Cultural Heritage of the Nation in Colombia: Concept, Background, Jurisprudential Development

By: Juan Simón Larrea Cáceres and Daniel Peña Valenzuela

Cultural heritage contains the memory of peoples; it is the very essence of the nation, and the state must protect access to it through proper protection, preservation, and, where appropriate, restitution.

In Colombia, there is still a long way to go to raise awareness of the importance of the collective construction of our nation and to achieve a true identity of our own. The 1991 Constitution brought about a profound change in the structure of the Colombian State and incorporated a myriad of figures that, to date, more than 30 years later, are still being categorized and expanded beyond the vision of those who proposed them some three decades ago. In particular, the nation’s historical, documentary, archaeological, and cultural heritage continues to evolve due to advances in science and culture that allow these concepts to be expanded to cover tangible assets (documents and manuscripts, works of art), intangible assets (music festivals and expressions of folklore), sometimes protected by intellectual property rights such as distinctive signs and patents, or ancestral and traditional knowledge such as the rites of minority identities that incorporate the same essence of ethnic groups.

As a precedent to Article 72 of the 1991 Constitution, we can trace the proposal made by María Teresa Garcés Lloreda, Delegate to the National Constituent Assembly, which read as follows: “Respect for and protection of the cultural heritage of the Nation and of each of its regions and ethnic groups is guaranteed. The law shall establish the means for its preservation and shall punish anyone who violates it.”

In the First Committee of the Constitutional Assembly, Delegate María Mercedes Carranza referred to the word culture as a precept with an educational purpose and pointed out the need to broaden its scope of protection to demand, on the part of the State, greater protection through incentives for cultural workers and the inclusion and promotion of culture in development plans. Similarly, Delegate Juan Carlos Esguerra pointed to the need to obtain jurisdiction to prevent the destruction of the pre-Columbian legacy and to combat ignorance. Along these lines, Delegates Diego Uribe Vargas and Otty Patiño Hormaza emphasized that cultural development must be protected in the Constitution, as it is the means to achieve further economic development.

The final text, as a corollary to the discussion in the Assembly, reads as follows:

Art. 72: “The cultural heritage of the Nation is under the protection of the State. The archaeological heritage and other cultural assets that make up the national identity belong to the Nation and are inalienable, unseizable, and imprescriptible.”

While the change is evident in terms of the specificity of state protection, the broadening of the context and the legal effects derived from the nature of the protection of the Nation’s Cultural Heritage. As background, Title II of the 1886 Constitution stated that the Colombian nation was reconstituted as a unitary republic and that the Catholic religion was an essential element of the social order, so that only those cults and practices that were not contrary to Christian morality were accepted.

The General Law on Culture, Law 397 of 1997, in development of the aforementioned Article 72, considers that the Cultural Heritage of the Nation corresponds to a set of assets that includes everything from material goods to representations of culture translated into languages or dialects of different types of indigenous, Afro, Creole, and Palenquero communities, among others. It brings together tradition and any manifestation of historical, scientific, cultural, archaeological, symbolic, aesthetic, musical, testimonial, political, literary, musical, and/or museological interest.

As a development in case law, the recent definition of Public Heritage offered by the Tenth Special Administrative Litigation Chamber of the Council of State on February 1, 2022, defines Public Heritage as:

“the set of assets and resources, whatever their nature, that are owned by the State and that serve it in the fulfillment of its tasks, in accordance with positive legislation. These include, in addition to the territory, public and fiscal assets, intangible assets, and rights and interests that are not subject to monetary valuation and are owned by the entire population, tangible and intangible or not easily identifiable assets such as the cultural heritage of the Nation, archaeological heritage, assets that make up the national identity, and the environment.”

A subtle distinction can be made between public heritage and the nation’s cultural heritage, the latter being understood as a type of the former, which is the genus among the classifications or categories of assets belonging to the State. Another way of differentiating between them could be the economic value of each, in the sense that public heritage has economic yield and exploitation as a natural element, while the nation’s cultural heritage deserves protection and preservation. Even so, this classification would not be exclusive, since both universals can be protected or exploited for the common good, with special attention to their preservation and non-deterioration.

In short, the original concept of cultural heritage must continue to be developed through jurisprudential lines that allow for the differentiation, categorization, and classification of all the elements that make up the different types of heritage, as well as their preservation and protection by individuals or public entities, and which enjoy constitutional value and supremacy. This is because the nature of many of the assets of public interest that make up Cultural Heritage can play an important role in private relations for their economic exploitation and, depending on their nature, they may be alienable, attachable, and subject to prescription.