COMPARATIVE CULTURAL HERITAGE LAW:  A DIALOGUE BETWEEN BRAZIL AND GERMANY IN THE EUROPEAN YEAR OF CULTURAL HERITAGE

Marcílio Toscano Franca-Filho*, Gabriela Pinto Brito de Figueiredo** & Marius Müller***

ABSTRACT: The internationalisation of Cultural Heritage Law might not take place without affecting national legal regimes regarding the protected subject matters. Worldwide, cultural heritage constitutes a source of remembrance, understanding, identity, dialogue and cohesion. In this context, this paper intends to deliver a comparative perspective of Cultural Heritage Law in Brazil and Germany as a stimulus for an interdisciplinary and cross-border dialogue about Art, Cultural History and Law. The significance of culture for international relations, soft power and regional integration is undoubted. Therefore, an analysis of recent regional policies on cultural heritage – of the Mercosur and the European Union – might also contribute to the objectives of the European Year of Cultural Heritage 2018 proposed by the European Commission. These two national views on Brazil and Germany can provide answers concerning the status of the national legal regimes on cultural heritage regarding internationalisation.

KEYWORDS: European Year of Cultural Heritage; History of Cultural Heritage Protection; Heritage Discourse; Comparative Cultural Heritage Law; International Cultural Relations

I.        Introduction

The argument of cultural heritage protection has been a dominant topic in politics, economics, international relations and science in recent years.[1] In this context, the concept of cultural heritage has become well established throughout the 20th century in the language of international, European, MERCOSUR, and domestic legislation. All tangible and intangible, movable and unmovable property which are nowadays defined as cultural heritage are of indispensable cultural, social, environmental, political and economic value.[2] This is the result of the “intensification of cultural heritage protection” which has taken place since World War II.[3] Therefore, research from innovative perspectives is required to strengthen their safeguarding. Mapping out the policies, laws and regulations within and beyond the European Union has been identified as one of the “overarching element[s] that [are] essential”,[4] if the new research landscape regarding the protection of cultural heritage is to be successful. A dialogue between Brazil and Germany regarding Cultural Heritage Law from a comparative perspective aims at contributing to this essential element in two countries which have a long-lasting relationship, with mutual cultural influences. Especially if seen in light of the European Year of Cultural Heritage 2018, this research might also be able to contribute to promoting the legal protection of culture as the “gem of […] foreign policy”[5] across the Atlantic.

II.     General and Historical Overview regarding the Protection of Cultural Heritage

When, in 1444, Enea Silvio Piccolomini – who would years later become Pope Pius II – visited the residence of the prince-bishop of Passau, he was convinced of that is man’s authority and dignity: “Close to this church at its very side, which glances towards the Inn, lies the most spacious and most splendored bishop’s palace […] I think every prince would wish to have his residence there. I would consider it appropriate for kings and emperors, yes, even for the Roman church’s popes […].”[6] The preservation of splendid public and ecclesiastical buildings and cultural property in general was an essential element for the legitimation of sovereignty or supreme secular authority.[7] A new but nationalised notion of heritage which took over humanistic thought in Europe after the French Revolution and Napoleonic Wars swept the symbols of the old regimes with a wave of destruction.[8] From the perspective of the history of ideas, the turning point for the evolution of heritage protection was the 19th century: it now legitimised the newly-gained participation rights for the part of societies entitled to vote within developing constitutional states. After modern preservationism[9] was once established, a broadened idea of heritage was translated into numerous legislative works.[10] Striking for the topic of this paper is the fact that during the late 19th century countless comparative studies on heritage protection –mostly with a Eurocentric character– surfaced: since then, legislation articulated a transfer of ideas, that was less limited to national or regional perspectives crossing “intellectual and administrative circles”.[11]

From a legal perspective, the 1975 European Council initiative “European Year of the Architectonical Heritage” initiated the contemporary transformation of political awareness which then turned into new legal provisions towards heritage protection. Yet in 1966 such process evolved in the United States due the most influential document “With Heritage So Rich”.[12] On international scale, heritage and monument articles were, in this context, included in the new 1975 constitution of Greece, the 1976 constitution of Portugal and the 1978 constitution of Spain.[13] In Germany, most of the sates passed special Monument Acts. Therefore, it is not coincidental that the 2018 European Year of Cultural Heritage will consider built heritage as a starting point, which will hopefully bring new impulse for heritage legislation: human and common cultural heritage gets most evident in the iconic monuments in certain territories. The basic concepts and objectives of laws for the protection of cultural heritage can only be understood if they are seen regarding their contemporary understanding of culture and history.[14] With growing interest in the historic character of objects at the end of the 19th century, the concept amplification began.[15] Monument protection thereby has a common European tradition of reciprocal influences.[16] Modern approaches of the different national legislations to the preservation of cultural heritage developed from these origins and nowadays adopt different methods and techniques.

The numerous national regulations for the protection of cultural heritage today create a very complex field of law as it comprises different legal instruments. However, it can be outlined as the sum of actions taken by the legislators and administration authorities to guarantee the conservation and integrity of cultural heritage objects.[17] That is why Ernst-Rainer Hönes made very clear that thinking of the law regarding cultural heritage requires —first and foremost — the legal concept of cultural heritage. Illustrating that this field is outlined by the interplay of international, regional and national law succeeds by approaching from a comparative perspective.[18] Enriched by the immense variety of human existence the term cultural heritage encompasses a large number of cultural manifestations. Referring to art, architecture, rural and urban landscapes, crafts, music, language, literature, traditional knowledge, digital sources, folkloric traditions or even sports culture, heritage seems unappropriated as a legal term. However, Lyndel V. Prott and Patrick J. O’Keef advocated that the term cultural heritage rightfully supersedes cultural property.[19] A dialogue comparing the legal instruments of two legal orders requires determining —first of all— certain tertia comparationis:

(1) Protected subject matter (all or some categories of cultural heritage),[20]

(2) Purpose of protection,

(3) Criteria for assessing heritage value,

(4) Constitutional fundament and legislative competence.

III.   Definition of Monument according to German Law

Cultural heritage law deals with several legal notions, but one of the oldest is the notion of monuments. The notion of monument is crucial in German Laws. While there is no single Monument Act in Germany there is not one single and authoritative concept of monument.[21] Monument protection in German laws set off from divergent definitions of monuments. However, they depart from cultural monuments (Kulturdenkmäler) being historic documentation of past developments.[22] Several Monument Acts use different hypernyms: monument (Denkmal) and cultural monument (Kulturdenkmal). These hypernyms comprise different sub-categories of (cultural) monuments. Before exemplifying this structure by the Bavarian Law for the Protection of Monuments, one commonly protected subject-matter can be summarised: These laws protect material goods, parts of them or structures, if their conservation is in the public interest.[23] Some laws require the protected subject-matter to be man-made and to be from past times or at least from a concluded epoch. Legal definitions of German Monument Acts employ a three-step system.[24] To be protected as a monument by means of the Monument Acts, an object must prove its suitability, value and public interest.[25] At this point it should be mentioned that the definition of monument incorporated in the existing German heritage laws appear to be faced with a dilemma. This is because the concept seems to require that — to be considered a heritage of value — an object must be old or, rather, from past times. Heritage objects were, consequently, equated with monuments. A comparative perspective in the field of cultural heritage law, therefore, assumes a clarification: The titles of heritage legislation referring to monuments reflect a historically-developed legal concept. Consequently, the internationalisation of heritage law requires a widening of the concept of monument. German Heritage Law marked by monument protection still appears to be bound to a legal notion of monuments, that is narrower than it has been in 19th century discourse.[26]

IV.   Definition of Monument according to Brazilian Law

The word monumento has been used with several meanings in the Portuguese language, including the world of law, always requiring an adjective to lend it a specific qualification and convey the actual meaning of the term. Sometimes, monument appears with a broad meaning, similar to that one of cultural goods in general. Some other times, it has a more limited meaning, as in article 143 of the 1937 Brazilian Constitution, which mentioned “historical, artistic and cultural monuments”, leaving at bay “the landscapes or places especially endowed with nature”. The legislator would have better expressed himself by using only the term “cultural monuments”, for it comprises the artistic and historical monuments. Only once does the 1988 Federal Constitution mention monumento, in its plural form and with no adjectives attached (article 23, III). Therefore, the generic sign monumentos, to become object of constitution legal protection, may address all types of monuments related to culture, be they of historical, natural or archaeological sort. The historical monuments, which are built elements, refer to the memory of some historical event, and are meant to be constructed to honour it, such as the monument to the independence of Brazil (Monumento da Independência), on the bank of the Ipiranga Brook, in São Paulo, or because, once created with a different objective, it has gained great historical value, such as the Castle of Óbidos, or the Fortress of the Three Wise Men. Artistic monuments (statues) are works of art to honour people, objects or animals. The historical monuments are also artistic and vice-versa.

The Constitution does not expressly mention natural monuments. The section that addresses culture (articles 215 and 216), does not even mention monuments of any kind. However, article 23, item III, mentions the term monumentos, without any qualification, which makes it an open concept. The generic reference surely comprises the historical, artistic and natural monuments, since even the law equalises them, with the aim of protection (Decree 25, of 1937, article 1, paragraph 2). Natural monuments, then, are noticeable elements of relief, formed due to the action of natural agents, which form a whole for themselves.[27] Then, we may name the Sugarloaf and the God’s Finger Rock, in Rio de Janeiro; the Chapada Diamantina, in Bahia; and the Iguazu Falls, in Paraná. It is important to highlight that all the references are natural monuments of historical relevance, when they indicate places that are representative of the processes of occupation of the territory, or they are natural elements which “were historically representative and important for the occupation of the land”.[28] In turn, the archaeological monuments are not exactly natural, since they have been influenced by the projection of the human spirit on their reality. They are forms of objectified human life. Although they have become object of protection of the public power by the earlier Constitution and by Decree 25, of 1937, it was Law 3.924, of 1961, which systematised the protection of such cultural goods, establishing that archaeological or pre-historical monuments of any nature existing in national territory and all the elements found in them are to be under public power guard. The current Constitution (Articles 20, IX, 23, III, 24, VII and VIII, and 216, V) address the inclusion of such monuments in the cultural heritage of Brazil.

V.      Historical and Contemporary Constitutional issues on Cultural Heritage in Germany

A.  Federal Constitution (Grundgesetz)

With the Constitution of the German Reich (Weimar Constitution) of 1919, heritage protection — for the first time — was formulated as a constitutional mandate of the state. Article 150 expressed: “The monuments of art, history and nature, as well as the landscape, enjoy the protection and care of the state. It is the competence of the Reich to protect German cultural heritage from removal to foreign countries”[29] On the initiative of the legal historian Konrad Beyerle and given the concern that the separation of state and church would endanger the rich ecclesiastical monuments, this norm was finally accepted.[30] An equivalent norm could not be included in the German Basic Law as its federal conceptualisation conferred cultural sovereignty to the federal states.

German Basic Law does not contain an explicit competence title in Articles 70-74 Basic Law for the federation to legislate over monument protection. Nevertheless, parts of legal science confirm the Federation’s legislative power for the protection of cultural heritage from different provisions. One approach argued for a legislative power of the federation from the concurrent competence in Article 74 (1) No. 18 Basic Law.[31] However, in 1987, the Federal Administrative Court made clear that only in aspects of urban development might some aspect of monument protection be encompassed by federal competence.[32] Another opinion identified an implied legislative power of the federation with regard to Article 30 Basic Law at least for such monuments of national significance.[33] The approach which considers the public responsibility for the preservation of cultural heritage to be accomplished by the federation, beyond the system of legislative powers of the Basic Law, appears to be interesting.[34]

According to Articles 30, 70 Basic Law the federal states shall have the right to legislate insofar as the Basic Law does not confer legislative power on the federation. In the field of culture and education, an exclusive legislative power of the federation is missing. Contrary to the constitutional model of the Weimar Constitution, German federal states are endowed with cultural sovereignty (Kulturhoheit) by the Basic Law. Within the federalist structure of Germany, this branch of an original state sovereignty[35] is core element to the state quality of the several parts of the federation, according to the German Constitutional Court.[36] Therefore, the legislative power for the protection of cultural heritage as part of cultural law is mostly in the hand of the sixteen federal states. Limitations to this legislative power result from Article 73 (1) No. 5a, which confers the safeguarding of German cultural goods against removal from the country as a matter under exclusive legislative power to the Federation. As the Basic Law (Articles 32 (1), 59) confers the competence to conclude treaties with foreign states to the Federation, it has a limiting effect to the cultural sovereignty of the federal states. Cultural Property and Monument Protection as branches of German Cultural Heritage Law, consequently, fall within the legislative power of the federal states. According to Article 74 No. 5 Basic Law, the protection of cultural property against removal represents a matter of concurrent legislative power of the federation. By enacting the Law for the Protection of Cultural Property, the federation made use of its legislative power. An obligation for the protection of cultural property results, consequently, only in the context of both constitutional spheres. This means that the protection of cultural property by means of the constitutions of the federal states receives its constitutional legitimation by the guarantee of Article 5 (3) Basic Law.[37] The Basic Law does not contain an explicit constitutional provision on the “Cultural State” (Kulturstaat) as state objective (Staatszielbestimmung). Nevertheless, the existence and validity of the “Cultural State” as such a state objective is commonly accepted.[38] In German jurisdiction, such constitutional objectives are “recognised as a category of binding norms of constitutional value committing all state organs, and serve as a tool to interpret the constitution as a whole.”[39] Due to their soft and vague character, constitutional objectives have been criticised, as well as the EU external objectives.[40] Not only in 1973 did the Federal Constitutional Court (BVerfG) define the Federal Republic as “cultural state”;[41] in 1974 the BVerfG expressed, with regard to Article 5 (3) Basic Law, that the modern German state would consider itself in terms of a constitutional provision on a state objective as “cultural state”.[42] This provision is derived from several constitutional guarantees of the Basic Law, which are connected to the aspect of culture.[43] As Article 5 (3) Basic Law protects the creation of culture as well as created culture,[44] it is primarily employed to deduce this legally binding norm with constitutional rank.

B.  State Constitutions

After 1945, more than half the constitutions of the German federal states contained heritage articles by adopting the Weimar example, mostly with some supplement.[45] Therefore, most of the constitutions of the sixteen German states establish monument protection as a state objective (Staatszielbestimmung) in accordance with the tradition of Article 150 (1) Weimar Constitution.[46] Article 141 (1) Sentence 4 and (2) Constitution of the Free State of Bavaria (Bavarian Constitution) reads:

“(1) […] One of the paramount tasks of the state, the municipalities and corporate bodies under public law shall also be to protect ground, water and air as the natural basis of life, to remedy or compensate for any damage which may occur, if possible, and to ensure that energy is used as economically as possible, to preserve and continuously improve the efficiency of the ecosystem, to protect the forest due to its particular importance for the ecosystem and to remedy or compensate for any damage which may occur, to preserve and treat with care the indigenous animals and plant species, their natural habitats, as well as the characteristic appearance of towns and natural landscapes.

(2) It shall be the task of the state, the municipalities and the corporate bodies under public law to protect and care for art, historic and natural monuments and the landscape, to restore degraded artistic and historic monuments to their previous purpose as far as possible, to prevent the outflow of German art treasures to other countries.”

Other post-war constitutional texts such as that of Bremen, Lower Saxony and Schleswig-Holstein merely contain a commitment to the protection and promotion of culture.[47] Most of the constitutions of the German federal states contain explicit provisions for a “cultural state”. Article 3 (1) Sentence 1 of the Bavarian Constitution formulates: “Bavaria is a cultural and social state governed by the rule of law.” Such general provisions entail great difficulty. While it is not explicitly clear what to subsume under the notion of culture, a certain program of state actions shall be outlined.[48] Culture as a state objective also embraces the protection of monuments.[49] Except for the constitution of Mecklenburg-West Pomerania, those of the federal states re-established after 1990 contain explicit monument protection articles.[50] Considering these constitutional norms as state objectives means assuming they are not mere declaratory proclamations (Programmsätze). Legislators of the federal states are consequently obliged to guarantee the objective of monument protection by non-constitutional state laws.[51] The scope of this constitutional obligation is again disputed. Some consider that the legislator’s obligation is to provide with non-constitutional laws their enforceability by other state organs.[52] Others recognise directly obliging legal propositions.[53] From formulations as that of Article 141 (2) Bavarian Constitution conferring monument protection to the “state, the municipalities and the corporate bodies under public law” including the churches,[54] results a direct obligation of their part to act.[55]

According to Article 3 (1), Bavaria is a cultural state. Cultural Heritage Protection has a special weight in Bavarian constitutional law. Systematically, the Bavarian Constitution incorporates its protection twice. The constitution not only recognises the protection of monuments as part of the state’s care for culture (Article 141 (2)) but also as part of the protection of the cultural environment (Article 141 (1) Sentence 4). Meanwhile, a commitment of the Bavarian state towards the cultural heritage results from the fundamental principle of the state contained in Article 3 (2) Sentence 1 Bavarian Constitution:

“(1) Bavaria is a cultural and social state governed by the rule of law. It shall serve the public good.

(2) The state shall protect the natural basis of life and cultural heritage. […]”

The objective of protecting and conserving monuments contained in Article 3 (2) and 141 Bavarian Constitution is to protect the natural basis of life.[56] The natural and the cultural-historic resources are essential elements of life quality and necessary with regard to the dynamics of endangering processes in terms of globalised civilisation.[57] In this context, the mentioned non-constitutional law, which is, in the Bavarian case, the respective Monument Protection Law, carries out the objectives formulated in Article 141 (1) and (2) by accomplishing at the same time the command of Article 3 (1) and (2) Bavarian Constitution.[58] Non-constitutional legislators and administrative bodies are not only limited by constitutional law but are also obliged to realise the main ideas of Article 141 Bavarian Constitution within their competences.

VI.            Historical and Contemporary Constitutional issues on Cultural Heritage in Brazil

Culture was first introduced in constitutional texts since the creation of a specific title to the economic, social, educational and cultural order. In this aspect, the pioneer was the 1917 Mexican Constitution and, later, the 1918 Weimar Constitution. The latter is the most influential in the production of Political Charters between World War I and II and it was this German influence which paved the way for article 148 of the 1934 Brazilian Constitution, which addressed the protection of the sciences, arts, letters and culture in general.[59]

Article 148 “The Federal, State and Municipal governments are responsible for fostering the development of the sciences, arts, letters, culture in general, protecting the objects of historical interest and the artistic heritage of the country, as well as providing assistance to intellectual workers.” 

About the lessons of constitutionalist José Afonso da Silva, the 1988 Constitution favours culture through the semiotics of its concept, as a philosophical form of conceiving culture. This philosophical current claims, that culture is not an experimental science in search of laws, but, rather, an interpretative science in search of meaning, understood as a system of interactions between interpretable signs, and a context within which all social phenomena may be found in a tangible and dense way. It is important to bear this in mind, because the Constitution does not view culture from the anthropological perspective, but, rather, as a system that refers to identity, action, the memory of the different groups of Brazilian Society. From the anthropological viewpoint, all objects, all human work, all that has been constructed, is culture, as are a fork and a sword. These tools are objects of culture in the anthropological sense, but either of them will only have a constitutional meaning if it elevates to a referential meaning, for example, to be an object that was used by a character of historical importance. The 1988 Brazilian Constitution addresses culture in articles 5 and 220 as a manifestation of individual right and freedom and copyright; articles 23, 24 and 30, as rules of distribution of competences and as object of popular action; articles 215 and 216 as an object of juridical protection and as Brazilian heritage; article 219, as an incentive to domestic market, which enables cultural development; article 221, as principles to be followed by radio and television stations; article 227, as a right of children and adolescents; and article 231, as it recognises the rights of Indians.

VII.         Legal issues regarding federal, state and municipal competences in Germany

Different legal instruments for the protection of different forms of cultural heritage are governed by the respective definitions of their protected subject matters.  These legal instruments belong to different branches of legislation and experienced a certain process of refinement through internationalisation since modern legal evolution began with protection focusing on monuments.[60] Cultural heritage as a leading concept needs to be an indefinite legal notion. However, for an adequate legal enforcement by applying non-constitutional laws, definite notions are needed. On the one hand, federal law for the main part protects privately- or publicly-owned and registered cultural property and archival materials against removal. On the other hand, the laws of the sixteen German federal states aim primarily at the protection and preservation of the substance of monuments within their territories. Consequently, the federation and the federal states share the competence of preserving cultural heritage for the coming generations. These assumptions are confirmed by Section 5 of the new and contested German Cultural Property Protection Act (KGSG):[61]

“National Cultural Property as part of Germany’s Cultural Heritage is subject to the protection against removal from Federal territory according to this act.”

These clarifications are necessary to understand the differences between the two areas marking the field of German Cultural Heritage Law (which are still mostly considered separately): tangible cultural heritage or, rather, cultural property[62] protection (Kulturgüterschutz) on the one hand, and monument protection (Denkmalschutz) on the other hand. Apart from monuments, there exist cultural goods that are not monuments stricto sensu.[63] Hence, it is more precise to consider monument protection as a branch of the protection of tangible cultural heritage.[64] Therefore, Frank Fechner has asked for comparative legal analysis, which reveals the basic structures and objectives of these fields of law and to stimulate a process of correlation between these two areas.[65] In this context, it needs to be clarified that German laws dealing with the protection of cultural heritage are essentially associated to different areas of legal science – Monument Law as well as Cultural Property Law as part of Art Law.

Departing from Section 7 (1) KGSG, the different notions approach:

“Cultural Property […] has to be registered if

1.   It is particularly valuable for the cultural heritage of Germany, the federal states or their historic regions and, therefore, identity-establishing for German culture […]”

In a few words, that means that the concept of cultural heritage in German law requires an intangible quality while a material good can be a monument or cultural property, if it represents the cultural-historical development of human activity in a certain field.[66] Obviously International Cultural Heritage Law is marked by wider legal definitions, which also require the condition of a historic quality but encompass immaterial goods. In conclusion, legal concepts of cultural monuments and cultural property outline the field of German Cultural Heritage Law and the respective legal definition.

A.  Federal Level

a.   German Cultural Property Protection Law

(1) Purpose of Protection

The Federal German Cultural Property Protection Act (KGSG) is divided into ten chapters. It regulates the protection of national cultural property against removal, import and export of cultural property, with utterances of cultural property, restitution of unlawfully imported and exported cultural property and restitution assurances in the international loan system. Regulations contained in this federal law consequently do not consider the protection and conservation of historic substance or context. Due to the legislative competence system contained in the German Basic Law, these aspects should be regulated by federal states law. Chapter 2, Section 5, defines the basic concept of this law: “National Cultural Property as part of Germany’s Cultural Heritage is subject to the protection against removal from federal territory under this law.” The notion of national cultural property is the result of an internationalisation of German Cultural Heritage Law considering Directive 2014/60/EU as well as the UNESCO 1970 Convention.[67]

(2) Protected Forms of Cultural Heritage

A material good is subject to cultural property protection if it corresponds with the definition contained in Chapter 1, Section 2 (2) No.10 KGSG. Cultural Property is a: “Movable object or structure, which is of artistic, historic or archaeological importance or from other fields of cultural heritage especially of paleontological, ethnographical, numismatic or scientific importance.” For the material assessment of an object as cultural property, the law employs a multi-step system. In the first place, an object must suit the concept of cultural property. According to the cited definition, this means that only movable things or a multitude of things in the sense of Section 90 German Civil Code can have the characteristic of cultural property. Second, it must fulfil the conditions of having cultural property ability: artistic, historic or archaeological importance or from other fields of cultural heritage especially of paleontological, ethnographical, numismatic or scientific importance. In the last instance, the great number of objects that generally possess the explained cultural property ability should be restricted to guarantee general acceptance.[68] According to Chapter 2, Section 7 KGSG, Cultural Property goods can only be registered in the federal states’ records of cultural property and archival materials of national significance if

“1. They are particularly valuable for the cultural heritage of Germany, the federal states or their historic regions and therefore identity-establishing for German culture and

2. their removal would constitute a substantial loss to German cultural possession and, therefore, its continuance in German territory is of outstanding cultural public interest.”

Consequently, National Cultural Property by means of the KGSG is not only an object listed due to the characteristics described before. Chapter 2, Section 6 No. 2-4 also encompasses collection objects of publicly financed institutions keeping cultural property. Cultural property of national significance, consequently, is only part of national cultural property.[69]

B.  Federal State Level

a.       German Monument Acts

aa.    Purpose of Protection

Monument Acts of the German federal states protect the memory-value of cultural heritage. Included by the scope of these laws are generally movable and immovable corporal objects. In general, the conservation of these objects must be of artistic, scientific or historical value in the public interest. However, some federal states extend the public interest for conservation on ethnological, technical, ritual or urban planning aspects. Monument protection and conservation as a concern of the common good is legitimised by their purpose.[70] The first purpose is the scientific exploration and preservation of the different sub-categories of cultural monuments. A second purpose results from the consideration of the sum of monuments as cultural heritage[71] leaving behind the idea of a single res recordationis. Finally, Monument Acts have a dual purpose: first, the preservation of single monuments as historic documents (authenticity); second, to sustain the existence of cultural heritage.[72] While this purpose was already confirmed in 2008 by the Bavarian Constitutional Court, the European Year of Cultural Heritage 2018 will hopefully promote exactly this understanding.[73]

bb.   Sub-categories of (Cultural) Monuments

Except in Baden-Wuerttemberg, German Monument Acts distinguish movable and unmovable monuments from built and archaeological monuments.[74] Bavarian Law can illustrate the categorisation system of German Monument Acts.

(1)    Built Monuments

Built monuments are built structures or parts thereof from a past time including historic pieces of equipment, which possess the significance listed in Paragraph 1 and insofar as they are not covered by Paragraph 4 (Article 1 (2) Sentence 1 DSchG[75]).[76] A singular built monument can be every built structure according to Article 2 (1) Bavarian Building Code. The reference to the past time is necessary as the Law aims at the protection of original evidence of past times, developments and living conditions.[77] Article 1 (2) Sentence 3 and (3) DSchG opens the concept of built monuments as they refer to gardens and historic districts. Special emphasis on the protection of the characteristic appearance of towns and villages or other multitudes of built structures is owed to the experiences of the Second World War.[78]

(2)    Underground Monuments

Underground monuments are movable and immovable monuments which are or were located in the ground and, in general, date from prehistoric or early historic times (Article 1 (4) DSchG). The dominant anthropocentric concept of monuments in most of the German Monument Protection Law requires that objects be anthropogenic or evidence of human life.[79] The terminable formulation in the Bavarian Law would exclude monuments of the Second World War[80] period; this is why it is also appropriate to speak of archaeological monuments. Things that were located underground do not lose their character as underground monuments once they have been excavated or uncovered.[81]

(3)    Movable Monuments

Except in Baden-Wuerttemberg and Schleswig-Holstein, German Monument Acts encompass movable monuments as a sub-category. Analysing the protection of movable objects, which are supposed to have monument value, two categories must be differentiated: (1) movable and independent things and (2) movable things that are part of a built monument. In this context, Article 1 (1) DSchG defines monuments as “anthropogenic objects or parts thereof from a past time, whose preservation is in the interest of the general public due to their historic, artistic, urban development, scientific or ethnological significance.” The differentiations get clearer in Article 1 (2) Sentence 2 DSchG: “Also, movable objects can be historic pieces of equipment, if they are an integral element of either a historic space concept or of a historically completed re-equipment or restructuring, which is comparable to such a concept.” Movable objects with monument value may enjoy the same legal protection under this law as immovable monuments.[82] Movable monuments registered according to Article 3 (1) DSchG enjoy increased protection by the supervision of the competent institutions.

C.   Municipal Level

On municipal level, two examples of legal instruments for the protection of cultural heritage should be described. German Basic Law does not contain a homogeneous legislative power for Building Law. Article 74 (1) No. 18 GG assigns a concurrent legislative power to the federation in the field of Soil Law from where local heritage protection evolves. Within their competence, municipalities can pass statutes to protect the appearance of their built community; in 1984, the city of Passau did so to protect its built heritage “to conserve the city’s historically grown appearance”.[83] Consequently, the protected subject matter is not a corporal one. Thereby, it does not protect its historic substance, which is protected by the Bavarian State Law, but, rather, the fundamental value of the city’s appearance. Here it gets evident that the purpose of protection concurs with the UNESCO 1972 convention. Another legal instrument for the legal protection of intangible cultural heritage can be find in a most interesting case decided by the Federal Administrative Court in 2009.[84] In its judgment, the court articulated that from the federal constitution’s guarantee to local self-government (article 28 (2) sentence 1) derives a prohibition of material privatisation of local celebrations if they are of cultural, social, or traditional importance. Considering these examples, the following conclusion might be admissible: there exist instruments in German law on municipal level to protect intangible cultural heritage.

VIII.      Legal issues regarding federal, state and municipal competences in Brazil

A.  Federal Level

On 13 January 1937, Brazilian president Getúlio Vargas signed Law no. 378, which set up the National Institute for the Artistic and Historical Heritage (Iphan), a federal agency formerly bound to the Ministry of Education and Health and, nowadays to the Ministry of Culture, responsible for the preservation of all Brazilian cultural heritage. Its function is to protect and promote national cultural goods, for all current society and the future generations to enjoy them. Iphan is structured into 27 superintendencies (one for each federal unity), 27 technical offices (majorly concentrated in cities which are urban centres considered historical landmarks, also known as Historical Cities), and, 5 special units, located in Rio de Janeiro and Brasília. In addition, Iphan is responsible for conserving, safeguarding, and monitoring Brazilian cultural goods listed under UNESCO’s World Heritage and Intangible Cultural Heritage, according to the Convention Concerning the Protection of the World Cultural and Natural Heritage, of 1972, and the Convention for the Safeguarding of the Intangible Cultural Heritage, of 2003. The principles that drive the actions of the Institute have evolved and kept a close connection with legislative innovation and the social context of each epoch. Likewise, the concepts (for example, the semantic content of culture and what is understood as cultural good) have changed.

Iphan’s creation assembled a number of intellectuals: Rodrigo de Melo Franco, Lúcio Costa, Oscar Niemeyer, Carlos Drummond de Andrade, Manuel Bandeira, among others. However, Mario de Andrade, an outstanding Brazilian writer, played a major role in the foundation of this cultural office. Upon request of Gustavo Capanema, Ministry of Education at the time, Mario de Andrade, Brazilian writer and poet, sketched the law that would create Iphan, which contained the baselines for a cultural policy that valued the social contexts and the formation of a genuine Brazilian national culture. At the end of the 1920s, Mario de Andrade travelled to the North and Northeast regions of Brazil to learn about the cultural identity of people in these regions; he wrote down everything he saw for later promotion and concretisation of his ideal to change the cultural paradigm, as far as Brazilian public policies were concerned.

Despite the efforts put in by the modernists to consolidate a nationalist policy at Iphan, the heritage management indeed put in practice valued the colonial architecture, the aesthetical reading of the beaux arts and the history of great characters, people of the elite, their historical deeds, etc.[85] The churches of Minas Gerais, representing the eighteenth-century baroque, for example, were greatly protected by Iphan, at the time of its creation, for they represented well the European architecture, even if they had some Brazilian traces. These public policies have been called “rock and lime policies”.

Decree no. 25/1937 confirms the ideological guidelines adopted by Iphan. The heritage policies adopted limited the representativeness of culture and the reach of the concept of cultural heritage formulated by Mario de Andrade: they stated that only movable and immovable heritage (material culture) which had a connection with memorable events in the history of Brazil, or had an exceptional archaeological, ethnographic, bibliographical or artistic value, should enjoy government protection. The State and its bureaucracy — especially military — are exalted, as well as the relations between the elite and Catholicism, which leads to social and cultural exclusion. This decree also establishes the government trust. Only in the 1970s did the institutional practices start to be reviewed. The cultural references to be preserved were magnified; the idea of cultural dynamism was added to the concept of culture, and the representativeness of the goods that are cultural heritage became an issue of discussion, in one attempt to introduce the local and Community cultures in this framework. Brazil was then moving from cultural bureaucratic insulation toward a policy of cultural pluralism. The federal government turned its attention not only to material goods, but also to intangible culture, enlarging Iphan’s spectrum of protection, therefore, focusing on the diversity of sources. Then, Brazilian culture was not only that originating 500 years before with strong European influence but, rather, it was also that which is created and experienced in the present, created by the contemporary Brazilian citizen, genuinely Brazilian, which synthesises several cultures to form the Brazilian culture.

B.  Federal State Level

Just like the previous topic, this item will restrict itself to just one Brazilian state, since the legislation and administrative organisation of each state will vary, each one having their own particular characteristics. The state chosen to serve as an example to explain state protection is Pernambuco. A state rich in historical-cultural heritage, because it was one of the first regions founded in the colonial period, Pernambuco is home to heritage-related public policies with the objective of preservation and restoration. In 2003, in a pioneering previously unseen decision, the Audit Court of the state of Pernambuco took the initiative to control the public actions related to material goods —that is, the urban centres and sites of historical, landscape, artistic and archaeological value — through studies of a proposal for the public power to act, with the aim to contribute to the quality of preservation and intervention actions on such heritage. Consequently, such studies — entitled “Cultural Auditing: Intervention on Cultural Goods Affected by Legal Protection” (Auditoria Cultural: Intervenção em Bens Culturais Afetados por Proteção Legal) — enable the State Audit Court to arrange measures for external control, be they to correct and/or punish, or measures of pedagogical reach. This practice is to guarantee the safeguarding of cultural heritage values, as well as assess the aspects of economy, legality and effectiveness of actions taken to preserve this collection.

The data gathered by the audits, concerning the accountability, follow-up to management practices and investigation of denunciations, evidence a diversity of managerial and technical procedures adopted by the Public power. This information also shows that the varied procedures have been generating technical, methodological and operational deficiencies, including legal nonconformities, which contribute decisively to the low quality of the interventions, both during the project design and during its execution.[86] Several cultural goods have been subject to interventions which lost them part of their constitutive elements, and even caused partial or total loss of their values, such as originality, integrity and authenticity. What generally happens is the deviation of the use of the cultural good, for most of the interventions care more for adapting the good to a specific intended use than making the use adequate to the good, which generates a conflict with the international recommendations and principles of preservation. Normally, the arguments used to make these proposals viable are set on the state of abandonment and carelessness these goods are in, and they allege that this is an opportunity to prevent the full ruin of the cultural Good. This type of justification, whose impact is almost always negative, is very common in Brazil due to the precarious state of several historical properties and the need these preservation offices have to prevent total loss, reducing, this way, pressure the society may make.[87]

Apart from the lack of expertise to execute the intervention procedures, another factor that hugely contributes to the preoccupant state of preservation of great part of the Brazilian cultural collection is the insufficient volume of financial resources destined to this end. According to the cultural audit of the TCE-PE, published in 2014, each and every intervention must primarily rely on the preservation of the cultural significance of such a good. The procedures shown in this audit are based on constitutional provisions (the 1988 Constitution of the Federative Republic of Brazil, Decree no. 25/1937 (which organises the protection of the National Historical and Artistic Heritage and creates the National Trust), Decree no. 80.978/77 (which approves and adopts the 1972 UNESCO Convention, which deals with the protection of World, Cultural and Natural Heritage), Federal Law no. 9.605/1998 (on environmental crimes, articles 62-65), Federal Law no. 8.666/93 (on biddings and contracts of the public administration), Resolution T.C. no. 03/2009, of the Audit Court of the State of Pernambuco, and the major legal instruments that rule over the issue of preservation of cultural heritage and the adequate management of public things. In addition, it relies on the Heritage Charters (Cartas Patrimoniais) for guidance and theoretical basis.

Apart from the mentioned references, the publication of the cultural audit also relies on the legislation of the Federal Council of Engineering and Agronomy (CONFEA), Law no. 5.194/1966, Resolution no. 218/1973, Resolution no. 1010/2005; the legislation of Brazil’s Council of Architecture and Urbanism (CAU/BR), Law no. 12.378/2010; and the legislation that addresses issues of accessibility, namely: federal laws no. 10.048/2000 and no. 10.098/2000; IPHAN’s Normative Instruction no. 01/2003; Federal Decree no. 5.296/2004; ABNT Brazilian Norm NBRno. 9050/2004. The Audit Court of the State of Pernambuco is an important actor in the cultural protection scenario, investigating insufficient care by public administrators when conducting works and services of restoration and maintenance of cultural heritage, to prevent irreversible losses deriving form inadequate interventions.

C.   Municipal Level

Since Brazil has 5,570 municipalities, it is more convenient to discuss the municipal protection by one Brazilian city as a model — since each city has their own specific protection offices. As a matter of fact, not all cities have a specialised office, because many are small cities, mainly in the inner regions of the states, which do not have the necessary funds to afford this type of service. Therefore, this topic will address the city of São Paulo — for it is one of the most important metropolis in Brazil and around the world — and, more specifically, its policies to protect graffiti, which has been acknowledged as cultural heritage since 2011 by federal legislation, and whose recent public policies have been object of controversy.

In early 2017, a Popular Action Lawsuit was filed against the city of São Paulo and mayor João Doria for effacing graffiti, including walls commissioned by the city itself, and painted on the streets of São Paulo. The authors of this lawsuit claim that it be determined that COMPRESS (São Paulo City Council for the Preservation of Historical, Cultural and Environmental Heritage) be responsible for setting out the guidelines for removing street paintings and drawings, since the civil society has representatives in this office. This would make more legitimate and democratic the power of deciding over the city’s urban aesthetics, unlike what actually happened: a set of discretionary actions of the city administration (government acts), with no say whatsoever of the population in the execution of these policies, which goes against the City Statute (Estatuto da Cidade, in Portuguese) and the Federal Constitution.

The City Statute clearly sets the guidelines for the urban policies of the cities so that constitutional objectives are reached (to organise the full development of the social functions of the city and guarantee the wellbeing of its inhabitants). One of these guidelines, which deserves special attention is in article 2, II: The democratic management through the participation of the population and associations which represent several segments of the Community to formulate, execute and follow-up to plans, programs and projects of urban development; and the protection, preservation and recuperation of the natural and built environment, of the cultural, historical, artistic, archaeological and landscape heritage. In addition to claiming a statement on the competence, the lawsuit claims financial indemnity for the São Paulo City Environmental and Cultural Heritage Protection Fund (FUNCAP), for the harm caused, and petition for urgent relief for all removal of paintings, drawings or calligraphy in public places to be halted while the CONPRESP does not provide the guidelines. The judge of the 12th Treasury Court of São Paulo, Dr. Adriano Marcos Laroca correctly granted advance relief to the complainants and, in addition, gives a class on the art of graffiti and how it fits into the roll of cultural goods that must be protected by the State.

The ephemeral characteristic of graffiti, as street art, does not prevent it from being acknowledged as cultural good, which is, in fact, some cultural policy to preserve it even if for some time, while another work does not come to substitute it. After all, how can we measure the ephemerality of this artistic manifestation, especially in our liquid society (Zygmunt Bauman) and the digital era, where the liquidity of things and human relations tend to prevail?[88] Entering the conceptual field, the judge differentiates graffiti from tagging and muralism in a very didactic way. Whereas graffiti is a more elaborate, complex, multi-coloured painting, which uses several techniques and drawings and seeks to transmit some information or opinion, tagging, which remains in Brazilian legislation as an act of vandalism, is characterised by the act of writing words of protest or insult, signatures of people or gangs on walls, building façades, monuments and thoroughfares, generally with black paint. It is to be agreed that graffiti not only deserves governmental protection for it is a mere human artistic expression but also for being a way of re-appropriation of the urban space by those who are marginalised, a way of social inclusion. Starting in the late 1960s and early 1970s, in the ghettos of New York and California, graffiti is clearly associated with African-American and hip-hop movements. It has become a way of social manifestation to expose the oppressions suffered by those who are less favoured. Among these people was Jean-Michel Basquiat, who was sponsored by his friend Andy Warhol, and is today acknowledged as one of the most important neo-expressionist artists of the late 20th century and will soon have an exhibit at the Art Museum of São Paulo – MASP.

IX.            EU Law

European Law encompasses a decisive number of different legal norms. Besides the founding documents (primary law), exist the law passed by the different EU institutions within their respective competences (secondary law). One example in the field of cultural heritage of secondary EU law is the 1954 European Cultural Convention. Article 5 reads: “Each Contracting Party shall regard the objects of European cultural value placed under its control as integral parts of the common cultural heritage of Europe, shall take appropriate measures to safeguard them and shall ensure reasonable access thereto.”[89] EU Directives, as another form of secondary EU law, generally have to be transposed into national law by the different member states. Consequently, the ability of an object to be protected as part of cultural heritage derives from the value of a common trusteeship. Examining the different documents of secondary EU law with references to forms of cultural heritage Ernst-Rainer Hönes has come up with a definition: “Cultural heritage is composed of several resources, which have been inherited from the past. Regardless of the question of ownership, humans identify these resources as reflection and expression of their constantly developing values, principles, knowledge and traditions.”[90] Since at least 1985 the Federal Republic of Germany has been forced to deal with the concept of cultural heritage by the Council Directive of 27 June 1985 on the assessment of the effects of certain public and private objects on the environment; the issue of cultural heritage in German law is palpable.[91] By transforming the term “cultural heritage“ used in the EU-Regulation into “cultural property” the federal legislator faced the legal and linguistic problem with a limitation.[92] A literal transposition by Bavarian legislator is evident in Article 78c Bavarian Procedural Administrative Code.

X.               MERCOSUR Law

In the regional field, the role of the MERCOSUR in the protection of cultural heritage stands out, and Brazil has been a member since 1991, as a founder. Along with Argentina, Uruguay, and Paraguay, Brazil intended to create a common ground, in international level, to allow new commercial opportunities and investments, through the competitive integration of the national economies in the international market. These countries have participated in activities and summits and have preference in the business relation with the Member States. However, in 2012, MERCOSUR showed that not only the economy is a point of concern; rather, the bloc is also interested in the cultural heritage in its Member States, which deserves to be protected. Therefore, by the decision no. 55/12, the Common Market Council (Conselho Mercado Comum) created the category of MERCOSUR Cultural Heritage and passed the “Regulation for Acknowledging the MERCOSUR Cultural Heritage”. Its objectives are the strengthening of cultural identities, promotion of dialogue, integration and regional development by establishing criteria for acknowledging cultural goods, for proceeding with candidatures and approval of such goods, for managing the acknowledged goods and the technical assistance and cooperation for the preservation and promotion of such goods. Any cultural good, be it material or intangible, may be acknowledged as MERCOSUR Cultural Heritage if it proves to have historical value common to the member states; if it shares cultural references with more than one country in the region; and, if it promotes the integration of the member states.[93]

XI.            Administrative structure, organs and people in the German system

In Germany, several agencies work together to protect cultural heritage. On federal level, there is the Federal Government Commissioner for Culture and the Media who is responsible for issuing licences to export cultural property and archival materials of national significance. Within the sixteen federal states, state offices for monument and cultural property protection work on the legal fundamentals provided by the several Monument Protection Acts.

A.   Bavarian State Office for Monument Protection

The Bavarian State Office for Monument Protection can serve as a paradigm to illustrate the work of such administrations in the German states. Since the organisation reform implemented by its then director Egon Johannes Greipl, the State Office is the first service provider to all parties involved in monument protection and conservation. Furthermore, it keeps the so-called Monument List, which is the records of all monuments within Bavaria protected under the Monument Act. This means that scientific studies are constantly conducted to keep the list up to date and to provide necessary information to determine the historic, artistic, urban development, scientific or ethnological significance of all the forms of cultural heritage protected by the law.[94] With the Bavarian Monument Atlas (Bayerischer Denkmalatlas), this agency provides online direct access to the basic scientific information regarding all the listed objects, completing its printed publications.

B.   German National Committee for Monument Protection

Founded in 1973, the German National Committee for Monument Protection (Deutsche Nationalkomitee für Denkmalschutz) is an organisation which serves as a link between all parties involved in heritage protection in Germany: Federation, federal states, churches, municipalities, private initiatives, scientific organisations and associations. Its office is integrated in the administration of the Federal Government Commissioner for Culture and the Media. The patron of the Committee is the President of the Federal Republic of Germany. With the initiative for a European Architectonical Heritage Year in 1975, the Committee could stimulate not only an enormous public interest for the built heritage but also the adoption of Monument Protection Acts in all German federal states. Right in this context the German National Committee for Monument Protection together with the European Commission could initialise the preparations for a European Year of Cultural Heritage 2018. Its aim is to share the tangible and intangible cultural heritage and its potential for identification, participation and development within the European Union. The European Year of Cultural Heritage 2018 builds —in particular but not exclusively anymore — upon the fact that cultural heritage is always both local and European. It also builds on new (maybe legal) opportunities to preserve and develop cultural heritage while underscoring the need to do so, because cultural heritage is an essential, unique, irreplaceable part of Europe’s social and economic potential which is closely tied to many other areas and is thus the foundation of a shared development in Europe.

XII.         Administrative structure, organs and people in the Brazilian system

As we discuss public power, it is essential to understand that selecting cultural heritage derives from a political act. In the spectrum of cultural heritage, issues of meaning and symbolic nature — which go through materiality and immateriality —, as well as issues of political nature, are sure to be faced. The cultural good has a historical and social value for one people and a political value for the State, and it is important to know how public policies are made. In the policies, it is always possible to find something intentional which escapes pure reality and the facts. Political acts are nothing but ploys to reach a public interest. It is important to highlight that the word “public” may refer both to the State as a political organisation, and to the people, society itself. This way, political acts are conducted with the aim to achieve objectives that will benefit society at times while, some other times, will benefit the State machine itself (most of the times). As to heritage public policies, it is no different. When choosing from a vast set of objects, buildings, intangible goods, images, etc., the public power can produce meanings, legitimise or exclude groups, social segments and classes. It can be noticed, then, that cultural heritage is not something that takes place prior to the historical process of political, juridical and social production; rather, it is an instrument for the realisation of such process. Cultural heritage is room to symbolic fights. It has been associated to narratives of construction of the nation, to aesthetical clash, urban policies, the defence of democratisation processes and cultural rights. The shortest path to relate cultural heritage to human rights is by associating them to cultural rights. What defines it as a fundamental right is the 1988 Federal Constitution. Heritage public policies are the strongest institutional link to guarantee these rights. Cultural policies associate heritage with development, democracy and social participation. This concept network is in the core of the fundamental rights.[95]

Thus, public heritage policies choose and prioritise, at the same time, some goods that meet their interests as opposed to others. The values that guide such selectivity change as the paradigms of heritage policies constantly change; normative and instrumental values are associated to these values. That is, what is important to a State changes over time. The reference for selecting cultural heritage is something created; it is a codified image of reality, for bigger (or, perhaps smaller) interests of the State to be reached, according to their contemporary needs. Within the state organisation, the major office of direct federal public administration, responsible for the cultural protection, is the Ministry of Culture. This Ministry is accountable for the fields of national culture policies and the protection of cultural historical heritage. It was created on 15March 1985, by Decree 91.144. This gesture meant acknowledging the autonomy and importance of this fundamental area, which was until then managed together with education. The Ministry of Culture comprises collegiate organs and it counts seven entities associtated to it, of which three are agencies and four are foundations that cover specific fields of action, namely: Instituto do Patrimônio Histórico e Artístico Nacional (Iphan - National Institute for the Artistic and Historical Heritage), Instituto Brasileiro de Museus (Ibram – Brazilian Museum Institute), Agência Nacional de Cinema (Ancine – Cinema National Agency), Fundação Casa de Rui Barbosa (FCRB – Rui Barbosa House Foundation), Fundação Cultural Palmares (FCP – Palmares Cultural Foundation), Fundação Nacional das Artes (Funarte – National Arts Foundation) and FundaçãoBiblioteca Nacional (FBN – National Library Foundation).[96]

XIII.      Conclusions

Cultural heritage law deals with several legal notions. The notion of monuments, however, appears as the first one which was compressed to a legal notion.[97] The obligation of the state to protect the different elements of cultural heritage is core constitutional value in European constitutions and worldwide.[98] Consequently, it must be stated that a transnational concept of monument protection and conservation marks the tangible concept of cultural heritage.[99] But cultural heritage is more than monuments and sub-categories. A comparative perspectives illustrates the necessity for legal reform in Germany especially in the light of the European Year of Cultural Heritage 2018: a protection of built heritage can no longer be bound exclusively to the age value. As the elements of culture within societies worldwide are due to constant changes, it is the reception of art as well. Legislation needs to recognize this subjective judgment once missed by Alois Riegl,[100] either by participatory pluralistic bodies with decision competence or by introducing contemporary values. Regarding the initial question, whether there is a field of Cultural Heritage Law in Germany, a differentiating conclusion is necessary. The formation of this field, especially by Europeanisation and Internationalisation, is still in progress. From the perspective of constitutional law interpretation by the Bavarian Constitutional Courts,[101] Constitutional Heritage Law is a reality which may demand further refinements within cultural policy as part of cultural sovereignty of the sixteen German federal states: Cultural Heritage is the source of a cultural memory and cultural identity. German Monument Acts together with the Cultural Property Law form the field of Cultural Heritage Law.

In Brazil, it is quite the opposite: the country does not lack legislation or juridical concepts concerning the protection of cultural goods; however, the preservation of such property be they monuments, buildings or even intangible goods, is precarious. Brazilian society lacks greater awareness about the need to safeguard the culture for the future generations. Likewise, the Brazilian public policies are flawed, both for the lack of technical training of the public agents and for the scarce financial resources destined to the protection of Brazilian cultural heritage. With the dialog between Brazil and Germany, Cultural Heritage Law is proven to be a transcultural concept. For Germany, transforming the inflexible paradigm of monuments still marked by specific aspects of national history might mean to recognise a contemporary post-national legal concept of heritage within the national legal order. While Monument Law is part of the legislative power of the federal states according to Article 71 (1) Basic Law, the states are called to transpose the UNESCO World Heritage Convention into national law.[102] By linking these two legal areas, a more homogeneous field of cultural heritage law would result. An explicit consideration of the concept of cultural heritage contained in the 1972 UNESCO Convention within the Laws of the federal states as in Section 2 (3) Monument Protection Law of Rhineland-Palatinate is an exception.[103] Consequently, it is evident that cultural heritage is a guiding concept which is established on European and International levels yet insufficient on the national level.[104]

With a broad range of initiatives, the upcoming European Year of Cultural Heritage 2018 could stimulate an older understanding: Especially built heritage but also the other forms of cultural heritage are considered valuable not only because of their characteristic as historic documents in a scientific sense.[105] In general, cultural heritage gains its appreciation from a psychologically-determined perception.[106] With the notion of cultural heritage, a legal instrument could protect cultural goods due to their value by creating common identities. These days, the main hindrance faced by cultural heritage law is the process of disglobalisation. This scenario favours the rise of conservativeness, making feelings of extreme nationalism to grow, preventing progressive policies that acknowledge cultural diversity. Cultural exclusion is caused to most political minorities. This way, the intercultural dialog between countries is at risk, which is harmful to diplomacy, because knowing the culture of others promotes respect in international relations. Cultural Heritage is not an ornament in our days. It is the ground upon which our societies are living, building the future and communicating responsibility.

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* Professor of Public Law at the Federal University of Paraíba and Prosecutor at the Prosecution Office at the Audit Court of Paraíba, Brazil. Research Fellow at the Collegio Carlo Alberto, Turim, Italy. Member of the Executive Council of the International Law Association (ILA), London, UK. Alternate Arbitrator at the Permanent Review Tribunal of MERCOSUR (Asunción, Paraguay). Post-doctorate (European University Institute, Florence, 2007-2008, Calouste Gulbenkian Post-Doctoral Fellow), Ph.D. in Comparative Law (University of Coimbra, Portugal, 2006, FCT Fellowship). Member of the International Association of Constitutional Law (IACL), International Society of Public Law (ICON), International Art Market Studies Association (TIAMSA) and Instituto Hispano-Luso-Americano de Derecho Internacional (IHLADI). Email: mfilho@tce.pb.gov.br.

** Graduate Research Fellow, CNPq (National Council of Technological and Scientific Development), Faculty of Law, Federal University of Paraiba, Brazil. Email: gabrielabritof@hotmail.com.

*** University of Passau (Germany). Reporter for ICOMOS Germany during the European Year of Cultural Heritage 2018. Volunteer to the Platform ArThemis, Art-Law Centre, University Geneva, Switzerland (https://plone.unige.ch/art-adr). Co-founder of the European Student’s Association for Cultural Heritage (ESACH). Email: mariusmuller@gmx.de.

[1] Swenson 2013, p. 2 ff.

[2]CHCfE Consortium 2015, p. 5.

[3]Häberle 1998, p. 1106.

[4]JPI Cultural Heritage and Global Change, Strategic Research Agenda, p. 25.

[5] European Commission Press Release, A new strategy to put culture at the heart of EU international relations, Brussels, 8 June 2016, http://europa.eu/rapid/press-release_IP-16-2074_en.htm, accessed 28 December 2016.

[6] “Apud hoc templum edes episcopi sunt ad eam partem, que respicit Enum, cum capacissime tum splendidissime […] Nescio, quis princeps non se his edibus egregie habitare puteret. Ego et regius et cesaribus atque ipsis ecclesie Romane summis pastoribus convenientíssima hec palatia liudicaverim […]”, cf. Boshof 2004, p. 1444.

[7] Klingensmith 1993, idem.

[8] Swenson 2013, p. 3.

[9] According to a contemporary definition: “The Sum of attempts to preserve the evidences of past cultural epochs for the future”, vid. Lezius 1908, p. 1.

[10] Examples given by Swenson 2011, p. 139.

[11] Swenson 2011, p. 146.

[12] Hammer 1995, p. 318, 325.

[13] Hammer 1999, p. 1039.

[14] Hammer 1995, p. 6.

[15] Melchinger 1994, p. 52.

[16] Hammer 1999, p. 1039; Hammer, 1996, p. 47 f.

[17] Fechner, 2017, Rn. 85.

[18] Hönes, 2013, p. 303.

[19] Nafziger et al. 2010, p. 207.

[20] e.g. the substance of monuments as historic documents/appearance of a town or landscape/return of cultural property/protection against removal to foreign countries/cultural heritage as resource for human environment.

[21]Martin/Krautzberger 2017, Rn. 29.

[22] Including such in the field of history of art, technology, architecture or infrastructure.

[23] Martin/Krautzberger 2017, Rn. 30-31.

[24] Hammer 1995, p. 358.

[25] Hammer 1997, p. 972 f.

[26] Hönes 2009, p. 7.

[27] Jean-Marie Pontier et al. 1990, p. 333, apud José Afonso da Silva, 2001, p. 123.

[28] Jose Afonso da Silva, 2001, p. 123

[29] cf. Reichsgesetzblatt 1919, p. 1412.

[30] Hammer, 1995, p. 200.

[31] Watzke 1976, p. 135. Refused by Hönes, Unterschutzstellung von Kulturdenkmälern, p. 32-35; Melchinger, 1994, p. 211.

[32] BVerwG, decision of 3 July 1987, NVwZ 1988, p. 359.

[33] Sannwald 2014, Rn. 42.

[34] Hönes 2000, p. 426 ff.

[35] Radloff 2013, p. 357.

[36] BVerfGE 6, p. 309, 354.

[37] Heckel 1968, p. 67.

[38] Odendahl 2005, p. 281.

[39] Larik 2014, p. 70.

[40] Ibid.

[41] BVerfG, NJW 1973, p. 1177; BVerfG, NJW 1990, p. 2053.

[42] The Court explicitly uses the term “Staatszielbestimmung”: “[…] stellt sie dem modernen Staat, der sich i.S. einer Staatszielbestimmung auch als Kulturstaat versteht […]”, vid. BVerfG, NJW 1974, p. 689.

[43] Oppermann 2001, p. 809. An enumeration is provided by Odendahl, 2005, p. 281-282.

[44] Siebertz 1977, p. 85.

[45] Hammer 1999, p. 1038.

[46] Compare the constitutions of Baden-Wuerttemberg, Bavaria, Hesse, Rhineland-Palatinate, Saarland, North Rhine-Westphalia.

[47] Article 6 Constitution of Lower Saxony: “The Land, the municipalities and the administrative districts protect and promote art, culture and sports.”

[48] Hense 2003, p. 87.

[49] Hammer 1999, p. 1041; Hense, 2003, p. 91.

[50] Besides Mecklenburg-West Pomerania, they are Brandenburg, Saxony, Saxony-Anhalt, Thuringia. Berlin constitutes a special case.

[51] Melchinger 1994, p. 216 f.; Bülow, 1986, p. 69 f.

[52] Melchinger 1994, p. 217-219.

[53] Martin 2017, Rn. 10-16.

[54] This wide interpretation in Eberl/Martin/Spennemann, 2016, p. 46.

[55] Conclusion by Karl Göhner considering a ruling of the Bavarian Constitutional Court which stated: “Article 141 (1) Sentence 4 contains objective constitutional law that state, municipalities and the corporate bodies under public law are obliged to respect with regard to their actions and omissions.”, cf. BayVerfGH, DSI 1 (2007), p. 52 and 58 and outlined in Eberl/Martin/Spennemann, 2016, p. 46. Confirmed in BayVerfGH, ruling of 22 July 2008. They explicitly statedthat Article 141 (2) and Article 3 (2) Bavarian Constitution are state objectives, not only programmatic sentences. Melchinger, 1999, p. 218, has a different opinion.

[56] This is very clear in the ruling of the Bavarian Constitutional Court regarding the case of Gut Kaltenbrunn at the Tegernsee, see BayVerfGH, ruling of 22 July 2008, in: NVwZ 2008, 1234.

[57] Haspel, 2017, Rn. 10.

[58] Eberl et al. 2016, p. 46.

[59] José Afonso da Silva 2001, p. 39

[60] Häberle 1998, p. 1121.

[61] Prior to the amendment of this law in 2016, regulations for the protection of cultural property were separated into three different laws.

[62] Odendahl 2010, p. 101.

[63] Hammer 1999, p. 1039.

[64] Ibid.

[65] Fechner 2011, p. 386.

[66] Hammer 1995, p. 360 f.

[67] Winands/List 2016, p. 200 f.

[68] Odendahl 2005, p. 577; Radloff 2011, p. 360.

[69] Winands/List 2016, p. 201.

[70] Melchinger 1994, p. 210; Davydov 2010, p. 20.

[71] Hönes 2009, p. 22-23.

[72] Eberl et al. 2016, p. 39.

[73] BayVerfGH, ruling of 22 July 2008, NVwZ 2008, 1234.

[74] There is no differentiation between built and archaeological monuments in Hamburg, Saxony, Schleswig-Holstein and Thuringia.

[75] Abbreviation for the Bavarian Law for the Protection of Monuments.

[76] References to built monuments are widespread within this Law: Articles 2(1), 3 (2), 4, 5, 6, 15 (3) (4) (5), 16, 18 (1), 19 (1), 23 DSchG.

[77] Eberl et al. 2016, p. 111.

[78] Eberl et al. 2016, p. 119.

[79] North Rhine-Westphalia also considers paleontological monuments.

[80] Not so e.g. in North Rhine-Westphalia.

[81] Eberl et al. 2016, p. 127.

[82] Büchner 2009, p. 131.

[83] Boshof 2004, p. 409-415.

[84] BVerwG, judgment of 27 May 2009 - 8 C 10.08 on the Offenbach Christmas Market.

[85] Prado Soares/Cureau 2015, p. 80

[86] França/Brandão Filho 2014, p. 31 f.

[87] França/Brandão Filho 2014, p. 28-30.

[88] TJSP, Processo nº 1003560-75.2017.8.26.0053, p. 4.

[89] See “European Cultural Convention”, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168006457e, accessed 22 January 2017.

[90] cf. Hönes 2009, p. 84.

[91] Article 3 of the mentioned Directive refers to “cultural heritage”.

[92] Hönes 2009, p. 19.

[93] MERCOSUL/CMC/DEC.N°55/12.

[94] Heckmann-von Wehren 2008, p. 61-65.

[95] Soares/Cureau 2015, p. 74

[96] See http://www.minc.gov.br/web/guest/entidades-vinculadas, accessed 15February 2017.

[97] Odendahl 2005, p. 392.

[98] Häberle, 1998, p. 1109-1117; Martin, 2017, Rn. 5.

[99] Hönes, 2013, p. 304.

[100] Lamprakos 2014, p. 431.

[101] BayVerfGH, ruling of 22 July 2008, NVwZ 2008, 1234; concluding validity of this ruling for all German states: Davydov 2010, p. 21.

[102] Hönes 2013, p. 23.

[103] Odendahl 2005, p. 654.

[104] Hönes 2009, p. 23.

[105] Compare II. 1. a).

[106] Regarding monuments vid. Hammer 1997, p. 973; OVG Koblenz, DVBl. 1984, p. 406-407.