Heritage protection laws in various countries around the world aim to protect tangible cultural heritage, safeguard it from destruction and loss, and ensure its transmission to future generations. These laws focus in particular on preventing interventions by private individuals and public and private institutions that could impair or damage archaeological sites.
At the same time, there are significant differences between the various legal systems, both in terms of the protection mechanisms and with regard to the administration, conservation and use of cultural heritage. Against this background, this study examines the similarities and differences between the Syrian Monument Protection Act – as an example of monument protection legislation in the Middle East – and the Monument Protection Act of the State of Baden-Württemberg – as an example of monument protection legislation in Germany. The aim is to identify the respective approaches to the protection of cultural heritage by comparing the legal foundations and practical procedures in both systems.
Definition of the term ‘monument’ and temporal scope
In the German Monument Protection Act (DSchG), the definition of a monument is based primarily on qualitative criteria and the cultural value of the object. Monuments are defined as objects, groups of objects and parts of objects whose preservation is in the public interest for scientific, artistic, local historical or town-planning reasons. There is no fixed time limit or prescribed minimum age for classification as a monument.
By contrast, the Syrian Law on the Protection of Monuments sets out a clear temporal criterion. In principle, any man-made object or legacy resulting from human activity that was created more than 200 years ago according to the Gregorian calendar, or more than 250 years ago according to the Islamic calendar, is classified as a monument. At the same time, the Act grants the competent heritage protection authorities the right to classify even more recent objects as monuments, provided they possess particular historical, artistic or cultural value.
Ownership rights to cultural property and the right of appropriation
Under German heritage protection law, the so-called ‘right of appropriation’ applies, whereby certain cultural objects found become the property of the state. This applies in particular to finds discovered in the course of state-authorised archaeological investigations or in designated archaeological protection zones. Furthermore, state ownership may also be established in the case of finds of exceptional scientific value. However, the specific provisions of the ‘treasure regalia’ vary between the individual federal states. The term ‘treasure regalia’ is derived from the historical concept of ‘regalia’. These were special and sovereign rights held by the king or sovereign in the Middle Ages.
By contrast, the Syrian Antiquities Law takes a significantly stricter and more comprehensive approach. Under this law, all movable and immovable cultural property located on Syrian territory or within Syrian territorial waters is, in principle, considered public property of the state. Private individuals have no right to take possession of newly discovered cultural property. The appropriation, concealment or unauthorised possession of such finds constitutes a breach of the law and is punishable by appropriate criminal sanctions.
Chance finds and compensation regulations
Under the German Cultural Heritage Protection Act (DSchG), persons who happen to come across a cultural monument or an archaeological find are obliged to report this immediately to the competent authorities. Furthermore, the site of the find must be left in its original condition and secured for a specified period – in Baden-Württemberg, this is usually four working days – to enable a professional examination. If a measure taken under heritage protection law results in a restriction of property rights equivalent to expropriation, the owner is entitled to appropriate compensation.
The Syrian Heritage Protection Act also provides for an obligation to report finds without delay, but sets a deadline of 24 hours after the discovery of the find. Unlike under German law, the state grants the finder or person reporting the find a financial reward, the amount of which may be based on the value of the cultural property. However, this payment is not regarded as compensation for a loss of ownership, as archaeological cultural assets are, in principle, the property of the state under Syrian law.
Administrative organisation and decision-making levels
German heritage protection law is characterised by a federal-decentralised administrative model. Responsibilities are distributed across several levels, in particular the country’s highest heritage authority, the intermediate specialist heritage authorities, and the lower-level heritage protection authorities at local council level. Local councils play a central role in this regard, as they make their own decisions within the scope of the tasks assigned to them and implement heritage protection regulations at local level.
In contrast, the Syrian heritage protection system is organised in a highly centralised manner. The administration of archaeological and cultural heritage lies entirely with the General Directorate of Antiquities and Museums, which reports to the Syrian Ministry of Culture. This authority has extensive and direct decision-making powers covering the entire territory of the state, including all provinces and cities, whilst the role of local administrative structures in the field of heritage protection is comparatively limited.
Religious and cultic monuments
Under the German Heritage Protection Act, religious and cultic monuments are accorded a special legal framework. Specific regulations exist for sites used for the practice of religious rites, which take into account the interests of the respective religious communities. In this context, particular weight may be given to religious considerations as defined by ecclesiastical authorities or religious communities. Furthermore, in certain cases, churches may, in consultation with the relevant heritage protection authorities, develop and implement their own regulations governing protection and use.
Under Syrian heritage protection law, religious sites and so-called religious endowments – such as mosques, churches, tekkes and similar institutions – are, in principle, directly subject to the provisions of heritage protection law. Measures for protection, conservation and restoration are carried out in consultation between the relevant heritage protection authority and the Ministry of Endowment Affairs or the respective church authorities. However, the primary technical and administrative responsibility clearly remains with the state heritage protection and museum authority.
Penalties and sanctions for breaches of heritage protection law
Under the German Heritage Protection Act (DSchG), breaches are generally treated as administrative offences, although criminal law is sometimes applied. The sanctions consist predominantly of heavy fines, which can amount to up to 250,000 euros depending on the severity of the breach, and up to 500,000 euros in particularly serious cases. In addition, items associated with the administrative offence may be confiscated.
The Syrian Heritage Protection Act, by contrast, takes a much more criminal law-based approach. Illegal excavations, the smuggling or unlawful appropriation of cultural property are treated as serious criminal offences. The penalties provided for include long prison sentences and, in certain cases, fixed-term forced labour for a period of up to 15 years. In addition, the tools used in the offence and the cultural property in question may be confiscated. Furthermore, the law provides for fines that may amount to a multiple of the value of the illegally removed or stolen cultural property.
Despite the fundamental differences in legal philosophy and administrative structure – particularly between the centrally organised Syrian system and the federal-decentralised German system of heritage protection, which is based on the principles of democratic state organisation – both legal systems exhibit remarkable similarities. These are evident above all in the overarching objectives of heritage protection, namely the preservation of cultural heritage, its scholarly research and its transmission to future generations. Likewise, there are numerous parallels regarding the legal and technical instruments for the protection of cultural monuments, even if their specific design and implementation differ considerably in some respects due to the differing legal and administrative frameworks.
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