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European Association of Archaeologists (EAA) / Partner, Comparison of State Law Project
It has been felt for some time that that it is not only desirable but necessary to obtain a greater understanding of State Heritage Law in Europe for a variety of reasons, such as, to understand how individual States protect the Heritage of that State, what is meant by Heritage in that State, how effective the Legislation is in terms of protection provided and enforceability. Also to obtain an insight into the methods used in individual States to comply with the Aims and Objectives of the Council of Europe, European Union and World Heritage Conventions and Treaties to which they are a party. For European Union Member States it is also a requirement that EU Directives etc are incorporated into State Legislation so as to demonstrate a common and unified method of compliance. It is also the case that there are in existence a wide number of interstate conventions and agreements, both formal and informal, put in place to facilitate transboundary initiatives, such as the Carpathian Environmental Project that may also have an impact on the Heritage element of that area.
1.1 EAA Involvement
At the EAA Annual meeting at Lyon (2004) during a meeting of the legislation sub committee (of which Christopher Young is Co Chair) it was felt that the most acceptable way forward in resolving the above was to put in place a phased project that:
a) Defined the term Heritage in a broad but unambiguous form
b) Clearly set out the Objectives of the Project
c) Applied a universally understood methodology to all aspects of the Project
d) Set an achievable timetable with identified report systems and dates
Peter Alexander-Fitzgerald to act as project leader and coordinator in this Project reporting in the first instance to Christopher Young and Jean-Paul Demoule, and through them to the EAA Chair, and, or whomsoever the EAA directs.
Prior to determining the objectives of the Project a workable and acceptable definition of Heritage was adopted as follows Heritage is to be regarded as any intervention in the landscape (visible or invisible, urban or rural) by human agency, giving due regard to less tangible elements such as local custom and practice. The objectives are as follows:
2.1 To compile a database of all Heritage legislation in Europe in a form that is available and useable to lawyers, administrators, heritage practitioners and academics.
2.2 To compile a database of objective descriptions of the above legislation with the same degree of accessibility.
2.3 To compile a series of documents comparing, contrasting and explaining the range and methodology of approaches of the different States in resolving issues relating to Heritage conservation in that State, giving due regard to international requirements. Thus providing a range of approaches relating to compliance.
2.4 That the above be available in the first instance in both English and French.
The Project will involve three stages:
a) Feasibility study
b) Pilot Project
c) Main Project
3.1The Feasibility study
The Feasibility study was commenced at the end of September 2004 and concerned itself with such issues such as the availability of legislation in a useable form, and the structure and organisation of persons involved in the required networks of communication. Other points addressed were:
a) Has such a Project been attempted before?
b) Is such a Project being attempted now?
c) If the answer to a) or b) is yes do they negative the need for this Project? Or
d) Can they be utilised to inform and guide the methodology of this Project?
e) Have there been any Comparative Law Projects of similar size been undertaken?
In response to a) and b) two projects investigating Heritage in Europe have been attempted and are in place but, in response to c), these projects are of such a type that they do not negative the EAA Project because:
i) The one project is not involved in comparative law and only gives a subjective opinion of the legislation.
ii) The other comparative law project is only examining the law of a limited number of States.
The question asked in d) was responded to in a very positive way. Members of both projects were contacted and provided much help and assistance and good working relationships are being developed as a result.
Other projects of a similar nature, that is in terms of comparative law, have been run in the past to address problems in international trade, private law of Contract and also Tort law and have a long history, thus providing much useful information and understanding of the differences in legal philosophy and practice in common law and civil (Roman) law. Further to this there is a considerable body of work relating to the historic development of legal systems available to provide further insight into procedure. For more on this see An Introduction To Comparative Law by K. Zweigert and H. Kotz.
In response to e), no such project has been undertaken to date.
The Feasibility study indicated that not only is there a recognised need for the Project but that it is achievable inside the required time frame. It also demonstrated that the Project could be used to advantage to develop new working relationships within Europe.
3.2 The Pilot Project
The pilot project will involve five states: The United Kingdom (including Northern Ireland, The Republic of Ireland, Bulgaria, Hungary, and France.
The choice of States gives the widest range in terms of geographic distribution as well as in forms of legal system and philosophy and include the recognised Mother of Civil (Roman) Law, France, and the home of Common Law (England) It will also take into account socialist and Democratic legal theory in Countries writing or rewriting legislation
3.2.1 Methodology to be applied.
The proposition to be tested is The legislation of the State provides good protection of Heritage sites and areas for the enjoyment of future generations with due regard for the need for controlled research
a) All legislation relating to Heritage will be collected in a form that is authenticated for use in other jurisdictions, in both English and French, and also for reference in the original form. This will include primary legislation, and where applicable secondary legislation.
b) A person fluent in both English and the language of the original document will then produce an objective description of the legislation, by State. It is a requirement of the Project that the person concerned in carrying out this operation is also knowledgeable in the methodologies associated with Comparative law. As a control mechanism some parts of the original documents and the copies in English and French will also be subjected to the same process and the results compared. It should be noted that at this point in the process it may be found that the legislation does not do what it is described as doing.
c) When at least two of the States legislation have undergone the above process then the comparative element of the Project can commence. (Note, it is the objective description that is used.)
The process will be monitored at all stages and any perceived need to modify the approach will be examined in detail before being applied.
All States will be monitored for changes in legislation and the databases updated accordingly. Updates will also be examined to determine any change in outcome resulting from the modification. The Pilot Project is also seen as an opportunity to test the information and feedback systems to ensure maximum value to the end user, as the Project is designed to be live and available from its commencement.
4 Main Project
Having tested the procedure as outlined above the full Project will commence using the proven methodology.
The Feasibility study commenced at the end of September 2004 and was completed in time for a meeting held on the 19th November 2004. The Pilot Project will commence December/January and be completed ready for the September 2005 EAA meeting in Cork, at which time a progress report will be made. During that time monthly updates will be sent to EAA and any other parties designated. (Subject to the requirements and directions of the Chair and Committee of the EAA). The main Project will commence September 2005 and run for five years to be completed by September 2010. After that date it will be necessary to maintain and update the information databases and provide advice and guidance to and for those using the facilities provided by the Project.
In a Project of this scope communications are of primary importance. The proposal is that all those involved will be in contact via telephone and e-mail and work will be posted to a website on completion. Full involvement is to be encouraged and all parties will receive frequent updates on progress. It is also perceived that there will be a need to afford the opportunity to meet for discussion for the purpose of encouraging the exchange of information and developing working methodologies. The meetings will be at Regional level thus maximising contact time and minimising cost in terms of time and travel expenses. Each Region will contain States from the same legal family feeding into a Europe wide meeting to facilitate understanding between legal families based on the same philosophy and those whose philosophies are, for historical reasons, different.
The first meeting will take place in Eastern Europe in early spring, with a meeting of contributors to the Pilot Project taking place at the EAA meeting in Cork.
In parallel with the above, arrangements will be made to present papers to other conference groups involved in Heritage protection and management (i.e. the E.A.C meeting in Spain in March 2005) to encourage participation in, and use of, the Project. These meetings will perform the dual function of providing opportunities for participants in the Project to meet formally or informally to discuss progress.