Coverage: Tangible Heritage, Intangible Heritage, or Both?

Eritrea ratified/acceded to the following UNESCO cultural heritage conventions: the UNESCO Constitution; the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC); the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict; and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH).^{Footnote 11} Each of these conventions obviously needs a national legal process to make them part of the domestic legal system. A debate thus arose on whether to prepare separate laws for tangible, intangible, and natural heritage or to regulate them under a single piece of legislation. Four key reasons led to the prevailing of the latter view.

First, the institutions hitherto responsible for following up on the implementation of the WHC and the CSICH (the Eritrean Ministry of Education and the National Steering Committee constituted by the minister) tied the works on tangible and intangible heritage under a single system. Since there was a need to maintain that institutional practice, the Proclamation had to simultaneously govern tangible, intangible, and natural heritage. Second, the global trend since the entry into force of the CSICH has been for domestic laws to connect both tangible and intangible heritages. Current understanding on heritage conservation is that there is a thin line separating tangible, intangible, and natural heritage. Third, the dearth of human capital in Eritrea has meant that separate institutions working on tangible, intangible, and cultural heritage practically cannot be established. Finally, it was observed during the drafting process that the respective tangible, intangible, and/or cultural property heritage laws of many countries contain a number of similar terms and principles. Redundant use of these terms and principles in separate laws could be avoided by issuing a single, comprehensive piece of legislation.

The Responsible National Institution

There is a varying national experience on institutional responsibility of the management and conservation of national heritage. Some countries (Canada, Fiji, Ireland, Italy, Kenya, New Zealand, Oman, Qatar, Sri Lanka, the United Kingdom, Zimbabwe, and so on) have ministries (departments) of heritage, while others (China, Ethiopia, Japan, The Netherlands, Poland, South Africa, the United States, and so on) have established organs that, either autonomously or under a ministry/department, are responsible for the management of heritage.

In another piece this author has summarized the experience of establishing heritage-related institutions in Eritrea as follows.^{Footnote 12} The closest that Eritrea came to establishing an organ to work on national heritage was the establishment in 1992 of the Department of Information and Culture, which later became the Ministry of Information, with the mandate, inter alia, of preserving, studying, and restoring Eritrea’s historical and cultural heritage. The subsequent establishment of other government institutions with mandates related to heritage, however, produces a fuzzy image on the government organ(s) specifically entrusted with the preservation of the nation’s heritage resources. Some of these other organs include the Ministry of Education; the Cultural Affairs unit of the Popular Front for Democracy and Justice (Eritrea’s single and ruling party); the Cultural Affairs Bureau; the National Holidays Coordinating Committee; and the recently constituted Commission of Culture and Sports.

Owing mainly to the dearth of human capital to establish a new organ responsible for heritage resources, the 2015 Proclamation opted to give the responsibility to the already-in-charge Ministry of Education (Article 12 of the Proclamation). The minister is authorized, pursuant to Article 15, to constitute the Eritrean Cultural and Natural Heritage Board (Board), which should be composed of 16 members representing government entities and public and private interests.

Ownership of Heritage Resources

Deciding on the ownership of Eritrean heritage resources was one of the most difficult tasks of the drafting process. The option of allocating Eritrean heritage to private ownership could mean having no or little means to control the abuse or misuse of heritage resources. Moreover, such an option could clash with other national laws overseeing land, water, and mineral resource laws, which declare all such resources to belong to the state. The other option of allocating Eritrean heritage entirely to state ownership, while ensuring public control of heritage management, would risk making the government responsible for administering even the smallest amount of heritage resources and probably eliminating the much-needed participation of private parties in the management of Eritrean heritage resources. An in-between ownership approach that would reconcile private–public interests was deemed to be the correct choice, and Article 4 of the Proclamation (ownership and transfer) was crafted to provide such an approach.

The general principle under Article 4(1) is that the ownership of all cultural and natural heritage resources located on or under the surface of Eritrean territorial sovereignty is vested in the state of Eritrea. The phrase “located on or under the surface of Eritrean territorial sovereignty” was chosen to refer to heritage resources located in and on the land and water surface of Eritrea’s landmass and the seas within its jurisdiction as well as Eritrean subsoil and seabed. This principle partially reflects the spirit of the UNESCO and the International Institute for the Unification of Private Law’s (UNIDROIT) Model Provisions on State Ownership of Undiscovered Cultural Objects (July 2011)^{Footnote 13}, which generally provide for state ownership and protection of cultural objects found in the soil and underwater. Moreover, this phrase is intended to reflect, in principle, the salient doctrines contained in the 2001 Convention on the Protection of the Underwater Cultural Heritage, of which Eritrea has not yet become, but would be advised to become, a member.^{Footnote 14}

Under the Proclamation, state ownership is the default rule on the ownership of Eritrean heritage resources. By way of exception, however, Article 4(2)(a) provides room for private ownership and provides that privately owned heritage resources or such resources located in privately owned properties shall continue to be the private property of their respective owners. The combination of Article 4(1) and 4(2)(a) means, therefore, that in case the state claims ownership of a given heritage resource, a contesting private individual shall have the burden of proving her or his ownership of the resource. Private owners have the right to exercise ownership rights subject to the conditions and limitations provided for the sale, exchange, use, trade, export, and so on of provisions of the Proclamation (Articles 4(4), 5, 6, and 7).

Article 4 also allows for the transfer of heritage resources from public ownership to private ownership and vice versa. Article 4(2)(b) provides that the Ministry may transfer a publicly owned heritage resource to private ownership for any purpose. Conversely, Article 4(3) provides that the Ministry may order the transfer of privately owned heritage resources to state ownership when it is convinced that the resource: (1) is not being properly maintained by its private owner; (2) should be kept in the custody of a national museum provided that the owner is duly compensated and recognized; and (3) has been detained while being taken out of Eritrea unlawfully.

Part I (General Provisions): Articles 1–3

This part contains the definitions of key terms and objectives of the Proclamation. The universal category of resources identified by the Proclamation is termed “heritage,” and it is divided into cultural and natural heritage. Cultural heritage is then divided into tangible and intangible cultural heritage. Tangible cultural heritage is further divided into movable and immovable tangible cultural heritage. The Proclamation aims, inter alia, at establishing an integrated system for the conservation of the nation’s heritage, controlling unlawful import and export of cultural properties, protecting heritage resources from damage, ensuring public participation in heritage conservation, management, and preservation, and encouraging research on heritage.

Part II (Ownership, Transfer, and Use): Articles 4–8

Heritage ownership rules have been discussed earlier. As far as use (defined as alteration, display, export, trade, study, research, or otherwise utilization of cultural properties for economic or other purposes) is concerned, the Proclamation allows for the use of heritage resources for the development of science, education, culture, and arts. The sale of heritage resources without first notifying the Ministry—which has a right of pre-emption to buy the items—is prohibited. However, any person can make literary or artistic reproductions of the resources or can earn financial benefit through the display or exhibition of heritage resources in her or his private domain. Heritage resources cannot be taken out of Eritrea in the form of a gift. Any misuse, abuse, use beyond the limits and conditions of use, or improper handling of heritage resources may result in an order by the Ministry for the immediate cessation of the use.

A permit issued by the Ministry is required: for the export of cultural properties; for activities on the built environment; for the discovery, study, research, or excavation of heritage resources; and for related uses of heritage resources identified by the Ministry. Moreover, any community, group, or individual person may establish cultural and/or natural heritage institutions such as museums, libraries, resource centers, galleries, or other forms of private collections.

Part III (General Rights and Obligations of the Public): Articles 9–11

Individuals or communities who own heritage resources or who are using land wherein heritage resources are situated have the duty, with the assistance of the government, to preserve and conserve such resources. Moreover, any person who discovers a heritage resource in the course of any development or activity or in the course of any other fortuitous event shall forthwith report such discovery to the Ministry, which shall take measures necessary for the preservation of said resource. These persons will be awarded for such reporting. Furthermore, the public is obligated to immediately inform the Ministry of the commission of criminal acts prohibited under the Proclamation or of their knowledge about resources unlawfully removed from Eritrea and found in other countries.

Part IV (Administration of Heritage): Articles 12–21

The Proclamation identifies, and assigns respective powers and duties to, the organs that are responsible for administering Eritrea’s cultural and natural heritage. The highest authority with an overall responsibility is the Ministry acting through the minister. The Ministry is authorized to exercise, for and on behalf of the state of Eritrea, all rights pertaining to the management, preservation, conservation, safeguarding, restoration, protection, interpretation, promotion, and development of Eritrea’s heritage. These rights include the powers to: declare any heritage resource possessive of national or international significance; control illicit trafficking and looting of heritage resources; take measures necessary for the repatriation of heritage resources illegally taken out of Eritrea; give professional qualification certificates to persons who desire to establish museums; and issue necessary permits for works on heritage.

The next crucial entity is the 16-member Board to be established by the minister. Among others, the Board has the powers and obligations to prepare periodically reviewable inventory of Eritrea’s heritage resources; initiate the declaration of the conservation status of heritage sites of historic, scientific, educational, strategic, and/or economic value and monitor the process thereafter; initiate the process of proposing the inscription of Eritrean heritage resources in the WHL, the Representative List of the Intangible Cultural Heritage of Humanity, the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, the Best Practices List, and similar lists; and propose, in collaboration with concerned authorities and especially for the benefit of local communities, the design of access and benefit-sharing schemes for activities on heritage resources and other means of sustainable protection and exploitation of the resources.

The minister will appoint the managing director of the Board who will run its day-to-day activities, equip it with the necessary staff and equipment, and administer the office. The Proclamation also establishes the Eritrean Cultural and Natural Heritage Fund (ECNHF) to support activities that the Ministry, or any one of the organs referred to in the Proclamation, may perform in implementing the objectives of the Proclamation.

Part V (Management of Heritage): Articles 22–25

The Proclamation has adopted, as best practices, a number of measures to properly manage the country’s rich heritage resources. First, the Ministry will prepare, revise, update, and oversee the implementation of a National Cultural and Natural Heritage Policy (NCNHP). Second, a national inventory of heritage resources will be prepared to register the nation’s heritage resources. Third, the Ministry will establish, maintain, and manage a National Cultural and Natural Heritage Resources Database (NCNHRD), which will be made accessible to the public. Fourth, a National Cultural and Natural Heritage Management Plan (NCNHMP) will be prepared for implementing the Proclamation and the NCNHP. Finally, the Ministry may, in consultation with relevant individuals, communities, and the Board, declare an area to be a protected site and manage it should that area be of significance to the preservation, conservation, or protection of heritage. The government is obligated to duly compensate loss that may be caused to any person or community by the creation or management of a protected site.

Part VI (Damage, Prevention, and the Conservation of Heritage Resources): Articles 26–28

The cardinal conservation rule is that the grant of permits or licenses to develop or modify land use or any other development activity shall at all times be conditional on the commitment by the applicant to conserve cultural and natural heritage that is found in that area. Specifically, any activity on the built environment that is declared as a protected site or an area designated for preservation or conservation purposes shall be carried out only with the written permission of the Ministry and after the submission of a cultural and natural heritage impact assessment. The Ministry is further mandated to issue regulations for the conservation and restoration of the built environment and natural heritage.

Part VII (Repatriation and Expatriation of Cultural Heritage Resources): Articles 29–31

There is evidence to support the claim that at least since the beginning of Italian colonization Eritrea in the late nineteenth century through to Eritrean independence in 1991 a number of cultural heritage resources of great value have been unlawfully taken out of the country. Mention is made, for instance, of the ‘mummies from Qohaito, which were taken by George Schwainfurth and Max Schoeller in 1894 to Germany and are believed to be in the Anthropological Institute of Humboldt University, Berlin’.^{Footnote 15} It is also mentioned that many heritage resources have been removed to the National Museum of Ethiopia, including: (1) hundreds of artifacts, including sarcophagi, tombs, pottery, and coins removed following the excavation (1960–65), led by French archaeologist Francis Anfray, of the historic site of Belew Kelew/Metera (dating back to the seventh century bc);^{Footnote 16} (2) more than 100 objects made of iron, clay, and bronze as well as a famous bronze lamp;^{Footnote 17} and (3) a variety of differently shaped pottery bowls and seals on display or stored in the reserve of the museum.^{Footnote 18}

It is also possible that cultural heritage resources originating in other countries may be, or may have been, brought to Eritrea illegally. Until the enactment of the Proclamation, no specific legal or institutional mechanism had been provided for repatriation or expatriation of such resources to and from Eritrea. The Ministry is now obligated to identify and repatriate Eritrean cultural heritage resources unlawfully removed from Eritrea by using “all means in line with international norms.” This phrase was intentionally used to remedy the fact that Eritrea is not yet party to relevant international instruments in this regard including the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.^{Footnote 19} Practices stemming from these conventions and/or customs developed in the international process of repatriation of cultural heritage resources, therefore, may be adopted by the Ministry in its repatriation endeavors.

The Ministry has the authority to grant an export permit for a cultural heritage resource to be temporarily taken out of Eritrea for scientific study, cultural exchange, or exhibition. Furthermore, the government is obliged, in line with the applicable international norms, to give due protection to cultural heritage resources brought into Eritrea for cultural exchange, exhibition, or related purposes and to expatriate resources unlawfully brought into Eritrea.

Part VIII (Enforcement): Articles 32–33

The Proclamation recognizes members of the Eritrean police, customs officers, and forest and wildlife inspectors as the main enforcement officers with respect to issues covered by this Proclamation. There are two reasons for appointing these institutions as enforcement agencies of the Proclamation. First, these institutions, as part of their respective mandates, have been engaged in the protection from the illegal appropriation of objects identified as heritage resources in this Proclamation. For instance, the Eritrean police must investigate, as with any other crime, the misappropriation, destruction, damage, depreciation, or rendering useless of objects of historical, archaeological, or artistic value (Articles 646, 654, 803, and 804 of the Penal Code of Eritrea). Officers of the Eritrean Customs Department are obligated by Eritrean customs laws (specifically Customs Proclamation no. 112/200 and its accompanying regulations) to restrict the importation or exportation of goods that require special permit (cultural properties being an obvious example). Forest and wildlife inspectors have also been mandated as enforcement agencies of the Forestry and Wildlife Conservation and Development Proclamation no. 155/2006, which aims to conserve forests and wild life—especially shrubs, trees, and wildlife threatened with extinction and requiring special attention—as an item of national wealth.

Second, although the Ministry may also appoint, under its pay, additional enforcement officers, it was believed that the dearth of human resources in Eritrea would not guarantee the employment of such special officers. Thus, the Proclamation primarily relies on members of the Eritrean police, customs officers, and forest and wildlife inspectors as its key enforcement officers. A wide array of powers has been given to these enforcement officers, including the power to: require any owner of a development activity in an area of cultural or natural heritage to produce needed information and documents required in connection with the Proclamation; enter and inspect any property on any reasonable ground connected with violations of the Proclamation; seize and retain anything that the enforcement officer reasonably suspects has been used in, or may constitute evidence of, violations of the Proclamation; and direct any person to take specified reasonable action to prevent or minimize the occurrence of serious or material damage to a heritage resource.

Part IX (Offences, Penalties, and Administrative Actions): Articles 34–36

The Proclamation criminalizes the following acts: (1) all types of destruction and/or defacement; (2) unauthorized use, misuse, alteration, disturbance, or removal; (3) illicit trade, exchange, or transport, theft, or looting; and (4) unauthorized archaeological excavations or constructions. The punishment for these offences is a term of imprisonment of not less than one year and not more than three years. Over and above the criminal sanctions, the Ministry has the power to order the halting of any work it believes endangers the safety and conservation of heritage or take any other measure the Ministry believes will secure the safety and conservation of heritage resources. Any person aggrieved by an adverse decision of the enforcement officers or the Ministry may, within 60 days of the decision being rendered, appeal to the High Court of Eritrea, whose decision on the matter will be final.

Part X (Final Provisions): Articles 37–40

These articles: provide the minister with the authority to issue regulations to attain the Proclamation’s objectives; oblige the Ministry to seek bilateral, regional, multilateral, and international cooperation and endeavor to ensure that the core principles of this Proclamation are reflected in this cooperation; and repeal previous heritage-related laws and replace them with the Proclamation.

Establishment of Offices and the Preparation of Necessary Documents

At the time this article was written—nearly four years after the enactment of the Proclamation—the offices listed in the Proclamation have not yet been established. The Board has not yet been constituted, and its managing director has not yet been appointed. Moreover, key documents and systems for implementing the Proclamation (the ECNHF, the NCNHP, the NCNHRD, and the NCNHMP) have not yet been prepared owing mainly to the delay in constituting the Board. The tentatively established Steering Committee’s status is in limbo at the moment, and it is not certain whether it will continue on an ad hoc basis until the establishment of the Board or if its tenure was effectively terminated on the day the Proclamation entered into force (30 September 2015).

Human Resources

It is to be admitted that most Eritrean laws that call for the establishment of new offices and the recruitment of new personnel are issued with the full knowledge of the dearth of professional wealth in the country. In the case of this Proclamation, the Ministry is required to establish the new office of the managing director with enough professionals working on tangible and intangible heritage and related fields (history, law, architecture, urban planning, archaeology, anthropology, oral literature, and so on). Additional layers of professionals will also be required to work on the continued implementation of Eritrea’s obligations under the relevant international legal instruments to which Eritrea is party.

Coordination with Other Laws and Institutions

One of the risks of the proliferation of laws is the possibility of a given area being regulated under the authority of different organs. One such area covered by this Proclamation, by way of an example, is the preservation of archaeological sites. From the point of view of heritage preservation, the Proclamation has provided the Ministry with the authority to declare a given archaeological site a protected site and, therefore, prepare conservation plans. From the point of view of environmental conservation, Proclamation no. 179/2017, the Eritrean Environmental Protection, Management and Rehabilitation Framework, gives the Ministry of Land, Water and Environment (MLWE) general authority to conserve any area at risk (inclusive of archaeological sites). From the point of view of mining, the various mining and petroleum operation laws give the Ministry of Energy and Mines regulatory oversight in relation to the protection of archaeological and palaeontological sites found within mining or petroleum operation areas. A highly coordinated plan, therefore, is needed for the conservation, management, and economic use of archaeological sites. Another example is the conservation of oral folklore, which falls within the circumference of this Proclamation (as an item of intangible heritage regulated by the Ministry), environmental laws (as an item of biodiversity regulated by the MLWE), and the Commission of Culture and Sports (as an item of culture).