Hague Convention for Cultural Property Protection, UNESCO Convention on Underwater Cultural Heritage Protection, UNIDROIT Convention on Illegally Exported Cultural Objects: ratification
Arts and Culture
30 July 2013
Chairperson: Ms T Sunduza (ANC)
The Department of Arts and Culture (DAC) briefed the Portfolio Committee on the process of accession to a number of international Conventions that had been embarked upon in 2007. For each of the conventions - the UNESCO Convention on the Protection of Underwater Cultural Heritage, guarding of Intangible Cultural Heritage; The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict – the main features were explained, as well as the benefits to be derived by South Africa. The Convention on the Safeguarding of Intangible Cultural Heritage would still be brought to the Committee. It was explained that, in general, the ratification of the conventions would provide South Africa with the opportunity to have its voice heard, to gain access to best practice, to assist other African countries, and to ensure that it could benefit from funding offered (particularly in relation to underwater heritage)
The Convention on Underwater Cultural Heritage referred to all traces of human existence with a cultural, historical or archaeological character, which would include shipwrecks, fish–traps and shell middens. It related to sites of 100 years or older, focused on in-situ protection as a first option, but encouraged long-term preservation rather than commercial exploitation, and required salvage activities to be facilitated by an effective permit system, supported by a national policy on underwater cultural heritage. South Africa’s National Heritage Resources Act already provided blanket protection for wrecks older than 60 years, but this would provide additional protection and allow South Africa access to funding to assist with marine archaeology and salvage, which in turn could create sustainable opportunities. South African Heritage Resources Agency (SAHRA) had established an Underwater Cultural Heritage Unit to manage and facilitate these processes.
The UNIDROIT Convention on stolen cultural objects was complementary to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. It set uniform rules and conditions for restitution claims on stolen objects, as well as return claims on illegally exported cultural objects. It differed from the UNESCO Convention in that it did not require cultural objects to have been designated by the state requesting their return in advance, and allowed individual owners to claim under private law, facilitated by bodies such as Interpol, and had established a national legislation database on protection of cultural objects. Some aspects were covered in the South African local legislation and it was noted that DAC had a National Forum for the Law Enforcement of Heritage-related Matters. However, South Africa would need to strengthen its security measures.
The Second Protocol complemented the 1954 Hague Convention, and aimed to improve protection of cultural property in armed conflict. Signatories must, during peace-time, put practical measures and plans in place to safeguard cultural property in times of way. An intergovernmental committee supervised its implementation, and there was an international fund to assist with putting the practical measures in place. Although South Africa had a policy and legislative framework for addressing stolen or removed cultural property, this would still need to be amplified and some cultural property may need to be relocated from areas close to military objectives.
Members confirmed that the Committee would recommend ratification of the Conventions to Parliament. They raised concerns about damage done to the Timbuktu legacy by rebels in Mali, asked what had been done to address it, asked whether the DAC was addressing the perlemoen stripping at the UNESCO Robben Island World Heritage site, asked about the lack of capacity in underwater cultural heritage, and how the DAC would address the need for public education on the importance of our maritime heritage, and whether it was known if any successful prosecutions had resulted from these Conventions. The possible implications of the SANDF military personnel using the Cape Town Castle as the basis for operations were raised. Members present, including the Chairperson, expressed their concerns at the absence of so many ANC Members and confirmed that the matter would be raised with the Chief Whip.
The Chairperson noted the absence of several ANC Members.
Mr N Van den Bergh, (DA) stated that whilst he accepted that there may be personal reasons for their absence, he was still disappointed that so many Members were not present and asked that the Chairperson do something about their non-attendance.
The Chairperson stated that she would be writing a formal letter to the members of the Portfolio Committee about absenteeism. It was of particular concern that some of the members who had pressed for this briefing were not present.
Mr S Ntapane (UDM) noted that some of the Members were attending to oversight on other Portfolio Committees.
The Chairperson responded that she was aware that this applied to two Members, but she was not aware of the rest. The ANC must take up this issue because the Rules of Parliament ensured that matters such as that to be discussed today must take priority.
Dr H Van Schalkwyk (DA) asked the Chairperson to take up the matter with the new Chief Whip of Parliament.
Department of Arts and Culture briefings on accession to various international conventions
The Chairperson welcomed the students from the University of the Western Cape who were part of the University’s African Programme in Heritage.
Mr Vusithemba Ndima, Deputy Director General: apologised for the absence of the Director-General, who was busy with audits. He tabled the three international conventions, explained that they had already been approved by Cabinet, and outlined that, in general, South Africa would derive benefit from the access to these conventions. The advantages included help from the international community who were already parties to the conventions, as well as access to international best practices and cooperation from fellow signatories. He would be requesting this Committee to recommend ratification to the House.
Mr Ndima named the conventions under consideration as:
- UNESCO Convention on the Protection of Underwater Cultural Heritage (2 November 2001)
- UNESCO Convention for the Safeguarding of Intangible Cultural Heritage ((17 October 2003) – yet to be presented to Parliament
- UNIDROIT Convention on Stolen or Illegal Exported Cultural Objects ((24 June 1995)
- Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (26 March 1999)
He then proceeded to explain the purposes of each.
UNESCO Convention on the Protection of Underwater Cultural Heritage (2 November 2001)
This Convention provided for the protection of Underwater Cultural Heritage (UCH). Its main characteristics were that it:
- referred to all traces of human existence having a cultural, historical or archaeological character, which would include shipwrecks, fish – traps and shell middens.
- promoted cooperation in the protection of UCH between State parties, advocates the preservation of UCH for the benefit of humanity, and provided for State parties to take appropriate measures to protect it.
- promoted in situ (underwater) conservation as the first option, and encouraged the long term preservation of recovered UCH.
- outlined that the commercial exploitation of UCH was fundamentally incompatible with the protection and proper management of underwater cultural heritage.
- stressed that salvage activities should be facilitated by an effective permit system, supported by a national policy on underwater cultural heritage.
Mr Ndima explained here that South Africa’s National Heritage Resources Act, No 25 of 1999, already provided blanket protection for all vessels or aircraft, wrecked more than 60 years ago, in any part of South Africa or its territorial waters, or which the South African Heritage Resources Agency (SAHRA) considered to be worthy of conservation. By distinction, this Convention provided protection for UCH older than one hundred years.
However, he noted that the ratification of the Convention would provide additional protection to the shell middens, fish traps, shipwrecks and objects, but would not on its own ensure the protection of shipwrecks or other sites. The Department of Arts and Culture (DAC or the Department) had developed a National Policy on Underwater Cultural Heritage. He noted that maritime archaeology and salvage of UCH was an extremely expensive, dangerous and time consuming pursuit. Currently there was limited funding available for maritime archaeology research, and few opportunities for interested persons to contribute to the field. Regulated research and salvage activities would create sustainable opportunities for previously disadvantaged communities and individuals to benefit from UCH, through skills development, capacity building, creating on site job opportunities, supporting the diving and conservation industries, increasing awareness of UCH and its tourism potential.
SAHRA had established an Underwater Cultural Heritage Unit to manage and facilitate these processes.
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (24 June 1995)
Mr Ndima noted that this convention was complementary to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
The UNIDROIT Convention focused on the recovery phase of stolen or illegally exported cultural objects and sets uniform rules and conditions for restitution claims on stolen objects, as well as return claims on illegally exported cultural objects. This Convention added certain other advantages. Whilst the UNESCO Convention required cultural objects to have been designated by the state requesting their return, the UNIDROIT Convention does not require prior inventory of objects. This would, therefore, allow for cultural objects from private homes, traditional communities and private collections that were not yet registered or designated by the state to be reclaimed.
He emphasised that this did not detract from the importance of the State to continue to inventory cultural objects because it is was difficult to bring successful claims on objects not inventoried.
The UNIDROIT Convention allowed private owners to use the private law in the country where their objects had been held, to reclaim their objects through normal legal channels. The operation of the UNIDROIT Convention was facilitated by international tools, such as Interpol, that offered a database of stolen cultural objects.
UNESCO had also established a national legislation database on the protection of cultural heritage. UNESCO and the World Customs Organisation (WCO) had elaborated a model export certificate for cultural objects, which it was hoping that member States would adopt.
Internally, South Africa had made some progress on protection of cultural heritage. Sections 32 and 33 of the National Heritage Resources Act, No 25 of 1999, offered protection for cultural objects, including control of export and import of cultural objects, declaration of objects or a collection as heritage and the compilation and maintenance of an inventory of the national estate.
The Department, in collaboration with the South African Police Service (SAPS), Interpol, SAHRA and the South African Museums Association, had established the National Forum for the Law Enforcement of Heritage related matters (NALEH) in 2005, which served as a network to facilitate the flow of information and intelligence on heritage related crimes.
Mr Ndima noted that in order for the Convention to be effectively implemented, security measures at heritage institutions must be strengthened. Although most institutions had databases and registers, these needed to be synergised and synchronised, for effective control and protection of this important heritage. The resources of the South African Heritage Resources Agency would need to be increased, and there was a need to strengthen awareness creation campaigns on the seriousness and severity of heritage related crimes.
Second Protocol to the Hague Convention of 1954 for the Promotion of Cultural Property in the Event of Armed Conflict (26 March1999)
Mr Ndima noted that the Second Protocol complemented the 1954 Hague Convention, and was designed to improve the application and effectiveness of the Convention. It applied to situations of international and non-international armed conflict, when it aimed to improve the protection of cultural property. It established and enhanced systems for protection of designated cultural property.
Signatories were required, during peacetime, to put practical measures in place to safeguard cultural property. These included the development of inventories, emergency plans for protecting cultural property against fire and structural collapse, for removal of movable property, and the provision for adequate in situ protection in the event of an armed conflict, as well as the designation of competent authorities responsible for the safeguarding of cultural property.
South Africa would benefit from ratifying this Convention as it would gain from sharing of international expertise and best practice on the protection of cultural property.
The Protocol established an intergovernmental committee that supervises its implementation, as well as an international fund to whom signatories could apply, for the purpose of putting the practical measures in place, as outlined above, during peacetime.
He added that South Africa already had a policy and legislative framework that addressed stolen or illegally removed cultural property, in the National Heritage Resources Act, No 25 of 1999. However, there would be a need for some amendments to cover issues not already covered, such as strict regulation of the location of cultural property in relation to military objectives. This would involve some costs, to relocate cultural property from areas close to military objectives. However, the DAC would develop a short and medium term plan on the phasing in of key requirements of the Convention.
Ms L Graham, Chief Director, Department of Arts and Culture, urged that South Africa ratify these conventions. The global debate about cultural heritage was ongoing in many country capitals, and South Africa should participate. The debates covered international trends in cultural heritage and access to resources. The countries who were currently not participating were not benefitting either from debate or funding, and their voices were not heard. South Africa had participated in negotiations on other conventions and it would need to ratify to get a vote. Much of South Africa’s cultural heritage was sitting outside the country, and she believed that it must step up for itself, and also play a role on the African Continent to assist other states; it had already helped Ethiopia retrieve cultural artefacts from Italy.
The Chairperson, following on from Ms Graham’s remarks, asked what South Africa was doing to protect the legacy of the Timbuktu manuscripts damaged by rebels in Mali. She also asked if these conventions would help in such instances.
The Chairperson noted the serious challenge facing Robben Island, where perlemoen was being stripped, and wondered how UNESCO would address this.
The Chairperson asked for more detail on how the DAC would publicise and educate people on UCH and other issues. She noted that she would be prepared to recommend support for the conventions.
Mr S Ntapane (UDM) also wanted more detail on the extent of the damages to the Timbuktu manuscripts burnt by the Islamic radicals in Mali.
Mr Ntapane asked how the Department was going to improve its capacity in relation to the Under Water Heritage programme.
Dr Van Schalkwyk concurred with her colleagues and stressed that South African heritage must be conserved, and that South Africa must participate in the international constituency. She asked when the DAC would have the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage ready for Parliament.
Dr van Schalkwyk wanted to know how limited the funding was for Maritime Heritage.
Dr van Schalkwyk enquired if there were any South African examples of cultural objects in other countries.
Mr van den Berg asked if the South African Heritage Resources Agency (SAHRA) was in good condition and doing a perfect job.
Mr van den Berg noted, in relation to abalone, that although poaching was illegal, people still persisted in it, seeing no cultural value in it, and having the ability to make money out of their activity.
Mr van den Berg asked if there had been instances where there were convictions for breaching the conventions.
Mr Ndima, noted, firstly, that the Convention for Safeguarding of intangible Cultural Heritage would have to be brought to Parliament. The DAC had developed some policy.
Answering questions on the Timbuktu library, he noted that local families had protected the manuscripts and the library that South Africa had built, and that media reports about the destruction of the manuscripts had been overstated. UNESCO had immediately sent a task team to Timbuktu to preserve the manuscripts. He added that this illustrated that if one country was a party to the Convention, other countries would assist in the recovery and reservation of cultural objects.
Mr Ndima noted that abalone theft was an international problem and required international cooperation between countries. If South Africa acceded to these Conventions it would benefit and be able to forge partnerships with other countries. At the moment, the Department of Environmental Affairs was protecting the heritage on Robben Island.
Mr Ndima conceded that lack of public awareness and lack of capacity were an issue in relation to UCH in South Africa, and he urged that this Committee ask for ratification of the UNESCO Convention in order that the DAC could gain access to resources and assistance under that Convention.
Ms Berri Samuels, Public Relations Officer, SAHRA, noted that South Africa was obliged to manage its UCH sites and that this was a young industry, only about 50 years old. SAHRA needed all the support it could get and it was important to educate and create awareness amongst the public. SAHRA had a school programme that the DAC supported. Kosi Bay was part of the DAC projects, but did not have much bearing on the Convention.
Mr Ndima noted that before being able to recover heritage objects that were pillaged, South Africa needed to go through a number of processes. DAC needed to first audit all of the property that had left the country, and certain countries embassies were already assisting South Africa in bringing back artwork created during the struggle period. Any archaeological and paleontological objects leaving the country through theft could be traced and recovered through the Conventions. He was not sure of the number of convictions obtained under these.
Mr Ntapane wanted clarity on what action had been taken against the rebels in Mali who burned the Timbuktu manuscripts.
Mr Ndima responded that during the internal strife in Mali various countries intervened to give assistance and support in recovery of the manuscripts, in terms of the Convention.
The Parliamentary Researcher asked to what extent the Hague Convention would impact on the South African National Defence Force (SANDF), who currently were based at the Castle in Cape Town.
Mr Ndima replied that during peace time a plan would be implemented, that in the event of war, all the military would be evacuated from the Castle heritage site and the Castle would be safeguarded against all military presence and activity.
The Chairperson noted that were many claimants to the Castle, including the military in the Western Province.
The Chairperson noted that the Committee would now compile a report, and follow the process to ask the House to ratify the conventions. She noted that often, there was not support for government initiatives due to lack of understanding.
Mr Van den Berg suggested that the Portfolio Committee do an oversight visit on some of the shipwrecks as it would generate a lot of media attention.
The Chairperson agreed, and indicated that SAHRA should arrange the oversight visit.
Dr Van Schalkwyk asked if the public had being notified about the forthcoming public hearings on the White Paper, and Mr van den Berg asked where they would be held.
The Chairperson responded that a newspaper advertisement would be sent in the following week. The matter of the venue for the public hearings would still be decided.
The meeting was adjourned.
- Briefing by Department of Arts& Culture: Accession to a Number of International Conventions.
- UNESCO Convention on Means of Prohibiting & Preventing Illicit Import, Export & Transfer of Ownership of Cultural Property.
- Second Protocol to Hague Convention of 1954 for Protection of Cultural Property in Event of Armed Conflict.
- UNESCO Convention on Protection of the Underwater Cultural Heritage.
- We don't have attendance info for this committee meeting
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