Governance and Tenure of Cultural Heritage in the light of Article 83 of the Constitution

Document Type : Original Article

Author

• hosein alaee

Assistant Professor and Faculty Member of the Department of Public Law, Shiraz Branch, Islamic Azad University, Shiraz, Iran

Abstract

Highlights

Today, in all countries of the world, cultural heritage is the domain of governments. This area includes the preservation, and any kind of exploitation of cultural heritage in the public interest. The Constitution of the Islamic Republic of Iran has dedicated Article 83 to the issue of cultural heritage and has stated the duties of the government regarding cultural heritage. This principle states: "Government buildings and property that are of national value may not be transferred to others unless approved by the Islamic Consultative Assembly, even if they are not unique."

The constitution does not directly support cultural heritage, but uses the vague term national treasure. Article 115 of the General Accounting Law of the country explicitly refers to historical buildings and monuments in the statement prohibiting the transfer of government real estate. In paragraph (i) of Article 8 of the Civil Service Management Law approved in 2007, the preservation of the practical cultural heritage is considered sovereign. Therefore, from the point of view of the current laws of the country, the protection of cultural property is a matter of government sovereignty, and the government has no right to delegate this task to another person. However, not all matters related to cultural heritage are considered as acts of sovereignty, and the government can delegate some of these matters to private individuals due to the nature of its ownership.

The issue of "examining the exercise of state sovereignty over cultural heritage in the light of Article 83 of the Constitution" is quite new and no research has been done in this field so far. The issue of the present article is, first of all, what are the cases of exercising state sovereignty over cultural heritage and what is the difference between sovereign acts and state ownership in cultural heritage? Secondly, what are the criteria for determining the purity referred to in Article 83 of the Constitution and its place in cultural heritage?

The research hypotheses are as follows: 1- The government's sovereign actions regarding cultural heritage include several issues such as legislation, supervision of excavation, protection of national monuments, nationalization of monuments and historical monuments, etc. In most cases, government interference in the field of cultural heritage is considered a sovereign act, except in cases where the government acts with economic motivation and profit and income, in which case the government exercises ownership, such as Establishment of museums.

At present, a specific index to determine the exquisite nature of government buildings and property and a specific definition of this term is not provided in Article 83 of the Constitution, and the Ministry of Cultural Heritage is the authority to identify these works.

According to the criteria mentioned in Iranian law and by adapting the definitions of cultural heritage in international conventions, it can be said that cultural heritage in Iran refers to works that are one hundred years or more from the date of its creation or creation. And has a human message or, regardless of the date of its creation or origin, are immovable works that are of historical or national significance at the discretion of the Cultural Heritage Organization.

Despite the historical antiquity of our country and instead of countless cultural heritage of its predecessors, the Constitution of the Islamic Republic of Iran has dealt with this important issue only in one principle. Article 83 stipulates: "Government buildings and property that are of national value may not be transferred to others unless with the approval of the Islamic Consultative Assembly, even if they are not unique." Carefully used in the provisions of this principle, it is used that only property that is of "national treasure" will be legally protected and other cultural-historical monuments will not be subject to the provisions of the said principle.

No interpretation of this principle has been issued by the Guardian Council to determine the criterion of exquisite nationality, and since the wording of the constitution implies that unique national treasures have special rules and regulations over other property. Are cultural-historical; In accordance with other relevant regulations, the authority to identify and classify such works as national and ordinary treasures will be the Cultural Heritage Organization of the country. Now, if at the discretion of the said authority, these properties had the two characteristics of "exquisite" and "unique", their transfer is strictly prohibited under this principle. However, if the works in question are part of ordinary precious property and the government intends to transfer them, this decision must be approved by the Islamic Consultative Assembly.

As we have seen, government action in the field of cultural heritage is a sovereign act in accordance with Article 8 of the Civil Service Management Law and Article 135 of the Fourth Development Plan Law. Exercising state sovereignty over cultural heritage means the areas in which a state is able to exercise exclusive sovereign authority over cultural heritage. In fact, it can be said that the purpose of exercising state sovereignty over cultural heritage is to exercise the special authority, power and authority of the government in relation to the management of cultural heritage, which includes sovereign actions such as legislation, identification, excavation, registration, exploitation and Is another that is in the exclusive competence of the government.

Also, in explaining the actions of government enterprises in this field, the definitions provided by government enterprises do not provide a precise criterion for tenure in cultural heritage. Therefore, we face problems in determining government holdings in the field of cultural heritage, and we do not have a specific rule for the separation and designation of holdings, because cultural heritage is part of public property and in order to protect This valuable government property often governs and oversees rather than owns.

In the position of tenure, that is, the seizure and exploitation of cultural property and artifacts, the government and government officials and officials act as representatives and trustees in the management and exploitation of state and public property, and the right of seizure other than those in the relevant laws and regulations. They are not recognized. However, from the author's point of view, the cases in which the government acts in the field of cultural heritage are: tourism (which, of course, was mentioned in the field of tourism, the government has both sovereignty and enterprise, because in this area the policy-making duty, It also supports and supervises, but in other areas of tourism that aims to earn money, has the role of caretaker), the management of museums, the restoration of historic buildings, the ownership and management of hotels, the purchase and sale of cultural heritage and. ...

Proposed solutions in preventing and solving problems in the field of cultural heritage

1. Develop effective laws and amend inefficient laws;
2. Provide accurate definitions and criteria in recognizing exquisite national works using the opinion of experts and efforts to record and preserve these works;
3. Developing an appropriate strategy in the field of cultural heritage according to the current situation, using and modeling successful examples;
4. Supporting the formation and activity of civil, public and private institutions and organizations in this field and using the capacity of elites and specialists,
5. Establishment of logical structures and local management based on cultural and regional diversity;
6. Planning to create a suitable platform for carrying out activities and the formation of non-governmental organizations and institutions in order to reduce government ownership in order to increase the desire to participate in this field;
7. Legislative and constructive oversight of the government;

Keywords

• Cultural heritage
• exercise of sovereignty
• tenure practices
• constitution
• national precious heritage

Main Subjects

• Fundamental Studies in Administrative Law