csp on protection of cultural heritage

Upload: centar-za-ustavne-i-upravne-studije

Post on 03-Jun-2018

216 views

Category:

Documents


0 download

TRANSCRIPT

  • 8/12/2019 CSP on Protection of Cultural Heritage

    1/53

    CULTURAL HERITAGE REGULATION:

    INTERNATIONAL STANDARDS AND

    COMPARATIVE STATE PRACTICE

    Memorandum

    June 2014

  • 8/12/2019 CSP on Protection of Cultural Heritage

    2/53

    Cultural Heritage Regulation, June 2014

    CULTURAL HERITAGE REGULATION:

    INTERNATIONAL STANDARDS AND COMPARATIVE STATE PRACTICE

    Executive Summary

    The purpose of this memorandum is to provide an overview of how lawsregulating cultural heritage are organized and implemented by analyzing the

    practice of European states.

    Cultural heritage is broadly defined as resources inherited from pastgenerations which people identify as reflecting their customs and traditions.Cultural heritage can take many forms, both tangible and intangible, and mayinclude natural heritage and characteristics of the environment.

    Tangible cultural heritage includes monuments, architecture, art,archaeological sites, tools, and other items created or influenced by people.Discovery, restoration, and protection of tangible cultural heritage ensures that allmay benefit from its history. Intangible cultural heritage exists in language,traditions, and customs that are passed down through generations. This culturalheritage can reflect the diversity of a region or the distinctness of a group of

    peoples. Protection is sought through preservation and education so that futuregenerations may benefit from past knowledge. Natural heritage includes areas ofnatural beauty, cultural significance, and threatened status. Preservation of naturalheritage is a necessary means to counteract the threats posed by modernization andindustrialization to the natural world.

    State practice indicates that options for the protection and maintenance ofobjects and sites of cultural heritage include the ratification of international andregional conventions, the incorporation of mechanisms for the protection ofcultural heritage into the states constitution, and the enactment of nationallegislation and cultural policies designed to promote and protect cultural heritage.Community participation and education also play an important role in ensuring the

    protection of cultural heritage.

    States typically create policy departments or government-fundedorganizations, tasked with the responsibility of regulating cultural heritage and

    protecting and promoting cultural heritage policies. Certain states devolve theregulation of protecting cultural heritage to regional or local governments. State

    practice also indicates the importance of a close alignment with the policy

  • 8/12/2019 CSP on Protection of Cultural Heritage

    3/53

  • 8/12/2019 CSP on Protection of Cultural Heritage

    4/53

    Cultural Heritage Regulation, June 2014

    and developing policies for preserving culture. The European financial crisis hasimpeded the efficacy of Croatia to protect cultural heritage.

    Serbia has passed several pieces of legislation regulating cultural heritageprotection. This includes comprehensive investment plans intended to boostprotections for heritage and promote cultural institutions. Like Croatia, theEuropean financial crisis has impacted Serbias ability to further cultural heritage

    protection.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    5/53

    Cultural Heritage Regulation, June 2014

    TABLE OF CONTENTS

    Statement of Purpose 1

    Introduction 1

    International Standards on the Regulation of Cultural Heritage 1The Convention for the Safeguarding of the Intangible Cultural Heritage 2The Convention Concerning the Protection of the World Cultural and

    Natural Heritage 4

    European Standards on the Regulation of Cultural Heritage 6The Council of Europe 6

    The European Cultural Convention 7

    The Convention for the Protection of the Architectural Heritage ofEurope 7

    The Council of Europe Framework Convention on the Value ofCultural Heritage for Society 8

    The European Union 9

    Belgiums Protection of Cultural Heritage 10Regional and International Obligations 10Domestic Implementation 11Funding 15Challenges and Considerations 15

    Switzerlands Protection of Cultural Heritage 16Regional and International Obligations 16Domestic Implementation 16Funding 18Challenges and Considerations 19

    Spains Protection of Cultural Heritage 20

    Regional and International Obligations 20Domestic Implementation 20

    Historical Heritage Act of 1985 21Royal Decrees 24

    Funding 24Challenges and Considerations 25

  • 8/12/2019 CSP on Protection of Cultural Heritage

    6/53

    Cultural Heritage Regulation, June 2014

    Irelands Protection of Cultural Heritage 26Regional and International Obligations 26Domestic Implementation 26

    Arts Act of 2003 27National Monuments Act of 2004 27The Heritage Act of 1995 28Government Institutions 28

    Funding 29Challenges and Considerations 29

    Slovenias Protection of Cultural Heritage 30Regional and International Obligations 30Domestic Implementation 31

    Cultural Heritage Protection Act of 2008 31

    The Exercising of the Public Interest in Culture Act of 2002 33Funding 35Challenges and Considerations 36

    Croatias Protection of Cultural Heritage 36Regional and International Obligations 37Domestic Implementation 37

    Law on the Protection and Preservation of Cultural Objects 37Funding 40Challenges and Considerations 40

    Serbias Protection of Cultural Heritage 41Regional and International Obligations 41Domestic Implementation 42

    Law on Heritage Protection 42Funding 44Challenges and Considerations 45

    Conclusion 45

    Annex 47

  • 8/12/2019 CSP on Protection of Cultural Heritage

    7/53

    Cultural Heritage Regulation, June 2014

    1

    CULTURAL HERITAGE REGULATION:

    EUROPEAN REGIONAL STANDARDS AND COMPARATIVE STATE PRACTICE

    Statement of Purpose

    The purpose of this memorandum is to provide an overview of how lawsregulating cultural heritage are organized and implemented by analyzing the

    practice of European states.

    Introduction

    Cultural heritage is broadly defined as resources inherited from pastgenerations which people identify as reflecting their customs and traditions.Cultural heritage can take many forms, both tangible and intangible, and may

    include natural heritage and characteristics of the environment. Cultural heritagecan take many forms, both tangible and intangible, and can also include naturalheritage, which is generally regarded as areas or specific locations in nature ofunique beauty, rarity, fragility, or cultural significance. Preservation of culturalheritage provides people the opportunity to connect, appreciate, and learn about acommunity and identity that may otherwise be lost.

    International and European conventions provide guidelines for state partiesto preserve and protect cultural heritage. Such convention describes what mannerof cultural heritage is being targeted for protection, as well as specific obligationsand requirements states must follow and implement in order to comply with theratified conventions.

    State practice reveals useful mechanisms for protecting and maintainingobjects and sites of cultural heritage, including the ratification of international andregional conventions, the incorporation of mechanisms for the protection ofcultural heritage into the state constitution, and the enactment of nationallegislation and cultural policies designed to promote and protect cultural heritage.Community participation also plays an important role in ensuring the protection of

    cultural heritage.

    International Standards on the Regulation of Cultural Heritage

    The United Nations Educational, Scientific and Cultural Organization(UNESCO) is the primary source of international conventions for the protection ofcultural heritage. The UNESCO oversees international conventions in several

  • 8/12/2019 CSP on Protection of Cultural Heritage

    8/53

    Cultural Heritage Regulation, June 2014

    2

    distinct areas of cultural heritage protection, including the Underwater CulturalHeritage Convention;1the Protection of Cultural Property in Armed Conflict;2theConvention on the Means of Prohibiting and Preventing Illicit Import, Export, andTransfer of Ownership of Cultural Property;3the Convention for the Safeguardingof Intangible Cultural Heritage;4and the Convention Concerning the Protection ofthe World Cultural and Natural Heritage.5 States that choose to sign and ratify acultural heritage convention are required to fulfill its obligations under theconvention. This section will provide an overview of the protections afforded bythe Convention for the Safeguarding of Intangible Cultural Heritage and theConvention Concerning the Protection of the World Cultural and Natural Heritage.

    The Convention for the Safeguarding of the Intangible Cultural Heritage

    In 2003, UNESCO enacted the Convention for the Safeguarding of the

    Intangible Cultural Heritage (CSICH) to protect the role intangible culturalheritage plays in supporting global diversity and sustainable development.6 Theexplicit purposes of the Convention include safeguarding intangible culturalheritage, ensuring there is respect for such heritage, raising awareness of the utilityof such heritage at the local, national, and international levels, and facilitatingcooperation and assistance internationally.7 CSICH defines intangible culturalheritage as practices, representations, expressions, knowledge, skills as well asthe instruments, objects, artefacts [sic] and cultural spaces associated therewith that communities, groups and, in some cases, individuals recognize as part of theircultural heritage.8 Safeguarding is defined as measures aimed at ensuring the

    1Convention on the Protection of Underwater Cultural Heritage(2001), available athttp://unesdoc.unesco.org/images/0012/001260/126065e.pdf.2Convention for the Protection of Cultural Property in the Event of an Armed Conflict(1954), available athttp://unesdoc.unesco.org/images/0008/000824/082464mb.pdf.3Convention on the Means of Prohibiting and Preventing Illicit Import, Export, and Transfer of Ownership ofCultural Property(1970), available at http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.4

    Convention for the Safeguarding of Intangible Cultural Heritage(2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.5Convention Concerning the Protection of the World Cultural and Natural Heritage(1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.6Convention for the Safeguarding of Intangible Cultural Heritagepreamble (2003), available at

    http://unesdoc.unesco.org/images/0013/001325/132540e.pdf.7Convention for the Safeguarding of Intangible Cultural Heritageart. 1 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.8Convention for the Safeguarding of Intangible Cultural Heritageart. 2 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    9/53

    Cultural Heritage Regulation, June 2014

    3

    viability of the intangible cultural heritage.9 Currently, 157 states are party toCSICH.10

    CSICH created two organs charged with governing the convention: theGeneral Assembly of the States Parties (General Assembly) and theIntergovernmental Committee for the Safeguarding of the Intangible CulturalHeritage (Committee).11 The Committee is elected by the General Assembly andserves as the functional working group implementing CSICH.12 Committeefunctions include promoting the CSICHs objectives through implementation andmonitoring, advising state parties on practices to safeguard intangible culturalheritage, submitting draft plans to the General Assembly on expenditures, andcoordinating with state parties and non-governmental organizations.13 TheGeneral Assembly retains the power to elect Committee members and allCommittee actions are answerable to the General Assembly.14 CSICH is funded

    through state party contributions, donations, and appropriations from UNESCO.15

    Each state party is responsible for making a contribution to the CSICH fund everytwo years at a rate determined by the General Assembly.16Furthermore, theUNESCO Secretariat assists both the Committee and General Assembly withdocumentation of CSICH meetings and decisions.17

    Each state party is stipulated to collaborate with civil society groups toidentify intangible cultural heritage and to do what is necessary to ensure that suchheritage in its territory is safeguarded.18 States parties are to create and updateinventories of their territorys intangible cultural heritage, which is submitted to

    9Convention for the Safeguarding of Intangible Cultural Heritageart. 2 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.10UNESCO, Convention for the Safeguarding of Intangible Cultural Heritage, available athttp://www.unesco.org/eri/la/convention.asp?language=E&KO=17116. BiH ratified the CSICH on February 23,2009.11Convention for the Safeguarding of Intangible Cultural Heritagearts. 45 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.12Convention for the Safeguarding of Intangible Cultural Heritagearts. 58 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.13Convention for the Safeguarding of Intangible Cultural Heritageart. 7 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.14

    Convention for the Safeguarding of Intangible Cultural Heritageart. 8 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.15Convention for the Safeguarding of Intangible Cultural Heritagearts. 2528 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.16Convention for the Safeguarding of Intangible Cultural Heritageart. 26 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.17Convention for the Safeguarding of Intangible Cultural Heritageart. 10 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.18Convention for the Safeguarding of Intangible Cultural Heritageart. 11 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    10/53

    Cultural Heritage Regulation, June 2014

    4

    the Committee with all relevant information about such inventories.19State partiesare also responsible for safeguarding intangible cultural heritage.20State partiessafeguard intangible cultural heritage by promoting its function in society,developing protection programs, encouraging protective research and studies,executing measures which encourage or improve institutions that manageintangible heritage, and encouraging education, respect, and participation inintangible cultural heritage.21 State parties are required to cooperate at bilateral,sub-regional, regional, and international levels to safeguard intangible culturalheritage, and can request international assistance for safeguarding such heritage tothe Committee.22

    The Convention Concerning the Protection of the World Cultural and

    Natural Heritage

    The Convention Concerning the Protection of the World Cultural andNatural Heritage of 197223(WHC) was enacted so that state parties takeappropriate steps to identify, protect, conserve, and preserve cultural and naturalheritage for future generations.24 WHC defines cultural heritage as monumentsand groups of buildings that are of outstanding universal value from the point ofview of history, art or science; as well as sites that are of outstanding universalvalue from the historical, aesthetic, ethnological or anthropological point ofview.25 Presently there are 190 state parties to the WHC.26

    WHC outlines the creation and the maintenance of the World Heritage List,which lists property that has cultural or natural heritage of outstanding value.27

    19Convention for the Safeguarding of Intangible Cultural Heritageart. 12 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.20Convention for the Safeguarding of Intangible Cultural Heritagearts. 1315 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.21Convention for the Safeguarding of Intangible Cultural Heritagearts. 1315 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.22Convention for the Safeguarding of Intangible Cultural Heritagearts. 19, 23 (2003), available athttp://unesdoc.unesco.org/images/0013/001325/132540e.pdf.23Convention Concerning the Protection of the World Cultural and Natural Heritage(1972), available at

    http://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.24Convention Concerning the Protection of the World Cultural and Natural Heritageart. 5 (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.25Convention Concerning the Protection of the World Cultural and Natural Heritageart. 1 (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.26UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, available athttp://www.unesco.org/eri/la/convention.asp?KO=13055&language=E. BiH filed notification of succession to theWHC on July 12, 1993.27Convention Concerning the Protection of the World Cultural and Natural Heritageart. 11,(1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    11/53

    Cultural Heritage Regulation, June 2014

    5

    The World Heritage List includes the cost of conservation operations and propertythat is threatened by serious and specific dangers, such as accelerated deterioration,urban or tourist development projects, the breakout of armed conflict, andthreatened damage or destruction by natural catastrophes and disasters.28 Eachstate party can submit a tentative list of property that it deems to have met thecriteria for inclusion on the World Heritage List to the World Heritage Centre atleast one year before the submissions of nominations to the World Heritage List.29UNESCO encourages such states to submit a tentative list on a decade

    basis.30 Only properties on a tentative list may be considered for nomination.31Once it is a part of the World Heritage List, the property is removed from thetentative list.32

    Submissions to a tentative list should elaborate on both a justification for thepropertys outstanding universal value, a statement demonstrating authenticity or

    integrity of the property, and a checklist of criteria outlined in paragraph 77 of theOperational Guidelines for the Implementation of the World Heritage Conventionthat the state believes have been met.33 Such criteria include the following, at leastone of which the property must satisfy:

    represent[ing] a masterpiece of human creative genius; exhibit[ing] an important interchange of human values...on developments in

    architecture or technology, monumental arts, town-planning or landscapedesign;

    bear[ing] a unique or at least exceptional testimony to a cultural tradition or toa civilization which is living ordisappeared;

    be[ing] an outstanding example of a type of building, architectural ortechnological ensemble or landscape which illustrates (a) significant stage(s) inhuman history;

    be[ing] an outstanding example of a traditional human settlement, land-use, orsea-use which is representative of a culture (or cultures), or human interactionwith the environment especially when it has become vulnerable under theimpact of irreversible change;

    28Convention Concerning the Protection of the World Cultural and Natural Heritageart. 11(4) (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.29UNESCO, Tentative Lists, available at http://whc.unesco.org/en/tentativelists/.30UNESCO, Tentative Lists, available at http://whc.unesco.org/en/tentativelists/.31UNESCO, Tentative Lists, available at http://whc.unesco.org/en/tentativelists/.32UNESCO, 7th Sess., 41, U.N. Doc. WHC-04/7 EXT.COM/17 (Dec. 6, 2004), available athttp://whc.unesco.org/archive/2004/whc04-7extcom-17e.pdf.33UNESCO, Tentative List Submission Format Operational Guidelines Annex 2A, available athttp://whc.unesco.org/en/documents/116251.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    12/53

    Cultural Heritage Regulation, June 2014

    6

    be[ing] directly or tangibly associated with events or living traditions, withideas, or with beliefs, with artistic and literary works of outstanding universalsignificance;

    contain[ing] superlative natural phenomena or areas of exceptional naturalbeauty and aesthetic importance; be[ing] outstanding examples representing major stages of earth's history;

    be[ing] outstanding examples representing significant ongoing ecological andbiological processes in the evolution and development ofecosystems andcommunities of plants and animals; and,

    contain[ing] the most important and significant natural habitats for in-situconservation of biological diversity . . . .34

    The Convention Concerning the Protection of the World Cultural andNatural Heritage encourages the cohesive protection and promotion of worldheritage and its cultural benefits to society as a whole. State parties are responsiblefor identifying and protecting cultural heritage and applying to place any culturalheritage onto the World Heritage List.35 State parties agree to adopt general

    policies that aim to combine the protection of cultural heritage with communityprograms.36 The WHC also requires that state parties take the necessary legalmeasures to ensure identification and preservation of cultural heritage.37

    European Standards on the Regulation of Cultural Heritage

    The Council of Europe has enacted conventions that bind its members toregulations aimed at preserving and protecting cultural heritage of both theMember States and Europe as a whole. Similarly, the European Union (EU)

    provides for regulations relating to the preservation and protection of culturalheritage for its members.

    The Council of Europe

    The Council of Europe has put forth and enacted several conventions dealingdirectly with the issue of protecting cultural heritage. In 1954, Member States

    34Operational Guidelines for the Implementation of the World Heritage Conventionr. 77 (2013), available athttp://whc.unesco.org/archive/opguide13-en.pdf.35Convention Concerning the Protection of the World Cultural and Natural Heritageart. 4 (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.36Convention Concerning the Protection of the World Cultural and Natural Heritageart. 5(a) (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.37Convention Concerning the Protection of the World Cultural and Natural Heritageart. 5(d) (1972), available athttp://treaties.un.org/doc/Publication/UNTS/Volume%201037/volume-1037-I-15511-English.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    13/53

    Cultural Heritage Regulation, June 2014

    7

    signed and ratified the European Cultural Convention (ECC), which provided abroad framework to enable individual Member States to pursue the goal ofprotecting European culture heritage. This was later followed by more detailedconventions, such as the Convention for the Protection of the ArchitecturalHeritage of Europe, which deals solely with tangible cultural heritage and requiresstate parties to enact statutory protections. Additionally, the Council of EuropeFramework Convention on the Value of Cultural Heritage for Society of 2005seeks to both protect intangible cultural heritage and promote its benefit to societyas a whole.

    The European Cultural ConventionThe European Cultural Convention (ECC) was developed as an aspirational

    policy to safeguard and encourage the development of European culture.38 Byencouraging the study of languages, history, and civilization of the Council of

    Europes Member States, the ECC encourages state parties to take active steps topreserve European cultural heritage.39State parties are responsible for ensuring theprotection of European cultural heritage within its borders.40 The ECC serves as astarting point for other Council of Europe conventions that create a policy ofcommon action to preserve and protect European cultural heritage.41 A total of 50states have ratified or acceded to the ECC.42

    The Convention for the Protection of the Architectural Heritage of EuropeThe Convention for the Protection of the Architectural Heritage of Europe of

    1985 (CPAHE) requires Council of Europe members to protect architecturalcultural heritage.43 The CPAHE defines architectural cultural heritage to includemonuments, groups of buildings, and sites of conspicuous historical,archaeological, artistic, scientific, social or technical interest.44 State parties arerequired to take the necessary means to provide for the protection of state

    38European Cultural Conventionpreamble (1954), available athttp://www.conventions.coe.int/Treaty/en/Treaties/Html/018.htm.39European Cultural Conventionart. 2 (1954) available athttp://www.conventions.coe.int/Treaty/en/Treaties/Html/018.htm.40European Cultural Conventionart. 5 (1954), available at

    http://www.conventions.coe.int/Treaty/en/Treaties/Html/018.htm.41European Cultural Conventionpreamble (1954), available athttp://www.conventions.coe.int/Treaty/en/Treaties/Html/018.htm.42Council of Europe,European Cultural Convention(Dec. 5, 2013), available athttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=018&CM=&DF=&CL=ENG; BiH ratified the ECCon December 29, 1994.43Convention for the Protection of the Architectural Heritage of Europeart. 1(3) (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm.44Convention for the Protection of the Architectural Heritage of Europe, art. 1(3), Oct. 3, 1985, 25 I.L.M. 380(1985), available at http://conventions.coe.int/Treaty/en/Treaties/Html/121.htm.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    14/53

    Cultural Heritage Regulation, June 2014

    8

    architectural heritage45and make the conservation and promotion of architecturalheritage a significant part of cultural and planning policies.46 Presently, 41 stateshave ratified the convention.47

    The Convention for the Protection of the Architectural Heritage of Europediffers in specific areas from the provisions of the Convention Concerning theProtection of the World Cultural and Natural Heritage in that its scope is

    particularly attuned to European needs. First, the CPAHE tasks individual stateparties with the funding of protection and preservation.48Additionally, theCPAHE undertakes no regulations regarding the preservation of natural heritage; itis solely concerned with architecture.49 Further, the CPAHE does not provide forthe listing of buildings in need of protection, rather it sets minimum guidelines to

    be followed by state parties.50

    The Council of Europe Framework Convention on the Value of CulturalHeritage for SocietyThe Council of Europe Framework Convention on the Value of Cultural

    Heritage for Society of 2005 (FCVC) was created to recognize the right of allpeople to freely associate with different cultural heritages and to emphasize thevalue that the European Community places on cultural heritage.51The FCVC

    broadly defines cultural heritage as a group of resources inherited from the pastwhich people identify, independently of ownership, as a reflection and expressionof their constantly evolving values, beliefs, knowledge and traditions.52 State

    parties are bound to promote and protect cultural heritage;53to organizeresponsibility for cultural heritage within their legal, financial, and professional

    45Convention for the Protection of the Architectural Heritage of Europe art. 3 (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm.46Convention for the Protection of the Architectural Heritage of Europe art. 10 (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm.47Council of Europe, Convention for the Protection of the Architectural Heritage of Europe (Jun.,3 2012),available athttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=121&CM=8&DF=03/06/2012&CL=ENG.48Convention for the Protection of the Architectural Heritage of Europe art. 6 (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm.49

    Convention for the Protection of the Architectural Heritage of Europe Explanatory Reportpt. B art. 21 (1985),available at http://conventions.coe.int/Treaty/EN/Reports/HTML/121.htm.50Convention for the Protection of the Architectural Heritage of Europe Explanatory Reportpt. B art. 21 (1985),available at http://conventions.coe.int/Treaty/EN/Reports/HTML/121.htm.51Council of Europe Framework Convention on the Value of Cultural Heritage for Societypreamble (2005),available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.52Council of Europe Framework Convention on the Value of Cultural Heritage for Society, art. 2(a) (2005)available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.53Council of Europe Framework Convention on the Value of Cultural Heritage for Society, art. 5(b), (e) (2005),available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    15/53

    Cultural Heritage Regulation, June 2014

    9

    frameworks;54and to ensure access to cultural heritage.55 The FCVC has beenratified by 15 state parties.56

    The Council of Europe Framework Convention on the Value of CulturalHeritage for Society outlines a number of aspirational cultural heritage laws and

    policies to be undertaken by state parties. However, the FCVC does not create anyenforceable rights.57 State parties agree to recognize the importance of culturalheritage and to promote its sustainable development, protection, and accessthrough legislation.58

    The European Union

    The Treaty on the Functioning of the European Union (TFEU) provides thatthe EU will contribute to the promotion of cultural heritage within its Member

    States and encourage cooperation between Member States to conserve and protectcultural heritage of European significance.59 The EU has provided guidancerelated to cultural heritage. For instance, the EU has resolutions relating to the roleof culture in the development of the EU;60a work plan on the Europeancooperation in the field of culture;61and a European agenda for culture.62 Theobjectives of the European Agenda for Culture include promoting cultural diversityand international dialogue, promoting culture to encourage creativity, and

    promoting culture as a central element for maintaining the EUs internationalrelations.63

    54Council of Europe Framework Convention on the Value of Cultural Heritage for Societyart. 11 (2005), availableat http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.55Council of Europe Framework Convention on the Value of Cultural Heritage for Societyart. 12 (2005), availableat http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.56Council of Europe, Council of Europe Framework Convention on the Value of Cultural heritage for Society(Dec.5, 2013), available athttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=199&CM=1&DF=&CL=ENG. BiH ratified theFCVC on April 30, 2009.57Council of Europe Framework Convention on the Value of Cultural Heritage for Societyart. 6 (2005), availableat http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.58Council of Europe Framework Convention on the Value of Cultural Heritage for Society,art. 57 (2005),available at http://www.conventions.coe.int/Treaty/EN/Treaties/Html/199.htm.59

    Consolidated Version of the Treaty on the Functioning of the European Unionart. 167(1)(2) (2009), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:FULL:EN:PDF.60Council Resolution on the Role of Culture in the Development of the European Union(2002), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2002:032:0002:0002:EN:PDF.61Council Resolution on a New Work Plan on European Cooperation in the Field of Culture(2002), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2002:162:0005:0007:EN:PDF .62Resolution of the Council on a European Agenda for Culture(2007), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:287:0001:0004:EN:PDF.63Resolution of the Council on a European Agenda for Cultureart. 2 (2007), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:287:0001:0004:EN:PDF.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    16/53

    Cultural Heritage Regulation, June 2014

    10

    The UNESCO, Council of Europe, and EU provide conventions, treaties,and regulations for preserving and protecting cultural heritage for both global andEuropean cultural preservation. The European Council encourages its members totake actions in accordance with the objectives and principles of theseconventions.64 Consequently, the creation of cooperation frameworks andmechanisms, discussed in more detail below, has been an essential process in the

    protection of cultural heritage.65

    Belgiums Protection of Cultural Heritage

    Belgium developed cultural heritage policies after the Second World War tofurther universal, democratic values through cultural promotion.66Belgium hasratified region-wide and international treaties related to the regulation and

    protection of cultural heritage. In addition, Belgium has adopted numerous nationalcultural heritage laws and created a complex decentralized framework forregulating cultural heritage as a result of its devolved political and socialframework.67 Funding for protection of cultural heritage is provided at the stateand sub state levels, with Flanders and Wallonia playing a significant role infunding their respective cultural heritage programs.

    Regional and International Obligations

    Belgium has acceded to regional European conventions, such as theEuropean Cultural Convention68and the Convention for the Protection ofArchitectural Heritage of Europe.69 Additionally, Belgium has signed the Councilof Europe Framework Convention on the Value of Cultural Heritage for Society.70

    64Council Resolution on a New Work Plan on European Cooperation in the Field of Culture(2002), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2002:162:0005:0007:EN:PDF .65Resolution of the Council on a European Agenda for Cultureart. 2 (2007), available athttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:287:0001:0004:EN:PDF.66Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.67

    Belgium, UNESCODATABASE OFNATIONAL CULTURAL HERITAGE LAWS(2007), available athttp://www.unesco.org/culture/natlaws/.68European Cultural Convention, Dec. 19, 1954, C.E.T.S. no. 18, 218 U.N.T.S. 139 (1954), available at

    http://conventions.coe.int/Treaty/en/Treaties/Html/018.htm (acceded to by Belgium on May 11, 1955).69Convention for the Protection of the Architectural Heritage of Europe, Oct. 3, 1985, C.E.T.S. no. 121, 25 I.L.M.380 (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm (acceded to by Belgium on Jan.1, 1993).70Council of Europe Framework Convention on the Value of Cultural Heritage for Society, Oct. 27, 2005, C.E.T.S.no. 199 (2005), available athttp://conventions.coe.int/Treaty/EN/Treaties/Html/199.htm (signed by Belgium on Jun.25, 2012).

  • 8/12/2019 CSP on Protection of Cultural Heritage

    17/53

    Cultural Heritage Regulation, June 2014

    11

    Belgium has also ratified the UNESCO Convention Concerning the Protection ofthe World Cultural and Natural Heritage.71

    Domestic Implementation

    Many of Belgiums cultural heritage policies have their foundations in thepolicies set out by the Council of Europe.72 Belgium has also provided a domesticguarantee of the right to cultural fulfillment within the Constitution.73 TheConstitution requires that the parliaments of the Flemish and French Communitiesregulate culture within their respective jurisdictions.74 Other than generalregulations and grants, the Federal State does not directly intervene on culturalheritage matters.75 The Federal State manages the general public policy for thewhole of Belgium, such as the judicial system, the army, social security, andforeign affairs.76 The Federal State enacted decrees accepting the Second Protocol

    to the Hague Convention of 1954 for the Protection of Cultural Property in theEvent of Armed Conflict77and the 1970 UNESCO Convention on the Means ofProhibiting and Preventing Illicit Import, Export, and Transfer of Ownership ofCultural Property.78 There is no hierarchy between the Federal, Regional, andCommunity governments, and each entity is responsible for particular areas ofgovernance.79

    71UNESCO World Heritage Centre, States Parties: Ratification Status(Sep. 19, 2012), available athttp://whc.unesco.org/pg.cfm?cid=246 (Ratified by Belgium on Jul. 24, 1996).72Compendium, Cultural Policies and Trends in Europe, General Objectives and Principles of Cultural Policy:Cultural Policy Objectives(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=23.73BELGIUM CONST. art. 23(5) (1994), available athttp://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.74BELGIUM CONST. art. 127(1) (1994)available athttp://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.75Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.76Belgian Federal Government, The Federal Governments Powers(Nov. 11, 2012), available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/competence_federal_government/.77Decree Accepting the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property

    in the Event of Armed Conflict(Belgium, 2004), available in French athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/12mai2004decree1999hagueprotocol.pdf.78Decree Accepting the 1970 UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import,Export, and Transfer of Ownership of Cultural Property(Belgium, 2004), available in French athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/12mai2004decree1970unesco.pdf.79Lieve Caluwaerts, Country Sheet on Youth Policy in Flanders (Belgium), COUNCIL OF EUROPE,7 (Jun. 2011),available at http://youth-partnership-eu.coe.int/youth-partnership/documents/Questionnaires/Country/Country_sheet_2011/Country_sheet_Belgium_Flanders_2010.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    18/53

    Cultural Heritage Regulation, June 2014

    12

    Belgium is uniquely divided into three territorial Regions and alsorecognizes three distinct linguistic Communities.80 The Regions of Wallonia,Flanders, and Brussels-Capital Region are responsible for regulations within theirrespective jurisdiction relating to issues such as their local economy, employment,and housing.81 The Flemish, French, and German-Speaking Communities have theresponsibility for regulating culture in their respective jurisdictions.82

    The Flemish-speaking Communitys cultural policy strategy is aimed atcreating an integrated policy in Flanders regulating arts, cultural heritage, andsocio-cultural activities.83 This policy strategy seeks increased cooperation

    between the levels of Flemish Government, i.e. the governments of Flanders, theprovinces, and municipalities.84 The Flemish-speaking Communitys Ministry ofCulture, Youth, Sports and Media is responsible for the creation and oversight ofcultural heritage protection.85 The Ministry consists of six autonomous entities that

    oversee policy in specific areas of the Ministry, such as Arts and Heritage, theAgency for Social and Cultural Activities for Young People and Adults, and theAntwerp Royal Museum of Fine Arts.86 To provide for the protection of culturalheritage, the Flemish-speaking Community implemented the Act on theOrganization and Funding of a Cultural Heritage Policy of 2004, the FlemishCultural Heritage Decree of 2008, the Arts Decree of 2004, and the Decree onFlanking Measures and Incentives to Encourage Participation in Culture, YouthWork and Sports of 2008.

    The Act on the Organization and Funding of a Cultural Heritage Policy of2004 outlines accreditation standards for museums.87 The Act also governs the

    80Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.81Belgian Federal Government, The Powers of the Regions(Nov. 11, 2012), available athttp://www.belgium.be/en/about_belgium/government/regions/competence/.82Belgian Federal Government, The Powers of the Communities(Nov. 11, 2012), available athttp://www.belgium.be/en/about_belgium/government/communities/competence/.83Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.84Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.85

    Community of Knowledge on Arts And Cultural Education in Europe,Ministerie van Cultuur, Ieugd, Sport enMedia(May 30, 2012), available at http://www.comace.org/belgium-flanders/ministerie-van-cultuur-jeugd-sport-en-media.86Community of Knowledge on Arts And Cultural Education in Europe,Ministerie van Cultuur, Ieugd, Sport enMedia(May 30, 2012), available at http://www.comace.org/belgium-flanders/ministerie-van-cultuur-jeugd-sport-en-media.87Act on the Organization and Funding of a Cultural Heritage Policyart. 4 (Flemish-speaking Community,Belgium, 2004), available athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/7may2004flandersfundingact.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    19/53

    Cultural Heritage Regulation, June 2014

    13

    Support Centre for Museums, Archives Offices, Conservation Libraries,Documentation Centres, and the Implementation of Cultural Heritage Covenants.88This Support Centre is responsible for promoting cultural heritage protection whileat the same time facilitating public access to cultural heritage.89

    The Flemish Interface Centre for Cultural Heritage (FARO) acts as thegovernments public face in supporting the protection of cultural heritage.90 FAROfunctions to develop and support Flanders cultural heritage field.91The 2008Flemish Cultural Heritage Decree defines FAROs functions as (1) developing anintegrated cultural heritage policy; (2) starting a network of cultural heritageorganizations to cultivate, to represent, to acknowledge and to valorize thedifferent ways the public participates in and experiences cultural heritage; and (3)encouraging increased development of cultural heritage practices, museum,archival and library sciences, and ethnology.92 The Flemish Government

    subsidizes FARO.93

    The Flemish Government passed the Arts Decree and the Decree onFlanking Measures to encourage increased cultural participation, which is regardedas an important aspect of the development and promotion of the Flemish-speakingCommunitys cultural policy.94 In particular, the Decree on Local Cultural Policyincludes the objective of community building, and municipalities can submit alocal cultural policy plan to implement local cultural policies.95

    88Act on the Organization and Funding of a Cultural Heritage Policyart. 38 (Flemish-speaking Community,

    Belgium, 2004), available athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/7may2004flandersfundingact.pdf.89Act on the Organization and Funding of a Cultural Heritage Policyart. 38 (Flemish-speaking Community,Belgium, 2004), available in English athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/7may2004flandersfundingact.pdf.90Heritage Portal,Cultural Heritage Research: Belgium(last accessed Oct. 2, 2013), available athttp://www.heritageportal.eu/Resources/EU-Countries/Belgium/cultural-heritage-research-belgium.html91FARO,Flemish Interface Centre for Cultural Heritage(last accessed Oct. 2, 2013), available athttp://www.faronet.be/en/faro-flemish-interface-centre-cultural-heritage. 92Flemish Cultural Heritage Decree (Flemish-speaking Community, Belgium, 2008), available in Dutch andFrench at

    http://www.eui.eu/Projects/InternationalArtHeritageLaw/Documents/NationalLegislation/Belgium/23mai2008flanderspp85-107only.pdf, discussed in FARO,Flemish Interface Centre for Cultural Heritage, (last accessed Oct. 2,2013), available at http://www.faronet.be/en/faro-flemish-interface-centre-cultural-heritage.93Heritage Portal,Cultural Heritage Research: Belgium(last accessed Oct. 2, 2013), available athttp://www.heritageportal.eu/Resources/EU-Countries/Belgium/cultural-heritage-research-belgium.html.94Compendium, Cultural Policies and Trends in Europe, Cultural Consumption and Participation: Policies andPrograms Flemish-speaking Community(Sept. 3, 2012), available athttp://www.culturalpolicies.net/web/belgium.php?aid=822.95Compendium, Cultural Policies and Trends in Europe, Cultural Consumption and Participation: Policies andPrograms Flemish-speaking Community(Sept. 3, 2012), available at

  • 8/12/2019 CSP on Protection of Cultural Heritage

    20/53

    Cultural Heritage Regulation, June 2014

    14

    Belgiums French-speaking Community emphasizes cultural democracythrough its government contract programs, such as cultural centers, cultural youthorganizations, and continuing education centers.96 The Ministry of Culture of theFrench-speaking Community of Belgium heads a department that includesdivisions covering museums, movable cultural heritage, and administration of thecultural heritage collection, among other services.97The French-speakingCommunity further protects cultural heritage through decrees. For instance, theDecree on Movable Cultural Property and the Intangible Heritage of the French-speaking Community of 2002 created the Advisory Commission of CulturalHeritage, which oversees the implementation of this Act and provides advice to theFrench-speaking Community Government regarding the protection of culturalheritage.98

    Belgiums German-speaking Community did not have a legal foothold forculture until the 1980s when the Community developed its own parliament andgovernment.99 The German-speaking Community implements policies to protectand promote cultural heritage such as language, the arts, and education.100 TheGerman-speaking Community has also implemented the Decree on the RoyalMonuments and Countryside Protection Commission of the German-speakingCommunity of 1994.101 This decree increases the role of the German-speakingCommunity in protecting tangible cultural heritage, a role normally reserved solelyfor Regions.102

    http://www.culturalpolicies.net/web/belgium.php?aid=822. See also Community of Knowledge on Arts AndCultural Education in Europe,Belgium(Flanders): Programmes, Incentives(Nov. 13, 2012), available athttp://www.comace.org/belgium-flanders/policy/municipal-local/programmes-incentives.96Compendium, Cultural Policies and Trends in Europe, Cultural Consumption and Participation: Policies andPrograms Flemish-speaking Community(Sept. 3, 2012), available athttp://www.culturalpolicies.net/web/belgium.php?aid=822.97Heritage Portal,Belgium (last accessed Oct. 2, 2013), available at http://www.heritageportal.eu/Resources/EU-Countries/Belgium.13751.shortcut.html.98

    Decree on Movable Cultural Property and the Intangible Heritage of the French-speaking Community of 11 July2002art 3 (French-speaking Community, Belgium, 2002).99Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments (Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.100Parliament of the German-speaking Community in Belgium, Culture(Nov. 12, 2012), available athttp://www.dgparlament.be/en/desktopdefault.aspx/tabid-1032/1601_read-27135/.101Compendium, Cultural Policies and Trends in Europe, Sector Specific Legislation: Cultural Heritage(Mar. 9,2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=533.102Parliament of the German-speaking Community in Belgium, Culture(Nov. 12, 2012), available athttp://www.dgparlament.be/en/desktopdefault.aspx/tabid-1032/1601_read-27135/.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    21/53

    Cultural Heritage Regulation, June 2014

    15

    Funding

    Protection and promotion of cultural heritage depends on financial assistancefrom the Belgian Government, the regional governments, local entities, and privateactors.103 Cultural institutions within the Flemish-speaking Community havehistorically been on the receiving end of budget cuts, requiring cultural institutionsto generate income on their own.104 As the economy stabilized throughout the1990s and into the 21st century, Flanders saw a new government, a new cultural

    policy strategy, and an increase in the cultural budget.105 The Flemish Act on theOrganization and Funding of a Cultural Heritage Policy of 2005 permits theFlemish-speaking Community to provide operating grants to accredited museumswith a view to optimizing the museum operation.106The French-speakingCommunity utilizes a significant proportion of its cultural budget to support largeclassic cultural and artistic institutions, maintaining them for use by members of

    the community.107

    Because different governmental entities fund the protection and promotionof cultural heritage and there is a lack of specific cultural heritage programs, it isdifficult to fully estimate the total cultural heritage budget for Belgium.108 Thefederal budget for the project to digitize the archive of cultural material, which isone of many projects, has an overall budget of !200 million.109 However, theRegions provide the most financial support for cultural heritage protection.110

    Challenges and Considerations

    While the Belgian Government oversees international obligations,Belgiums Regions and Communities bear the main responsibility for promoting

    103Heritage Portal,Funding Sources: Belgium (Nov. 27, 2012), available athttp://www.heritageportal.eu/Resources/EU-Countries/Belgium/funding-sources-belgium.html.104Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.105Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.106Act on the Organization and Funding of a Cultural Heritage Policyart. 9 (Flemish-speaking Community,

    Belgium, 2005).107Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=1.108Heritage Portal,Funding Sources: Belgium (Nov. 27, 2012), available athttp://www.heritageportal.eu/Resources/EU-Countries/Belgium/funding-sources-belgium.html.109Heritage Portal,Funding Sources: Belgium (Nov. 27, 2012), available athttp://www.heritageportal.eu/Resources/EU-Countries/Belgium/funding-sources-belgium.html.110Compendium, Cultural Policies and Trends in Europe,Public Cultural Expenditure: Public Cultural ExpenditureBroken Down by Level of Government(Mar. 9, 2012), available athttp://www.culturalpolicies.net/web/belgium.php?aid=622.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    22/53

    Cultural Heritage Regulation, June 2014

    16

    and protecting cultural heritage in their jurisdictions. Because authority isdevolved between Regions and Communities with different goals and cultural

    backgrounds, there is often little coordination and collaboration. Moreover, due tothe financial crisis in Europe, government subsidies for art and culture have beenunder the threat of budget cuts.111

    Switzerlands Protection of Cultural Heritage

    Switzerland has a lengthy history of regulation and protection of culturalheritage. Internationally, Switzerland is a party to several conventions whose

    purpose is to protect cultural heritage. Domestically, Switzerland has a devolvedregulatory structure that empowers the Cantons to develop and implement culturalheritage protection policy. Funding for cultural protection is subsidized by theSwiss Government, but is primarily supported at a Cantonal level. However,

    difficulties in protecting cultural heritage resulting from devolution ofresponsibility have led to a movement to centralize cultural heritage protection atthe state level.

    Regional and International Obligations

    Switzerland has acceded to the European Cultural Convention112and theConvention for the Protection of Architectural Heritage of Europe.113 Switzerlandhas also ratified the UNESCO Convention Concerning the Protection of the WorldCultural and Natural Heritage.114

    Domestic Implementation

    Domestic policy regarding cultural heritage in Switzerland is a jointenterprise between the federal government and the Cantons. Switzerland is afederation comprised of 26 Cantons, which are in turn comprised by 2,495municipalities.115 The Swiss Constitution provides for the protection and

    111

    Compendium, Cultural Policies and Trends in Europe, Specific Policy Issues and Debates: Conceptual Issues ofPolicies for the Arts(Mar. 9, 2012), available at http://www.culturalpolicies.net/web/belgium.php?aid=421.112European Cultural Convention(Dec. 19, 1954) C.E.T.S. no. 18, 218 U.N.T.S. 139 (1954), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/018.htm (acceded to by Switzerland on Jul. 13, 1962).113Convention for the Protection of the Architectural Heritage of Europe, Oct. 3, 1985, C.E.T.S. no. 121, 25 I.L.M.380 (1985), available athttp://conventions.coe.int/Treaty/en/Treaties/Html/121.htm (acceded to by Switzerland onJul. 1, 1996).114UNESCO World Heritage Centre,States Parties: Ratification Status(Sep. 19, 2012), available athttp://whc.unesco.org/pg.cfm?cid=246 (Ratified by Switzerland on Sep. 9, 1975).115The Swiss Portal, Swiss Federalism(Nov. 12, 2012), available at https://www.ch.ch/en/swiss-federalism.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    23/53

    Cultural Heritage Regulation, June 2014

    17

    promotion of cultural heritage in the national interest.116 Prior to the 1949conversion of the Arts Council of Switzerland to a public foundation, Cantons andlocal municipalities largely controlled cultural heritage protection.117However, theconversion of the Art Council created the basis for expanded federal involvementin Swiss cultural policy.118 With the increase in cultural legislation and a growing

    public interest in participation in cultural activities, Switzerland developed asystem for the preservation of cultural heritage and the promotion of culturallife.119

    Switzerland first regulated cultural heritage with the 1886 creation of theFederal Office for the Conservation of Historic Monuments and the 1887 FederalDecree on the Promotion and Elevation of Swiss Art.120 During the 1950s,Switzerland saw increased rates of cultural participation as levels of education rosethroughout the state.121 In the 1980s, increased support for cultural activities by

    the Cantons led to the establishment of the Conference of Cultural Representativesof the Cantons.122 Switzerland established the Federal Board of Culture to promotecultural policy, and both Cantons and municipalities promote cultural heritage intheir respective jurisdictions.123 The 1991 Ordinance on the Protection of Natureand Cultural Heritage provided that state authorities shall give due considerationto the requirements of . . . cultural heritage protection and monument

    preservation.124

    Amendments to the Swiss Constitution in 1999 devolved responsibility forthe promotion of culture and the preservation of cultural heritage to the Cantons,and provided a stronger legal basis for guaranteeing these protections.125 The

    116SWITZERLAND CONST.arts. 69, 78 (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.117Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.118Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.119Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.120Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.121

    Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.122Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.123The Swiss Portal,Promoting Culture(Nov. 12, 2012), available athttp://www.ch.ch/private/00085/00087/00458/00462/index.html?lang=en.124Ordinance on the Protection of Nature and Cultural Heritageart. 1 (Switzerland, 1991), available athttp://www.admin.ch/ch/e/rs/451_1/index.html.125Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    24/53

    Cultural Heritage Regulation, June 2014

    18

    current Swiss Constitution provides that, cultural matters shall be a cantonalresponsibility.126 The Constitution also gives the Cantons responsibility for the

    protection of cultural heritage.127 However, the Constitution provides that thefederal government can intervene for the protection and preservation of culturaland natural heritage through acquisition of nationally important properties.128

    Today, the Cantons and the federal government share the responsibility forSwiss cultural heritage regulation and protection.129 The federal government also

    provides technical assistance with monument preservation and the protection ofsites of local character.130 Switzerlands Federal Office of Culture oversees thestates culturally important monuments, archaeology, landscapes, and worldheritage sites.131 Throughout Switzerland, culture has become a factor in numerous

    policy areas, including national cohesion, language policies, and the potentialgrowth of cultural industries.132

    Funding

    Federal government grants assist the Cantons in protecting cultural heritage,making such protection a common task between Confederation and [c]antons.133The federal government both negotiates with individual Cantons regardingfinancial assistance and subsidizes national organizations involved in state-widecultural heritage protection.134 Municipalities provide the most funding for culturalheritage protection; the Cantons provide the second most funding; and the federal

    126SWITZERLAND CONST.art. 69(1) (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.127SWITZERLAND CONST.art. 78(1) (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. See also, TheSwiss Portal,Landscape and Folklore(Nov. 14, 2012), available athttp://www.ch.ch/private/00085/00086/00436/00452/index.html?lang=en.128SWITZERLAND CONST.art. 78(2) (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.129Johann Mmer, Cultural Heritage Management in a Decentralized System: Structure and Organization inSwitzerland, FEDERAL OFFICE OF CULTURE, 12 (May 2729, 2009), available athttp://ehhf.english-heritage.org.uk/upload/pdf/Murner.pdf?1350872897.130Johann Mmer, Cultural Heritage Management in a Decentralized System: Structure and Organization inSwitzerland, FEDERAL OFFICE OF CULTURE, 8 (May 2729, 2009), available athttp://ehhf.english-heritage.org.uk/upload/pdf/Murner.pdf?1350872897.131

    Federal Office of Culture, UNESCO World Heritage(Jul. 4, 2012), available athttp://www.bak.admin.ch/kulturerbe/04307/index.html?lang=en.132Compendium, Cultural Policies and Trends in Europe,Historical Perspective: Cultural Policies and Instruments(Mar. 16, 2012), available at http://www.culturalpolicies.net/web/switzerland.php?aid=1.133Johann Mmer, Cultural Heritage Management in a Decentralized System: Structure and Organization inSwitzerland, FEDERAL OFFICE OF CULTURE, 7 (May 2729, 2009), available athttp://ehhf.english-heritage.org.uk/upload/pdf/Murner.pdf?1350872897.134Johann Mmer, Cultural Heritage Management in a Decentralized System: Structure and Organization inSwitzerland, FEDERAL OFFICE OF CULTURE, 7 (May 2729, 2009), available athttp://ehhf.english-heritage.org.uk/upload/pdf/Murner.pdf?1350872897.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    25/53

    Cultural Heritage Regulation, June 2014

    19

    government provides the least amount of funding.135 The private sector alsoprovides funding for cultural heritage programs, including over 12,000 privatefoundations and sponsorships for cultural heritage and the arts.136

    The federal budget for cultural heritage increased in 2011 for advancingSwiss cinema and the protection of cultural heritage and monuments.137 However,the parliament denied a request by the Swiss arts council, Pro Helvetia, for anincrease in funding for photography and the digital arts.138 As a result of the

    budget increase, in January 2012, the federal government introduced a new federallaw that will allow the federal government more input in cultural heritage policies,which have traditionally been reserved for the Cantons and municipalities.139

    Challenges and Considerations

    The Swiss Constitution includes protections for cultural heritage, and thefederal government has promoted cultural heritage by implementing culturalheritage laws and ratifying regional and international conventions. In addition, thefederal government has sought to strengthen cultural heritage relationships

    between the levels of government by open dialogue, better cooperation, andstronger communication.140 While the Cantons and municipalities bear most of the

    policy and financial burdens for preserving and protecting cultural heritage,Switzerland is working towards a cohesive cultural policy strategy between itslevels of government.141

    135Compendium, Cultural Policies and Trends in Europe,Financing of Culture: Short Overview(Mar. 8, 2012),available at http://www.culturalpolicies.net/web/switzerland.php?aid=61.136Sophoe Douez, Cultural Policy Takes a New Direction, SWISSINFO(Oct. 3, 2011), available athttp://www.swissinfo.ch/eng/politics/Cultural_policy_takes_a_new_direction.html?cid=31254304.137Sophoe Douez, Cultural Policy Takes a New Direction, SWISSINFO, Oct. 3, 2011, available athttp://www.swissinfo.ch/eng/politics/Cultural_policy_takes_a_new_direction.html?cid=31254304.138

    Sophoe Douez, Cultural Policy Takes a New Direction, SWISSINFO, Oct. 3, 2011, available athttp://www.swissinfo.ch/eng/politics/Cultural_policy_takes_a_new_direction.html?cid=31254304.139Sophoe Douez, Cultural Policy Takes a New Direction, SWISSINFO(Oct. 3, 2011), available athttp://www.swissinfo.ch/eng/politics/Cultural_policy_takes_a_new_direction.html?cid=31254304.140Compendium, Cultural Policies and Trends in Europe, Current Issues in Cultural Policy Development andDebate: Main Cultural Policy Issues and Priorities(Mar. 8, 2012), available athttp://www.culturalpolicies.net/web/switzerland.php?aid=41.141Compendium, Cultural Policies and Trends in Europe, Current Issues in Cultural Policy Development andDebate: Main Cultural Policy Issues and Priorities(Mar. 8, 2012), available athttp://www.culturalpolicies.net/web/switzerland.php?aid=41.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    26/53

    Cultural Heritage Regulation, June 2014

    20

    Spains Protection of Cultural Heritage

    Spain is a uniquely devolved state that grants substantial authority toAutonomous Communities within a federal framework. This decentralized systemhas a significant impact on how the protection of cultural heritage is regulated.Internationally, Spain has acceded to several conventions promoting the protectionof cultural heritage. Domestically, Spain has two primary means of providing

    protection to culture heritageThe Historical Heritage Act of 1985 and by RoyalDecree. Funding for protection comes from a variety of sources including thefederal government, Autonomous Communities, local municipalities, and privateinstitutions. Difficulties faced by Spain in preserving cultural heritage include alack of sufficient funds and the support of controversial programs that are notregarded equally across the Autonomous Communities.

    Regional and International Obligations

    Spain has acceded to the European Cultural Convention142and theConvention for the Protection of Architectural Heritage of Europe.143Spain hasalso acceded to the UNESCO Convention Concerning the Protection of the WorldCultural and Natural Heritage.144

    Domestic Implementation

    The Spanish Constitution provides that public authorities will guaranteepreservation of the historical, cultural, and artistic heritage of the Spanishpeople.145 It also provides criminal punishment for any violations against culturalheritage.146 The Spanish Government has executed this Article through theHistorical Heritage Act of 1985, which describes general provisions relating tocultural heritage and authorizes the implementation of specific cultural heritageregulations and Royal Decrees. Spains Ministry of Culture was established in

    142Council of Europe Treaty Office,European Cultural Convention, available athttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=018&CM=&DF=&CL=ENG (acceded to by Spain

    on Jul. 4, 1957).143Council of Europe Treaty Office, Convention for the Protection of the Architectural Heritage of Europe,available at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=121&CM=1&DF=&CL=ENG(acceded to by Spain on Apr. 27, 1989).144UNESCO World Heritage Centre,States Parties: Ratification Status, available athttp://whc.unesco.org/pg.cfm?cid=246 (Acceded to by Spain on May 4, 1982).145SPAIN CONST. art. 46 (1978), available at http://www.lamoncloa.gob.es/NR/rdonlyres/C511DC05-40C5-4739-8AB6-FA3CEE3B4F28/0/Constitucion_EN.pdf.146SPAIN CONST. art. 46 (1978), available at http://www.lamoncloa.gob.es/NR/rdonlyres/C511DC05-40C5-4739-8AB6-FA3CEE3B4F28/0/Constitucion_EN.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    27/53

    Cultural Heritage Regulation, June 2014

    21

    1977 with responsibility for natural heritage and fine arts.147After muchpolitical transformation, the Ministry functions today as the primary governmentinstitution responsible for cultural policy.148

    The Historical Heritage Act of 1985The Historical Heritage Act of 1985 (HHA) was implemented pursuant to

    Article 46 of the Constitution.149 The HHA was intended to broaden the definition,scope, and thus protection of cultural heritage.150 The duty to ensure and enforcethe objectives of the HHA rests upon the State Administration as the implementingmechanism in Spain.151 The Constitutional Court has held that the HHA

    permissibly enables the central and regional governments to share in the power andresponsibility to protect and preserve historical heritage.152

    The HHA defines Spanish historical heritage broadly, covering a variety of

    historically interesting movable and immovable objects as well as natural heritageof an artistic or historical nature.153 The HHA contains provisions designed to

    protect, preserve, and transmit Spanish historical heritage.154 The HHA seeks toprotect and preserve a wide variety of tangible and intangible historical heritage,which affords the State Administration wide latitude when applying regulations.155

    Autonomous Communities are tasked with creating internal organizationsthat are tasked with being the primary enforcers of the HHA.156The StateAdministration is only permitted to enforce the HHA when the cultural heritage isof a national character or is in need of sudden intervention in order to be

    147Compendium: Cultural Policies and Trends in Europe, 1 (Nov. 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=1. 148Compendium: Cultural Policies and Trends in Europe, 3.2 (Nov. 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=1.149Spanish Historical Heritage Actpreamble (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.150Spanish Historical Heritage Actpreamble (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.151Spanish Historical Heritage Actpreamble, art 3 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf152

    Judgment 17/1991 (Jan. 31, 1991), Spanish Constitutional Court, 48 BOE 18, available in Spanish athttp://hj.tribunalconstitucional.es/en/Resolucion/Show/1656.153Spanish Historical Heritage Actart. 1(2) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.154Spanish Historical Heritage Actart. 1(2) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.155Spanish Historical Heritage Actpreamble (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf156Spanish Historical Heritage Actart. 6 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    28/53

    Cultural Heritage Regulation, June 2014

    22

    preserved.157 The HHA stipulates that the Council of Historical Heritage isresponsible for the coordination of programs of action that concern Spanishhistorical heritage.158 This Council consists of a representative from each of theAutonomous Communities of Spain and the Director General for the StateAdministration, who acts as chairman.159 However, under the Constitution, theSpanish State Administration is responsible for the preservation and promotion ofSpanish historical heritage.160 In addition to the Council of Historical Heritage, theHHA provides the State Administration with a number of consultative institutions,including the Board for the Certification, Valuation and Export of Property of theSpanish Heritage; Spanish universities; the Higher National Council for ScientificResearch; and any Higher Boards identified by the State Administration.161

    The HHA provides that, with authorization from either the administrativeorganization of an Autonomous Community or the State Administration, Royal

    Decrees may be used to declare objects and locations to be of cultural interest.162

    Article 10 provides that anyone may submit a request for declaration of a culturalinterest, and the respective administrative organization will determine if the requestis valid.163 The HHA provides that the government will give preferential financingfor work on preservation, maintenance, and archeological protection andexcavation of property and objects determined to be of historical heritagesignificance.164 Provisions of the HHA also provide tax exemptions for personswho are burdened by their property being declared a historical heritage object orlocation.165 Further, the HHA describes administrative infringements, penalties,and punishments for violations against cultural heritage.166

    157Spanish Historical Heritage Actart. 6 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.158Spanish Historical Heritage Actart. 3(1) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.159Spanish Historical Heritage Actart. 3(1) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.160SPAIN CONST. art. 149.1.28 (1978), available at http://www.lamoncloa.gob.es/NR/rdonlyres/C511DC05-40C5-4739-8AB6-FA3CEE3B4F28/0/Constitucion_EN.pdf.161Spanish Historical Heritage Actart. 3(2) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.162

    Spanish Historical Heritage Actart. 9(1)(2) (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.163Spanish Historical Heritage Actart. 10 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.164Spanish Historical Heritage Actart. 67 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.165Spanish Historical Heritage Actarts. 6970, 7273 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.166Spanish Historical Heritage Actarts. 7579 (Spain, 1985), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_law_16_1985_engtof.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    29/53

    Cultural Heritage Regulation, June 2014

    23

    In 1991, three Autonomous Communities, Catalonia, Galicia, and Basque,challenged the HHA, arguing that it encroached upon their statutory powers.167 In

    particular, they argued that the central governments authority was limited to thedefense of the Spanish heritage against exportation and spoilation.168 TheConstitutional Court disagreed and maintained that the responsibilities assigned bythe HHA were necessary and proper for the state to fulfill its obligations underArticle 46 of the Constitution.169 Rather than treating the protection of culturalheritage as a mutually exclusive competence, the Court held that the state andAutonomous Communities could act in a parallel and concurrent way.170

    Subsequently, individual autonomous communities have introducedlegislation to further protect cultural heritage that is specific to their regions.171Many of the Autonomous Communities have legislation relating to regionalmuseums, public archives, libraries, and books and reading.172 For instance, the

    Autonomous Community of La Rioja approved a law regulating its Archives andDocumentary Heritage,173as well as its own regulations for the Cultural,Historical, and Artistic Heritage of La Rioja,174which closely resemble the HHA.Additionally, La Rioja created the Superior Council of Cultural, Historical, andArtistic Heritage, which is responsible for coordinating policies relating toheritage, communicating between programs, and advising the government oncultural, historic, and artistic heritage at the local level.175 Similar to the HHA, LaRioja also has a declaration procedure for objects or locations of regional culturalsignificance,176protections for archaeological surveys and excavations,177and a

    167Judgment 17/1991 (Jan. 31, 1991), Spanish Constitutional Court, 48 BOE 18, available in Spanish athttp://hj.tribunalconstitucional.es/en/Resolucion/Show/1656.168Judgment 17/1991 (Jan. 31, 1991), Spanish Constitutional Court, 48 BOE 18, available in Spanish athttp://hj.tribunalconstitucional.es/en/Resolucion/Show/1656.169Judgment 17/1991 (Jan. 31, 1991), Spanish Constitutional Court, 48 BOE 18, available in Spanish athttp://hj.tribunalconstitucional.es/en/Resolucion/Show/1656. See alsoSPAIN CONST. art. 46 (1978), available athttp://www.lamoncloa.gob.es/NR/rdonlyres/C511DC05-40C5-4739-8AB6-FA3CEE3B4F28/0/Constitucion_EN.pdf.170Judgment 17/1991 (Jan. 31, 1991), Spanish Constitutional Court, 48 BOE 18, available in Spanish athttp://hj.tribunalconstitucional.es/en/Resolucion/Show/1656.171Compendium, Sector Specific Legislation: Cultural Heritage, 5.3 (Nov. 21, 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=533.172

    Spanish Cultural Heritage Legislation as at July 2010, EUROPEAN UNIVERSITY INSTITUTE(Jul. 2010), availableat http://www.eui.eu/Projects/InternationalArtHeritageLaw/Spain.aspx.173Archives and Documentary Heritage of La Rioja(Spain, 1994), available in Spanish athttp://www.boe.es/boe/dias/1994/06/17/pdfs/A18948-18954.pdf.174Cultural, Historic, and Artistic Heritage of La Rioja (Spain, 2004), available in Spanish athttp://www.boe.es/boe/dias/2004/11/11/pdfs/A37173-37203.pdf.175Cultural, Historic, and Artistic Heritage of La Rioja art. 8(1)(2) (Spain, 2004), available in Spanish athttp://www.boe.es/boe/dias/2004/11/11/pdfs/A37173-37203.pdf.176Cultural, Historic, and Artistic Heritage of La Rioja arts. 13, 17 (Spain, 2004), available in Spanish athttp://www.boe.es/boe/dias/2004/11/11/pdfs/A37173-37203.pdf.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    30/53

    Cultural Heritage Regulation, June 2014

    24

    penalty system for violations of the regulations178among many other provisionsspecific to the region.

    Royal DecreesThe King of Spain has taken additional action to support the HHA by issuing

    Royal Decrees, which function as legislation. In 1991 the Spanish Governmentapproved a Royal Decree that provides a state guarantee for works of culturalinterest.179 The provision guarantees compensation to citizens who lend personalcultural heritage artifacts for a temporary or permanent assignment to a statemuseum, library, or archive, and the artifacts are destroyed, lost, or damaged in the

    process.180 Other acts, such as the Spanish Historical Heritage Royal Decree,contain more precise procedural and organizational regulations relating to Spanishhistorical heritage.181 The Spanish Historical Heritage Royal Decree alsofacilitates communication between the State Administration and the Autonomous

    Communities, which is overseen by the Council of Historical Heritage establishedby the HHA.182

    Funding

    Spain employs a decentralized funding system where sub-state levels ofgovernment assume most of the financial responsibility.183 As such, the majorityof funding for Spains cultural heritage comes from the Autonomous Communitiesand municipal governments, with just over 15 percent of the total coming from thecentral government.184 Cultural heritage also receives some funding from the

    private sector through patronages and sponsorships.185 Bank foundations such as

    177Cultural, Historic, and Artistic Heritage of La Rioja arts. 2223 (Spain, 2004), available in Spanish athttp://www.boe.es/boe/dias/2004/11/11/pdfs/A37173-37203.pdf.178Cultural, Historic, and Artistic Heritage of La Rioja arts. 8694 (Spain, 2004), available in Spanish athttp://www.boe.es/boe/dias/2004/11/11/pdfs/A37173-37203.pdf.179Spanish Historic Patrimony Royal Decree art. 2(1) (Spain, 1991), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_royaldecree_1680_1991_engtof.pdf.180Spanish Historic Patrimony Royal Decree art. 1(2) (Spain, 1991), available athttp://www.unesco.org/culture/natlaws/media/pdf/spain/spa_royaldecree_1680_1991_engtof.pdf.181

    Spanish Historical Heritage Royal Decreepreamble (Spain, 1986), available in Spanish athttp://en.www.mcu.es/patrimonio/docs/Realdecreto_111_1986.pdf.182Spanish Historical Heritage Royal Decreeart. 2 (Spain, 1986), available in Spanish athttp://en.www.mcu.es/patrimonio/docs/Realdecreto_111_1986.pdf.183Compendium,Financing of Culture: Short Overview, 6.1 (Nov. 21, 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=61.184Compendium,Public Cultural Expenditure Broken Down by Level of Government, 6.2 (Nov. 21, 2011), availableat http://www.culturalpolicies.net/web/spain.php?aid=622.185Compendium,Financing of Culture: Trends and Indicators for Private Funding, 6.3 (Nov. 21, 2011), availableat http://www.culturalpolicies.net/web/spain.php?aid=63.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    31/53

    Cultural Heritage Regulation, June 2014

    25

    Banco Santander186and Caja Madrid also provide funding support to preserve andprotect art and culture in Spain.187

    Challenges and Considerations

    The recent financial crisis, government budget cuts, and the collapse ofsavings banks have hurt funding for cultural heritage.188 In December 2012, the

    parliament approved a 19.6 percent cut to the culture budget.189 In addition, CajaMadrid Foundation, one of the major contributors to cultural heritage over theyears, was forced to closed 48 cultural and social centers throughout Spain.190Cultural institutions have increasingly relied on private sponsorship, and inresponse, there is a campaign to increase tax incentives for cultural heritagesponsors.191

    The devolution of cultural heritage regulation to the AutonomousCommunities has also sparked controversy. While this practice allows theAutonomous Communities to regulate cultural heritage protection in ways that areunique to their individual regions, historic practices have come into conflict withevolving values. For instance, while the Ministry of Culture and regionalgovernment of Madrid view bullfighting as a cultural product and artisticdiscipline, some Autonomous Communities do not agree with this classificationand have banned the practice.192

    Despite such challenges, the government continues its efforts to preserve andprotect the cultural heritage of Spain. In particular, the Spanish Government hasfocused on acknowledging the diversity of Spanish culture; strengtheningcooperation between levels of government regarding cultural heritage; and using

    186Foundations, BANCO SANTANDER, (Oct. 26, 2012), available athttp://www.santander.com/csgs/Satellite/CFWCSancomQP01/en_GB/Corporate/Sustainability/Community/Foundations.html.187Arjo Klamer, et al.,Financing the Arts and Culture in the European Union, EUROPEAN PARLIAMENT, 40 (Nov.30, 2006), available athttp://www.culturalpolicies.net/web/files/134/en/Financing_the_Arts_and_Culture_in_the_EU.pdf.188Stephen Burgen, Spanish Culture Industry Becomes Bank Collapse Casualty, THE GUARDIAN(Jun. 29, 2012),

    available at http://www.guardian.co.uk/world/2012/jun/29/spanish-culture-industry-bank-collapse-casualty.189Al Jazeera,Parliament Approves Austerity Budget in Spain(Oct. 24, 2012), available athttp://www.aljazeera.com/news/europe/2012/10/2012102412124934801.Html.190Stephen Burgen, Spanish Culture Industry Becomes Bank Collapse Casualty, THE GUARDIAN(Jun. 29, 2012),available at http://www.guardian.co.uk/world/2012/jun/29/spanish-culture-industry-bank-collapse-casualty.191Stephen Burgen, Spanish Culture Industry Becomes Bank Collapse Casualty, THE GUARDIAN(Jun. 29, 2012),available at http://www.guardian.co.uk/world/2012/jun/29/spanish-culture-industry-bank-collapse-casualty.192Tom Worden,Bullfighting Saved from the Sword as Spain Rules it as an Artistic Discipline, THE GUARDIAN,(Jul.21, 2011), available at http://www.guardian.co.uk/world/2011/jul/31/bullfighting-saved-spain-artistic-discipline.The regional government in Madrid has awarded bullfighting legal protection due to its cultural importance.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    32/53

    Cultural Heritage Regulation, June 2014

    26

    culture as a mechanism for economic development and social cohesion.193 Thegovernment also introduced technology to disseminate culture, including a web-

    based database for archives, an online catalogue for libraries, and an onlinecatalogue of Spains museums.194

    Irelands Protection of Cultural Heritage

    Ireland has both domestic legislation and international obligations regulatingthe protection of cultural heritage. Internationally, Ireland has ratified Europeanconventions and is a party to UNESCO conventions regarding the protection ofcultural heritage. Domestically, Ireland has both legislation and specific ministriesdedicated to protecting both tangible and intangible cultural heritage. Funding forcultural protection comes from a variety of sources including state and localmunicipalities. Ireland has faced difficulties in its efforts to protect cultural

    heritage due to the European financial crisis and increased modernization andurbanization.

    Regional and International Obligations

    Ireland has ratified the European Cultural Convention195and the Conventionfor the Protection of Architectural Heritage of Europe.196 Ireland has also ratifiedthe UNESCO Convention Concerning the Protection of the World Cultural and

    Natural Heritage.197

    Domestic Implementation

    While there is no express cultural heritage provision in the IrishConstitution,198Ireland has developed domestic legislation and various institutionsto protect and preserve cultural heritage. The Irish Government has enacted

    193Compendium,Main Cultural Issues and Priorities , 4.1 (Nov. 21, 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=41.194Compendium,Heritage Issues and Policies, 4.2 (Nov. 21, 2011), available athttp://www.culturalpolicies.net/web/spain.php?aid=422.195

    Council of Europe Treaty Office,European Cultural Convention, available athttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=018&CM=&DF=&CL=ENG (ratified by Ireland onMar. 11, 1955).196Council of Europe Treaty Office, Convention for the Protection of the Architectural Heritage of Europe,available at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=121&CM=1&DF=&CL=ENG (ratifiedby Ireland on Jan. 20, 1997).197UNESCO World Heritage Centre,States Parties: Ratification Status, available athttp://whc.unesco.org/pg.cfm?cid=246 (Ratified by Ireland on Sep. 16, 1991).198Irish Cultural Heritage Legislation as at July 2010,EUROPEAN UNIVERSITY INSTITUTE(Jul. 2010), available athttp://www.eui.eu/Projects/InternationalArtHeritageLaw/Ireland.aspx.

  • 8/12/2019 CSP on Protection of Cultural Heritage

    33/53

    Cultural Heritage Regulation, June 2014

    27

    legislation that promotes and preserves the arts, as well as archaeological andarchitectural heritage. Moreover, the Department of Arts, Heritage, and Gaeltachtoversees the conservation, preservation, protection and presentation of Irelandsheritage and cultural assets.199 The Department also seeks to promote the

    preservation of the Irish language as well as cultural heritage.200 In addition,Ministry of Arts, Sport and Tourism is responsible for the promotion of arts,201andthe Department of Environment is charged with protecting built heritage in

    Northern Ireland.202

    Arts Act of 2003The Arts Act of 2003 establishes the legislative framework for Irish cultural

    policy making and is supplemented by additional pieces of legislation, eachproviding for a different component of cultural heritage preservation.203The Actdefines the arts as a traditional or contemporary expression that includes visual

    arts, theatre, literature, dance, and architecture.204

    The Act also describes thefunctions of the Minister of Arts, Sports, and Tourism (Minister) and the localauthorities, which provide support to stimulate pub