Dispute Between Minerva and Neptune: Conflicts Between Spanish Territories over the Patronage of Cultural Assets from a Legal Perspective

September 4, 2024

By Lucas Güimil Valdés

Introduction

One of the foundational myths of Athens, known as the name-giving of Athens, ^{involves the Greek gods Athena and Poseidon competing for the privilege of patronizing the city by presenting it with a divine gift. Poseidon, who is named Neptune in the Roman tradition, decided to bring forth a source of saltwater on the Acropolis, while Athena, who is named Minerva in the Roman tradition, caused an olive tree to sprout. Because the saltwater spring lacked any utility in comparison to the olive tree, Athena was deemed the victor.}

This popular myth not only highlights the legendary rivalry between these deities (with Medusa as a collateral victim), ^{but it also serves as a frame or analogy for the legal issue that is going to be discussed in this article.}

The disputes between Spanish territories over the ‘factual patronage’ of certain cultural heritage items (i.e., disputes over their possession, custody and conservation), such as the famous Lady of Elche or the artistic and historical treasures of the Monastery of Sijena, ^{involve ongoing disputes over some of the most emblematic pieces of Spanish cultural heritage.}

Such conflicts in Spain arise for a variety of reasons. The first reason is attributable to the constitutional organization of the Spanish state, whereby the country is divided into autonomous territorial bodies endowed with the ability to oversee their own interests under their own political and administrative structures. ^{However, there are other factors as well, such as the international revival of what has been termed ‘ethnic nationalism’, and the undeniable economic and touristic value of the Spanish cultural patrimony.}

As a result, Spanish territories often engage in disputes for the control of certain emblematic cultural goods in a way that evokes the ancient conflict between Athena and Poseidon for the dominion over Athens. Therefore, this article will discuss the Spanish cultural heritage law conflicts as an analogy to the aforementioned myth.

I. Fundamentals of the Legal Protection System for Spanish Cultural Heritage

While a meticulous examination of the Spanish legal framework for the protection of cultural heritage is beyond the scope of this article, it is crucial to identify and synthesize the fundamental principles that underpin it.

• In terms of Spanish legislation, cultural goods (i.e. bienes culturales) are granted protection as components of the Spanish historical heritage (known as Patrimonio Histórico Español). ^{These are classified into different legal categories of protection based on the notoriety of their cultural, historical or artistic significance, each being associated with a specific level of protection.}

The Spanish legal system adopts a definition of cultural objects based on the Italian doctrine, under which cultural goods are defined as those items to be evidence of civilization which hold a cultural interest (historical, archaeological, artistic, paleontologic . . .) deserving of a reinforced protection in comparison with other property, ^{in the eyes of society and the Law.}

• The conservation, preservation and accessibility of cultural heritage is considered of vital importance for the full realization of citizens’ constitutional right ^{to access and engage with culture. Moreover, these cultural goods act as manifestations of the tenets of the legal system, in particular the principles of plurality and of free development of personality, the latter being embodied from a cultural perspective in the right to artistic freedom (Article 20 of the Spanish constitution).}

Finally, Article 46 of the Spanish Constitution establishes that all public authorities must safeguard and enhance cultural heritage. ^{This legal duty entails the potential limitation of private property rights over cultural items, granting government authorities the ability to prohibit specific items’ exports or to confiscate them from private individuals if they fail to comply with obligations regarding their preservation.}

• Nevertheless, the actions of Spanish public institutions in relation to the protection of cultural heritage are informed by the organizational structure of the state, composed of different territorial bodies with their own distinct political and administrative autonomy (self-governance).

While the forthcoming paragraphs will briefly address the Spanish territorial structure and its consequences to the protection of cultural heritage, it is vital to bear in mind the premise that all territories, and not solely the central state and its administration, can act upon the country’s cultural heritage to some extent.

II. The Spanish Territorial Division and Its Consequences for Cultural Heritage Protection: A Field of Potential Conflict

Article 137 of the Spanish constitution provides the following:

“The State is organized territorially into municipalities, provinces and the Self-Governing Communities that may be constituted. All these bodies shall enjoy self-government for the management of their respective interests.”

This provision divides Spain into a variety of territorial entities exhibiting a certain degree of self-government. ^{These entities produce their own norms and execute their political aims and agendas through their bureaucracies or administrations.}

While all of the above-mentioned entities are capable of producing their own legal norms (in the broadest sense of the term), not all of them are able to generate the same type of regulations nor do they possess the same rank within the legal hierarchy. To illustrate, it is not within the power of municipalities (municipios) to enact Laws (i.e. Leyes)^{, nor can the Self-Governing Communities (Comunidades Autónomas) produce leyes orgánicas (organic acts).}

Because each territorial entity has different bureaucracies and political interests, the Spanish Constitution attributes different administrative powers to each governmental entity in order to ensure coordination. Consequently, Articles 148, 149 and 150 of the Spanish Constitution stipulate the distribution of matters between the Central State and the Self-Governing Communities (municipalities, as autonomous territorial-administrative entities, have their own specific legislative framework regarding the areas in which they can intervene)^.

Under Article 149, certain competencies are attributed to the Central State and its administration (Administración General del Estado). ^{Conversely, Article 148 specifies the areas in which the Self-Governing Communities may claim competences on the basis of their Estatuto de Autonomía (Statue of Autonomy), the primary legal organizational and institutional framework of the Self-Governing Community. Regarding matters not reserved to the Central State, the latter retains predominant powers in the absence of an assumption by the Community in question. Each Community counts with its own Parliament.}

In the realm of cultural heritage, the Central States holds exclusive prerogatives over “protection of Spain’s cultural and artistic heritage and national monuments against exportation and spoliation” as well as “museums, libraries, and archives belonging to the State, without prejudice to their management by the Self-governing communities”. ^{Additionally, Article 149.2. establishes that “without prejudice to the competences that may be assumed by the Self-governing Communities, the State shall consider the promotion of culture a duty and an essential function and shall facilitate cultural communication among the Self-governing Communities, in cooperation with them,” considered by a significant segment of Spanish doctrine as a symbol of the positivization of culture as an inherent objective of the State itself.}

At the same time, Self-Governing Communities are capable of assuming powers regarding “[m]useums, libraries and music conservatories of interest of the Self-governing Community” ^{(Article 148.1. 15.ª) and “the Self-governing Community’s monument of interest” (Article 148.1.16.ª), a term that can be understood more widely to encompass all the Self-Governing Community’s cultural heritage, as evidenced by the factual and legislative reality.}

This has resulted in all the Self-Governing Communities assuming competencies regarding cultural heritage protection, ultimately leading to the regulation and implementation of their own laws and norms, establishing their own autonomous protection systems based on categorizing all those cultural items of their interest (which are either analogous to or inspired by the general regime established in the Law 16/1985). Municipalities also participate in cultural heritage protection, by virtue of broader administrative powers (such as those related to town planning), ^{as well as their right-duty to adopt the necessary measures to prevent the deterioration, loss, or destruction of cultural heritage within their municipal boundaries.}

Indeed, the Spanish Constitutional Court itself has asserted that public action in the field of culture (which is inherently an universal-local phenomenon), cannot be denied to any politically institutionalized community, on the grounds that such are naturally capable of generating and contemplating their own cultural manifestations and dynamics. This is closely related to the principle of cultural pluralism intrinsic to the Spanish legal system, giving rise to the coexistence of a national cultural heritage alongside other territorial cultural heritages (often closely linked to the history of a Self-Governing Community).

In a context where all territorial entities have the right to act on cultural heritage matters “of their interest” ^{(an extremely wide-ranging term), conflicts may arise regarding certain items.}

What is the appropriate course of action to be taken when a cultural good can be considered relevant to the history and culture of two or more Self-Governing Communities? And how should a cultural item rooted in one territory but linked to the background of another specific region be handled? This problem is exacerbated considering that all of the previously mentioned bodies are capable of acquiring and owning their own goods and properties.

III. Final Considerations: A Brief Overview of the Conflict over the Lady of Elche.

The Dama de Elche (Lady of Elche) is a round sculpture fortuitously found in the archaeological site of La Alcudia de Elche in 1897 (Alicante, Community of Valencia, Spain). ^{Dated to the period between the late 5th and early 4th century B.C.E., the sculpture was originally polychrome and believed to have served as a funerary urn. Currently on exhibition at the Museo Arqueológico Nacional in Madrid (the National Archeological Museum), it depicts a woman with almost perfect-idealized features and rich attire.Since it was attributed through time to both human and divine nature, current studies interpret it as a portrait of an aristocratic Iberian lady whose descendants are thought to have eventually deified her.}

Regarded as a principal example of Iberian Art, the piece has a fascinating history. Shortly after its discovery, the bust was sold to the Louvre Museum. While at the Louvre, the sculpture acquired a high degree of symbolic significance due to the contemporary view that the Iberians were the first Spaniards, therefore being identified with Spanish identity.

Since 2022, when the authorities of the region of Elche (the place where the sculpture was discovered) asked the Ministry of Culture for the definitive and permanent transfer of the Lady of Elche due to historical reasons, the conflict is still open. Following the decision of the central state not to proceed with its transfer to Elche in 2022, as requested by several territories (due to historical reasons), on the basis of technical reports highlighting the risks in relocating the work for maintenance purposes,^{recently the new head of Culture in the Comunidad Valenciana (the Self-Governing Community where Elche is located), has suggested the possibility of implementing conservation measures, while emphasizing that the museums of Elche are capable of attracting significant investment.}

On the other hand, there were authorities which considered since the beginning this hypothetical transfer as a federalization of culture, while the director of the National Archeological Museum at the time expressed his discontent, stating that the territorial governments demanded only “the most know-prominent divas,” not other items.

This conflict serves to exemplify the issue that the same cultural item (Lady of Elche) can be regarded as both a component of the national Spanish cultural heritage and simultaneously as an expression of a regional cultural heritage (in this case, the Valencian). Furthermore, the fact that all territories have powers over the cultural assets that they consider to be of interest, gives rise to tensions in order to secure control over the cultural item in question, which transcend issues of nominal ownership and serve to illustrate the assertion of regional cultural identities.

In conclusion, the territorial division of the Spanish State, together with the regionality of cultural heritage in Spain, gives rise to conflicts between territories over some of the most characteristic works of the Spanish cultural heritage.

Suggested Readings

J. Esteve Pardo, “Competencias del Estado y de las Comunidades Autónomas en materia de cultura (Comentario a la reciente jurisprudencia del Tribunal Constitucional), Autonomies: revista catalana de dret públic, 1989.

F. López Ramón, “Potestades públicas y prevalencia entre competencias autonómicas en el Conflicto de Sijena (Comentario a la Sentencia del Tribunal Constitucional 6/2012, de 18 de enero)”, Revista Aragonesa de Administración Pública, 2012.

About the Author

Graduate in Law with a minor in History and Politics. Student of Art History. His main interests revolve around Public Law and Art and Cultural Heritage Law. He has done internships in Spanish public cultural institutions (Teatro Real and Biblioteca Nacional de España).

Bibliography:

By Lucas Güimil Valdés

(Credit: Louvre sites des collections, La Dispute de Minerve et de Neptune of Nöel Hallé, 18th century)

Introduction

One of the foundational myths of Athens, known as the name-giving of Athens^{, involves the Greek gods Athena and Poseidon competing for the privilege of patronizing the city by presenting it with a divine gift. Poseidon, who is named Neptune in the Roman tradition, decided to bring forth a source of saltwater on the Acropolis, while Athena, who is named Minerva in the Roman tradition, caused an olive tree to sprout. Because the saltwater spring lacked any utility in comparison to the olive tree, Athena was deemed the victor.}

This popular myth not only highlights the legendary rivalry between these deities (with Medusa as a collateral victim)^{, but it also serves as a frame or analogy for the legal issue that is going to be discussed in this article.}

The disputes between Spanish territories over the ‘factual patronage’ of certain cultural heritage items (i.e., disputes over their possession, custody and conservation), such as the famous Lady of Elche or the artistic and historical treasures of the Monastery of Sijena, ^{involve ongoing disputes over some of the most emblematic pieces of Spanish cultural heritage.}

(Credit: Museo Arqueológico Nacional, Dama de Elche, 5th century BC.)

(Credit: DARA, Silla prioral de Blanca de Aragón (Prioral chair of Queen Blanca de Aragón), 14th century)

Such conflicts in Spain arise for a variety of reasons. The first reason is attributable to the constitutional organization of the Spanish state, whereby the country is divided into autonomous territorial bodies endowed with the ability to oversee their own interests under their own political and administrative structures^{. However, there are other factors as well, such as the international revival of what has been termed ‘ethnic nationalism’, and the undeniable economic and touristic value of the Spanish cultural patrimony.}

As a result, Spanish territories often engage in disputes for the control of certain emblematic cultural goods in a way that evokes the ancient conflict between Athena and Poseidon for the dominion over Athens. Therefore, this article will discuss the Spanish cultural heritage law conflicts as an analogy to the aforementioned myth.

I. Fundamentals of the Legal Protection System for Spanish Cultural Heritage

While a meticulous examination of the Spanish legal framework for the protection of cultural heritage is beyond the scope of this article, it is crucial to identify and synthesize the fundamental principles that underpin it.

• In terms of Spanish legislation, cultural goods (i.e. bienes culturales) are granted protection as components of the Spanish historical heritage (known as Patrimonio Histórico Español). ^{These are classified into different legal categories of protection based on the notoriety of their cultural, historical or artistic significance, each being associated with a specific level of protection.}

The Spanish legal system adopts a definition of cultural objects based on the Italian doctrine, under which cultural goods are defined as those items to be evidence of civilization which hold a cultural interest (historical, archaeological, artistic, paleontologic . . .) deserving of a reinforced protection in comparison with other property, ^{in the eyes of society and the Law.}

• The conservation, preservation and accessibility of cultural heritage is considered of vital importance for the full realization of citizens’ constitutional right ^{to access and engage with culture. Moreover, these cultural goods act as manifestations of the tenets of the legal system, in particular the principles of plurality and of free development of personality, the latter being embodied from a cultural perspective in the right to artistic freedom (Article 20 of the Spanish constitution).}

Finally, Article 46 of the Spanish Constitution establishes that all public authorities must safeguard and enhance cultural heritage^{. This legal duty entails the potential limitation of private property rights over cultural items, granting government authorities the ability to prohibit specific items’ exports or to confiscate them from private individuals if they fail to comply with obligations regarding their preservation.}

• Nevertheless, the actions of Spanish public institutions in relation to the protection of cultural heritage are informed by the organizational structure of the state, composed of different territorial bodies with their own distinct political and administrative autonomy (self-governance).

While the forthcoming paragraphs will briefly address the Spanish territorial structure and its consequences to the protection of cultural heritage, it is vital to bear in mind the premise that all territories, and not solely the central state and its administration, can act upon the country’s cultural heritage to some extent^.

II. The Spanish Territorial Division and Its Consequences for Cultural Heritage Protection: A Field of Potential Conflict

Article 137 of the Spanish constitution provides the following:

“The State is organized territorially into municipalities, provinces and the Self-Governing Communities that may be constituted. All these bodies shall enjoy self-government for the management of their respective interests.”

This provision divides Spain into a variety of territorial entities exhibiting a certain degree of self-government^{. These entities produce their own norms and execute their political aims and agendas through their bureaucracies or administrations.}

While all of the above-mentioned entities are capable of producing their own legal norms (in the broadest sense of the term), not all of them are able to generate the same type of regulations nor do they possess the same rank within the legal hierarchy. To illustrate, it is not within the power of municipalities (municipios) to enact Laws (i.e. Leyes)^{, nor can the Self-Governing Communities (Comunidades Autónomas) produce leyes orgánicas (organic acts).}

Because each territorial entity has different bureaucracies and political interests, the Spanish Constitution attributes different administrative powers to each governmental entity in order to ensure coordination. Consequently, Articles 148, 149 and 150 of the Spanish Constitution stipulate the distribution of matters between the Central State and the Self-Governing Communities (municipalities, as autonomous territorial-administrative entities, have their own specific legislative framework regarding the areas in which they can intervene)^.

Under Article 149, certain competencies are attributed to the Central State and its administration (Administración General del Estado)^{. Conversely, Article 148 specifies the areas in which the Self-Governing Communities may claim competences on the basis of their Estatuto de Autonomía (Statue of Autonomy), the primary legal organizational and institutional framework of the Self-Governing Community. Regarding matters not reserved to the Central State, the latter retains predominant powers in the absence of an assumption by the Community in question. Each Community counts with its own Parliament.}

In the realm of cultural heritage, the Central States holds exclusive prerogatives over “protection of Spain’s cultural and artistic heritage and national monuments against exportation and spoliation” as well as “museums, libraries, and archives belonging to the State, without prejudice to their management by the Self-governing communities”^{. Additionally, Article 149.2. establishes that “without prejudice to the competences that may be assumed by the Self-governing Communities, the State shall consider the promotion of culture a duty and an essential function and shall facilitate cultural communication among the Self-governing Communities, in cooperation with them,” considered by a significant segment of Spanish doctrine as a symbol of the positivization of culture as an inherent objective of the State itself.}

At the same time, Self-Governing Communities are capable of assuming powers regarding “[m]useums, libraries and music conservatories of interest of the Self-governing Community” ^{(Article 148.1. 15.ª) and “the Self-governing Community’s monument of interest” (Article 148.1.16.ª), a term that can be understood more widely to encompass all the Self-Governing Community’s cultural heritage, as evidenced by the factual and legislative reality.}

This has resulted in all the Self-Governing Communities assuming competencies regarding cultural heritage protection, ultimately leading to the regulation and implementation of their own laws and norms, establishing their own autonomous protection systems based on categorizing all those cultural items of their interest (which are either analogous to or inspired by the general regime established in the Law 16/1985). Municipalities also participate in cultural heritage protection, by virtue of broader administrative powers (such as those related to town planning)^{, as well as their right-duty to adopt the necessary measures to prevent the deterioration, loss, or destruction of cultural heritage within their municipal boundaries.}

Indeed, the Spanish Constitutional Court itself has asserted that public action in the field of culture (which is inherently an universal-local phenomenon), cannot be denied to any politically institutionalized community, on the grounds that such are naturally capable of generating and contemplating their own cultural manifestations and dynamics. This is closely related to the principle of cultural pluralism intrinsic to the Spanish legal system, giving rise to the coexistence of a national cultural heritage alongside other territorial cultural heritages (often closely linked to the history of a Self-Governing Community).

In a context where all territorial entities have the right to act on cultural heritage matters “of their interest” ^{(an extremely wide-ranging term), conflicts may arise regarding certain items.}

What is the appropriate course of action to be taken when a cultural good can be considered relevant to the history and culture of two or more Self-Governing Communities? And how should a cultural item rooted in one territory but linked to the background of another specific region be handled? This problem is exacerbated considering that all of the previously mentioned bodies are capable of acquiring and owning their own goods and properties^.

III. Final Considerations: A Brief Overview of the Conflict over the Lady of Elche.

The Dama de Elche (Lady of Elche) is a round sculpture fortuitously found in the archaeological site of La Alcudia de Elche in 1897 (Alicante, Community of Valencia, Spain)^{. Dated to the period between the late 5th and early 4th century B.C.E., the sculpture was originally polychrome and believed to have served as a funerary urn. Currently on exhibition at the Museo Arqueológico Nacional in Madrid (the National Archeological Museum), it depicts a woman with almost perfect-idealized features and rich attire. Since it was attributed through time to both human and divine nature, current studies interpret it as a portrait of an aristocratic Iberian lady whose descendants are thought to have eventually deified her .}

Regarded as a principal example of Iberian Art, the piece has a fascinating history. Shortly after its discovery, the bust was sold to the Louvre Museum. While at the Louvre, the sculpture acquired a high degree of symbolic significance due to the contemporary view that the Iberians were the first Spaniards, therefore being identified with Spanish identity.

(Credit: Archivo General de la Administración; One peseta bill of the Lady of Elche)

Since 2022, when the authorities of the region of Elche (the place where the sculpture was discovered) asked the Ministry of Culture for the definitive and permanent transfer of the Lady of Elche due to historical reasons, the conflict is still open. Following the decision of the central state not to proceed with its transfer to Elche in 2022, as requested by several territories (due to historical reasons), on the basis of technical reports highlighting the risks in relocating the work for maintenance purposes,^{recently the new head of Culture in the Comunidad Valenciana (the Self-Governing Community where Elche is located), has suggested the possibility of implementing conservation measures, while emphasizing that the museums of Elche are capable of attracting significant investment.}

On the other hand, there were authorities which considered since the beginning this hypothetical transfer as a federalization of culture, while the director of the National Archeological Museum at the time expressed his discontent, stating that the territorial governments demanded only “the most know-prominent divas,” not other items.

This conflict serves to exemplify the issue that we seek to present, as the same cultural item (the Lady of Elche) can be regarded as both a component of the national Spanish cultural heritage and simultaneously as an expression of a regional cultural heritage (in this case, the Valencian). Furthermore, the fact that all territories have powers over the cultural assets that they consider to be of interest, gives rise to tensions in order to secure control over the cultural item in question, which transcend issues of nominal ownership and serve to illustrate the assertion of regional cultural identities.

In conclusion, the territorial division of the Spanish State, together with the regionality of cultural heritage in Spain, gives rise to conflicts between territories over some of the most characteristic works of the Spanish cultural heritage.

Suggested Readings

J. Esteve Pardo, “Competencias del Estado y de las Comunidades Autónomas en materia de cultura (Comentario a la reciente jurisprudencia del Tribunal Constitucional), Autonomies: revista catalana de dret públic, 1989.

F. López Ramón, “Potestades públicas y prevalencia entre competencias autonómicas en el Conflicto de Sijena (Comentario a la Sentencia del Tribunal Constitucional 6/2012, de 18 de enero)”, Revista Aragonesa de Administración Pública, 2012.

About the Author

Graduate in Law with a minor in History and Politics. Student of Art History. His main interests revolve around Public Law and Art and Cultural Heritage Law. He has done internships in Spanish public cultural institutions (Teatro Real and Biblioteca Nacional de España).

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