Protection of heritages.

Regulatory Framework and Policy Approaches

Dr. Delia Mucica November 2008

REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT (INTERCULTURALISM AND MEDIATION IN THE BALKANS) UNIVERSITY OF ARTS BELGRADE

A classification

Tangible Heritages Movable Cultural Heritage Immovable Cultural Heritage Historical Monuments Intangible Heritages (Traditional Cultural Expressions/Folklore & Traditional Knowledge)

Expressions of creativity of past generations Vectors of cultural identity Expressions of cultural diversity

Heritages - Expressions of creativity of past generations

Different intrinsic characteristics Different objectives of protection Different needs Different economic perspectives Different policy objectives Different strategies Different regulatory approaches Different non-regulatory approaches

Common heritage and national heritage

World heritage of all humankind/common heritage - cultural heritage that is of interest for/belongs to, the whole world - res communis. National heritage cultural heritage that is of outstanding interest for/belongs to/ the people in a given country Both are interconnected and part of each other

Movable Heritage Workable Definitions

works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (the Hague Convention) objects that man creates or collects, of cultural, artistic, historical, documentary, technical, technological, scientific interest, which can be removed from their place of construction or creation, are what can be called movable cultural heritage.

Immovable Cultural Heritage A Definition

monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.

Tangible heritages

A limited resource

3 important directions of protection: Prevention Management Intervention

Protection against what?

Destruction and Aggression:

Man-made Natural

Neglect and Dilapidation Theft and Illegal Circulation Disappearance and slow death

How are cultural heritages protected?

At the international level: Regulatory approach A system of international legally binding instruments International standards of minimum protection Inter-governmental organizations and cooperation Non-regulatory approaches Guidelines and ethical codes for professionals International non-governmental organizations International cooperation

How are cultural heritages protected? (contd)

At the national level: Regulatory approach Specific sectoral regulations Enabling regulatory environment Specific responsible bodies Non-regulatory approach Integrative policies International cooperation Cooperation and consultation with NGOs and stakeholders

What do we mean by protection?

Protection entails a complex of specific activities,
inter alia: Scientific research Inventories Conservation Restoration Revitalization, rehabilitation Reinsertion in cultural and social life Ownership solutions Education Information Awareness-raising Incentives to owners, managers, practitioners Physical protection Public access and enjoyment Integrated management of such resources

International Instruments - UNESCO

Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Hague, 1954 and its 2 Additional Protocols Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Paris, 1970 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 1972 Convention on the Protection of the Underwater Cultural Heritage, Paris, 2001 Unidroit Convention on Stolen or Illegally Exported Cultural Objects, Rome, 1995

Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)

Cultural property, both movable and immovable, should be safeguarded and respected as the common heritage of humankind. The Convention encourages parties to prevent theft and vandalism of cultural property and proposes a distinctive blue and white shield-shaped emblem to identify protected cultural property. As with the Roerich Pact, cultural property and cultural institutions are to be protected in armed conflicts between States or between parties of the same State as long as they are not put to military purposes. Special protection is to be given to those properties that are listed on the "International Register of Cultural Property under Special Protection".

Second Protocol to the Hague Convention (1999)

General provisions: preparatory measures in times of peace, precautionary measures in times of conflict. enhanced protection status for cultural heritage property and immunity granted under such status. criminal responsibility and jurisdictional procedures in the event of violations specifically addresses the protection of cultural property in the event of domestic, national armed conflicts informational and educational programs to foster appreciation and respect for cultural property Committee for the Protection of Cultural Property in the Event of Armed Conflict to develop guidelines for implementation and be responsible for the granting and rescinding of enhanced protection status. Fund for the Protection of Cultural Property in the Event of Armed Conflict

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)

cooperation among nations to prevent the illicit movement of cultural property across borders. States of origin can request assistance from other nations in recovering illegally obtained cultural property; the state will pay just compensation to innocent purchasers or those who hold valid title to the property. suggests that states declare some cultural property as inalienable to help prevent its export and, where necessary, facilitate its recovery. recommends the development of an export certification program to help control the flow of cultural property and to provide an authenticated provenance for the object.

Convention Concerning the Protection of the

World Cultural and Natural Heritage (1972)

promotes an international perspective on cultural heritage by inviting member states to submit an inventory of goods forming its national cultural and natural heritage to be included in a list of World Heritage sites. encourages national efforts at protecting cultural and natural heritage and promotes international recognition and cooperation in safeguarding the heritage of the world. Operational Guidelines for the Implementation of the World Heritage Convention were issued in 1988. They outline the criteria to be met by sites on the World Heritage List. Distinctive emblem for goods in the World Heritage List Special responsibilities for preservation of such goods

Convention on the Protection of the Underwater Cultural Heritage, 2001

The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage. Responsible non-intrusive access to observe or document in situ underwater cultural heritage shall be encouraged to create public awareness, appreciation, and protection of the heritage except where such access is incompatible with its protection and management.

Unidroit Convention on Stolen or Illegally Exported

Cultural Objects (1995)

defines nature of the objects covered and includes provisions for the restitution of stolen property. return of stolen and/or illegally exported cultural objects and outlines the circumstances under which such property shall be returned. Requests for returns shall be brought within 3 years of the State learning of the location and/or identity of the possessor of the stolen or illegally exported object or within 50 years of the actual deed. the 50-year limit does not apply to objects that were made by tribal members or are used for traditional or ritual purposes by the community fair and reasonable compensation to be paid where the possessor of stolen or illegally exported cultural property can show ignorance of the crime and demonstrate due diligence at the time of the purchase

About Unidroit

The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organisation with its seat in Rome. Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States. Initially set up in 1926 as an auxiliary organ of the League of Nations and re-established in 1940 on the basis of a multilateral agreement, the UNIDROIT Statute. Its basic statutory objective is to prepare modern and where appropriate harmonised rules of private law understood in a broad sense.

International Instruments - Council of Europe

European Cultural Convention, 1954 European Convention on the Protection of the Archaeological Heritage (1969) European Convention on Offences Relating to Cultural Property (1985) Delphi Convention for the Protection of the Architectural Heritage of Europe (1985) Granada European Convention for the Protection of the Archaeological Heritage of Europe (Revised) (1992) La Valetta Framework Convention on the Value of Cultural Heritage for Society (2005), Faro

European Cultural Convention, 1954

The Convention promotes cooperation among European nations in order safeguard cultural property as well as to study and promote European civilization. The cultural property of the parties to the Convention is regarded as part of the common cultural heritage of Europe. The Convention emphasizes the nation as protector of the heritage not only for its own people but also for the wider community. The Convention encourages exchanges of persons and cultural objects and promotes access to cultural resources. States that are not members of the Council of Europe can participate in the Convention.

European Convention on the Protection of the

Archaeological Heritage (1969)

The Convention calls for the application of scientific methods to archaeological research and an end to illegal excavations as two important principles for safeguarding archaeological heritage. It makes a number of recommendations, including: the creation of "reserve zones" for preservation of evidence to be excavated at a later time; preparation of inventories of publicly and privately held archaeological objects; exchange of these materials wherever possible for scientific and educational purposes.

European Convention on Offences Relating to Cultural Property (1985) Delphi

Enhancement of public awareness of the need to protect cultural property and to cooperate to prevent offences related to cultural property. The document outlines the legal provisions (Appendix I), types of property (Appendix II), and nature of offences (Appendix III). It addresses the issue of restitution in the event of an offence and calls on Parties to cooperate in such cases; the process for requests for extradition is described. The Convention encourages Parties to cooperate with the European Committee on Crime Problems and the International Crime Police Organization (Interpol). Not yet entered into force

Examples of offences under Delphi Convention

Thefts of cultural property. Appropriating cultural property with violence or menace. Receiving of cultural property where the original offence is listed in this paragraph and regardless of the place where the latter was committed. Acts which consist of illegally appropriating the cultural property of another person, whether such acts be classed by national law as misappropriation, fraud, breach of trust or otherwise. The acquisition in a grossly negligent manner of cultural property obtained as the result of theft or of an offence against property other than theft. Destruction or damaging of cultural property of another person. alienation of cultural property which is inalienable according to the law of a Party ...........

Convention for the Protection of the Architectural Heritage of Europe (85) Granada
Outlines legislative measures and protections to safeguard the cultural heritage of the European states as well as conservation policies to protect the architectural heritage: conservation of the architectural heritage as a component of town planning, adaptive reuse of buildings, training in traditional crafts involved in conservation and restoration, limiting public access as a conservation measure, public awareness and educational programs and support for training technical assistance and exchange of information. Parties agree to exchange information and coordinate conservation policies

European Convention for the Protection of the Archaeological Heritage of Europe (Revised) (1992) La Valetta

an evolution in attitudes towards the protection of the archaeological heritage and echoes many of the principles of the ICOMOS Charter for the Protection and Management of the Archaeological Heritage of 1990 defines the archaeological heritage and identifies measures for its protection including the creation of inventories for sites and monuments and the creation of archaeological reserves. prevention of illicit excavation and trade of the archaeological heritage integration of conservation with planning and development, financing of archaeological research and conservation, and collection and dissemination of information regarding the archaeological heritage promotion of public awareness and mutual technical and scientific assistance through pooling of expertise and exchanges of experts

Definition of archaeological heritage

Elements of the archaeological heritage are all remains and objects and any other traces of mankind from past epochs: the preservation and study of which help to retrace the history of mankind and its relation with the natural environment; for which excavations or discoveries and other methods of research into mankind and the related environment are the main sources of information; and which are located in any area within the jurisdiction of the Parties. The archaeological heritage shall include structures, constructions, groups of buildings, developed sites, moveable objects, monuments of other kinds as well as their context, whether situated on land or under water.

Framework Convention on the Value of Cultural Heritage for Society (2005), Faro

recognises that rights relating to cultural heritage are inherent in the right to participate in cultural life, recognises individual and collective responsibility towards cultural heritage; emphasises that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal Acknowledges the role of cultural heritage in the construction of a peaceful and democratic society, and in the processes of sustainable development and the promotion of cultural diversity; Calls for greater synergy of competencies among all the public, institutional and private actors concerned.

EU - Policies for protection of cultural heritage

A different perspective: Development and support of scientific research Development and support of free market agents - SMEs Sustainable development - cultural tourism, crafts Support of access information technologies for memory institutions Border measures for illicit export and transfer of cultural heritage Support of projects

EU - Policies for protection of cultural heritage (contd)

Article 30 European Treaty
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

What are the issues to be addressed at national level? A tentative checklist

Ownership and restrictions on ownership Funding Structural aspects responsible bodies and specialized institutions Sustainable management and public-private partnerships Sustainable economic development Training and education of specialists Support for related crafts Sanctions for violations and enforcement mechanisms Information, public education, awareness-raising Consultation and participation of stakeholders International cooperation and pooling of expertise

Ownership of tangible heritage

Cultural heritage belongs to the people -res omnium

Cultural heritage belongs to humankind to the World res communis Cultural heritage is an expression of the creativity of the people but its material forms are subject to proprietary rights of the persons that have acquired these forms

Ownership of tangible heritage (contd)

Transition countries need to solve the ownership issue of cultural heritage goods There was a forced nationalization of cultural heritage goods Assumption: cultural heritage = public goods = public property

Is this a valid assumption?

Restrictions on ownership
Restrictions can have various forms: Ownership (e.g. foreign citizens cannot own or acquire historical monuments) Exercise of ownership rights Use ( certain uses prohibited) Disposition Sale - preemption right of the State (Beyeler vs Italy case) Inheritance Possession Free circulation restrictions export restrictions Modification or destruction

Restrictions on ownership (contd)

Art. 1 of Protocol 1 of ECHR: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Restrictions on ownership (contd)

Charter on Fundamental Rights of the EU

Art. 17. 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

Restrictions on ownership (contd)

Any restrictions on ownership must be consistent with the International Instruments on Human Rights

Legality Necessity general interest Proportionality

Funding of protection activities

State funding Direct funding Budgetary allocations Subsidies to cultural institutions earmarked money (lotteries, cultural funds, etc) Indirect funding Tax relief schemes/ fiscal incentives to owners and/or to managers of cultural heritage resources Tax relief schemes/ fiscal incentives beneficial for entities that undertake such activities

Funding of protection activities (contd)

Private funding of a not-for profit character Charities Sponsorships CSR (Corporate Social Responsibility) Private funding of a for-profit character investments Owners Developers Economic entities

Responsible bodies

Regulatory and supervisory bodies Enforcement agencies Specialized agencies/commissions Memory Institutions: Museums Libraries Archives Research institutes Laboratories etc.

Roles of Government

Inter-sectoral (integrative) policies Enabling regulatory environment Funding mechanisms Supervision of the functioning of the system Enforcement Facilitating the function of the system: Information Education Awareness-raising Consultation and Collaboration with stakeholders

The International Committee of the Blue Shield (ICBS)

The Blue Shield is the cultural equivalent of the Red Cross. It is the symbol specified in the 1954 Hague Convention for marking cultural sites to give them protection from attack in the event of armed conflict It is also the name of an international committee set up in 1996 to work to protect the world's cultural heritage threatened by wars and natural disasters.

Members of the International Committee of the Blue Shield

International Council on Archives - ICA International Council of Museums ICOM International Council on Monuments and Sites ICOMOS International Federation of Library Associations and Institutions - IFLA

Final remarks

Who is deciding what is cultural heritage? On what grounds? Who may own cultural heritage goods? What limitations to ownership rights? What incentives? Who is responsible for funding protection activities? Who is responsible for actual protection? Who does protection activities?

Heritage Law and Copyright

Copyright protection NO VALUE JUDGEMENTS Tangible Heritage protection VALUE JUDGEMENTS AND SELECTION