Council of Europe Treaty Series - Explanatory Reports

– sustainable development: cultural heritages are seen as precious resources in the integration of the different dimensions of development: cultural, ecological, economic, social and political. Cultural heritage is valuable for its own sake and for the contribution it can make to other policies;

– globalisation: cultural heritages are resources for the protection of cultural diversity and sense of place in the face of growing standardisation;

– renewed awareness of the cultural identity dimension in conflicts: cultural heritages are resources on which to develop dialogue, democratic debate and openness between cultures.

– reaching agreement on an enlarged and cross-disciplinary approach to cultural heritage and the concept of a common European heritage by asserting the principle of every person’s right of access to the cultural heritage of his or her choice, while respecting the rights and freedoms of others;

– establishing the principle of fair treatment for heritages that represent the various cultural traditions that co-exist on European territory;

– committing the States Parties to introduce heritage policies and educational initiatives to promote intercultural and interfaith dialogue and mutual understanding of differences, with a view to prevention of conflicts;

– establishing a pan-European context for co-operation in the joint preparation of the criteria for sustainable development in the use of knowledge and skills as a development resource;

– committing States to use management approaches that are based on participation by all players in society;

– making proposals for the follow-up of the future convention.

– in respect of cultural diversity: the field has been expanded by the Universal Declaration of UNESCO on Cultural Diversity (2001). The present Convention, while recognising the important synergy between cultural heritage and cultural diversity, concentrates primarily upon how the cultural heritage can be used sustainably to create economic and social conditions favourable to the survival of diverse communities. The maintenance of cultural diversity in the face of globalisation is the objective of international effort;

– in respect of tangible elements of the heritage: UNESCO’s work on a global scale continues to operate by a sectoral approach, establishing lists of major assets regarded as world heritage, whereas the present Convention deals with cultural heritages as ensembles;

– in respect of intangible aspects of cultural heritage, where the present Convention focuses primarily on ascribed values rather than on the material or immaterial elements which combine to constitute heritages, thus taking an approach which is distinct from UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage (2003).

a. the existence of rights relating to cultural heritage, derived as an unavoidable consequence of the internationally accepted right to participate in cultural life,

b. the fact that a right to cultural heritage creates inescapable responsibilities towards that heritage,

c. the fact that the ultimate purpose behind the conservation of cultural heritage and its sustainable use is the development of a more democratic human society and the improvement of quality of life for everyone.

– the cultural heritage, which represents a resource and a source of collective memory for people in Europe, and;

– the shared intellectual heritage of an agreed set of social values, rooted in history, which form “the European ideal” in terms of how society should operate.

a. The right to cultural heritage is presented as the ability to be involved with the heritage, helping to enrich it or add to it, and also to benefit from activities linked to it. Although not explicitly stated in the Convention, it must be understood that the right to participate also includes the right not to participate. But non-participation must be the result of choice and not dictated by economic, social or political circumstances.

b. The responsibility to have as much respect for the heritage of others as for one’s own heritage suggests how, through interaction, different cultural heritages may come together to form a common heritage.

c. The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Public interest considerations (see Article 5a), for example to protect important elements of the cultural heritage, must always be balanced against the need to protect individual property rights.

a. It is important to set bounds to the public interest, recognising that it may conflict with private interests. A proportionality principle must be applied because everything cannot be protected. It is the responsibility of Parties to define the criteria for public interest and to translate them into both the extent and the degree of protective measures that they consider necessary.

b. This paragraph develops the complex idea of “valorisation” (*), integrating a chain of actions in the public interest: identification, study, interpretation, protection, conservation and presentation. The idea of “valorisation” is, like cultural heritage itself, multi-dimensional: it involves “giving value to” the ethical, cultural, ecological, economic, social and political dimensions of a heritage. As a resource for personal and communal development, cultural heritage is an asset which requires preservation, and thus its valorisation can be considered as one factor of development.

c. As emphasised in Article 6c, a Framework Convention does not impose directly applicable obligations, but invites Parties to adopt adequate measures if existing arrangements are not sufficient.

d. It is recognised that participation in cultural heritage activities flourishes in an atmosphere of economic well-being and confidence. Participation may, indeed, act as an indictor of the health of society.

e. Although this Convention is not primarily concerned with protection, it is recognised that, for cultural heritage to play the many roles expected of it, its protection is essential.

f. In reaching decisions about how to deal with cultural heritage, Parties should afford equality in the process of consideration to elements of all cultural heritages under their jurisdiction, without arbitrary discrimination. For example, the situation may arise where one state, for historical or other reasons, finds itself in control of cultural heritage assets recognised as of importance by communities or states outside its own borders. The requirement is to treat such heritage with as much care as heritage which is regarded as a national interest of the “host” state. The Convention does not prescribe mechanisms, but it might reasonably be expected that bilateral or multilateral discussions between states directly involved would be the most appropriate solution.

g. Finally, policies must themselves integrate the different dimensions so as to permit heritages to be used as factors in integrated development.

a. The provisions of this instrument are to be interpreted in accordance with human rights and fundamental freedoms. The Universal Declaration of the United Nations is cited before the European Convention, in view of the fact that this Framework Convention particularly develops Article 27 of the Declaration, which does not have a precisely corresponding Article in either the European Convention or the Social Charter.

b. The second rule of interpretation is the “no detriment” rule. No provision of this Convention will set aside a provision under another national or international instrument where (a) the provisions both relate to the same specific aspect of the cultural heritage and (b) the provision in the other instrument is more favourable for the cultural heritage than the provision in this Convention. In cases of doubt about what is “more favourable”, the choice should be founded upon the question of what is more likely to promote the objectives of this Convention. This rule allows a Party to retain, or to create, laws which go further than this Convention, or for a new instrument to be created to deal with some aspect which is dealt with in summary manner in this Convention, but which is in future judged to require more rigorous definition and agreement in stronger terms.

c. It was thought advisable, for absolute clarity, to emphasise that this Convention does not create any enforceable rights in respect of the subjects with which it deals. Rights of such a character may only be created by national legislative action.

a. Valorisation of a cultural heritage through intercultural dialogue requires ongoing research and debate, especially to take account of disagreements which arise in the course of interpretation, for example when an ancient site is sacred to more than one religion. Europe’s history is scarred by conflicts caused or exacerbated by misrepresentations of the values, beliefs and practices of different communities.

b. Disagreements are valuable for democratic debate, and conciliation has as its aim taking fair account of all the knowledge and viewpoints represented. The process of conciliation must accord a role to all interested actors and make use of diverse specialist expertise, including at the international level if necessary.

c. Conflicts often arise from a misunderstanding on the part of one side of values attributed to their heritage by the other. That is why this Article commits Parties to work to develop knowledge of the cultural heritage of all cultural communities and apply it to these ends.

d. Development of understanding of cultural heritages is not possible unless there are policies ensuring its integration in the processes of education and training.

a. Territorial cohesion involves ongoing concerted action to integrate various dimensions, including the ecological, cultural, economic and social: valorisation of cultural heritages is a factor of coherence, to the extent that the different aspects of valorisation (see Article 5 above) link together into a single development strategy the various interrelationships between cultural heritage and territory.

b. The cohesion defined in the previous paragraph might be interpreted in a restrictive and monocultural fashion. On the contrary, it is important to consider territories as meeting places between cultures, in both a geographical and a historical sense.

c. The territory is also, and above all, a meeting place for all actors in society. The need to exercise responsibility communally allows links to be established between individuals in the full diversity of their knowledge, experience, interests and positions in society. In this paragraph, as in the preceding one, cultural heritage is accorded value as a factor of inclusiveness.

d. Continuity needs to be assured, not by the systematic reproduction of the same objects and customs, but by a process in which quality is pursued, if not in linking contemporary creativity to existing heritage, then at least in ensuring that there is no damaging dichotomy between the two and that, for instance, the architecture of today respects the values of its context and cultural environment. The key concept here is that the creations of today, together with the environment into which they are inserted, form the cultural heritage of tomorrow.

a. Integrity as invoked here cannot be reduced to a static perspective. It involves interpreting, respecting and where possible adding weight to the complex and multi-dimensional values which constitute the identity and authenticity of the heritage, including values which are contested.

b. Valorisation is a complex process which must include continuous research, debate, information and training.

c/d. Knowledge and skills constitute a tradition, the fruit of a deep understanding of traditional materials, of the environment and of human needs. The links between such knowledge, techniques and practices need to be sustained and developed as much as possible.

e. The State has an important role to play – both through training and as a purchaser of goods and services – at the level of establishing methodologies and in quality control. The responsibility for qualification systems and professional accreditation may be undertaken through agencies such as professional associations or private bodies: the role of the state is to ensure that controls on quality contribute to achieving the aims of this Convention.

Article 10 – Cultural heritage and economic activity

Article 10 establishes continuity between the various dimensions of cultural heritage and its economic aspects, corresponding to the multi-dimensionality of the concept of “value”.

Section III – Shared responsibility for cultural heritage and public participation

Articles 11 to 14 raise the necessity for involving all members of society in a rationale of democratic governance in all matters connected with the cultural heritage. In this the governments of Parties and of their regions are seen as the leaders of a partnership process.

Article 11 – Organisation of public responsibilities for cultural heritage

Article 11 sets out the spirit in which Parties will exercise their responsibility as the leading initiators of national dispositions in respect of the cultural heritage.

Article 12 – Access to cultural heritage and democratic participation

Article 12 deals with what is needed for the Parties to encourage public and democratic access to cultural heritage.

Article 13 – Cultural heritage and knowledge

Article 13 addresses the interface between cultural heritage and the education and training sector. It deliberately does not provide an exhaustive listing of relevant areas of education and research. The need for a cultural heritage element is self-evident in the arts, architecture, archaeology, civil engineering, environmental, social and political studies, spatial and economic planning, tourism and leisure, but the ideal would be for cultural heritage material to be incorporated even in courses where it might not be expected: for example language teaching could use scenarios drawn from this field, as could legal training. Perhaps most important of all is the need to develop linkages between courses in different fields of study, avoiding a compartmentalised approach.

Article 14 – Cultural heritage and the information society

Article 14 explores the manner in which the rapid development of digital technologies relates to two objectives of the Convention: access (including democratic engagement) and economic progress. The approaches to be preferred are those which will tend to enhance the European dimension.

Section IV – Monitoring and co-operation

This Section sets out how the Parties are expected to work together towards the Convention’s objectives, laying particular stress upon monitoring of progress as the source of priorities for collaborative action.

Article 15 – Undertakings of the Parties

Article 16 – Monitoring mechanism

Articles 15 and 16 respectively set out the responsibilities of the Parties and of the Council of Europe in creating, maintaining and using a system of monitoring which can guide future actions.

The broadly defined objectives of the Framework Convention will, by their nature, be harder to monitor than those of narrower, more specific Conventions. It may be anticipated that qualitative monitoring based on agreed indicators will be more useful, and that simply assembling facts from each country about numbers of protected or preserved heritage items will be of less importance.

Early agreement on specific monitoring mechanisms is important, and it is envisaged that the starting points will be the existing systems HEREIN (European Heritage Network) and the COMPENDIUM of Cultural Policies, which would be adapted to meet the needs of monitoring Council of Europe Conventions more effectively. Monitoring should be seen primarily as the foundation of a dynamic process for sharing and developing good practice rather than an onerous obligation.

To take advantage of modern techniques of information management, and in pursuit of operational efficiency, the Convention takes a different approach to that applied in earlier Conventions. Rather than requiring Parties to submit regular reports, the Convention substitutes the requirement to provide input to a shared information system, to be managed by the Council of Europe advised by the relevant Steering Committee.

Such an approach is intended to allow Parties to contribute, expand and amend information about their own national situation much more flexibly, without the need to register formal reports on every aspect at one time. This, in turn, should ensure that the data in the system is more likely to be updated, allowing Parties and the Council of Europe to maintain an overview of the state of implementation.

The system will be drawn upon whenever required to provide synthetic reports or material for analysis, either across the whole scope of the Convention or dealing with specific aspects. It will form the basis for performing an “observatory function” which develops in response to the needs of the Parties.

Article 16 also provides for the possibility of seeking opinions of the monitoring committee on legal interpretation and of undertaking an evaluation of the practicalities of implementation. The initiative for such demands would come from the Parties.

Article 17 – Co-operation in follow-up activities

Without follow-up action, monitoring would serve little purpose, and Article 17 requires the results of monitoring and analysis to be deployed to prioritise collaborative activities intended to progress the objectives of the Convention. The linkage of subsequent activities to the monitoring process is important, as it will help to avoid diversion of precious resources to activities which, while interesting in themselves, may not be of high priority in the overall perspective. A further source of inspiration for activities will lie in the general programmes of technical co-operation, as developed, when appropriate, by the members of the Council of Europe, upon common agreement, focused on particular geographical areas.

Finally, it should be noted that priority is given to activities which support the European dimension.

Section V – Final clauses

Articles 18 to 23 conclude the Convention, covering the customary procedures for all Conventions: signature, entry into force, accession, territorial application, denunciation, amendments and notifications.

Article 20 requires explanation. It is normal to allow Parties to specify which parts of the territory under their jurisdiction will be subject to the provisions of a Convention. This provision is not intended to permit Parties to exclude major parts of their territories. Rather, it accommodates the historical and legal status of certain territories under the jurisdiction of states Party which have the right separately to accept or reject conventions affecting their internal affairs. This Article also allows each Party subsequently to adjust the territorial application of the Convention.

(*)   A remark is necessary here about a difficulty in correspondence between the English and the French versions of the text. In Articles 5 and 10 “valoriser” has been used in French. In English “valorise” has a much narrower meaning, so “valoriser” has been translated as “accord value”(Article 5) and “make full use of” (Article 10).