Rethink Heritage

Heritage is often defenceless in the absence of legal instruments for its suitable protection and management. With the exception of the odd case throughout history, most of the legal tools for the protection of heritage first appeared in different countries in the 19th century, coinciding with increased popular interest in different aspects of heritage, especially monumental or representing the identity or personal history of individual peoples. After the Second World War supranational bodies for the recognition, management and protection of heritage were set up, fostering a feeling of common ownership of the most iconic and representative human heritage worldwide. Such common denominators are UNESCO and ICOMOS  or we could also mention some internationally recognized strategies such as European heritage strategy for the 21st century set up by the Council of Europe.

This chapter proposes the examination of this complex and heterogeneous mosaic of legal instruments and a comparative cross-disciplinary study of the various current national legislations in selected European countries inluding the United Kingdom, Hungary, Poland, Slovenia, Greece, Italy, France, Spain and Germany. For the purpose of this comparison it is also worth enumerating the common European basis connecting all of these countries through the laws and articles accepted by the European Union as a whole:

• Lisbon Treaty, Article 167 is specifically devoted to cultural heritage
• Recommendation of 20 December 1974 from the Commission to the Member States on the protection of the architectural and natural heritage (OJ L 21,28.1.1975, p. 22-23) 31975H0065
• Council conclusions of 17 June 1994 on the drawing up of a Community action plan in the field of cultural heritage (OJ C 235,23.8.1994, p. 1-1) 31994Y0823(01)
• Council Resolution of 12 February 2001 on architectural quality in the urban and rural environment (OJ C 73,6.3.2001, p. 6-7) 32001G0306(03)
• Council Decision of 1 December 2011 on the practical and procedural arrangements for the appointment by the Council of four members of the European jury in the framework of the European Union's action for the European Heritage Label (OJ L 330,14.12.2011, p. 23-24) 32011D0831
• Decision No 1194/2011/EU of the European Parliament and of the Council of 16 November 2011 establishing a European Union action for the European Heritage Label (OJ L 303,22.11.2011, p. 1-9)  32011D1194
• Resolution of the Ministers responsible for cultural affairs, meeting within the Council, of 17 February 1986 on the establishment of transnational cultural routes (OJ C 44,26.2.1986, p. 2-2)  41986X0226
• Resolution of the Ministers responsible for cultural affairs, meeting within the Council of 13 November 1986 on the conservation of objects and works of art (OJ C 320,13.12.1986, p. 3-3)  41986X1213(02)

Also as a starting point let us also provide a list of the main laws of the selected countries concerning cultural heritage and the protection of monuments at national level:

• UK -  National Heritage Act (1983, amended 2002).
• France - Loi du 10 juillet 2000 relative à la protection des trésors nationaux
• Spain - Ley 16/1985, de 25 de Junio, del Patrimonio Histórico Español
• Hungary - Act LXIV of 2001 on the protection of Cultural Heritage
• Italy - Cultural Heritage and Landscape Code (D.Lgs. 22­1­2004 n. 42)
• Poland - Act of 23 July 2003 on the protection and the care of monuments
• Greece - 3028/2002, “On the Protection of Antiquities and Cultural Heritage in general”
• Germany - Different act for each region (Land)
• Slovenia - 2008. Cultural Heritage Protection Act

The Council of Europe, constituted in the London Treaty of 5 May 1949, is an international organization for the promotion of a common political and legal space on the continent in joint cooperation with European Member States. The Council of Europe has established a European Cultural Heritage Information Network which includes European public administrations in charge of the policies and strategies on cultural heritage, forming a single cooperation network in the field of Cultural Heritage. Thus, a network was set up with national coordinators appointed by the relevant ministers in order to share, exchange and analyse information on cultural heritage, exploring topics and fields of work which tackle current challenges and issues in the sector. There is also a public database with contributions from national coordinators, providing an inventory of European heritage policies in the 38 Member States of the Council of Europe, which is available on the following link:  https://www.coe.int/en/web/herein-system/country-profiles

Management and protection roles - centralized or decentralized

After reviewing the information obtained from the Council of Europe website on the organization of competences in the different countries analysed, the competence structures were broadly classified into two clear subgroups: while countries with major geographical, cultural and economic differences eventually propose more federal and decentralized policies, others favour more centralized heritage protection systems. 

The first group of countries includes France, Spain, Greece, Italy and Germany. In case of these countries although some heritage management and protection competences remain at national level there is also a clear transfer of competences at different levels (generally regional, but local in some cases), given the diverse and complex identities of the different regions. The advantage of decentralized systems is their capacity to permeate more levels of heritage, perhaps empowering more fragile communities (such as minorities or poorer more rural regions). These types of legislative systems reaffirm the historical-cultural, economic and social personality of a given area, and in turn potentially benefit certain particularly vulnerable and remote heritage assets. However, this system is at risk from negative effects from different regional and local policies which can lead to the failure of heritage conservation in areas under pressure from such threats as tourism or real estate speculation. The decentralized system therefore runs the risk of creating regions or communities with excellent conservation policies as well as other more limited ones. This demands an additional effort in coordination and homogenization which can be crucial in countries with many regional bodies.

Hence the advantage of centralized systems, where protection standards can be guaranteed as more uniform, but which permeate less within the different regions. This second group with competences organized as centralized  protection of heritage (though usually with local support) includes countries like England, Hungary, Poland and Slovenia. States with “umbrella” regulations can guarantee more systemic legislation which can be applied extensively throughout the territory. This may well be why in this scenario the most interesting regulatory resources are those which encourage some degree of coexistence of two legislations: “regional” ones and a “common” one for the State. These systems bring about a “vertical” distribution of national legislative competences and a “horizontal” distribution between several smaller bodies. This helps prevent unbearable pressure on the state while also reducing the cost of decision-making in the field of heritage.

On the following pages we will take a look at the effective legislation inputs of the international organisations (UNESCO and ICOMOS) and evaluate the legal systems of cultural heritage of the European countries selected for this research, first dealing with the ones with centralized systems and after that the examples of decentralized solutions.