National Law

The most relevant legal framework for urban recovery and reconstruction is defined by the body of relevant national law. In the specific context of urban cultural heritage, the key legislation comprises the laws governing urban planning, construction, housing, property and real estate, and antiquities and monuments, alongside other statutory regulations and decrees.

More important than the wording of the laws themselves is their application in practice. In the specific context of conflicts in the Middle East, the prevailing legal practice is often characterised by the absence, or a serious deterioration or even total breakdown, of the rule of law.

After a prolonged conflict, the return to at least a minimum level of legal and institutional accountability and transparency can represent a major challenge.

Relevance

As a general rule, national law governs the planning and implementation of all initiatives, programmes and projects for recovering and restoring urban cultural heritage. It is relevant to both public sector agencies and institutions, including external donors, and to private sector stakeholders, such as private businesses and residents who are either property owners or tenants.

Given the challenging and sometimes still hostile environment that prevails after an armed conflict, it is important to assess the prevailing legal framework carefully, in particular if it has deteriorated or significantly changed in the course of the conflict. Such an assessment needs to be complemented by a similar evaluation of institutional damage incurred in the conflict.

In addition, the specific post-conflict conditions and the challenges of large-scale reconstruction may also call for adjustments to the legal framework or the adoption of new legal tools, especially relating to urban planning, such as temporary embargoes on reconstruction and building activities [add link], to compensation for war damage, and to safeguarding the property rights of absent owners.

Users and target audience

The main users of such assessments at national and local level are the public sector actors and stakeholders involved in the reconstruction and restoration, as well as donor organisations willing to support such programmes or projects.
A legal assessment is also of interest to private actors and stakeholders, namely refugees and IDPs, who need information on the options available for returning to a safe and secure environment in order to rebuild or repair their houses, places of work and businesses. Among the other interested parties are potential investors who wish to participate in reconstruction projects.

APPROACHES AND INSTRUMENTS

Building and urban planning law

Building law regulates both public and private building activities, and defines rules, procedures and responsibilities for:

building permits
supervision and control of building activities
technical and environmental standards

Urban planning law, in turn, is the collection of policies, laws, decisions, and practices that govern the management and development of the urban environment. Among other things, it regulates:

development and land use planning
zoning
enforcement

Applicable national law and regulations are generally translated into local law, typically in the form of master plans or land use plans, zoning ordinances or local building codes.

The responsibility for preparing local urban plans generally rests with local authorities. In large cities in particular, the municipal administration is the main planning body. National authorities primarily fulfil a regulatory and supervisory function. [What about Yemen?]

Even in pre-conflict situations, many countries in the Middle East rarely apply and enforce urban planning and building law consistently. Development on the fringes of urban centres often takes place informally, without planning or building permits. While suchdevelopment is less significant in historic city centres, small-scale building works, such as horizontal or vertical extensions, or modifications of floor plans, are fairly common. The extensive informality that prevails in the construction sector has nurtured corruption and extortion, and has been one of the root causes of conflict.

Housing, property and real estate law

Property and real estate law generally provides the regulatory framework for:

real estate transactions
property registration and documentation
cadastral administration
housing and tenancy

As in the construction segment, informality is a hallmark of record-keeping concerning tenure, property ownership and related matters, especially at the fringes of urban centres. Even in old city centres for which historical cadastral information is available, however, more recent property transactions and changes in ownership, e.g. by inheritance or the sub-division of properties among family members, can be inadequately documented or not officially registered.

This situation is often exacerbated by the destruction of property registers and other documents during armed fighting, or the falsification of documents by parties in the conflict. Moreover, many refugees and IDPs leave documentary evidence of their ownership and property rights behind when fleeing, or their papers are subsequently lost or confiscated.

Safeguarding the housing, land and property rights of refugees and IDPs can therefore represent a huge challenge in the context of post-conflict reconstruction. The rights of both returning and non-returning refugees and IDPs must be respected.

Law on antiquities and monuments

This body of law governs and regulates the protection, conservation and restoration of historic buildings and monuments, and archaeological sites.

Given the wealth of cultural heritage in the region, the relevant instruments have a fairly long history in most countries here. Some instruments date back to the early days of national independence – the Iraqi Antiquities Act of 1936 (updated by the Antiquities and Heritage Act of 2002), the Syrian Antiquities Law of 1963, and the Yemeni Act on Antiquities of 1955(updated by the Antiquities and Museums Act of 1970).

The main focus of these laws is on the:

registration and listing of historic buildings as monuments with a special status as the basis for their protection and conservation
maintenance, promotion and development of cultural heritage assets
regulation and supervision of archaeological sites, and the issuing of excavation licences for archaeological research
control of trafficking of artefacts

Many of the relevant laws have been supplemented or implemented by further decrees or regulations. As a general rule, they do not give consideration to the effects of armed conflict, and are therefore of only limited use to actors addressing the specific and often dynamic challenges of post-conflict reconstruction.

Reconstruction Law in Germany after World War II

In countries that lack practical experience in adjusting the legal framework to the specific challenges of reconstruction, it may be useful to consider the German experience of large-scale reconstruction after the Second World War.

The massive task of clearing and rebuilding German cities was hugely facilitated by the adoption of new planning laws that were aligned with the challenges of reconstruction. Even before the Federal Republic of Germany was founded four years after the end of the war, most of the states newly established by the victorious occupying powers enacted debris and reconstruction laws.

These laws formed the basis of initial remedial activities in the destroyed cities. Building control laws primarily served the purpose of controlling and managing the use of scarce building materials and manpower. As a general rule, municipal authorities, especially in the larger cities, were responsible for implementing these new laws. The municipalities were declared responsible for clearing rubble, but given their limited capacities after the war, they regularly left the clearance of debris to individual property owners.

In North Rhine-Westphalia, municipalities had to define the main features of future urban development in their debris clearance plans in order to prepare for organised and planned reconstruction. In the absence of an overarching and consensual vision and model for reconstruction, outlining these features was one of the greatest challenges for city governments and planning authorities. In most states, the debris laws were later supplemented by other planning and reconstruction laws.

Further reading (in German only): Manfred Nutz: Stadtentwicklung in Umbruchsituationen: Wiederaufbau und Wiedervereinigung als Stressfaktoren der Entwicklung ostdeutscher Mittelstädte, Ein Raum-Zeit-Vergleich mit Westdeutschland, Stuttgart, 1998