1 llha de MoGambique World Heritage Site A programme for Sustainable Human Develop men t and I nteg ral Conservation Volume V Legislation By: Guido Carducci (ITA) Consultant STS/U N DP/U NESCO Project November 1998
2 TABLE OF CONTENTS I General directives... 1 I1 Directives concerning the development of the Ilha... 3 I11 Directives concerning the protection of cultural property
3 1 REPORT CONCERNING THE LEGAL STATUTE OF THE ILHA DE MOCAMBIQUE (Guido Carducci) DIRECTIVES FOR THE GOVERNMENT, IN PARTICULAR THE MINISTRY OF CULTURE I) GENERAL DIRECTIVES 1.1 Objective of the statute: In accordance with the Basic Document (A Programme for Sustainable Human Development and Integral Conservation), it is a matter of planning the necessary coexistence, at the legislative level, between the concern for the protection -of the cultural heritage and the economic development of the Ilha de Mocambique. Moreover, the integration of the cultural heritage into the social and economic life is already under the responsibility of the State of Mozambique according to the Lei n.10/88 de 22 de Dezembro (Determina a proteccao legal dos bens materiais e imateriais do patrimonio cultural mocambicano, Art.4, 1 e). 1.2 Form of the statute: Given the legal structure of Mozambique and the nature of Autarquia enjoyed by the Ilha de Mocambique, the form of the latter's legal statute must enable it to ensure the desired balance between the local, regional and central authorities. During the encounter organised at the end of July 1998, the Minister of Culture accepted the proposal to establish the status of the Ilha of Mocambique in the form of a law (Lei). Because of the importance of the project, the necessary consensus between the different Ministries concerned (particularly Culture, Tourism, Public Works) should be obtained in order to allow the adoption of a Lei establishing the statute of the Ilha de Mocambique; Only if a Lei cannot be voted, will the solution of a Decreto du Consel dos Ministros be retained. L3 Scope of the statute: The Lei, or exceptionally a Decreto, will establish a specific status for the Ilha de Mocambique by reason of its classification as a World Heritage Site. This
4 L ad hoc statute thus departs from the general legislation of Mozambique (lex specialis derogat generalis). However, as the content of the Lei (Decreto) cannot cover all aspects of the reguiations of the Ilha de Mocambique, where the Lei (Decreto) is silent, the general legislation of Mozambique will remain applicable. Within the limits of its field of application, the Lei (Decreto) applies to the territory of the Ilha de Mocambique and limits its regulative power as local Autarquia (in accordance with Art. 195 of Lei n. 9/96 du 22 de Novembro). 1.4 Responsibility for the execution of the statute: It is certain that the Programme for Sustainable Human Development and Integral Conservation foresees a reconstruction effort at various levels for the Ilha de Mocambique, calling upon different competencies and involving a considerable number of ministries: Cultura e Juventude obviously, but also Obras Publicas, Turismo, Construcao et Aguas, Financas etc. However, in order to ensure the effectiveness of the Project as well as the coherence of the different forms of intervention on a small territory such as the Ilha de Mocambique1 it would seem advisable to centralise the execution of the statute under the competence and the responsibility of one Ministry. We feel that the best Ministry to carry out this task is the Ministerio da Cultura e Juventude, particularly for the following reasons: - the cultural aspect is predominant on the Ilha de Mogambique, hence its recognition by UNESCO as a World Heritage Site; - because of the inscription of the Ilha de Mocambique on the World Heritage List as a cultural site, rather than a natural site, the Ministerio da Cultura e Juventude is the recognized authority. This Ministry should thus entrust the management of the Project to one of its services ("bureau" responsible for the Ilha). Of course, the centralisation of the enforcement of the statute of the Ilha de Mocambique under the competence and responsibility of the Ministerio da Cultura e Juventude is not intended to exclude the other Ministries. 1 More precisely, as concerns Tourism, this Lei (Decreto) pertaining in principle only to the territory of the Ilha de Mogambique could also affect the coastal zone (see infra, Directives concerning the economic development, 2.4 b).
5 To be more precise: - the specificity of the competencies of each Ministry is undeniable and provides the necessary knowledge and supervision to ensure the different forms of intervention on the Ilha de Mogambique. However the Ministry of Culture should coordinate the different competencies and, if necessary, in the event of dispute, this Ministry should have the sole authority to resolve the matter as it deems most appropriate and in accordance with the statute and specificity of the Ilha de Mogambique as a World Heritage Site; - finally, the Ministerio da Cultura e Juventude will be the direct interlocutor for the implementation of the Programme for Sustainable Human Development and Integral Conservation of the Ilha de Mocambique, with regard to both UNESCO-UNDP and the community of donors and investors. 3 II) DIRECTIVES CONCERNING THE DEVELOPMENT OF THE ILHA 2.1 Land-use and housing: Land-use: In Mozambique, land ownership is the exclusive right of the State and it cannot be sold or disposed of in any form (Lei du 1 de Outubro, Lei de Terras, Art.3). Private persons only have the right to use the land acquired through occupation, in good faith, over a period of 10 years, or by authorisation delivered upon request (Art.12). The transfer of this right of use occurs through heritage or inter vivos act subject to authentication (escritura publica) and prior authorisation (Art.16). Housing: As for the ownership of buildings (houses and apartments), the legislative options have evolved: During the transitional government (Decreto-Lei n.5/76 de 5 de Fevereiro), only the family habitation was guaranteed as private property (Art.l), whilst the State became the sole owner of almost all buildings: those belonging to foreigners living outside of Mozambique (Art.3), those of nationals living abroad (Art.5), and buildings unoccupied by the owners or lawful users (Art.6). Then, 15 years later (Lei n.5/91 de 9 de Janeiro) State institutions and businesses as well as individuals and societies, were permitted to construct buildings for sale or rental (Art.l), as well as for other activities subject to prior authorisation. The nationals in good standing who were renting from the State
6 4 could buy the habitations from the State iart.2). All form of transfer or disposal of buildings by individuals or societies was no longer subject to prior authorisation by the State (Art.3). Several days iater the parameters for evaiuating the buiidings that the State could sell to its renters was fixed (Decreto n.2/91 de 16 de Janeiro). Because of their age and bad condition, often in ruin, a good number of houses on the Ilha de Mocambique may be estimated and soid at a very low price. As concerns the Programme for Sustainable Human Cevelopment and Integral Conservarion, it seems that the current legislation governing land-use and housing does not necessarily need to be modified, because of the specificity of the Ilha de Mocambique. Especially as all future construction or reconstruction, whoever the owner may be, should be carried out in conformity to the master plan, an integral part of the statute of the Ilha. However, the iegislation (principio cia iegaliidadej must be respected in order to avoid abuse and fraudulent speculation. For this reason, It would seem 6esirable to attain a doubie objective: - the proper functioning of the courts that have jurisdiction over the Ilha de Mocambique: the courts of Nampuia, apparently. Obviously, it is of no use to carefully draw up national or international legislation, if its effective enforcement remains uncertain; - the proper functioning of the i+administracao do Parque Imobiliario do Estado (APIE) on the Ilha de MoCambique: in its present state, the bureau of the AFIE seems nowhere near this objective. This bureau requires a greater number of competent staff capable of updating the inventories of the actuai situation and ne effective ownership of the buildings on the Ilha. 2.2 Construction and Reconstruction: Sites, terms and necessary materiais: those indicated in the master pian elaborated for the Ilha de Mocambique and an integral part of its statute. This plan is obligatory for aii construction and reconstruction since the statute came into force.
7 5 Manpower: in principle, only the inhabitants of the Ilha and Lumbo (District of Ilha) will be employed, unless the specific work to be executed requires outside expertise. 2.3 Development of local economic activities: etc.). Centralisation and simplification of administrative tasks (authorisation system, The Creation of a fund to give a start to new activities is desirable. 2.4 Tourism: The development of tourism on the Ilha de Mocambique is an often-mentioned objective due to its economic impact. However, the specific nature of the Ilha de Mogambique imposes a necessary limitation: that the tourism shall become neither mass tourism, nor a threat to the conservation of the cultural heritage. This said, the objectives to be pursued for the Ilha de Mocambique are, in spirit, in accordance with those already established by the Government of Mozambique in 1995 in its Politica Nacional do Turismo e a Estrategia de desenvolvimento do Turismo para 1995/1999 (Resolucao n.2/95). On the judicial level, the implementation of the tourism development project calls for a number of measures: a) For the Ilha de Mocambique to become a rapidly accessible and price-wise competitive destination for international tourism, the existing airport should be rehabilitated, which is one of the pinpointed investments targeting tourism development but with positive consequences for the national economy (reabilitagao dos aereodromos, N.3 d Resolucao n.2/9.5 cited). More precisely, the airport of the Ilha de Mocambique must be renovated, not only as a national airport (for flights coming from Maputo), but also, and in spite of its small size, as an international airport, in order to accommodate charter flights (probably most often from Nairobi and Johannesburg). The airport should thus be upgraded in accordance with the international security standards of airport transportation (runway lights, firemen, ambulances, etc.).
8 6 1- ",\ nl,- lile. Siiirill size tiie illia de, ;"iugaiii*uique and its deiisity- iii terms cuiturai heritage does riot aiiow the coristructiori of a large iiotei (at ieast 250 roomsj on its territory. in the perspective of a future investment in a hotei system, it is desirabie to begin pianning now the coastai sites that can be reserved for this use. With regard to the legislative teciiriipue, it is preferable that these sites be provided for by the same Lei (Decretoj that initiates the statute of the iiha de Mocambique as a unitary ensemble, whose size and precise iocation can be further defined ai: a date, if fiecessary2. c) It wouid be desirabie to request an entry fee to the Iiha from cruise tourists, for exampie 5 US$ of which 3 US$ wouid be paid into a fund for the conservation of the Sionuments, and 2 VS$ to a tourist office of the illia andjoi- to the marxigeniefit of fiie area. tourists dj Upon arrival to the iiha, the immigration and customs service for cruise sl"ro-uid be rapid sild b-uifer-ed. 2.5 Investment: One especially iinpolyant issue or tho development of the Ilha de Moipribique, particuiar~y iii tiie touristi, sector, is the iegislatim pertairlifig to i1ivestwents. Eere, the primary concern, particularly with a view to attracting the foreign investor, is to ensure the ciarity of the iegisiation and the transparency of tne instruments for its implementation, with regard to the rules pertaining to: - the p~~ces~ing U the ifl~e~tiiiez~t: aii the rules defiiiirg tile coiiditioils rif tile admission of the investment, its iegal system from its constitution to its liquidation once the objective is attained; LL - - LIIe pi-otectioii of the investment: ail the i-uies aiming to ward off or sanction pubiic threats SO tiie OptirliisatiOir, Or he Very existeiice Of the investmefit, Ofi the territory of the receiving State; - the guarantee of the investment: the mechanisms pertaining to the financiai conseq-uerlces 01- the iiiv-estor in the ev-ent sf p'ijblic rlegjs-ui-es :-:- Ulluer lllllllllg the irive~t~t's fuiitiarrierital rights (especially the right OI owiiersiiip j. Thus, tlie If of course, this information is not yet available when the statute of the Ilha is adopted.
9 guarantee mechanisms only cover the political risk of the investrrent and not the economic one that is inherent in the risk of- the operation.? This objective of clarity and transparency of the investment statute does not appear to have been ichieved by the present legislitior! of Mozambique, at least not in the domain of tourism. Amongst the princjpais lirnjtagoes para o desenvolvirnento do Turisrnq in Anexo IT de 1'Estrategia de desenvolvirnento do Turisrno pzra 2995,4999 (Resolucao n.2/95 cited, n.11, 12 and 14) one notes precisely the present legal ambiguity (in three distinct areas): - concerning the Politic2 de Terras : "Enquanto prevalecer a actual Lei de Use e Aproveitamento da Terra, permanecera a indefinicao sobre os direitos de posse em relacao aos investimentos. Os empresarios exigirao a garantia de legitimidade dos seus direitos de ocupacao e desenvolvimento antes de inves tirern em qualquer projecto" (1-1.11); - concerning the 1'InexistPncia de plznos directores : "Uma dada zona c*l lstica sem plano director aprovado tem um futuro duvidoso. Qualquer investidor t'14 hesitara face a incerteza do que podera s7ir a acontecer RO espaco circundante ao seu empreendimento, e como tal se podera reflectir na qualidade total deste. A!&m disso, a obtencao de financiamer,tc internacional psra projectcs em t~is circunstiincias 6 cada vez menos passive!" (n.12); - concerning the 1'Aprevapo de prujectes : "Presentemente nao existe um procedimento claro para apr~vac.ao de proj ectos turisticos. Normalmente os empresarios (..) queixam-se tarnb6m do tempo que urn process0 leva para ser apreciado e da burocratizafao excessiva envolvida, o que desincentiva os investimentos no sector." (11.14); On the practical level, a scluticr, can be found to these areas of weakness with regard to the Ilha de Mocambique, through the adoption of the following measures: - concerning the legal ambiguity in the field of investments: this criticism (v. szpra, PoEtica de Tez-ras) does not seem to apply elsewhere. The legal statute of foreign investments has considerably evolved from the Lei n.4/84 de 18 de Agosto (Define as normas a observar na realizacao de investimentos estrangeiros na Republica Popular de Msgambique) tc the Lei n.3/93 de 24 de Juhno (Lei de investimento em Mogambique). Henceforth, the system is quite detailed, based on the
10 principle of equal treatment of foreign and national investors (with exception, Art.4 Lei n.3/93), and reflecting the usual standards in a country receiving investments. As for the investor's major risk, the political one, the legislation of Mozambique embraces the traditional conditions of international law for the acknowledgement of expropriations and nationalisations. These dispossessing measures can be undertaken on the State territory if they are justified by public utility arguments and do not have a discriminatory or confiscatory effect. In fact, the possibility of a nationalisation or expropriation of rights and goods constituting the investment on the territory of Mozambique is expressly anticipated when it is based on "ponderosas razoes de interesse nacional, saude e ordem publicas" and is subject to an indemnity "justa e equitativa" (Art.13, para.3 Lei n.3/93). With a view to attracting potential foreign investments on the Ilha de MoGambique, especially for tourism (seaside hotel), it seems useful to insert a clause in the statute of the Ilha that defines the criteria according to which the "indemnizacao justa e equitativa" will be calculated in case of expropriation or nationalisation 3. This is an important issue for the foreign investor, who is most often sensitive to the protection of private property and wary of any risk in its evaluation. In this sense, our suggestion is to adopt the criteria retained by the guidelines for the treatment of foreign investment of the International Bank for Reconstruction and Development (BIRD) 4. - concerning the planos directores: a master plan will be drawn up for the entire Ilha de Mocambique, as well as for the aspects linked to tourism; - concerning the Aprovagao de projectos: the decision-making process and the approbation of any project for the Ilha must be conceived so as to simplify the procedure and accelerate decision-making. All projects should be presented to the competent authorities (Turismo, or Obras Publicas, etc.) which ensure the conformity of the legislation of Mozambique in the matter, as well as the specific legislation of the Ilha de Mocambique. 3 These will not necessarily be the same as the criteria for the evaluation of the value of the investment contained in the Regulamento da Lei de investimentos (Decreto n.14/93 de 21 de Julho, Art.6-8). 4 Principles adopted on 21 September 1992, Art. IV "Expropriation and modification or unilateral cancellation of contracts". Annex I of the Report.
11 9 Then, for reasons already evoked (supra, General Directives, I..&), if the project is approved by the co~petent authorities it will be presented to the bureau of the Ministry of Culture responsible for the Ilha de Mogambique to verify whether the legislation of the Ilha has been correctly interpreted and applied. If this is net the case, the project will not be approved and must eventually be presented again to the competent authorities who must conform to the indications of the bureau of the Ministry of Culture. III) DIRECTIVES CONCERNING THE PROTECTION OF CULTURAL PROPERTY UNESCO's Conventien of 16 Xovember 1972 concerning the Protection of the World Cultural and Natural Heritage, requires the State Parties, Mozambique amongst them (ratification or? 27 November 1982), to ensure the identification, protection, conservation, enhancement and the transfer to future generations of the cultural and natural property situated on its territory (Art.4). In order to ensure the protection and the most effective conservation, the State Party is obliged notably (inter alia) to take the appropriate legal, scientific, technical administrative and financial measures necessary for the identification, protection, conservation, preservation and rehabilitation of the cultural heritage (Art.5, d). In addition, the States Parties are obliged to present a report to the General Conference of UNESCO on the legislative and administrative provisions and regulations, and any other action which they have taken for the application of this Convention (Art.29, para.1). The legislation of Mozambique concerning the protection of the cultural heritage essentiaiiy consists of two texts: - one, of a general nature: Lei n.10/88 de 22 de Dezembro : Determina a protecgao legal dos bens materiais e imateriais do patrimonio cultural mocambicano; - the other of a sector-based nature: Decreto n.27/94 de 20 de Julho Regulamento de ProtecGao do Patrimonio Arqueologico. These two texts seem to provide sufficient protection of the cultural heritage, comparable to other legislation, both as concerns their field of application (Art.2 et
12 3, Lei n.10/88; Art.1 Decreto n.27/94) and their degree of protection (Art.6, 10-15, Lei n.10/88; Art.3-5, Decreto n.27/94). 10 However, because of the specificity of the Ilha de Mocambique and its World Heritage Site status in the framework of UNESCO's 1972 Convention, it seems desirable to widen the scope and the types of cultural heritage protection of the Ilha by the adoption of six distinct measures: 3.1 Inventory: the cultural heritage of the Ilha should be recorded. The inventory shall be updated regularly, providing information on the existence and the present state of conservation of the property. As for particularly important cultural property or that which is in danger of being stolen (movable objects), photographic documentation should be annexed to the inventory, notably in order to facilitate decision making (state of conservation) or investigations (theft). 3.2 Recommendations of UNESCO The adoption of all the Recommendations of UNESCO as an integral part of the statute of the Ilha5. During the meeting at the end of July, the Minister of Culture accepted the proposal for this global adoption. On the practical side, the adoption and the number of these Recommendations will not make the regulations of the Ilha unduly complex, for the following reasons: SThese Recommendations are as follows: - defining the international principles to be applied concerning archaeological excavations (5 December 1956) - concerning the most effective means to make museums accessible to all (14 December 19-60) - concerning the safeguard of the beauty and character of the landscapes and sites (11 December 1962) - concerning the measures to be taken to prohibit and prevent the export, import and illicit transfer of cultural property (19 November 1964) - concerning the preservation of cultural property endangered by public or private works (19 November 1968) - concerning the protection, at national level, of the cultural and natural heritage (16 November 1972) - concerning the international exchange of cultural property (26 November 1976) - concerning the safeguard of historic or traditional ensembles and their role in contemporary life (26 November 1976) -concerning the protection of moveable csultu~'a1 property (28 November 19-78] - concerning the safeguard and conservation of moving images (27 October 1980).
13 - firstly, these Recommendations only apply to the Ilha for situations not covered by Lei n.10/88 or Decreto n.27/94 cited, and they thus provide a legal support for protection beyond the national system applicable throughout Mozambique; - secondly, on a territory as small as the Ilha, only some of the Recommendations would be applicable; - finally, the cultural heritage of the Ilha is almost entirely architectural, and the Recommendations concerning the moveable property only aim at including a few cultural objects in their field of application, for example those of the museum in the Palacio de S. Paulo (Governor's Palace). 1 1 Moreover, the interest in including this reference to all Recommendations as an integral part of the statute of the Ilha enables: of UNESCO's a) to ensure a general protection (moveable and immovable, etc.) applicable to the cultural heritage of the Ilha, above and beyond the general system applicable to the entire territory, of which the main core results from the Lei n.10/88 and Decreto n.27/94 cited. The essential protection of cultural property of the Ilha is covered however by Lei n.10/88 which bases the protection on a classification system: considered as "bens classificados" are principally (Art.7, 2, a and b) - all monuments and archaeological elements; - all buildings built prior to 1320, and moveable cultural objects imported and produced before These "bens classificados" are protected in various ways: all possessors have obligations and responsibilities (Art.6, 4), these objects cannot be acquired by "usucapiao", their transfer is submitted to prior authorisation (Art.ll), and they cannot be exported except if their export is temporary and authorised (Art.15, 3 and 4). The other bens do patrimonio cultural, those non classificados, are not as widely protected : the possessor is obliged to supervise their protection, conservation and appropriate use (Art.6, l), but these can be freely circulated (being exempt from Art.11) and, especially, they can be exported (Art.15,2).
14 12 The protection that the Recommendations of UNESCO provide will thus be more important and determinate for the bens do patrimonio cultura; that are not classificados 6. b) to specify that the reference to "applicable international principles" concerning excavations contained in Lei n.10/88, without more detail7, concerns (at least) the Recommendation of 5 December 1956 defining the international principles to be applied for archaeological excavations; c) to ensure that the great amount of work necessary for the rehabilitation of the Ilha does not constitute a risk for the conservation of the cultural heritage: in this sense, if Lei n.10/88 permits a certain degree of prevention (notably Art.6, 4, b and c), significant additional assistance is provided by the Recommendation of 19 November 1968 concerning the preservation of cultural property endangered by public or private works. 3.3 Education of the population-of the Ilha In order to reduce the acts of vandalism and to prepare the way for the rehabilitation of the Ilha, the inhabitants of the island should be made aware of the importance of the cultural heritage and the priority objective of its conservation. This educational effort is the responsibility of the State of Mozambique, not only through its internal law (Lei n.10/88 Art.4, 1, c), but also through its international law (UNESCO Convention of 16 November 1972, Art.27). However, during these teaching and awareness creating initiatives, it would only be necessary to stress the cultural value of cultural property upon the population, without mentioning the economic value that certain of these objects can have henceforth on the black market where illicit international scale, is intensifying. traffic, especially on an This precaution appears essential if we wish to avoid as far as possible that the progress made in fighting vandalism is lost by an increase in thefts and loo tin g. 6 When the concrete aspects of the relevant Recommendations are applied ta this property 7 Art. 14, para.2 "Os trabalhos de escavacoes devem efectuar-se conforme as normas cientificas e os principios internacionais aplicaveis 'I.
15 Sanctions: Other than the application of UNESCO's Recommendations on the Ilha beyond the existing legal texts, and increasing awareness of the population, a third adjustment seems desirable concerning the system of sancfions for violation of the law contained in Lei n.10/88. This law, in article 21, whilst reserving the scope of civil and penal responsibility, contains an administrative sanction: a fine (multa) which can vary from 50,000 MT to twice the value of the listed object (bem classificado); according to the gravity of the prejudice for the cultural heritage, in two cases (Art.6, n.4, b and c), the expropriation of the listed property is also possible. The problem can exist inasmuch as this unitary sanction contained in n.10/88 aims at an entire series of hypotheses that, in reality, are quite different: - violation by the possessor (who is the depositario of the property, Art.3) of his obligations, to different degrees (Art.6, 4): - failure to inform the authorities in case of damage, theft, deterioration or other alteration to the state of conservation of the object; responding to requests for information from the authority; Lei - undertaking any excavation, construction, demolition work or other modification without authorisation; - undertaking any restoration or conservation work without authorisation; - violation of the obligation to inform the authorities of the possession of a listed object (Art.8); - violation of the obligation to inform the authorities of the fortuitous discovery of an object that could be listed (Art.13); - alienation without authorisation (Art.22 and 11, nos. 2 and 4; with possibility of confiscation); - archaeological excavations (lato sensu, Art.14) non authorised (Art.23); in the same sense and with reference to the same sanction, but with a wider formulation, see Art.27 of Decreto 27/94; - export of listed objects, by definition illicit because prohibited (Art.24); Instead of this heterogeneity of hypotheses for a single sanction, it would seem preferable to diversify the sanction according to two criteria:
16 - the gravity of the violation: for example, the (illicitj export of listed objects (Art.24) engenders the loss of the object by the State 8, which is a much greater offence than the restoration of the object without authorisation (Art.6, 4, c); the sanction should thus vary according to the prejudice to the cultural heritage; the destination of the object: it is true that there are not many movable cultural objects on the Ilha, and their protection is mainly covered by Lei n.10/88. However, the present sanction can prove insufficient with regard to movable property: a closer look reveals that the size of the fine has been established only for internal situations, the market of Mozambique. Especially if international tourism is going to increase on the Ilha in the years to come, it can be expected that particularly interesting cultural objects may be stolen and/or illicitly exported (in the case of bens classificados) directly, or upon an order, by a national of Mozambique or a tourist/foreign dealer, for export from the territory. Even if the author of the offence can be found, if he intends to sell the object on the international market, the fine of 50,000 MT is ridiculous (about 5 US$, Art.21, 1, Lei n.10/88) It is true that the fine is not limited to 50,000 MT but can be increased to twice the value of the object. However, again, if the value retained is the local value, this amount may pose a threat to the illicit traffic of Mozambique, but probably not that of the international market. Finally, in this case, only the risk of expropriation of the property or the perspective of a court case is an effective restraintg, and the threat of a fine only becomes serious if the value of the object under consideration takes account of the value that this object can acquire on the international market, and not only the market of Mozambique. Clearly this technique of evaluating the fine according to the value of the object estimated in accordance with two criteria (internal and international values.) on the one hand, is only applicable to objects having acquired a real value on the 8 Except in the case of successive reimportation. T the terms of Art 21 foresee, exceptionally, the expropriation, but they reserve, without limits, the application of penal legislation.
17 international market, and on the other hand, assumes a sufficiently exact estimate of the price the object can be sold for outside of Mozambique. This technique of evaluation could be applied when the offence aims at removing the object from the territory, either by (illicit) export or as the result of a theft. The criterion of its application is thus the destination of the cultural object, the cause of the offencelo, independent of the nationality of its author 11; - destination: Mozambique : the fine is calculated according to art.21; - destination: exportation abroad: the fine is calculated according to the national and international value of the object Protection of the underwater cultural heritage Because of the importance of sea traffic in the history of the Ilha of Mozambique, the statute of the Ilha should contain a law for the protection of the underwater cultural heritage, following the model of the new Portuguese law (Decreto-Lei n. 164/97 Estabelece normas relativas ao patrimonio cultural subaquatic0 de 27 de Junho). The choice of this legislation for a model law is based on two motives: - firstly, the level of protection assured: contrary to the former decree of 1993, this Portuguese decree of 1997 marks a certain progress in the protection of the underwater cultural heritage, and its normative content, of a national scope, corresponds to the international standards that UNESCO is elaborating in order to adopt them in the form of an international convention; - then, last but not least, the linguistic community, between Portugal and Mozambique, permits the text to be adopted easily. For these adaptations, it would only seem necessary to modify the sanctions (Decreto-Lei n.164/97, Art.22-23), the scale of which will be fixed by the authorities of Mozambique in accordance with the national requirements. 3.6 Creation of a Fundo destinado ao desenvolvimento cultural da Ilha de Motam bique The realisation of the Programme for Sustainable Human Development and Integral Conservation for the Ilha assumes that sufficient funds can be raised. lo It is true that, in certain cases, the true destination of the object can be difficult to determine. l1 In respect of the principle of non-discrimination based on nationality.
18 it is probabie that, in the medium-term, the iiha snouid become as financiaiiy autonomous as possible and independent of international assistance. The fieid of cultural heritage protection can help achieve this objective; it is desirable that a Fondo destinado ao desenvolvimento cultural da Ilha de Mocambique be created and integrated into the statute of the Ilha and, especially, that this Fundo receives the income (fines and rights) resulting from the application of the system of cultural heritage protection of the Ilha (Lei n.10/88, Decreto n.27/94, measures taken in the application of the Recommendations of UNESCO, measures for the protection of the underwater heritage). In principle, the idea that the financial results of the implementation of the cultural heritage legislation serves to assist its protection and development, without being included within the general budget of the State, is a valuable principle for the cause of the specificity of cultural property, and one that is already shared, at national level, by the Legislator of Lei n.10/ The proposal here follows the same inspiration at local level, in favour of a Fundo reserved for the Ilha due to its specificity as a World Heritage Site. I remain at the disposal of UNESCO-UNDP and the Government of Mozambique for further information on this Report, Dr. Guido Carducci Paris, 22 September Art.25 As receltas provenientes da aplicacao da presente Lei de Protecpo do Patrimonio Cultural reverterao para um fundo destinado ao desenvolvimento cult u r a1.
CHARTER FOR THE PROTECTION AND MANAGEMENT OF THE ARCHAEOLOGICAL HERITAGE (1990) Prepared by the International Committee for the Management of Archaeological Heritage (ICAHM) an approved by the 9th General
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