerns related to Raech also with regard to the provision of services.

As seen, the new class action affords protection to homogenous individual rights. This wording, which is new for the Italian legal regime, is particularly interesting for the protection of access to and enjoyment of cultural heritage. In fact, the Raech has many aspects in common with a homogeneous individual right as: a) it is a right, b) it is, primarily, individual; c) it is normally homogeneous within a certain group. Therefore, the concept of homogenous individual rights appears to align with the conceptual framework of the Raech [40].

Only representatives of collective entities included in the list established by the Ministry of Justice can file a new class action. Moreover, homogenous individual rights cannot be enforced against the action of every public body, but only against providers of cultural services. Nonetheless, it is noteworthy that the Italian legislator has begun considering these collective legal positions as rights, rather than simple interests [41].

4.3. The relation between the protection of the environment and cultural heritage: the role of environmental organisations for the protection of cultural heritage

As seen, the Code affords protection to both cultural goods and landscape (paesaggio). The latter should not be interpreted in its environmental dimension, as the Italian legal regime treats landscape and environment as separate elements. This differentiation extends to the regulation of the type of crimes that can be perpetrated (landscape crimes vs. environmental crimes).

Environmental organizations have gained increasing recognition to actively engage in safeguarding the environment as a diffuse interest. Presently, they are entitled to contest municipal resolutions, particularly those that, while focusing on urban and health aspects, have the potential to impact the environment [42]. Additionally, they can participate in the approval process of landscape plans (piani paesaggistici). This involvement includes institutional consultation and the engagement of concerned parties and associations established for the protection of diffuse interests, as outlined in Article 13 of Law No. 349 of 1986 [43].

In a ground-breaking case, an administrative judge considered an association for the protection of cultural heritage (“Associazione Nazionale Italia Nostra Onlus”) legitimated to take legal action not only for the protection of environmental interests in the narrow sense (which can be identified in the physical/naturalistic aspects of a certain area or a certain territory), but also in a broad one, including the conservation and valorisation of cultural heritage, of the urban, rural and natural landscape, of monuments and historical centres and of the quality of life, all understood as “ideal goods and values capable of characterising in an original, peculiar and unrepeatable way a certain geographical and territorial context” [44].

This case underscores the potential for protecting the cultural, artistic and historical heritage of the Nation through this enlarged notion of environment, combined with the right to standing of associations like Italia Nostra. This holds particular significance because several national environmental organisations have incorporated the protection of cultural goods or heritage into their mission [45]. This aspect makes it, quite paradoxically, more difficult for associations exclusively devoted to the safeguard of cultural heritage to access justice in case of damages to or destruction of the latter.

However, the criteria for assessing the legal standing for activating such protection have been interpreted by the judiciary in a rather strict way. As a matter of example, in a case filed to the regional judge in Campania, the parameter identified for claiming the existence of a diffuse interest to the protection of environment was that of the proximity of the plaintiff to the affected site (vicinitas).

For the judge of first instance, it was enough to prove the absence of evidence of the actual condition of residence and ownership/possession of property close to the affected site of the applicants to identify a lack of legitimate interest and thus deny their legal standing. In addition, the appeal made by the applicants to the principle of horizontal subsidiarity was not deemed valid, because, as the Court stated, “the applicants criticize the action of the two administrations (...) which are holders of the (legitimate) interests” [46].

As it has been noted by Lucidi, such a statement seems to diminish a key aspects of the constitutional principle of horizontal subsidiarity, as it seems that, according to the interpretation given by the judges in this case, only State administrations are attributed the interests which coincide with the defence of common goods of a historical/artistic nature. This contrasts with a broader conception of these interests as plural and collective, encompassing a more extensive range of entities beyond public administrations, including those within civil society.

Similarly, in a decision of 2013, the Consiglio di Stato denied the admissibility of a recourse by Codacons, the main national association for the protection of consumers. The rejection was based on the argument that the case centred around a specific cultural good rather than one considered as an integral part of the environment [47].

So, also in this case, the protection of access to and enjoyment of cultural heritage through diffuse interests action appears rather limited.

5. A possible avenue: the protection of the Raech through fundamental rights

In this and next paragraphs, it will be argued that the Raechis compatible with - and enforceable within - the Italian legal system. This issue is not only of theoretical importance, as the recognition of a right of access to and enjoyment of cultural heritage, instead of a mere interest on it, has several consequences. In particular:

a) the right can be claimed on an individual basis, while, as seen above the actions currently available in the Italian system are mostly collective ones, as they safeguard the collective interest of the protection of cultural heritage;

b) individuals can claim their right not only in front of the administrative judge, but also in front of the civil one;

c) the public administration, if found responsible for the violation of the right, would be obliged to provide restitution and/or compensation (risarcimento del danno) according to the general principles of Italian civil law [48].

Specifically, it will be argued that the Raech is not only a subjective right, but also a human right.

As seen before, the main constitutional provision about the protection of cultural heritage, Article 9, does not include any reference to fundamental rights. Yet, as suggested by Chechi, the meaning of this norm can be fully understood only if read together with other Articles of the Constitution. “In this way, (...) the protection and promotion of the national cultural patrimony is necessary to contribute to the cultural enrichment and spiritual uplifting of each individual and to ‘remove all economic and social obstacles that (...) prevent full individual development’ (Article 3 Cost.) and the enjoyment of ‘the inviolable human rights’ recognized by the Italian Republic (Article 2 Cost.)” [49].

In line with this interpretation, part of the legal scholarship has held that cultural rights, which are recognized as fundamental rights by conventional international law, belong to the catalogue of rights protected by Article 2 of the Italian Constitution (inviolable rights). Thus, cultural rights “(...) may well find recognition in the Italian legal system by virtue of Articles 2 and 3 of the Constitution, and therefore of the principles of equality and non-discrimination” [50]. Based on this argument, cultural rights, including the right to participate in cultural life and its Raech component, would be part of the “material constitution” of Italy, as opposed to its formal one [51].

Moreover, Italy has ratified the Icescr in 1978. Since then, according to the theory of automatic incorporation of international norms in the domestic system, the right to participate in cultural life enshrined in Article 15 (a) of the Covenant - and, in our view, also its Raech component - could be considered as part of the fundamental rights recognised by the Italian legal system.

On the specific issue of the incorporation of the Icescr into the domestic system, the Cescr, in its General Comment No. 9, established that the central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein by all appropriate means. Thus, even if some provisions of the Icescr are not to be considered self-executing, States are under the obligation to enact the necessary national laws to incorporate these provisions into the domestic legal order.

At a minimum, domestic judges should interpret domestic law consistently with the States obligations under the Icescr [52]. The latter argument could be sufficient to affirm that the Italian legal system protects the right to participate in cultural life and its Raech component, and to assert that an Italian ordinary judge, taking into account the ratification of the Icescr by Italy and the interpretation of the Covenant given by the practice of the Cescr, could enforce the Raech.

In addition, some authors have advanced arguments on the existence of a right to access to and enjoyment of cultural heritage in the Italian legal regime through a systematic interpretation of constitutional and legislative norms.

Of interest are the reflections of Massimo Carcione made in relation to public cultural services subject to the payment of an entrance ticket. “Considering the centrality of fruition and having in mind also Article 102 (1) and (4) of the Code, in compliance with the general principle provided for by Article 2 (4), we can now assume that, in principle, once the registration fee or entrance ticket has been duly paid, no one can be excluded from a site, museum, library, archive, conference, show, school, university, or other cultural public service”.

According to the author, “(t)his configures an individual right, held by the citizen-user of the service in question, to use (enjoy) the related cultural assets or activities, for their scientific or educational interest, for their aesthetic value, or even ‘only’ to mere pleasure; this right can be limited only in the presence of an effective higher public interest, which requires the limitation or exclusion of access to the asset itself, in compliance with the ‘reasons for protection’ (aimed at unavoidable technical conservation and safety needs), or any additional ‘needs for institutional use’ pursuant to Article 2 of the Code” [53].

It could be argued that the situation described above is quite specific and that, in any case, the one identified by Carcione is a subjective and not a fundamental right. On the other hand, also using an a contrario argument, a right of access to and enjoyment of cultural heritage is not opposite to the Italian constitutional principles.

As said by Gustavo Zagrebelsky, one could see in the “provision of Article 33 (1) of the Constitution and in the connected predicate of the ‘freedom of art and science’, on top of a principle which is at the basis of the cultural constitution, also the most evident and tangible manifestation of the path of democratization induced by the set of constitutional values on ‘cultural function’”. In the view of the author, in fact, the Constitution has brought about an overturning of perspectives compared to the past. In this regard, the action of promotion and incentive by public authorities converges in the direction of satisfying and realising a (fundamental) right to culture, entrusted primarily to Article 9 of the Constitution and its combination with the content of the freedom of the art deriving from Article 33 of the same text [54].

The “purposes of public use” that cultural heritage is intended to fulfil may also constitute the implicit and definitive recognition, to use the terminology of Raffaele Tamiozzo, of a real “right of enjoyment” of cultural heritage [55]. In this light, it has been argued that the right to culture is to be considered “fundamental in its various components, both negative and positive, and can therefore be assimilated (...) to other ‘unwritten’ rights with a constitutional basis (such as the right to a healthy environment or the right to housing) that can be easily derived from a set of provisions” [56].

Another element that supports the recognition of the existence of the Raech in the Italian system concerns the regulation of essential activities in case of strike. The Legislative Decree No. 146 of 20 September 2015 [57] includes museums and other cultural institutes and places [58] in the regulation which governs the exercise of the right to strike in essential public services. Of particular interest is Article 1 of the Decree, according to which “(i)n implementation of Article 9 of the Constitution, the protection, fruition and valorisation of cultural heritage are activities that fall within the essential levels of services referred to in Article 117, second paragraph, letter m), of the Constitution”.

As held by Carcione, this norm could consecrate, through the subsequent identification of essential levels and the services connected to them, a constitutionally guaranteed “right of fruition of cultural goods” [59].

Another important set of arguments for the existence of the Raech in the Italian legal system, which will be examined in the chapter below, is based on the ratification by Italy of the Faro Convention.

6. Implications of the ratification of the Faro Convention in the Italian legal system for the Raech

After a tormented process, in September 2020 the Italian Lower Chamber of the Parliament (Camera dei Deputati) voted in favour of the ratification of the Faro Convention [60]. This long-awaited endorsement has been regarded as a major novelty in the Italian conception of cultural heritage, as well as of cultural governance in general [61].

The Faro Convention does not create enforceable rights, as clearly stated by its article 6 (c). In addition, the Convention does not invest any jurisdictional organ with the role of watchdog of its provisions, not even the Ecthr, which works under the framework of the same international organization - the Council of Europe (CoE) - which conceived the Convention. States are solely requested “to establish a monitoring body through the Coe, to cover legislations, policies and practices concerning cultural heritage, consistent with the principles established by the Convention; and to maintain, develop and contribute data to a shared information system, accessible to the public, which facilitates assessment of how each Party fulfils its commitments under this Convention” [62].

This monitoring function is carried out by the Steering Committee for Culture, Heritage and Landscape (Cdcpp) [63], set up by the Coe Committee of ministers [64]. This body is in charge of following up and guiding the implementation of the Convention, including the Faro Convention Action Plan [65]. However, it cannot be considered for this reason as an enforcement mechanism for the respect of the obligations included in the Convention.

In light of these aspects, it could be argued that, while certain rights to heritage are recognised by the State parties to the Convention, they are not enforceable domestically by virtue of the sole ratification of the latter. Additionally, it could be asserted that domestic enforcement per se goes beyond - and somehow against - the very essence or spirit of the Convention, which is to provide a framework for the exercise of the rights to cultural heritage in democratic societies, rather than imposing obligations on States. Furthermore, it can be argued that, being a framework Convention, Faro would not create States obligations to specific actions [66].

This consideration is reinforced by the observation that the Convention, alongside their rights to it, emphasises citizens’ responsibilities towards cultural heritage [67].

An additional argument against the full recognition of an enforceable Raech by the current Italian constitutional framework could be based on the legislative bill through which the Convention was incorporated into the Italian legal system. In fact, this bill did not specify measures for transposing specific norms into national law, focusing solely on budget allocations for executing actions outlined by the Convention [68].

Lastly, as stated by Baldin, “the Convention does not seem to introduce any innovative profile with respect to the right to participate in cultural life and therefore the proclamation (of the existence of a right) is only declarative. The improper use (...) of the word ‘right’ is attributable to the adoption of a human rights-based approach to cultural heritage” [69].

In our perspective, these considerations can be countered through a series of arguments pro the existence and enforceability in the Italian legal system of certain rights to cultural heritage, including the Raech, also by virtue of Italy’s ratification of the Faro Convention.

As seen above, the Convention states that its Parties agree to “recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the UDHR” [70].

In addition, in the Convention’s Preamble, its Parties state that “every person has a right to engage with the cultural heritage of their choice, while respecting the rights and freedoms of others, as an aspect of the right freely to participate in cultural life enshrined in the UDHR and guaranteed by the ICESCR” [71]. This links the rights to heritage identified by the Faro Convention to the rights recognised by the Udhr and Icescr, which, as we have seen above, easily accommodate the concept of Raech.

Furthermore, as written by Meyer-Bisch, “(t)he framework Convention is aimed at the States as the first and last Parties responsible for granting the right to heritage, namely those responsible for ensuring the effectiveness of this right. It is an absolute obligation” [72]. Even if we respectfully disagree with the last assertion, one could reasonably claim that, since one of the main aims of the Convention is to set out certain rights to cultural heritage, the non-recognition of these rights would undermine one of the Convention’ raisons d'être.

Article 6 (c) of the Convention clearly states that none of its provisions shall be interpreted so as to create enforceable rights. However, this does not limit the possibility of creating such rights through domestic norms. As noted by Pinton, if States Parties are left with a wide freedom of choice on the timing and ways of pursuing certain objectives set out in the text, this does not mean the absence of binding obligations for the States. In other words, the flexibility provided by the status of framework Convention does not characterize the legal nature of the commitments undertaken but affects the phase of implementation of the relative obligations that States assume through the ratification of the Convention [73]. Therefore, States are not precluded from enacting legislation to make the cultural heritage rights outlined in the Convention enforceable.

Furthermore, Article 5 (c) of the Faro Convention calls on States to adopt legislative provisions for the exercise of the right to cultural heritage, as defined by Article 4. This would imply an obligation for the State Party to adapt its own legal system so that the right to cultural heritage is guaranteed. This adaptation may include ensuring access to justice for right holders in case of violations. As stated by Seminara, it “seems plausible to state that, among the legislative provisions for exercising the right to cultural heritage required by the Faro Convention, there are also those which guarantee individuals the possibility of having recourse to justice if the effective exercise of this right is not assured”, an issue that is directly connected to its justiciability [74].

Importantly, this interpretation is in line with a recommendation to States given by the SRCR in its 2011 Report: States are invited to make available “effective remedies, including judicial remedies, to individuals and communities who feel that their cultural heritage is not fully respected and/or protected, or that their right of access to and enjoyment of cultural heritage has been infringed upon” [75].

Ultimately, the rights to benefit from cultural heritage would be nothing other than a periphrasis of fruition of cultural heritage, which, as seen, is recognised by the Italian legal system as a core element of the protection of cultural heritage. As has affirmed by Cavallo Perin, fruition of cultural heritage is “object of an own subjective right, distinct from ownership or other rights on the property” [76]. Gualdani even argues that the right referred to by the Faro Convention can be qualified as a subjective right [77].

In our view, all the arguments pro the existence of the certain rights to cultural heritage in the Italian regime on the basis of the Faro Convention presented above are valid as long as they underline the link with the concept of fruition of cultural heritage, which is already well incorporated in the Italian legal regime. In light of this, it would be plausible for a domestic judge to regard certain rights to heritage, including the Raech, as existing within the Italian system as integral components of - or at least linked to - fruition of cultural heritage.

7. Conclusions

The Italian Constitution, while encouraging the development of culture, does not include, with the exception of certain rights of linguistic minorities, explicit provisions on the protection of cultural rights as enshrined by the major international instruments, in primis article 15 Icescr. Moreover, the safeguarding and preservation of cultural property, set forth as a constitutional principle, remains uncoupled from the protection and enjoyment of fundamental rights.

In the Italian legal framework, cultural goods (beni culturali) are assets with cultural value for society, which holds a general interest in their protection. The focus of the Italian legislator in the area of cultural heritage protection has traditionally been on built heritage, with no attention given to the intangible one and the relationships between practices and individuals or communities. Not least of all, the Italian legal system has shown a certain reluctance towards the recognition of collective actions for the protection of rights, as well as the validity of the concept of collective interests.

This has important consequences for the identification of actions for the protection of cultural heritage that can be filed by individuals or representatives of communities. All of the above helps to explain the lack of domestic judicial practice on the link between fundamental (or human) rights and cultural heritage.

The concept of fruition, which encompasses several dimensions of access to and enjoyment of cultural heritage as identified by the Un Srcr (such as the physical, economic, and informational aspects), has never been explicitly defined as a fundamental right by the Italian legislator. Indications pertaining to this matter are not identifiable in domestic case law either.

Independently from criminal proceedings, in the current regime, individuals or members of communities acting for the protection of access to and enjoyment of cultural heritage can have recourse to administrative justice, in particular:

• Through a collective action for the protection of collective interests against public institutions brought forward by established entities (public class action);

• Through the “new class action” for the protection of individual homogenous rights, albeit only against cultural service providers (and if the organisations are included in a List kept by the Ministry of Justice);

• For the protection of diffuse interests of environmental organisations, when cultural heritage is considered to fall under an enlarged definition of environment, with strict requirements in terms of legal standing.

In concrete terms, these conditions are highly stringent and insufficient to ensure adequate protection of access to and enjoyment of cultural heritage.

In this contribution, a series of arguments has been presented to support the recognition of the Raech not only as a subjective but also as a fundamental right enforceable in the Italian legal system. Firstly, Article 9 of the Constitution can be harmonised with other provisions of the fundamental text, particularly Articles 2 and 3.

Moreover, with Italy's ratification of the Icescr, the right to participate in cultural life, as outlined in Article 15(1) of the Covenant, including its RAECH component, could be considered as part of the fundamental rights recognised by the Italian legal system. In this regard, the Cescr stated that the primary obligation of States parties to the Covenant is to give effect to the rights recognized therein through appropriate means. At the very least, domestic judges should interpret national law in accordance with the States' obligations under the Icescr.

In addition to these arguments, the existence of a right to cultural heritage in the Italian regime has been supported through an interpretation of legislative norms, like those on the purchase of an entry/admission ticket or on the provision of essential services in relation to the right to strike. However, the cogency of these arguments may wane due to their context-specific nature.

A more robust set of reasons for claiming the existence of the Raech in the Italian system stems from the ratification by Italy of the Faro Convention. First, there is an a contrario argument: the non-implementation of the rights to heritage, which the State Parties to the Convention recognise, would deprive the Convention of one of its main reasons for existence. Secondly, if States Parties are left with a wide freedom of choice on the timing and ways of pursuing certain objectives set out in the text, this does not mean the absence of binding obligations for them, particularly to adopt legislative provisions for the exercise of the right, as defined by Article 4 [78].

This would entail an obligation for the State Party to adapt its own legal system so that the rights to cultural heritage are guaranteed: one of these legislative measures could easily be guaranteeing access to justice to the holders of the Raech in case of violations.

Most importantly, the rights mentioned by the Faro Convention largely coincide with the concept of fruition of cultural heritage, which, even if not recognised as a right at the constitutional or legislative level, lies at the very core of the entire Italian system of protection and promotion of cultural heritage.

From all the above, we conclude that it would be plausible for an Italian judge, on the basis of the interpretation of Italian constitutional principles, international norms and legislative provisions to recognise and substantiate the existence of an enforceable right of access to and enjoyment of cultural heritage. Although the civil law tradition constrains judges from establishing law, Italian judges retain a margin of manoeuvre through interpretive action; this has already occurred within the ambit of fundamental rights, as evinced vis-à-vis the right to a healthy environment [79].

Recognising the existence of the Raech would entail a series of obligations for the State. In particular, in the event of violations, it would be required to compensate the affected individuals and communities for the damages caused by the responsible State organs.

However, in the Italian regime, access to and the enjoyment of cultural heritage appear still trapped between a potential recognition as a right and the current protection through diffuse or collective interests.

Note

[*] Dottore di ricerca presso il Centro di Diritto dell’Arte dell’Università di Ginevra - Uni Mail, Facoltà di Diritto, boulevard du Pont d’Arve 40, 1211 Ginevra 4, Svizzera; michele.daddetta@etu.unige.ch, micheledaddetta@hotmail.it..

[1] Council of Europe, Framework Convention on the Value of Cultural Heritage for Society, Council of Europe Treaty Series, No. 199, adopted on 27 October 2005 (hereinafter Faro Convention), Article 1 (a) and Preamble.

[2] Un Independent Expert in the Field of Cultural Rights (now Special Rapporteur in the Field of Cultural Rights, Report on the Right of Access to Cultural Heritage, U.N. Doc. A/HRC/17/38 (hereinafter UN SRCR, 2011 Report), Paragraph 78.

[3] Council of Europe, Faro Convention, Article 1 (a).

[4] Un Srcr, 2011 Report, Paragraph 58.

[5] Asean, Declaration on Cultural Heritage, 2000. Article 32 of the Declaration highlights the need to ensure that “traditional communities have access, protection and rights of ownership to their own heritage”.

[6] “[G]uaranteeing cultural rights, access to cultural goods and services, free participation in cultural life, and freedom of artistic expression are critical to forging inclusive and equitable societies” UNESCO, Declaration on Culture: Key to Sustainable Development, 2013, International Congress on “Culture: Key to Sustainable Development”, Hangzhou, China, 2013, available at: https://unesdoc.unesco.org/search/N-EXPLORE-c63fc523-b014-459e-9760-fd292414960d.

[7] Fribourg Group, Fribourg Declaration on Cultural Rights, 2007, available at: https://hrlibrary.umn.edu/instree/Fribourg%20Declaration.pdf.

[8] Ecthr, Ahunbay and Others v. Türkiye, Austria and Germany, No. 6080/06, decision of 29 January 2019.

[9] See, inter alia,Iacthr, Moiwana Community v. Suriname, Judgment of June 15, 2005, Preliminary Objections, Merits, Reparations and Costs.

[10] Icc, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Reparations Order, ICC-01/12-01/15-236, 17 August 2017, Trial Chamber VIII, Decision.

[11] See, for instance, Icj, Dispute Regarding Navigational And Related Rights (Costa Rica v. Nicaragua), where the Court considered fishing not only as a commercial activity and a source of income, but also as an element of the traditional way of living for riparian communities (Paragraph 137). Similarly, in the Frontier dispute case, the nomadic way of life and nomadic cultural identity of the Bellah people who lived in the disputed Logomaten area that was deemed worth of protection (ICJ, Frontier Dispute, Burkina Faso v. Republic of Mali).

[12] Icj, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Order of 7 December 2021. Access to and enjoyment of cultural heritage were explicitly mentioned as rights by both of Armenia’s allegations and by the Court, with the latter ordering Azerbaijan to “take all necessary measures to prevent and punish acts of vandalisms and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts” (Paragraph 92).

[13] See, for instance, the allegation letter sent to the Turkish government in relation to the construction of the Ilisu dam and the possible consequences for communities living in the nearby of the Hasankeyf site (Un Srcr, Al Tur 13/2018).

[14] Art. 9: “La Repubblica tutela il paesaggio e il patrimonio storico e artistico della Nazione”.

[15] D.lg. 22 gennaio 2004, No. 42 Codice dei beni culturali e del paesaggio, ai sensi dell'articolo 10 legge 6 luglio 2002, No. 137, reformed with Legge 9 marzo 2022 No. 22 (hereinafter the “Code”). The Code defines cultural goods as: “immovable and movable things that (...) have artistic, historical, archaeological, ethno-anthropological, archival and bibliographic interest and other things identified by law or on the basis of the law as having value of civilization” (Article 2.2).

[16] This is the term used in the Italian version of the Faro Convention.

[17] Cultural heritage “(...) reflects the dynamic character of something that has been developed, built or created, interpreted and re-interpreted in history, and transmitted from generation to generation. Cultural heritage links the past, the present and the future as it encompasses things inherited from the past that are considered to be of such value or significance today, that individuals and communities want to transmit them to future generations” UN Srcr, 2011 Report, Paragraph 5.

[18] Italian Constitution, Article 6.

[19] For a concise overview regarding cultural rights in the Italian legal system, see M. Carcione, Dal riconoscimento dei diritti culturali nell'ordinamento italiano alla fruizione del patrimonio culturale come diritto fondamentale, in Aedon, 2013, 2; P. Bilancia, Diritto alla cultura, Osservatorio sulla Sostenibilità Culturale, Edizioni Scientifiche Italiane, 2016, available at: https://www.osservatoriosostenibilitaculturale.it/data/novita/20160923134001_bilancia-diritto-alla-cultura.pdf.

[20] On this point see P. Häberle, voce Stato costituzionale. I) Principi generali, in Enc. Giur, Roma, Treccani, 2000, pag. 7 ss.

[21] G. Repetto, Il Diritto alla Cultura, Cos’è un diritto fondamentale - Gruppo di Pisa, Convegno annuale, Cassino, 10 11 giugno 2016, available at: https://www.academia.edu/25949538/Il_diritto_alla_cultura_Convegno_Gruppo_di_Pisa_2016), pag. 2.

[22] An exception in this regard is Mexico, where, in 2009, an amendment added the right of access to culture to the Constitution. Article 4 (9) of the Mexican supreme norm now states that “[t]oda persona tiene derecho al acceso a la cultura y al disfrute de los bienes y servicios que presta el Estado en la materia, así como el ejercicio de sus derechos culturales. El Estado promoverá los medios para la difusión y desarrollo de la cultura, atendiendo a la diversidad cultural en todas sus manifestaciones y expresiones con pleno respeto a la libertad creativa. La ley establecerá los mecanismos para el acceso y participación a cualquier manifestación cultural”. Another example of inclusion of rights related to heritage in the Constitution is the Greek one, which recognises that the protection of the natural and cultural environment constitutes a duty of the State and a right of every person. (Greek Constitution, Article 24).

[23] Lixinski, International Heritage Law for Communities: Exclusion and Re-Imagination, Oxford University Press, 2019, pag. 54.

[24] See Aboriginal Cultural Heritage Act 2021.

[25] See, among others, Ley 1185 de 2008 que modifica la Ley 397 de 1997.

[26] Most of the Italian case law focused only on certain minority rights, in particular on language issues. See, for instance, Constitutional Court, Sentence No. 170 of 2010.

[27] The Brazilian Federal Constitution provides for two important avenues for the protection of access to and enjoyment of cultural heritage:

a) the popular action (Article 73 Cost.), which can be initiated to seek a declaration of annulment or nullity of allegedly harmful legal acts towards cultural heritage. This action can be used both preventively - before the production of harmful effects - or repressively - when the filing seeks compensation for the damage already caused.

b) the public civil action (Article 129.3 Cost.), which allows certain legitimate entities (but not citizens), such as the Public Prosecutor's Office, the Ombudsman, the Federative Entities, autarchies, public companies, foundations, mixed-capital companies, or associations for the defence of cultural heritage and the environment, as long as they have been constituted for at least 1 year, to act in the prevention and/or reparation of the damage incurred. The two actions can also be initiated simultaneously, as one can be filed without prejudice to the other.

[28] Consiglio di Stato, Sez. VI, Decision No. 5509/2008.

[29] R. Chiarelli, Profili costituzionali del patrimonio culturale, Torino, Giappichelli, 2010.

[30] G. Repetto, Il Diritto alla Cultura, cit., pag. 22. On this point see also L. Casini, Valorizzazione e fruizione in C. Barbati, M. Cammelli, L. Casini, G. Piperata, G. Sciullo, Diritto del patrimonio culturale, Bologna, Il Mulino, 2020, pag. 481.

[31] G. Repetto, Il Diritto alla Cultura, cit., pag. 22.

[32] As held by Consiglio di Stato, “the primacy of values such as the protection of cultural heritage or the environment implies that they cannot be entirely sacrificed in the presence of other interests (even if constitutionally protected) and that they are necessarily taken into account in the complex public decision-making processes, but they do not legitimize a 'totalising' conception, as if they were placed at the top of an absolute hierarchical order” Consiglio di Stato, Sez. VI, Decision No. 8167 of 23 September 2022.

[33] The “Corte di Cassazione” - court of last instance in the Italian system - stated that the perpetrator of such a crime can be not only the owner but also a representative of a public body (see, for instance, Cassazione Penale, Sez. III, Decision No. 8245 of 15 October 1980).

[34] “Costituzione di parte civile”, Italian Criminal Procedural Code, article 76.

[35] This action is governed by Legislative Decree No. 198 of 20 December 2009, issued in implementation of enabling act 4 March 2009 No. 15. It is filed within the Regional Administrative Tribunal (T.A.R.).

[36] Idem, article 1.

[37] The Services Charter is the document with which each service provider assumes a series of commitments towards its users regarding its services, the methods of providing these services, the quality standards and informs the user about methods of protection provided.

[38] In addition: i) the public class action cannot be initiated without having first formally warned the P.A. or the Concessionare, who have 90 days to remedy their conduct, or without having attempted a conciliation procedure;

ii) the public class action cannot be brought against independent administrative authorities, courts, legislative assemblies and other constitutional bodies, as well as against the Presidency of the Council of Ministers;

iii) it cannot be proposed if on the conduct of the Public Administration that it is considered harmful a control procedure has already been initiated (and not yet concluded) by a specific body established by state or regional law;

iv) the public class action cannot be initiated if against the P.A. or the Concessionary a judgment has already been instituted on the basis of some precise rules of the Consumer Code (Legislative Decree no. 206/2005) and precisely on the basis of Articles 139, 140 and 140-bis (the latter in particular governs the “class action”).

[39] C. Rovito, L'azione di classe a disposizione del cittadino/consumatore quale nuovo strumento per la tutela dell'ambiente. Prospettive di analisi e sviluppo, available at: https://www.tuttoambiente.it/commenti-premium/lazione-di-classe-a-disposizione-del-cittadinoconsumatore-quale-nuovo-strumento-per-la-tutela-dellambiente-prospettive-di-analisi-e-sviluppo/.

[40] Simultaneously, the concept of “homogeneity” resonates with the concept of heritage communities of the Faro Convention (Article 2.a). These communities consist of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations.

[41] Homogenous individual rights are common to other legal systems, such as Argentina and Brazil. In a leading case, the Argentinian Supreme Court of Justice added the following statement to section 43 of the Constitution, which governs the amparo proceeding, and now recognises: “[T]hree categories of rights: individual, collective involving collective goods and collective related to homogeneous individual rights”. In Brazil, Article 81 of Law No. 8078/1990 (Codigo de Defensa do Consumidor) recognises this category of rights, together with individual and collective ones.

[42] Consiglio di Stato, Sez. I, Decision No. 1217 of 23 February 2022. At the same time, it is reiterated that the right to standing of the organisation must be recognized on the basis of an assessment to be carried out on a case-by-case basis in relation to a plurality of indicators: statutory purposes; period of activity of the institution; proven sphere or degree of representativeness; initiatives or actions taken to protect the interests of which it is the bearer; participation in administrative proceedings; area of action connected to the area in which the asset to be protected is located. On the other hand, the legal standing of committees established on a temporary basis, with a specific and limited purpose, constituting a mere projection of the interests of the subjects who belong to them and who are therefore not the continuous bearers of diffuse interests rooted in the territory, is excluded, as this would end up admitting a sort of popular action, not envisaged by the Italian legal system(see also T.A.R. Toscana, Decision No. 567 of 4 May 2011; T.A.R. Liguria, Decision No. 439 of 27 March 2008).

[43] Article 144 of the Code.

[44] Consiglio di Stato, Sez. IV, Decision No. 5365 of 9 October 2002.

[45] Some of the main Italian associations for the protection of the environment (e.g. Legambiente, FAI - Fondo per l’Ambiente Italiano) include in their statutes also the protection of cultural goods or landscape.

[46] G. Lucidi, La difesa dei beni comuni di carattere storico-artistico e la sussidiarietà orizzontale, Labsus - Laboratorio per la sussidiarietà, 2017, available at: https://www.labsus.org/2017/07/la-difesa-dei-beni-comuni-di-carattere-storico-artistico-e-la-sussidiarieta-orizzontale/.

[47] Consiglio di Stato, Sez. VI, Decision No. 4034 of 31 July 2013. On this point see R. Bianchini, Restauro del Colosseo con sponsor: Codacons non è legittimato ad agire, Altalex online, 2013, available at: https://www.altalex.com/documents/news/2013/10/11/restauro-del-colosseo-con-sponsor-codacons-non-e-legittimato-ad-agire.

[48] Article 2043 of the italian civil code.

[49] Chechi, Protecting holy heritage in Italy: a critical assessment through the prism of international law, in International Journal of Cultural Property, 21(4), 2014, pagg. 397-422.

[50] G. Cavaggion, La cultural defense e il diritto alla cultura nello Stato costituzionale, in Associazione Italiana Costituzionalisti, Osservatorio Costituzionale, 2015, pag. 19.

[51] The “material constitution” refers to the set of norms which are not encoded in the “formal constitution”, but which form, nonetheless, the foundations of a given legal system. The conceptual pair “formal constitution-material constitution” was theorized for the first time by Mortati (C. Mortati, La Costituzione in senso materiale, Milano, Giuffrè, 1940).

[52] Cescr, General Comment No. 9: The domestic application of the Covenant, U.N. Doc.E/C.12/1998/24, 3 December 1998, Paragraphs 1-8.

[53] M. Carcione, Dal riconoscimento dei diritti culturali nell'ordinamento italiano alla fruizione del patrimonio culturale come diritto fondamentale, cit., passim.

[54] G. Repetto, Il Diritto alla Cultura, Cos’è un diritto fondamentale, cit., pag. 22.

[55] R. Tamiozzo, La legislazione dei Beni Culturali e paesaggistici, Milano, Giuffrè, 2009, pag. 255 ss.

[56] Repetto quoting A. Baldassarre, voce “Diritti sociali”, in Enc. Giur, Roma, Treccani, 1990, pag. 160.

[57] Law of 12 June 1990, no. 146, modified by d.l. of 20 September 2015, No. 146 Misure urgenti per la fruizione del patrimonio storico e artistico della Nazione converted into Law of 12 November 2015, n. 182.

[58] As per Article 101 (3) of the Code.

[59] However, some authors have already since a while highlighted the unsuitability of this instrument to act as a way for the identification of an essential core of the rights taken into consideration, especially for those that require the provision of services. See C. Pinelli, Sui “livelli essenziali delle prestazioni concernenti i diritti civili e sociali” (art. 117, secondo comma, lett. m), Cost.), in Diritto pubblico, 2002, 3, pag. 895 ss.

[60] The Upper Chamber (Senato della Repubblica) had already voted in favour of the ratification of the Convention in 2019.

[61] As underlined by Fondo Ambiente Italiano (Fai) - the Italian Environmental Fund, one of the major non-governmental organizations active in the field of environmental and cultural heritage protection - in its official statement on the ratification of the Convention, in the Italian system, “(...) the Convention introduces an extremely broader vision of cultural heritage, understood as a set of resources inherited from the past that populations identify, regardless of who owns them, as a reflection and expression of their values, beliefs, knowledge and traditions, in constant development”(Fanpage.it, Convenzione di Faro: perché non è vero che l’Islam può chiederci di coprire le statue, available at: https://www.fanpage.it/cultura/convenzione-di-faro-perche-non-e-vero-che-lislam-puo-chiederci-di-coprire-le-statue/).

[62] Faro Convention, Article 15.

[63] Council of Europe, Cdcpp webpage, available at: https://www.coe.int/en/web/cdcpp-committee.

[64] Under Article 17 of the Statute of the Council of Europe and in accordance with Resolution 24 of 2011 of the Council of Europe committee of the ministers.

[65] Council of Europe, Faro Convention Action Plan, available at: https://rm.coe.int/cdcpp-2020-2021-en/1680992ce1.

[66] “Obligations of Member States” was changed to a softer wording of “responsibilities of Member States”, which aimed more at encouraging the efforts of national authorities in putting in place legal and other means for valuing cultural heritage and enabling the integration of heritage concerns in strategic and day-to-day decision making. Pirkovic, Unpacking the convention into challenging actions for member states, in Council of Europe, Heritage and Beyond: Explanatory Report of the Faro Convention, Council of Europe Publishing, 2009, pag. 23.

[67] Article 4 b) of the Convention states that: “everyone, alone or collectively, has the responsibility to respect the cultural heritage of others as much as their own heritage, and consequently the common heritage of Europe”.

[68] Law of 1st October 2020, No. 133, Ratifica ed esecuzione della Convenzione quadro del Consiglio d'Europa sul valore del patrimonio culturale per la società fatta a Faro il 27 ottobre 2005.

[69] S. Baldin, Beni culturali immateriali e partecipazione della società nella salvaguardia, cit. Severini and Carpentieri put forth a set of arguments challenging the inherent legal validity of the Convention, characterising Italy's ratification as potentially “detrimental”. Severini, Carpentieri, La ratifica della Convenzione di Faro «sul valore del patrimonio culturale per la società»: politically correct vs. tutela dei beni culturali?, 2021, available at: https://www.federalismi.it/nv14/articolo-documento.cfm?artid=45088.

[70] Faro Convention, Article 1 a).

[71] Ibid., Preamble, Paragraph 4.

[72] Meyer-Bisch, On the “right to heritage” - The innovative approach of Articles 1 and 2 of the Faro Convention, in Council of Europe, Heritage and Beyond: Explanatory Report of the Faro Convention, Council of Europe Publishing, 2009, pag. 62.

[73] S. Pinton, La Convenzione di Faro: alcuni profili di diritto internazionale, in L. Pavan-Woolfe, S. Pinton, Il valore del patrimonio culturale per la società e le comunità - La Convenzione del Consiglio d’Europa tra teoria e prassi, Padova, Linea Edizioni, 2019, pag. 77.

[74] P. Seminara, I Beni Culturali Nel Diritto Internazionale Dei Diritti Dell’uomo: Un Approccio Basato Sui Diritti Umani?, in Koreuropa, Rivista elettronica del Centro di Documentazione Europea dell’Università Kore di Enna, 2015, 7.

[75] Un Srcr, 2011 Report, Paragraph 71.

[76] R. Cavallo Perin, Il Diritto al Bene Culturale come Libertà Individuale e Interesse della Nazione, in F. Astone, Patrimonio culturale, modelli organizzativi e sviluppo territoriale, Napoli, Editoriale Scientifica, 2016, pag. 498.

[77] A. Gualdani, L’Italia ratifica la convenzione di Faro: quale incidenza nel diritto del patrimonio culturale italiano?, in Aedon, 2020, 3.

[78] Faro Convention, Article 5 (c).

[79] Starting from its Decision No. 210 of 1987, the Constitutional Court identified a right to a healthy environment, based on Articles 9 and 32 of the Constitution.