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CULTURAL HERITAGE LEGISLATION IN THE TRANSITION COUNTRIES OF SVETOZARA PETKOVA International Policy Fellowship 2004 – 2005 Open Society Institute – July, 2005 |
TABLE OF CONTENT
I. Introduction
II. Problem
Description
III. Policy
Options
1. Scope and Definition of Cultural Heritage
Legislation
1.1. UNESCO
Instruments
1.1.1. UNESCO
Convention concerning the Protection of the World Cultural and Natural Heritage
1.1.2. Convention for
the Safeguarding of the Intangible Cultural Heritage
1.2. Council of
1.2.1. Convention for
the Protection of the Architectural Heritage of
1.2.2. European
Convention on the Protection of the Archaeological Heritage
1.2.3. Other COE Instruments
1.3. National
Legislative Instruments
1.3.1. National Acts
with a Narrow Scope (similar to that of individual COE Conventions)
1.3.2. National Acts
Covering both Movable and Immovable Heritage
1.3.3. National Acts
of Broad Scope
1.3.4. All-encompassing
National Laws
1.4. Some specifics of
heritage definitions
1.4.1. Protection
zones
1.4.2. Perceived
remains
1.4.3. Parts of
structures
1.4.4. Classifications
1.5. Conclusion
1.5.1. Scope
1.5.2. Some particular aspects of the definitions
2. State Authorities Responsible for Heritage
2.1. UNESCO Instruments
2.2. Functions of State Authorities as Outlined by
European Instruments
2.3.
National Approaches
2.3.1.
2.3.2.
2.3.3.
2.3.4.
2.4.
Conclusion
3. Authenticity
3.1. International
Instruments
3.1.1. UNESCO
3.1.2. ICOMOS’ and Other Specialised Instruments
3.2. Theoretical
Background of Conservation Philosophies
3.2.1. Viollet-le-Duc
3.2.2. Ruskin and
Morris
3.2.3. Façadism
3.3. National
Approaches
3.4. New Balkan
Legislation
3.5. Conclusion
4. Financing
4.1. International
Instruments
4.2. State funding
4.2.1. Direct state
support
4.2.1.1.
Non-competitive subsidies
4.2.1.2. Grants
4.2.1.3. State support
for privately owned heritage assets
4.2.2. Indirect state
support
4.2.2.1. Deductions of
donations from the taxable income
4.2.2.2. Deductions of
the costs of conservation from the taxable income
4.2.2.3. Value Added
Tax
4.2.2.4. Wealth or
Property Tax
4.2.2.5. Inheritance
Tax
4.3. Private Funding
4.3.1. Divestiture
4.3.2. Autonomisation
4.3.3. Contracting out
4.3.4. Benefit
principle
4.3.5. Use of
volunteers
4.4. Conclusion
I. Introduction
The rising interest of
world communities towards cultural heritage in the broadest sense is closely
linked to the process of globalisation. Although signifying a relatively new
concept, the term globalisation has been used so much to mean so many different
things that employing it without further elaboration becomes exceedingly
incomplete. In most general terms, globalisation refers to a process of growing
interconnectedness between people as a result of the decreased effects of
distances and political boundaries and is marked by a reduced state role and an
increase in the role of non-state actors.[1] Globalisation
is a process that has its political, economic, social, technological and
cultural dimensions. As Professor Anthony Giddens notes in his renowned lecture
on globalisation, “[g]lobalisation thus is a complex set of processes, not a
single one. And these operate in a contradictory or oppositional fashion. […] Globalisation
is the reason for the revival of local cultural identities in different parts
of the world.”[2] As a
cultural process, the opening of nation states to the world that has come about
with globalisation is giving rise to an enhanced interest towards those assets
that in the context of interacting cultural influences can still assert the
uniqueness of communities. In this sense, the search for one’s cultural
identity is the other side of the coin of globalisation.
It is relatively
recently that cultural heritage became a popular concern. Although the UNESCO Convention concerning the Protection of the World Cultural and Natural
Heritage[3] has been in place for more than fourteen years
now, the understanding of natural and cultural heritage that it brings about is
quite narrow compared to the broad perception of heritage that is beginning to
emerge. This expanded understanding of heritage has been reflected in the
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage[4],
in the numerous new categories of heritage brought about by documents of the
Council of Europe[5] and by
the all-encompassing approaches of the newest national legislative acts on
heritage protection.
It can be said that in
This focus of
attention towards heritage in
The primary tool for
ensuring that the proper mechanisms for achieving the above goals are in place
is legislation. Whereas good cultural heritage legislation in itself is not
sufficient for ensuring good protection, its existence is the basis for all
other measures to be taken and practices to be developed. With this in mind,
the present paper will examine and evaluate various European cultural heritage
policies in the hope of distinguishing those ones that can be translated into
successful legislative measures. These policies will be assessed with a view to
the particular problems faced by some of the transition countries of
This policy research
employs the methods of comparative law analysing the legislations in the area
of cultural heritage of project countries, as well as of other European states.
The rules of domestic legislations will be weighed against the rules introduced
by international legal instruments in a world or a European context. Of course,
legislative approaches differ; they can be conservative or liberal, they can
have different priorities and be effective in different environments. In order
to address this interrelation of regulation and environment, the research
relies also on interviews with practitioners in the field of cultural heritage
who are most keenly aware of the problems they face and of the solutions that
may be applicable in the particular local context.
Legislative action in
a particular area always has its repercussions in other areas of law. Thus, a
cultural heritage regulation may have a direct influence on environmental,
urban planning, fiscal and other acts. Some of the proposed policies may have
implications in other areas that are considered undesirable by the legislator.
Therefore, the research paper will present a “menu” of measures and solutions
to current problems which could be adopted in their totality or selectively.
To this end, the paper will first outline the
current situation in the heritage protection area and the common issues that
project countries needs to address. After that it will review a number of
policy options for regulating four major areas. First, it will examine the scope of national and international
regulatory mechanisms in order to formulate a policy proposal for the approach
that a modern national legislation may choose in defining the scope of its
heritage legislation and the extent to which it could be codified. Further, it will dwell on the bodies,
responsible for the preservation and management of cultural heritage, the
proper allocation of powers between them and the degree of independence that
could allow central or local institutions to be most efficient. The paper will
then proceed to examining an issue that gains more weight with the development
of cultural tourism as means towards achieving sustainable development. This is
the issue of authenticity, which the present research sees as a value that is
endangered by the commercialisation of heritage. This discussion will be
followed by an examination of another issue which is of particular importance
in transition countries – that of financing of cultural heritage. Although all
jurisdictions face this problem, it is especially grave in transition
countries. In addition to the state financing mechanisms, special attention
will be given to the instruments allowing self-financing of cultural heritage
and its use as a resource for sustainable development.
II. Problem description
Cultural heritage
protection is not a completely novel issue for transition countries of
The Council of Europe
has adopted several conventions in the area of cultural heritage protection
that set the basis for modern regulation of this area in
In some countries this
has lead to numerous amendments to the specialised acts on cultural monuments
or the adoption of narrow-scope specialised laws. Thus,
Some of the project
countries are at a more advanced stage in the process of reforming their
legislation. They have already adopted new acts on cultural heritage protection
codifying this area of their law and introducing a broad definition of the term
“cultural heritage”. These new laws are the Serbian Cultural Goods Act of 1994,
the Croatian Law on the Protection and Preservation of
Cultural Property of 1999 and the Law on the Protection
of Cultural Heritage of the
Although the heritage of transition countries in
On the other hand, the laws for the protection of cultural monuments in
place provide for protection of these buildings against alterations, a fact
that does not make them a desirable investment for corporations. It turned out
to be wiser for businesses interested in owning a property in a specific area
to wait until the estate deteriorates beyond repair and is demolished instead
of investing into expensive and heavily regulated restoration. Thus adaptive
re-use of old buildings is more of an exception and even when undertaken, it
often follows a rather liberal conservation philosophy that is damaging the
authenticity of the site.
These
are just some of the many problems transition countries face in caring for the
cultural assets situated on their territories. While legal reform always leads
to a certain degree of destabilisation in society, the peoples of
III. Policy
Options
1. Scope and Definition of Cultural Heritage
Legislation
The first, most
general policy decision that needs to be made by a state when setting the
foundation of its cultural heritage legislation is the decision regarding the
definition of heritage. Heritage has been defined quite differently in national
legislations. These definitions have a direct impact on the scope of national
legislative instruments. Their scope, in turn, is revealing in itself since it
has implications for the depth of the act and the extent to which it delegates
specifics to regulations (that is to acts of the executive), as well as for the
interaction between the regimes of protection of types of heritage.
This research will
therefore explore the scope of different instruments concerning heritage and
will attempt to identify the different models that have been used in regulating
this area. In this process, the international and European instruments will be
examined first since they provide the conceptual framework of our understanding
of what heritage is. However, even though national legislation evolves based on
the heritage concepts found in international instruments, it usually does not
follow the same system and is wider in scope because of the broader functions
of domestic acts. Therefore, the paper will proceed to discussing the
approaches that national legislators have taken, the models they have employed
and, through this prism, the model that might be appropriate for Balkan
countries that still have to reform their legal system in the area.
1.1. UNESCO Instruments
1.1.1. UNESCO Convention concerning the
Protection of the World Cultural and Natural Heritage
The main, framework
instrument on cultural heritage protection is the UNESCO Convention concerning
the Protection of the World Cultural and Natural Heritage of 1972[7]
(The UNESCO Convention). In most general terms, the Convention calls for the
protection of monuments, groups of buildings and sites.[8]
According to the Convention, monuments include “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.”[9] The wording of the cited Article 1 (1) of the
Convention points to architectural works
and to structures whose nature is that of archaeological
heritage. In other words, the drafters of the World Heritage Convention have
focused on built heritage and its surroundings.
The Convention sets
out the duties of States Parties in identifying potential sites and their role
in protecting and preserving them. By signing the Convention, each country
pledges to conserve not only the World Heritage sites situated on its
territory, but also to protect its national heritage. The States Parties are encouraged
to integrate the protection of the cultural and natural heritage into regional
planning programmes, set up staff and services at their sites, undertake
scientific and technical conservation research and adopt measures which give
this heritage a function in the day-to-day life of the community.[10]
The UNESCO Convention creates the World Heritage Fund and defines the
conditions under which international financial assistance may be provided.[11]
It stipulates the obligation of States Parties to report regularly to the World
Heritage Committee on the state of conservation of their properties included in
the World Heritage List.[12]
It also encourages States Parties to strengthen the appreciation of the public
for World Heritage properties and to enhance their protection through
educational and information programmes.[13]
1.1.2. Convention for the Safeguarding of the
Intangible Cultural Heritage
A separate UNESCO
instrument, the Convention for the Safeguarding of the Intangible Cultural
Heritage of 2003[14]
(Convention on Intangible Heritage), provides protection to “practices,
representations, expressions, knowledge, skills – as well as the instruments,
objects, artefacts and cultural spaces associated therewith” that include oral
traditions and expressions, as well as language; performing arts; social
practices, rituals and festive events; knowledge and practices concerning
nature and the universe; traditional craftsmanship.[15]
To date, only twelve countries have ratified, accepted, approved or acceded to
that Convention; no project country is amongst these.[16]
Nevertheless, UNESCO is strongly promoting the convention and some countries
have already included in their national legislation rules that address
intangible heritage.
The Convention on Intangible Heritage lists the
measures that states shall take in order to protect the intangible cultural
heritage present on their territories. First, states shall identify the
elements of that heritage. This should be a participatory process involving
different communities, groups and relevant nongovernmental organizations.[17]
The involvement of such different communities is especially important since
ethnic or religious minorities’ culture, rituals, folklore, language may be
especially endangered. Once identified, the elements of intangible heritage
shall be included in inventories, which shall be updated regularly.[18]
Further, governments shall promote the function of the intangible cultural
heritage in society, and integrate the safeguarding of such heritage into
planning programmes.[19]
In terms of capacity-building, the convention provides that specialised bodies
shall be responsible for this heritage.[20] Another measure that is envisioned by the
Convention is the fostering of studies and research methodologies with a view
to effective safeguarding of the intangible cultural heritage, in particular
the intangible cultural heritage in danger.[21]
Governments shall also ensure expression of and access to the intangible
cultural heritage while respecting customary practices governing access to
specific aspects of such heritage.[22]
The Convention also proclaims states’ obligation to build awareness of the
importance of this type of heritage and the dangers to it.[23]
Additionally,
inspired from the success of the list created under the World Heritage
Convention, a Representative List of the Intangible Cultural Heritage will be
established. This List will have a major role in ensuring better visibility of
the intangible cultural heritage, in increasing awareness of its significance
and also in encouraging dialogue that respects cultural diversity.[24]
The future Intergovernmental Committee will draw up the criteria governing the
establishment, updating and publication of this List.
Although these two
UNESCO Conventions are quite general and devote a large part of their texts to
international activities and assistance, they contain the fundamental
principles of any heritage protection law. They define two different, very
important types of heritage; they also emphasize the importance of creating
inventories for heritage assets. Both conventions require the states to create
specialized bodies for heritage management and to ensure the cooperation
between these bodies. In the case of tangible heritage, this cooperation is
referred to as integrated protection as it necessitates integrating protection of the cultural and natural heritage
into regional planning programmes. The two conventions consider awareness
building a very important element of caring for cultural heritage. All of these
principles need to be the minimum standards that countries adhere to in framing
their legislation in the field.
1.2.
Council of
The Council of Europe
(COE) takes a more focused approach when defining heritage. While the UNESCO
Convention encompasses all built heritage, the COE has regulated separately
architectural and archaeological heritage in the Convention for the Protection
of the Architectural Heritage of Europe of 1985 (the Granada Convention)[25]
and the European Convention on the Protection of the Archaeological Heritage as
revised in 1992 (the Valletta Convention)[26],
respectively.
1.2.1. Convention for the Protection of the
Architectural Heritage of
Under the Granada
Convention architectural heritage includes: 1) monuments: all buildings
and structures of conspicuous historical, archaeological, artistic, scientific,
social or technical interest, including their fixtures and fittings; 2) groups
of buildings: homogeneous groups of urban or rural buildings conspicuous
for their historical, archaeological, artistic, scientific, social or technical
interest which are sufficiently coherent to form topographically definable
units; 3) sites: the combined works of man and nature, being areas which
are partially built upon and sufficiently distinctive and homogeneous to be
topographically definable and are of conspicuous historical, archaeological,
artistic, scientific, social or technical interest.[27]
Similarly to the
international instruments discussed previously, the Granada Convention mandates
that parties shall keep inventories of their architectural heritage.[28]
To protect such buildings and sites the states shall introduce legislation
which: requires competent authority’s approval of any schemes for the
demolition or alteration of monuments or sites, as well as any scheme affecting
their surroundings; permits authorities to require the owner of a protected
property to carry out work or to carry out such work itself if the owner fails
to do so; and allows compulsory purchase of a protected property.[29] Where
offences have been committed that compromise the integrity of architectural
sites, authorities shall be prepared to take appropriate measures, including
demolishing a newly erected building which fails to comply with the
requirements or restore a protected property to its former condition.[30]
The Granada Convention prescribes that architectural monuments shall preferably
be preserved in situ and removed only
if necessary.[31] In
terms of providing the funds for the physical survival of architectural
heritage, parties to the convention shall provide financial support for
maintaining and restoring the architectural heritage, including by resorting to
fiscal measures to facilitate the conservation of this heritage.[32]
In order to maximise financial support for such sites, states shall encourage
private initiatives for maintaining and restoring the architectural heritage.[33]
With a view to limiting the risks of the physical deterioration of the
architectural heritage, each Party undertakes to support scientific research
for identifying, analysing and minimizing the harmful effects of pollution.[34]
Parties to the Convention undertake to adopt policies which integrate
conservation into all stages of town and country planning, as well as with
environmental protection.[35]
To preserve the authenticity of properties, states are obliged to foster
the application and development of traditional skills and materials.[36]
The conservatism in any changes to heritage assets however, is combined with an
encouragement of the use of protected properties for the needs of contemporary
life (living heritage) and the adaptation when appropriate of old buildings for
new uses (adaptive re-use).[37] Public
access to protected properties shall be permitted while ensuring that it
does not adversely affect the architectural and historical character of such
properties and their surroundings.[38]
The Granada Convention recognizes the importance of creating public
awareness of the value of conserving the architectural heritage.[39]
1.2.2. European Convention on the Protection of
the Archaeological Heritage
The other fundamental
COE instrument, the Valletta Convention, regulates archaeological heritage. It
covers all remains and objects and any other traces of mankind from past epochs
1) the preservation and study of which help to retrace the history of mankind
and its relation with the natural environment; 2) for which excavations or
discoveries and other methods of research into mankind and the related
environment are the main sources of information.[40]
The convention specifies that 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.[41]
The Valletta
Convention again provides for the maintenance of an inventory of all
archaeological remains.[42]
The Convention identifies also some basic measures for the protection of
archaeological sites such as: state’s authorization and supervision of all
excavations; utilization of scientific methods of excavations, including
prohibitions of the use of destructive methods and uncovering and display of
findings without the prior taking of protective measures; introducing special
authorization procedures for the use of metal detectors.[43]
Similarly to the Granada Convention, preservation in situ is again the
preferred method.[44]
The Valletta Convention also emphasizes the principle of integrating the
protection of archaeological heritage into planning and development.[45] A
specific tool of integrated protection that is discussed in the convention is
the environmental impact assessment that shall include consideration of
archaeological sites and their surroundings.[46]
The funding of archaeological heritage is discussed in much the same way like
that of architectural heritage, with attention to the need to attract both
public and private funds.[47]
The importance of public awareness on these issues is again stated.[48]
Certainly, the
1.2.3. Other COE Instruments
Being quite focused on
two distinct types of heritage assets, these two conventions leave out of their
definitions other immovable cultural assets such as cultural landscapes and
historic parks and gardens. The Council of Europe has, however, given much
attention to various aspects of heritage protection in other instruments such
as the European Landscape Convention[49]
and the numerous recommendations and resolutions it has issued. Thus the
European Landscape Convention provides protection to landscapes in the sense of
areas, “as perceived by people, whose character is the result of the action and
interaction of natural and/or human factors”.[50]
This concept is comparable to the so-called “mixed properties” inscribed in the
UNESCO World Heritage List, which represent a relatively new trend in the
inscription practices. Through this trend, it is acknowledged that in certain
cases a site cannot be viewed as solely natural or cultural but as owing its
value to the combined work of man and nature.
The recommendations
and resolutions issued by the COE examine in further detail the various aspects
of heritage protection. Many of them represent the trend to shift the attention
from the individual monument to assets that are broader in scope and have a
bearing on the atmosphere of European towns and regions, on the connection
between heritage and its environment and on the use of these assets as a
resource for sustainable development. Some of these instruments are:
Recommendation on the promotion of tourism to foster the cultural heritage as a
factor for sustainable development (2003/1); Resolution on the cultural routes
of the Council of Europe (98/4); Recommendation on measures to promote the
integrated conservation of historic complexes composed of immoveable and
moveable property (98/4); Recommendation on the integrated conservation of
cultural landscape areas as part of landscape policies (95/9); Recommendation
on the measures likely to promote the funding of the conservation of the
architectural heritage (91/6); Recommendation on the protection and
conservation of the industrial, technical and civil engineering heritage in
Europe (90/20); Recommendation on the protection and enhancement of the rural
architectural heritage (89/6); Recommendation on urban open space (86/11); etc.
While these instruments will not be discussed in detail herein, their topics
are telling of the ever expanding scope of the contemporary understanding of
heritage. This expanding scope sets certain higher expectations before national
legislation that aspires to be cognizant of all assets that have cultural and
historical value.
1.3. National Legislative Instruments
The high degree of
specificity of international instruments contrasts, however, with the tone of
most domestic legislation. Indeed, as reviewed above, most international
conventions would cover a specific type of heritage asset, be it built heritage
or, even narrower, only archaeological heritage. Unlike international
instruments, national ones tend to be much less fragmented and have broader
scope. This is only natural since the objectives of national policies in the
field of heritage are easier to synchronize as opposed to attaining a consensus
on the international arena.
A review of specific
national legislations can distinguish between several different types of
approaches to defining heritage. These will be reviewed below.
1.3.1. National Acts with a Narrow Scope
(similar to that of individual COE Conventions)
The approach of the
1.3.2. National Acts Covering both Movable and
Immovable Heritage
A wider category of
instruments comprises those regulating both movable and immovable heritage.
Such instruments sometimes include the legislative framework of museums, as
well as, more rarely, of galleries. Such are, for example, the legislation of
There is a debate
amongst heritage practitioners on whether museums shall be regulated in the
same instrument where build heritage is addressed. Some argue that such
approach will necessarily affect the balance between both types of institutions
and, consequently, preference will be given to one of them, depending on the
group of practitioners that have a stronger lobby at the time of adoption.
Also, it is argued that such a law regulating roughly two groups of heritage
will not be able to go into sufficient detail and reflect the specificity of
the different types of regulated areas. As a consequence, it would be
superficial and would delegate much authority for preparing regulations to the
executive, which is, almost by definition, concerned with short-term
priorities.
There are however
opinions to the contrary. When the rules on museums are separated from the
rules governing other types of heritage, clashes and discrepancies between the
rules of different acts emerge much more often. Museums naturally need to
coordinate with the bodies responsible for archaeological and architectural
heritage, often times they work together in studying a particular site and
determining whether the objects found there are best preserved in situ or whether these shall be moved
to a museum. The museums are also places that have a staff specialised in
restoration and conservation work. Limiting the work of these specialists only
to objects kept in museums would represent a waste of extremely valuable
resources.
Therefore, this paper
takes the position that it is preferable to regulate museums and built heritage
in a single act. The countries where a fragmented approach is used follow
established tradition and build on long-functioning bodies that operate under
clear separation of responsibilities (as is the case in the
1.3.3. National Acts of Broad Scope
Another category of
quite contemporary acts, such as those of Spain, Hungary, Serbia cover, in
addition to movable and immovable assets, documentary and bibliographic
heritage. This is indeed a considerable increase of the scope of heritage acts.
Under the Serbian Cultural Goods Act of 1994, for example, protected materials encompass all archives on paper,
computer, film or video records, photographical and phonographic materials,
registries of such materials, as well as microfilms thereof that have been
produced by the bodies of central or local governance, other organisations or
religious institutions.[59]
It contains rules that, in other countries’ legislation, would be found in the
laws on libraries, as for example the obligation to all publishers to deliver
to the National Library of Serbia 10 copies of each single publication.[60]
Also, all local film producers are obliged to deliver a copy of each film they
release together with all supporting documentation to the Yugoslavian Films
Collection in
Because of their broad
scope, such acts very often do not include institutional provisions, they do
not determine what shall be the organizational structure and hierarchical place
of the responsible bodies, and do not provide a clear picture of the way in
which they may have to interact. Apparently, these matters are regulated by
other laws. Still, this type of regulation could be problematic in certain
respects. For example, if the internal structure of the bodies responsible for
heritage is set by the executive, they may not have reasonable institutional
autonomy or the type of connections between them may not allow for implementing
the principles of integrated protection as described in international acts.
Nevertheless, such
broad laws often manage to outline very clearly the structure of heritage
protection in the country and also contribute to creating an awareness of all
these assets as part of the national heritage. Therefore, while it is up to
every country to decide whether it needs to have a detailed discussion of the
structure of the institutions responsible for heritage in the heritage law
itself[62],
such a broad scope of the law may, for transition countries, represent a
holistic approach for reforming the entire system in a consistent way.
1.3.4. All-encompassing National Laws
When addressing
cultural heritage, some states choose to codify their legislation by adopting a
single framework instrument addressing the broadest possible scope of assets
and values. Thus, heritage may be seen as including the artefacts that make up
movable and immovable cultural monuments, the records regarding these
artefacts, the so-called memory places that, although not possessing some
special features, are related to individuals or events that have played a
significant role in the history of the nation, the documentary and
bibliographical assets discussed above, as well as the intangible heritage
comprising language, dialects, toponyms, folklore,
rituals, legends and traditional practices. As intangible assets, have been recognized as worthy of protection
rather recently, it is indeed only a handful of states that have incorporated
protection of these in their domestic legislation. Where states have such
provisions, they usually follow the rules of the UNESCO Convention of
Intangible Heritage discussed above.
Some of the countries
that have such all encompassing laws are
Therefore, although
the modern approach of such national laws deserves acclaim, it is important
that the broad categories of assets that they cover are protected not only in
theory but also in practice. As soon as such countries’ budgets are prepared to
invest into capacity building for real protection of intangible heritage, they
should consider adding more detail to their regulation.
1.4. Some specifics of heritage definitions
As the scope of
national heritage instruments has been expanding, so have the definitions of
different types of cultural valuables. National laws often reflect the
development of worldwide understanding of heritage by covering assets or
aspects of such assets whose value gained international recognition relatively
recently.
1.4.1. Protection zones
Valuables like built
heritage have historically received much attention but nowadays their
protection is being expanded to include not only individual objects and sites
but also their surroundings. The trend towards extending attention to the
environment of the monument has been visible in a number of European national
policies. In the light of this trend, when discussing the definition of
cultural assets it is necessary to consider the regime of their immediate
surroundings. Many national laws or regulations provide for protection zones
around monuments or sites. These may include zones in a fixed radius around the
monument as in France where protective measures are extended to a 500-metre
radius around the monuments[63];
such zones may also be determined on a case by case basis as in Belgium where
the zone is always identified with the protected asset on a map appended to the
protection order[64];
or, as is the case with the Czech republic, a protection zone need not be
defined in any case but is designated if necessary[65].
In the Balkan region,
the
Whatever approach is chosen by a national law, it needs to make sure
that the authorities are provided with clear guidelines as to the cases when
such zones need to be designated, the purposes they are going to serve and the
protection measures applying to them.
1.4.2. Perceived remains
In respect of
archaeological remains, protection is being extended not only to listed or
otherwise recognised properties but also to perceived remains that may be the
result of chance discoveries. [67]
The protection of perceived archaeological remains has a special significance
in the transition countries in the Balkans. These lands have been the home of
many cultures and are very rich in archaeological assets, large parts of which
remains undiscovered. When the state lacks resources for systematic
conservation of these sites, treasure hunters often step in, performing
large-scale illegal excavations and plundering ancient troves. The damage is
completed by construction entrepreneurs who fail to report discovered remains
for fear of endangering their investments. Where these are reported, the
decision-making process is oftentimes unclear, procedures are slow and
burdensome and responsibilities vague.
Usually such perceived
remains are protected through rules for temporary protection. According to them,
chance discoveries and other assets that may have cultural value shall be
subject to protection until the competent authority makes a pronouncement on
whether they shall be given a permanent protected status. It is important that
the laws and regulations set deadlines for such final pronouncements as
otherwise investment projects may suffer serious delays and, as a consequence,
financial damage. According to some national laws it is the investor that bears
the financial burden for preserving the remains (
Obviously, builders have a reason to close their eyes to perceived
archaeological remains. All underground archaeological remains belong to the
state but the terrains themselves may be owned by private persons. In case the
chance discovery turns out to be a valuable object that needs to be preserved in situ, possibly with public access to
it ensured, the site may even have to be expropriated. In addition, even if the
property is not expropriated and the construction works continue, the delay
would still be very costly. That is why, if the investor bears the cost even
for the preliminary research and is not reimbursed for the delay, the prize
provided in case the discovery turns out to be valuable is hardly an incentive
for reporting.
As mentioned above,
the Valletta Convention requires that environmental impact assessments (EIA)
take into consideration archaeological heritage. In
For these reasons, it
is recommendable that national legislation introduces very specific provisions
on these matters. Archaeological remains should not be only a marginal concern
for EIAs (as is the case when these are regulated in a law with a completely
different subject) and should certainly be considered at a preliminary stage of
all building works in cities that have a wealth of heritage. Additionally,
reporting on the side of investors should be encouraged by the state through
reimbursing the expenses for preserving the finds while the research continues.
On the other hand, strict sanctions shall be provided for non-reporting.
1.4.3. Parts of structures
Different national definitions of
heritage assets may answer or fail to answer some quite specific questions. One
issue that needs to be considered is whether, in case of buildings, the
protective regime shall always apply to the building as a whole or may cover
just its façade, as well as whether the movable items inside the
building are protected together with it or as separate movable assets. In
addition, some legislation, such as that of Walloon region of
1.4.4.
Classifications
Different types of heritage were discussed above with regard to
international and European instruments as well as with regard to the scope of
national legislation. Indeed, many kinds of classifications of heritage are
often spelled out in national laws. Yet, one specific kind of distinction that
has not been discussed yet is that relating to the importance of different
assets. National laws often have this type of distinction in their definitions
of heritage. Such distinction could be drawn out in several ways.
Countries like
The laws of
The Macedonian Act
also has the above kind of categorisation but, additionally, it follows more
closely the UNESCO convention by introducing the category of heritage in
danger.[78]
It also specifically regulates the procedure for nominating properties for the
World Heritage list which is an omission of the other acts.[79]
Indeed, it is advisable for this procedure to be specifically regulated or it
may be compromised by short-term political interests. As the inclusion of a
property in the World Heritage list immensely increases the flow of tourists to
that area, Members of Parliament and other influential figures associated with
specific regions may get engaged in advocating for particular areas’
applications to the List disregarding the real historical values of the asset.
As mentioned earlier, classification in terms of importance has an
information value but the aim of such classifications is not to simply label a
cultural heritage asset. Therefore, to serve a worthwhile function, such
classifications shall be related to the specific level of protection that each
of these categories corresponds. Thus they can also play a function in ensuring
the most efficient use of the scarce state resources in determining priority in
monuments’ maintenance.
1.5.
Conclusion
1.5.1. Scope
The outline of
different scopes of protection demonstrates certain trends. Older legislative
instruments as these of Britain, Belgium, France, Bulgaria, etc. take a more
fragmented approach whereas almost all young democracies or countries
introducing radically new regulation of the area, such as Malta, Hungary,
Spain, Serbia, Croatia, the Republic of Macedonia, opt for integrated
instruments encompassing the widest varieties of cultural assets.
It seems that three
countries in the Balkan region have already made their choice of approach in
regulating heritage. Others have yet to make it. In taking that decision, the
scope of their neighbours’ legislation is certainly not irrelevant. In a future
Another reason that
seems to support a development where the approach of already reformed
legislations is adopted by neighbours is the progressiveness of this approach.
Indeed,
An added benefit of
the codification of all rules concerning various heritage assets in a single
legislative instrument is the ease of application that this approach brings.
Heritage practitioners who are most often non-lawyers would be assisted by
being able to consult a single framework instrument that regulates the entire
area. This would also reduce the risk of contradictory rules and overlapping or
unclear separation of functions between various state bodies that may arise
with the regulation of a field by a number of acts of the same rank
A legislative approach
that recognises all heritage assets as equally important by regulating them in
an overarching act has important educational implications. In a society that
lacks sufficient awareness this could build up understanding of the various
values that make up national identity. For all these reasons the present paper
takes the position that new
1.5.2. Some
particular aspects of the definitions
In crafting the definition of the different types of heritage that it
regulates the state shall make sure that it does not omit important aspects of
otherwise protected assets. It needs to regulate broadly the types of heritage
and classify them in a manner that facilitates the work of heritage
practitioners. In this process it would be useful to consider including in the
definition some newer categories of assets such as cultural landscapes,
cultural routes, historic complexes composed of immoveable and moveable
property, industrial, technical and civil engineering heritage in
Protection zones shall definitely be discussed by the law and while a
specific radius around every immovable asset may not be a good idea, it should
be made clear what the criteria are for determining such protection zones. In
this determination issues like viewpoints to the site or preserving its local
character from commercial signs and other defacing, may be taken into
consideration.
As regards archaeological heritage, perceived remains shall receive
attention, whether in the definition of heritage itself or in the discussion of
the temporary measures for protection. Certainly conditions need to be created
in which investors are not discouraged from reporting chance discoveries.
Preliminary attention to the possibility of discovering archaeological remains
during construction works may minimize the risks to investments.
2. State
Authorities Responsible for Heritage
One of the main questions that national heritage
legislation needs to answer is the one regarding the authorities that will
carry the primary responsibility for applying the law and preserving cultural
heritage. These authorities need to need to be instituted in a way ensuring as
little influence of short-term political and economic interests, as practically
possible. They also need to possess significant subject-matter expertise in the
different heritage areas. Additionally, the state needs to consider the
distribution of competences among local and central authorities as this has
been one of the most contentious issue in the field. Once these questions are
answered, legislation needs to ensure the synergies in the work of heritage,
planning, and environmental authorities so as to comply with the principle of
integrated conservation.
In order to outline the policy options in these
several areas, the present paper will first examine the requirements of
international instruments in the field. Then it will proceed to reviewing the
requirements of European legislation. After examining multinational
instruments’ approaches, the paper will explore various national provisions
regulating the status and structure of authorities responsible for heritage. In
the end of the section, policy recommendation will be made for the national
regulation of this issue in the transition countries if
2.1. UNESCO
Instruments
The UNESCO Convention does not dwell in much detail on
state authorities dealing with heritage. Still, it stipulates that “one or more
services for the protection, conservation and presentation of the cultural and
natural heritage with an appropriate staff and possessing the means to discharge
their functions” shall be set on the territories of Member States.[80] Thus, in order to comply
with the convention, the state not only has to provide for specialized
responsible authorities in its legislation, which each one of the project
states has done in one way or another, but needs to also make sure that these
authorities possess sufficient institutional capacity in order to implement the
tasks assigned to them.
The Convention on Intangible Heritage mandates that
Members States shall “designate or establish one or more competent bodies for
safeguarding the intangible cultural heritage”.[81] The use of the verbs
“designate or establish” leads to the conclusion that the bodies may either be
existing one, which shall be assigned yet another function, or new ones,
devoted solely to this specific type of heritage. Additionally, the instrument
stipulates that states shall set documentation institutions for intangible
heritage.[82]
2.2. Functions
of State Authorities as Outlined by European Instruments
Each one of them being much narrower in scope, the
European instruments contain more detailed provisions on the functions of
bodies for heritage protection. There are a
number of specialized activities described in the
First, heritage authorities shall be responsible for
identifying heritage assets.[83] Usually, the specialized
heritage body is not solely responsible for proposing and assigning protected
status to properties. In order to avoid improprieties most countries have
separated these functions by tasking the specialized institution with giving
proposals and opinions and leaving the final act to a superior body. In order
to adequately perform this function, state authorities need good knowledge of
the legal grounds and procedures for protecting an asset and especially of the
specific field be it archaeology, architecture, intangible heritage, etc. The expertise
authorities need in order to perform their function can be obtained either by
retaining employees with the requisite skills or through an institutionalized
relationship of these bodies with specialized academic and other organizations
that have such knowledge. It has to be noted however that where outside
organizations are being consulted, it is very important to avoid any conflicts
of interests that may arise.
Secondly, heritage authorities need to maintain and
regularly update heritage inventories.[84] Nowadays there is a trend
towards digitizing these inventories and ensuring unrestricted public access to
them. However, even if a state cannot afford to promptly ensure the resources
needed for digitizing them, they should be updated regularly and accessible
easily.
Third, heritage authorities shall be responsible for
giving a number of permission necessary in order to carry out many kinds of
interventions mandated by laws such as excavation, restoration, conservation,
and repair.[85]
These need not only be reviewed and authorized on a case-by-case basis but the
works also need continuous supervision. In terms of institutional capacity,
this is perhaps the most challenging task for heritage authorities as their
experts need to again possess very specific expertise but also to cover the
whole country. This has turned out to be perhaps the most challenging task with
a view to the resources needed.
Forth, heritage authorities need to carry out a sui generis regulatory function that is
closely connected to their supervisory functions. Especially as regards the
requirements for restoration of protected assets, these can never be covered in
detail by law or by regulations. There needs to be however more or less
consistent practice and approach in restoration and other works on heritage.
Therefore in many countries heritage authorities issue guidelines that inform
practitioners of the technical aspects of the principles of conservation upheld
by the specific supervisory institution.
Fifth, these bodies have important functions related
to the collection and dissemination of scientific information.[86] This includes the
preparation of maps, surveys, records of findings, analyses, e.g. on the
effects of pollution on heritage, etc. Part of these reporting functions will include
the preparation of reports for the purposes of the country’s membership in
international organizations such as UNESCO. Another part will be related to
education the public on the importance of heritage, an obligation of states
that is emphasized by most international conventions.[87]
Yet another function of heritage authorities is the
planning one. They should be responsible for preparation of the programs for
safeguarding the heritage on their territories, even if a superior body
ultimately adopts the program.
Seventh, in supervising the implementation of the
various rules of national legislation, heritage authorities shall have the
responsibilities of sanctioning offenders.[88] These sanctions may
include obliging the person to repair a damage say through restoring a property
to its former condition; they may also include the imposition of a fine.
Sufficient personnel is again required to carry out these functions, since if
no enforcement of prohibitions is carried out, the citizens may well start regarding
these rules as facultative. In addition, in some countries the fines and fees
collected pursuant to heritage laws are used for funding heritage activities.
This is just one more reason to make sure that these fees and fines are being
collected.
The eighth function of heritage authorities is to
participate in the process of consultations with planning, environmental and
other concerned bodies so as to ensure that conservation is being carried out
in an integrated manner. The process of integrated conservation is described in
some detail in the European conventions. The Valletta Conventions mandates that
archaeologists participate in the various stages of development schemes, that
they are being consulted on a number of issues such as the necessary time for a
scientific study of a site and all modifications of development plans.[89] The
The above functions should be implemented by one or
more bodies. It is interesting to examine the way different national
legislations have regulated the structure of and the connections between these
bodies. The review of such national approaches below will dwell mostly on the
authorities implementing the above functions and not so much on the additional entities such as museums,
galleries, separate sites, institutes, libraries, etc. that have a stake in
heritage preservation.
2.3. National Approaches
National
approaches in regulating the functions of state authorities responsible for
heritage may differ in several aspects. First, the structure of and the
interactions among heritage authorities may be comprehensively regulated by the
framework heritage protection act or such regulation may be delegated to lower
level acts of the executive. Secondly, there may be one main body carrying out
almost all of the above functions or there may be a number of bodies, each
performing specific functions. Thirdly, there might be various models of
division of functions between local and central authorities. Some specific
national models will be discussed below with a view to identifying solutions
appropriate for the transition countries of
2.3.1.
Maltese
cultural heritage legislation is very interesting and specific, especially as
regards the regulation of heritage authorities.
Several
authorities are responsible for heritage protection in
Perhaps the
broadest set of functions is assigned to the Superintendence of Cultural
Heritage, under the responsibility and management of the Superintendent of Cultural
Heritage. The Minister appoints the Superintendent for a period of not more
than five years under such terms and conditions as established in his letter of
appointment.[93] The
fact that in an act as simple as a letter of appointment the Minister has the
discretion to set any conditions to the Superintendent’s employment is pretty
surprising. Obviously, regardless of the numerous functions of the
Superintendent the Minister is actually the truly strong figure in the
management of cultural properties in
Another
body to which the law assigns functions is the “Heritage
An expert
body responsible for restoration is the
Yet another
body with responsibilities in the heritage area in
A Board under
the Minister, known as Board tal-Warrant
tar-Restawraturi, is
responsible for licensing conservation professionals and for ensuring the high
quality of professional training in the heritage area.[101]
The Board approves all academic institutions that may provide such trainings
and keeps a registry of all licensed professionals.
Last, cultural
property belonging to the Catholic Church, including to Catholic Religious
Orders, and destined or used for religious purposes fall under the exclusive
regulation and superintendence of the Catholic Cultural Heritage Commission to
be appointed every two years by the President of the Malta Episcopal
Conference, and to consist of not less than five experts one of whom shall be
so appointed after consultation with the Minister.[102]
As in Malta historically the Catholic
Church has had a very strong influence, it is not surprising that it has full
authority over its properties regardless of the general rules applicable to all
other heritage. Yet, in more secular states such an arrangement is not common
and the church, albeit having some privileges, is generally treated as a
regular owner of protected assets.
As
demonstrated by the review of its legislation,
2.3.2.
In Greece
cultural heritage protection is governed my two main laws: Law 5351 on
antiquities covering all heritage monuments created before 1830 and Law
1469/1950 covering buildings and settlements created after 1830.[103]
The structure of the authorities responsible for heritage however is not
determined in these laws but in Presidential Decree 941/77 “on the structure of
the Ministry of Culture and Sciences.” Under this decree the two categories of
heritage protected by the two above laws are managed by two Directorates of the
Ministry: the Directorate General of Antiquities and Restoration and the
Directorate General of Cultural Development. As the main structure responsible
for the majority of monuments on the
Another
specific group of bodies are several committees responsible for specific
important sites such as the Committee for the Maintenance of the Acropolis
Monuments. These committees are again subordinate to the Minister of Culture
and Sciences.
Regardless
of the somewhat arbitrary division of monuments into two categories based on
their being created before or after a certain year and the respective division
of responsibilities between two directorates,
2.3.3.
The
competencies of the Office include the keeping of the inventory, the
preparation of all documents related to the assigning of protected status
(although it is not the Office itself that assigns such status), the management
of heritage in state ownership, supervision of the conservation processes, etc.
The Cultural Heritage Protection Office of the
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For
specific activities the Office may also retain outside experts.
Another cultural
heritage protection body in
The
advisory body on heritage in
Since the
Macedonian law is very broad, it also provides for a number of bodies
responsible for specific types of heritage such as museum institutions, library
institutions, films institution, etc. The museum and library institutions
include a number of local entities that are responsible for heritage in their regions.
However, there are certain managerial and coordination functions that are
assigned to the biggest, central respective body in
Since
Macedonian law is very broad in scope the structure of the bodies it provides
for may seem quite complex. However, as regards the specific functions outlined
in the context of European instruments, it really has three main bodies – the
Office, the
2.3.4.
The
legislation of
In
Another
body with important functions in
The museums
are the bodies responsible for movable monuments and the registry of such
monuments is kept by the
Obviously
the legislation in
2.4. Conclusion
It can be concluded
that in establishing the authorities responsible for cultural heritage the
state shall take into consideration several issues. First, it should make sure
that regardless of the structure of and connections among these authorities the
functions covered by the European conventions are assigned to a responsible
body and that this body has the administrative capacity to perform them
effectively.
Secondly,
although in states with pronounced regional autonomy like
Thirdly,
the heritage institution should have a certain degree of independence from the
Minister of Culture. Even if the Minister has plenty of powers in respect of
the heritage authority, its director should not be hired and fired by the
Minister and should have a mandate of different length from that of the
governments so that it could develop as an experts and not as a political
position. It is recommendable that the functions of the institution, as well as
its general structure are outlined in the law itself and not in acts of the
executive so as to ensure stability of this body.
Fourth,
some of the scientific, academic, promotional functions related to heritage
could be assigned to another body that includes the academic community of the
country, prominent heritage activists, etc. Its functions however have to again
be clearly delineated from those of the principal heritage authority.
Fifth, in many countries there are advisory councils that include all institutions concerned with heritage. They participate in the development of national strategies for heritage conservations, from time to time have a watchdog role in respect of the work of other heritage bodies and, where there are specialized Funds for providing subsidies, grants and other monies for heritage projects, these councils may be involved in that. The presence of this body brings the necessary democratic element in heritage protection and safeguards the system against encapsulation.
3. Authenticity
One of the gravest
problems related to the preservation of heritage nowadays pertains to the
proper balance between allowing for adaptive re-use of heritage assets and
preserving their authenticity. Quite
fashionable as the concept of “living heritage” may be, it often comes at the
cost of “letting merchants into the temple”. Commercial interests and pop
culture shape historical towns and sites in most undesirable ways. It is
therefore important to discuss the concept of authenticity of heritage sites, the
state’s role in preserving it and policy makers’ understanding of it. For the
purpose of the present research it is also necessary to explore the legislative
tools used to regulate conservation philosophies and their link to
authenticity.
To this end, the paper
will first examine the international documents regulating authenticity and
related matters as the term authenticity is relatively new and is closely
related to these documents. Thus the research paper will place the term
authenticity in context and will flesh out its relation to conservation and
restoration philosophies. Secondly, the theories of restoration and
conservation will be examined. The outline of these theories will allow a more
informed discussion of the national practices in respect of conservation and
legislation. In the end, policy proposals for the transition countries of
3.1. International Instruments
3.1.1. UNESCO
The need to constantly
monitor the state of heritage sites was formally recognized by UNESCO
Explanatory Notes on the State of
This requirement of UNESCO naturally calls for the
setting of standards as to what conservation philosophy is approved and, if
need be, enforced by the state. UNESCO’s documents however do not contain such
standards and leave it to the states to form their policies in the area and to
ad hoc experts committees to decide, on a case-by-case basis whether a site is
properly maintained or whether it has deteriorated. Other international organisations
however, have tried to unify world conservation practices by spelling out
standards to serve as guidelines for national rules of law governing the matter
of conservation and, especially, for practitioners in the area and for the
supervisory bodies that enforce the laws relating to conservation standards.
3.1.2. ICOMOS’ and
Other Specialised Instruments
Generally, the goal of conservation is the
preservation of the authenticity of the heritage asset. Therefore, the
international instruments that set out the principles of conservation are
concerned with authenticity. Authenticity
as a value is discussed in several fundamental documents. The Athens Charter
for the Restoration of Historic Monuments of 1931 set the basic principles of
heritage preservation. It was followed by the Venice Charter for the
Conservation and Restoration of Monuments and Sites of 1964.[108]
ICOMOS was founded a year later on the basis of that Charter. The ICOMOS Nara
Document on Authenticity of 1994[109]
spelled out some of the theoretical concepts of the Venice Charter enriching
them with an appreciation for the cultural diversity that influences different
communities’ attitude to heritage. These ICOMOS instruments were followed by an
EEC initiative - the Charter of Krakow on the Principles for Conservation and
Restoration of Built Heritage of 2000[110].
Even though this is a European instrument, lots of non-European countries such
as the
First, it is important
to explore these instruments’ understanding of authenticity. The Venice
Charter contains this term only in its preamble which proclaims the duty of
states to hand cultural monuments on to the future generations in the full
richness of their authenticity. As this statement is found in the very first
paragraph of the Charter, authenticity seems to be the aim of all other
specific provisions of that instrument. The Venice Charter advocates for a
highly scientific approach in conservation and restoration works[111]
and regards monuments not only as works of art but also as historic evidence[112].
Consequently, although no specific definition is spelled out, it seems to
interpret authenticity as strict adherence to historical truth in the
preservation of monuments. The Nara Document on Authenticity also
includes no specific definition of this term. It is safe to assume however that
it agrees with the Venice Charter by stating that knowledge and understanding
of credible sources of information, in relation to original and subsequent
characteristics of the cultural heritage, and their meaning, is a requisite
basis for assessing all aspects of authenticity.[113]
The Krakow Charter provides a specific definition. According
to it, “[a]uthenticity means the sum of substantial, historically ascertained
characteristics: from the original up to the current state, as an outcome of
the various transformations that have occurred over time.”[114]
Obviously, the three definitions have a common focus on credible historical
sources. Also, every subsequent documents places even stronger emphasis on the
subsequent characteristics of assets, on the changes that have occurred over
time that is on the historical layers of the site and even the relatively
contemporary features it may display.
Another set of
definitions that are present in these documents are those of conservation
and restoration. The Venice Charter again does not define these terms but
discusses them in two separate Chapters. According to the provisions on conservation,
this process shall follow some basic principles: it shall be done on a
permanent basis; it shall allow for adaptation of the monument for a socially
useful purpose (adaptive reuse); where possible, the monuments shall not be
moved (i.e. they shall be preserved in situ). Restoration must also
adhere to some fundamental rules: it shall be preceded and followed by an
archaeological and historical study; preference shall be given to the usage of
traditional techniques; the contributions of all periods to the monument (i.e.
the historical layers) shall be preserved; the replacement of missing parts
shall be distinguishable from the original. Although it is clear from the
Venice Charter that restoration implies more intervention than conservation, it
is unclear what the relation between the two activities is.
The Krakow Charter fills
this gap by providing a definition of the terms. It clarifies that “[c]onservation
is the complex of attitudes of a community that contributes to making the
heritage and its monuments endure. Conservation is achieved with reference to
the significance of the entity, with its associated values.”[115]
Thus, while in the Venice Charter conservation is a specific activity, under
the Krakow Charter it is the very aim of heritage preservation. This is spelled
out in the latter instrument in the following provision:
The conservation of this heritage is our aim. Conservation can be
realised by different types of interventions such as environmental control,
maintenance, repair, restoration, renovation and rehabilitation.[116]
Apparently, the Krakow
Charter sees restoration as just one way in which conservation can be done. Actually,
according to the Charter, conservation shall be implemented “by the project of
restoration”[117].
Restoration is defined as “an operation directed on a heritage property, aiming
at the conservation of its authenticity and its appropriation by the
community.”[118] This
definition is quite general and unclear. Its deficiencies are somewhat compensated
by other provisions of the Charted which shed more light on the way in which to
achieve authenticity. According to them, the `restoration project` “should be
based on a range of appropriate technical options and prepared in a cognitive
process of gathering knowledge and understanding of the building or site. This
may include traditional and subsequent new materials, structural
investigations, graphical and dimensional analysis and the identification of
historical, artistic and socio-cultural significance. All pertinent disciplines
have to participate in the restoration project and the co-ordination should be
carried out by a person qualified and well trained in conservation and
restoration.”[119] This
relatively vague provision sets out the basic concept of restoration. It shall
be a highly scientific process based on research. This concept is in line with the
Nara Document and the Venice Charter understanding of authenticity discussed
above. Perhaps the nuance that the Krakow Charter brings to the two former
instruments is the more interdisciplinary nature of the research it envisages.
Obviously, these
instruments view authenticity and, respectively the rules governing
conservation and restoration, in the light of respect to historical truth. Since
however, this is a quite general requirement, the principles that should govern
conservation and restoration have been subject to much debate amongst
conservation theoreticians and practitioners.
Especially as regards restoration, which entails more intervention,
adherence to historical truth is not as straightforward and unquestionable as
it seems when initially stated. As restoration generally involves a process of
rebuilding gravely deteriorated structures, it is in essence contradictory to
the concept of historical truth since, indeed, historically, the structure has deteriorated and any restoration is
in a sense “fooling” the observers. It is exactly this misleading of the
observers that the Venice Charter tries to prevent by stating in its Article 12
that "[r]eplacements of missing parts must integrate harmoniously with the
whole, but at the same time must be distinguishable from the original so that
restoration does not falsify the artistic or historical evidence". Restoration
“must stop at the point where conjecture begins, and in this case moreover any
extra work which is indispensable must be distinct from the architectural
composition and must bear a contemporary stamp."[120] Thus,
if an old structure is restored by adding stones to replace ones destroyed by
time, the replacement stones should not imitate the old ones but rather be
strikingly different. It is considered that in this way the observer would not
be misled to believe that the new stones belong to the original structure but
will easily notice the line beyond which the restorers’ intervention has been
carried out.
The Krakow Charter is
meant to address contemporary questions of how to deal with mass-scale
destruction in post-war situations. Therefore it reinforces Venice Charter’s
respect for historic truth further by specifically stating that “reconstruction
of entire parts 'in the style of the building' should be avoided. … If
necessary, for a proper use of the building, completion of more extensive
spatial and functional parts should reflect contemporary architecture.”[121]
A visitor to historic
sites can easily recognise where this kind of approach has been followed. It is
not unusual to see fine Roman marble columns that are half-way complemented by
a concrete, obviously contemporary projection meant to give visitors an idea of
how tall the real column has been without fooling them as to the parts that
have been added by restoration works. Although this approach is most respectful
towards historical truth, it has been criticised. The basis for the criticism
has been the fact that it gives more weight to the value of the heritage assets
as historical evidence, rather than to their aesthetic value. Therefore it has
been argued that viewing the heritage asset as historical evidence serves the
interests of a narrow group of people, like archaeology experts, and the
general public would be happier if it is able to view beautifully restored
sites[122]. The
author of this statement refers to a city like St. Malo, which was fully
rebuilt in the old style after being destroyed in the Second World War, and
claims that it brings more aesthetic joy to the public than a city like
Plymouth which is formally authentic in not trying to pretend that the
structures there are old. This argument sees the “visual coherence of the
original design” as more important “than making sure that every visitor knows
for sure which stones are new and which are old”.[123] The
author further claims that restoration which clearly delineates the changes
that have been made “matters to academics and experts and, if they really want
to know, they can find out anyway.”[124]
Indeed, there is some
elitism in conservation specialists’ attitude towards restoration. Probably it
overestimates the level of historical knowledge and expectations of the
observers. But this is not a reason to opt for profaning restoration work.
Rather, the society needs to be educated to differentiate between original
works and imitations. Especially in the case of archaeological remains, which
have no utility and their sole purpose is to serve as a remainder of times gone
by, there is no excuse to compromise on historical evidence and attempt to
imitate the old styles in restoring structures that are no longer there. Disneyland-like
structures can be found in any country; that kind of neatness is not what
attracts people to archaeological remains. Rather, it is the idea that those
ruins have witnessed important moments of the mankind’s history that gives them
value. Therefore, this paper agrees with the prevailing opinion that
conservation works on archaeological sites must comply with the principle of “minimum
intervention”.[125]
The issue of
architectural heritage however may raise more disputes. While the Venice and
the Krakow Charters recommend the use of traditional techniques and materials
and maintenance of historic buildings’ “authenticity and integrity, including
internal spaces, furnishings and decoration according to their original
appearance”[126], in
practice, lots of compromises are made to allow adaptive re-use of historical
buildings. The training of craftsmen into traditional practices and
construction techniques is costly, traditional materials are often unavailable
or expensive, the functionality of a building may require some modern
facilities to be added to the interior. Thus the authenticity rules of the
international instruments are often interpreted more broadly with regard to
architectural heritage.
3.2. Theoretical Background of Conservation Philosophies
The interpretation of
international principles of conservation is closely related to the different
schools of conservation and restoration that have developed historically. A
review of these schools would allow a better understanding of the context in
which international regulation evolved. Nowadays heritage preservation is much
talked about but actually art conservation and restorations are relatively new
practices. Their genesis is linked to European Renaissance’s interest in
classical antiquity, which attributed value to ancient buildings and monuments.
This attention to the objects created in the past gave birth to restoration. A
short review of the different approaches to restoration can provide an insight
into the ideas underlying international regulation and the practices that form
the foundations of different national regimes.
3.2.1. Viollet-le-Duc
19th-century theories
of architectural restoration were largely dominated by the French Gothic
Revival architect, restorer of French medieval buildings, and writer
Viollet-le-Duc (1814 – 1879).[127]
He is considered the father of the so-called “stylistic restoration.” According
to this style, restoration works shall be focused on keeping the style of the
monument rather than trying to reconstruct the original architectural details
with the original materials. This approach considers form secondary to spirit. Viollet-le-Duc’s
most famous works are the restoration of Sainte-Chapelle (1840-67) and of the
cathedral of Notre-Dame de Paris (1845-64). Although his initial aim was to
restore in the style of the original, in his later restorations he often added to
the building entirely new elements of his own design. Twentieth-century
archaeologists and restorers have severely criticized these fanciful
reconstructions and added structures posing as restorations, for they often
destroy or render obscure the original form of the edifice.[128] It
is interesting to relate the style promoted by Viollet-le-Duc to the
aforementioned provisions of the contemporary Krakow Charter stating
specifically that “reconstruction of entire parts 'in the style of the
building' should be avoided.” Thus contemporary principles of restoration
reject Viollet-le-Duc’s stylistic restoration.
3.2.2. Ruskin and Morris
A much more
conservative approach was developed in the nineteenth century in
3.2.3. Façadism
Another approach that is
sometimes adopted in restoration is the one known as façadism or the
building of a new structure behind a retained historic façade. This
approach is considered “inherently dishonest” and was explicitly declared to be
unacceptable at the ICOMOS International Conference in 1999. The Krakow Charter
is also explicit that “[t]he purpose of conservation of historic buildings and
monuments, whether in the urban or rural context, is to maintain their
authenticity and integrity, including internal spaces, furnishings and
decoration according to their original appearance.” Although there is a consensus amongst the
heritage community as to the inadmissibility of this approach, in the
transition countries where no specific domestic guidance on restoration
philosophy has been issued and all such judgments are being made on an ad hoc
basis, façadism is sometimes the correct term for the type of
restoration done in respect to historic buildings in their adaptation for use.
3.3. National Approaches
The restoration and
conservation concepts, as well as the international instruments devoted to the
matter have left sufficient room for interpretations. Thus national approaches
to restoration practices vary. These different national approaches will be
reviewed below and, based on that examination, the law and practice in project
states will be evaluated.
In
It is somewhat
surprising that the
The more or less
purist approach towards conservation in most of
Of course,
3.4. New Balkan Legislation
The country with the
newest heritage act on the
These definitions seem
to be roughly based on the international instruments discussed above. While, as
defined, conservation is fully compliant with the requirements of the
international documents, the other three activities raise some questions. The
removing of inappropriate additions that restoration entails may not respect
the different time layers. The term “authentic renovation” is also not quite
clear. Authenticity probably relates to an adherence to historical truth as
documented. Still, the removal of added parts of cultural assets is
questionable as it is not respectful towards the “layers of time”. The other
two types of activities are even more interventionist. Reconstruction in the
Macedonian act seems to cover the activity branded as unacceptable by the
Krakow Charter. Revitalization seems to be the more loosely controlled activity
that is acceptable in
The definition of
these four types of activities is a positive feature of the Macedonian law. On
the other hand however, the act does not proceed to clarify which of these
methods and activities are acceptable and in what cases. Probably, since the
law categorizes heritage in terms of importance, some of the more
interventionist works would be acceptable for cultural assets of lower
importance. Macedonian legislation regulates in much detain the approval and
supervision of conservation projects. There is a special body – the National
Conservation Centre – that should carry out these tasks. Although the approach
to the conservation project cannot be regulated specifically in law for every
case, some guidelines may be useful because this is precisely the logic that
should underlie the classification of different types of intervention.
3.5. Conclusion
Obviously,
there is no one answer to the question of how to preserve heritage. Authenticity
often contradicts utility; historical truth may not be in the best interests of
aesthetics. Still, international instruments, conservation thought and national
practices outline some general principles that need to be adhered to and some good
practices that could serve as guidelines. First, a domestic law shall be
written with a clear understanding of the value of authenticity and respect to
historical truth. Secondly, a definition of the different types of works on
heritage assets is useful because it makes implementation of these rules and
their enforcement easier. Such definition however should be followed by the
clear statement that the intervention amounting to conservative repair shall be
the preferred method and only where that is insufficient more aggressive
measures shall be applied. As the discussion of the financial schemes employed
in different countries will demonstrate, many domestic laws fund conservative
repair more generously than restoration in order to encourage timely maintenance
instead of works that are costly and oftentimes unacceptable from the viewpoint
of authenticity. As mentioned above, more specificity on the acceptability of
different types of preservation techniques could be based on a categorization
of cultural assets in terms of significance. Thus, assets of international
importance (i.e. those included in the World Heritage List) could be subject
only to conservative repair while assets of less relative significance (e.g.
assets that under Bulgarian legislation are “for information”) could be
subjected to more aggressive measures such as reconstruction and revitalization
that would allow their adaptation to new uses. Last but not least, the
legislator needs to acknowledge that, no matter how specific the rules on
authenticity are, most of the judgments will have to be made on a case-by-case
basis. Therefore, very effective supervision mechanisms should be put in place.
The model implemented in
4. Financing
4.1. International Instruments
An effective public policy
in the heritage area should definitely shed light on the question of how to
ensure the financial resources needed for the preservation and management of
heritage assets. In terms of finances, the UNESCO Conventions dwell rather on
international assistance and leave it to parties to the conventions to define
through their own legislation what the ways are in which they will domestically
make sure heritage sites are kept in good condition. Yet, the UNESCO Convention
stipulates, in quite general terms, that countries shall take the appropriate
legal, scientific, technical, administrative and financial measures necessary
for the identification, protection, conservation, presentation and
rehabilitation of this heritage The COE Conventions are somewhat more specific.
Article 6 of the Granada Convention mandates that each party shall provide
financial support for maintaining and restoring the architectural heritage on
its territory; resort, if necessary, to fiscal measures to facilitate the
conservation of this heritage; and encourage private initiatives for
maintaining and restoring the architectural heritage. Similarly, Article 6 of
the Malta Convention obliges the parties to it to arrange for public financial
support for archaeological research from national, regional and local
authorities in accordance with their respective competence; and to increase the
material resources for rescue archaeology by ensuring that provision is made in
major public or private development schemes for covering, from public sector or
private sector resources, the costs of any necessary related archaeological
operations and by making provision in the budget relating to these schemes, in
the same way as for the environmental impact assessments, for preliminary
archaeological study and for the full publication and recording of the
findings.
The two conventions
thus identify two main sources for heritage funding: state and private funds.
Only the first one of these two sources can be ensured through legislative
measures but the latter can also be envisaged in and encouraged through laws
and regulations. The present paper will first examine the mechanisms for
disbursing governmental funds for heritage and will then proceed to the ways
for attracting private finances.
4.2. State funding
Traditionally, cultural
heritage protection has been and continues to be the responsibility of the
state. Generally, two main ways of state funding for heritage can be
identified: 1) direct, comprising subsidies, grants and other similar
instruments; and 2) indirect that includes different kinds of preferential tax
treatment and other types of relief of duties that would normally be due to the
state. These will be explored herein with a view to outlining the specifics of
each of these mechanisms and the ways they are reflected in law.
4.2.1. Direct state support
4.2.1.1. Non-competitive subsidies
Direct funding through
budget appropriations is the classical and still the most substantial way
through which state support is provided. These are set in the annual state
budget and are usually channelled through the Ministry of Culture. All
countries however, and transition countries more than others, face insufficient
public funding for heritage. Therefore, ways have to be found by which the
spending of the scarce resources can be made more efficient.
4.2.1.2. Grants
Whereas subsidies are generally
a pretty straightforward mechanism, part of the state subsidy can be
distributed through grant mechanisms. These deserve a closer look. They are
generally provided on competitive basis to applying entities and individuals
against a duty to achieve specific results. In different countries, different
individuals or entities are eligible to receive grant support. The nature of
the undertakings that are funded also varies. As practitioners strongly
recommend that the share of competitively distributed grants increases as
compared to the share of subsidies provided non-competitively to entities, the
legislative provisions governing this funding mechanism become more important. The
present paper will examine some of these provisions to outline their general
principles, as well as to highlight some of the more important differences
between various instruments since these differences often have a bearing on the
efficiency and the fairness of the grant mechanism.
With the
socio-economic changes in the 1990s, the transition countries of
This act is based on
some quite progressive principles. First, it introduces the principle of
equality between the different kinds of entities and individuals who apply for
the grants. It also introduces the quite novel idea that resources collected
from cultural activities could be re-invested in the same type of activities.
Apart from the common sense and the fairness of this idea, it may serve as an
incentive for the governmental bodies collecting the fees and fines to later be
directed to the fund. Of course, such encouragements could work only if the
bodies distributing the monies in the fund or benefiting from them have some
direct responsibilities in enforcing the aforementioned fees and fines. Another
positive feature of the act is that fact that the decision making body is quite
participatory in composition and involves a wide array of stakeholders. On the
other hand, the law should perhaps be more specific on the composition of the
experts’ committees designing the tasks to be funded. Also, it would be helpful
if, similarly to other countries in the region, the fund adopts a more general
Annual Program determining in more general terms the parameters of the projects
that are going to be funded so that applying entities and individuals have more
time to prepare. Lastly, one fundamental principle of the law is the
competitiveness in the distribution of the grants. This is one major asset of
the law because it encourages superior performance and creativity. Although it
may seems natural that competitions should be the most common way to distribute
grants, the review of other laws in the region will demonstrate that this is
not always the case.
Other Balkan countries
have also introduced grants laws. The Culture Act of 1998 of the
The Serbian Law on the
Activities of Common Interest in the Field of Culture is even less
participatory in the funding schemes it creates. Under that law, the Minister
of Culture bears the sole responsibility for the disbursement of these funds.
There is no input from private organizations in the development of the programs
to be implemented and furthermore the law does not mandate the competitive
nature of the mechanism for provision of funds. Thus, it is up to the Minister
of Culture of Serbia to set the conditions and criteria for distributing these
funds. There is also no specific provision that states that public and private
entities shall have equal opportunities in applying for funds and programs
although an interpretation of the act could lead to the conclusion that private
entities may be financed under that law. As a whole, the Serbian Law reflects a
more state-centred understanding of the financing of heritage. It could be
extended to include both competitive principles and private initiative.
The Croatian Law on
Financing Public Needs in Culture is quite similar to the Serbian one. It also
leaves to regulations all particularities as to how funds shall be spent, what
shall be the criteria for disbursing them, who shall be the eligible entities
and whether competitive principles shall be applied in this process. The
activities that are financed are determined by an Annual Programme of public
needs in culture that is adopted by the Croatian Parliament. Unlike in
Overall, the Bulgarian
system seems to provide more opportunities for non-state participation than the
other systems for the provisions of grants in the region. The fact that grants
in
Competitiveness, transparency,
participation and non-discrimination between public and private entities should
be some of the principles of grants legislation. These very principles make
grants essentially different from the classical ways in which the state
supports culture. Therefore they need to be mandated by law and not left to
regulations and executive discretion.
4.2.1.3. State support for privately owned
heritage assets
As the state has the
general responsibility for preserving cultural heritage on its territory it
should not discriminate among the various assets that form that heritage. Some
of these assets could be privately owned which does not preclude the state’s
duty to monitor their condition and ensure their preservation. In the
transition countries of
The problem of
preserving architectural heritage in transition countries is especially serious
because of the history of these properties’ ownership. This type of heritage
comprises mostly buildings in city centres that have been nationalised and have
recently been returned to their private owners. These owners however, usually
have no financial resources to provide for the proper maintenance of the
buildings. The special status of their properties is thus more a burden than an
asset since it comes with a number of restrictions on permissible use of and
changes to the building but no reciprocal benefits. It is therefore useful to
examine the specific problems these owners face in tending for their properties
and the ways, in which these problems can be alleviated through state
intervention.
In
The legislator in
Indeed, a recovery by
the state at least of the additional costs that maintenance or restoration of
protected buildings entails seems to be a fairer option since it is the state
that has, through its restrictive legislation, imposed on the owners of
protected buildings the burden of making sure that all works on the building
correspond to the requirements of the competent state authority. Such a
commitment on the part of the state would also encourage owners to undertake
repair works. Similarly, such policy could serve as an encouragement for
companies to opt for buying a protected immovable for office purposes and
restoring it instead of investing in a new building that would not come with
the same strict rules as to its preservation. While turning heritage buildings
into offices or other functional premises may not be appropriate for properties
that are truly valuable in terms of historical significance, the buildings that
make up most of city centres usually do not have such high value in themselves
but rather contribute to the character of the area. This “atmospheric” role of
the building would be better served if it is properly maintained and utilised
as opposed to having each floor be owned by individual owners with no incentive
whatsoever to maintain their properties. Additionally, adaptation of heritage
assets to new uses is in line with the concept of living heritage that is being
recognised as the preferable way to integrate old buildings into the
contemporary city life.
While probably wiser
than the Bulgarian one, Macedonian legislation in the area does not go as far
in creating economic incentives to own old structures as does the legislation
in some other countries. Thus, in some West European legislation built heritage
brings to its owners a more balanced set of rights and obligations. Similarly
to the rules in the
Thus, in
Providing such partial
or full grant support or low interest loans for the carrying out of works on
protected buildings seems preferable to the Macedonian solution for several
reasons. First, to cover just the costs that exceed those of normal works
entails a process of assessing and calculating the cost differences in the two
types of work, which may be difficult to implement in practice, especially
given the oftentimes limited administrative capacity of the competent body.
Such an evaluation process would burden both the owners and the state
authorities participating in it. Both would have to provide proofs,
calculations, comparative material, etc. Ultimately, the amounts that such
evaluations determine for reimbursing owners, while not necessarily accurate,
may prove to be too insignificant to justify the cost of the assessment itself.
In addition, it seems that the owner is expected to first carry out all works
and incur all expenses thus crediting the state which will only post-factum
decide whether and what costs it shall cover. For these reasons, such a
provision is not sufficiently encouraging. On the contrary, a legal possibility
to apply for partial or full grants or even for low-interest or interest-free
loans would give proprietors an incentive to look into maintaining or restoring
the property, as well as advance information on the expenses to be incurred and
thus security as to the financial burden that they will have to assume. In
addition, the competitiveness of grants will ensure that the most viable
restoration projects are supported and will further serve to reduce the
reliance on non-competitive state support.
4.2.2. Indirect state support
Indirect funding is
another way in which the state can support heritage. Different forms of tax
relief are often used as means of encouraging heritage protection. This
practice is in line with the aforementioned provision of Article 6 of the
Granada Convention which states that where appropriate states shall resort to
fiscal measures to facilitate the conservation of heritage. Such fiscal
measures may include different sets of tax relief such as reductions of the taxable
profit or income for companies and individuals upon the making of donations,
VAT reductions for purchases of specialized equipment necessary for
conservation works, customs duties decrease for importing goods to be used in
heritage protection, etc. The various models and options employed in different
countries, both in
4.2.2.1. Deductions of donations from the
taxable income
In most countries
there are mechanisms for encouraging donations to socially important causes
through allowing for deducting the donated amounts from the taxable profit of companies
or income of individuals. Usually, these worthwhile causes and eligible types
of institutions are specifically listed in the law so as to discourage tax
payers from donating to related entities and thus avoiding proper taxation. The
other typical limitation to such donations usually is in respect of the amount
of the donation. As the state would like to ensure that businesses and
individuals would not avoid significant payments to the budget by donations
amounting to large percentage of the taxable profit, there is normally ceiling
of the donation as a percentage of the whole tax base.
A vast majority of
countries have these provisions in their corporate taxation and income tax
laws. In respect of taxation of companies, donations to certain types of
organizations are acceptable up to a certain percentage of the profit or a
percentage of the turnover. Thus, in
In Central and
Eastern Europe these percentages are also quite disparate. For corporate
profit, the ceiling of deductible donations is 15% in
There are obviously
different models to be followed in respect of determining the ceiling of the deductible
donations in relation to the tax base. It seems that in CEE countries and
especially in the transition countries of
It has to be pointed
out that while tax encouragement of donations is important for encouraging
philanthropy, this cannot in itself be sufficient. It has been suggested[141]
that inquiries into tax relief for donations have not been able to produce
definitive evidence on a positive correlation between the tax incentives and
the level of sponsorship in a country. In fact, the tax regime in the
4.2.2.2. Deductions of the costs of
conservation from the taxable income
One of the most
efficient tax mechanisms for encouraging ownership, maintenance and repair of
historic buildings is through allowing the deduction of the costs of such
repairs from the taxable income of companies and individuals. This is a quite
specific tax incentive, which, unlike the tax relief for donations, is aimed
specifically at improving the quality of heritage buildings and the living
environment. According to some reports, this fiscal measure “is by far the most
efficient”[144] as
regards immovable heritage. There are two main variations in which this fiscal
measure can be found in different countries: costs for repairs to historic buildings
can either be deductible 1) from the total income of the person or 2) from the
income that has been obtained from using the historic building. The first type
of regulation is present in
With the exception of
4.2.2.3. Value Added Tax
In a number of
countries VAT is one of the most significant sources of budget income. In
In
None of the transition
countries of
4.2.2.4. Wealth or Property Tax
In some countries
there is tax on wealth or on the immovable property owned by the person. In
On one hand, it seems
justified to reduce the amount of wealth tax payable on historic buildings
since their maintenance is more expensive. On the other hand however, the
measure discussed previously, i.e. deducting the cost of repairs from the
taxable income seems to be more effective as it obligates the owners to take
some measures for maintaining the building instead of granting them tax relief
for simply owning a protected property.
4.2.2.5. Inheritance Tax
The inheritance tax
relief for heritage properties is very similar to the wealth tax in that it
provides for tax benefits based on the sole fact that a person owns a heritage
asset. Countries like
4.3. Private Funding
Ensuring increased
private participation in heritage preservation is one of the most important
ways for overcoming the problems arising out of insufficient state funding.
This is also one of the calls of the Granada Convention. In some countries,
like the
The call for decreasing
reliance of cultural industries on state subsidies has in the last years led to
a debate on whether some forms of privatisation could present a viable option
in this respect. The privatisation of the cultural sector in
Authors distinguish
between several types of désétatisation which deserve to be
mentioned herein as all of them may be considered in attracting non-state
resources in the heritage sector. These are 1) sale of public organizations or
public assets to the private sector that is divestiture or privatisation in the
classical sense of the word; 2) creation of internally independent agencies,
which is exemplified by the so-called autonomisation (that is extending of more
autonomy) of Dutch museums; 3) contracting out of some of the activities provided
by the public organisations, an example of which is concessioning; 4) the
“benefit principle” (e.g. application of user fees); and 5) mobilisation of
volunteers. These types of désétatisation will be reviewed below
with the understanding that while some of them are clearly means for attracting
private funds into heritage preservation, others are more hybrid models that
may actually constitute more efficient ways of spending state funds through
market-like instruments.
4.3.1. Divestiture
The first type of
désétatisation is used mostly for cultural industries which
deliver a marketable product such as television, publishers, even theatres.
Cultural heritage however does not fit readily in this category; the major
investment needed for its identification and preservation, and the irreparable
damage that could be done to it by entrepreneurs insensitive to its historical
value make it inappropriate for divestiture. Of course, this does not mean that
cultural heritage assets cannot be owned by private persons. The arguments
against divestiture apply mostly to archaeological heritage that is oftentimes
declared unalienable public property, as well as to heritage which is owned by
the state through state museums, archives, etc. A substantial part of architectural
heritage in transition countries, however, has been returned to its former
owners. In addition, reformed legislation in project countries allows for the
establishment of private museums and gives them a legal status equal to that of
state museums. These private owners are bound by the restrictions and
protective measures that laws associate with heritage assets. They however bear
these burdens without any proper compensation, encouragement or incentives on
the part of the state. Therefore, as was discussed above, the participation of
these private persons in the preservation of heritage should be encouraged by
state support mechanisms. The grants and loans to private persons owning
heritage assets, that were examined earlier, constitute not only a more efficient
way for spending state resources but also for engaging private initiative and effort
in heritage preservation.
4.3.2. Autonomisation
The second type of
désétatisation represents in fact a reform in management
practices of state bodies that allows for enhanced operational independence and
provides managing bodies with market-like incentives and room for creative
approaches. The increased independence allows managers to exercise discretion
in many areas related to the everyday running of a cultural institution. Thus,
they can make independent planning and personnel decisions, as well as raise
income from other sources. The model of autonomisation was applied in respect
of museums in the Netherlands in the 1980s where the process involved a change
in their legal status through a transformation of state institutions into
private non-profit entities (foundations). Of course, such transformation of
the legal status is not a necessary characteristic of the reform; in pursuit of
efficiency the legislator may choose a less radical solution by simply
increasing the discretionary powers of managerial personnel in some of the
aforementioned areas.
An interesting feature
of the Dutch model is the application of the arm’s length principle in institutions’
funding. State institutions responsible for heritage management (such as
museums) have arm’s length dealings with the state, which entails a movement
from an input budget where the institution is simply a receiver of state
subsidies to an output budget where a contractual mechanism ties the state
funding received to specific results that need to be achieved by the
institution. An example of the application of the arm’s length principle in the
funding of museums is the interesting fact that museums rent their buildings
from the state paying the fair market price for the premises. Thus, the
Ministry of Culture provides funds to museums; they use these to pay rent to
their lessor, which is the Ministry of Housing. Of course, money comes out of
and flows back into the same pool but in dealing with the owner of the premises
as with any other market player, the museum management can demand proper
maintenance of the property as any other lessee.
One of the most
important aspects in which the autonomy of museums and other heritage
institutions can be increased is the financial one. The introduction of market
mechanisms into the financing of such entities could be done through extended
opportunities for receiving competitive government grants. Where heritage
institutions apply for funding based on competitive principles and by defining
the results they plan to achieve due to that funding, they have incentives to
perform in a superior manner. Additionally, the efficiency of such entities
could be improved if they are entitled to keep the carry-over from the previous
year without an obligation to return it to the state budget. Such use of
carry-over would improve planning and prevent hasty and possibly not fully
justified expenses in the end of the fiscal year. Furthermore, increased
financial independence could be combined with some of the other types of désétatisation.
While state subsidies will continue to be the main source of funding for
museums, they could be allowed to outsource certain services such as cafeterias
and souvenir shops and use the profit for funding their operations. Parts of
the premises of museums could be leased, services such as catering, parking and
security could be contracted out or the management of a place of interest could
be allowed to determine its own fees policy depending on the particularities
and visitors’ patterns of the site.
4.3.3. Contracting out
Contracting out of
public services may have many different faces. It may involve letting a private
contractor run the cafeteria of the museum, as discussed above, or
concessioning the exploration or the exploitation of a whole archaeological
complex. Presently, all project countries have general legislative instruments
that allow the granting of concessions over assets that are public property.
Heritage sites which are public property are included in the scope of such acts
by default but this possibility has not been utilised to date. In Bulgaria, for
example, Ministry of Culture officials agree that even under the present legal
framework heritage sites could be concessioned but they have not been
comfortable entering into such contracts before explicitly authorized to do so
by a special act on cultural heritage. Draft legislation to this effect has
been pending in the Bulgarian Parliament for 5 years now and its provisions on
concessions over heritage sites have been the subject of much debate.
Another country from
the region, the Republic of Macedonia, explicitly allows the giving out of
heritage sites under concession contracts in its new Cultural Heritage Act. Indeed,
it is preferable to regulate concessions in this field separately in order to
take into consideration the particular concerns that may arise in respect to
heritage assets. Thus, the Macedonian act provides that not all heritage assets
may be subject to concession contracts; archaeological reserves, archaeological
sites that have not been fully studied; memory places and places related to
traditions, customs and beliefs cannot be exploited by private persons. In
addition, the concessionaire shall adopt and implement a plan for the
revitalisation and management of the heritage asset. The performance of the
concession contract shall be monitored by a committee appointed by the Ministry
of Culture that shall include at least one representative from the respective
municipality and one from an NGO working in the heritage protection.
While all interviewed
heritage practitioners exercised caution when discussing concessions in the
area and none expressed unconditional support, there seems to be an agreement
that in respect of some, less vulnerable sites and under strict control
concessions may be a viable option for the management of heritage sites. If
authorised by a specific instrument that takes into consideration the special
interests at play, allowing general legislative acts on concessions only a
subsidiary role, civil servants would feel much more comfortable granting such
contracts. Still, in transition countries where the market economy is young,
control measures need to be especially strict and central authorities, local
bodies and NGOs need to all have a say in monitoring the implementation of the
contract.
4.3.4. Benefit principle
The so-called “benefit
principle” in financing heritage, that is financing heritage with the profit it
brings, can definitely be employed to a greater degree than it is at present.
The provision of a more autonomy to heritage managers in devising their fee
policy is just one of these ways. An even more important, and still
underdeveloped in transition countries, way for applying this principle is
through charging for the commercial exploitation of heritage assets. This would
imply the collection of fees for commercial use of images of heritage sites,
for placing of advertisements on the façades of such structures, etc.
Such provisions exist
in the legislation of Balkan states. Thus the Bulgarian Act mandates that the
reproduction of cultural monuments, including through graphic, photographic,
video and other means, as well as the distribution of such reproductions for
advertising or other commercial purposes shall require the consent of the owner
and a permission of the Ministry of Culture and shall be done against an annual
fee, set by a tariff issued by the Council of Ministers[148].
According to the law, the bodies of the Ministry of Culture, the bodies of
local self-governance and the local bodies of the central government are all
responsible for finding out violation thereof and based on these findings fines
shall be imposed by the Minister of Culture or by the municipal mayors.[149]
As no one body is thus particularly responsible for monitoring the wide-spread
commercial use of heritage reproductions and images, practitioners claim that
no sanctions are being imposed and the provision is actually not enforced.
Under the Protection and Development of Culture Act of 1999 these fees and
fines shall be directed to a National Fund “Culture” to be used for finding
various cultural projects[150].
Thus, the non-collection of fees for commercial use of heritage images and
fines thereof has a direct negative effect on the amount of funds available for
culture.
The Croatian Act
demands not only the payment of a fee for various commercial uses of images of
cultural goods but also 10% of the sale price of all souvenirs, photos, badges,
publications, etc. that are using cultural heritage sites.[151] These
are royalty-like payments that could yield plenty of profit if the relevant
provisions are properly enforced. Their enforcement however could present quite
a challenge, especially having in mind that Croatia does not require commercial
entities to obtain a specific permission prior to the use. If no prior
information is available as to who would use images of cultural goods for
commercial purposes, enforcement of the royalty-like payments may be quite
difficult.
The Serbian Act in the
area does not demand a fee for commercial use of heritage images but mandates
that such use shall only be possible upon the prior approval of the state body
responsible for the specific category of cultural assets[152].
The same approach is being adopted by the Macedonian legislator.[153]
In sum, the state
should be able to have a say in what are the permissible usages of heritage
images and therefore the prior approval of such use that is introduced in many
Balkan countries is justified. It is also reasonable to mandate that where
commercial entities are deriving a profit from heritage, part of this profit
shall be used for heritage preservation. Where such provisions are in place,
however, they should not be too burdensome or restrictive to commercial
activity since it will be mostly tourism-related activity (like in the example
of Croatia where the 10% on the sales price of souvenirs actually taxes
tourists). These rules should also be properly enforced which requires
significant administrative capacity on the part of the competent state body.
Since charging for commercial use of heritage images and imposing fines for
established violations thereof is a pretty specialised activity, there should
be officials specifically tasked with implementing these provisions.
Furthermore, for such provisions to make sense, the collected amounts should be
directed to a separate pool of money and used specifically for heritage
preservation instead of flowing to the general state budget. In this sense the
creation of specialised funds for the collection of such payments is a fair
solution.
4.3.5. Use of volunteers
The use of volunteers
in a democratic society cannot be mandated by legislation. However, an enhanced
public awareness of the importance of cultural assets, joint programs with
schools and universities, increase in the role of NGOs in the heritage sector
could contribute to forming an environment where volunteer work is regarded
highly.
4.4. Conclusion
In sum, both state and
private support are appropriate for heritage financing but the modern trend is
towards increasing the share of private support and making state spending more
efficient through introducing market-like principles. Grant mechanisms and some
of the forms of tax exemptions seem to be underused in Southeast European
states and need to be considered by the legislator. More could be done also in
respect of specific types of heritage. Legislature could create a more balanced
set of rights and obligations for owners of architectural heritage who wish to
maintain it. Private initiative could also be used for financing heritage
through contracting out of certain services within a heritage complex that may
be more efficiently and profitably managed by private enterprises. Concessions
may also be applied but, as discussed above, specific, more restrictive rules
shall prevent deterioration of such sites and insensitive commercial use. Where
financial resources for heritage preservation are badly needed commercial
entities can be charged for their use of heritage but the state has to have
sufficient administrative capacity to implement these provisions while making
sure that they are not too costly for businesses engaged in the tourist
industry.
[1] See Alexander C. O'Neill, “What Globalisation
Means for Ecotourism: Managing
Globalisation's Impacts
on Ecotourism in Developing Countries”,
[2] Anthony
Giddens, Globalisation,
[3] See UNESCO, Convention concerning the Protection of the World Cultural and Natural Heritage, at
http://whc.unesco.org/nwhc/pages/doc/main.htm viewed on 5 May
2004.
[4] See UNESCO, Culture & UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, Article 2, at
http://unesdoc.unesco.org/images/0013/001325/132540e.pdf
viewed on 5 May 2004.
[5] Council of
[6]
[7] UNESCO Convention, n. 3 above.
[8] Ibid., Art. 1.
[9] Ibid., Art. 1.
[10] Ibid., Art. 5.
[11] Ibid., Art. 13, 15.
[12] Ibid., Art. 29; See also Explanatory notes of…
[13] Ibid., Art. 27.
[14] Convention on Intangible Heritage, n. 4 above.
[15] Ibid., Art. 2.
[16] In accordance with its Article 34, the Convention on Intangible Heritage shall enter into force three months after the date of the deposit of
the thirtieth instrument of ratification, acceptance, approval or accession,
but only with respect to those States that have deposited their respective
instruments of ratification, acceptance, approval, or accession on or before
that date. It shall enter into force with respect to any other State Party
three months after the deposit of its instrument of ratification, acceptance,
approval or accession.
[17] Ibid., Art. 11, 15.
[18] Ibid., Art. 12.
[19] Ibid., Art. 13(a).
[20] Ibid., Art. 13(b).
[21] Ibid., Art. 13(c).
[22] Ibid., Art. 13(d)(ii).
[23] Ibid., Art. 14.
[24] Ibid., Art. 16.
[25] Convention for the Protection of the Architectural Heritage of
[26] European Convention on the Protection of the Archaeological Heritage,
[27]
[28] Ibid., Art. 2.
[29] Ibid., Art. 4.
[30] Ibid., Art. 9.
[31] Ibid., Art. 5.
[32] Ibid., Art. 6.
[33] Ibid., Art. 6(3).
[34] Ibid., Art. 8.
[35] Ibid., Art. 10, 13.
[36] Ibid., Art. 10(5).
[37] Ibid., Art. 11.
[38] Ibid., Art. 12.
[39] Ibid., Art. 15.
[40]
[41] Ibid., Art. 1(3).
[42] Ibid., Art. 2(i).
[43] Ibid., Art. 3.
[44] Ibid., Art. 4(ii).
[45] Ibid., Art. 5.
[46] Ibid., Art. 5(iii).
[47] Ibid., Art. 6.
[48] Ibid., Art. 9.
[49] European
Landscape Convention,
[50] Ibid., Art. 1(a).
[51] See John
Pendlebury, Section on the
[52] Some countries, like Belgium and Germany, have delegated the legislative authority on the
matter to regions.
[53] See Myriam
Goblet, Therese Cortembos, Peter Verhaegen, Anne-Mie Draye, Jeal-Pol Van
Reybroeck and Freddy Joris, n. above 53, Section on Belgium, pp. 12 – 40.
[54] See ibid., Ulla Lunn
and Carsten Lund, Section on
[55] See ibid., Giorgio
Gianighian, Section on
[56] See ibid., Isabelle
Longuet and Jean-Marie Vincent, Section on
[57] See ibid., Josef
Štulc, Section on the
[58] Cultural Heritage Act of 9 June 1978, Norway, http://odin.dep.no/md/engelsk/regelverk/lover/022031-200003/index-dok000-b-f-a.html
viewed on 5 March 2005.
[59] Cultural Goods
[60] Ibid., Art. 42.
[61] Ibid., Art. 46.
[62] For example,
the law of
[63] See Section on
[64] See Section on
[65] See Section on
the
[66] Regulation No. 5 on declaring immovable cultural monuments, Bulgaria, 14.05.1998, Art.
8(1)b.
[67] Valletta Convention, n. 26 above, Art.
2 (iii).
[68] Cultural Monuments and Museums Act, Bulgaria, 11.04.1969, Art. 18(3).
[69] Ibid., Art. 18(4).
[70] Environmental
Protection Act, Bulgaria, Chapter 6, Section 3,.
[71] Actually,
there was such a case in
[72] See Section on
[73] Ibid., p. 18.
[74] Cultural Goods
[75] Ibid., Art. 56, 47.
[76] Ibid., Art. 49, 56.
[77] Regulation No. 5 on declaring immovable cultural monuments, Bulgaria, n. 66
above, Art. 7.
[78] Cultural
Heritage Protection
[79] Ibid., Art. 47.
[80] UNESCO Convention, n. 3 above, Art. 5(b).
[81] Convention on Intangible Heritage, n. 4 above, Art. 13(b).
[82] Ibid., Art.
13(d)(iii).
[83]
[84] Ibid.
[85] Ibid.,
[86] Ibid.,
[87] Ibid.,
[88] Ibid.,
[89] Ibid.,
[90]
[91] Cultural
Heritage
[92] Ibid., Art. 2, Definition of
“Minister”.
[93] Ibid., Art 7(4).
[94] Ibid., Art 7(5).
[95] Ibid., Art. 8.
[96] Ibid., Art. 8(5).
[97] Ibid., Art. 10.
[98] Ibid., Art. 10(1)(b).
[99] Ibid., Art. 14.
[100] Ibid., Art. 15.
[101] Ibid., Art. 34.
[102] Ibid., Art. 52.
[103] German
Commission for UNESCO, Protection and Cultural Animation of Monuments, Sites
and Historic Towns in Europe, Series published by the German Commission for
UNESCO and the Academy of the Chamber of Architects, North-Rhine/Westphalia,
Vol. 12, pp. 198 – 213.
[104] Çàêîí çà çàøòèòà íà êóëòóðíîòî íàñëåäñòâî, Ñëóæåáåí âåñíèê íà
Ðåïóáëèêà Ìàêåäîíèjà, 2 àïðèë 2004.
[105] Ibid., Art.
146.
[106] UNESCO, Explanatory Notes on the State of Conservation of Specific World
Heritage Properties http://whc.unesco.org/pg.cfm?cid=2
[107] Ibid., Introduction, ii.
[108] International
Charter for the Conservation and Restoration of Monuments and Sites, (The
Venice Charter- 1964), at http://www.international.icomos.org/charters/venice_e.htm
viewed on
[109] The Nara
Document on Authenticity (Nara Conference on Authenticity in Relation to the
World Heritage Convention, held at Nara, Japan, from 1-6 November 1994) at http://www.international.icomos.org/charters/nara_e.htm
viewed on
[110] Charter for
the conservation and restoration of the built heritage, the KRAKÓW 2000
CHARTER, at http://brezza.iuav.it/~rinio/eu-restauro/contents/carta.htm
viewed on
[111] Venice Charter, n.
108 above, Art. 2.
[112] Ibid., Art. 3.
[113]
[114]
[115] Ibid.,
Annex, Definition “e”.
[116] Ibid., p. 1.
[117] Ibid., p. 3.
[118] Ibid., Annex, Definition “f”.
[119] Ibid., p. 3.
[120]
[121]
[122] Robert Adam, How Heritage Dogma Destroys Living History,
at http://www.byen.org/artikler/adam.heritage.04.html
viewed on
[123] Ibid.
[124] Ibid.
[125]
[126] Ibid., p. 6
[127] Encyclopedia Britannica,
2001 Standard Edition CD-ROM.
[128] Ibid.
[129] Ibid.
[130] See Policy and Law in Heritage Conservation,
n. 51 above, p. 301.
[131] Ibid.
[132] Ibid., p. 25.
[133] Ibid., p. 26.
[134] Ibid., p. 27
[135] Ibid., p. 137 - 157
[136] Ibid., p. 41 – 72.
[137] Ibid., p. 59.
[138] Ibid., pp. 33 – 34.
[139] Ibid. P. 34.
[140] Communication from the Commission of the European Union on Promoting
the Role of Voluntary Organisations and Foundations in Europe, at http://www.budobs.org/eu-donation.htm
[141] Tax Relief for Business Sponsorship and Donations to Culture:
Incentive or Reward?, Speech given by Péter Inkei to the conference “Creative Europe –
Culture and Business in the 21st Century”, Innsbruck 15-18 November, 2001, at http://www.budobs.org/tax-paper.htm
[142] Ibid.
[143] Ibid.
[144] See Policy and Law in Heritage Conservation,
n. 51 above, p. 34.
[145] COE,
Parliamentary Assembly, Tax incentives
for cultural heritage conservation, at http://assembly.coe.int/Documents/WorkingDocs/doc03/EDOC9913.htm
viewed on
[146] Privatization
and Culture, Experiences in the Arts,
Heritage and Cultural Industries in Europe, edited by Peter B. Boorsma,
Annemoon van Hemel, Niki van der Wielen, Kluwer Academic Publishers, 1998.
[147] Ibid., p. 26.
[148] Art 24, para 2 of the Monuments of Culture and Museums Act.
[149] Art 35 and 37
of MCMA with ref. to Art. 5, paras 2 and 3.
[150] Art. 31, para 1, p. 5 and 6 of PDCA.
[151] Articles 112
and 113 of Protection and Use of Cultural Goods Act of
[152] Art 73 of the
Cultural Goods Act of
[153] Art 122, Cultural Heritage Protection