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Presentation by Mr Sibusiso Xaba Director-General

ACCESSION TO A NUMBER OF INTERNATIONAL CONVENTIONS Briefing to the Select Committee on Education and Recreation: 26 February 2014. Presentation by Mr Sibusiso Xaba Director-General. TABLE OF CONTENTS. INTRODUCTION

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Presentation by Mr Sibusiso Xaba Director-General

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  1. ACCESSION TO A NUMBER OF INTERNATIONAL CONVENTIONSBriefing to the Select Committee on Education and Recreation: 26 February 2014 Presentation by Mr Sibusiso Xaba Director-General

  2. TABLE OF CONTENTS INTRODUCTION UNESCO CONVENTION ON THE PROTECTION OF UNDERWATER CULTURAL HERITAGE (2 NOVEMBER 2001) UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY 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) CONCLUSION 2

  3. 1. INTRODUCTION 1.1 DAC embarked on a process to accede to a number of international instruments/conventions in 2007. The Department engaged on an elaborate process, including consultations with the state law advisors at the Departments of Justice and Constitutional Development and Foreign Affairs. 1.2 Consultations with the sector also took place. Both consultations with the sector and the state law advisors concurred on the need to accede to the conventions. 1.3South Africa is a member state of the following international heritage conventions: UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (16 November 1972). UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954). UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (14 November 1970). 3

  4. 1. INTRODUCTION (cont.) 1.4 International conventions under consideration: UNESCO Convention on the Protection of Underwater Cultural Heritage (2 November 2001). UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (17 October 2003). UNIDROIT Convention on Stolen or Illegally 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). 4

  5. 2. UNESCO CONVENTION ON THE PROTECTION OF UNDERWATER CULTURAL HERITAGE (2 NOVEMBER 2001) 2.1 This Convention provides for the protection of Underwater Cultural Heritage (UCH). 2.2 UCH refers to all traces of human existence having a cultural, historical or archaeological character. This includes shipwrecks, fish-traps and shell middens. 2.3 The Convention promotes cooperation in the protection of UCH between State Parties; advocates the preservation of UCH for the benefit of humanity, and provides for State Parties to take appropriate measures to protect it. 2.4 It promotes in situ (underwater) conservation as the first option, and encourages the long-term preservation of recovered UCH 2.5 The Convention states that the commercial exploitation of UCH is fundamentally incompatible with the protection and proper management of underwater cultural heritage. 5

  6. 2. UNESCO CONVENTION ON THE PROTECTION OF UNDERWATER CULTURAL HERITAGE (2 NOVEMBER 2001) (cont.) 2.6 However, a close examination of the Convention reveals that this can be mitigated through regulated salvage activities facilitated by an effective permit system, and supported by a national policy on underwater cultural heritage. 2.7 The National Heritage Resources Act, No 25 of 1999 already provides blanket protection for all wrecks, being any vessel or aircraft, or any part thereof, which was wrecked in South Africa, whether on land, in the internal waters, the territorial waters and is older than 60 years or which the South African Heritage Resources Agency (SAHRA) considers to be worthy of conservation. 2.8 The Convention only provides protection for UCH older than 100 years. 2.9 The ratification of the Convention will provide additional protection to the shell middens, fish traps, shipwrecks and objects, but will not on its own ensure the protection of shipwrecks, or other, sites. 6

  7. 2. UNESCO CONVENTION ON THE PROTECTION OF UNDERWATER CULTURAL HERITAGE (2 NOVEMBER 2001) (cont.) 2.10 To ensure protection, the DAC has developed a National Policy on Underwater Cultural Heritage. 2.11 Maritime archaeology and salvage of UCH is an extremely expensive, dangerous and time-consuming pursuit. Currently there is limited funding available for maritime archaeology research, and few opportunities for interested persons to contribute to the field. 2.12 However, regulated [research and] salvage activities will 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. 2.13 SAHRA has established an Underwater Cultural Heritage Unit to manage and facilitate these processes. 7

  8. 2. OBLIGATIONS AND RETURNS FOR RATIFYING THE CONVENTION (cont.) 2.10 The Convention promotes cooperation in the protection of UCH between state parties; it advocates the presentation of UCH for the benefit of humanity. 2.11 The ratification of the Convention will contribute to the protection of UCH, it will enhance the preservation and protection of Underwater Cultural Heritage under the National Heritage Resources Act. 2.12 The Convention encourages countries to enter into bilateral regional to multilateral agreements. 2.13 To conserve this heritage, DAC need to partner with finance ( customs and excise, defence (Navy), Environmental Affairs and Tourism an the South African Police Services. 2.14 Once ratified, DAC could access international and technical expertise at an international level to compliment the limited if not non existent expertise in this area. 8

  9. 3. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (24 JUNE 1995) 3.1 This Convention is complementary to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property from the point of view of private law. 3.2 The UNIDROIT Convention focusses 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. 3.3 The UNIDROIT Convention offers certain advantages that are not offered in the 1970 UNESCO Convention 3.4 The UNESCO Convention requires cultural objects to have been designated by the state requesting return, whereas the UNIDROIT Convention does not require that an object be inventoried by the state for it to be covered by the Convention. 9

  10. 3. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (24 JUNE 1995) (cont.) 3.5 This is critical because it allows for cultural objects from private homes, traditional communities and private collections that are not yet registered or designated by the state to be claimed back. 3.6 However, this does not mean that the state parties should not take the inventorying of cultural objects seriously, as it is very difficult to claim successfully cultural objects that have not been inventoried. 3.7 As the UNIDROIT Convention operates from the point of view of private law, it also allows private owners to make use of normal legal channels available in the country where their objects are held, to reclaim their objects. 3.8 The operation of the UNIDROIT Convention is facilitated by international tools, such as Interpol, that offers a database of stolen cultural objects. 10

  11. 3. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (24 JUNE 1995) (cont.) 3.9 UNESCO has also established a national legislation database on the protection of cultural heritage. UNESCO and the World Customs Organisation have elaborated a model export certificate of cultural objects to be considered for adoption, in part or its entirety, by Member States. 3.10 South Africa has made some progress on issues relating to the protection of cultural heritage. 3.11 Sections 32 and 33 of the National Heritage Resources Act, No 25 of 1999 covers issues of the protection of cultural objects. The legislation covers, among other, issues of control of export and import of cultural objects; the declaring of an object or collection of objects as heritage objects; and the compilation and maintenance of an inventory of the national estate. 11

  12. 3. UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (24 JUNE 1995) (cont.) 3.12 The Department, in collaboration with the South African Police Service, Interpol, the South African Heritage Resources Agency and the South African Museums Association, established the National Forum for the Law Enforcement of Heritage related matters (NALEH) in 2005. NALEH serves as a network to facilitate the flow of information and intelligence on heritage related crimes. 3.13 For this Convention to be effectively implemented there has to be, among other things, the strengthening of security measures at heritage institutions. 3.14 Though most institutions have databases and registers, these needs to be synergised and synchronised for effective control and protection of this important heritage. 3.15 The resources of the South African Heritage Resources Agency will need to be increased to effectively deliver on the Convention. Awareness creation campaigns on the seriousness and severity of heritage related crimes need to be strengthened. 12

  13. 3. OBLIGATIONS AND BENEFITS FOR RATIFYING THE 1995 UNIDROIT CONVENTION ON THE STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (cont.) 3.16 The Convention establishes common minimal rules on restitution and return of cultural objects between contracting parties. 3.17 It will set in motion a process for international cultural cooperation and maintain proper role for legal trading and inter state agreements. 3.18 The operation of the Unidroit Convention is facilitated by the international tools such as Interpol that offers a database of stolen cultural objects. 13

  14. 4. SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (26 MARCH 1999) 4.1 The Second Protocol complements the 1954 Hague Convention. It is designed to improve the application and effectiveness of the Convention. 4.2 It applies to situations of international and non-international armed conflict andaims to improve the protection of cultural property in the event of armed conflict. It establishes and enhances systems for protection of designated cultural property. 4.3 State Parties are required to put in place practical measures in peacetime to safeguard cultural property. These include the development of inventories; planning for emergency measures for protecting cultural property against fire and structural collapse; planning for the removal of movable property and the provision for adequate in situ protection in the event of an armed conflict; the designation of competent authorities responsible for the safeguarding of cultural property. 14

  15. 4. SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (26 MARCH 1999) (cont.) 4.4 Advantages for South Africa would include that the country will be party to the sharing of international expertise and best practice on the protection of cultural property. 4.5 The Protocol establishes an intergovernmental committee that supervises its implementation. 4.6 It also establishes an international fund. State Parties can apply for financial or other assistance from this fund for the purposes of putting in place practical measures in peacetime to safeguard cultural property. 4.7 South Africa already has a policy and legislative framework that addresses issues of stolen or illegally removed cultural property through the National Heritage Resources Act, No 25 of 1999. 4.8 Legislation will have to be amended to address critical issues that are currently not covered, such as the strict regulation of the location of cultural property in relation to military objectives. 15

  16. 4. SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (26 MARCH 1999) (cont.) 4.9 There will be costs linked to the (re)location of cultural property from areas that are close to military objectives. Distinctive marking of cultural property will also have financial implications. 4.10 DAC will develop a short and medium term plan on the phasing in of key requirements of the convention. 16

  17. 5. CONCLUSION 5.1 We request the Select Committee on Education and Recreation to support South Africa’s accession to the three International Conventions. 17

  18. THANK YOU 18

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