The legal protection of water as cultural heritage José Luis Bermejo [email_address]
Foreword: the legal meaning of “water” and “cultural heritage” <ul><li>Water resources : ground and renewable undergroud masses of continental water , beds and banks of natural courses and lakes, lagoons and reservoirs, water infrastructures & to some extent, even clouds! = public goods managed by public authorities ( Water Law Consolidated Decree 1/2001) - Cultural heritage: personal & real property having some cultural (artistic, historic, paleonthologic, archaeological, ethnographic, anthropological, architectural, aesthetic, industrial, linguistic, bibliographical&documental, cinematographic, scientific or technical) interest + natural sites, gardens & parks = private or public goods supervised or managed by public authorities ( Spanish Heritage Act 16/1985 and other Autonomous Communities Acts) </li></ul>
May w ater resources be regarded as cultural heritage items? Human civilisation is intimately related to water from a historic, biologic, technologic and even a mystic point of view Indeed, water resources fit in the concept of cultural heritage : water landscapes, water insfrastructures, water related arts and crafts, art works inspired by water landscapes… may have cultural interest The Waterseller of Seville (D. Velázquez, ca. 1620) Songkran (Thai New Year) water celebration, Bangkok
May two different bodies of Law apply joint to water resources? <ul><li>Purpose: regulation of sustainable use & consumption </li></ul>Water Law Heritage Law Purpose: conservation , research, divulgation of cultural items ≠ ≠ ≠ ≈ Techniques: delimitation, planning, water permits for “soft” uses, water concessions for “hard” uses, legal public easements Jurisdiction : river basins (hydrogeological) Object: public owned water resources gross volumes of flow, land surrounding water masses, infrastructures Techniques : administrative designation, “cultural permits”: for any works, uses or activities likely to modify the nature and characters of the protected items, administrative preemption rights, general duty to exhibit Jurisdiction : regions , States in case of international export and plundering (political) Object : individual items, regardless their ownership
Is there any regulatory experience of this kind? Within the framework of the Lyndon B. Johnson “America the Beautiful” initiative to promote and to preserve the natural beauty of the USA , the Congress passed the Wild and Scenic Rivers Act in 1968 to protect imperiled water masses (rivers, lakes, cascades, estuaries, ravines, etc ) that have defined the US civilisation. The designation of Wild river areas , Scenic river areas and Recreational river areas implies the imposition of a Scenic easement (public right to access to water areas > limitations of use for the riverains). Designated river areas are kept free-flowing and managed differently by forest and environmental agencies.
Does the cultural approach to water appear in the international agenda? <ul><li>Council of Europe’s European Water Charter (Strasbourg, 1968): “ Water is our common heritage , and everyone should be aware of its value ” </li></ul><ul><li>Declaration of the EuroMed Conference on Local Water Management (Marseille 1996): “ The countries will encourage research in the field of water on different topics (technical, cultural , social...)” </li></ul><ul><li>Resolution (98) 4 of the Council of Europe on the Cultural Routes aims at identifying a common European cultural heritage via cultural routes tracing the history of peoples, migrations, and the spread of the major European currents of civilisation ( why not European rivers ?) </li></ul><ul><li>Declaration of the EuroMed Conference on Local Water Management (Turin 1999): “ Decision makers, institutions, water managers and users should … encourage the development of a culture system directed to water …” </li></ul><ul><li>EU Directive 2000/60/EC establishing a framework for Community action in the field of water policy: “ Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such” </li></ul>
Since 1972, The UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage aims at protecting some universally significant properties that embody a world of outstanding examples of cultural diversity (historic, aesthetic, ethnologic, scientific value) and natural wealth. “ Cultural heritage“ means monuments , groups of buildings , and sites (works of man or the combined works of nature and man): water resources may be concerned!!! UNESCO's list of World Heritage Sites includes ca. 900 sites, among which ca. 70 are related to and/or based on water.
Aflaj Irrigation Systems (Oman) The Dujiangyan Irrigation System (China) Wouda Steam Pumping Station (Netherlands) New Lanark (UK) Rideau Canal (Canada) Canal du Midi (France) Old Mostar Bridge (Bosnia and Herzegovina) Pont du Gard (France) Pontcysyllte Aqueduct and Canal (UK) Ironbridge Gorge (UK) Beemster Polder (Netherlands) The 4 Lifts , Canal du Centre (Hainault, Belgium) Vizcaya Bridge (Spain) Avignon Bridge (France) Mehmed Paša Bridge (B. Herzegovina) Examples of the World Heritage Sites List I : water infrastructures The Shushtar Historical Hydraulic System in Iran dates back to the 5th century BC and involves 2 main diversion canals on the Kârun River one of which, Gargar canal, is still in use providing water to the city of Shushtar via a series of tunnels that supply water to mills and enables to create farms over 40,000 hectares. The site includes the Salasel Castel, the operation centre of the hydraulic system, and the Kolâh-Farangi tower where the water level is measured.
Examples of the World Heritage Sites List II : water landscapes (leaving ecosystems and natural areas aside) Banks of the Seine (Paris, France) Historic Centre of Brugge (Belgium) Alto Douro Wine Region (Portugal) Central Amazon Conservation Complex (Brazil) Classical Gardens of Suzhou (China) Cultural Landscape of Lopé-Okanda (Gabon) Fertö Cultural Landscape (Austria/Hungary) Huanglong Interest Area (China) Jiuzhaigou Valley Interest Area (China) Lower Valleys of the Awash & Omo (Ethiopia) Ohrid Lake region (Macedonia) Royal Palace at Caserta, Park&Aqueduct (Italy) The Loire Valley (France) Upper Middle Rhine Valley (Germany) Venice Lagoon (Italy) Wachau Cultural Landscape (Austria) The World Heritage Committee decided to remove Germany's Dresden Elbe Valley from UNESCO's World Heritage List on june 2009, due to the building of a four-lane bridge in the heart of the cultural landscape.
Heritage Law may apply without difficulties to water-related civil works … Arab baths Middle age bridge Roman dam = monument Water infrastructures still in use or out of use may be designated as monuments or sites . This results in: 1 . Basin authorities and (rare) private owners see their property rights affected 2. (State) Basin authorities and (Autonomous) cultural heritage authorities must cooperate to combine use and conservation of water infrastructures
... Heritage Law may influence Water Law when ensuring the cultural use of water masses … The resevoir of Lanuza (Huesca, Spain) hosts a yearly music festival celebrated onto a floating stage. A minimum level of flow is needed to ensure the development of this cultural event. The discharge of the reservoir is held up, thus the irrigation period is delayed. This results in: 1. ( State) Basin authority is subject to the intervention of the (Autonomous) cultural authority 2. Holders of water concessions (mainly farmers) see their rights affected < During the festival After the festival >
… Heritage Law is step-by-step embracing the cultural dimension of water… The Oxford-Cambridge boat race The International Descent of the River Sella Traditional fishing in the Albufera of Valencia The legend of the “Loch Ness Monster” sport competitions tourism ways of life
5 conclusions to go… <ul><li>1. Water resources are multifunctional (economic, environmental and cultural ) </li></ul><ul><li>2. Water resources are likely to be regarded as cultural items, and therefore protected under the Cultural Heritage Law . </li></ul><ul><li>3. Water authorities and Cultural Heritage authorities are different in nature, functions, jurisdiction, venue and know-how; cooperation between them is essential. </li></ul><ul><li>4. Joint application of Water Law and Cultural Heritage Law to water resources is possible, despite the ressemblances and differences between their typical protection techniques. </li></ul><ul><li>5. In case of conflict between the two bodies of Law, the cultural approach must always prevail, because it does never jeopardize the essence of water resources. </li></ul>