The 1972 World Heritage Convention: A Commentary (Oxford Commentaries on International Cultural Heritage Law) [2 ed.] 0198877447, 9780198877448

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THE 1972 WORLD HERITAGE CONVENTION

OXFORD COMMENTARIES ON INTERNATIONAL CULTURAL HERITAGE LAW

Series Editors FRANCESCO FRANCIONI Emeritus Professor of International Law and Human Rights, European University Institute, Florence ANA FILIPA VRDOLJAK Professor of Law and UNESCO Chair in International Law and Cultural Heritage, University of Technology, Sydney This series provides commentaries on the six Conventions that regulate the protection of cultural and natural heritage, in peacetime and during conflict, as well as the protection of cultural diversity and the prohibition on illicit import or export of stolen cultural property. Each treaty will be analysed article by article, with a focus on interpretation, implementation, and relevant case law. Each commentary will also feature a number of thematic chapters to address cross-​cutting issues. This series will comprise commentaries on: Convention on the Protection of Cultural Property during Armed Conflict and its two Additional Protocols Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and Convention on Stolen or Illegal Exported Cultural Objects and UNIDROIT Convention on Stolen or Illegal Exported Cultural Objects Convention concerning the Protection of the World Cultural and Natural Heritage Convention for the Protection of Underwater Cultural Heritage Convention for the Safeguarding of the Intangible Cultural Heritage Convention on the Protection and Promotion of the Diversity of Cultural Expressions

The 1972 World Heritage Convention A Commentary SECOND EDITION

Edited by FRANCESCO FRANCIONI FEDERICO LENZERINI

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2023 The moral rights of the authors have been asserted First Edition published in 2008 Second Edition published in 2023 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http://​www.natio​nala​rchi​ves.gov.uk/​doc/​open-​gov​ernm​ent-​lice​nce/​open-​gov​ernm​ent-​lice​nce.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2023936708 ISBN 978–​0–​19–​887744–​8 DOI: 10.1093/​law/​9780198877448.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Series Editors’ Preface The Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) adopted by the UNESCO General Conference in 1972 was viewed as a landmark treaty at the time of its adoption and its near universal ratification since attests to global significance. It is considered the flagship convention of the Organization in the field of culture. The World Heritage logo is recognized the world over on properties inscribed on the World Heritage list and has become synonymous with UNESCO in the minds of the general public. It is fitting then that this series on the culture conventions which inform the corpus of international cultural heritage law was inspired and informed by the first edition of this commentary published in 2008. World Heritage Convention with its then-innovative operational framework, and the subsequent establishment of the World Heritage Centre, informed a rich stream of state and intergovernmental practice for scholars and practitioners alike. It was seen as intrinsic to the success of the Convention—if success is measured by ratifications and inscriptions, alone. UNESCO and States Parties seeking to re-energize existing culture conventions, like the 1954 Hague Convention and 1970 Conventions, mimicked its governance framework and operational guidelines; while culture conventions prepared after it, like the Intangible Cultural Heritage Convention of 2003, drew heavily upon it for inspiration. The World Heritage Convention’s ubiquity transcends the boundaries of international cultural heritage law, with its imprimatur of ‘outstanding universal value’ informing jurisprudence in international criminal law, international humanitarian law, human rights law, and international economic law. This commentary was prepared and published in the lead up to the fiftieth anniversary of the adoption of the World Heritage Convention. This afforded an opportunity for thoughtful and critical reflection on its operation and impact as against the intended aims of its drafters then, expectations of local inhabitants, States Parties, and the global community today, and honest assessment of its future potential. We live in a rapidly changing world, with many challenges, demanding urgent action. The World Heritage Convention in all its complexity continues to embody the hopes and failings of our actions to date. We are grateful to the editors Francesco Francioni and Federico Lenzerini, returning contributors, and new contributors from around the world who through their expertise and diligence have ensured a deeper understanding of the law and practice related to world heritage. We are also thankful to Robert Cavooris, Merel Alstein, and John Louth for their sustained commitment to scholarship in the field of cultural heritage law reflected in this publication of this second edition, and the Oxford Commentaries on International Cultural Heritage Law of which it forms part. Francesco Francioni and Ana Filipa Vrdoljak May 2022

Contents Notes on Contributors Table of Cases Table of Legislation

ix xiii xv

PART I  INTRODUCTION The 1972 World Heritage Convention: An Introduction

Francesco Francioni Conceptual Development of the World Heritage Convention

Christina Cameron

3 8

PART II  COMMENTARY The Preamble

Francesco Francioni Article 1: Definition of Cultural Heritage

Abdulqawi A. Yusuf Article 1: Cultural Landscapes

Amy Strecker Article 2: Definition of Natural Heritage

Catherine Redgwell Article 3: Identification and Delineation of World Heritage Properties

Ben Boer Articles 4–​7: National and International Protection of the Cultural and Natural Heritage

Guido Carducci Articles 8–​11: World Heritage Committee and World Heritage List

Tullio Scovazzi Article 11: List of World Heritage in Danger and Deletion of a Property from the World Heritage List

Gionata P. Buzzini and Luigi Condorelli Article 12: Protection of Properties Not Inscribed on the World Heritage List

Federico Lenzerini Article 13: World Heritage Committee and International Assistance

Ana Filipa Vrdoljak Article 14: The Secretariat and Support of the World Heritage Committee

Ana Filipa Vrdoljak

21 30 50 63 80 98 133

162 188 202 222

viii

Contents

Articles 15–​18: World Heritage Fund

248

Federico Lenzerini Articles 19–​26: International Assistance

Federico Lenzerini Articles 27–​28: Educational Programmes

Federico Lenzerini Article 29: Reports

Ben Boer Article 34: Federal or Non-​Unitary Constitutional Systems

Ben Boer Articles 30–​33 and 35–​38: Final Clauses

Federico Lenzerini

274 289 295 305 312

PART III  RELATIONS OF THE WORLD HERITAGE CONVENTION WITH OTHER INSTRUMENTS OF INTERNATIONAL LAW The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions and Other Instruments on Cultural Heritage

Guido Carducci The World Heritage Convention and Other Conventions Relating to the Protection of the Natural Heritage

Catherine Redgwell World Heritage and Human Rights

Ana Filipa Vrdoljak The World Heritage Convention and the Rights of Indigenous Peoples

Federico Lenzerini and Dalee Sambo Dorough The World Heritage Convention and the Law of the Sea

Patrizia Vigni The World Heritage Convention and International Investment Law

Valentina Vadi

321

335 351 373 391 403

PART IV  CONCLUSIONS The Future of the World Heritage Convention: Problems and Prospects

Francesco Francioni and Federico Lenzerini

Index

421

429

Notes on Contributors Ben Boer is Professor Emeritus in Environmental Law at the University of Sydney and a founder of the Australian Centre for Climate and Environmental Law. From 2011 to 2020 he was also Distinguished Professor in the Research Institute of Environmental Law at Wuhan University. He is a life member of the Australian National Environmental Law Association, a member of the Board of Governors of the International Council of Environmental Law, and a member of the Australian Academy of Law. He is a founding co-editor of the Chinese Journal of Environmental Law. Gionata P. Buzzini has been Secretary-General of the City of Geneva (Switzerland) since 2019. He was Secretary-General of the Parliament of Canton Ticino (Switzerland) from 2013 to 2019. He previously served, for several years, as a legal officer in the Codification Division of the United Nations Office of Legal Affairs, New York. He holds a PhD in international law from the Graduate Institute of International Studies (Geneva) and is the author of a number of publications in the field of public international law. Christina Cameron, CM PhD, is Professor Emeritus. She held the Canada Research Chair in Built Heritage at the University of Montreal from 2005 to 2019. She previously served with Parks Canada for more than thirty-five years. She has worked with the World Heritage Convention since 1987, chairing the Committee in 1990 and 2008, and co-authoring Many Voices, One Vision: The Early Years of the World Heritage Convention (2013). She is a founding member of OurWorldHeritage. Guido Carducci served as Chief of the International Standards Section, UNESCO (HQ Paris), in charge of UNESCO international standard-setting activity, conventions, and other instruments on cultural property and heritage. He served as UNESCO Mediator between the UK and Greece with regard to the Parthenon Marbles. He is Professor in Law at the University of Paris. He holds PhDs in law from the Universities of Paris II and Rome I, and a diploma from the Hague Academy. His publications include two monographs and fifty-five articles in five languages. Luigi Condorelli is Honorary Professor of Public International Law, Universities of Florence and Geneva. He has published extensively in the field of public and private international law and has appeared frequently as legal counsel before the International Court of Justice. Francesco Francioni (Dr iuris, Florence and LLM, Harvard) is Professor Emeritus of International Law at the European University Institute, Florence. Previously, he had held the Chair of International Law at the Law Faculty of the University of Siena. He is a member of the Institut de droit international and of the American Law Institute, as well as the Co-Founder and General Editor, with Ana Filipa Vrdoljak, of the Oxford University Press Series Cultural Heritage Law and Policy and of the series Oxford Commentaries on International Cultural Heritage Law. He has been a member of the Italian delegation in numerous international negotiations and diplomatic conferences for the adoption of treaties in the field of environmental protection and cultural heritage. He has served as

x

Notes on Contributors

President of the UNESCO World Heritage Committee in 1997–1998. He has published extensively in the field of public international law, in English, Italian, and French languages. He has been Judge ad hoc in the UN Tribunal of the Law of the Sea and Arbitrator at the Permanent Court of Arbitration (The Hague). Federico Lenzerini holds a PhD in international law. He is Professor of International Law and Human Rights at the Department of Political and International Sciences of the University of Siena (Italy). He is also Professor at the LLM programme in Intercultural Human Rights at the St. Thomas University School of Law, Miami (FL), USA, and Professor at the Tulane-Siena Summer School on International Law, Cultural Heritage and the Arts. He has been Consultant to UNESCO (Paris), Counsel to the Italian Ministry of Foreign Affairs for international negotiations concerning cultural heritage, and member of the Italian delegation at meetings of the World Heritage Committee. Catherine Redgwell is Emeritus Chichele Professor of Public International Law in the Law Faculty of Oxford University and fellow of All Souls College. She is Co-Director of the Sustainable Oceans Programme of the Oxford Martin School. Before joining Oxford University, she was Chair of International Law at University College, London, and General Editor of the International and Comparative Law Quarterly. Her research interests fall broadly within the public international field, including international energy law and international environmental law. She has co-authored two leading texts on international environmental law: Birnie, Boyle, and Redgwell, International Law & the Environment (OUP 2021) and Bowman, Davies, and Redgwell, Lyster’s International Wildlife Law (CUP 2010). Dalee Sambo Dorough (Inuit-Alaska) recently concluded service as the International Chair of the Inuit Circumpolar Council and is a former Associate Professor at the University of Alaska Anchorage. Engaged for over thirty-five years at the UN, ILO, OAS, and other international fora, she was also an Expert Member and Chairperson of the UNPFII. Her work is centred on international Indigenous human rights law as well as political and legal relations between States and Indigenous peoples. She holds a PhD from the University of British Columbia, Faculty of Law (2002) and a Master of Arts in Law and Diplomacy from The Fletcher School at Tufts University (1991). She is also a former co-chair of the International Law Association Committee on Implementation of the Rights of Indigenous Peoples. Tullio Scovazzi now retired, was Professor of International Law in the Universities of Parma, Genoa, Milan, and Milan-Bicocca, Italy. He is an associate member of the Institut de Droit International. As legal expert and as legal advisor to the Italian Government, he occasionally attended international negotiations and meetings relating to the law of the sea, environment, culture, cultural heritage, and human rights. Amy Strecker is an Associate Professor at the Sutherland School of Law, University College Dublin, where she teaches on culture, heritage, and human rights. Her research focuses on non-proprietary relations with land and the role of law in landscape governance. She is currently leading an ERC-funded research project on the role of international law in facilitating spatial justice and injustice (PROPERTY[IN]JUSTICE). Valentina Vadi is an Adjunct Professor in International Law at the School of Political Sciences of the University of Florence. She was formerly a Professor in International

Notes on Contributors

xi

Economic Law at Lancaster University (2015–2021), a Michigan Grotius Senior Research Fellow at Michigan Law School (2019), and an Emile Noël Postdoctoral Fellow at the Jean Monnet Center for International and Regional Economic Integration, New York University (2013–2014). She holds a doctorate in international law from the European University Institute, degrees in international law and political science from the University of Siena, and a Magister Juris (LLM) from the University of Oxford. She has published extensively in the field of international cultural heritage law, international economic law, and the history of international law. Patrizia Vigni is Associate Professor of International Law at the Department of Business and Law of the University of Siena (Italy). She holds a degree in law from University of Siena (1992), a Magister Juris from University of Oxford (UK) (1996), a doctorate in international law from University of Siena (1998). Her main research fields are public international law, the Antarctic Treaty System, the Law of the sea, Diplomatic and consular protection, EU citizenship, and the Protection of cultural heritage. She was Legal Advisor to the Italian Government at the Antarctic Treaty Consultative Meetings from 1998 to 2014. Ana Filipa Vrdoljak is Professor of Law, Faculty of Law and UNESCO Chair of International Law and Cultural Heritage at the University of Technology Sydney. She has published extensively in the field of international cultural heritage law and she is Co-General Editor of the Oxford University Press book series Cultural Heritage Law and Policy, and Commentaries on International Cultural Heritage Law. She chairs the Advisory Board of the International Journal of Cultural Property, and is President of the International Cultural Property Society. She holds a PhD in law from the University of Sydney. Abdulqawi A. Yusuf is Judge at the International Court of Justice, The Hague, the Netherlands. He was elected as Judge to the Court in November 2008 and re-elected in November 2017. He was President of the Court from 6 February 2018 to 6 February 2021, and Vice President of the Court from 6 February 2015 to 6 February 2018. He is a member of the Institut de Droit International, and a former Chief legal counsel to various intergovernmental organizations, including UNESCO and UNIDO. He is the founder of the African Institute of International Law (AIIL), Arusha, Tanzania, and of the African Yearbook of International Law. He is the author of numerous publications on various aspects of international law. He holds a PhD in international law from the IUHEI, Geneva.

Table of Cases INTERNATIONAL CASES Advisory Opinion on the Environment and Human Rights, State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity, IACHR Advisory Opinion OC-​23/​18���������������������������������� 367–​68n.136 Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia [1971] ICJ Rep 16������������������������������������������������������������������������ 349n.74 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136���������������123nn.104–​7, 127, 131n.141, 355n.31, 361n.82 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 257������������������������������������������������������������������������������������������������������������ 131n.142 Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3 ������������������������������� 169n.31, 349n.74 African Commission on Human and Peoples’ Rights v Republic of Kenya, Application 006/​2012, ACHPR������������������������������������������������������������������������������������������� 363n.97 Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain) [1970] ICJ Rep 3���������������������������������� 121–​22, 123, 124, 126, 127n.126, 129, 355n.31, 370n.150 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Communication No. 276/​2003, ACHPR���������������������������������������������������������������������� 365n.121, 370n.159, 384n.48 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2018] ICJ Rep �������������������������������������������������������������������� 367–​68n.136 Compañia del Desarrollo de Santa Elena SA v Republic of Costa Rica, ICSID Case No. ARB/​96/​1; 39 ILM 1317 (2000) ��������������������������������������������������������������������������������� 414 Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 24�������������������������������������������������� 168n.29 Cortec Mining Kenya Ltd, Cortec (PTY) Ltd, and Stirling Capital Ltd v Republic of Kenya, ICSID Case No. ARB/​15/​29����������������������������������������������������������������������������������� 407–​9 East Timor, Re (Portugal v Australia) [1995] ICJ Rep 90����������������������������������� 126n.125, 131nn.140–​41 European Commission v Poland (Bialowieza Forest) Case C-​44-​17�������������������������������������������� 365n.116 Factory at Chorzów (Germany v Poland) 1928 PCIJ Series A No, 17����������������������������� 413n.85, 413n.87 Gabcíkovo-​Nagymaros Project, Hungary v Slovakia [1997] ICJ Rep 7���������������� 6n.19, 349n.75, 350n.77 Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No. ARB/​15/​31������������������������������������������������������������������������������������������������� 412–​13 Glamis Gold, Ltd v United States of America, Award, 8 June 2009 ����������������������������������������������� 411–​12 Gosling (Thomas) and others v Republic of Mauritius, ICSID Case No. ARB/​16/​32������������� 409–​10, 413 Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina, IACHR Series C No. 400 �������������������������������������������������������������������������������������������� 367–​68n.136 Kaliña and Lokono Peoples v Suriname, IACHR Series C No. 309 ���������������������������� 363n.98, 370n.157, 370n.158, 370n.160 Lac Lanoux Arbitration (France v Spain) 24 ILR 101 (1957)�������������������������������������������������������������� 3n.2 Libya v Tchad [1994] ICJ Rep 23 ������������������������������������������������������������������������������������������������ 168n.29 Ololosokwan Village Council and Ors v Attorney General of Tanzania, App. no. 15 of 2017, East African Court of Justice ������������������������������������������� 363n.102, 370n.156 Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-​01/​12-​01/​15���������������� 6n.17, 361n.83, 363n.95, 370n.153, 370n.159, 370n.160, 370n.163, 371n.167 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-​01/​12-​01/​18 ������������������������������������������������������������������������������������������������� 359n.64, 361n.83 Prosecutor v Miodrag Jokić, IT-​01-​42/​1-​S, Trial Chamber I, ICTY����������������������������� 361n.84, 370n.153 Rhyn de fer (Belgium v Netherlands), Arbitral Award of 24 May 2005 �������������������������������������������� 6n.19

xiv

Table of Cases

Salini Costruttori S.p.A. and Italstrade S.p.A. v Kingdom of Morocco, ICSID Case No. ARB/​00/​4����������������������������������������������������������������������������������������������������� 406–​7 Shrimp-​Turtles, WTO Appellate Body, 1998–​2001�������������������������������������������������������������������������� 6n.19 Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt, ICSID Case No. ARB/​84/​3������������������������������������������������������������������������������������������� 411, 414–​15 Temple of Preah Vihear (Cambodia v Thailand) [1962] ICJ Rep 36�������������������������������������������� 370n.158 Temple of Preah Vihear (Cambodia v Thailand) [2013] ICJ Rep 281����������� 361n.81, 362n.89, 370n.155, 370n.157 Trail Smelter Arbitration (United States v Canada), 3 RIAA 1905 (1941) ������������������������������������������ 3n.2 Unglaube (Marion and Reinhard Hans) v Republic of Costa Rica, ICSID Case No. ARB/​09/​20��������� 414 Wimbledon (United Kingdom v Germany) [1932] PCIJ Series A, No. 1��������������������������������������������� 114

DOMESTIC CASES Australia Commonwealth of Australia v State of Tasmania [1983] HCA 21; (1983) 158 CLR 1����������������� 309, 314 Queensland v Commonwealth of Australia [1989] HCA 36; (1989) 167 CLR 232��������� 86n.24, 198n.25 Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261������������������������������������������� 82

Israel Beit Sourik Village Council v Government of Israel and Commander of the IDF Forces in the West Bank HCJ 2056/​04 �������������������������������������������������������������������������������� 361n.82

Table of Legislation INTERNATIONAL INSTRUMENTS International Treaties and Conventions Antarctic Treaty 1959������������146, 392n.7, 421–​22 Art. IV��������������������������������������������������397n.32 Protocol on Environmental Protection 1991������������������������ 4n.7, 392n.7 Annex V�����������������������������������������������������������397 Art. 3(1)�����������������������������������������������������������146 Convention on Access to Information, Public Participation in Decision-​ Making and Access to Justice in Environmental Matters 1998 (Aarhus Convention)���������� 6n.18, 368n.138 Art. 1�����������������������������������������������������������296 Convention on Biological Diversity 1992 (Biodiversity Convention, CBD) �����������4n.9, 72, 73, 74, 236, 336–​37, 336n.2, 337n.7, 338–​39, 340t, 343, 344n.48, 346–​47, 346n.62, 348–​49 Art. 8�������������������������������������������������������64–​65 Art. 22���������������������������������������������������348–​49 Convention on Conservation of Nature in the South Pacific 1976 (Apia Convention)�����������������������������������341 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES)���������4n.6, 75, 236, 336–​37, 336n.2, 339, 340–​41, 340t, 342, 343, 344n.48, 348–​49, 421–​22 Art. XIV�������������������������������������������������������348 Convention on Long-​range Transboundary Air Pollution 1979����������������������������������4n.5 Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR)������392n.7, 400 Preamble �����������������������������������������������������400 Art. II���������������������������������������������������400n.44 Convention on the Conservation of Migratory Species of Wild Animals 1979 (Bonn Convention, CMS) ������74, 236, 336–​37, 336n.2, 339, 340, 340t, 341, 342, 343, 344n.48, 346–​47, 348–​49 Art. XII(2)���������������������������������������������������348 Convention on the Elimination of Discrimination Against Women 1979�������������������������������������358–​59

Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965 (ICSID Convention)���������������������������406–​7 Art. 25(1)������������������������������ 406n.17, 406n.19 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (Ramsar Convention)����������72, 73, 76, 236, 336–​37, 336n.2, 338–​39, 340–​42, 340t, 343, 344, 345–​47, 348–​49 Convention to Combat Desertification in those Countries Experiencing Serious Drought and/​or Desertification, Particularly in Africa 1994��������������������4n.11 International Convention for the Regulation of Whaling 1946 (ICRW)����������������������������������������������336n.5 International Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD)�����������352n.4, 353n.11, 355–​56 International Covenant on Civil and Political Rights 1966 (ICCPR) ����������93–​94, 352n.4, 354, 423n.12 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)������������� 93–​94, 352n.4, 353n.11, 354, 371, 423n.12 International Plant Protection Convention 1951 (IPPC)���������336n.2, 336n.5 International Treaty on Plant Genetic Resources for Food and Agriculture 2001 (ITPGRFA) ���������������������236, 336n.2, 336n.5, 340t Man and Biosphere (MAB) Programme 1971�����������������72n.39, 235–​36, 340–​41, 341n.33, 345–​46 Paris Convention for the Protection of Industrial Property 1883 (Paris Convention) Art. 6ter�������������������������������������������������������291 Treaty on the Functioning of the European Union (TFEU) Art. 36��������������������������������������������������333n.70 Art. 167(1) (ex Art. 151 TEC)��������������333n.69 UNESCO Constitution 1945 ������206–​7, 234–​35, 358–​59, 403

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Preamble �������������������������������������������������25–​26 Art. I�����������������������������������������25–​26, 354–​55 (1)������������������������������������������351, 369n.142 (2)(c)�������������������������������������������������������352 Art. IV(4)���������������������������� 225n.17, 234n.102 Art. VI(4)������������������������������������������������224n.9 Art. XII ����������������������������������������368–​69n.141 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (World Heritage Convention) ������������4–​5, 8, 15–​18, 23–​24, 26, 36n.19, 63–​64, 66, 70–​71, 75, 76, 81, 100, 105, 107, 108, 114–​15, 116n.57, 123–​24, 127, 128, 129, 130–​32, 136, 146–​47, 151, 163–​66, 170–​72, 187, 193–​94, 205–​7, 208–​9, 220, 221, 223, 225, 235–​36, 238, 240, 242, 244–​45, 246, 247, 250–​51, 280, 301, 302, 307–​8, 313–​15, 316, 321–​23, 324, 326–​27, 328, 329, 330, 331, 333, 335–​42, 340t, 343, 344, 344n.48, 345–​47, 348–​49, 352–​55, 359–​60, 371–​72, 373, 376–​77, 379–​84, 385–​86, 387, 390, 391, 392, 394–​97, 398–​99, 400–​2, 403, 411, 415–​16, 417, 421–​28 Preamble �����������������������21​–22, 23–​24, 60n.82, 105, 108, 114–​15, 124–​26, 129, 275–​76, 323, 352, 400 para. 1����������������������������������22–​23, 323n.11 para. 2�������������������� 24–​25, 164n.8, 323n.11 para. 3�������������������� 24–​25, 205n.6, 323n.11 para. 4����������������������������������25–​26, 323n.11 para. 5��������� 25–​26, 81n.3, 164n.9, 323n.11 para. 6������������������������� 5n.13, 26–​29, 81n.3, 164n.10, 323n.12 para. 7����������������� 26–​29, 164n.11, 167n.25, 205n.6, 323n.12 para. 8���������������������������� 219n.112, 323n.12 Ch. I (Arts 1–​3)�������������������������������������������105 Art. 1����������������������6–​7, 26–​27, 30​–31, ​49, 50, 52–​53, 56–​57, 64, 65, 80–​81, 82, 87, 90, 100, 101, 106, 107–​8, 110, 112, 113, 118n.79, 126n.123, 151n.114, 164–​65, 164n.7, 165n.18, 188, 190–​91, 197–​98, 200, 207–​8, 259, 277, 314, 322–​23, 325n.23, 332, 391 (3)�������������������������������������������������������������90 Art. 2�����������������������26–​27, 32n.10, 33, 52–​53, 63​, 64–​65, 79, 80–​81, 82, 87, 89, 90, 100, 101, 106, 107–​8, 110, 112, 113, 118n.72, 126n.123, 151n.114, 164–​65, 164n.7, 165n.18, 188, 190–​91, 197–​98, 200, 207–​8, 259, 277, 314, 322–​23, 332, 379–​80, 391

Art. 3�����������������������������65n.11, 80–​82, 87, 93, 101, 103n.16, 107, 144–​45, 163–​64, 197–​98, 399 Ch. II (Arts 4–​7)��������������������100, 101, 102–​3, 104, 105, 106, 107, 125–​26, 132, 189, 190–​91, 192, 426 Art. 4��������������������81, 82, 86, 87, 98​, 101, 103, 103n.17, 106, 106n.23, 107, 108, 109–​10, 113, 144–​45, 155–​56, 164–​65, 164n.6, 164n.12, 190–​92, 195, 200, 310, 314, 399 Art. 5���������������������81, 82, 86, 98​, 101n.5, 103, 107, 109–​11, 118n.73, 118n.80, 120, 190–​91, 192, 195, 200, 207, 310, 314, 357 (a)����������������������������������������110–​11, 191n.5 (b)�����������������������������������������������������110–​11 (c)���������������������������������������������110–​11, 292 (d)����������������������������������������110–​11, 191n.6 (e)���������������������������������������������110–​11, 292 Art. 6�����������81, 82, 98​, 111, 115n.54, 164–​65, 192, 314, 367n.128, 399 (1)����������� 5n.14, 65n.12, 104, 108, 111–​15, 128, 130, 163–​65, 164n.12, 200 (2)�����������������������101n.11, 111–​12, 115–​16, 144–​45, 164–​65, 164n.12 (3)���������� 65n.12, 112, 116–​17, 191n.7, 200 Art. 7�����������������������99​, 112, 118n.74, 163–​64, 164n.12, 191–​92 Ch. III (Arts 8–​14) ��������100, 102–​3, 189, 190, 203–​4, 224 Art. 8������������������������ 28n.28, 86, 118n.75, 133 (1)����������������������� 135, 206, 223nn.4–​5, 271 (2)�����������������������������������������������������136–​37 (3)�����������������������������������������������������������137 Art. 9��������������������������������������������118n.76, 133 (1)�����������������������������������������������������������139 (2)�����������������������������������������������������������139 (3)������������������������������������������139, 155n.145 Art. 10������������������������������������������118n.77, 133 (1)�����������������������������������������������������140–​41 (2)�����������������������������������������������������������142 (3)�����������������������������������������������������������142 Art. 11��������������� 81, 86, 101n.6, 106, 108n.27, 118n.78, 134, 164n.13, 165–​66, 190–​91, 192–​94, 197, 198–​99 (1)��������� 28, 75, 84, 101, 101n.10, 108n.27, 116n.56, 143, 144–​45, 155–​56, 158n.159, 160n.162, 160n.165, 193, 197, 244–​45 (2)������������� 35, 83, 101n.9, 102–​3, 106n.24, 112, 115–​16, 143n.63, 148, 151, 156, 158n.159, 160n.163, 160n.165, 166–​67, 171n.39, 185, 188, 189–​90, 191–​92, 195, 207–​8, 391, 426

Table of Legislation (3)������� 94, 141n.43, 158, 159, 160, 164n.3, 166, 170, 185, 395n.21, 424, 425n.18 (4)������� 35, 83, 95, 101n.9, 102–​3, 108n.26, 112, 115–​16, 124n.108, 156, 162–​63, 166–​83, 184, 189–​90, 191–​92, 195, 207–​9, 212n.48, 323, 391, 425, 426 (5)���������������������������������35, 65–​66, 151, 160 (6)������������������������������ 160, 164n.5, 171n.39 (7)����������������������������������������160–​61, 164n.4 Art. 12������� 81, 83, 86, 103, 103n.17, 108n.27, 119n.81, 188–​93, 194, 195–​201, 328, 399, 411, 412, 426 Art. 13���������������� 108n.27, 124n.109, 164n.14, 165n.16, 168n.27, 202​, 203–​4, 206, 207–​8, 220–​21, 276, 277–​78, 314, 399 (1)������166–​67, 183n.107, 191–​92, 207, 276 (2)���������������������������������������������191–​92, 277 (3)������������ 124n.109, 209, 210, 214, 278n.7 (4)���������������������174–​75, 209, 211, 278, 279 (5)���������������������������������������������������214, 288 (6)����������������������������164n.15, 215, 217, 271 (7)�������������������218–​19, 220, 235, 235n.108, 237–​38, 335–​36 (8)��������������������������������������209–​10, 210n.36 Art. 14���������������������������222​, 223–​24, 227, 247 (1)���������������������������������������������������224, 227 (2)����������������������218–​19, 227, 229, 237–​38, 238n.132, 242n.156, 300n.13, 335n.1 Art. 15������������164n.15, 233, 248​, 250–​51, 315 (2)�����������������������������������������������������������250 (3)������������������������� 116n.59, 126n.123, 251, 256–​57, 272–​73 (b)(i)���������������������������������������������256–​57 (b)(ii)���������������������������������������������������257 (e)������������������������������������������������234n.93 (4)��������������������������������������233n.89, 272–​73 (6)����������������������������������������������������116n.59 Art. 16���������������������217n.94, 248–​​49, 250–​51, 252–​53, 256, 315 (1)�������������� 103n.16, 126n.122, 223nn.3–​4, 252–​53, 254–​56 (2)��������������126n.122, 252–​53, 254–​56, 270 (3)�����������������������������������������������������������252 (4)������������������������������������126n.122, 252–​56 (5)�����������������������������������������������������270–​71 Art. 17�������������������������������������������249​, 257–​59 Art. 18�����������������������������249​, 257–​59, 263–​64 Ch. V (Arts 19–​26)���������������������109, 116n.57, 116n.60, 120, 125–​26, 164n.14, 272, 276, 277 Art. 19���������� 113n.37, 116n.58, 168n.27, 208, 274, 276, 285–​87, 424–​25

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Art. 20���������113n.37, 166–​67, 191–​92, 207–​8. 274, 276, 277 Art. 21�����������������������������������210, 274, 285–​87 (1)������ 168n.27, 174n.47, 276, 279, 285–​87 (2)����� 174n.47, 212n.48, 216n.82, 276, 278 (3)���������������������������������������������������276, 287 Art. 22����������������� 126n.120, 166–​67, 167n.24, 191–​92, 207, 210, 271, 274​, 280, 314 (a)���������������������������������������������280, 292–​93 (b)���������������������������������������������280, 292–​93 (c)�����������������������������276, 277, 280, 292–​93 (d)�����������������������������������������������������������280 (e)�����������������������������������������������������������280 (f )�����������������������������������������������������������280 Art. 23������������������191–​92, 207, 208, 275, 276, 277, 293, 314 Art. 24�������������������������207, 275, 276, 287, 314 Art. 25����������������� 126, 167n.25, 212n.54, 275, 276, 277–​78 Art. 26����������������126n.121, 275, 276, 288, 314 Art. 27�����������������������������81, 234–​35, 289​, 293 (1)���������������������������������������������������289, 290 (2)���������������������������������������������������289, 290 Art. 28�����������������������������������������289​, 293, 294 Art. 29����������������� 81, 231n.63, 245n.184, 262, 295–​96, 297, 396n.28 (1)�����������������������������������������������������������297 (3)���������������������������������������������������206, 300 Art. 30����������������������252–53n.19, 312​, 313–​14 Art. 31�������������������������������������������������312​, 315 Art. 32�����������������������������������������312​, 315, 316 (1)�����������������������������������������������������������316 Art. 33����������������������������������225n.18, 312​, 317 Art. 34�����������������81, 305–​7, 308, 309–​10, 317 (a)���������������������������������������������������306, 309 (b)�������������������������������������������306, 307, 310 Art. 35�������������������������������������������������312​, 317 (3)�����������������������������������������������������������317 Art. 36�������������������������������������������312​, 317–​18 Art. 37��������������������������172n.42, 313​, 318, 394 (2)�����������������������������������������������������������394 Art. 38�������������������������������������������������313​, 318 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2003 (Intangible Cultural Heritage Convention) �������������������3n.3, 4, 35, 43–​44, 107, 151n.115, 189–​90, 200, 219–​20, 235–​36, 322, 352n.3 Art. 2������������������������������������������������43, 43n.34 (1)�����������������������������������������������������354–​55 Art. 16(1)��������������������������������������������151n.115 Art. 34���������������������������������������������������������307 Art. 35���������������������������������������������������������307

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Table of Legislation

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (1970 Paris Convention)�����������3, 3n.1, 6n.18, 25–​26, 33n.11, 40n.32, 235–​36, 322, 328–​29, 330, 331, 334 Art. 1����������������������������������������������������329n.51 Arts 5 and 6������������������������������������������328n.43 Art. 7(b)(ii) ������������������������������������������328n.44 Art. 13��������������������������������������������������328n.45 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 (Cultural Diversity Convention)������������������35, 45–​46, 332, 426n.23 Art. 4�������������������������������������������������������45–​46 Art. 30(b)�����������������������������������������������������307 UNESCO Convention on the Protection of Cultural Property in the Event of Armed Conflict 1954 (Hague Convention) �������������������3n.1, 9–​10, 25–​26, 33n.11, 40n.32, 235–​36, 318, 322, 323–​25, 423–​24 Art. 1����������������������������������������������������325n.22 Art. 4����������������������������������������������������324n.16 Art. 5����������������������������������������������������324n.17 Art. 6����������������������������������������������������324n.18 Ch. II (Arts 8–​11)���������������������������������������325 Art. 8����������������������������������������������������325n.25 Art. 18��������������������������������������������������324n.20 Art. 19��������������������������������������������������325n.26 First Protocol (1954)���������������������324, 325–​26 paras 3, 4������������������������������������������326n.32 Second Protocol (1999)���������������4, 26, 26n.22, 40n.32, 324 Art. 6������������������������������������������������326n.36 Ch. II (Arts 5–​9)������������������������������326n.34 Ch. III (Arts 10–​14) ������������������������326n.35 Art. 10����������������������������������������������327n.38 Ch. IV (Arts 15–​21) �������������������������������326 Art. 22����������������������������������������������326n.37 UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 ����������� 3n.3, 4, 6n.18, 44–​45, 235–​36, 322, 331, 392, 396, 398–​99, 400n.45 Preamble �����������������������������������������������398–​99 Art. 1(1)��������������������������������������������������44n.36 (5)����������������������������������������������������396n.27 Art. 9�����������������������������������������������������������394 Art. 10�������������������������������������������������394, 400 (3)(a)������������������������������������������������394n.14 Art. 12���������������������������������������������������������400 (2)����������������������������������������������������396n.26

UNESCO Convention on the Safeguarding of Intangible Cultural Heritage 2003������331–​32, 332n.61 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995���������������������236, 329–​30, 334 Art. 3����������������������������������������������������330n.53 United Nations Charter 1945 Art. 1������������������������������������ 351n.1, 369n.142 Art. 104����������������������������������������368–​69n.141 United Nations Convention on the Law of the Sea 1982 (UNCLOS) �������4n.4, 146–​47, 236, 331, 336n.2, 345–​46, 392, 395–​96, 397, 398–​400, 401 Preamble �����������������������������������������������������400 Art. 1(1)���������������������������������� 392n.6, 396n.27 Art. 2������������������������������������������������������393n.9 (3)����������������������������������������������������400n.45 Arts 3, 4 and 5���������������������������������������������393 Art. 33��������������������������������������������������393n.10 Art. 56��������������������������������������������������393n.11 Art. 77����������������������������������������������������393n.9 Art. 87��������������������������������������������������396n.25 Arts 94 and 117�����������������������������������399–​400 Part XI (Arts 133–​191) ���������������397, 399–​400 Art. 136, 137, 138��������������������������������121n.89 Art. 140������������������������������������������������400n.45 Art. 149�������������������������� 331n.59, 392n.6, 397 Arts 217 and 218����������������������������������396n.24 Art. 237�������������������������������������������������������401 Art. 303���������������������������������� 331n.59, 392n.6 (2)�����������������������������������������������������������393 United Nations Convention on the Rights of the Child 1989�������������������421–​22 United Nations Convention to Combat Desertification 1994 (UNCCD)��������������������������346–​47, 346n.62 United Nations Framework Convention on Climate Change 1992 (Climate Change Convention, UNFCCC) ����������� 4n.10, 236, 336n.2, 342, 343, 346–​47 Paris Agreement 2015 ����������������������4n.10, 348 Arts 3, 4�����������������������������������������������83–​84 Universal Declaration of Human Rights 1948 (UDHR)��������������93–​94, 353n.11, 354 Art. 27�����������������������������������������������������87–​88 Vienna Convention for the Protection of the Ozone Layer 1987������������������������4n.8 Vienna Convention on the Law of Treaties 1969�������������������������������������114–​15 Preamble ��������������������������������������������417n.114 Art. 11��������������������������������������������������206n.16 Art. 26������������������������������������ 114n.38, 322n.8 Art. 27���������������������������������������������������������307 Art. 30�������������������������������������������349, 415–​16

Table of Legislation Art. 31���������������26–​27, 163, 171, 189, 189n.2, 207n.21, 349, 416 (1)�������������� 105n.21, 147n.94, 163n.1, 198, 254–​55, 349 (2)�������������������������������������������������������������22 (3)���������������������������� 172, 172n.40, 208n.23 (c)����������349–​50, 382–​83, 416, 416n.112 (3)(a)���������������������������������������������������27–​28 (b)���������������������������������������������������������28 Art. 32�����������������������������26–​27, 163, 171, 349 (2)(b)������������������������������������������������105n.22 Art. 33���������������������������������������������������������163 (4)�����������������������������������������������������313–​14 Art. 34���������������������� 114n.39, 114n.42, 307–​8 Art. 35��������������������������������������������������114n.42 Art. 36(1)����������������������������������������������114n.44 Art. 38������ 114n.41, 114n.46, 115n.54, 206n.16 Art. 53��������������������������������������������������122n.97

OTHER INTERNATIONAL INSTRUMENTS African Charter on Human and Peoples’ Rights 1981 (ACHPR) Arts 1, 8, 14, 17, 21, 22�������������������������383–​84 African Union Convention on the Protection and Assistance of Internally Displaced Persons 2009 (Kampala Convention) ���������������������������364 Agreed Measures for the Conservation of Antarctic Fauna and Flora 1964��������������3n.1 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 Art. 7(3)�������������������������������������������������������145 Agreement on Trade-​Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement)���������������������������������291 American Declaration on the Rights of Indigenous Peoples 2016 (ADRIP)�������������������������378, 379, 390 Art. XIII�������������������������������������������������������378 Art. XXVIII�����������������������������������������378, 379 Artemis Accords (Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes) 2020���������������������������146 Athens Charter for the Restoration of Historic Monuments 1931 Art. VII.������������������������������������������������������8n.2 Beijing Declaration on Platform for Action 1995���������������������������������������358–​59 Budapest Declaration on World Heritage 2002���������������������73n.43, 213–​14, 232n.78, 242, 290 para. 8���������������������������������������������������271–​72

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Council of Europe Convention on Offences relating to Cultural Property 2017�����������������������������������330–​31 Council Regulation (EC) No. 116/​2009 of 18 December 2008 on the export of cultural goods���������������������������333 Directive 96/​100/​EC of the European Parliament and of the Council of 17 February 1997 amending the Annex to Directive 93/​7/​EEC on the return of cultural objects unlawfully removed from the territory of a Member State ����������������������������������333n.71 Directive 2001/​38/​EC of the European Parliament and of the Council of 5 June 2001 amending Council Directive 93/​7/​EEC on the return of cultural objects unlawfully removed from the territory of a Member State ����������������������������������333n.71 Directive 2014/​60/​EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No. 1024/​2012 (recast)�������������������333 Durban Declaration and Programme of Action again Racism, Racial Discrimination, Xenophobia, and Related Intolerance 2002����������356, 356n.33 Escazú Agreement 2018�����������������������������������296 European Convention on the Protection of the Archaeological Heritage 1992 (Valletta Convention)���������������������333 European Convention on the Protection of the Archaeological Heritage 1969 (London Convention)��������������333n.68 European Cultural Convention 1954���������������333 European Landscape Convention 2000 �������59–​60 Art. 5������������������������������������������������������60n.81 France–​UNESCO Cooperation Agreement 1997 �������������������������������������261 General Assembly of States Parties to the World Heritage Convention Rules of Procedure 2014 r. 1����������������������������������������������������������223n.2 r. 12��������������������������������������������������������223n.2 r. 13�������������������������������������������������������136–​37 (2)������������������������������������������������139n.23 r. 14�������������������������������������������������������136–​37 r. 15(2)��������������������������������������������������225n.13 International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) Statutes ���������������������������������������������241–​42

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Art. 1����������������������������������������������������138n.15 Art. 2(1)������������������������������������������������138n.14 International Charter for the Conservation and Restoration of Monuments and Sites 1964 (Venice Charter) �������������������������10, 240–​41 Preamble �������������������������������������������������46–​47 International Council on Monuments and Sites (ICOMOS) Statutes Art. 4(h), (i)�������������������������������������������������241 International Labour Organization Convention No. 107 on Indigenous and Tribal Populations 1957 �������������374–​75 Preamble, fifth recital������������������������������374n.4 International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries 1989��������������������374–​75, 375n.8 Preamble, fourth recital��������������������������374n.6 Art. 5�����������������������������������������������������������378 International Law Commission Articles on the Responsibility of States for International Wrongful Acts 2001 (ARSIWA)������������������������117–​18, 122, 127, 128, 369n.146, 413n.86 Art. 2��������������������������������������������������128n.129 Ch II. (Arts 4–​11)�������������������������������128, 132 Art. 16������������������������������������������������369n.146 Arts 28–​39������������������������������������������370n.161 Art. 33������������������������������������������������369n.146 Art. 37��������������������������������������������������413n.88 Art. 42�������������������������������������������������128, 132 Art. 48������������������������������������������������128n.129 (1)�����������������������������124, 128–​30, 131, 132 (a)�����������������������������������������������128, 129 (b)�������������������������������������������������������129 (2)��������������� 128n.132, 132n.145, 132n.146 (3)�������������������������������� 128n.132, 132n.145 Art. 54������������������������������ 128n.132, 132n.145 International Law Commission Articles on the Responsibility of International Organizations 2011 (ARIO) Art. 3�����������������������������������������������������368–​69 Art. 14������������������������������������������������369n.145 Arts 28–​40������������������������������������������370n.161 International Union for Conservation of Nature (IUCN) Statutes Preamble �����������������������������������������������������240 Art. 2��������������������������������������������138n.20, 240 Art. 4����������������������������������������������������138n.19 International Union for Conservation of Nature World Declaration on the Environmental Rule of Law 2016 Principle 13���������������������������������������������83–​84 Kenya–​UK Bilateral Investment Treaty 1999�����������������������������������������407–​8

Kinshasa Declaration on the World Heritage Sites of the Democratic Republic of the Congo 2011�������������������267 Kyoto Protocol 1998 ������������������������������������4n.10 Montreal Protocol on Substances that Deplete the Ozone Layer 1987 ��������������4n.8 Nara Document on Authenticity 1994 ���������45, 46–​47, 152–​53, 360, 382–​83 para. 7��������������������������������������������������332n.62 para. 8���������������������������������������������������382–​83 para. 10��������������������������������������������������46n.43 para. 11����������������������������������������������153n.127 para. 13��������������������������������������������������47n.47 Regulation 2019/​880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods�������������334 Art. 1, para. 1����������������������������������������334n.74 Rio Declaration on Environment and Development 1992 Principles 1 and 2�������������������������������367n.130 Principle 10��������������������������������296, 368n.138 Principles 13, 19, 20, 22 ��������������������368n.138 Romania–​Canada Bilateral Investment Treaty 2009���������������������������412 Romania–​UK Bilateral Investment Treaty 1995�����412 Stockholm Declaration on the Human Environment 1972 (Declaration of the UN Conference on the Human Environment)�������3–​4, 352, 423–​24 Principle 1�������������������������� 356n.33, 367n.129 Principle 4������������������������������������������������63n.2 Principle 22����������������������������������������368n.138 Principle 24����������������������������������������367n.128 Tokyo Declaration 1993�����������������������������������265 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage 2003������������� 3n.3, 5n.16, 118–​20, 362–​63, 371 Preamble ����������������������������������������������362n.93 Art. IV��������������������������������������������������362n.93 Art. VI���������������������������������������������������������119 Art. VII����������������������������119–​20, 119–​20n.85 UNESCO Declaration on Principles of Tolerance 1995 ����������������������������355n.21 UNESCO Declaration on Racial and Racial Prejudice 1978 �����������������������355–​56 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997)��������������������������355n.21 UNESCO Financial Regulations������� 215nn.79–​80, 226, 233, 250 Art. 3.4, 3.7������������������������������������������215n.80 Art. 6.6 ������������������������������������������������215n.80 Art. 6.7 �������������������������������������������������������251

Table of Legislation UNESCO Recommendation concerning the Preservation of Cultural Property Endangered by Private or Public Works 1968 ������������������������33n.11 UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage 1972 ��������������������������������35, 111, 129n.135 Preamble ��������������������������������������������129n.135 Art. 4����������������������������������������������������165n.17 UNESCO Recommendation on International Principles applicable to Archaeological Excavations 1956���������������10 UNESCO Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property 1964 ������������������������������������������33n.11, 328 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore 1989�������������35, 43–​44 UNESCO Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Art. IV, para. 4 of the Constitution r. 16.2 ������������������������������������������������234n.102 UNESCO Universal Declaration on Cultural Diversity 2001��������������45–​46, 332, 355n.21, 359–​60 Art. 1������������������������������������������������45–​46n.40 Art. 7�������������������������������������������������������45–​46 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995��������393n.8, 398 United Nations Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage 2021�����������140, 218–​19, 239, 244 para. 5������������������������������������������������155n.145 para. 9.��������������������������������������������������358n.53 para. 16������������������������������������������������227n.35 United Nations Declaration on the Elimination of Discrimination Against Women 1967 ������������������������352n.4 United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) ���������������59–​60, 84n.16, 93–​94, 306–​7, 356–​57, 358, 374–​75, 377, 382–​84, 385–​86, 387, 390 Art. 8��������������������������������������������������364n.103 Art. 11(1), (2) ���������������������������������������������378

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Art. 12(1), (2) ���������������������������������������������378 Art. 19��������������������������������������60n.79, 382–​83 Art. 31�������������������������������������������377, 382–​83 Art. 32(2)������������������������������������������������60n.79 Art. 40������������������������������������������������368n.138 Art. 41����������� 296n.5, 357n.44, 368n.138, 390 Art. 42������������������������������������������357n.44, 390 United Nations Millennium Declaration ���������������������������������������354–​55 Vienna Declaration and Programme of Action 1993 Preamble ����������������������������������������������354n.20 Part I(4)������������������������������������������������354n.20 (15 and 16)��������������������������������������356n.33 Part IIA(2)��������������������������������������������355n.21 Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere 1940 ����������������������������������3n.1 World Heritage Committee Rules of Procedure 2015���������������140–​41, 204n.1, 220, 235–​36 r. 1����������������������������������������������������������223n.5 r. 2��������������������������������������������������������141n.37 r. 2.1 ������������������������������������������������������223n.5 r. 4.2 ����������������������������������������������������141n.38 r. 4.3 ����������������������������������������������������141n.38 r. 5.1 ����������������������������������������������������139n.26 r. 5.2 ����������������������������������������������������139n.25 r. 5.3 ����������������������������������������������������140n.28 r. 5.4 ����������������������������������������������������140n.27 r. 8.1 ����������������������������������������������������141n.42 r. 8.3 ����������������������������������������������������142n.54 r. 8.4 ����������������������������������������������������142n.55 r. 12.1 ����������������������������������������������������136n.8 r. 13.1 ����������������������������������������������������136n.7 r. 17.1 ��������������������������������������������������141n.40 r. 18������������������������������������������������������141n.41 r. 20.2 ��������������������������������������������������142n.57 r. 20.3 ��������������������������������������������������142n.59 r. 20.4 ��������������������������������������������������142n.60 r. 20.5 ��������������������������������������������������142n.58 r. 21.2 ��������������������������������������������������142n.61 r. 21.6 ��������������������������������������������������143n.62 r. 22.4 ��������������������������������������������������142n.56 r. 22.7 ��������������������������������������������������141n.44 r. 34.1 ��������������������������������������������������141n.45 r. 35������������������������������������������������������141n.46 r. 37������������������������������������������������������141n.47 r. 38.1 ��������������������������������������������������141n.48 r. 38.2 ��������������������������������������������������141n.49 r. 39������������������������������������������������������141n.50 r. 43.1 ��������������������������������������������������225n.13 r. 46������������������������������������������������������142n.51 r. 47.1 ��������������������������������������������������142n.52 r. 52������������������������������������������������������142n.53

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World Heritage Fund Financial Regulations (FRWHF)������������������������������ 215nn.79–​80, 233, 251 Reg. 2.1�������������������������������������������������������251 Reg. 3.1��������������������������234n.93, 251, 256–​57 (5)�����������������������������������������������������������257 Reg. 3.2�������������������������������������������������255–​56 Reg. 6.4������������������������������������������������215n.80 Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage 2004������������������43, 235n.110, 332

Brazil

DOMESTIC INSTRUMENTS

Germany

Australia

German Basic Law�������������������������������������309–​10 Lindau Agreement 1957�����������������������������309–​10

Constitution s. 51(xxix) ���������������������������������������������������309 Environment Protection and Biodiversity Conservation Act 1999��������������������������� 85n.19, 309n.22, 309n.24 Environment Protection and Biodiversity Conservation Regulations 2000 Schedule 5, Part 10.1������������������������������95n.69 Intergovernmental Agreement concerning World Heritage 1992������309n.22 Intergovernmental Agreement on the Environment 1992 Sch. 8�������������������������������������������������������308–​9 World Heritage Properties Conservation Act 1983 ��������������85n.19, 309

Constitution Art. 25��������������������������������������306n.3

China Constitution Preamble ����������������������������������306n.4

Denmark Consolidated Act No. 368 of 18 June 1998 on Mineral Resources in Greenland (amendment to Mineral Resources Act) ��������������������389n.83 Greenland Home Rule Act 1978 ���������������388–​89

South Africa Constitution Ch. 3������������������������������������������������������306n.5 s. 44, s. 46����������������������������������������������306n.6 s. 146, s. 146(2)(c)(vi)����������������� 308nn.18–​19 World Heritage Convention Act 1999���������307–​8 s. 3(b) ���������������������������������������������������������308

Switzerland Federal Constitution of the Swiss Confederation 1999 Art. 3������������������������������������������������������305n.2

United States Constitution, 10th Amendment����������������308n.20 National Historic Preservation Act 1966 ���������390

PA RT I I N T RO D U C T I O N

The 1972 World Heritage Convention: An Introduction Francesco Francioni * When the World Heritage Convention was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1972, international law on the protection of cultural and natural heritage was still in its infancy. The very concept of ‘heritage’, understood as the inherited patrimony of human experience and knowledge, had hardly been developed at a normative level and the terms ‘cultural property’ and ‘nature’ or ‘fauna and flora’ were most frequently used.1 More importantly, as far as cultural objects were concerned, they were deemed to fall within the domain of ‘domestic jurisdiction’ (domaine reservé) and thus subject to the regulatory powers of the territorial state. This view was reinforced by the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which postulated a national idea of cultural heritage based on sovereignty and property rights. As far as natural heritage is concerned, until 1972 it was widely accepted that general international law placed hardly any obligation upon states in the management of their natural resources, with some exceptions limited to the use of international waterways and the application of liability principles in the context of trans-​boundary harm.2 Since 1972, however, international law applicable to cultural and natural heritage has changed dramatically. Heritage has become part of an international movement that aims at transcending the narrow concept of ‘cultural property’ as the object of private rights of a predominantly economic nature. This movement emphasizes the collective and public character of heritage and its representative value of the totality of creative expressions, practices, and spaces that a given community recognizes as part of its cultural tradition and identity. New international conventions, programmes, and instruments of soft law have been adopted which consistently use this new term.3 With the 1972 United Nations *  Professor of Law, European University Institute, Florence. The author was President of the World Heritage Committee in the period 1997–1998. 1   See, e.g., for cultural objects, the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and the 1970 Paris Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (both available at http://​www.une​sco. org), and, for nature, the 1940 Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (available at https://​www.oas.org/​jurid​ico/​engl​ish/​treat​ies/​c-​8.html) and the 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora (available at https://​docume​nts.ats.aq/​rec​ att/​att08​0_​e.pdf ). Professor Emeritus of International Law, European University Institute, Florence. The author was President of the World Heritage Committee in the period 1997–​1998. 2   See the cases of Lac Lanoux between Spain and France (Lac Lanoux Arbitration, 24 ILR 101, 128 (1957)) and Trail Smelter between the United States and Canada (Trail Smelter Arbitration, 3 RIAA 1905 (1941)). 3   Suffice it to recall the 2001 Convention on the Protection of the Underwater Cultural Heritage (available at http://​www.une​sco.org), the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (ibid), and, at the level of soft law, the 2003 UNESCO Declaration Concerning the International Destruction of Cultural Heritage (ibid).

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Conference on the Human Environment—​almost contemporaneous to the adoption of the World Heritage Convention—​the path was opened up to unprecedented international law-​making in the area of environmental protection. New international regimes and institutions were built, on issues ranging from the marine environment,4 air pollution,5 species conservation,6 and Antarctica,7 to the protection of the ozone layer.8 Twenty years after the 1972 Stockholm Declaration on the Human Environment, the boundaries of environmental protection were pushed further with the Rio Conference to encompass sustainable economic development and the protection of the global environment. A holistic ecosystem approach has replaced the old sectorial approach, particularly in relation to the conservation of biodiversity,9 global warming,10 and desertification.11 Also the field of cultural heritage has undergone a remarkable expansion in the over 50 years that have passed since the adoption of the World Heritage Convention. New treaties, such as the Second Protocol to the 1954 Hague Convention, have been adopted to enhance the protection of cultural heritage in the event of international and non-​ international armed conflicts. A totally new concept of cultural heritage has emerged with respect to the safeguarding of intangible manifestations of cultural creativity (an evolution which has translated, in particular, into the adoption of the 2003 Convention on the Safeguarding of Intangible Cultural Heritage). New areas, the sea and sea bed, are now included in the international protection of cultural heritage by virtue of the 2001 Convention on Underwater Cultural Heritage. Following this expansion in standard setting, international cultural heritage law has progressively infiltrated other fields of international law, in particular international economic law, human rights, international humanitarian law, international criminal law, and the law of the sea. Recently, the international protection of cultural heritage has become an inseparable component of international peace and security, given the tragic record of cultural heritage destruction connected with the commission of mass atrocities. The World Heritage Convention remains at the forefront of these complex normative developments and continues to be an important component of the international legal framework for the protection of cultural and natural heritage. In this general framework, the Convention stands out for two very important innovative features. The first is its unprecedented recognition of the close link between culture and nature and its having conceived and established a common regime of conservation and safeguarding of the most significant manifestations of what is man-​made and what is the most extraordinary   See United Nations Convention on the Law of the Sea, especially Part XII, of 10 December 1982, 21 ILM 1261 (1982). 5   See, among others, the 1979 Convention on Long-​range Transboundary Air Pollution, 18 ILM 1442 (1979). 6   Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 12 ILM 1085 (1973). 7   Protocol on Environmental Protection to the Antarctic Treaty, 30 ILM 1461 (1991). 8  Vienna Convention for the Protection of the Ozone Layer, 26 ILM 1529 (1987) with its Montreal Protocol on Substances that Deplete the Ozone Layer, 26 ILM 1550 (1987). 9   Convention on Biological Diversity, 1992 (available at http://​www.bio​div.org/​con​vent​ion/​con​vent​ion. shtml). 10   United Nations Framework Convention on Climate Change, 31 ILM 849 (1992), with its Kyoto Protocol, 37 ILM 32 (1998) and the Paris Agreement on Climate Change adopted by the 196 Parties to the Framework Convention on Climate at COP 21 on 12 December 2015 and entered into force on 4 November 2016. 11  Convention to Combat Desertification in those Countries Experiencing Serious Drought and/​ or Desertification, Particularly in Africa, 33 ILM 1328 (1994). 4

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work of nature. The second innovative feature is the introduction of the concept of ‘world heritage’ to designate sites, monuments, and assets that, because of their exceptional importance, are of paramount value for humanity as a whole and, for this reason, are eligible for placement under a system of special international protection embodied in the World Heritage List.12 Although the Convention does not define the meaning of ‘world heritage’, it lays down the basic requirement that such heritage must be of ‘outstanding universal value’ and that such value must be assessed in accordance with a formal procedure regulated by the Convention. Further, recognition that certain parts of the cultural and natural heritage are of outstanding universal value entails a collective commitment to preserve them ‘as part of the world heritage of mankind as a whole’13 and the ‘. . . duty of the international community to co-​operate’.14 In contrast with this bold assertion of international community interests, the World Heritage Convention is not immune from certain signs of the age in which it was born. It restates full respect for state sovereignty and for private property rights provided by national legislation over the sites and goods to be protected under the Convention. This is understandable, since the commitment to a system of cooperation to safeguard heritage of international significance does not detract from the fact that such heritage normally consists of immovable objects placed under the sovereignty of the territorial state and sometimes under the ownership title of private or public persons. However, this remains a latent antinomy. The dialectic between sovereignty on the one hand, and world community interest on the other, has represented a constant concern since the early days of the Convention15 but remains subject to a dynamic evolution generated by the progressive expansion of the limits that international law places on sovereignty, including human rights obligations and obligations to protect the natural environment. In the over 50 years that have passed since the adoption of the World Heritage Convention, international law has undergone profound transformations. New concepts and principles have emerged that place great emphasis on the ideas of ‘international public goods’, the common interest of humanity, and ‘common concern’. These developments have an impact on the structure of international obligations which states owe to the international community as a whole. They impact on the nature and scope of responsibility for their violation, for the invocation of which the traditional distinction between the injured states and third states becomes blurred;16 and on the increasing involvement 13 14   See the commentary on Art. 11 by Scovazzi.   Preamble, para. 6.   Art. 6, para. 1.   It is particularly so when there are divergent views between the territorial state and the Convention bodies as to what needs to be done in order to safeguard the world heritage value of a property in connection with new threats or dangers. See especially the recent cases concerning the construction of major works impacting on the world heritage value of listed sites, which have led to the unfortunate deletion of Oman’s Arabian Oryx Sanctuary, of the Dresden Elbe Valley (2009), and of Liverpool (2021) from the World Heritage List, as well as the seminal case of Kakadu National Park, which sparked the controversial question of whether the consent of the territorial state is always needed in order for the World Heritage Committee to place a site on the List of World Heritage in Danger. On these cases, see the commentary on Art. 11, para. 4, by Buzzini and Condorelli. 16   See, e.g., the worldwide reaction to the intentional destruction of the Buddhas of Bamyan by the Taliban, which did not involve any specific injured state but was nevertheless considered to constitute an offence against culture and led to the adoption in 2003 of the UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage (note 3). This Declaration proclaims both the state responsibility for such intentional destruction and the individual criminal liability of the persons committing the act. On the Declaration, see F. Lenzerini, ‘The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back’ (2003) Italian Yearbook of International Law 131 ff. 12 15

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of non-​state actors through the work of non-​governmental organizations. The concept of individual criminal responsibility under international law has expanded to encompass offences against cultural heritage.17 At the same time, procedural principles of cooperation at the interstate and institutional levels have emerged, both in the field of environmental law with respect to information, consultation, and mutual assistance in order to prevent environmental harm, and in the field of cultural heritage law with respect to the prevention and suppression of illicit traffic, destruction, and dispersion of cultural heritage.18 This dynamic evolution of international law in the areas of natural and cultural heritage, besides generating new principles—​which may then become precise rules and standards in international treaties—​has facilitated the development of interpretative criteria that permit the adaptation of existing law to new realities and risks. I refer especially to the criterion of ‘evolutive interpretation’ that has been used in recent practice,19 in order to bend the textual meaning or the original intent of the parties to the necessity of reconciling treaty commitments with new requirements and legitimate objectives of the international community, such as those embodied in the principles concerning the protection of human rights, respect for the rights of indigenous peoples, cultural diversity, and sustainable development.20 This result has also been achieved by the World Heritage Committee through constantly updating the Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines), which have been progressively adapted to the emerging needs of the international community. It is against this general background of dynamic evolution of international heritage law that the second edition of this Commentary has been conceived and elaborated as a guide to help administrators, judges, and operators in the cultural and environmental fields to interpret and apply the norms of the Convention. Besides the specific commentaries on individual articles, this book includes some additional commentaries on important developments of the Convention and on some critical legal issues that have emerged in the course of its application. Reference is made in particularly to the commentary by Amy Strecker on cultural landscapes, a category originally not contemplated by the Convention and now subset of cultural heritage under Article 1, and the special treatment of the contentious issue of the inscription of properties in the List of World Heritage in Danger and of their possible delisting, once they have lost their world heritage value (see the commentary on Art. 11 by Buzzini and Condorelli). In addition, the Commentary expands the penultimate section, Part III, to examine the relationship of the World Heritage Convention, not only with other conventions relating to the 17  See Prosecutor v Ahmad al Faqi al Mahdi, International Criminal Court, Case No. 01/​12-​01/​15-​171, Judgment and sentence of 27 September 2016, concerning the prosecution and punishment of a Jihadist responsible for destruction of cultural and religious monuments in Mali, and the subsequent reparation order of 17 August 2017. 18   See, for the environment, the Aarhus Convention on Access to Information, Public participation in Decision Making and Access to Justice, 2161 UNTS 447, and, for cultural heritage, especially the 1970 Paris Convention (note 1) and the 2001 Underwater Heritage Convention (note 3). 19   Gabčíkovo-​Nagymaros, ICJ, 1997 (available at http://​www.icj-​cij.org); Shrimp-​Turtles, WTO Appellate Body, 1998–​2001 (available at http://​www.worldt​rade​law.net); Arbitral Award of 24 May 2005 in the case Rhyn de fer (Belgium/​Netherlands), Permanent Court of Arbitration, award of 25 May 2005 (available at http://​www.pca-​cpa.org/​ENGL​ISH/​RPC/​#Belg​ium/​Neth​erla​nds), para. 223. 20   For the role of general principles and customary norms in the field of international cultural heritage law, see F. Francioni, ‘Custom and General Principles of International Cultural Heritage Law’, in F. Francioni and A. P. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, Oxford, 2020) pp. 531–​551.

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protection of cultural and natural heritage, but with a wider body of international law, including international economic law, human rights, humanitarian law, the rights of indigenous peoples, and the law of the sea. This study has been made possible thanks to the commitment of the contributors who generously responded to the call for the original production of this Commentary and then to the invitation to participate in the production of this second edition. We are grateful to them for making their time and expertise available for this editorial project. No specific subsidy or research funding has supported the production of this book. This Commentary is published in the hope and with the ambition that it may facilitate an understanding of the nature and scope of the rights and obligations arising from this important treaty in the light not only of its original text but also of the Operational Guidelines and of the now 50-​plus years of uninterrupted implementing practice by the States Parties and Treaty Bodies.

Francesco Francioni

Conceptual Development of the World Heritage Convention Christina Cameron

I. Introduction  II. Protection of Natural Heritage  III. Protection of Cultural Heritage  IV. A World Heritage Trust (1965)  V. Two Parallel Initiatives for an International Convention  VI. IUCN’s Proposed ‘Convention for a World Heritage Trust’  VII. UNESCO’s Proposed ‘Convention for the Protection of Monuments, Groups of Buildings and Sites of Universal Interest’  VIII. UNESCO’s World Heritage Convention 

8 9 9 11 12 12 13 15

I. Introduction UNESCO’s Convention concerning the Protection of the World Cultural and Natural Heritage was developed during the 1960s in the context of two distinct and emerging movements. Despite common concerns, advocates for the protection of cultural monuments had few connections with environmental groups seeking to protect natural resources. This chapter traces the development of these two strands—​their roots, their visions, and their goals. It describes the complicated diplomatic manoeuvres that brought their separate trajectories together in a single convention for the protection of cultural and natural heritage. Conceptually, the World Heritage Convention has its roots in the League of Nations (1920–​1946), the first intergovernmental organization aimed at maintaining world peace. Through its activities, the League of Nations developed the concept of a common heritage of humankind that merits protection through international cooperation.1 As part of the 1931 Athens Conference organized by the League’s International Museum Office, the first International Congress of Architects and Technicians of Historic Monuments developed an international charter to guide the restoration of cultural monuments. Focused on international cooperation, the Athens Charter states that ‘the conservation of the artistic and archaeological property of mankind is one that interests the community of the States, which are wardens of civilisation’ and expresses the hope that states ‘will collaborate with each other . . . with a view to furthering the preservation of artistic and historic monuments’.2 1   S. Titchen, ‘On the construction of outstanding universal value: UNESCO’s World Heritage Convention (Convention concerning the Protection of the World Cultural and Natural Heritage, 1972) and the identification and assessment of cultural places for inclusion in the World Heritage List’ (Australian National University, Canberra, 1995) pp. 12–​24. See https://​openr​esea​rch-​rep​osit​ory.anu.edu.au/​han​dle/​1885/​10039. 2   The Athens Charter for the Restoration of Historic Monuments, art. VII. See https://​www.ico​mos.org/​en/​ 167-​the-​ath​ens-​char​ter-​for-​the-​rest​orat​ion-​of-​histo​ric-​monume​nts.

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Following the Second World War, the massive destruction of property as well as rising environmental degradation and surging urban development led to further reflection on the need for international cooperation to protect the common heritage of humanity. Before the creation of the World Heritage Convention, this reflection took the form of international conferences, the creation of new organizations, and the development of international standards for protection and conservation. This activity took place at the same time in the parallel spheres of natural and cultural heritage.

II.  Protection of Natural Heritage In 1948, countries and individuals interested in conserving parks and other protected areas established the International Union for the Protection of Nature (IUPN). This first global organization for nature protection, now known as the International Union for the Conservation of Nature (IUCN), emerged from discussions at a constitutive congress at Fontainebleau, France, attended by representatives of 18 governments, seven international organizations, and over 100 national groups. At its 1958 General Assembly in Athens, IUCN set up a provisional Commission on National Parks, now known as the World Commission on Protected Areas (WCPA). This global network aims to strengthen international cooperation in matters relating to national parks and equivalent reserves in all countries and plays an important role in developing theory and practice for the conservation and management of natural sites.3 One particular initiative demonstrates the strength of political support for global conservation at that time and marks a critical step towards world heritage. In 1959, the UN Economic and Social Council (ECOSOC) supported IUCN’s proposal to publish a list of the world’s most important national parks and equivalent reserves. In 1962, the UN General Assembly endorsed the proposal. The first United Nations List of Protected Areas and Equivalent Reserves was launched at IUCN’s First World Conference on National Parks, held in Seattle, Washington in 1962. Foreshadowing the World Heritage inscriptions process, IUCN’s list included several cultural landscapes, including the vast Khmer archaeological fields at Angkor (Cambodia) and the mediaeval open parliament site at Thingvellir (Iceland), both now listed as World Heritage sites under cultural criteria.4

III.  Protection of Cultural Heritage In contrast to IUCN’s hybrid membership model composed of non-​governmental and governmental members, UNESCO as an intergovernmental institution and successor

3  IUCN, ‘50 Years of Working for Protected Areas: a Brief History of IUCN World Commission on Protected Areas’ (2010) p. 3. See https://​www.iucn.org/​sites/​defa​ult/​files/​imp​ort/​downlo​ads/​histor​y_​wc​pa_​1​ 5jul​y_​we​b_​ve​rsio​n_​1.pdf. 4   UN Economic and Social Council, Resolutions: Official Records of 27th session, 7–​24 April 1959 (1959) p. 8, Res. XXVII. See https://​dig​ital​libr​ary.un.org/​rec​ord/​229​116/​?ln=​zh_​CN; ECOSOC, ‘List of National Parks and Equivalent Reserves’ (1961) pp. 1–​301. See https://​dig​ital​libr​ary.un.org/​rec​ord/​728​386?ln=​en; A. Gillespie, Protected Areas and International Environmental Law (Martinus Nijhoff, Leiden, 2008) p. 111; IUCN International Commission on National Parks, ‘United Nations List of National Parks and Equivalent Reserves: Part Two and Addenda to Part One’ (1962) pp. 5, 11.

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to the League of Nations led the development for cultural heritage. To bolster its expertise in the field, UNESCO established in 1951 an international advisory body on conservation, protection, and restoration of historic sites and archaeology.5 This initiative fostered interaction among conservation professionals from different countries. With advice from this body, UNESCO adopted the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)6 and a Recommendation on International Principles applicable to Archaeological Excavations (1956).7 In addition, in collaboration with the Italian government, UNESCO founded the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) in 1959, another intergovernmental organization that later became one of the advisory bodies for World Heritage.8 During the 1960s, UNESCO encouraged the development of international standards for conservation practice and the establishment of an NGO for cultural heritage. In 1964, the Second International Congress of Architects and Specialists of Historic Monuments adopted the International Charter for the Conservation and Restoration of Monuments and Sites (known as the Venice Charter). The Director-​General of UNESCO opened the meeting and Hiroshi Daifuku, then head of UNESCO’s cultural sector, was an active participant.9 Giving priority to values related to art and history, the Venice Charter set standards for the conservation of historical buildings, albeit from a largely European perspective. The Charter invoked the importance of a common global heritage, focused on buildings and their wider setting, and acknowledged the validity of alterations and additions over time. In addition to the Charter, this Venice meeting of architects and conservation specialists also adopted a resolution put forward by UNESCO to create the International Council on Monuments and Sites (ICOMOS) that came into being in 1965.10 An international NGO working for the conservation of monuments and sites around the world, ICOMOS is one of the expert advisory bodies specifically identified in the World Heritage Convention. In the same period, UNESCO forged ahead with its first remarkable international campaign (1960–​1968) to save the Nubian monuments in Abu Simbel and Philae, putting into practice the principle of international cooperation for conserving the outstanding heritage of humanity.11 UNESCO’s leadership in cultural heritage, in both theory and practice, laid the foundation for the subsequent conceptual and operational development of the World Heritage system.

5   UNESCO, ‘Records of the General Conference, 5th session’ (Florence, 1950) p. 44. See http://​unes​doc. une​sco.org/​ima​ges/​0011/​001​145/​1145​89e.pdf. 6   UNESCO, ‘Records of the General Conference, 8th session’ (Montevideo, 1955) p. 33. See https://​unes​ doc.une​sco.org/​ark:/​48223/​pf000​0114​586. 7   UNESCO, ‘Records of the General Conference, 9th session’ (New Delhi, 1957) pp. 40–​44;. See http://​ unes​doc.une​sco.org/​ima​ges/​0011/​001​145/​1145​85e.pdf. 8   ibid, p. 24. 9  R. V. Keune, ‘An Interview with Hiroshi Daifuku’ (2011) 8(1/​ 2) CRM: The Journal of Heritage Stewardship 31–​45. 10   ICOMOS, ‘The Monument for the Man Records of the II International Congress of Restoration’ (1964). See https://​www.ico​mos.org/​en/​157-​artic​les-​en-​franc​ais/​res​sour​ces/​publi​cati​ons/​411-​the-​monum​ent-​for-​the-​ man-​reco​rds-​of-​the-​ii-​intern​atio​nal-​congr​ess-​of-​rest​orat​ion. 11   UNESCO, ‘Records of the General Conference, 11th session’ (Paris, 1961) pp. 51–​52. See http://​unes​ doc.une​sco.org/​ima​ges/​0011/​001​145/​1145​83e.pdf.

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IV.  A World Heritage Trust (1965) While IUCN and UNESCO built momentum in their own spheres of influence for international cooperation to protect cultural and natural heritage properties, it was the White House Conference in 1965 that mobilized action and set the framework for what would become the World Heritage Convention. To commemorate the twentieth anniversary of the United Nations, President Lyndon Johnson hosted a conference to consider how international cooperation could be improved in some 30 economic and social sectors. Joseph Fisher, then president of an American non-​profit research organization called Resources for the Future, chaired the Committee on Natural Resources Conservation and Development. The members of his Committee were drawn from corporations, government agencies, and NGOs. It was Fisher’s idea to ask his Working Committee to explore the feasibility of a World Heritage Trust.12 Its recommendation contains several ideas that eventually became part of the World Heritage Convention. The Committee proposed ‘a Trust for the World Heritage that would be responsible to the world community for the stimulation of international cooperative efforts to identify, establish, develop, and manage the world’s superb natural and scenic areas and historic sites for the present and future benefit of the entire world citizenry’. For the first time, this visionary concept linked the parallel developments of IUCN and UNESCO by bringing together sites with natural, landscape, and cultural values. The report also focused on a selective list of ‘unique and irreplaceable resources . . . of legitimate international concern [that] should be maintained for the study and enjoyment of all peoples of the world and for the benefit of the country in which they lie’. Like IUCN’s list of protected areas, the report calls for ‘the compilation of a basic list of areas and sites that might be of international concern’ and the need ‘to evaluate the basic list and select those few areas and sites that meet the high standards’. In this vision, a World Heritage Trust would include ‘only those areas and sites that are absolutely superb, unique and irreplaceable’. As the focus of international cooperation, these special sites would benefit from funding and technical advice, education, and tourism promotion.13 In addition to this vision, the White House Committee on Natural Resources Conservation and Development served to mobilize three American conservationists to champion the World Heritage Trust idea. As chair of the White House Committee, Fisher volunteered to promote the World Heritage Trust to IUCN as the most likely organization to make it a reality. Another participant at the White House Conference, Russell Train, newly appointed president of the Conservation Foundation, pushed for the adoption of a World Heritage Trust by the international community. Another member of Fisher’s Committee, zoologist Harold J. Coolidge, was uniquely positioned, as a founding vice president of IUCN, to move forward the World Heritage Trust concept. He had been 12   C. Cameron and M. Rössler, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate/​Routledge, Abingdon, 2013) pp. 4–​5; P. H. Stott, ‘The World Heritage Convention and the National Park Service, 1962–​1972’ (2011) 28(3) The George Wright Forum 281–​283. UNESCO, World Heritage Oral Archives, Canada Research Chair on Built Heritage, University of Montreal, audio interview of Russell Train by C. Cameron, Springfield, United States, 2 December 2008. See https://​whc.une​sco.org/​en/​orala​rchi​ves/​ russ​ell-​e-​train/​. 13   Report of the Committee on Natural Resources Conservation and Development to the White House Conference on International Cooperation, John F. Kennedy Presidential Library and Museum, Samuel E. Belk personal papers, box 10, National Citizens’ Commission, Washington, DC, 28 November–​December 1965, pp. 17–​19.

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instrumental in the creation and successful adoption of the 1962 United Nations List of Protected Areas and Equivalent Reserves. He served as vice president and president of IUCN over the years before being named honorary president in 1981.14

V.  Two Parallel Initiatives for an International Convention In the years between the appearance of the World Heritage Trust proposal in 1965 and the adoption of the World Heritage Convention in 1972, IUCN and UNESCO were involved in unconnected but parallel activities. The lack of coordination between the two groups remains a mystery, leading to dramatic blows and counterblows in the struggle to determine who would administer the Convention and what it would cover. Michel Batisse, UNESCO’s science representative and a key participant, refers to the process as a ‘tortuous incubation’.15

VI.  IUCN’s Proposed ‘Convention for a World Heritage Trust’ The American trio of Fisher, Train, and Coolidge led the charge to promote the idea of a World Heritage Trust to IUCN, considering it the most likely organization to implement the proposal. The first opportunity was IUCN’s Ninth General Assembly in Lucerne in June 1966. Coolidge and Train managed to get themselves elected to IUCN’s executive at that meeting, with Coolidge chosen as president. Fisher gave a keynote address highlighting new perspectives on conservation. He strongly endorsed the proposed World Heritage Trust imported directly from the 1965 White House Conference on International Cooperation, arguing that the United Nations list of protected areas prepared by IUCN would provide an important basis for the identification of natural heritage sites. He went on to explain how the World Heritage Trust might operate. For starters, he insisted that the trust must include both natural and cultural sites, ranging from the Grand Canyon and the Serengeti plains to the Egyptian pyramids, Mayan ruins, and Stonehenge. In line with the White House proposal, he put forward the idea of two lists; one a basic list of sites that ‘might be of international concern’ and a highly selective list of sites that ‘are absolutely superb, unique and irreplaceable’. His third point was the importance of international cooperation to provide technical assistance to protect and conserve these significant places.16 Much of the later confusion over the development of the Convention might have been averted had UNESCO’s Batisse paid more attention in Lucerne. Years later, he offered an explanation in his memoirs: In June 1966, at the Ninth General Assembly of IUCN in Lucerne, I heard of this proposal for the first time in Joseph Fisher’s speech. I found it both appealing and timely that the protection of nature and of culture should be placed on the same level. But I must admit that I did not pay much 14   IUCN, ‘Members of the Executive Board (1948–​1977), Members of the IUCN Council (1977–​2016), Secretaries General/​ Directors General (1948–​ 2016)’ (2016). See https://​www.iucn.org/​sites/​defa​ult/​files/​ 2022-​05/​iucn-​mem​ber-​list.pdf. 15   M. Batisse and G. Bolla, The Invention of World Heritage (History Club Association of former UNESCO staff members, 2005) p. 13. 16  IUCN, Proceedings of the Ninth General Assembly at Lucerne 25 June to 2 July 1966 (1967) p. 71, pp. 73–​ 74; Cameron and Rössler (note 12) pp. 6–​7.

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attention to the proposal itself because the word ‘trust’, not translatable into French, conveyed to me a sort of private philanthropic foundation and not at all an intergovernmental mechanism based on an international convention.17

Having planted the idea at the IUCN meeting in Lucerne, Fisher faded from the scene but Coolidge and Train continued to champion the idea. In an interview at the age of 88, Train recalls his speech to the international congress of the World Wildlife Fund in 1967 in Amsterdam: ‘I spelled out the concept of the World Heritage that had been put forward by Joe Fisher and then our committee, and pushed for its development and adoption by the international community.’18 The Americans got another opportunity to promote the World Heritage Trust in 1968 at the large UNESCO meeting on biosphere reserves composed of experts from universities, academies of science, and international organizations. Among the delegates were Coolidge, Train, and American ecologist Lee Talbot.19 IUCN took seriously the idea of a World Heritage Trust. Beginning in 1966, it embarked on an iterative drafting process under the leadership of its Law Commission chair, Wolfgang Burhenne, in Bonn. IUCN members commented on several drafts of a conceptual document. What accelerated the process was the 1968 decision at the UN General Assembly to accept an invitation from the Swedish government to hold the UN Conference on the Human Environment in Stockholm in June 1972.20 IUCN seized the opportunity to get agreement on an international convention at the Stockholm summit and settled on the 1970 version of the conceptual document as a basis for preparing a draft text. The concept in the 1970 document remains true to Fisher’s vision presented at the Lucerne meeting in 1966: the creation of an international conservation organization that covered both natural and cultural sites, two proposed lists, and international cooperation and technical assistance. What was new was the thrust to obtain an international agreement within the UN system. It is worth noting that the name and location of the Secretariat is left blank in the document, although it was assumed that it would be IUCN.21

VII.  UNESCO’s Proposed ‘Convention for the Protection of Monuments, Groups of Buildings and Sites of Universal Interest’ While IUCN forged ahead on its path to create an international agreement on world heritage, UNESCO remained oblivious to this movement and advanced its own initiative. In the 1950s and early 1960s, UNESCO had adopted specific standard-​setting instruments on archaeology and landscapes, created two international organizations—​ICCROM and   Batisse and Bolla (note 15) p. 17.   UNESCO, World Heritage Oral Archives, interview Train (note 12). 19   UNESCO, Final report of intergovernmental conference of experts on the scientific basis for rational use and conservation of the resources of the biosphere, Paris, 1968 (1969) pp. 304–​305. See http://​unes​doc.une​ sco.org/​ima​ges/​0001/​000​172/​01726​9EB.pdf. 20  J. McCormick, Reclaiming Paradise: The Global Environmental Movement (Indiana University Press, Bloomington, 1991) pp. 88–​106. 21  Stott (note 12) p. 284; M. Holdgate, The Green Web: A Union for World Conservation (Routledge, Abingdon, 1999) p. 114. 17 18

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ICOMOS—​and led a massive campaign to save the Nubian monuments from the rising waters of the proposed Aswan Dam.22 These disparate activities fragmented UNESCO’s resources and led to a call for a more comprehensive approach to preserving cultural heritage. The 1966 UNESCO General Conference directed staff ‘to study the possibility of arranging an appropriate system of international protection . . . for a few of the monuments that form an integral part of the cultural heritage of mankind’.23 The concepts of an international system, a selective list of sites, and shared global heritage unconsciously echo IUCN’s ideas. Under the leadership of Daifuku, the staff enthusiastically undertook this assignment. In preparation for a 1968 meeting of invited experts to develop a proposal for an international system, Daifuku commissioned technical studies from three European experts. They show the scope and ambition of this undertaking. Professor G. De Angelis d’Ossat from Italy prepared a paper on the scientific concepts on which the protection and presentation of monuments and sites would be based. Professor Jan Zachwatowicz, the Polish architect responsible for the postwar reconstruction of Warsaw’s historic centre, wrote about the scientific and technical rules for implementing protection and conservation measures and Robert Brichet from France studied the legal provisions required for ensuring the protection of monumental heritage.24 Despite the desirability for broad geographic participation, the invited experts for the 1968 UNESCO meeting were largely European. More than half the experts came from Europe and, with the exception of the League of Arab States, all the NGOs were represented by Europeans. The group considered heritage protection systems from 12 countries: Austria, France, Ghana, India, Italy, Japan, Spain, United Arab Republic, the UK, United States, Soviet Union, and Yugoslavia.25 The conclusions of the 1968 experts’ group are well worth reading as they contain many ideas and wording that eventually became part of the World Heritage Convention. They emphasize mutual understanding among the nations of the world and the importance of a scientific approach to conservation. Foreshadowing article 1 of the World Heritage Convention, the definition of cultural heritage outlines three dimensions of ‘monuments, groups of buildings and sites’. It also defines sites as ‘the combined work of man and nature’, an idea that fostered the later development of the World Heritage cultural landscapes category. Contrary to the expectations of a narrow focus on monumental architecture, the conclusions expand the definition of cultural property to include natural sites such as caves, rocks, look-​out points, mountains, and valleys, albeit from an aesthetic, picturesque, or ethnographic perspective. Like the IUCN approach, the experts recommended the adoption of a comprehensive international agreement to support the conservation of selected sites of global importance as well as a recommendation for an effective system of protection at the national level. The question of identifying the administrative body remained vague, as it had in IUCN’s proposal. The 1968 meeting   Cameron and Rössler (note 12) pp. 11–​13.   UNESCO, ‘Records of the General Conference, 14th session’ (Paris, 1967) p. 61. See http://​unes​doc.une​ sco.org/​ima​ges/​0011/​001​140/​1140​48e.pdf. 24   UNESCO, Final report of meeting of experts to co-​ordinate, with a view to their international adoption, principles and scientific, technical and legal criteria applicable to the protection of cultural property, monuments and sites, Paris, February–​March 1968 (1968) Annex II. See http://​whc.une​sco.org/​arch​ive/​1968/​shc-​ cs-​27-​8e.pdf. The commissioned papers represented a French–​Italian approach to monuments conservation, a particular perspective that would not necessarily have been shared by other countries. 25  ibid. 22 23

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simply identified the need for an ‘international protection body, or possibly UNESCO’ to oversee the implementation of an international protection system.26 UNESCO pushed ahead with its project, arranging another Experts’ Meeting the following year to flesh out concepts and operational measures for the new system. It commissioned two new studies from the network of experts involved in ICOMOS. Three of the authors, Raymond Lemaire (Belgium), Mario Matteucci (Italy), and François Sorlin (France) had participated in drafting the Venice Charter.27 The report detailed the elements of a UNESCO convention for international heritage and a recommendation for national heritage.28 The 1970 UNESCO General Conference adopted the report without any apparent awareness of the IUCN proposal. The intention was to present the draft Convention and the draft Recommendation for adoption by UNESCO’s General Conference in 1972.29

VIII.  UNESCO’s World Heritage Convention The IUCN and UNESCO proposals are markers of a global response to concerns about rising environmental degradation and the accelerated destruction of historic areas. There is urgency in their mobilization of activities to protect and conserve places of global significance in the face of these threats. The separate proposals also demonstrate the isolation of the environmental movement and the historic preservation movement at that time, despite their obvious common interests. Taken together, these initiatives laid the foundation for the development of the Convention concerning the Protection of the World Cultural and Natural Heritage. Confusion reigns over the exact date that UNESCO finally realized that IUCN was preparing a convention text for approval by the UN Conference on the Human Environment in Stockholm. In his memoir, Batisse acknowledged that he first heard about the World Heritage Trust idea at the Lucerne meeting in 1966 but missed the implications for UNESCO. He contradicts himself later on, stating that: I . . . had unfortunately no knowledge of these events until 1970 . . . I only found out about these plans, quite by accident, in May 1970 at a meeting of the Executive Board of IUCN in Morges on Lake Geneva. A paper for submission to the Conference was mentioned, containing the natural and cultural properties to be included in the World Heritage Trust. But I also discovered that it was in fact intended to obtain the adoption in Stockholm, not of a private foundation, but of a genuine convention of international public law.30

26   UNESCO, Conclusions of the meeting of experts 1 March 1968 (1968) pp. 1–​9. See https://​whc.une​ sco.org/​arch​ive/​1968/​shc-​cs-​27-​7e.pdf. 27   UNESCO, Meeting of experts to establish an international system for the protection of monuments and sites of universal interest (1969) p. 1. See https://​whc.une​sco.org/​arch​ive/​1969/​shc-​con​f43-​6e.pdf. Lemaire and Sorlin studied ‘The appropriate system for the international protection of monuments, groups of buildings and sites of universal value and interest: basic premises of the question’; Brichet and Matteuci studied ‘Practical steps to facilitate the possible establishment of an appropriate international system’. 28   UNESCO, Final report of meeting of experts to establish an international system for the protection of monuments, groups of buildings and sites of universal interest, Paris (July 1969) pp. 28–​38. See http://​whc. une​sco.org/​arch​ive/​1969/​shc-​md-​4e.pdf. 29   UNESCO, ‘Records of the General Conference, 16th session’ (Paris, 1971) pp. 54–​55. See http://​unes​ doc.une​sco.org/​ima​ges/​0011/​001​140/​1140​46e.pdf. 30   Batisse and Bolla (note 15) pp. 16–​20.

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In the cultural sector at UNESCO, no one appears to have understood the significance of the World Heritage Trust proposal, although it is mentioned in documents prepared for the 1969 meeting of cultural experts.31 What is clear is that UNESCO reacted negatively to the proposed IUCN initiative. UNESCO argued that the preservation of cultural and natural heritage belonged to its sphere of activity, as illustrated by the Nubian monuments initiative and other cultural campaigns as well as the recent creation of the Man and the Biosphere programme to conserve natural resources and protected areas. This encroachment on its intergovernmental standard-​setting role represented duplication within the UN system. UNESCO also maintained that the substance of the IUCN draft on World Heritage was covered by its own draft Convention that had been in preparation for more than five years. As a further argument, UNESCO contended that two rival proposals on the same question would lead to confusion among countries. In the countdown to the UN Conference in Stockholm, IUCN and UNESCO faced off against each other. They also encountered an unexpected complication from the United States. IUCN charged ahead with its separate draft Convention to take advantage of the opportunity for adoption at Stockholm. Coolidge, Train, and Talbot, members of IUCN’s executive, lent their support. UNESCO launched a counter-​offensive to prevent the adoption of the IUCN Convention at Stockholm. Key participants in the fray—​ UNESCO staffers Batisse and Gérard Bolla—​later published their recollections of the diplomatic and technical manoeuvres of this confrontation.32 UNESCO’s strategy was to send senior officials to key meetings, to expand the definition of sites to include works of nature, and to encourage further changes to its draft Convention at the scheduled meeting of experts in April 1972. In September 1971, IUCN presented its draft to the New York-​based intergovernmental working group on conservation tasked with preparing proposals for the Stockholm meeting. The UNESCO draft was also tabled. UNESCO’s offer to add nature to its draft Convention had done nothing to dissuade IUCN. In New York, UNESCO argued its case that both culture and nature belonged to its mandate. A surprise move by the United States to introduce a third draft Convention for the Stockholm summit created more confusion. The Americans favoured the nature/​culture duality of heritage and proposed a draft ‘Convention on the Establishment of a World Heritage Trust’ that gave natural and cultural heritage equal weight. Unable to clarify the situation, the intergovernmental working group directed IUCN to come back with a revised text that focused solely on natural heritage if the organization wanted it on the agenda of the UN Conference in Stockholm. A month later, a revised IUCN text on the protection of nature was circulated to member states by the Stockholm team as the final step towards adoption at the UN Conference.33 The goal of creating a World Heritage Trust gained new urgency when President Richard Nixon linked the international initiative to the centennial celebrations for Yellowstone National Park in his 1971 message to Congress. ‘It would be fitting by 1972 for the nations of the world to agree to the principle that there are certain areas of such unique worldwide value that they should be treated as part of the heritage of all mankind

31 33

  Cameron and Rössler (note 12), p. 17.   ibid, pp. 25–​28.

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  Batisse and Bolla (note 15) pp. 1–​95.

32

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and accorded special recognition as part of a World Heritage Trust.’34 Recognizing that the United States held the key to success, UNESCO dispatched Bolla to Washington in November 1971 to lobby senior government officials. He argued that the UNESCO draft could be amended to include natural heritage on an equal footing with cultural heritage, that IUCN would still be involved, and the new convention would be adopted at the General Conference in November 1972. The Americans accepted this proposal.35 A final settlement was negotiated at the top through an exchange of letters between UNESCO Director-​General René Maheu and Maurice Strong, Secretary General of the UN Conference. Both men wanted to avoid embarrassment over any rivalry between two UN agencies. They agreed to the development of a single convention with a balance between nature and culture, the retention of ‘World Heritage’ in the title, the involvement of IUCN and ICOMOS in the process, and a formal expression of support for UNESCO’s standard-​setting role at the Stockholm summit.36 UNESCO’s Intergovernmental Committee of Experts met at UNESCO in April 1972 to amend the draft Convention in line with Maheu’s agreement with Strong. There was an initial procedural challenge when the American delegation proposed using its own third draft as the basis for discussion, a proposal that was rejected on procedural grounds by UNESCO. The most significant amendment was the addition of a three-​paragraph definition of natural heritage that benefited from the presence of several members of IUCN. The revised draft had a new title to reflect the equal treatment of culture and nature—​and even included the words ‘World Heritage’ as requested by Strong. To reassure those countries that had supported the IUCN initiative, the revised draft introduced the inclusion of ICCROM, ICOMOS, and IUCN as formal members of the Intergovernmental Committee in an advisory capacity.37 Two months later, the UN Conference on the Human Environment at Stockholm made good on its commitment, declaring that UNESCO’s draft Convention ‘concerning the protection of the world natural and cultural heritage marks a significant step towards the protection, on an international scale, of the environment’ and recommending it for adoption at the next General Conference of UNESCO.38 At the General Conference of UNESCO, disagreement erupted over the funding mechanism, pitting those who supported voluntary contributions against those who wanted obligatory contributions. A compromise was finally reached, paving the way for the adoption of the Convention concerning the Protection of the World Cultural and Natural Heritage on 16 November 1972.39 By 1976, the Convention had sufficient ratifications to hold an initial General Assembly of States Parties in Nairobi, enabling the first meeting of the World Heritage Committee at UNESCO headquarters in 1977. The World Heritage Convention is the first intergovernmental convention to combine culture and nature in one legal instrument with the goal of protection and international cooperation. This idea, visionary for its time, developed in the 1960s when there was a 34   R. Nixon, ‘Special message to the Congress proposing the 1971 environmental program, 8 February 1971’, The American Presidency Project (University of California Santa Barbara, 1971) art. IV. See http://​ www.pre​side​ncy.ucsb.edu/​ws/​index.php?pid=​3294#axzz1k​VK02​S3F; Cameron and Rössler (note 12) p. 19. 35 36   Batisse and Bolla (note 15) pp. 70–​71.   ibid, pp. 30–​31, 71–​73. 37   UNESCO, Draft Convention for the Protection of the Cultural and Natural World Heritage (1972). See https://​whc.une​sco.org/​arch​ive/​1972/​shc-​72-​con​f37-​20e.pdf. 38   United Nations, Report of the United Nations Conference on the Human Environment Stockholm, 5–​16 June 1972 (1973) p. 25. See https://​wed​ocs.unep.org/​han​dle/​20.500.11822/​30829. 39   Batisse and Bolla (note 15) pp. 79–​81.

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surge of interest in cultural heritage and environmental protection. The implications of this inspired idea continue to evolve as our understanding of the relationship between human beings and the environment grows deeper. While there remain many challenges, the World Heritage Convention has shown resilience in its ability to adapt to new concepts, regional perspectives, and global challenges in its mission to protect the cultural and natural heritage of humanity.

Christina Cameron

PA RT I I C O M M E N TA RY

The Preamble Francesco Francioni *

Noting that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction, Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world, Considering that protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific, and technical resources of the country where the property to be protected is situated, Recalling that the Constitution of the Organization provides that it will maintain, increase, and diffuse knowledge, by assuring the conservation and protection of the world’s heritage, and recommending to the nations concerned the necessary international conventions, Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong, Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole, Considering that, in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an effective complement thereto, Considering that it is essential for this purpose to adopt new provisions in the form of a convention establishing an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods, Having decided, at its sixteenth session, that this question should be made the subject of an international convention, Adopts this sixteenth day of November 1972 this Convention.

*  Professor Emeritus of Law, European University Institute, Florence. The author was President of the World Heritage Committee in the period 1997–​1998.

Francesco Francioni

The Preamble

22

I. New Risks and Dangers  II. The Origin of the Idea  III. Heritage of all Nations of the World  IV. The Role of UNESCO  V. Outstanding Interest and Outstanding Universal Value 

22 23 24 25 26

In accordance with Article 31, paragraph 2 of the Vienna Convention on the Law of Treaties,1 the Preamble is to be considered as part of the text of a treaty and, as such, must be taken into consideration for the purpose of interpretating the treaty ‘. . . in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. The Preamble of the World Heritage Convention is quite simple. But, at the same time, it contains a number of important enunciations and references that shed light on the origin, the context, and the object and purpose of the World Heritage Convention.

I.  New Risks and Dangers The first paragraph begins with the acknowledgement that ‘the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction’. This clearly refers to the general process of rapid industrialization and urbanization that in the 1960s had already begun to produce adverse effects on the natural and cultural heritage. But it must also be understood in the light of some critical events that worked as proximate causes of the elaboration and adoption of the Convention. Among such events, two can be singled out for their magnitude and international resonance: the man-​made flooding in the early 1960s of the Nubian monuments of the Upper Nile, and the natural disaster of the November 1966 floods in Venice and Florence. The first arose from the Egyptian government’s decision to build the Aswan Dam in the Upper Nile valley, which was to create a 60-​metre high reservoir of water submerging a rich area of archaeological monuments, including the gigantic statues of Ramses II at Abu Simbel. The international campaign promoted and coordinated by UNESCO to save the precious remains of an ancient civilization led to the disassembling of most of the monuments and to their relocation to elevated grounds where they can be admired today. In the case of the disastrous floods that hit Venice and Florence in November 1966, the international response was equally prompt and effective. Financial resources were mobilized and, even more impressively, thousands of people spontaneously converged on the place of the disaster, particularly in Florence, to help with the clean-​up, retrieval, and restoration of the immense cultural patrimony, which included pre-​Renaissance paintings, sculpture, frescoes, and thousands of ancient books.2 As in these two cases the international response was prompt and generous, so it became quickly apparent that these types of emergencies could not be faced 1 2

  1155 UNTS 331.   See UNESCO, Protection of Mankind’s Cultural Heritage, Sites and Monuments (1970) pp. 50 ff.

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solely on the basis of national laws and national resources, but required a coordinated effort at the international level and within a legal and institutional framework capable of supporting the public and private initiatives in this field. In the over 50 years that have passed since the adoption of the World Heritage Convention, new risks and dangers have emerged. Cultural and natural heritage of outstanding universal importance have become the target of terrorist attack and of vicious, discriminatory assaults during armed conflicts. This is abundantly demonstrated by the extensive intentional destruction of cultural heritage during the many wars of the past 30 years including the wars of the former Yugoslavia, Iraq, Syria, Mali, and Ukraine. A more subtle and pervasive danger for cultural and natural heritage is posed today by the phenomenon of mass tourism the negative effects of which on the integrity of cultural and natural heritage are well demonstrated by the fate of iconic sites, such as Venice, increasingly considered by the World Heritage Committee for inscription in the List of World Heritage in Danger because of the adverse impact of mass tourism on their outstanding universal value.3

II.  The Origin of the Idea The conceptual origin of the World Heritage Convention is closely linked to the early emergence in the theory and practice of international law of the idea that certain values, such as peace, human dignity, the general environment, and the cultural heritage of humankind, must be protected in the interest of the international community as a whole.4 Acting upon this idea, in 1968, the United Nations General Assembly decided to call for a United Nations Conference to address the progressive deterioration of the natural environment and to propose the adoption of a set of principles aimed at safeguarding natural ecosystems for the benefit of present and future generations.5 A preparatory committee was set up and working groups were formed to deal with the many different items of the environmental agenda. One such working group was the Intergovernmental Working Group on Conservation (IWGC).6 In the meantime, two different developments were under way. In 1970, pursuant to a General Conference Resolution,7 UNESCO began the elaboration of a draft treaty entitled ‘International Protection of Monuments, Groups of Buildings and Sites of Universal Value’,8 which covered only cultural property. The International Union for Conservation of Nature (IUCN)9 was working at the same time

3   For commentaries on this List, see Art. 11 by Buzzini and Condorelli. For the reiterated threat to inscribe Venice and its lagoon in the List of World Heritage in Danger, because of the unsustainable impact of mass tourism and, in particular, of the transit in its canal of the gigantic cruise ships, see World Heritage Committee, Decision 38 COM 7B. 27, paras 6–​7, Doha (2014); Decision 40 COM 7B 52, para. 10, Istanbul (2017); and, finally, Decision 44 COM 7B 50 (2021) declining to inscribe Venice in the List of World Heritage in Danger on account of the last-​minute adoption by Italy of legislation prohibiting access and transit in the Venice canals of the contested large cruise ships. See Decree no. 103, 20 July 2021, GU 20 July 2021, n. 172. 4   Further on the conceptual origin of the World Heritage idea, see ‘Conceptual Developments of the World Heritage Convention’ by Cameron in this volume. 5 6   GA Res. 2398.   UN Doc. A/​CONF.48/​PC. 9, 1971, para. 55. 7   Res. 3.412 of the 16th session of the UNESCO General Conference, Doc. SHC/​MD/​17, 1971, p. 3. 8   ibid, Annex II. 9   IUCN is an international organization founded in 1948 whose membership includes states, government agencies, public entities, private entities, and international bodies. It has a Secretariat in Gland, Switzerland and an Environmental Law Centre in Bonn, Germany. See http://​www.iucn.org/​.

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The Preamble

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on the preparation of an international instrument for the conservation of world natural heritage, a draft of which was completed in February 1971.10 In September 1971, the UNESCO and IUCN drafts were considered at an IWGC meeting in New York of the preparatory committee for the UN conference on the human environment. The meeting revised the IUCN draft and noted that a detailed revision of the UNESCO draft was beyond its mandate. However, it recommended that a unified text of a convention on the Conservation of World Heritage should be finalized in time for adoption at the Stockholm Conference in June 1972. Subsequent events facilitated merging the drafts into a single text covering cultural and natural heritage. In the spring of 1972, UNESCO agreed to examine the IWGC report and the IUCN draft convention. The United States, in response to UNESCO’s request for comments on its draft convention on monuments and sites, submitted a new draft treaty entitled ‘World Heritage Trust Convention’, which covered both cultural and natural heritage.11 In April 1972, a special meeting of governmental experts was convened in Paris by UNESCO to finalize the Draft Convention on the International Protection of Monuments, Groups of Buildings and Sites of Universal Value. One of the points of discussion was whether it would be preferable to adopt several distinct conventions covering cultural, natural, and historic heritage or one single convention on heritage of world significance. The meeting of governmental experts concluded in favour of the latter option and, after two weeks of intense negotiations, the text of the Draft Convention for the Protection of World Cultural and Natural Heritage was completed.12 Shortly thereafter, in June 1972, the Stockholm Conference adopted the famous Declaration on the Human Environment, whose Recommendations for Action indicated that: Governments should: a) noting that the draft convention prepared by UNESCO concerning the protection of the world natural and cultural heritage marks a significant step toward the protection, on an international scale, of the environment, examine this draft convention with a view to its adoption at the next General Conference of UNESCO.13

Thus, the way was paved for the adoption of the Convention by the UNESCO General Conference at its 17th session held in Paris in October–​November 1972. With few amendments14 to the original draft, the text was adopted on 16 November 1972 with the title ‘Convention Concerning the Protection of the World Cultural and Natural Heritage’.

III.  Heritage of all Nations of the World The second and third paragraphs of the Preamble introduce two key concepts of the Convention. The first is that ‘deterioration and disappearance of any item of the cultural and natural heritage constitutes a harmful impoverishment of the heritage of all nations of the world’. The second is that of the insufficiency of protective action at a purely   UN Doc. A/​CONF. 48/​IWGC. 1/​3, 1971.   UNESCO Doc. SHC/​MD/​18 Add.1, 1972. 12   UNESCO Doc. 17-​C/​18, 1972, Annex. At the same time, the meeting of the experts submitted a Draft Recommendation Concerning the Protection at National Level of the Cultural and Natural Heritage. 13   Para. 99.1(a), reproduced in UNESCO Doc. A/​CONF. 48/​14, 1972, p. 52. 14   The most significant amendment concerned the introduction in Art. 16 of the system of compulsory and voluntary contributions. See the commentary on Arts 15 and 16 by Lenzerini. 10 11

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national level because of the scarcity of the economic and technical resources in many countries of the world in relation to the magnitude of actual or potential damage to cultural and natural heritage. The first concept builds upon a similar enunciation contained in the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict; that is, ‘. . . that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind’,15 and gives legal form to the anthropological notion that all humanity shares a common origin from Homo sapiens and a common natural environment that permits life on the planet. Through the infinite variety of its expressions, cultural and natural heritage constitute a common estate of all peoples of the world and are expressions and components of their shared humanity. This idea was further developed at an operational level by a US initiative aimed at enhancing international cooperation for the conservation of natural and historic sites. In 1965, a White House Conference convened for this purpose concluded that the nations of the world should establish a ‘trust for the world heritage that would be responsible to the world community for the stimulation of international cooperative efforts to identify, establish, develop and manage the world superb natural and scenic areas and historic sites for the present and future benefits of the entire world citizenry’.16 This internationally minded US proposal was inspired by the unique American experience in setting up, since the end of the nineteenth century, a system of national parks of outstanding beauty and natural value, to be preserved and enjoyed as public amenities under the jurisdiction of the federal government. But it also included a reference to ‘historic sites’, which was an anticipation of the later and already mentioned US proposal for a ‘world heritage trust’.17 Undoubtedly, the idea of the trust foreshadowed the concept of the common interest of humanity and opened the way to the holistic approach taken by the World Heritage Convention with regard to culture and nature. The second concept enunciated in this part of the Preamble hardly requires a comment. It is evident that in the real world, where disparities among nations in available economic and technical resources determine unequal opportunities for the identification and conservation of cultural and natural heritage, exclusive reliance on the law and resources of the state where the heritage is situated is not an option. What is necessary is a system of international cooperation through which the collective action of states and competent international organizations may give concrete meaning to the proclaimed principle that loss or disappearance of any item of cultural or natural heritage constitutes a ‘harmful impoverishment of the heritage of all nations of the world’. This brings into play the role of UNESCO.

IV.  The Role of UNESCO Paragraphs 4 and 5 of the Preamble concern the role to be played by UNESCO, as the UN organization for culture and science, and by the existing conventions and other international 15   Second para. of the Preamble to the Convention, the full text of which is available at http://​www.une​ sco.org. 16  R. Meyer, ‘Travaux Préparatoires for the UNESCO World Heritage Convention’ (1976) Earth Law Journal 46 f. 17   See note 11.

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instruments concerning the protection of cultural and natural heritage. As far as UNESCO is concerned, its commitment to the safeguarding of cultural heritage stems from its 1945 Constitution, which, in its Article 1, contemplates among the purposes and functions of the Organization to ‘[m]‌aintain, increase and diffuse knowledge by assuring the conservation of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions’.18 This function had already been exercised by UNESCO in relation to the promotion of the 1954 Hague Convention on the protection of cultural property in time of war, and of the 1970 Paris Convention on illicit trade in movable cultural objects.19 As far as protection of natural heritage is concerned, no specific reference to it can be found in the UNESCO Constitution. However, it is not difficult to identify the legal basis for the exercise of this function in the general competence that UNESCO has in the field of science and education. Identification and conservation of world natural heritage is in the interests of the development, maintenance, and diffusion of knowledge, which is one of the fundamental missions of UNESCO pursuant to the Preamble to its Constitution and the specific provisions of Article 1.20 As far as the existing international conventions concerning cultural and natural property are concerned, it is clear that the World Heritage Convention represents a remarkable step forward on the way towards the internationalization of the system of safeguarding of cultural and natural heritage. The already mentioned 1954 Hague Convention, in spite of its commendable recognition of cultural property as ‘heritage of all mankind’, had failed to establish an effective system of international protection and had even fallen short of setting up a meaningful list of specially protected sites and monuments as originally envisaged.21 It was necessary to wait until 1999 for the adoption of an additional Protocol establishing an institutional mechanism for the registration of cultural property under enhanced protection in time of war,22 which is largely influenced by the positive experience of the World Heritage Convention. As for the 1970 UNESCO Convention on illicit traffic, it concerned movable cultural objects and its main objective was to prevent and redress illicit trade in stolen and illegally exported objects, rather than to establish a system of international cooperation for the protection of outstanding examples of cultural and natural heritage.

V.  Outstanding Interest and Outstanding Universal Value Paragraphs 6, 7, and 8 of the Preamble introduce the concept of ‘outstanding universal value’ of the heritage to be protected under the Convention. This entails that only very 18   Art. 1, para. 2(c) of the Constitution of UNESCO, adopted in London on 16 November 1945 with subsequent amendments, reprinted in UNESCO, Basic Texts (2000) p. 8. 19   See 1970 Paris Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, available at http://​www.une​sco.org. 20   See para. 6 of the Preamble as well as Art. 1, para. 2(c), which commits UNESCO to ‘maintain, increase and diffuse knowledge’. Ibid. 21   See Arts 8–​11 of the Convention. For a critical review of the Hague Convention and its shortcomings, see P. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO, 1993) as well as J. Toman, Commentaire de la Convention de La Haye du 14 May 1954 (UNESCO, 1994). 22   Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999 (available at http://​www.une​sco.org). The Protocol entered into force on 9 March 2004.

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special and exceptional items of cultural or natural heritage can be considered ‘World Heritage’ and that the system of protection and assistance established by the Convention is limited in its application to this narrow and exceptional category of properties. But what is meant by ‘outstanding universal value’? No definition of this expression is given in the Preamble, nor in the specific Articles 1 and 2 providing general definitions respectively of cultural heritage and natural heritage. The Preamble even presents a certain inconsistency in the use of the terms: the expression ‘outstanding interest’ is used in paragraph 6 while ‘outstanding universal value’ appears in the following paragraphs 7 and 8. Is this distinction significant? The answer to these questions can be provided by the rules on treaty interpretation contained in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.23 As far as the test of the ‘ordinary meaning of the terms’ is concerned, no particular problem would seem to be posed by the word ‘outstanding’. Its plain meaning refers to something that is unique, exceptional, excellent, or very special and in some way ‘much better than what is usual’.24 This would entail that, for the purpose of the World Heritage Convention, a comparative evaluation between sites and properties in a certain general category would be required in order to select only the one or those ones that meet this threshold of excellence. More troublesome is the determination of the meaning of the term ‘universal’. In the field of natural heritage, a universal standard of excellence is conceivable, because the geological, biological, or physical value of a natural site can be appreciated in the light of objective, scientific standards.25 Instead, in the field of cultural heritage what is very special and thus ‘outstanding’ normally relates to the distinctive qualities of a particular culture and social environment, which in itself is the antithesis of what is ‘universal’.26 So, if we take two examples of World Heritage sites, let us say the city of Florence and the Great Wall of China, their universal value cannot be conceived in the sense that they ‘exist everywhere and involve everyone’,27 since they are products of incommensurable historical circumstances and of very specific social structures and processes. And yet they are universal in the sense of their universal appeal, in the resonance of their exceptional qualities everywhere and with everyone in the world, as is demonstrated by the constant flow of visitors from all over the world to the two sites. So, at a textual level, the term ‘universal’ as applied to cultural heritage can be understood as defining the quality of a site of being able to exercise universal attraction for all humanity and exhibit importance for present and future generations. This interpretation is confirmed if we move from the textual analysis to the context and supplementary means of interpretation. In this respect, the criterion laid down in Article 31.3(a) of the Vienna Convention, referring to any subsequent agreement between the parties regarding the interpretation of the treaty, is relevant in connection with the Operational Guidelines, the set of criteria and rules governing the implementation of the Convention, especially by the World Heritage Committee with the support of the Advisory Bodies competent for the evaluation and monitoring of cultural and natural

  See note 1.   Cambridge International Law Dictionary of English (Cambridge University Press, Cambridge, 1995). 25   See the commentary on Art. 2 by Redgwell. 26   This issue is further elaborated on in the commentary on Art. 1 by Yusuf. 27   This is the definition in the Cambridge Dictionary (note 24). 23 24

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heritage.28 Rule 49 of the Operational Guidelines defines outstanding universal value as ‘cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common interest for present and future generations of all humanity’.29 Further, the Operational Guidelines contain ten very specific criteria upon one or more of which the decision that a specific property is of outstanding universal value is to be based.30 Further light on the meaning of this crucial element of the World Heritage Convention is shed by the ‘subsequent practice in the application of the treaty’, as envisaged by Article 31.3(b) of the Vienna Convention. Since its early deliberations, the practice of the World Heritage Committee31 has shown a constant concern with the precise identification of the concept of outstanding universal value at an operational level. This has led the Committee to emphasize a particular dimension of universality, that is, ‘representativity’, which means the capacity of the World Heritage List to represent the totality and diversity of all cultures of the world in their intellectual, aesthetic, religious, and sociological expressions. The search for representativity marks the over 50 years of practice of the World Heritage Committee. At an early stage, this objective was pursued by the means of a ‘global study’, intended to produce an ideal inventory of all possible sites susceptible to inscription in the World Heritage List.32 But it soon became apparent that the pursuit of an ideal inventory of all the treasures of the world would have been too difficult, unrealistic, and even misleading. At a later stage, which began in the early 1980s, the focus gradually shifted to the identification of general categories of world heritage and to ‘thematic studies’ aimed at developing different domains and a typology of cultural properties, taking into account those properties inscribed in the World Heritage List and in the tentative lists prepared at the national level pursuant to Article 11, paragraph 1.33 In the early 1990s, further impulse to a more sophisticated definition of ‘universality’ came from the inauguration of the new approach called the ‘global strategy’. This approach entailed the abandoning of the ‘global study’ idea of a fixed and definitive inventory of cultural property and a shift to the development of a dynamic interpretation of ‘universality’, which takes into account the evolving knowledge about the contribution that different cultures have made at different times to the world heritage.34 At a theoretical level, the global strategy approach contains an evident anthropological dimension of cultural heritage, as opposed to the purely aesthetic and monumental dimension of art history. At an operational level, it aims at correcting the imbalances that in the first 30 years of application of the Convention resulted from the aesthetic and stylistic approach that inspired the evaluation of properties and their inscription on the List. 28   I am referring to ICOMOS, ICCROM, and IUCN, whose role is contemplated in Art. 8 of the World Heritage Convention. See the commentary on Art. 8 by Scovazzi. 29   , UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC 21/​01, of 31 July 2021, Rule 49. 30   See Rule 77, ibid. For a detailed analysis of their application in relation to cultural and natural heritage, see the commentaries on Art. 1 and Art. 2 by Yusuf and Redgwell, respectively. 31   See the commentary on Arts 8–​11 by Scovazzi. 32   See L. Lévi-​Strauss ‘Diversité, universalité et representativité dans la liste du patrimoine mondial’, in F. Francioni, A. Del Vecchio and P. De Caterini (eds), Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio comune della cultura (Guiffrè, Milan, 2000). 33   See the commentary on Arts 8–​11 by Scovazzi. 34   On this shift, see L. Lévi-​Strauss (note 32) pp. 21–​33. See also C. Cameron, ‘Evolution of the application of “Outstanding Universal Value” for Cultural and Natural Heritage’, UNESCO Doc. WHC-​05/​ 29.CCCOM/​INF.9B, of 15 June 2005 and the commentary on Art. 1 by Yusuf.

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To conclude, even if a definition of the expression ‘outstanding universal value’ is not provided in the Preamble, nor in any other part of the Convention, the context and implementing practice of the World Heritage Convention tend to accredit a notion that builds upon two fundamental elements. On the one hand, the ability of the property to exercise universal appeal by virtue of its exceptional qualities, including its authenticity, its resonance in terms of human experience, and its capacity to interpret in an exceptional manner one of the eternal themes of the human condition, such as the mystery of life, the struggle for survival, death, the search for beauty. On the other hand, the concept of universality must be linked to the capacity to represent the diversity of the cultures and traditions of the world, both in space and time. It requires a careful selection of heritage sites so as to provide a truthful and complete picture of the works of nature and of humanity in the great variety of their manifestations and expressions. It is especially on this latter element that the efforts of the Convention bodies have been concentrated in the past 25 years, especially with a view to developing a more balanced representation of natural and cultural heritage, and to encouraging the inscription of under-​represented types of cultures and societies on the World Heritage List.35

35   See the World Heritage Committee deliberations adopted at its meeting in Cairns, Australia, its subsequent resolutions (see http://​whc.une​sco.org/​pg.cfm?cid=​273), the conclusions of the Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value, Kazan, Russia, April 2005, Doc. WHC-​05/​29.COM/​INF.98, of 15 June 2005, and the present rule setting a yearly ceiling of 35 nomination and a limit of one nomination for each Party. For further analysis of these aspects, see the commentary on Art. 11 by Scovazzi.

Francesco Francioni

Article 1: Definition of Cultural Heritage Abdulqawi A. Yusuf  *

For the purposes of this Convention, the following shall be considered as ‘cultural heritage’: monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.

I. Historical Background  II. Definitional Elements and Scope of ‘Cultural Heritage’  III. The Development of the Notion of ‘Cultural Heritage’ within the Framework of the Implementation of the Convention  A. The Search for an Expanded Notion of Cultural Heritage  B. A Strategy for a More Receptive Notion of Cultural Heritage  IV. The Impact of Other Instruments and Conventions on the Notion of ‘Cultural Heritage’ in the 1972 Convention  A. Intangible Cultural Heritage  B. Underwater Cultural Heritage  C. Cultural Diversity  V. Authenticity and Integrity as Testimony to the Value of ‘Cultural Heritage’  VI. The Link between Cultural and Natural Heritage in the Convention  VII. Concluding Remarks 

30 33 35 36 38 40 43 44 45 46 48 49

I.  Historical Background When the initial proposals for an international instrument on the protection of monuments and sites were made in the late 1960s, the notion of ‘cultural heritage’ was only alluded to in the sense that such properties formed an integral part of the cultural heritage of mankind. Indeed, the General Conference of UNESCO, at its 14th session, authorized the Director-​General ‘to coordinate and secure the international adoption of appropriate principles and scientific, technical and legal criteria for the protection of *  Judge and former president of the International Court of Justice.

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cultural property, monuments and sites’.1 At the same session, the General Conference also authorized the Director-​General ‘to study the possibility of arranging an appropriate system of international protection, at the request of the States concerned, for a few of the monuments that form an integral part of the cultural heritage of mankind’.2 In response to this resolution, the Director-​General submitted to the 16th session of the General Conference, in 1970, a document entitled ‘Preliminary Study on the Legal and Technical Aspects of a Possible International Instrument for the Protection of Monuments and Sites of Universal Value’, whose conclusion was as follows: From the foregoing study it is clear that an international system for the protection of monuments and sites of universal value is not only possible but desirable, and that the studies undertaken on this subject are sufficiently advanced for the matter to be submitted to the General Conference on the advisability of such a system.3

The Special Committee subsequently convened by the Director-​General to examine and finalize the draft instruments was also known as the ‘Special Committee of Government Experts to prepare a draft convention and a draft recommendation to Member States concerning the protection of monuments, groups of buildings and sites’.4 Thus, although it was clear from the above-​mentioned proposals that the monuments and sites to be protected internationally were those considered to be an integral part of the ‘cultural heritage of mankind’, the initial objective of the proposal for an international standard-​setting instrument appears to have been limited to those specific cultural properties. It was the Committee of Government Experts that came up with the idea of putting the three categories of cultural property subject to protection in the proposed Convention and Recommendation (i.e. monuments, groups of buildings, and sites) under the concept of ‘cultural heritage’, a term hitherto used in UNESCO in a much broader sense.5 Was it the need to find an umbrella notion capable of covering the three categories to be protected that led to the use of ‘cultural heritage’ or was the notion proposed as a result of the decision to include the protection of ‘natural heritage’ in the Convention and Recommendation? Did it come up only as an antonym of ‘natural heritage’ or was it deliberately chosen because of its specific meaning? In the preliminary report of the Director-​General on ‘international instruments for the protection of monuments, groups of buildings and sites’, the definition given under Article 1 of both the preliminary draft convention and the preliminary draft recommendation referred only to monuments, groups of buildings, and sites and did not at all mention the words ‘cultural heritage’.6 It was, however, in the comments of some of 1   Res. 14C/​3.342. The work plan of the resolution stated that ‘a meeting of experts will be convened to coordinate, with a view to their international adoption, principles and scientific, technical and legal criteria which would make it possible to establish an effective system for protecting and exploiting monuments and sites’. Judge and former president of the International Court of Justice. 2 3   Res. 14C/​3.411.   Doc. 16C/​19, Annex, para. 93. 4   For the Report, see ‘Special committee of government experts to prepare a draft convention and a draft recommendation to Member States concerning the protection of monuments, groups of buildings and sites’, Doc. SHC.72/​CONF.37/​19, of 21 April 1972. 5   The UNESCO programme on cultural heritage dealt with, among other things, the protection of movable and immovable cultural property, monuments, sites, and landscapes, and archaeological excavations, microfilming documents and manuscripts of historical value, and the collection, preservation, and study of oral traditions, contemporary arts, and living cultures. 6   See ‘International Instruments for the Protection of Monuments, Groups of Buildings and Sites’, preliminary report drawn up in accordance with Art. 10.1 of the ‘Rules of Procedure concerning Recommendations

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the member states on the preliminary report that the issue of the balance between cultural and natural resources was raised and it was observed that equal attention should be given to the protection of both, particularly in view of the possibility of parallel instruments being considered by the United Nations Conference on the Human Environment, in Stockholm, Sweden. Some member states clearly expressed the concern that if the UNESCO instruments did not strike an adequate balance in the protection of cultural and natural resources, or did not satisfactorily cover them both, the Stockholm Conference might go ahead with the draft convention on the conservation of the world heritage which its preparatory committee had invited the International Union for the Conservation of Nature (IUCN) to prepare.7 It appears, therefore, that the use of the expression ‘cultural heritage’ had arisen as a result of the confluence into one instrument of the campaigns for the elaboration of separate international instruments for the preservation of cultural and natural resources and the consequent need to put the three proposed subjects of protection in the field of culture (namely, monuments, groups of buildings, and sites) under an umbrella notion that would clearly distinguish them from similar subjects (e.g. sites) falling under the notion of ‘natural heritage’. Indeed, at the opening session of the Special Committee of Government Experts, the then Director-​General of UNESCO, Mr. René Maheu, stated that ‘on the eve of the Stockholm Conference on the environment, it seemed that the regulations envisaged did not perhaps bring out the two aspects of the question—​cultural heritage and natural heritage—​clearly enough and did not strike a completely satisfactory balance between them’.8 He therefore called upon the Committee ‘to give this question particular consideration in the light of the comments made by a number of Member States’.9 Consequently, the Committee came up with the two distinct, but inter-​related, notions of cultural and natural heritage, and decided to put under the notion of ‘cultural heritage’ the three proposed subjects of protection in the field of culture—​monuments, groups of buildings, and sites. It might have also been in the search for this satisfactory balance in the Convention between cultural and natural heritage that some sort of symmetry was achieved in the definitions of cultural and natural heritage, both of which consist of three parts or elements.10 Whatever may have been the reason for using the concept of ‘cultural heritage’ to denote only the three categories of cultural properties to be protected under the Convention, there is no doubt that this significant narrowing of the concept, within the context of the Convention, resulted, as discussed later, in important shortfalls and gaps that kept arising in the process of implementation of the Convention in respect of the coverage of the varied manifestations of cultural heritage in the world—​albeit in its physical dimension. It should, however, be noted that the use of the concept of ‘cultural heritage’ in the 1972 Convention, by bringing about a clear break with the notion of ‘cultural property’ to Member States and International Conventions covered by the terms of Article IV, paragraph 4 of the Constitution’, Doc. SHC/​MD/​17, of 30 June 1971.   See, e.g., comments by the UK and the United States in ‘International Regulations for the Protection of Monuments, Groups of Buildings and Sites’, Doc. SHC/​MD/​18, of 21 February 1972, Annex I. 8   See ‘Draft Report of the Special Committee of Government Experts to prepare a draft Convention and a draft Recommendation to Member States concerning the protection of monuments, groups of buildings and sites’, Doc. SHC. 72/​CONF.37/​19, of 21 April 1972, p. 2. 9  ibid. 10   For the definition of ’ ‘natural heritage’ similarly consisting of three constitutive elements, see Art. 2 of the Convention. 7

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hitherto used in UNESCO Conventions and Recommendations concerning the protection of movable or immovable cultural objects,11 also had a number of positive and forward-​looking implications arising mainly from the use of the word ‘heritage’. First, because implicit in the word ‘heritage’ is the need to preserve a historical asset for future generations and consequently the obligation of present generations to safeguard and protect such an asset. Secondly, the use of the word ‘heritage’ widens the scope of the subject matter to be protected, opening it up to the possibility of encompassing not only physical elements of culture, but also its intangible elements, as well as the relationship of humans to cultural objects. Thirdly, as opposed to property, the word ‘heritage’ implies the existence of a value which potentially transcends national boundaries, may be of interest to humanity as a whole, and may thus deserve protection at the international level.12 Another important expression that was also added to the definition in Article 1 of the Convention as a result of the deliberations of the Special Committee, and of the comments of member states on the preliminary report of the Director-​General, is that of ‘outstanding universal value’ which is used as a qualifier with respect to all three elements of the definition limiting the application of the Convention to those parts of cultural heritage which possess those qualities. In the text of the preliminary draft Convention, contained as Annex II to the preliminary report of the Director-​General, Article 2 provided, inter alia, that protection under the Convention would be accorded ‘only to such examples of the property defined in Article 1 as merit designation by virtue of their exceptional aesthetic or natural interest or their great importance as unique evidence of vanished civilizations or as irreplaceable architectural masterpieces typifying a particular period, an historical past or the genius of a people, as monuments, groups of buildings and sites of universal interest’.13 It is this last reference to ‘universal interest’ that gradually morphed, during the discussions in the Special Committee, into the all-​important concept of ‘outstanding universal value’ whose meaning and scope of application have also evolved and expanded since the adoption of the Convention in 1972.

II.  Definitional Elements and Scope of ‘Cultural Heritage’ The definition of cultural heritage as contained in Article 1 of the 1972 Convention has formally remained the same since the adoption of the Convention. Thus, for the purposes of the Convention, ‘cultural heritage’ is still considered to consist of the following elements: monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; 11  See, e.g., Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague Convention), with Regulations for the Execution of the Convention, as well as the Protocol to the Convention, 14 May 1954; Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, 19 November 1964; Recommendation concerning the Preservation of Cultural Property Endangered by Private or Public Works, 19 November 1968; and Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970. All these UNESCO instruments are available in full text at https://​ www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about. 12   cf M. Frigo, ‘Cultural Property v. Cultural Heritage: a “Battle of Concepts” in International Law’ (2004) 86 International Review of the Red Cross 367 ff; R. O’Keefe, ‘The Meaning of “Cultural Property” Under the 1954 Hague Convention’ (1999) XLVI NILR 26–​56. 13   See Doc. SHC/​MD/​17, Annex II (note 6).

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Article 1: Definition of Cultural Heritage

groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.14

The meaning and scope of these elements has, however, undergone a profound change over the years through the practice of the World Heritage Committee (hereinafter Committee) and through successive revisions of the Operational Guidelines for the Implementation of the World Heritage Convention (hereinafter Guidelines) established by it, without resorting to the formal amendment of the Convention itself. For the purposes of the 1972 Convention, monuments, groups of buildings, and sites, as described above, constitute both the definitional and constitutive elements of cultural heritage. The three categories of elements together form an integral whole, each element being inseparable from the other for the purpose of defining cultural heritage under the Convention. At the same time, they constitute the individual components of cultural heritage to be protected under the Convention insofar as they possess or embody certain qualities, particularly that of ‘outstanding universal value’. The expansion of the scope and content of these elements was basically due to the fact that questions were raised, and gaps and imbalances were identified, through the effective implementation of the Convention and the establishment of the World Heritage List (hereinafter List). The shortcomings identified in the application of the notion itself included the following. First, as originally defined in the Convention, the notion of ‘cultural heritage’ was found to be essentially based on a ‘European-​inspired monumentalist vision’ of cultural heritage which isolated its physical dimensions from its non-​physical ones.15 Secondly, the definition appeared not to have adequately taken into account the spatial, temporal, and social (ways of life) dimensions of cultural heritage. Thirdly, it was considered to have placed too much emphasis on cultural output at the expense of cultural processes and associated values. It was to address these gaps and shortcomings that global studies were undertaken in the 1980s that later led to the elaboration of a ‘Global Strategy for a Balanced, Representative and Credible World Heritage List’ and the consequent expansion of the scope of the definitional elements. As discussed later, the studies and strategy did not focus only on the definitional elements as such but also, and mainly, on the qualities that such elements were to possess under the definition in order to qualify for inscription in the List and consequent protection under the Convention. In this context, the most fundamental quality which the previously mentioned cultural heritage elements must possess to warrant collective responsibility for their preservation under the Convention is that of ‘outstanding universal value’.16   Convention concerning the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of UNESCO at its 17th session, Paris, 16 November, 1972, Art. 1. For the text, see UNESCO normative instruments at https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about. 15   See, e.g., L. Lévi-​Strauss, ‘The African cultural heritage and the application of the concept of authenticity in the 1972 Convention’ in Doc. WHC-​2000/​CONF.202/​INF.13, of 15 June 2000. 16   In the case of monuments and groups of buildings, the outstanding universal value must be from the point of view of history, art, or science; in the case of sites, it has to be from the historical, aesthetic, ethnological, or anthropological point of view. 14

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The concept of outstanding universal value, which applies both to cultural and natural heritage, is not, however, defined in the text of the Convention. But, in deciding to inscribe a property in the List, the Committee, which is responsible for the implementation of the Convention, bases its decision on an assessment of whether its value can be considered to be outstanding and universal. Article 11.5 of the Convention provides that ‘The Committee shall define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included in either of the lists mentioned in paragraphs 2 and 4 of this article.’ Consequently, the Committee has established certain criteria in the Guidelines to determine whether a property proposed for inscription in the List is of outstanding universal value. It is through the development and application of these criteria, as well as the criteria for the assessment of the subsidiary requirements of authenticity, integrity, and existence of an adequate protection and management system, that the notion of cultural heritage under the Convention has evolved over the years to take into account the development of knowledge, scientific thought, and the growing importance of cultural diversity in the world, and to broaden the scope of its application to diverse manifestations of culture around the world. In view of the fact that the Convention, and the definition of cultural heritage contained therein, were meant to deal mainly with the physical, non-​movable dimensions of cultural heritage, and within this a very select subset considered of outstanding universal value, its coverage could not be considered from the outset to encompass cultural heritage in all its manifestations. It should indeed be recalled that, together with the Convention, the General Conference adopted a Recommendation Concerning the Protection, at the National Level, of the Natural and Cultural Heritage, whose objective was to establish common approaches among Member States in the preservation of heritage of special value at the national level. Subsequently, the Conference decided to undertake action at the international level to protect, through other standard-​setting instruments, the intangible elements of cultural heritage. As a result, a Recommendation on the Safeguarding of Traditional Culture was adopted by UNESCO in 1989, followed later by the elaboration and adoption in 2003 of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage.17 Work was also initiated in the 1990s on an instrument for the international protection of underwater cultural heritage leading to the conclusion in 2001 of a convention on this subject. Finally, in October 2005 the UNESCO General Conference adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (better known as the Cultural Diversity Convention).18 The broader concept, contained in these different instruments, of cultural heritage worthy of preservation as an inheritance from the past to be passed on to future generations, of which the Convention covers only a part, also needs to be borne in mind in the interpretation and application of Article 1 of the Convention.

III.  The Development of the Notion of ‘Cultural Heritage’ within the Framework of the Implementation of the Convention The first edition of the Guidelines was adopted by the Committee during its first session held in Paris in 1977. Since then, the Guidelines, which have become an indispensable   For the text of these instruments, see https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about.   For the text, see ibid.

17 18

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working tool and a general reference document for the Committee, as well as for the States Parties, have been periodically revised and updated, the latest version being that of 2021. While the definition of ‘cultural heritage’, as contained in the Convention, has never been proposed for amendment by the Committee,19 the criteria established in the Guidelines for assessing and determining whether a property has outstanding universal value have been used by the Committee to accommodate developments in the implementation of the notion of ‘cultural heritage’ under the Convention. In other words, the criteria for the assessment of the outstanding universal value of a property have become one of the most important tools for ensuring the flexible application of the notion of ‘cultural heritage’ and the main engine of its evolution over the years. How did the centre of gravity of the notion of ‘cultural heritage’ move from the definitional elements themselves to the quality that such elements must possess to qualify as cultural heritage? Or was the possession of the quality of outstanding universal value always the most decisive element in the definition of the notion for the purposes of the Convention, notwithstanding the specific nature of the non-​movable cultural property concerned? These questions will be addressed in the following subsections.

A.  The Search for an Expanded Notion of Cultural Heritage The search for an expanded notion of ‘cultural heritage’ based on the criteria for the assessment of outstanding universal value began early in the work of the Committee. At issue was the value to be attached to a property as the ‘best of the best’ or ‘as the most outstanding’ in the world or conversely as ‘representative of the best’ in a cultural area, region, theme, or historical period. Given the specificity of the cultures of the world, the manner in which they interact with the environment or with other cultures, their spiritual and creative expressions, and the inherent complexities of cultural diversity in general, it became clear from the very beginning that a one-​size-​fits-​all approach could not be adopted in the application of the notion of cultural heritage under the Convention. The limitations of an ‘iconic’, ‘wonders of the world’ approach with regard to cultural heritage became equally self-​evident at an early stage in the implementation of the Convention.20 The first group of sites and monuments was inscribed on the World Heritage List in 1978 during the second session of the Committee. Soon afterwards, the question of numerical imbalances in the World Heritage List was raised, first with respect to representation of cultural and natural heritage on the List, and subsequently with regard to the imbalanced representation of different categories of cultural heritage, as well as representation of different regions and cultures of the world. Work was therefore initiated by the Committee on possible ways and means of achieving a structured and systematic approach to the selection and comparative evaluation of properties to be included in 19   There appears to be a broad consensus among all the States Parties that formal amendments to the Convention should be avoided in view of the fact that they may result in the existence, for a long period, of parallel texts that might give rise to serious problems in its implementation. 20   According to Cameron, ‘[i]‌n the first five years of the Convention, there was a strong tendency to list iconic sites. By iconic, I mean sites that transcend cultural affiliation, sites that are unique and widely known. These properties clearly meet the benchmark of “best of the best”. . . . If outstanding universal value began as the “best of the best”, it soon began to shift towards “representative of the best”.’ See keynote speech by Ms Christina Cameron ‘Evolution of the application of “outstanding universal value” for cultural and natural heritage’ at the Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value, held in Kazan, Republic of Tatarstan, Russian Federation, 6–​9 April 2005, in Doc. WHC-​05/​29.COM/​ INF.9B, of 15 June 2005.

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the List. It also decided to strengthen the criteria for assessing outstanding universal value, and called for the preparation of comparative studies of cultural properties by the Advisory Bodies and the Secretariat, while encouraging States Parties to expedite the preparation of their tentative lists. Nevertheless, throughout the first decade of its existence, the List compiled by the Committee, and the criteria underlying the determination of the properties to be included therein, continued to suffer from perceptions of imbalances, gaps, and lack of representativity of different categories of heritage resources and of different cultures. This might have been due to a number of factors. First, the 1980 revision of the cultural heritage criteria in the Guidelines appeared to give primacy to a ‘monumentalist’ approach that favoured nominations from Europe over less materialistic heritage values from other parts of the world.21 The Expert Group charged with the elaboration of a Global Strategy noted the following gaps and imbalances in the List: • Europe was over-​represented in relation to the rest of the world; • historic towns and religious buildings were over-​represented in relation to other types of property; • Christianity was over-​represented in relation to other religions and beliefs; • historical periods were over-​represented in relation to prehistory and the twentieth century; • ‘elitist’ architecture was over-​represented in relation to vernacular architecture.22 Secondly, through the inclusion of criteria such as a civilization ‘which has disappeared’, the 1980 revision excluded living traditions from the List. As pointed out later in an assessment of the List by the previously mentioned Expert Group: ‘In more general terms, all living cultures—​and especially the “traditional” ones—​with their depth, their wealth, their complexity, and their diverse relationships with their environment, figured very little on the List.’23 Thirdly, the limited number of States Parties to the Convention created imbalances and gaps in the properties included in the List during this period. A wider subscription to the Convention and a more intense preparation of tentative lists and submission of nominations had therefore to be promoted by the Committee and the Secretariat. At its 11th session, in 1987, the Committee created an Expert Group to propose the concept of a global study and a functional typology to guide the Committee in its decision making. The Expert Group proposed to the 12th session of the Committee a provisional system that would provide a framework ‘to assist the States Parties in identifying their properties and the Committee in evaluating nominations’.24 The system consisted of a typological approach based on the categories of cultural heritage identified among 21  In an assessment of the List developed during this period, the World Commission on Culture and Development stated in its report that ‘[the List] reflects a framework which is not really appropriate for the kinds of heritage most common in regions where cultural energies have been concentrated in other forms of expression such as artifacts, dance or oral traditions’. See ‘Our Creative Diversity: Report of the World Commission on Culture and Development’ (2nd revised edn, 1996) p. 178. 22   See Report of the Expert Meeting on the ‘Global Strategy’ and Thematic Studies for a representative World Heritage List (UNESCO Headquarters, 20–​22 June 1994), Doc. WHC-​94/​CONF.003/​INF.6, of 13 October 1994, p. 3. 23   ibid, p. 4. 24  Report of the 12th session of the Committee, Brasilia, Brazil, 5–​9 December 1988, Doc. SC-​88/​ CONF.001/​13, of 23 December 1988, para. 12.

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the properties inscribed on the World Heritage List in 1987. After having been applied for two years, the system was abandoned in 1991, at the 15th session of the Committee in Carthage (Tunisia),25 where it was criticized for not taking into account properties that lay outside the categories recognized in 1987. It was also considered as being a functional typology based on historical and aesthetic classifications which did not adequately reflect the diversity of the world’s cultural heritage and living cultures. A non-​typological approach was called for by the Committee which decided that the global study could not be based upon a single criterion of methodology, but should adopt ‘a mixed temporal, cultural and thematic approach’.26 Thus, a series of thematic and comparative studies was launched by the Advisory Bodies (in this case, the International Council of Monuments and Sites (ICOMOS)) on different categories of heritage, and workshops and experts’ meetings were organized in different regions of the world to enable them to contribute to the evolution of the concept of cultural heritage as applied under the Convention. Following the presentation by ICOMOS in 1992 of a ‘Framework for a Global Study’ based on a mixed temporal, cultural, thematic, and geographic approach using ‘world cultural provinces’, an Experts’ Meeting was convened by the World Heritage Centre and ICOMOS to make suggestions for further revisions to the cultural heritage criteria and to present a new approach for the development of a representative and balanced World Heritage List. The Meeting proposed a Global Strategy for a Balanced, Representative and Credible World Heritage List (hereinafter Global Strategy) as an action programme designed to identify and fill the gaps in the List. According to the group, the more dynamic, continuous, and evolutionary concept of a global strategy was to be preferred to the term global study, ‘which conjured up the idea of a rigid, unique and definitive study’.27 The Global Strategy was adopted by the Committee at its 18th session in December 1994.

B.  A Strategy for a More Receptive Notion of Cultural Heritage The adoption of the Global Strategy constituted a turning point in the development of the concept of cultural heritage as specified in the Convention as well as in its application by the Committee to the nominations submitted for inclusion in the List. The Global Strategy led to the broadening of the notion of cultural heritage and to the establishment of a process of taking into account developments in knowledge, scientific thought, and views of relationships among cultures so that the List would become more receptive to the varied manifestations of outstanding universal value in different cultures. For the Expert Group that recommended its adoption, it was only through such a global strategy that the gaps and imbalances already discernible in the List at the time could be overcome. In summarizing the development of the notion of cultural heritage in the context of the implementation of the Convention in the first two decades that had elapsed since its adoption, the Expert Group noted that:

25   See Report of the Rapporteur of the 15th session of the Bureau of the Committee, Paris, 17–​21 June 1991, Doc. SC-​91/​CONF.002/​2, of 10 July 1991, section VII, and Report of the 15th session of the Committee, Carthage, 9–​13 December 1991, Doc. SC-​91/​CONF.002/​15, of 12 December 1991, section IX. See https://​ whc.une​sco.org/​en/​docume​nts/​921. 26  ibid. 27   See Report of the Expert Meeting on the ‘Global Strategy’ and Thematic Studies for a representative World Heritage List (note 22) p. 4.

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In 1972 the idea of cultural heritage had been to a very large extent embodied in and confined to architectural monuments. Since that time, however, the history of art and architecture, archaeology, anthropology, and ethnology no longer concentrated on single monuments in isolation but rather on considering cultural groupings that were complex and multidimensional, which demonstrated in spatial terms the social structures, ways of life, beliefs, systems of knowledge, and representations of different past and present cultures in the entire world. Each individual piece of evidence should therefore be considered not in isolation but within its whole context and with an understanding of the multiple reciprocal relationships that it had with its physical and non-​ physical environment. Against this background, therefore, it was appropriate to set aside the idea of a rigid and restricted World Heritage List and instead to take into account all the possibilities for extending and enriching it by means of new types of property whose value might become apparent as knowledge and ideas developed. The List should be receptive to the many and varied cultural manifestations of outstanding universal value through which cultures expressed themselves.28

For the Expert Group, in order to redress the imbalances inherent in the List, there were certain broad themes that offered significant high potential for filling gaps in representation when considered in their broad anthropological context. These themes were the following: 1. Human coexistence with the land: • movement of peoples (nomadism, migration); • settlement; • modes of subsistence; • technological evolution. 2. Human beings in society: • human interaction; • cultural coexistence; • spirituality and creative expression.29 Based on these themes, and for the purposes of implementing the Global Strategy, the Expert Group also recommended the revision of five of the six cultural heritage criteria used for the evaluation of outstanding universal value (i.e. criteria (i), (ii), (iii), (v), and (vi) contained in paragraph 24(a) of the Guidelines at the time). The revision of the criteria, adopted by the Committee at its 18th session in 1994, had a number of important consequences. First, the revision led to conceptual shifts in the scope and application of the notion of ‘cultural heritage’ under the Convention. These changes included: the setting aside of artistic achievement as an important heritage criterion; a better reflection of the interaction of cultures and interchange of human values; highlighting the importance of living cultures; and a stronger recognition of the link between cultural and natural heritage. Secondly, the revision allowed for a process of rectification of imbalances, and identification of gaps, in the List with respect to types of property, regions of the world, cultures, and periods by opening it up to heritage that was not yet represented in it or was previously rejected by the Committee, such as cultural landscapes, seascapes, industrial heritage, routes for people and goods, modes of occupation of land and space, water management, modern architecture, railways, traditional settlements and their environments,

  ibid, p. 3.   

28

  ibid, p. 6.

29

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sites of spiritual significance whether monumental or not, waterways, and properties associated with events and living traditions. Thirdly, it constituted a clear move away from a purely monumental view of cultural heritage of humanity towards a more anthropological, comprehensive, and diversified conception of the wealth and diversity of human cultures. As stated by Pressouyre, this evolution represented a ‘significant change in our concept of heritage: by finally questioning the idea inherited from ancient times and firmly rooted in European culture of what a masterpiece is, the World Heritage Committee opened the way to a more balanced picture of humanity’s heritage’.30 The inclusion in criterion (vi) of the requirement that the property ‘be directly or tangibly associated with events, living traditions, beliefs, ideas or artistic and literary works of outstanding universal significance’ took into account, for the first time, certain aspects of intangible heritage and made the Convention applicable to such heritage where it is closely associated with tangible heritage. Fourthly, it resulted in a shift from an iconic, ‘wonders of the world’ approach towards a representative and comparative ‘selection of the best’ approach in the establishment of the List and the application of the notion of ‘cultural heritage’ under the Convention.31 The global strategy for a representative and credible List has since continued to influence the definition and scope of cultural heritage in the Convention as well as the criteria for assessing the quality of such heritage as being of outstanding universal value. The three frameworks—​typological, chronological/​regional, and thematic—​identified by the Committee at its 26th session in Budapest in June 2002 to facilitate the tasks of the States Parties in identifying properties of potential outstanding universal value and preparing tentative lists and nominations, will definitely have further impact through evolving concepts and strategies on the definition and scope of cultural heritage for the purposes of the Convention. As illustrated in Table 1, the continuous and dynamic evolution of the criteria for outstanding universal value, as defined in subsequent versions of the Guidelines, has already led to a considerable expansion of the notion of ‘cultural heritage’ in the Convention.

IV.  The Impact of Other Instruments and Conventions on the Notion of ‘Cultural Heritage’ in the 1972 Convention As indicated earlier, the inclusion of the notion of ‘cultural heritage’ in the 1972 Convention and its linkage to the notion of ‘natural heritage’ constituted a major conceptual leap forward as compared to earlier conventions which used the more limited notions of ‘cultural property’ or ‘cultural objects’.32 The implementation of the 1972 Convention through successive revisions of its Guidelines has also resulted in a broadening and deepening of the notion of ‘cultural heritage’ of outstanding universal value to take into account the development of knowledge about cultural expressions not only in   L. Pressouyre, ‘The Past is not Just Made of Stone’, UNESCO Courier (December 2000) p. 19.   See Cameron (note 20). 32   See, e.g., the Convention for the Protection of Cultural Property in the Event of Armed Conflict (the ‘Hague Convention’) with Regulations for the Execution of the Convention, as well as the Protocol to the Convention and the Conference Resolutions, 14 May 1954; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970; The Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, at https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about. 30 31

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Criterion (iv)

Criterion (iii)

be among the most characteristic example(s) of a type of structure, the type representing an important cultural, social, artistic, scientific, technological or industrial development

represent a unique artistic or aesthetic achievement, a masterpiece of the creative genius have exerted considerable influence, over a span of time or within a cultural area of the world, on subsequent developments in architecture, monumental sculpture, garden and landscape design, related arts, or human settlements be unique, extremely rare, or of great antiquity

Criterion (i)

Criterion (ii)

1977

Criteria (1977 numbering)

be an outstanding example of a type of structure which illustrates a significant stage in history; or

bear a unique or at least exceptional testimony to a civilization which has disappeared; or

have exerted great influence, over a span of time or within a cultural area of the world, on developments in architecture, monumental arts or town planning and landscaping; or

represent a unique artistic achievement, a masterpiece of the creative genius; or

1980

bear a unique or at least exceptional testimony to a civilization or cultural tradition which has disappeared; or be an outstanding example of a type of building or architectural ensemble or landscape which illustrates (a) significant stage(s) in human history; or

have exerted great influence, over a span of time or within a cultural area of the world, on developments in architecture, monumental arts or town planning and landscape design; or

Unchanged

1992

Table 1  Main stages in the evolution of criteria (i)–​(vi) for the assessment of outstanding universal value

bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history

exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town planning or landscape design

represent a masterpiece of human creative genius

1996

Unchanged

Unchanged

Unchanged

Unchanged

(continued )

2005–​2021

1977

be a characteristic example of a significant, traditional style of architecture, method of construction, or human settlement, that is fragile by nature or has become vulnerable under the impact of irreversible sociocultural or economic change

be most importantly associated with ideas or beliefs, with events or with persons, of outstanding historical importance or significance

Criteria (1977 numbering)

Criterion (v)

Criterion (vi)

Table 1  Continued

be directly or tangibly associated with events or with ideas or beliefs of outstanding universal significance (the Committee considers that this criterion should justify inclusion in the List only in exceptional circumstances or in conjunction with other criteria)

be an outstanding example of a traditional human settlement which is representative of a culture and which has become vulnerable under the impact of irreversible change; or

1980

be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance (the Committee considers that this criterion should justify inclusion in the List only in exceptional circumstances or in conjunction with other criteria)

be an outstanding example of a traditional human settlement or land use which is representative of a culture (or cultures), especially when it has become vulnerable under the impact of irreversible change; or

1992

be directly or tangibly associated with events or living traditions, ideas, or with beliefs, with artistic and literary works of outstanding universal significance (the Committee considers that this criterion should preferably be used in conjunction with other criteria)

be an outstanding example of a traditional human settlement or land use which is representative of a culture (or cultures), especially when it has become vulnerable under the impact of irreversible change

1996

be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance (the Committee considers that this criterion should preferably be used in conjunction with other criteria)

be an outstanding example of a traditional human settlement, land use, or sea use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change;

2005–​2021

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a tangible physical form but also in the form of the intangible heritage associated with it. Nevertheless, the Convention could not by itself cover all the different manifestations of cultural heritage. Some of these manifestations are dealt with in the other conventions mentioned hereunder, which complement the 1972 Convention.

A.  Intangible Cultural Heritage In the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, it is indeed considered, in one of the preambular paragraphs, that ‘existing international agreements, recommendations and resolutions concerning the cultural and natural heritage need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage’.33 This is a direct reference to the 1972 Convention and Recommendation. Article 2 of the Convention also refers, in its definition of intangible cultural heritage, to ‘the instruments, objects, artefacts and cultural spaces associated therewith’, thus underlining the relationship between tangible and intangible cultural heritage.34 It should, however, be noted that the main objective of the 2003 Convention is to ensure that intangible cultural heritage is considered and safeguarded in its own right, as defined in the Convention, and not only as associative elements of tangible heritage. A distinctive feature of the approach of the 2003 Convention to the definition of cultural heritage is its identification of the value of such heritage on the basis of its character for the community concerned, without any reference to its universality or its significance across national boundaries. Moreover, as recognized in the Yamato Declaration of 2004 on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage: ‘There are countless examples of intangible cultural heritage that do not depend for their existence or expression on specific places or objects, and [that] the values associated with monuments and sites are not considered intangible cultural heritage as defined under the 2003 Convention when they belong to the past and not to the living heritage of present day communities.’35 It should be added that another principal purpose of the 2003 Convention is to safeguard continuously evolving and sometimes ephemeral knowledge, practices, and processes rather than to protect products. Thus, the notion of authenticity as applied to tangible cultural heritage does not have much relevance for the identification and safeguarding of intangible cultural heritage. Despite these differences, the interdependence between ‘intangible cultural heritage’, as defined in the 2003 Convention, and in the related Recommendation on the Safeguarding

33   This Convention entered into force on 20 April 2006. For the text, and the current status of ratifications, see https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about. 34   Art. 2 of the Convention defines intangible cultural heritage as ‘the practices, representations, expressions, knowledge, skills—​as well as the instruments, objects, artefacts and cultural spaces associated therewith—​that communities, groups, and in some cases, individuals recognize as part of their cultural heritage’. It is also provided that the intangible cultural heritage is manifested inter alia in the following domains: ‘(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship’. 35   For the full text of the Declaration, see Doc. WHC-​04/​7EXT.COM/​INF.9, of 25 November 2004. See also the ‘Déclaration québécoise du Patrimoine: Notre patrimoine, un héritage à partager’ ratified by the General Assembly of the Forum québécois du Patrimoine, 15 April 2000, where it is stated, ‘Notre patrimoine est une richesse matérielle—​archives, objets, œuvres d’art, bâtiments, sites, paysages—​autant qu’immatérielle—​ traditions, savoir-​faire, langues, institutions. Notre patrimoine, ce sont aussi nos milieux de vie, nos régions, nos villes, nos villages et nos campagnes.’

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of Traditional Culture and Folklore of 1989, and the notion of ‘cultural heritage’ in the 1972 Convention, taking into account its evolution through the Guidelines, is best illustrated by the following examples: 1. The Medina of Marrakech in Morocco, which was inscribed in the World Heritage List in 1985, includes within its boundaries the Jemaa El Fna square, proclaimed in 2001 as a cultural space under the programme of the Masterpieces of the Oral and Intangible Heritage of Humanity, and likely to be transferred to the List of Intangible Heritage under the 2003 Convention. 2. The Rice Terraces of the Philippine Cordilleras in the Philippines were inscribed in the World Heritage List in 1995; while the Huhud chants of the Ifugao people, which are sung during the sowing season and the rice harvest, were proclaimed a Masterpiece of the Oral and Intangible Heritage of Humanity in 2001, and are likely to be transferred to the List under the 2003 Convention.

B.  Underwater Cultural Heritage The 2001 UNESCO Convention on Underwater Cultural Heritage deals with another manifestation of cultural heritage not covered under the 1972 Convention. Underwater cultural heritage is defined in the 2001 Convention as follows: All traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character.36

The main purpose of the 2001 Convention is to ensure and strengthen the protection of underwater cultural heritage, to preserve it in situ, wherever possible, for the benefit of humanity, to promote international cooperation in the protection of such heritage, and to prevent its exploitation for commercial purposes. According to the Feasibility Study for the drafting of the Underwater Cultural Heritage Convention, the structure and scope of the 1972 Convention was not adapted to the particular problems of heritage protection in international waters mainly for two reasons: first, ‘many of the sites to be protected are of great importance, but may not be of “outstanding universal value” ’; and, secondly, ‘the Convention does not apply to movables, whereas the excavation of underwater heritage is very often concerned with artefacts already separated from the main site’.37 Nevertheless, the effective protection of underwater heritage contiguous or closely connected with a site proposed for inscription under the 1972 Convention has

36   Art. 1.1 of the Convention. The same provision also describes what should not be considered as underwater cultural heritage, referring in particular to pipelines and cables placed on the seabed as well as installations other than pipelines and cables, also placed on the seabed and still in use. For the text of the Convention, see https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about. 37   ‘Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater Cultural Heritage’, presented to the Executive Board of UNESCO at its 146th session, Doc. 146 EX/​27, of 23 March 1995, p. 8.

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sometimes played an important role in the inclusion of the site in the World Heritage List.38

C.  Cultural Diversity The symbiotic relationship between cultural diversity and cultural heritage was strongly underlined in the Nara Document on Authenticity of 1994, long before the adoption in UNESCO of the Universal Declaration on Cultural Diversity (2001) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) (hereinafter Cultural Diversity Convention). According to the Nara Document:



5. The diversity of cultures and heritage in our world is an irreplaceable source of spiritual and intellectual richness for all humankind. The protection and enhancement of cultural and heritage diversity in our world should be actively promoted as an essential aspect of human development. 6. Cultural heritage diversity exists in time and space, and demands respect for other cultures and all aspects of their belief systems. In cases where cultural values appear to be in conflict, respect for cultural diversity demands acknowledgement of the legitimacy of the cultural values of all parties. 7. All cultures and societies are rooted in the particular forms and means of tangible and intangible expression which constitute their heritage, and these should be respected.39

The need to take into consideration diverse forms of culture was also addressed by the World Heritage Committee in its successive revisions of the criteria for the assessment of ‘outstanding universal value’, and led to the gradual inclusion in the notion of ‘cultural heritage’ of cultural landscapes, cultural routes, as well as of associative intangible elements. It might, however, be argued that the adoption of the Universal Declaration on Cultural Diversity and of the Cultural Diversity Convention has further strengthened the recognition at the international level of the diverse manifestations of cultural heritage, and their variability over time and space. This has resulted in the emergence of a more solid link between the universal values attached to cultural heritage under the 1972 Convention and the need to protect and promote cultural diversity.40 This link is clearly expressed in

38   See, e.g., the report of the World Heritage Committee on the Central Zone of Angra do Heroismo in the Azores (Portugal), where it is stated that the observer of Portugal: ‘also informed about the actions taken with respect to the underwater heritage in the Bay of Angra do Heroismo. ICOMOS confirmed that this had been done according to the highest standards’, Doc. WHC-​98/​CONF.203/​18, of 29 January 1999, p. 23. See also the report of the Committee on the nomination of Tyre (Lebanon) where it is said that:

the Lebanese authorities have confirmed that the first option (rehabilitation and upgrading of existing port structures) will be retained, in line with the recommendations of the Centre. The latter, however, conditioned its approval to the accomplishment by the Lebanese authorities of the following: full underwater survey inside the harbour; limiting to the maximum of 30 the number of boats docking in the tourist marina; using the marina project as an opportunity to upgrade the fishing port with the creation of amenities for fishermen and locations for the interpretation and presentation of the underwater heritage of Tyre. (Doc. WHC-​01/​CONF.208/​24, of 8 February 2002, p. 134.)   See the Nara Document on Authenticity adopted by the Nara Conference on Authenticity in Relation to the World Heritage Convention, held at Nara, Japan, 1–​6 November 1994, at https://​whc.une​sco.org/​docum​ ent/​116​018. 40   Art. 1 of the Universal Declaration on Cultural Diversity, entitled ‘Cultural diversity: the common heritage of humanity’ is very instructive in this sense. It reads as follows: 39

Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange,

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Article 7 of the Universal Declaration on Cultural Diversity, entitled ‘cultural heritage as the wellspring of creativity’, where it is stated that: ‘creation draws on the roots of cultural tradition, but flourishes in contact with other cultures. For this reason, heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures.’41 It is also fully recognized in Article 4 of the Cultural Diversity Convention, which stipulates that the varied ways in which the cultural heritage of humanity is expressed constitutes one of the manifestations of cultural diversity. The influence that the diverse manifestations of cultural heritage covered under the above-​mentioned conventions and other international instruments have already had or might have in the future in the interpretation and application of the notion of ‘cultural heritage’ under the 1972 Convention should neither be underestimated nor exaggerated. It should not be underestimated because it has already contributed, and will continue to contribute, to the evolutive interpretation of the Convention by the Committee as well as to the adaptation of its application to new realities and developments related to the understanding of world heritage. At the same time, such influence should not be exaggerated in view of the limitations imposed by the scope and objectives of the 1972 Convention, and the context within which the notion of ‘cultural heritage’ is utilized in the Convention.

V.  Authenticity and Integrity as Testimony to the Value of ‘Cultural Heritage’ In accordance with the Guidelines, the three categories of cultural heritage specified in the Convention (monuments, groups of buildings, and sites) must have not only outstanding universal value, but must also meet the test of authenticity in order to qualify for the List. The concept of authenticity is therefore relevant for the definition and scope of the notion of cultural heritage in the sense of the Convention insofar as it constitutes a testimony to the genuine expression of values in the relevant culture. The concept was first affirmed in the 1964 Venice Charter, which stressed in its Preamble ‘the common responsibility to safeguard the historic monuments in the full richness of their authenticity’.42 It was originally associated with European conservation principles and practice, but now appears to have been universally embraced, as stated in the Nara Document, ‘as an essential qualifying factor concerning values’ of cultural heritage.43 But the Nara Document also acknowledges the variability of the interpretation and application of the concept, when it states that ‘all judgements about values attributed to heritage as well as the credibility of related information sources may differ from culture to culture, and even within the same culture. It is thus not possible to base judgements of value and authenticity on fixed criteria.’44 Indeed, according to Munjeri, in the application of the test of authenticity, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of the present and future generations.   For the text, see https://​www.une​sco.org/​en/​legal-​affa​irs/​legal-​texts-​about.   ‘International Charter for the Conservation and Restoration of Monuments and Sites’, approved by the 2nd International Congress of Architects and Technicians of Historic Monuments, which met in Venice, 25–​ 31 May 1964. The text is available at https://​www.ico​mos.org/​en/​par​tici​per/​179-​artic​les-​en-​franc​ais/​res​sour​ ces/​chart​ers-​and-​standa​rds/​157-​theven​ice-​char​ter. 43 44   Para. 10 of Nara Document on Authenticity (note 39).   ibid, para. 11. 41 42

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‘the hard facts and scientific approach of the Western society needed to be tempered with the abstract and metaphysical notions of African traditions. For Africa, sometimes, the spirit of the site took precedence over substance.’45 Similarly, Charoenwongsa raises the following question with respect to possible differences in appreciation of authenticity in different cultures: Incomplete Buddha images or torso-​less Buddha heads on display in museums are conceptually ‘authentic’ to the eyes of a Westerner—​in his Western style of presentation—​but to a local Thai, it is an item for reverence, not a ‘museum object’, which demands to be completed physically, the sooner the better. What does then the true concept of authenticity side with—​the spiritual concept of art to a Thai, or the representational concept of art to a Westerner?46

The Nara Conference on Authenticity, held in November 1994 to explore its meaning and scope of application in the context of the Convention, recognized that the concept should not be limited to the four aspects (material, design, workmanship, and setting) described in the Guidelines, but should also include such other aspects as use and function, traditions and techniques, spirit and feeling, and other internal and external factors.47 It also recognized that: conservation of cultural heritage in all its forms and historical periods is rooted in the values attributed to the heritage. Our ability to understand these values depends, in part, on the degree to which information sources about these values may be understood as credible or truthful. Knowledge and understanding of these sources of information, in relation to original and subsequent characteristics of the cultural heritage, and their meaning, is a requisite basis for assessing all aspects of authenticity.48

Authenticity therefore plays a fundamental role in the inscription procedures used for the Convention to ensure that a cultural heritage site nominated to the List is genuine; that is, it fully corresponds to what it is claimed to be, as opposed to being a copy or replica of the original. The Nara Document, as well as expert analysis carried out over the past 20 years on different categories of heritage elements, has led to a broader interpretation of authenticity which allows for evolutionary processes and sociocultural change. The issue of reconstructions and other major interventions was also dealt with in the 2005 revision of the Guidelines which now state that: ‘in relation to authenticity, the reconstruction of archaeological remains or historic buildings or districts is justifiable only in exceptional circumstances. Reconstruction is acceptable only on the basis of complete and detailed documentation and to no extent on conjecture.’49 The 2021 Guidelines also provide that all properties nominated for inclusion in the List, be they natural or cultural, have to satisfy the condition of integrity.50 For cultural

45   D. Munjeri, ‘Integrity and or Authenticity—​an Issue of Universal Value: The Case in Africa’ in B. Von Droste, M. Rössler, and S. Titchen (eds) Linking Nature and Culture, Report of the Global Strategy Natural and Cultural Heritage Expert Meeting, 25–​29 March 1998, Amsterdam, the Netherlands, p. 64. 46   P. Charoenwongsa, ‘Authenticity: Does it Really Matter Much?’, in K. E. Larsen (ed.) Nara Conference on Authenticity—​Proceedings (ICOMOS, 1995) p. 289. 47 48   Para. 13 of Nara Document on Authenticity (note 39).   ibid, para. 9. 49   Operational Guidelines (2021), para. 86. 50   Integrity is defined in the Guidelines (2021) as follows:

Integrity is a measure of the wholeness and intactness of the natural and/​or cultural heritage and its attributes. Examining the conditions of integrity, therefore, requires assessing the extent to which the property:

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heritage, this implies that the ‘physical fabric of the property and/​or its significant features should be in good condition, and the impact of deterioration processes controlled. A significant proportion of the elements necessary to convey the totality of the value conveyed by the property should be included. Relationships and dynamic functions present in cultural landscapes, historic towns or other living properties essential to their distinctive character should be maintained.’51 Integrity is not as necessary a quality for cultural heritage as it is for natural heritage. Nevertheless, it constitutes an essential characterization of certain values that a cultural property should possess. However, application of the conditions of integrity to cultural properties needs to be developed if the requirements specified in the Guidelines are to be properly complied with.52

VI.  The Link between Cultural and Natural Heritage in the Convention The idea of bringing natural and cultural heritage together in a single convention appears to have had widespread support in 1972, but it did not clearly extend to their integrated treatment. The juxtaposition of cultural and natural heritage in the text created the opportunity for exploring the complementarities and interactions between the two types of heritage. The Convention clearly establishes the diversity of the two categories of heritage, but it also provides substantive concepts and procedural mechanisms aimed at forging closer links between the two in the context of its implementation. Thus, Article 1 of the Convention, in defining sites, refers inter alia to ‘the combined works of nature and man’ which are of outstanding universal value. It is on the basis of this provision that the Committee decided in 1992 to recognize three categories of cultural landscapes for inscription in the List as ‘manifestations of the interaction between humankind and its natural environment’ under the cultural heritage definition of the Convention. The three categories are: clearly defined landscapes designed and created intentionally by humans, organically evolved landscape, and associative cultural landscape.53 Prior to that, the Committee had inscribed a number of mixed sites in the List on the basis of natural heritage criteria (ii) and (iii) which respectively referred to ‘man’s interaction with his natural environment’ and to ‘the combined works of nature and man’. However, these references were found to be inconsistent with the Convention’s definition of natural heritage and removed in 1992 from the natural heritage criteria for inscription in the List.

a)  includes all elements necessary to express its outstanding universal value; b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance; c)  suffers from adverse effects of development and/​or neglect. (Para. 88.) 51   Para. 89. 52   It is indicated in an annotation to para. 89 of the Guidelines (2021) that examples of such application are under development. 53   For a detailed description of the three categories of landscapes, see M. Rössler, ‘Linking Nature and Culture: World Heritage Cultural Landscapes’ in ‘Cultural Landscapes: The Challenges of Conservation’, World Heritage Papers, Series No. 7 (2002) p. 11. See http://​whc.une​sco.org/​docume​nts/​publi_​wh_​p​aper​s_​07​ _​en.pdf. See also para. 47bis of the Guidelines.

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These decisions of the Committee did not weaken the link between cultural and natural heritage, but appear to have highlighted such a link through the recognition of human impact (both tangible and intangible) on primarily natural sites, on the one hand, and the acknowledgement, on the other hand, of the importance of natural values in some cultural sites. They have also provided an impulse to the establishment of unified, but distinct, criteria for the inscription of a site in the List in terms of its outstanding universal value, whether or not such values are natural, cultural, or a mixture of both.54 As a result, a nominated site might become eligible for inscription in the List on the basis of criteria associated with outstanding universal value of both cultural and natural character. It should, however, be noted that landscapes, though serving as a fundamental element of the link between cultural and natural heritage, are basically inscribed in the List under the cultural criteria and are therefore considered to fall under the cultural heritage category, albeit with natural heritage values.

VII.  Concluding Remarks The analysis of the notion of ‘cultural heritage’ in this chapter started with a particular focus on the definitional elements of ‘cultural heritage’ as contained in Article 1 of the Convention. It has, however, emerged in the course of this analysis that it is the quality possessed or the value attached to such definitional elements, in other words their outstanding universal value, rather than the elements themselves, that constitutes the keystone of the notion of ‘cultural heritage’ in the 1972 Convention. It is on the basis of outstanding universal value that the Committee determines whether a property is to be included in the List, and consequently protected as ‘cultural heritage’ under the 1972 Convention. Outstanding universal value is also what distinguishes the 1972 Convention from other conventions dealing with cultural heritage. It is equally the engine that has, over the years, driven the evolution of the notion of ‘cultural heritage’ in the Convention. If the notion of ‘cultural heritage’ in the 1972 Convention has expanded in the past 30 years, it is mainly due to the evolution of our understanding of what constitutes outstanding universal value and of the criteria established by the Committee for its application. It may therefore be concluded that while the definitional elements of ‘cultural heritage’ specified in Article 1 of the Convention may constitute the basic building blocks, the glue that holds everything together and determines, in the final analysis, whether a property is considered as part of ‘cultural heritage’ in the 1972 Convention is its possession of outstanding universal value. Consequently, it is the select subset of immovable ‘cultural heritage’ possessing outstanding universal value, as described in the criteria elaborated for this purpose by the Committee, that ultimately qualifies as ‘cultural heritage’ under the 1972 Convention. Other categories of ‘cultural heritage’ are covered by UNESCO instruments and conventions that have had a clear impact on the interpretation and application of the 1972 Convention, although an integrated approach to the notion of ‘cultural heritage’ still remains to be explicitly defined at the international level.

  See para. 77 of the Guidelines (2021), where ten criteria are foreseen for cultural and natural heritage.

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Article 1: Cultural Landscapes Amy Strecker*

I. Introduction  II. The Etymology and Concept of Landscape  III. Genesis and Development of World Heritage Cultural Landscapes  IV. Cultural Landscapes: Typology and Representativeness of the List  V. Conclusion 

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I. Introduction In 1992, the scope of Article 1 was broadened to include the category of Cultural Landscapes within the Convention for the Protection of the World Natural and Cultural Heritage (hereinafter World Heritage Convention).1 Cultural Landscapes were defined as ‘cultural properties representing the combined works of nature and of man’, ‘illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/​or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal’.2 Three types of Cultural Landscapes were included within the revised Operational Guidelines: clearly defined landscapes designed and created intentionally (such as gardens and parklands); organically evolved landscapes, which were subdivided into (a) relict or fossil landscapes, and (b) continuing landscapes which retain an active social role in contemporary society; and, lastly, associative cultural landscapes, with definable powerful, religious, artistic, or cultural associations with the natural element rather than material cultural evidence.3 This chapter charts the origins and development of Cultural Landscapes within the World Heritage Convention from 1992 to the present day. It begins by outlining the etymological origins of landscape, before moving on to discuss the genesis and rationale behind the creation of the new category. This is followed by an analysis of the typology, geographical spread, and issues of concern surrounding World Heritage Cultural Landscapes since their inception. Finally, the last section assesses whether cultural landscapes have succeeded in bridging the nature–​culture divide and making the World Heritage List more credible and representative.

* This research has received funding from the European Research Council (ERC), under the EU’s Horizon2020 research and innovation programme, grant agreement no. 853514. 1   Decision 16COM XIII, pp. 1–​3. 2   UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (1994), available at (last accessed 31 January 2022). 3   Decision 16COM XIII, pp. 1–​3.

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II.  The Etymology and Concept of Landscape The term landscape itself combines ‘land’ with a word of ancient Germanic origin, the verb ‘scapjan’, which according to Wolfgang Haber means to be busy, to work, to do something creative.4 In this understanding, landscape meant a sheaf, a piece of cultivated ground, something small scale that corresponded to a peasant’s perception.5 During the evolution of Germanic languages, ‘scapjan’ became ‘schaffen’ (to shape) in German. Kenneth Olwig has conducted extensive research into the early origins of landscape. In his seminal paper, ‘Recovering the Substantive Nature of Landscape’, Olwig argues that Landschaft in fact contained meanings of great significance for the construction of personal, political, and place identity at the time it entered the English landscape.6 Notably, Olwig emphasizes the elements of territory and community, community justice, body politic, and custom as inherently embedded in early landscape (or the Norse conception of landskapr),7 which represented a more substantive understanding of landscape than the scenic conceptualization that later emerged. This early meaning also has parallels in the Latin etymology of landscape (paesaggio, paysage, paisaje), which contains two parts: pagus and ager. Pagus is the peasant’s village and ager is the field the population of the village is cultivating. However, during the Renaissance with the rise of the territorial state, the concept of landscape as land and local custom became increasingly subverted in favour of a more scenic conception. Olwig has shown how the concept of landscape developed from its early connotation of an area belonging to and shaped by a people, to its Renaissance application, meaning such an area depicted in painting.8 The term came to be associated increasingly with the painting of natural scenery, or a painting of rural surroundings as an idealized picture of nature. At one point, notes Michael Jones, the words ‘landscape’ and ‘nature’ became almost synonymous.9 Landscape became the focus of ecology and other natural sciences at the beginning of the nineteenth century. It was the German geographer and biologist Alexander von Humboldt who coined the scientific definition of landscape as a ‘total character of a region of the earth’.10 The term ‘landscape ecology’ was employed in 1939 by Carl Troll, another German scholar, who conceived a mosaic-​like composition of the landscape and insisted on its anthropogenic components.11 As Simon Schama points out, ‘even the landscapes that we suppose to be most free of our culture may turn out, on closer inspection, to be its product’.12 The term ‘cultural landscape’ was first employed in 1925 by cultural geographer Carl Sauer. In ‘The Morphology of Landscape’, Sauer maintained that ‘cultural landscape is fashioned from a natural landscape by a cultural group. Culture is the agent, the natural area the medium, the cultural landscape the result.’13 Sauer and the 4  Wolfgang Haber, ‘Concept, Origin and Meaning of “Landscape” ’, in Bernd von Droste et al. (eds) Cultural Landscapes of Universal Value (Gustav Fischer Verlag with UNESCO, 1995) pp. 38–​42. 5  ibid. 6   Kenneth Olwig, ‘Recovering the Substantive Nature of Landscape’ (1996) 86 Annals of the Association of American Geographers 630–​653. 7  ibid. 8   Kenneth Olwig, Landscape, Nature and the Body Politic: From Britain’s Renaissance to America’s New World (University of Wisconsin Press, Madison, 2002). 9  Michael Jones, ‘The Elusive Reality of Landscape. Concept and Approaches in Landscape Research’ (1991) 45 Norsk Geografisk Tidsskrift 229–​244. 10 11   See Haber (note 4) p. 39.  ibid. 12   Simon Schama, Landscape and Memory (Harper Collins, New York, 1995) 9. 13   Carl Sauer, The Morphology of Landscape (Berkley University Press, Berkeley, 1925) 46.

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Berkely school influenced other scholars such as landscape historian and theorist John B. Jackson, whose conception of landscape was deeply humanistic. Jackson believed that landscapes ought to be protected not for aesthetic reasons, but in order to understand, experience, and appreciate landscapes in living terms.14 As a physical category, cultural landscape is difficult to delimit, since all landscapes are bearers of culture.15 However, the idea of cultural landscape can be seen as an antithesis to an idealized form of untouched nature.

III.  Genesis and Development of World Heritage Cultural Landscapes Although the World Heritage Convention was innovative for its time, providing for the protection of both natural and cultural sites, selection criteria were nevertheless separated into natural and cultural heritage at the time of drafting. Nature conservationists believed that the less human interference there had been in a given area, the more authentic it was.16 Landscape was not included in the original text of the Convention, but made its way into the scope of Articles 1 and 2 via the Operational Guidelines for the Implementation of the World Heritage Convention. Initially conceived as natural heritage (as examples of ‘the interaction between man and his environment, terraced agricultural landscapes’ and as ‘exceptional combinations of natural and cultural elements’)17 and cultural heritage (in relation to garden and landscape design),18 a new paragraph was introduced in the 1980 Operational Guidelines emphasizing the importance of sites with a combination of natural and cultural features,19 and the reference to ‘terraced agricultural landscapes’ was removed from the list of natural criteria, returning in 1984 when the issue of mixed natural/​cultural sites and rural landscapes was raised by the Rapporteur, reference being made to ‘exceptionally harmonious, beautiful, man-​made landscapes as epitomized by the terraced rice fields of South East Asia, the terraced fields of the Mediterranean basin, or by certain vineyard areas in Europe’.20 The Rapporteur maintained that criterion (iii) for natural properties would need to be expanded to facilitate the identification of such sites because the Operational Guidelines did not give sufficient guidance to States Parties concerning such mixed properties. The Rapporteur suggested that an Expert Meeting be called by the International Union for the Conservation of Nature (IUCN) and the International Council of Monuments and Sites (ICOMOS), including geographers, to elaborate a working framework for the identification and nomination of mixed cultural/​ natural properties.21 The taskforce met for the first time in 1985 and agreed that provision ought to be made for situations where the two were combined.22 As noted by Kathyrn Last, rural landscapes in particular ‘highlighted the fact that there were few   John Brinkerhoff Jackson, Discovering the Vernacular Landscape (Yale University Press, New Haven, 1986).  See Michael Jones, ‘The Elusive Reality of Landscape’, in J. M. Fladmark, Heritage: Conservation, Interpretation, Enterprise (Donhead, Shaftesbury, 1993) 18. 16   Peter Fowler, Landscapes for the World (Windgather Press, Oxford, 2004) 4. 17   Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. CC-​77/​CONF.001/​8 Rev., 1977, para. 10 (ii). 18   ibid, para. 7(ii). 19   As the combination of natural and cultural sites. Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. WHC/​2 Rev, 1980, para. 13. 20 21   UNESCO Doc. SC/​84/​CONF.004/​9, 1984, para. 21.   ibid, para. 22 22   UNESCO Doc. SC/​85/​CONF.008/​3, 1985, para. 3.2. 14 15

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natural sites unmodified by man in the strict sense of the Convention. In such sites the cultural and natural elements were combined and neither culture nor nature predominated.’23 Nevertheless, most landscapes in subsequent years were inscribed under natural criteria rather than mixed sites, reflecting the assumption that natural heritage was (or should be) pristine, without the influence of humanity. In several cases, the inscription of landscapes under natural criteria excluded the recognition of people who for generations called these landscapes home, in essence continuing the nineteenth-​century concern over loss of ‘wilderness’ and the false premise that landscapes are untouched or pristine, when in fact most landscapes are the result of gradual human interaction with the environment over millennia.24 In February 1992, a workshop on World Heritage was held as part of the Fourth IUCN Congress on World Parks and Protected Areas in Caracas, Venezuela.25 Participants at the workshop decided that the criteria for natural heritage were ‘not sufficiently precise to enable a rigorous evaluation of nominated sites’ and that references to ‘man’s interaction with nature’ (criterion (ii)) and ‘exceptional combinations of natural and cultural elements’ (criterion (iii)) were inconsistent with the legal definition of natural heritage in Article 2 of the Convention.26 They recommended that natural criteria be revised to remove these references, that landscapes be included within the cultural heritage section of the Convention, and that a working group be established to elaborate a procedure for such evaluations.27 Later that same year, in October 1992, an Expert Meeting on cultural landscapes was held in La Petit Pierre, France, to study the criteria necessary for the inclusion of cultural landscapes on the World Heritage List and to prepare recommendations for submission to the Committee.28 The meeting represented a culmination of discussions extending over a decade within the World Heritage Committee, the Secretariat, States Parties, and the Advisory Bodies on the relationship between natural and cultural heritage. The outcome of the meeting (and the categories of cultural landscapes that ensued) was largely the influence of a small group of individuals comprising 11 members from eight countries, with disciplinary backgrounds of archaeology, landscape architecture, history, and landscape ecology.29 The proposals of the Expert Meeting were adopted at the 16th session of the World Heritage Committee and subsequently included in the Operational Guidelines for the purposes of defining cultural heritage within the scope of Article 1.30 Three categories of Cultural Landscapes were incorporated into the revised Operational Guidelines: (i) clearly defined landscapes designed and created intentionally by man. This embraces garden and parkland landscapes characteristically constructed for aesthetic, social, 23   Kathryn Last, ‘Article 1. Cultural Landscapes’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 UNESCO World Heritage Convention. A Commentary (Oxford University Press, Oxford, 2008) pp. 51 ff. 24   Amy Strecker, Landscape Protection in International Law (Oxford University Press, Oxford, 2018) p. 25. 25  IUCN, ‘Parks for Life, Report of the IVth World Congress on Parks and Protected Areas’ (10–​21 February 1992) pp. 108–​110, available at https://​port​als.iucn.org/​libr​ary/​sites/​libr​ary/​files/​docume​nts/​1993-​ 007.pdf (last accessed 31 January 2022). 26 27   ibid, p. 108.   ibid, p. 110. 28   Report of the Expert Group on Cultural Landscapes (La Petit Pierre, France, 24–​26 October 1992), Doc. WHC-​92/​CONF.202/​10Add. See also, on the genesis of the concept within the World Heritage Convention, Mechtild Rossler, ‘UNESCO and Cultural Landscape Protection’, in von Droste et al. (note 4). 29  Steve Brown, ‘World Heritage and Cultural Landscapes: An Account of the 1992 La Petite Pierre Meeting’ (2018) 11(1) Heritage & Society 19–​43. 30   Decision 16COM XIII, pp. 1–​3.

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and recreational reasons which are often but not always associated with religious or other monumental buildings and ensembles; (ii) organically evolved landscapes resulting from an initial social, economic, administrative, and/​or religious imperative and that have developed their present form by association with and in response to the natural environment. Such landscapes reflect that process of evolution in their form and component features. They fall into two sub-​categories: —​ relict (or fossil) landscapes in which an evolutionary process came to an end at some time in the past, either abruptly or over a period. Their significant distinguishing features are, however, still visible in material form; —​ continuing landscapes which retain an active social role in contemporary society closely associated with a traditional way of life. They are continuing to evolve while, at the same time, exhibit significant material evidence of their historic evolution; (iii) associative cultural landscapes with definable powerful, religious, artistic, or cultural associations with the natural element rather than material cultural evidence, which may be insignificant or even absent.31 The disciplinary backgrounds of the members at the meeting are reflected in the categories. The garden and parkland category was the most recognized by the International Federation of Landscape Architects (IFLA) representatives and the representative from English Heritage.32 The category of relict (or fossil) landscapes was unsurprisingly driven by the archaeologists at the meeting, whereas for the continuing landscapes category, there was some discussion over the use of the term ‘continuing’ as opposed to ‘living landscape’, with one participant at the meeting emphasizing ‘the need to accommodate cultural continuity, ongoing cultural processes, and living traditions across all cultural records’.33 The final category, associative cultural landscape, was driven by the same Australian representative and archaeologist who emphasized the living traditions across all cultural records. Isabel McBryde expanded the original meaning to include heritage places that ‘belonged to, or were created by, their indigenous societies’, referencing in particular the first peoples of settler societies such as Australia, New Zealand, the US, and Canada.34 The categories of continuing and associative landscapes were particularly significant because they gave recognition to traditional land use, customary practices, and sacred belief systems, thereby emphasizing the relational aspects of these places and their importance for the cultural identity of communities. This was all the more important considering the spatial injustice brought about by ‘natural’ heritage nominations of well-​known heritage sites in Australia and New Zealand, most notably Uluru and Tongariro National Park, which had excluded the indigenous Aboriginal and Maori people from participating in the management of their landscapes. Tongariro National Park had been inscribed under natural criteria from 1990 before it was known that the ‘natural’ environment was not only the homeland of a community but also that the natural features were imbued with 31   Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. WHC/​2 Rev, 1994, paras 35–​42. 32   Brown (note 29) p. 32. 33  Isabel McBryde, ‘Reflections on the Development of the Associative Cultural Landscapes Concept’ (2014) 26(1) Historic Environment 14–​32 at 21. 34  ibid.

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great importance for their culture. Tongariro was re-​inscribed as an associative landscape in 1993 to mark the fundamental role the landscape played in the oral tradition and cultural identity of the Maori people.35 According to Chief of the Ngati Tuwharetoa: ‘these sacred mountains are to be owned by no-​one and yet are for everyone’.36 Likewise, Uluru and its surrounding landscape had initially been inscribed on the World Heritage List as a natural site in 1987, but was re-​inscribed in 1994 as an associative cultural landscape in recognition of the close cultural links between the Uluru landscape and the Anangu people.37 As stated in the renomination dossier: ‘The significance of the landscape is not measured only by individual locations . . . they are interconnected by the iwara (tracks) of the heroic beings active during the Tjukurpa (the Law).’38 The Law defines all aspects of the relationship between people and the land and between people themselves. It establishes an all-​encompassing series of laws that bind people, the landscape, the animals, and plants into one interconnected world.39 Many of the striking rock features of Uluru ‘are the transformed bodies or implements of the creative heroes of the Anangu religion. The conservation and management of the Uluru Kata Tjuta National Park are guided by Anangu law and involve for example, the spacing of groups more evenly across the landscape ensuring that overexploitation of particular wild foods does not occur.’40 Aside from the recognition of intangible values and the spiritual relationship between local communities and nature, the cultural landscapes category acknowledged that sites are not isolated islands, but have to be seen in the ecological system and their cultural linkages in time and space beyond single monuments and strict nature reserves. Cultural landscapes also highlighted the importance of unique land-​use systems and the continued work of people over centuries and sometimes millennia to adapt to the natural environment.41 Six weeks after the meeting on Cultural Landscapes, the revised criteria were adopted by the World Heritage Committee at its 16th session in Santa Fe.42 However, it was agreed that Cultural Landscapes—​seen at the time as a solution for bridging the nature–​ culture divide in the Convention—​would be assessed as a form of cultural heritage only. Unbeknownst to (or overlooked by) the Expert Group, natural criterion (ii), which contained reference to ‘man’s interaction with its natural environment’ and natural criterion (iii), which contained reference to ‘exceptional combination of natural and cultural elements’, were removed following the recommendations of the Caracas workshop recommendations.43 According to Sarah Titchen, these changes to the natural criteria were not foreseen when the Petit Perre recommendations were formulated.44 The participants at the meeting only worked on the cultural criteria, because of the already existing references in natural criteria (ii) and (iii). According to Steve Brown, this essentially signified one step forward (recognition of cultural landscapes) and one step back (constriction of   Decision CONF 002 XI.   Chief of the Ngati Tuwharetoa, as quoted by Fowler (note 16) p. 33. 37 38 39   Decision CONF 003 XI.   Fowler (note 16) p. 34.   ibid, 34. 40   Sophie Boukhari, ‘Beyond the Monuments: A Living Heritage’ (June 1996) 80 UNESCO Sources 9. 41   Mechtild Rössler, ‘World Heritage—​Linking Cultural and Biological Diversity’, Paper for the Seventh US/​ICOMOS Symposium: Learning from World Heritage, Natchitoches, Louisiana, 25–​27 March 2004. 42 43   Decision 16COM XIII, pp. 1–​3.   Brown (note 29) p. 36. 44   Sarah Titchen, ‘Extending the Limits of the World Heritage List: Towards the Identification, Assessment and Conservation of Cultural Landscapes of Outstanding Universal Value’, in S. Titchen (ed.) Indigenous Cultural Landscapes and World Heritage Listing (Australian Heritage Commission, 1995) pp. 13–​50. However, one of the representatives present at the meeting in La Petite Pierre was also in attendance at the Caracas meeting. See Brown (note 29) p. 28. 35 36

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natural criteria to pre-​nature) thereby exacerbating the culture–​nature dichotomy in the Convention’s framework, a development which still has consequences to this day.45

IV.  Cultural Landscapes: Typology and Representativeness of the List Since the inclusion of Cultural Landscapes within the scope of Article 1 in 1992, a total of 119 such landscapes have been inscribed on the World Heritage List, including six transboundary landscapes. However, many sites inscribed prior to 1992 would classify as cultural landscapes, even if not described as such. Peter Fowler notes that prior to 2002, over 100 cultural landscapes had been inscribed on the List, yet only 30 of these were in the Cultural Landscapes category.46 Another study carried out in 2007 revealed that over 360 sites on the World Heritage List could be described as a landscape complex.47 Archaeological landscapes such as Stonehenge and Avebury—​as relict or fossil landscapes—​or garden and park landscapes such as Versailles would be clear examples. In addition, many ‘properties’ that have been inscribed on the World heritage List under natural criteria could easily be articulated as Cultural Landscape nominations. The first fact worth noting is that of the 119 sites inscribed as cultural landscapes, only ten of those are classified as mixed sites.48 More than half of these cultural landscapes can be found in Europe and North America (62), followed by Asia and the Pacific (23), Africa (14), Arab states (nine), and Latin America and the Caribbean (11). A common thread of Cultural Landscapes is that most of them bear a toponym in their nomination title (valley, mountain, hill, archipelago, grove) or demarcated unit (region, park, settlement). However, cultural routes also feature, even though they do not represent a defined topographical area or spatial complex per se. It is difficult to separate Cultural Landscapes into the three categories originally conceived in the Operational Guidelines because many landscapes share multiple typologies, and the selection criteria for ascertaining the outstanding universal value of landscapes have since been incorporated into a set of ten criteria for all World Heritage nominations.49 However, the most represented form of Cultural Landscapes on the List is the second category, that is, organically evolved cultural landscapes, which can be split into relict (or fossil) landscapes and continuing landscapes. The former are ancient cultural landscapes that emerged in the prehistoric or historic period, but which were later abandoned by humans, or which are no longer used for the original purpose. Their material evidence is represented in the archaeological remains or ruins in   Brown, ibid, p. 36.   Peter Fowler, ‘World Heritage Cultural Landscapes 1992–​2002’, World Heritage Papers 6 (UNESCO World Heritage Centre, 2003) p. 140. 47   Marina Kuleshova, ‘Cultural Landscapes in the World Heritage List’, Paper presented at the Regional Seminar for CIS Countries ‘Safeguarding the World Heritage in the Context of New Global Challenges’, 1–​3 March 2011, Moscow. 48  These are: Uluru (Australia), Paraty and Ilha Grande (Brazil), Pimachiowin Aki (Canada), Ennedi Massif: Natural and Cultural Landscape (Chad), Pyrénées—​Mont Perdu (France/​Spain), Ecosystem and Relict Cultural Landscape of Lopé-​Okanda (Gabon), Tongariro National Park (New Zealand), St Kilda (UK), Papahānaumokuākea (US), and Trang An Landscape Complex (Thailand). 49   Until the end of 2004, World Heritage sites were selected based on six cultural and four natural criteria. The Operational Guidelines were revised to include one set of ten criteria in an attempt to integrate both cultural and natural sites in one list. See UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. WHC.05/​2 Rev, 2005, Annex 3, para. 6. 45 46

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the landscape. The continuing landscape, however, continues to function and evolve over time. Broadly speaking, the category of organically evolved cultural landscapes includes agricultural landscapes, industrial landscapes, historical townscapes, historic memorial landscapes, and sacred landscapes. For the most part, particularly in the case of agricultural landscapes inscribed on the List, they are supposed to illustrate a harmonious interaction between humans and the environment over time, such as the Rice Terraces of the Philippine Cordilleras or the Cinque Terre.50 However, mining landscapes are increasingly being inscribed on the World Heritage List.51 The next most represented category of Cultural Landscape is the associative cultural landscape, represented in criterion (vi) of the ten selection criteria, according to which a landscape must be ‘directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance’. It must be noted that this criterion is for the most part not considered in isolation but combined with other criteria in assessing the outstanding universal value of a landscape for inscription. Of the 35 landscapes inscribed under the ‘associative’ criterion, the majority (28) are located outside Europe—​in Asia and the Pacific, Africa, and Central America. The majority of these represent sacred landscapes, for example in the form of sacred mountains (China, Japan, Kyrgyzstan),52 sacred hills (Madagascar, Zimbabwe),53 sacred forests (Kenya),54 and sacred groves (Nigeria).55 Associative landscapes in Europe include the Val d’Orcia, an example of an idealized Renaissance agricultural landscape,56 and the Ϸingvelli National Park in Iceland, a landscape with historic and literary associations as the seat of Norse governance from 930 until the eighteenth century, celebrated in medieval Icelandic sagas.57 The remaining category of cultural landscapes, that is, clearly defined landscapes designed and intentionally created by man, is the least represented on the official list of cultural landscapes, all of which are located in Europe. This category covers garden and parkland landscapes, with a strong emphasis on aesthetics, often associated with building ensembles.58 The Operational Guidelines refer to the great variety of landscapes representative of the different regions of the world.59 However, the problems of geographical cover and under-​ representation have tainted the World Heritage Convention since its inception. There was, and still is, a preponderance of categories of cultural items that essentially pertain to European history, archaeological sites, and Christian monuments, neglecting traditional 50   Decision 19COM VIIIC.1—​Inscription: The Rice Terraces of the Philippine Cordilleras (Philippines); Decision 21COM VIIIC—​Inscription: Portovenere, Cinque Terre, and the Islands (Palmaria, Tino, and Tinetto) (Italy). 51  Recent examples include Roşia Montaňa (Romania) inscribed in 2021 and Erzgebirge/​Krušnohoří (Germany/​Czech Republic) inscribed in 2019. See Decisions 44COM 8B.26 and 43COM 8B.26 respectively. 52  Mount Wutai Sacred Buddhist Mountain (China), Decision 33COM 8B.7; Sacred Sites of the Kii Mountain Range (Japan), Decision 28COM 14B.28; and the Salaimon-​Too Sacred Mountain (Kyrgystan), Decision 33COM 8B.16. 53   Royal Hill of Ambohimanga (Madagascar), Decision 25COM XA; Matobo Hills (Zimbabwe), Decision 27COM 8C.38. 54   Sacred MijiKenda Kaya Forests (Kenya), Decision 32COM 8B.50. 55   Osun-​Osogbo Sacred Grove, Decision 29COM 8B.23. 56   Val d’Orcia (Italy), Decision 28COM 14B.51. 57   Ϸingvelli National Park (Iceland), Decision 28COM 14B.41. 58   Example of such landscapes includes Sintra in Portugal, Decision 19COM VIIIC.1; the Royal Botanic Gardens in the UK, Decision 27COM 8C.32; and the Garden Kingdom of Dessau-​Worlitz in Germany, Decision 24COMXC.1. 59   Operational Guidelines, Doc. WHC 16/​01, para. 47 and Annex 3.

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cultures and living heritage.60 Cultural Landscapes were proffered by UNESCO as a vehicle that would help to remedy this imbalance.61 In 1994, the World Heritage Committee adopted a Global Strategy for a more representative list at its 18th session.62 The strategy aimed to encourage more under-​represented countries to become States Parties to the Convention and develop Tentative Lists. Since then, World Heritage nominations are not considered unless previously inscribed on the Tentative List by a State Party.63 The problem with the imbalance of the List is, as admitted by UNESO, both structural and qualitative: structural in relation to the nomination process, and the management and protection of sites, and qualitative, referring to the way in which sites are identified, assessed, and evaluated.64 Yet there is a tension in the desire for more traditional heritage and living culture, while at the same time requiring a landscape to be of Outstanding Universal Value. Fowler, for example, states that the Cultural Landscape concept is not the opposite of an area or structure that is thought to be of only local interest, as every landscape has its locally significant features and finds validity as a local place, but that a potential World Heritage site must satisfy the criterion of being ‘outstanding’ insofar as it must have a demonstrable quality over and above the merits of something of only local heritage interest.65 Yet this is arguably contrary to a substantive understanding of landscape (a substantive understanding of landscape is more concerned with social law and justice than with natural law and aesthetics).66 This tension became evident in the lead-​up to the indigenous-​led nomination of Pimachiowin Aki (‘The Land that Gives Life’) as a mixed cultural and natural World Heritage site (Canada), detailed by Irene Fogarty.67 The inscription process began in 2002 when four First Nations agreed on shared stewardship to protect their ancestral lands from incursions by extractive industries being facilitated by Canadian authorities.68 As noted by Fogarty, when the site was first evaluated, ICOMOS judged the relationship between the Anishinaabeg and their landscape as no more exceptional than other First Nations,69 but the Anishinaabeg did not want their relationship to the land to be viewed as exceptional or outstanding, as they believed this to be disrespectful to other First Nations.70 Fogarty points out that this value judgement was based on a ‘Eurocentric conceptualisation of exceptionality that involved the positioning of Indigenous peoples 60   Herb Stovel, ‘The Evaluation of Cultural Properties for the World Heritage List’ (1992) 28(3) Nature and Resources 30; Henry Cleere, ‘The Uneasy Bedfellows: Universality and Cultural Heritage’, in Robert Layton, Julian Thomas, and Peter G. Stone (eds) Destruction and Conservation of Cultural Property (Routledge, Abingdon, 2001) pp. 22, 26. 61   Sophie Bukhari, ‘Beyond the Monuments: A Living Heritage’ (June 1996) 80 UNESCO Sources 7. 62   Report of the Meeting on the Global Strategy and Thematic Studies for a Representative World Heritage List, 20–​22 June 1994, UNESCO Doc. WHC-​94/​CONF.003/​INF.6. 63   Operational Guidelines, Doc. WHC.08/​01, January 2008, paras 62–​63. 64   UNESCO, Global Strategy, available at (last accessed 31 January 2022). 65  Fowler, Landscapes for the World (note 16) p. 1. 66   Kenneth Olwig, ‘Recovering the Substantive Nature of Landscape’ (note 6). 67  Irene Fogarty, ‘Coloniality, Natural World Heritage and Indigenous Peoples: A Critical Analysis of World Heritage Cultural Governance’, in Marie-​Theres Albert and Claire Cave (eds) 50 Years World Heritage Convention: Shared Responsibility—​Conflict and Reconciliation (Springer, Berlin, 2022). 68  ibid. 69   ibid, p. 49. See also ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties. ICOMOS report for the World Heritage Committee, 37th ordinary session, Phnom Penh, June 2013, Doc. WHC-​13/​ 37.COM/​INF.8B1, p. 39. 70   Fogarty (note 67) p. 49.

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against one another’ and that, ironically, this deviated from the Operational Guidelines themselves, which have long stated that ‘[j]‌udgments about value attributed to cultural heritage ... may differ from culture to culture, and even within the same culture. The respect due to all cultures requires that cultural heritage must be considered and judged primarily within the cultural contexts to which it belongs.’71 At the time, ICOMOS noted the limitations of the criteria in inscribing sites such as Pimachiowin Aki under natural criteria alone, stating that there was ‘no way for properties to demonstrate within the current wording of the criteria, either that cultural systems are necessary to sustain the outstanding value of nature in a property, or that nature is imbued with cultural value in a property to a degree that is exceptional’.72 The case prompted the UN Special Rapporteur on the Rights of Indigenous Peoples to write to the Director of the World Heritage Centre citing concerns over inconsistencies in UNESCO’s approach to the natural and cultural World Heritage of indigenous peoples and the separate evaluation processes involved.73 It took almost two decades and numerous site evaluations for the local relationships between the Anishinaabeg and their landscape to be recognized. Pimachiowin Aki was resubmitted for evaluation in 2017 under cultural criteria (iii) and (vi) and natural criterion (ix), with the Advisory Bodies undertaking a joint evaluation. In 2018, the landscape was inscribed as a mixed site recognizing the First Nations’ tradition of Keeping the Land as an exceptional example of a belief of universal significance.74 Pimachiowin Aki was jointly assessed as a mixed site by IUCN and ICOMOS. Notably, the IUCN went beyond the natural components in its evaluation noting that: crucial to the future is the social cohesion that underpins customary First Nations management of this vast landscape. The integrity of this site has been dependent on the management of First Nations people for millennia, and that management has proven resilient despite tremendous challenges. The future of the site is thus entwined with ensuring broader social issues are addressed in a holistic manner.75

As Fogarty notes, ‘while Cultural Landscape fail to resolve issues of natural World Heritage, they offer an entry point in understanding synergies between World Heritage recognition of nature–​culture interlinkages and international human rights law’.76 In 2019, the Operational Guidelines were revised to include indigenous peoples as rights holders within the World Heritage Convention for the first time.77 This represents an 72   ibid, p. 49. See also Operational Guidelines (2005) para. 81.   ICOMOS (note 69) p. 45.   James Anaya, Doc. OL Indigenous (2001-​8) OTH 10/​2013, Mandate of the Special Rapporteur on the Rights of Indigenous Peoples, available at (last accessed 31 January 2022). 74   Decision 42COM 8B.11. 75   Pimachiowin Aki, Canada, IUCN Technical Evaluation, ID No. 1415 Rev, 2018 available at (last accessed 31 January 2022). 76   Fogarty (note 67) p. 51. 77   71 73

States Parties are encouraged to prepare their Tentative Lists with the full, effective and gender-​balanced participation of a wide variety of stakeholders and rights-​holders, including site managers, local and regional governments, local communities, indigenous peoples, NGOs and other interested parties and partners. In the case of sites affecting the lands, territories or resources of indigenous peoples, States Parties shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before including the sites on their Tentative List. (Operational Guidelines (2019) para. 64.)

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attempt to bring World Heritage governance in greater symbiosis with human rights standards, in particular, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).78 One of the central tenets of UNDRIP is the need for states to consult indigenous peoples and to obtain their ‘free prior and informed consent’ (FPIC) when making decisions that affect their lands and landscapes.79 Indeed, a central tenet of the European Landscape Convention, the first international treaty solely dedicated to landscape, is the idea of public participation.80 The Landscape Convention recognizes landscape ‘as an essential component of peoples’ surroundings, as an expression of the diversity of their shared cultural and natural heritage, and as a foundation of their identity’.81 It adopts a holistic notion of landscape and departs from the approach of the World Heritage Convention in several ways, including its conception of landscape, scope of application, and emphasis of community well-​being and identity.82 While in the case of Pimachiowin Aki the First Nations saw the Cultural Landscape category as a strategic mechanism to protect their ancestral land, in other cases, the category may not be so positive, especially where the listing predated the consultative turn, and where it has negative socio-​economic implications for the people living there (the Rice Terraces of the Cordilleras is a case in point).83 Worse still, there are many natural nominations put forward by states that do not consider the culture of the local communities living in these landscapes. For example, the Kaeng Krachan Forest Complex (Thailand) was inscribed on the World Heritage List in 2021 under criterion (x) (important natural habitats for in situ conservation of biodiversity),84 despite concerns over human rights violations against the Karen people. The decision to inscribe the property was made on the understanding that Thailand had addressed the issues raised in a previous decision concerning the Karen people, and that the State Party would continue to work on ensuring consultations with the local communities on their livelihoods and their active engagement in management of the property.85 However, in a communication from the UNOCHR addressed to the Director of the World Heritage Centre in 2021, concerns were raised over ongoing harassment and criminalization of members of the community, impunity for past violations, the lack of independent monitoring in situ, the lack of measures to address the land rights of indigenous peoples and concerns regarding the national legal framework, inadequate consultations and lack of good-​faith cooperation in order to obtain their free, prior, and informed consent, and their right to participate in conservation management, in line with international human rights standards.86 The lack   UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution/​ adopted by the General Assembly, 2 October 2007, UN Doc. A/​RES/​61/​295. 79   ibid, Arts 19 and 32(2). 80   Council of Europe, European Landscape Convention (opened for signature 20 October 2000, entered into force 1 March 2004), ETS No. 176. 81   Art. 5. 82   The Preamble states, e.g., that ‘landscape is a key element of individual and social well-​being and that its protection, management and planning entail rights and responsibilities for everyone’ and that ‘landscape contributes to the formation of local cultures and that it is a basic component of the European natural and cultural heritage, contributing to human well-​being’. 83   Rice Terraces of the Philippine Cordilleras were inscribed as a cultural landscape (organically evolved continuing) in 1995 Decision 19COM VIII.C.1. 84   Decision 44COM 8B.7. 85   ibid. With thanks to Margaret Gowen for her insights on this case. 86   Joint Communication from the OHCHR Special Rapporteurs, 30 June 2021, Ref. AL OTH 209/​2021, available at https://​whc.une​sco.org/​en/​list/​1461/​docume​nts/​ (last accessed 31 January 2022). 78

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of recognition of the Karen people’s interaction with the environment within the substantive scope of the nomination criteria has not helped their status as genuine rights holders for the purposes of the Kaeng Krachan Forest Complex World Heritage site. This leaves it up to the responsibility of the state to engage with and uphold their rights, limiting their interaction to acts of compliance or resistance.

V. Conclusion When Cultural Landscapes were adopted within the scope of the World Heritage Convention, they marked a shift towards accepting communities and their relationship with the environment as part and parcel of cultural heritage.87 They also recognized the cultural and social importance attached to landscapes, which had, until then, been designated as natural heritage.88 However, considering that the principle aim of the work leading to the new category was to bridge the nature–​culture divide in the Convention, it is lamentable that only ten Cultural Landscapes have been inscribed as mixed sites on the World Heritage List thus far. The majority of Cultural Landscapes are inscribed under cultural criteria, and given the absence of a cultural dimension in the natural criteria, there is no possibility for natural landscapes to acknowledge a human dimension in their nomination file. The result is that many landscapes inscribed under natural criteria alone do not recognize human interaction with the environment, arguably making it easier to exclude communities from natural heritage nomination processes and site management. This does not embrace a holistic conception of landscape, even from an ecological perspective. In addition, as noted by Kathryn Last, ‘the categorization of landscapes as purely cultural may be problematic when considering the associative landscape, as different groups may place emphasis on different aspects of a landscape, one perhaps emphasizing cultural traditions associated with the site, and another emphasizing the natural heritage value of the area’.89 This hypothesis is substantiated by a recent study of natural heritage sites by Bas Vershuuren, Alison Ormsby, and Wendy Jackson, which found that the cultural and spiritual significance of sacred natural sites is under-​recognized, and that this is most marked in natural World Heritage sites.90 Their recommendations included the identification and recognition of sacred natural sites including their associated cultural and spiritual values; recognition of, and articulated roles for, custodians of sacred natural sites in the governance and management of World Heritage sites; increased uptake of religious groups and indigenous peoples’ conservation approaches to the joint management of World Heritage sites that contain sacred natural sites; and the prevention of exclusion of custodians by applying inclusive conservation practices through rights-​ based approaches.91 87   Mechtild Rössler, ‘World Heritage Cultural Landscapes: A UNESCO Flagship Programme 1992–​2006’ (2006) 31(4) Landscape Research 333. 88   UNESCO, 1st session of the World Health Committee, Doc. CC-​77/​CONF.001/​9, of 17 October 1977, p. 3. UNESCO Expert Review on Evaluation of General Principles and criteria for Nominations of Natural World Heritage Sites, Doc. WHC-​96/​CONF.202/​INF.9, of 15 April 1996, p. 4. 89   Last (note 23) p. 52. 90   Bas Verschuuren, Alison Ormsby, and Wendy Jackson, ‘How Might World Heritage Status Support the Protection of Sacred Natural Sites? An Analysis of Nomination Files, Management, and Governance Contexts’ (2022) 11(1) Land 97). 91  ibid.

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If we return to the question of whether Cultural Landscapes have succeeded in bridging the culture–​nature divide, therefore, the answer is: only partially. In order to fully bridge this separation, the natural criteria would need to be revised to reflect a more holistic notion of landscape and incorporate some if not all of the above considerations. The second question posed in the introduction is whether Cultural Landscapes have succeeded in making the World Heritage List more representative and credible. Approximately one-​ tenth of World Heritage sites are inscribed as Cultural Landscapes, and over half of these are European, which interestingly mirrors the geographical spread of World Heritage sites overall. This would indicate that Cultural Landscape have not numerically altered the representativeness of the List. However, I would argue that they have contributed positively to improving the credibility of the World Heritage system, even more so in latter years, with the belated but welcome recognition of indigenous and local communities as rights holders, and the emerging successful practice of community-​led nomination of landscapes such as Pimachiowin Aki (Canada), Budj Bim (Australia),92 and Murujuga (Australia, Tentative List).93 These cases illustrate the strategic use of the World Heritage Convention by indigenous communities to protect their landscapes and gain international recognition of their stewardship, in turn contributing to a more spatially-​ just definition of World Heritage.

  Decision 43COM 8B.14, Budj Bim Cultural Landscape (Australia).   Murujuga Cultural Landscape (Australia), Tentative Lists, available at (last accessed 31 January 2022). 92 93

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Article 2: Definition of Natural Heritage Catherine Redgwell *

For the purposes of this Convention, the following shall be considered as ‘natural heritage’:

*

[1] ‌natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; [2] ‌geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; [3] ‌natural sites or precisely delineated areas of outstanding universal value from the point of view of science, conservation or natural beauty.1

I. Introduction and Historical Background  II. Definitional Elements and Scope of ‘Natural Heritage’  A. Criteria for ‘Outstanding Universal Value’  B. Conditions of Integrity and Sustainable Use  C. Protection and Management  III.  Tentative Lists and the Global Strategy: Natural Heritage Sites and Representativity  IV. Conclusion 

63 65 66 72 74 75 78

I.  Introduction and Historical Background When the Convention was concluded in 1972, it introduced a novel dimension to the protection of natural property under international law, the concept of natural ‘heritage’.2 Hitherto international law had addressed the conservation of ‘nature’ or specific flora and fauna, but without reference to the notion of patrimony or heritage. Indeed, the reasons for conservation were frequently both anthropocentric and limited temporally to the present generation. The innovation of the Convention was to embrace the natural environment within a wider category of ‘world heritage’ and to make express the intergenerational obligation of conservation and transmission. The natural heritage component of the Convention had its origins in US proposals from the mid-​1960s for a ‘World Heritage Trust’ where identified natural and scenic areas and *  Chichele Professor of Public International Law Emerita, University of Oxford, catherine.redgwell@law. ox.ac.uk. 1   Although these paragraphs are unnumbered in the Convention text, for reasons of convenience they will be referred to as paras 1, 2, and 3 respectively here. 2   See also the discussion in the Introduction by Francioni in this volume. There is reference to ‘heritage’ in a more limited context found in Principle 4 of the non-​binding 1972 Stockholm Declaration of the UN Conference on the Human Environment. It states that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat . . .’

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historic sites would be preserved for the benefit of both present and future generations.3 While UNESCO completed a draft text for the ‘International Protection of Monuments, Groups of Buildings and Sites of Universal Value’ in 1971,4 the International Union for the Conservation of Nature (IUCN) prepared a draft ‘Convention for the Conservation of the World’s Heritage’. These parallel developments became entwined with preparations for the 1972 UN Conference on the Human Environment to be held in Stockholm, where recognition and protection of areas and sites of world heritage became an agenda item on the Intergovernmental Working Group on Conservation making preparations for the Conference.5 This stimulated further developments within UNESCO, described previously in the commentary on Article 1 by Yusuf, drawing together the cultural and natural heritage in a single instrument under UNESCO auspices.6 Cognizant of these developments within UNESCO, states delegates at Stockholm refrained from direct mention of world heritage in the formal Declaration of the UN Conference on the Human Environment. The accompanying Recommendations for Action acknowledge ongoing work for the codification of protection of the world heritage—​both natural and cultural—​and call on governments to note ‘that the draft convention prepared by United Nations Educational, Scientific and Cultural Organization concerning the protection of the world natural and cultural heritage marks a significant step towards the protection, on an international scale, of the environment, [and to] examine this draft convention with a view to its adoption at the next General Conference of UNESCO. . . .’7 The adoption of a text designed to preserve both natural and cultural heritage of outstanding interest as ‘world heritage of mankind as a whole’ duly took place at the next General Conference of UNESCO in November 1972. ‘World heritage’ is not defined in the Convention, thus its scope ratione materiae is determined, inter alia, by the definitions of the cultural and natural heritage contained in Articles 1 and 2 respectively. Article 2 of the Convention sets out the definition of the ‘natural heritage’ to be protected, conserved, and transmitted to future generations. In so doing, the Convention emphasizes physical areas, features, formations, or sites, of outstanding universal value, rather than specific flora or fauna, thus further distinguishing the Convention from other habitat and species conservation treaties.8 While clearly innovative in its recognition of natural ‘heritage’, the language of Article 2 does not refer to modern ecological concepts such as ecosystems or biological diversity, nor have these been introduced subsequently to the treaty text. Indeed, Article 2 has remained unchanged since 1972. Other treaty gaps are the absence of provisions setting out good practice in the management of such sites—​for example, protected area designation,

3   An abbreviated history of the origins of the Convention is provided by the ‘father of the World Heritage’ concept, Russell E. Train, in World Heritage 2002: Shared Legacy, Common Responsibility (UNESCO World Heritage Centre, 2003) pp. 36–​37; for a fuller account, see Robert L. Meyer, ‘Travaux Préparatoires for the UNESCO World Heritage Convention’ (1976) 2 Earth Law Journal 45–​81. 4   This development is more fully addressed in the commentary on Art. 1 by Yusuf. 5   Meyer (note 3) p. 47. 6   Accordingly, proposals for a bifurcated World Heritage Committee and World Heritage List were also rejected: ibid, pp. 54 and 57. 7   Recommendations 98 and 99, UN Doc. A/​CONF.48/​14/​REV.1, 1972. 8   As Lyster observes, ‘one might argue, for example, that the blue whale (Baleanoptera musculus) should be considered part of the world’s natural heritage because it is the largest creature ever to have inhabited our planet, but it does not qualify under Article 2 because it is a mobile animal and not immovable property.’ S. Lyster, International Wildlife Law (Grotius, Cambridge, 1985) p. 213.

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buffer zones, and an appropriate management regime for the site buttressed by legal and administrative controls—​such as those found in Article 8 of the 1992 Convention on Biological Diversity. Nor are marine areas expressly mentioned, in part owing to concerns about a number of unsettled law of the sea issues about to be directly addressed by the Third United Nations Conference on the Law of the Sea (1973–​1982).9 All of these elements have emerged in the subsequent practice of the parties, and in the implementation of the Convention through the Operational Guidelines. In this sense, the Convention is the quintessential ‘living treaty instrument’. Since the entry into force of the Convention in 1975, 1,154 properties have been added to the World Heritage List, of which 218 constitute natural heritage and 39 are mixed natural and cultural heritage properties.10

II.  Definitional Elements and Scope of ‘Natural Heritage’ In common with the definition of cultural property in Article 1, the natural heritage to be protected, conserved, and transmitted to future generations must be of ‘outstanding universal value’. Little guidance is given in the treaty text for the identification of properties of such value, save for the linkage with science (all three paragraphs), conservation (paras 2 and 3), and aesthetics (paras 1 and 3). The emphasis on science introduces an objective element to the identification of ‘outstanding universal value’, a necessary counterbalance in the design of the Convention to the reliance on States Parties to identify and to delineate properties for inclusion on the World Heritage List.11 This reflects the emphasis upon patrimony: that it is not all natural heritage, but only that which is of outstanding universal value, which is to be protected, conserved, and transmitted to future generations. This treaty obligation extends beyond properties listed to embrace all natural heritage of outstanding universal value.12 Since 1977, the provisions of the Convention text have been amplified by Operational Guidelines, adopted by the World Heritage Committee and most recently revised in 2021.13 These Guidelines are an expression of the requirement found in Article 11(5) for the Committee to define the criteria on the basis of which properties may be included on the World Heritage List (and on the List of World Heritage in Danger).14 The Guidelines do not constitute a legally binding instrument, but rather perform a valuable policy function in guiding the implementation of the Convention by the key stakeholders, which include the States Parties, members of the Committee, the Bureau, the Advisory Bodies (ICOMOS, IUCN, and ICCROM), the UNESCO Secretariat, and site managers. Revisions over the years have been designed to streamline what by the turn of the century had become an increasingly cumbersome and unbalanced instrument through many

  Meyer (note 3) p. 50.   One natural heritage site, the Arabian Oryx Sanctuary in Oman, was delisted in 2007. A full list with descriptions of the inscribed properties is available at http://​whc.une​sco.org. Obligations with respect to the natural heritage identified and delineated by states are set out in Part II of the Convention, discussed in further commentaries in this volume, as is the process for the inscription of properties on the World Heritage List. 11   Art. 3. See the commentary on Art. 3 by Boer. 12   e.g. Arts 6(1) and 6(3) refer to world heritage as ‘the cultural and natural heritage mentioned in Articles 1 and 2’, i.e. all heritage protected by the Convention and not just properties listed under Art. 11. See further discussion in the commentary on Art. 6 by Carducci. 13   Doc. WHC.21/​01, of 31 July 2021. For the historic evolution of the Operational Guidelines, including the full text of each version, see http://​whc.une​sco.org. 14   See further the commentary on Arts 8–​11 by Scovazzi. 9

10

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successive revisions.15 These Guidelines remain the principal source of guidance on the criteria to be applied by the Committee in determining whether a natural heritage site is of outstanding universal value. The criteria have evolved over time, with the most significant change post-​1977 in 1992 and reflected in the 1994 Guidelines.16 Not only was 1992 the twentieth anniversary of the Convention, an event which prompted review of its implementation, but it was also the year of the 20-​year follow-​up to the Stockholm Conference, the 1992 Rio Conference on Environment and Development. The 1992 revision of the natural heritage criteria was clearly influenced by contemporary developments and in particular by new environmental legal concepts such as the conservation of biological diversity. The current (2021) version of the Guidelines does not depart substantively from the 1992 criteria for natural heritage, though since 2005 these have been merged with cultural heritage in a consolidated list of criteria. The purpose of the criteria is to identify the criteria for outstanding universal value, a keystone principle in the Convention. The Convention does not define the term, which has been progressively developed through the practice of the World Heritage Committee and reflected in the Guidelines.17 These define ‘outstanding universal value’ to mean: ‘cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole’ (para. 49). There are three key requirements which the Committee currently applies to decide whether a natural heritage property is of ‘outstanding universal value’. The property must: (a) meet one or more of the criteria for outstanding universal value set forth in the Guidelines; (b) meet the conditions of integrity; and (c) have an adequate protection and management system in place.18 Since it is through the development and application of these three key requirements that the notion of the natural heritage under the Convention has evolved, taking into account scientific and other developments, each will be considered in turn.

A.  Criteria for ‘Outstanding Universal Value’ In the first version of the Operational Guidelines adopted in 1977, the existing structure of four criteria for natural heritage was established, with minor revisions of these criteria until 1992 when, as stated earlier, a major revision and updating of the criteria took place. The chronology of amendments to the criteria is set forth in Table 1 in the commentary on Article 1 by Yusuf and in Table 2 below. The conditions of integrity, and the 15   See, e.g., the Report of the International Expert Meeting on the Revision of the Operational Guidelines for the Implementation of the World Heritage Convention (Canterbury, UK, 10–​14 April 2000), Doc. WHC-​ 2000/​CONF.202/​9, of 30 May 2000. 16   These revisions were agreed at the 16th session of the Committee at Santa Fe in 1992, based on discussions from 1988–​1991 and the recommendation of the World Heritage Bureau at its 15th session in 1991. 17   For discussion see IUCN, The World Heritage List: Guidance and further priorities for identifying natural heritage of potential outstanding universal value (2006). In 2006, the World Heritage Committee called for the development of ‘compendiums of relevant material and decisions, compiled into the form of guidance manuals, from which precedents on how to interpret and apply discussions of Outstanding Universal Value can be clearly shown’: for an example, see T. Badman et al., Outstanding Universal Value: Standards for Natural World Heritage (IUCN, 2008). Regular detailed reports are also made by IUCN to the meetings of the World Heritage Committee (see e.g. Doc. WHC-​07/​31/​COM/​9, of 23 May 2007) though more recently, owing to budgetary pressures, these have been requested to be ‘very short and synthetic’ with more details on IUCN’s work on the Convention available at http://​www.iucn.org/​worldh​erit​age: Doc. WHC/​21/​44.COM/​5, of 4 June 2021, para 66. 18   As set forth in paras 77, 78; paras 87–​95; and paras 96-​119, respectively, of the Guidelines.

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be outstanding examples representing significant ongoing geological processes, biological evolution, and man’s interaction with his natural environment. As distinct from the period of the earth’s development, this focuses upon ongoing processes in the development of plants and animals, landforms, and marine and freshwater bodies. This category would include for example (a) as geological processes, glaciation and volcanism; (b) as biological evolution, examples of Biomes such as tropical rainforests, deserts and tundra (c) as interaction between man and his natural environment, terraced agricultural landscapes; or

Criterion (ii)

Unchanged

Unchanged

be outstanding examples representing the major stages of the earth’s evolutionary history;

be outstanding examples representing the major stages of the earth’s evolutionary history. This category would include sites which represent the major ‘eras’ of geological history, e.g. ‘the age of reptiles’ where the development of the planet’s natural diversity can well be demonstrated and such as the ‘ice age’ where early man and his environment underwent major changes; or

Criterion (i)

be outstanding examples representing significant ongoing geological processes, biological evolution and man’s interaction with his natural environment; as distinct from the periods of the earth’s development, this focuses upon ongoing processes in the development of communities of plants and animals, landforms and marine areas and freshwater bodies; or

1988

1980

Criteria (1977 1977 numbering)

Table 2  Evolution of Criteria [now (vii)–​(x)] for the assessment of outstanding universal value†

be outstanding examples representing significant on-​going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; or

be outstanding examples representing major stages of earth’s history, including the record of life, significant ongoing geological processes in the development of landforms, or significant geomorphic or physiographic features; or

1994

(continued )

Renumbered Criterion (ix) (Unchanged)

Renumbered Criterion (viii) (unchanged)

2005

contain superlative natural phenomena, formations or features or areas of exceptional natural beauty, such as superlative examples of the most important ecosystems, natural features, spectacles presented by great concentrations of animals, sweeping vistas covered by natural vegetation and exceptional combinations of natural and cultural elements; or contain the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science or conservation still survive.

Contain unique, rare or superlative natural phenomena, formations or features or areas of exceptional natural beauty, such as superlative examples of the most important ecosystems to man, natural features, (for instance, rivers, mountains, waterfalls), spectacles presented by great concentrations of animals, sweeping vistas covered by natural vegetation and exceptional combinations of natural and cultural elements; or

be habitats where populations of rare or endangered species of plants and animals still survive. This category would include those ecosystems in which concentrations of plants and animals of universal interest and significance are found.

Criterion (iii)

Criterion (iv)

Unchanged

contain superlative natural phenomena, formations or features, for instance outstanding examples of the most important ecosystems, areas of exceptional natural beauty or exceptional combinations of natural and cultural elements; or

1988

contain the most important and significant natural habitats for in-​situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.

contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; or

1994

Renumbered Criterion (x) (unchanged)

Renumbered Criterion (vii) (unchanged)

2005

†

This table includes only those versions of the Guidelines where changes were made to the criteria for assessment of outstanding universal value (eg the most recent (2021) version is excluded as the criteria have remained unchanged).

1980

Criteria (1977 1977 numbering)

Table 2  Continued

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requirement to base nominations by reference to the criterion or criteria relied upon, was also clearly established from this first set of Guidelines. The 1977 version also provided examples of each criterion, a practice immediately abandoned in the next revision of the Guidelines in 1980. These are not mutually exclusive categories, with around 80% of the natural heritage properties inscribed on the List on the basis of at least two of the criteria.19 Some inscribed properties have fulfilled all four criteria; examples include Gunung Mulul National Park (Malaysia, 2000), the Volcanoes of Kamchatka (Russian Federation, 1996), and Great Barrier Reef (Australia, 1981). Criteria (vii) (geological processes) and (x) (species and habitat) have posed relatively few problems of practical application. Criterion (vii) (now (viii) since the 2005 version), described as both ‘the most stable criterion in terms of its use over time and . . . also the least used of the natural criteria’,20 comprises four elements well-​recognized in geological and geomorphological science: earth’s history; the record of life; ongoing geological processes; and geomorphic or physiographic features. A handful of sites have been inscribed on the basis of criterion (vii) alone, with an additional 50-​plus properties inscribed based on multiple criteria including a geological component.21 While some gaps may be detected—​for example, there is no representation of the Pleistocene epoch in the List—​it does not necessarily follow that properties exist of outstanding universal value to be added to it. Around a dozen natural heritage properties have been inscribed under criterion (iv) (now (x) since the 2005 version) alone, with a further 100 or so properties based on multiple criteria including biodiversity conservation.22 The ecological/​biodiversity criterion is often coupled with criterion (ii) (now (ix) since the 2005 version) which includes biological processes.23 As Table 2 demonstrates, the significant 1992 revisions reflected in the 1994 Guidelines removed from criterion (ii) reference to geology and to man’s interaction with nature (discussed further later), leaving criterion (ii) focused on ecological and biological processes. Review of the List by IUCN concluded that it contains a relatively balanced distribution of natural and mixed properties covering most biogeographic regions, biomes (ecosystems), and habitats, though major gaps for particular biomes are still evident.24 The ecosystems most commonly found on the List are dry or humid tropical forests, mountains, and mixed island systems.25 Gaps clearly exist, though, as for the geological criterion discussed earlier, the mere identification of gaps in the List does not necessarily imply that property of outstanding universal value exists. IUCN’s 20   Badman et al. (note 17) para. 2.18.   ibid., para 2.24.   ibid., para. 2.16. See also the thematic study by Dingwall et al., Geological World Heritage (IUCN, 2005), where 13 themes are proposed for the assessment of outstanding universal value of geological heritage ranging from meteorite impact to fluvial, lacustrine, and deltaic systems. Compared against the List, all themes are represented but distribution is uneven. More narrow themes—​e.g. meteorite impact—​are less well represented than the best-​represented theme, volcanoes/​volcanic systems. 22   See note 17, para. 2.16. 23   Four natural heritage properties have been inscribed exclusively on the basis of criterion (ix) and a further 100 or so include it as one of multiple criteria. 24   Tropical grassland/​savanna, lake systems, tundra and polar deserts, temperate grasslands, and cold winter deserts: IUCN, The World Heritage List (note 17) p. 18. Since 2014, IUCN has published a triennial conservation assessment of all natural World Heritage sites, the most recent being World Heritage Outlook 3 (November 2020), available at https://​www.iucn.org/​theme/​world-​herit​age/​our-​work/​iucn-​world-​herit​age-​ outl​ook. 25  ibid. 19 21

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review of habitats and priority conservation areas identified in a number of other studies (particularly by NGOs active in the conservation field such as the WWF, Conservation International, and Birdlife International) and not well represented on the List, concludes that only some, or components of some, are potentially of outstanding universal value. Nonetheless, a significant list of ecosystems and habitats of such value is identified and recommended as a high priority for nomination by States Parties with properties in these areas. Included are grasslands (e.g. sub-​polar and arctic tundra), wetlands (e.g. the Volga and Lena River deltas and the Western Ghats rivers), deserts (e.g. the Namib and Socotra deserts), forests (e.g. dry and moist forests in New Caledonia and Madagascar moist forests), and marine (e.g. Red Sea corals, the Maldives/​Chagos atolls, and marine sites within the WWF eco-​regions of Fiji, Palau, and Tahiti).26 All of these criteria—​geological, ecological and biological, and biodiversity—​have a strong scientific base. For the most part, they are quantifiable, measurable, and informed by well-​recognized classification systems. As the advisory body on natural heritage to the World Heritage Committee, IUCN has noted that intrinsic differences in natural and cultural properties are reflected in the methodology of the advisory bodies. ICOMOS—​ the advisory body for cultural heritage—​does not tend to have classification systems to rely upon for an evaluation of highly diverse cultural heritage. In consequence, IUCN and ICOMOS ‘tend to use different frameworks for assessing outstanding universal value while endeavoring to maintain equivalent standards in interpreting and applying this concept’.27 Criterion (iii) (now (vii) since the 2005 version) includes both objective and subjective elements. It forms a natural bridge in the merged criteria between the cultural and the natural since aesthetic and scenic values are culturally rather than scientifically defined. The objective component of criterion (iii) is found in the reference to ‘superlative natural phenomena’ which can often be measured (the highest mountain or waterfall). ‘Exceptional natural beauty and aesthetic importance’ introduce a more subjective element: there does not exist a universal classification system for ‘aesthetic importance’ or ‘natural beauty’. Clearly, aesthetic value must reside in more than the local population to satisfy the requirements of the Convention, though local or regional aesthetic values may be pertinent to cultural landscape designation under cultural heritage, a category discussed in more detail in the commentary on cultural landscapes in Article 1 by Strecker. A handful of properties have been inscribed under criterion (iii) alone, and a further hundred or so include criterion (iii) as one of multiple criteria for listing. The complexity of the interaction between culture and nature has been a feature of the Convention since its inception and reveals itself in a number of ways. One is the presence of both natural and cultural heritage of outstanding universal value in the same property. Though not expressly catered for in the Convention, the solution adopted by the Committee and long reflected in the Operational Guidelines is the designation of ‘mixed sites’. Some 39 mixed sites such as Machu Picchu in Peru (1983) and the Laponian area in Sweden (1996) have been inscribed on the List. In 1992, the Operational Guidelines were revised to include significant interactions between people and the natural environment as ‘cultural landscape’ eligible for designation under cultural heritage.28 At the same 27   ibid, pp. 19–​20.   IUCN, 2008 (note 17) para. 2.9.   On cultural landscapes, see the commentary on Art. 1 by Strecker. See also the discussion by L. Pressouyre, The World Heritage Convention Twenty Years Later (UNESCO, 1993) pp. 22–​25. 26 28

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time, however, the natural heritage criteria were stripped of some of their cultural/​human components in the deletion of ‘non-​natural’ wording from criteria (ii) and (iii)—​‘man’s interaction with the environment’ and ‘exceptional combinations of natural and cultural elements’, respectively. In the view of the Experts’ Meeting in Vanoise in 1996, ‘use of terminologies such as natural, cultural, mixed and cultural landscapes to distinguish World Heritage sites was undermining the Convention’s uniqueness in its recognition of the nature–​culture continuum . . . [and] proposed to examine the possibility of one single set of criteria’.29 The approach of the 2005 Guidelines was to merge the natural and cultural heritage criteria. The final four criteria (vii)–​(x) relate to natural heritage. They are renumbered but remain unchanged in substance from the 1994 version.30 Yet this is more than merely a cosmetic exercise, for it serves to highlight the linked but nonetheless distinct criteria for inscription on the basis of outstanding universal value, whether it is on the basis of natural, cultural, or mixed criteria. In a sense, this is a return to the original foundations of the Convention which, as discussed earlier, saw the merging of discrete drafting exercises for cultural and natural heritage brought within the compass of a single instrument. The unifying concept of world heritage within which natural and cultural heritage are a continuum, with a unified list of criteria, was identified as early as 1996 by the Vanoise Experts’ Meeting on natural heritage principles and criteria.31 The 2021 Guidelines (para. 77) state that nominated natural heritage properties must:

(vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance;32 (viii) be outstanding examples representing major stages of Earth’s history, including the record of life, significant on-​going geological processes in the development of landforms, or significant geomorphic or physiographic features;33 (ix) be outstanding examples representing significant on-​going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals;34 (x) contain the most important and significant natural habitats for in-​situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.35

29   Report of the Experts’ Meeting on Evaluation of General Principles and Criteria for Nominations of Natural World Heritage Sites (Parc national de la Vanoise, France, 22–​24 March 1996), Doc. WHC-​96/​ CONF.202/​INF.9, of 15 April 1996, held at the request of the World Heritage Committee (19th session, 1995) and the results noted at its 21st session (Doc. WHC-​96/​CONF.201/​21, of 10 March 1997, p. 77), p. 4. 30   The consequential impact of this renumbering upon site designation criteria and the format of the List was addressed retrospectively in 2006 when the Committee determined that the revised criteria numbering would be applied to all properties, whether inscribed before or after the renumbering effected by the 2005 Guidelines: Doc. WHC-​06/​30.COM/​8D, of 3 July 2006, para. 6. 31   Note 28. The Report notes that ‘the expert group recommended that the Committee consider developing one set of criteria, incorporating existing natural and cultural heritage criteria and promoting a unified identity for all World Heritage sites as outstanding heritage of humankind’ (ibid, p. 4). The Report also calls for one common approach to integrity for all World Heritage sites. 32   Such as the Belovezhskaya Pushcha/​Bialowieza Forest (Belarus/​Poland, 1979, 1992). 33   e.g. the Triassic period fossils in Ischigualastol/​Talampaya Natural Park (Argentina, 2000) and the meteorite impact structure of Vredefort Dome (South Africa, 2005). 34   e.g. the island biogeography of East Rennell (Solomon Islands, 1998) and the beech forest of Shirakami-​ Sanchi (Japan, 1993). 35   e.g. the Peninsula Valdes (Argentina, 1999), a site of global significance for the conservation of marine mammals, as is the Whale Sanctuary of El Vizcaino (Mexico, 1993).

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All of these criteria are related to in-​situ conservation, implicitly or explicitly. The Operational Guidelines emphasize sustainable use—​in harmony with the approach of other nature-​protection treaties such as Ramsar and the Biodiversity Convention. Indeed, the 1994 Guidelines contain a major updating of the criteria to reflect new environmental concepts of ecosystems and biodiversity conservation. This also facilitated synergies with other related instruments such as the 1992 Convention on Biological Diversity, which entered into force in 1994 (for cooperation with the CBD, see ‘The World Heritage Convention and Other Conventions Relating to the Protection of the Natural Heritage’ by Redgwell in this volume).

B.  Conditions of Integrity and Sustainable Use In addition to meeting one or more of these criteria, to be considered of ‘outstanding universal value’ a natural property must also meet the conditions of integrity, established in the 1977 Guidelines and a feature ever since.36 While it has not provoked as many debates as the parallel requirement of authenticity for cultural heritage, it has not been without its problems of interpretation. As Pressouyre notes, the principal impetus in developing the conditions of integrity was scientific: ‘defined at the beginning of the 1970s by scientists concerned with designating a series of natural zones where the greatest numbers of geological, climatic, and biological characteristics would be preserved from all human endeavour destructive of ecological balance’.37 This ‘refusal of all anthropisation of nature’ risked a North–​South split insofar as only the national parks of large developed states like Canada and the United States could rigorously apply scientific management in natural areas without local populations and with the only human activity therein being regulated tourism.38 In keeping with the concept of protected areas under national law and other treaty instruments, the inscription of natural heritage of outstanding universal value has not led to the removal (or prohibition) of all human activities. The inscription of the original Mount Nimba Strict Reserve39 and Taï National Park,40 with local populations   The 2021 Guidelines refer to conditions of authenticity and/​or integrity, with the former applied to cultural property (criteria (i)–​(vi)). The application of the condition of authenticity to natural heritage was one of the recommendations of the Kazan Experts’ Meeting in 2005 though of low priority and long-​term in its implementation: see the Assessment of the conclusions and recommendations of the special meeting of experts (Kazan, Russian Federation, 6–​9 April 2005), established by Decision 28 COM 13.1, Doc. WHC-​05/​29 COM/​9, of 15 June 2005, para. 8(b). 37   Pressouyre (note 28) p. 14. 38   Although the impact of tourism, as well as a proposed mine adjacent to the park, led to the danger listing of Yellowstone National Park in 1995 with the agreement of the United States: see further P. Dykstra, ‘Defining the Mother Lode: Yellowstone National Park v The New World Mine’ (1997) 24 Ecology LQ 299 and W. J. Lockhart, ‘External Threats to our National Parks: An Argument for Substantive Protection’ (1997) 16 Stan. Envtl LJ 3. It was removed from the danger list in 2003 owing, inter alia, to the abandonment of adjacent mining operations: Decision 27 COM 7A.12 (2003). 39   Initially inscribed in 1981, and extended in 1982, under criteria (ii) and (iv), the massif of Nimba extends across the borders of Guinea, Côte d’Ivoire, and Liberia, though the boundaries of the property are defined so as to exclude the Liberian component (though contiguous to a proposed nature reserve there). It is also a biosphere reserve under UNESCO’s Man and Biosphere Programme and falls under IUCN management classification Ia (strict nature reserve). Since 1992, the property has been on the List of World Heritage in Danger owing to anthropogenic pressures including the threat to its integrity from armed conflict and refugee movement (Côte d’Ivoire) and mining activities (Guinea). 40   Inscribed in 1982 under criteria (iii) and (iv). Poaching and artisanal gold mining remain continuing threats to the outstanding universal value of the site addressed by protection and management measures undertaken by Côte d’Ivoire: see State of Conservation Report 2021 and World Heritage Committee, Decision 44 COM 7B.200. 36

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economically active in the designated sites posing a potential threat to the characteristics which led initially to nomination, illustrates the point, with each subject to regular monitoring of these human impacts on the sites and with the inscription of the Mount Nimba Strict Reserve on the List of World Heritage in Danger in 1992. Since the 2005 version of the Guidelines, the conditions of integrity apply to all properties nominated for inscription, natural and/​or cultural.41 Integrity is defined as ‘a measure of wholeness and intactness of the natural and/​or cultural heritage and its attributes’ (para. 88). Assessment of integrity involves considering the extent to which a nominated property: ‘a) includes all elements necessary to its outstanding universal value; b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance; c) suffers from adverse effects of development or neglect’ (para. 88). Further elaboration of the conditions of integrity is provided for natural heritage as a general category, as well as for each criterion of outstanding universal value, from (vii) through (x). With respect to natural properties generally, the conditions of integrity require that for properties nominated under these criteria, ‘bio-​physical processes and landform features should be relatively intact’. However, the Convention is not an absolutist, preservationist charter. The Guidelines recognize that ‘no area is totally pristine and that all natural areas are in a dynamic state and to some extent involve contact with people’ (para. 90).42 Human activities will often occur in such areas, often carried out by indigenous peoples and local communities. While such activities are not ipso facto inconsistent with the outstanding universal value of the property, they must be ‘ecologically sustainable’ (para. 90). Indeed, the World Heritage Committee has explicitly recognized the universality of the Convention and its application to heritage in all its diversity as an ‘instrument for the sustainable development of all societies’.43 The Guidelines recognize that ‘[p]‌roperties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable and which may enhance the quality of life and well-​being of communities concerned’ while requiring that States Parties and their partners ‘ensure that use is equitable and fully respects the Outstanding Universal Value of the property’ (para. 119). This is an expression of intragenerational equity: permitting the sustainable use of the property by the present generation (principally within the state) without impairing its heritage values for the benefit of both present and future generations (within and beyond the state)—​intergenerational equity. This is consistent with the approach of other, related, conventions, such as the ‘wise use’ concept under Ramsar and ‘sustainable use’ under the Biodiversity Convention. The Guidelines (paras 92–​95) then provide conditions of integrity tailored to each of the criteria for outstanding universal value: 92. Properties proposed under criterion (vii) should be of Outstanding Universal Value and include areas that are essential for maintaining the beauty of the property. For example, a   Thus implementing a suggestion made in the 1996 Vanoise Experts Report (note 29). See also the Report of the World Heritage Global Strategy Natural and Cultural Heritage Expert Meeting, Amsterdam, 25–​29 March 1998, p. 9, available at http://​whc.une​sco.org. 42   A point also made in the 1996 Vanoise Experts’ Report, ibid. 43   Budapest Declaration on World Heritage, 28 June 2002. Additional references to sustainable development were subsequently added to the Guidelines: see para. 6 (2005) and paras 112, 119, 132 and Annex 5, points 4.b and 5.e (2011). See also the World Heritage Sustainable Development Policy adopted in 2015, available at http://​whc.une​sco.org/​en/​sus​tain​able​deve​lopm​ent/​. 41

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property whose scenic value depends on a waterfall, would meet the conditions of integrity if it includes adjacent catchment and downstream areas that are integrally linked to the maintenance of the aesthetic qualities of the property. 93. Properties proposed under criterion (viii) should contain all or most of the key interrelated and interdependent elements in their natural relationships. For example, an ‘ice age’ area would meet the conditions of integrity if it includes the snow field, the glacier itself, and samples of cutting patterns, deposition, and colonization (e.g. striations, moraines, pioneer stages of plant succession, etc); in the case of volcanoes, the magmatic series should be complete and all or most of the varieties of effusive rocks and types of eruptions be represented. 94. Properties proposed under criterion (ix) should have sufficient size and contain the necessary elements to demonstrate the key aspects of processes that are essential for the long term conservation of the ecosystems and the biological diversity they contain. For example, an area of tropical rain forest would meet the conditions of integrity if it includes a certain amount of variation in elevation above sea level, changes in topography and soil types, patch systems and naturally regenerating patches; similarly a coral reef should include, for example, adjacent seagrass, mangrove, or other adjacent ecosystems that regulate nutrient and sediment inputs into the reef. 95. Properties proposed under criterion (x) should be the most important properties for the conservation of biological diversity. Only those properties which are the most biologically diverse and/​or representative are likely to meet this criterion. The properties should contain habitats for maintaining the most diverse flora and fauna characteristic of the bio-​geographic province and ecosystems under consideration. For example, tropical savannah would meet the conditions of integrity if it includes a complete assemblage of co-​evolved herbivores and plants; an island ecosystem should include habitats for maintaining endemic biota; a property containing wide ranging species should be large enough to include the most critical habitats essential to ensure the survival of viable populations of those species; for an area containing migratory species, seasonal breeding and nesting sites, and migratory routes, wherever they are located, should be adequately protected.

There are obvious overlaps between these criteria and the condition of integrity, and species and habitat protection under other international instruments such as the 1992 Convention on Biological Diversity and the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals. Some of these linkages are further explored in ‘The World Heritage Convention and Other Conventions Relating to the Protection of the Natural Heritage’ by Redgwell in this volume.

C.  Protection and Management Outstanding universal value and the conditions of integrity are linked to the protection and management of properties (para. 108) and with the requirement for adequate long-​ term legislative, regulatory, institutional, and/​or traditional protection and management to ensure their safeguarding (para. 97). ‘The purpose of management is to ensure the effective protection of the nominated property for present and future generations’ (para. 109). For natural sites, effective boundaries, buffer zones, and reactive and periodic monitoring are key management features. In this regard, the Operational Guidelines set out what might be viewed as a ‘code of good practice’ for the effective implementation of the Convention. For example, it is the case that a national park or other protected area designation under domestic law is the most common legal management tool for natural World Heritage Catherine Redgwell

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sites.44 The Guidelines stipulate that such areas ‘should reflect the spatial requirements of habitats, species, processes or phenomena that provide the basis for their inscription. . . . The boundaries should include sufficient areas immediately adjacent to the area of outstanding universal value in order to protect the property’s heritage values from direct effect of human encroachments and impacts of resource use outside of the nominated area’ (para. 101). Buffer zones are also encouraged where necessary; a nomination should expressly state why one is not necessary where not proposed (para. 106).45

III.  Tentative Lists and the Global Strategy: Natural Heritage Sites and Representativity Ultimately the World Heritage Convention is dependent upon state identification and nomination of properties for inclusion on the List, a process which is further explored in the commentary on Article 3 by Boer. The Convention does not contain a list of protected heritage, in contrast with the CITES Convention, for example, with its appendices listing species for protection from illegal trade. The notion of an ideal inventory, though initially attractive, was abandoned as unrealistic and unworkable. However, pursuant to Article 11(1),46 States Parties are required to submit tentative lists—​essentially an inventory of property forming part of the cultural and natural heritage situated in their territory and suitable for inclusion on the World Heritage List.47 This forms a benchmark against which to judge the inclusiveness of the World Heritage List, particularly since a nomination to the List will not be considered unless the property is included on the State Party’s tentative list. Initially, however, this requirement was only applied to cultural and mixed properties and it was only in 2000 that the requirement was extended to nominated natural properties. This is now reflected in paragraph 62 of the Guidelines. However, IUCN has highlighted the continuing cultural bias in the tentative lists and their poor technical quality, which diminishes their value as a planning and evaluation tool, their stated purpose in the Guidelines (para. 70).48 As a benchmark, such lists are not static but will evolve over time, as will the criteria for inclusion of natural properties, reflecting how scientific knowledge evolves, such as the emergence of the concept of biological diversity. Their efficacy is, of course, dependent on state compliance with the obligation to prepare and submit the lists (and ultimately to nominate properties therefrom). There is now a high level of compliance, with 185 of the 194 States Parties to the Convention having submitted a tentative list in accordance with the requirements set out in the Operational Guidelines:49 all 19 of the States Parties from 44   Implementation of the Convention in the light of twenty-​five years’ practice, Doc. WHC-​96/​CONF.201/​ 15, of 29 October 1996, p. 8, para. 3.1; see also World Heritage Resource Manual, Managing Natural World Heritage (2012). 45   See further World Heritage Paper Series No. 25, World Heritage and Buffer Zones (2009). 46   See the commentary on Arts 8–​11 by Scovazzi. 47   States Parties are encouraged to review and resubmit their tentative list every ten years: Operational Guidelines, para. 65; see also G. Fulton et al., Guidance on Developing and Revising World Heritage Tentative Lists (ICOMOS, 2020). 48   IUCN Report (note 17). 49   Statistics here are based on the submissions noted at the most recent ordinary meeting of the World Heritage Committee in 2021 with the next, extended 45th session, due to take place in the autumn of 2023. See Doc. WHC/​21/​44.COM/​8A, of 4 June 2021, para. 7. The complete tentative lists of all States Parties are

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the Arab region; 50 of the 51 States Parties from the Europe/​North America region;50 44 of the 47 States Parties from Africa;51 40 of the 44 States Parties from the Asia/​Pacific region;52 and 32 of the 33 States Parties from the Latin America/​Caribbean region.53 In addition to tentative lists compiled by States Parties, independent lists have been prepared, for example by IUCN, with regional54 and biome studies to enhance knowledge of natural heritage of outstanding universal value particularly in under-​represented regions of the world. For example, in 1996 IUCN’s Natural Heritage Programme commenced a project to prepare a global strategy for natural World Heritage sites. The global theme study of world heritage natural sites produced a series of papers on major biomes/​ ecosystems, for example forests, wetlands, mountains, deserts, and grasslands.55 The 1997 global overview of forests protected on the World Heritage List,56 for example, examined 61 forest protected areas, a number of which are also Biosphere Reserves and/​or WWF Global 200 Ecoregions. A number have wetland and marine values, raising the potential for listing under the Ramsar Convention. The 1997 overview of wetland and marine protected areas on the World Heritage List analyses 77 sites, ‘cross-​referenced with their relations with other international programmes and conventions (eg Ramsar, Biosphere Reserves, and WWF Global 200 Ecoregions)’. It concludes that the World Heritage Convention protects sites with a broader range of biome values than under the Ramsar Convention because of the role of the World Heritage Committee in approving sites. That said, at the time of the report, six of the 77 sites were on the List of World Heritage Sites in Danger, ‘indicating that inscription on the World Heritage List does not necessarily guarantee effective stewardship’.57 Additionally, since 2014 IUCN has published a triennial conservation assessment of all natural World Heritage sites, the most recent being World Heritage Outlook 3 (2020).58 The results are ‘sobering: just two-​thirds of the sites have a positive conservation outlook’ and the trend is towards increasing deterioration, with climate change the highest threat affecting values under all four natural heritage criteria.59

available at http://​whc.une​sco.org/​en/​ten​tati​veli​sts. Once inscribed in the World Heritage List, properties are deleted from the tentative list. 50   The Holy See had not submitted a tentative list compliant with the Operational Guidelines as of 15 April 2021. 51   Equatorial Guinea, São Tomé and Principe, and Somalia had not submitted tentative lists compliant with the Operational Guidelines as of 15 April 2021. 52   Brunei Darusallam, the Cook Islands, Niue, and Timor-​Leste had not submitted tentative lists compliant with the Operational Guidelines as of 15 April 2021. 53   Belize had not submitted a tentative list compliant with the Operational Guidelines as of15 April 2021. 54   Regional reporting also takes place under the Convention mechanism of Art. 29 (see the commentary on Art. 29 by Boer). 55   Additional thematic topics addressed by IUCN include human use and world heritage natural sites: see http://​www.iucn.org/​wcpa and note 21 (geological world heritage). Thematic studies are viewed as a valuable source of information in preparing new nominations to the List. 56   IUCN, ‘A Global Overview of Forest Protected Areas on the World Heritage List’ (1997). 57   J. Thorsell, R. Ferster Levy, and T. Sigaty, ‘A Global Overview of Wetland and Marine Protected Areas on the World Heritage List’ (IUCN, 1997) p. 1. See alsoJ. Thorsell and L. Hamilton in ‘A Global Overview of Mountain Protected Areas on the World Heritage List’, Working Paper 6 (IUCN, 2002). 58  Available at https://​www.iucn.org/​theme/​world-​herit​age/​our-​work/​iucn-​world-​herit​age-​outl​ook. This mirrors the approach of other environmental treaties that publish periodic reports summarizing the latest data on status and trends and draw conclusions relevant to the further implementation of the Convention: see e.g. the CBD’s Global Biodiversity Outlook, now in its fifth iteration (2020). 59   ibid; see also note 69 below. Invasive species follow closely behind: ibid, p. 85.

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Whilst it was envisaged from the outset that designated cultural property would probably exceed in number designated natural property, the initially low number of natural sites put forward for designation and the slow rate of uptake by states of natural sites on indicative lists led to attempts in successive versions of the Operational Guidelines to redress this imbalance. Exhortations to make ‘efforts . . . to avoid any disproportion between the cultural heritage and the natural heritage properties entered on the List’60 proved largely ineffective, however. Efforts were initially concentrated on the ‘numbers game’: increasing the numerical total of natural heritage properties both in absolute terms and in relation to cultural properties. The Global Strategy has added a further, more nuanced, dimension which is representativity. In 1994, the World Heritage Committee adopted ‘The Global Strategy for a Representative, Balanced and Credible World Heritage List’61 which was intended to increase state participation in the Convention, and for all parties to develop tentative lists and nominate properties therefrom for inscription. Initially applicable only to cultural heritage, the Global Strategy was subsequently broadened to encompass natural heritage and mixed sites in 1996. Further guidance on promoting the establishment of a representative, balanced, and credible List includes a self-​enforced ‘go slow’ on nominations by States Parties already well represented on the List and mechanisms to enhance nominations by under-​represented States Parties, such as regional partnerships for the exchange of technical expertise.62 Lists are to be prepared taking into account the Cairns–​Suzhou decision.63 From 2006, on an experimental basis, the Committee decided to examine up to two nominations per State Party, provided that at least one of the nominations concerns a natural property—​ a commitment watered down the very next year. Both measures are designed to redress the imbalance in distribution of nominated sites (the preponderance being located in developed countries) and in the protection of both natural and cultural properties of outstanding universal value (the preponderance of inscribed properties being cultural). Notwithstanding these attempts to increase the number of natural properties nominated for inscription, the strong bias towards cultural property continued. For example, the 2007 additions to the List comprised 16 new cultural properties but only two natural properties (Malpelo Fauna and Flora Sanctuary in Colombia and Sichuan Giant Panda Sanctuaries in China), an imbalance repeated unrelentingly in the following years.64   See, e.g., 1980 Operational Guidelines, para. 6(iv).  18th session, Phuket 1994; for a recent evaluation, see the Analysis of the Global Strategy for a Representative, Balanced, and Credible World Heritage List (1994–​2020) (16 June 2021), available at https://​ whc.une​sco.org/​en/​docume​nts/​187​906. 62   See Operational Guidelines, paras 59–​61. 63   The ‘Cairns Decision’ is a set of decisions taken by the 24th session of the Committee in Cairns in 2000 designed, inter alia, to improve the representativity of the List. The full text is available at http://​whc.une​sco. org/​en/​cai​rns. The ‘Cairns–​Suzhou Decision’ (Decision 28COM 13.1) was adopted by the Committee at its 28th session in Suzhou in 2004 to facilitate implementation of this ‘Cairns Decision’. The decision also set an annual limit for new nominations for review by the Committee (30), subsequently raised to 45 in 2004—​and dropped back to 35 in 2016. For discussion of the compatibility of such limitations with the Convention, see the commentary on Art. 11 by Scovazzi. Preliminary assessment of the proposed nomination—​essentially a desk study valid for a five-​year period—​is now a mandatory stage prior to nomination in an effort to streamline procedures and conserve resources: see further the 2021 Operational Guidelines, section III. 64   For analysis by year and by type of property, see http://​whc.une​sco.org/​en/​list/​stat/​#d32. Most recently, over an extended 44th session (2020–​2021), 34 properties were inscribed, 29 cultural and five natural: Colchic Rainforests and Wetlands (Georgia); Amami-​Oshima Island, Tokunoshima Island, Northern part of Okinawa Island, and Iriomote Island (Japan); Getbol, Korean Tidal Flats (Republic of Korea); Kaeng Krachan Forest Complex (Thailand); and Ivindo National Park (Gabon). 60 61

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Moreover, the 2006 commitment to at least one natural heritage nomination, though maintained in theory, was watered down in practice the very next year with the decision for a four-​year experimental period to permit a State Party to decide on the nature of its nomination, whether natural or cultural, in accordance with its own national priorities, history, and geography.65 A modified commitment was reintroduced in 2011, with the requirement for one of the two nominations to be a natural site or cultural landscape,66 but in 2016 the decision was taken—​again on a four-​year experimental basis—​to permit only one complete nomination per party.67 The impact of this decision will be reviewed in 2023.68 At the same time, natural heritage properties continue to be well represented on the List of World Heritage in Danger.69 Furthermore, an issue highlighted especially by IUCN is the potential for representativity to undermine outstanding universal value. It cautions that in the Committee’s pursuit of a representative, balanced, and credible World Heritage List, ‘IUCN considers that it is not intended that the List should be completely representative of the earth’s entire cultural and natural heritage as this would be contrary to the concept of outstanding universal value’.70 Other conventions, and national and regional measures, have a large role to play in the protection of natural areas and in the conservation of ecosystems, landscapes, habitats, and species, only a small number of which are likely also to meet one or more of the criteria of outstanding universal value.71 Current concerns with representativity underscore the evolution which has taken place in the concept of ‘outstanding universal value’, from a conception of ‘the best of the best’ to ‘representative of the best’.72

IV. Conclusion Key differences exist between cultural and natural properties. One is the inevitability that the number of cultural properties outstrips natural properties. Even with adjustments to the natural heritage criteria to take into account changes in technological and scientific knowledge, this category is an essentially closed one, whilst the product of human cultural endeavour continues to flourish in the more open category of cultural heritage. The 218 natural and 39 mixed properties presently inscribed on the List do not constitute a complete list of global natural heritage of outstanding universal value.73 66   Decision 31 COM 10.   Decision 35 COM 8B.61.   Decision 40 COM 11; see also the Guidelines, para. 61 68   Decision 43 COM 11A, with subsequent slippage in the Covid-​affected timescale for meetings. 69   In 2007, nearly 50% (14) of the 30 danger listed properties were natural properties; in 2021, this proportion had dropped to 33% (17) of the 52 danger listed properties. As for the overall List, World Heritage Outlook 3 (2020) (note 24) p. 8, lists the conservation outlook for 30% of 252 natural and mixed properties as ‘of significant concern’ and 7% as of ‘critical status’. Climate change is the fastest growing threat to natural heritage, especially for coral reefs and glaciers, with 33% of natural heritage sites adversely affected: see further https://​www.iucn.org/​theme/​world-​herit​age and, generally, UNESCO, World Heritage Report No. 22, Climate Change and World Heritage (2007). 70   The World Heritage List (note 17) p. 1. The paper states that it will not make use of the term ‘[t]‌o avoid any ambiguity or misunderstanding’: ibid, p. 2. 71   ibid. This is represented diagrammatically by a pyramid, with World Heritage at the pinnacle and national and sub-​national sites forming its broad base. 72   Doc. WHC-​06/​30 COM/​9, of 23 June 2006, para. 6. 73   IUCN estimates that a complete list of natural and mixed properties might number between 250 and 300. See the ‘Evaluation of the Global Strategy for a representative, balanced and credible World Heritage List’ 65 67

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As the List moves closer to completion, a shift in emphasis from procedures for nomination and inscription—​identified by a 2000 Expert Review74 as a preoccupation of the Guidelines—​to better management of existing properties, viz. their state of conservation and the maintenance of integrity, is both desirable and inevitable.75 And necessary: only half of natural World Heritage sites are considered to have effective protection and management, according to IUCN’s latest World Heritage Outlook.76 Critical aspects such as sustainable financing, law enforcement, and staffing remain of serious concern, reinforcing the need for adequate resources and capacity to effectively protect and manage protected areas. A second difference between cultural and natural properties is that, as for any natural resource, natural heritage of outstanding universal value is not evenly distributed across the globe. In consequence, it is impossible to achieve an equal balance for all regions/​ countries and for the different criteria. Equal distribution is an illusory goal, as is parity with cultural properties. Several other recent trends may be detected in the evolution of the application of Article 2. One is a rise in the number of serial property and transboundary nominations. Another is the slowing ‘success rate’ of nominations, signalling both the robustness of the application of the criteria for inscription and the fact that the initial nominations tended to focus on iconic natural heritage (e.g. Mosi-​oa-​Tunya/​Victoria Falls (1989), Grand Canyon National Park (1979), the Galapagos Islands (1978)). With an estimated 50% of global natural heritage of outstanding universal value represented on the List, securing ongoing protection and integrity of inscribed sites and targeting the remaining gaps in the List remain the key challenges.

(1994–​2004), Doc. WHC-​04/​28.COM/​13, of 25 May 2004, para. 24. This evaluation by IUCN of natural and mixed properties is based on a more detailed analysis of natural and mixed properties contained in ‘A Review of the Global World Heritage Network: Biogeography, Habitats and Biodiversity’ prepared by UNEP’s World Conservation Monitoring Centre in collaboration with IUCN and the World Heritage Centre, the full text of which is available at https://​port​als.iucn.org/​libr​ary/​sites/​libr​ary/​files/​docume​nts/​Rep-​2004-​015-​2.pdf.   Note 15.   See the recommendations by IUCN in the ‘Global Strategy Evaluation’ (note 61) 25(h). See also the IUCN review of the World Heritage List (note 17). 76   IUCN World Heritage Outlook 3 (note 24). Sustainable finance is of some or serious concern for half of sites, and new management challenges have been created by the Covid-​19 pandemic the full impacts of which have yet to be systematically assessed. 74 75

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Article 3: Identification and Delineation of World Heritage Properties Ben Boer *

It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.

I. Introduction  II. Identification of Properties of ‘Outstanding Universal Value’  A. Outstanding Universal Value  III. Preparation of Tentative Lists  IV. Factors to be Taken into Account in Identifying and Delineating Properties  V. Identifying Cultural Properties  VI. Identifying Natural Properties  VII. Identifying and Delineating Mixed Natural and Cultural Properties, and Cultural Landscapes  VIII. Visual Impacts, Buffer Zones, and the Process of Delineation  IX. Delineating Boundaries of Properties  X. Preparation of Nominations of Identified Properties  XI. Identification and Delineation of Transnational and Transboundary Properties  XII. Identification and Delineation of Serial Properties  XIII. Identification of World Heritage Properties in Danger  XIV. Global Strategy for a Balanced, Representative, and Credible World Heritage List 

80 82 82 84 87 88 89 90 91 93 93 94 94 95 96

I. Introduction The identification and delineation of the cultural and natural heritage as items of ‘outstanding universal value’ is a central obligation under the Convention for all States Parties. Article 3 is one the shortest in the Convention, and the processes involved in identification and delineation may seem at first sight to be uncomplicated. While it is the State Party that has the responsibility to identify and delineate the different properties situated on its territory, and to put forward its nominations for listing, the question of who participates in the identification process at state level can be crucial as to which properties are considered as conforming to the definitions in Articles 1 and 2 of the Convention. Views of various stakeholders as to what factors should be taken into account with regard to considering the criterion of ‘outstanding universal value’ in a particular instance *  Professor Emeritus of Environmental Law, University of Sydney and Distinguished Professor (retired) , Research Institute of Environmental Law, Wuhan University.

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will differ.1 There are sometimes competing claims between which properties a national government may wish to protect, and properties that sub-​national governments such as provinces, states, regions, or particular civil society groups within a country may wish to protect through World Heritage listing. In recent decades, the rights and involvement of First Nations entities and local communities have also become very significant considerations, especially in terms of the opportunities and requirements for participation in all stages of World Heritage decision making. Further, the acts of identification and delineation of properties by a State Party can involve a range of legal and financial implications, as well as technical complexities, and can raise significant and difficult cultural, scientific, geographic, social, political, economic, human rights, religious, or spiritual issues. Some of these factors will inevitably need to be taken into account by the State Party in defining and delineating the boundaries of its World Heritage properties. These issues can become even more difficult in the case of transboundary or transnational serial World Heritage nominations by two or more States Parties (see the commentary on Identification and Delineation of Transnational and Transboundary Properties in Section XII, below). In the Convention, the term ‘the cultural and natural heritage’ is generally used to refer to World Heritage items; these terms are often used interchangeably with the terms ‘property’ or ‘properties’. That property is characterized in several Articles as ‘belonging’ to the cultural or natural heritage. This usage lends itself to the cultural and natural heritage being commodified to an extent, but nevertheless serves to emphasize one of the features of the Convention, namely that cultural and natural heritage is seen as being firmly under the control of sovereign states.2 This is notwithstanding the tension between the need to recognize the sovereignty of states under the Convention on the one hand, and the recognition in the Preamble3 on the other, that parts of the cultural and natural heritage are of interest and importance to the whole of humankind and must be safeguarded and preserved for that reason. Article 3 also must be understood in relation to a number of other provisions in the Convention. These include a consideration of the duties, obligations, and associated aspects contained in, among others, Articles 4, 5, 6, 11, 12, 27, and 29. In some federally organized states, the power of sub-​national entities to interact directly with the World Heritage Committee under Article 34 may also need to be considered (See the commentary on Art. 34 by Boer). Further, the corresponding provisions of the Operational Guidelines should be taken into account.4

  See further, J. Blake, ‘On Defining the Cultural Heritage’ (2000) 49 ICLQ 61–​85.   There can be further difficulties with terminology in the case of transboundary properties, especially where territorial boundaries are in dispute. In 2023 there were 43 transboundary properties involving 67 States Parties: UNESCO World Heritage Centre, https://​whc.une​sco.org/​en/​list/​?transb​ound​ary=​1 . 3   Para. 5 of the Preamble: ‘Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong’; and para. 6 of the Preamble: ‘Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the World Heritage of mankind as a whole’ (see the commentary on the Preamble by Francioni). 4  See UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC 21/​01, of 31 July 2021. 1 2

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II.  Identification of Properties of ‘Outstanding Universal Value’ The process of identification of properties that qualify under one or more of the elements of the definitions in Articles 1 and 2 is a basic first step for States Parties in carrying out their obligations under the Convention. Article 4 characterizes this process as a ‘duty’ that, along with other processes of ‘protection, conservation, presentation and transmission to future generations’, belongs ‘primarily’ to the State Party. However, in Article 3, in stating that it is for each State Party to identify and delineate, it is noted that this process is not qualified by the word ‘primarily’. In one of the few domestic cases concerning the Convention,5 the High Court of Australia, in Richardson v Forestry Commission,6 indicated that this lack of qualification of the words ‘identification’ and ‘delineation’ reinforced the imposition of the duty of identification ‘by making it plain that in the matter of identification and delineation the obligation rests exclusively, not primarily, with that State’.7 The judges went on to argue that: The terms of Art. 3, together with the second sentence of Art. 4 and the qualifications in the opening words of Art. 5 are entirely consistent with the acknowledgment of State sovereignty in Art. 6 and with the recognition that each State, in giving effect to the obligations imposed by the Convention, with respect to the heritage situated on its territory will naturally have to take account of competing considerations, economic and otherwise. Thus though each State has a duty to identify and delineate the heritage in its territory, the performance of this duty will depend in many respects on the judgment of that State.8

A.  Outstanding Universal Value Inherent in the processes of identification and delineation is the need to understand and explore the concept of ‘outstanding universal value’ found in the definitions set out in Articles 1 and 2. While the phrase is used a number of times in the Convention, its meaning is not defined there. However, the Operational Guidelines define the concept as follows: 49. Outstanding Universal Value means cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole. The Committee defines the criteria for the inscription of properties on the World Heritage List. 5   As Australia is the only State Party to have developed a body of jurisprudence on World Heritage matters, some of that jurisprudence is referred to in this chapter. The Australian experience with the Convention is further set out in Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press, Oxford, 2006) ch. 3. Australia remains one of the few countries to enact specific legislation for the implementation of the Convention (the others include Hungary, Italy, Macedonia, Romania, South Africa, Suriname and the United States). 6   The Tasmanian Forestry Commission challenged the Commonwealth’s power to suspend the Forestry Commission’s logging operations, while the Commonwealth of Australia established an official Commission of Inquiry into whether certain forest areas in south-​west Tasmania (known as the Lemonthyme and Southern Forests) were suitable to be nominated as World Heritage properties; see Mason and Brennan JJ in Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 FC 88/​007 (High Court of Australia, 10 March 1988). 7 8   ibid, para. 19 (emphasis added).  ibid.

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As noted on the World Heritage Centre website, the concept of ‘outstanding universal value’ is elusive, ‘yet it is crucial for the implementation of the Convention as it touches upon each and every aspect of the conservation cycle’.9 The essence of the definition of outstanding universal value is that the property’s natural and/​or cultural significance is ‘so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’. Paragraph 52 of the Operational Guidelines underlines this by making it clear that the Convention ‘is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint’. It further states that there is no assumption that properties regarded as ‘of national and/​or regional importance will be automatically inscribed on the List’. This is reinforced in the Convention itself, where Article 12 states: ‘The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.’10 Whether a particular property falls within the definition is a matter initially for the States Parties who compile their Tentative Lists (see the following section) and prepare their nominations. The Operational Guidelines ask States Parties to be quite specific about outstanding universal value, as paragraph 51 indicates that at the time of inscription, the Committee must adopt a Statement of Outstanding Universal Value ‘which will be the key reference for the future effective protection and management of the property’. This statement is normally formulated by the State Party and forms an essential part of the nomination document. Once a property is identified as having outstanding universal value, the focus is on the protection and management of that property. Paragraph 96 of the Operational Guidelines obliges States Parties to ensure that ‘their Outstanding Universal Value, including the conditions of integrity and/​or authenticity at the time of inscription, are sustained or enhanced in the future’. That passage, on the face of it, makes it clear that the specified point in time at which the identified values are to be judged, and made the subject of protection and management processes, is at the time of inscription. It is logical, however, for those protection and management processes to be put into place earlier, that is, at the time the property is identified by the State Party. The argument in favour of this view is that to allow a proposed development activity that may detract from the integrity of the outstanding universal value of a property after identification, but before submission to the World Heritage Committee and inscription on the List (a process which can take several years), could be regarded as contrary to the letter and the spirit of the Convention;11 in other words, such development activity could undermine the protective function of the Convention. The wording of paragraph 96 also raises the possibility of applying the emerging principle of progression in the realm of World Heritage. In international law, the principle 9   Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value, 6–​9 April 2005, Background Document, p. 18, available at http://​unes​doc.une​sco.org/​ima​ges/​0013/​001​396/​ 1396​02e.pdf . 10   See further, the commentary on Art. 12 by Lenzerini. 11   For further discussion, see Boer and Wiffen (note 5) ch 3; see also, the Introduction by Francioni, and commentaries on Art. 1 by Yusuf, Art. 11 by Scovazzi, and on Art. 12 by Lenzerini.

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is referred to in Articles 3 and 4 of the Paris Agreement on climate change.12 It is also expressed in Principle 13 of the International Union for the Conservation of Nature (IUCN) World Declaration on the Environmental Rule of Law:13 ‘In order to achieve the progressive development and enforcement of the environmental rule of law, States, sub-​ national entities, and regional integration organisations shall regularly revise and enhance laws and policies in order to protect, conserve, restore, and ameliorate the environment, based on the most recent scientific knowledge and policy developments.’ In the future, the application of this principle by the World Heritage Committee may oblige states whose World Heritage properties are under threat from any source to put into place progressively stronger laws and policies to ensure that the outstanding universal values of the properties are maintained or restituted.

III.  Preparation of Tentative Lists The preparation of an inventory of potential World Heritage properties is an essential aspect of both identification and delineation. An inventory is required by the Convention in Article 11(1), and is spelled out further in the Operational Guidelines. The inventory is generally referred to as a Tentative List: see Operational Guidelines, paragraph 15(i). A Tentative List is defined in the Operational Guidelines at paragraph 62 as an inventory of properties located in the territory of a State Party which the State Party considers suitable for World Heritage listing. States Parties are encouraged by the Operational Guidelines to prepare their Tentative Lists with the participation of a wide variety of stakeholders and rights-​holders. These include ‘site managers, local and regional governments, local communities, indigenous peoples, NGOs, and other interested parties and partners’ (para. 64). The specific category of Indigenous peoples was added to this list in the 2019 revision of the Guidelines,14 consistent with the UNESCO Indigenous Peoples Policy of 2018.15 This amendment to the Guidelines is based on the concepts of the 2007 United Nations Declaration of the Rights of Indigenous Peoples,16 and raises the issue of ‘access rights’, which has become a familiar part of the environmental law and policy discourse since the adoption of the Convention on Access to Information, Participation in Decision-​ making and Access to Justice in Environmental Matters.17 Importantly, paragraph 64 of the Guidelines now includes the following mandatory obligation: ‘In the case of sites affecting the lands, territories or resources of indigenous peoples, States Parties shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before including the sites on their Tentative List.’ 12   Paris Agreement to the United Nations Framework Convention on Climate Change, 12 December 2015, TIAS No. 16-​1104. 13   ‘Principle 13, World Declaration on the Environmental Rule of Law, 2016, IUCN (ID MON-​091064) https://​www.eco​lex.org/​res​ult/​?q=​World+​Decl​arat​ion+​on+​the+​Enviro​nmen​tal+​Rule+​of+​Law . 14   World Heritage Committee, Decision 43 COM 11A (2019). 15  UNESCO Policy on Engaging with Indigenous Peoples, https://​en.une​sco.org/​ind​igen​ous-​peop​les/​ pol​icy. 16   United Nations Declaration the Rights of Indigenous Peoples, UN Doc. A/​RES/​61/​295 (2007). 17   UNECE Convention on Access to Information, Public Participation in Decision-​making and Access to Justice in Environmental Matters (Aarhus Convention), 2161 UNTS 447 (1998).

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Placement on a Tentative List is a mandatory requirement as a basis for all properties intended to be nominated, and States Parties are encouraged to submit such a list at least one year prior to the submission of any nomination, according to paragraph 65 of the Operational Guidelines. The Tentative Lists are published on the World Heritage website. A number of States Parties have developed very extensive lists; others are more modest.18 A number of States Parties now also publish these lists on their own websites, while others have not published their tentative lists for various reasons.19 Given the current tendency to encourage no more than one nomination per country per year, those countries with many items on their Tentative Lists are obliged to hold their nominations in abeyance for a number of years. Tentative Lists are seen as performing an important function as a planning and evaluation tool for the States Parties, the Committee, the Secretariat, and the Advisory Bodies, by providing an indication by the States Parties of their future nominations. In particular, gaps in representativeness of nominations can be identified. In addition, items that may be potentially over-​represented on the World Heritage List can also be identified through the process of Tentative Listing.20 (See the commentaries on Art. 4 by Carducci, Art. 11(1) by Buzzini and Condorelli, and Art. 2 by Redgwell, and Operational Guidelines, Annex 7 I.2.) The concept of the ‘Upstream Process’ was first introduced in 2010 to address some of the difficulties presented by nominations that are considered challenging. It was inserted into paragraph 71 of the Operational Guidelines in 2015:21 ‘. . . States Parties are encouraged to seek as early as possible upstream advice from the Advisory Bodies during the development of their Tentative Lists as appropriate’. Paragraphs 121 and 122 provide detailed guidance as well as further rationale for the use of the ‘Upstream Process’ as a non-​mandatory element preceding the Preliminary Assessment of a World Heritage nomination. As noted by the World Heritage Centre:

18   As of 2023, of the 194 States Parties to the Convention, 185 had submitted a Tentative List: http://​whc. une​sco.org/​en/​ten​tati​veli​sts. The website contains the following important disclaimer:

The Tentative Lists of States Parties are published by the World Heritage Centre at its website and/​or in working documents in order to ensure transparency, access to information and to facilitate harmonization of Tentative Lists at regional and thematic levels. The sole responsibility for the content of each Tentative List lies with the State Party concerned. The publication of the Tentative Lists does not imply the expression of any opinion whatsoever of the World Heritage Committee or of the World Heritage Centre or of the Secretariat of UNESCO concerning the legal status of any country, territory, city or area or of its boundaries. 19  e.g. for some years Australia did not publish its Tentative List because the relevant legislation was seen to require that any property identified as a potential World Heritage item would attract the protective provisions of the legislation (the World Heritage Properties Conservation Act 1983 (Comm), repealed by the Environment Protection and Biodiversity Conservation Act 1999 (Comm)), and thus possibly subject the Australian federal government to litigation; see further Boer and Wiffen (note 5) pp.71–​72 and see below, text associated with note 24. 20   See the commentaries on Art. 4 by Carducci, Art. 11(1) by Buzzini and Condorelli, and Art. 2 by Redgwell, and see Operational Guidelines, Annex 7 I.2. See further, decision of the World Heritage Committee, 29th session, 2005, ‘Tentative List and States Parties submitted in conformity with the Operational Guidelines’, together with Annexes 1, 2, and 3, detailing the situation of Tentative Lists in all member countries. 21   Decision 39 COM 11 (201), Docs WHC-​04/​28.COM/​13.B I and II, https://​whc.une​sco.org/​docum​ ent/​5297 (ICOMOS) and https://​whc.une​sco.org/​docum​ent/​5298 (IUCN).

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This process is groundbreaking in that it enables the Advisory Bodies and the Secretariat to provide advance support in the form of advice, consultation and analysis, directly to States Parties prior to the preparation or submission of a nomination. The main aim of the Upstream Process is to reduce significant problems encountered during the evaluation process for more challenging nominations.22

The Upstream Process has now become an everyday part of the development and revision of Tentative Lists by State Parties.23 It must be borne in mind that after a property has been identified and its boundaries delineated by a State Party and a nomination prepared and submitted, it is the World Heritage Committee that makes the decision whether or not to list the property, not the State Party. The legal obligations that may arise by placing a property on a Tentative List must also be considered by a State Party. For example, in a case between the government of the state of Queensland and the Australian government24 it was argued by the Australian government that the effect of identification was that obligations under the Convention were automatically attracted when identified, or when placed on a Tentative List, whether or not, in the event, the property was listed on the World Heritage List. The court underlined the sovereign right of a State Party to identify the property, and the consequences of that identification, whether or not the property was ultimately accepted for listing. Referring in particular to Arts 4, 5, 8, 11 and 12, the court stated : What emerges from the terms of the Convention with clarity is that it is for a State Party to identify for itself the cultural and natural heritage on its territory. It is not a matter for the World Heritage Committee. The obligation of a State Party to protect, conserve, present and transmit to future generations the cultural and natural heritage situated on its territory does not flow from any listing upon the World Heritage List. It flows from identification by the State Party of its cultural and natural heritage, an identification that the State Party is under a duty to make. Once identified, even if there is a refusal to enter such a property on the World Heritage List, it does not cease to be part of the cultural or natural heritage and the obligations imposed by the Convention in relation to it remain in force. Whilst the inclusion of a property on the World Heritage List may, in a practical sense, confirm the appropriateness of the identification of that property by a State Party as part of its cultural or natural heritage, it leads to no other consequence under the Convention other than eligibility for international assistance.25

According to the logic of this case, if the obligations under the Convention are assumed by mere identification by the State Party without the property in fact being listed by the World Heritage Committee, the duties under Articles 4 and 5 of the Convention will automatically attach to that property. This point in particular underlines the serious nature of the preparation and submission of a Tentative List by any State party.

  https://​whc.une​sco.org/​en/​upst​ream​proc​ess/​.  See ICOMOS, Guidance on Developing and Revising World Heritage Tentative Lists (2020); an Upstream Process Format has been published in the Operational Guidelines: Annex 15. 24   The State of Queensland and Another v The Commonwealth of Australia and Another [1989] HCA 36, (1989) 167 CLR 232 FC 89/​029. 25   ibid [1989] HCA 36 at para. 12; (1989) 167 CLR 232 at 245. 22 23

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IV.  Factors to be Taken into Account in Identifying and Delineating Properties An initial question that arises for a State Party in identifying a property, putting it on a Tentative List, and then subsequently nominating the item, is whether it is only the criterion of ‘outstanding universal value’ that can or should be taken into account, or whether other considerations can also become part of that decision-​making process. Article 3 indicates clearly that it is for the State Party to decide which of its properties it wishes to identify. As noted earlier, Article 4 indicates that the duty of the State Party to carry out each of the duties there specified, including identification, ‘belongs primarily to that State’. However, if it is considered by the State Party that the property conforms to one or more of the elements of the definitions in Articles 1 and 2, and thus has the quality of outstanding universal value but that there are economic, political, cultural, spiritual, or other factors that militate against the nomination, is the State Party nevertheless obliged to identify the property and place it on its Tentative List? While the answer to this question is not clear, it could be argued that by recognising in some official way that the property has outstanding universal value without then placing it on the State Party’s Tentative List could be regarded as contrary to the aims of the Convention. A continuing and fundamental question concerning identification and delineation of properties is whether they should be classified as cultural or natural, or, in appropriate cases, a mixture of the two. This issue goes back to the historical foundations of the Convention itself, with the originally separate development of a cultural heritage instrument by UNESCO and a natural heritage instrument by IUCN.26 This history is reflected in part by the ten criteria for identification of properties, with the first six devoted to cultural heritage and the remaining four to natural heritage. An important addition to the Operational Guidelines was inserted in 2019 with respect to the adoption by State Parties to a human rights-​based approach in World Heritage processes. Paragraph 1.C 12 now provides: States Parties to the Convention are encouraged to adopt a human-​rights based approach, and ensure gender-​balanced participation of a wide variety of stakeholders and rights-​holders, including site managers, local and regional governments, local communities, indigenous peoples, non-​ governmental organizations (NGOs) and other interested parties and partners in the identification, nomination, management and protection processes of World Heritage properties.27

The significance of this new provision cannot be underestimated. It reflects an enhanced awareness of the need for States Parties to consider a much broader selection of all types of stakeholders. It builds on the right to participation in cultural life as recognized in Article 27 of the Universal Declaration of Human Rights,28 the work of the UN Human Rights Council on cultural rights and the protection of cultural heritage,29 and the Special 26   See M. Batisse and G. Bolla, The Invention of ‘World Heritage’, History Papers (UNESCO, 2005) see also B. Boer, ‘The Environment and Cultural Heritage’, in F. Francioni and A. F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, Oxford, 2020) and the commentary by Francioni on the Preamble in this volume. 27   Decision 43 COM11A; see also ICOMOS, ‘A shift towards rights-​based approaches in the Operational Guidelines’, 2 October 2019, https://​www.ico​mos.org/​en/​focus/​our-​com​mon-​dign​ity-​ini​tiat​ive-​rig​hts-​based-​ appro​ach/​61401-​a-​shift-​towa​rds-​rig​hts-​based-​app​roac​hes-​in-​the-​oper​atio​nal-​gui​deli​nes. 28   UNGA Res. 217 A(III) of 10 December 1948. 29   Human Rights Council, ‘Cultural rights and the protection of cultural heritage’, Doc. RES/​37/​1737/​ 17, 22 March 2018.

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Rapporteur in the field of cultural rights.30 It is of particular importance in the light of the commitments taken on by States Parties under the United Nations Declaration on the Rights of Indigenous Peoples, especially with regard to the principle of free, prior, and informed consent.31 The human rights-​based approach now included in paragraph 12 was the subject of the ‘Caux Call for Action on Rights-​based approaches in World Heritage’, which stated in part: We encourage the Committee, the Advisory Bodies and State Parties to build a common language and conceptual framework aimed at fully implementing human rights, taking into consideration claims made in local context, and in accordance with recognised international standards.32

Francioni and Lixinski have pointed to the tensions between heritage and human rights with respect to heritage conventions, and in particular the World Heritage Convention. They point out that ‘Perhaps the most problematic aspect of heritage listing as the primary means of (international) heritage protection that creates tension with human rights values and standards is the gap that exists between what is promised to communities when their heritage area is being “prepared” for inscription on a UNESCO list, and what they receive in actuality.’33 An example of these tensions was demonstrated by the drawn-​ out debates from 2015 to 2021 concerning the listing of the Kaeng Krachan Forestry Complex in Thailand, involving, inter alia, the rights and livelihoods of the Indigenous Karen people and other local communities to continue to inhabit their traditional lands within the World Heritage site.34

V.  Identifying Cultural Properties The assessment of outstanding universal value of a cultural property is assisted by the first six criteria spelled out in paragraph 77 of the Operational Guidelines, namely:

(i) represent a masterpiece of human creative genius;

30   See Office of the High Commissioner on Human Rights, Special Rapporteur in the field of cultural rights, https://​www.ohchr.org/​en/​iss​ues/​cul​tura​lrig​hts/​pages/​srcult​ural​righ​tsin​dex.aspx#:~:text=​Curr​ent%20mand​ ate%20hol​der,cultu​ral%20rig​hts%20in%20Octo​ber%202​021. 31   See note 16. An example of the consideration of rights of stakeholders, confirming the principle of free, prior, and informed consent, is seen in the nomination to the Tentative List by the Australian government in 2020 of the Murujuga cultural landscape in the state of Western Australia. The Tentative List submission was prepared by the Murujuga Aboriginal Corporation in partnership with the State government of Western Australia and with the support of the Australian government; see https://​whc.une​sco.org/​en/​ten​tati​veli​sts/​ 6445/​. The nomination did not go ahead until each of the five Indigenous traditional owner groups relating to the site gave consent. 32   See ‘Caux Call for Action on Rights-​based approaches in World Heritage’, in P. B. Larsen (ed.) World Heritage and Human Rights: Lessons from the Asia-​Pacific and Global Arena (Routledge, London, 2017) p. 317 at p. 318. 33   F. Francioni and L. Lixinski, ‘Opening the Toolbox of International Human Rights Law in the Safeguarding of Cultural Heritage’, in A. Durbach and L. Lixinski (eds) Heritage, Culture and Rights: Challenging Legal Discourses (Hart, Oxford, 2017) esp. pp. 20–​24. 34   Decision 43 COM 8B.5, Kaeng Krachan Forest Complex (Thailand) (Bonn, 2015): https://​whc.une​sco. org/​en/​decisi​ons/​7360/​; the site was listed in July 2021: https://​whc.une​sco.org/​en/​list/​1461/​; see also IUCN, ‘Statement on the inscription of Kaeng Krachan Forest Complex onto the World Heritage List’, noting that these issues had not been resolved, and IWGIA, ‘UNESCO World Heritage Committee tramples on human rights’, 28 July 2021, https://​www.iucn.org/​news/​secr​etar​iat/​202​107/​iucn-​statem​ent-​insc​ript​ion-​kaeng-​krac​ han-​for​est-​comp​lex-​world-​herit​age-​list.

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(ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-​ planning or landscape design; (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history; (v) be an outstanding example of a traditional human settlement, land-​use, or sea-​use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change; (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (The Committee considers that this criterion should preferably be used in conjunction with other criteria).35

Whilst a cultural property requires only one of these criteria to be satisfied, it is common (and, indeed, desirable) for more than one to be relied on in a nomination. Note that for criterion (vi), the Committee has made clear its preference for multiple criteria to be used. There are, however, instances where only this criterion has been used, notwithstanding this statement of preference.36 Further, one or more of the first six criteria can, of course, be combined with the final four in order to create a mixed cultural and natural heritage nomination, some of which can also be categorised as a ‘cultural landscape’ (see .

VI.  Identifying Natural Properties In addition to the definition of natural properties contained in Article 2 of the Convention, the identification of natural properties involves a consideration of the final four criteria in paragraph 77 of the Operational Guidelines:

(vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (viii) be outstanding examples representing major stages of earth’s history, including the record of life, significant on-​going geological processes in the development of landforms, or significant geomorphic or physiographic features; (ix) be outstanding examples representing significant on-​going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; (x) contain the most important and significant natural habitats for in-​situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.

Again, while only one of these criteria needs to be satisfied, often several criteria are relied upon. (See also the commentary on Art. 2 by Redgwell.)

  See the Criteria for Selection, http://​whc.une​sco.org/​en/​crite​ria/​.   e.g. Head-​Smashed-​In Buffalo Jump, Alberta, Canada, criterion C (vi); see http://​whc.une​sco.org/​en/​ list/​158. 35 36

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VII.  Identifying and Delineating Mixed Natural and Cultural Properties, and Cultural Landscapes The basis for identification of mixed natural and cultural properties is a combination of ‘a part or a whole of the definitions of both cultural and natural heritage laid out in Articles 1 and 2 of the Convention’ (Operational Guidelines, para. 46). The third paragraph of Article 1 of the Convention points to the possibility of a combined cultural and natural nomination. It reads: sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.

Thus, one or more cultural criteria (i) to (vi) and one or more criteria of the natural criteria (vii) to (x) in paragraph 77 of the Operational Guidelines must be satisfied in order that a mixed nomination can be put forward. Up to 2023, 39 examples of mixed properties have been listed in 31 countries.37 One of the significant characteristics of mixed properties is that they recognise the cultural interactions of Indigenous peoples and traditional communities. Some of these can be categorised as both mixed properties and cultural landscapes, as a result of the category of ‘cultural landscapes’ being added to the Operational Guidelines in the early 1990s.38 (See commentary by Amy Strecker on Article 1, Cultural Landscapes.) Cultural landscapes are based on the third paragraph of the definition of ‘cultural heritage’ in Article 1 set out above. Paragraph 46 of the Operational Guidelines reads: Cultural landscapes are cultural properties and represent the ‘combined works of nature and of man’ designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/​or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal. The three categories of cultural landscapes are set out in the Operational Guidelines, para. 47bis. In summary, they are (i) ‘landscapes designed and created intentionally by people’ (ii) organically evolved landscapes and (iii) associative cultural landscapes. This last category can form the basis of inscriptions ‘by virtue of the powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence, which may be insignificant or even absent’.

One of the significant characteristics of some of these properties is that they recognize the cultural interactions of Indigenous peoples and traditional communities with both the physical and non-​tangible characteristics of the land, and can be categorized as ‘associative cultural landscapes’. 39

37   World Heritage List, Mixed Properties category, http://​whc.une​sco.org/​en/​list/​?sea​rch=​&search​_​by_​coun​ try=​&type=​Mixed&media=​®​ion=​&order=​. 38   The history of the tortured development of the concept of cultural landscapes under the Convention is canvassed in ch. 3 of C. Cameron and M. Rössler, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate, Aldershot, 2013); see also a critique by Christoph Brumann and Aurélie Élisa Gfelle, ‘Cultural landscapes and the UNESCO World Heritage List: perpetuating European dominance’, International Journal of Heritage Studies, 2022, Vol 28, no 2 147-​162 39   For examples of mixed categories involving Indigenous peoples and traditional communities, see the Cliff of Bandiagara (Land of the Dogons) in Mali, http://​whc.une​sco.org/​en/​list/​516, the Ukhahlamba/​Drakensberg

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VIII.  Visual Impacts, Buffer Zones, and the Process of Delineation The considerations involved in the delineation of the boundaries of natural properties and cultural properties are often similar. A primary question is the physical extent to which the property should be regarded as having outstanding universal value. This is sometimes a difficult issue, involving the exercise of technical expertise, aesthetic judgement, and cultural sensitivity. Further complications may arise where there is perceived to be a need for a buffer zone to protect the property. Paragraph 103 of the Operational Guidelines indicates that an ‘adequate buffer zone’ should be provided whenever necessary for the ‘proper protection’ of the property. A buffer zone is defined in paragraph 104 as an area: surrounding the nominated property which has complementary legal and/​or customary restrictions placed on its use and development to give an added layer of protection to the property. This should include the immediate setting of the nominated property, important views and other areas or attributes that are functionally important as a support to the property and its protection.

The size and characteristics of an adequate buffer zone clearly depend on the character and surroundings of the World Heritage property. For natural properties, the considerations include the need to ensure that related ecosystems remain intact, in order to promote the protection of the listed area. For both natural and cultural sites, visual and aesthetic issues concerning planned development are crucial matters. The incidental effect of a generous buffer zone may involve the protection of parts of heritage properties that would not necessarily qualify under the criterion of outstanding universal value, and that otherwise may be threatened by development. The rationale for a buffer zone in the urban context is mainly to reduce the visual impact of new development on the historic buildings in the vicinity. An example of the problem of visual impact and the need for a buffer zone was seen with the listing of Cologne Cathedral in Germany on the List of World Heritage in Danger, where high-​rise development threatened the visual integrity of the property by obscuring some of the sightlines to the cathedral. The 29th session of the Committee in 2005 recalled ‘the urgent need for a clearly designated buffer zone that extends to both sides of the river, and takes into account the protection of the visual integrity of the property . . .’40 Another example of visual impacts and the need for separation between historic fabric and modern development is seen in the ‘In Danger’ listing of Kathmandu Valley in Nepal in 2003, and in particular the problems associated with the ancient Durbar Squares in Kathmandu, Patan, and Bhaktapur, where the local authorities were unable or unwilling to stop the ongoing construction of modern buildings adjacent to and in the immediate Park in South Africa, http://​whc.une​sco.org/​en/​list/​985, Tongariro National Park in New Zealand, http://​whc. une​sco.org/​en/​list/​421, and five properties in Australia: Kakadu National Park, http://​whc.une​sco.org/​en/​list/​ 147 , Willandra Lakes Region, http://​whc.une​sco.org/​en/​list/​167, Tasmanian Wilderness, http://​whc.une​sco. org/​en/​list/​181, the Uluru–​Kata Tjuta National Park, http://​whc.une​sco.org/​en/​list/​447, and the Budj Bim Cultural Landscape, https://​whc.une​sco.org/​en/​list/​1577/​.   Report of the 29th session of the World Heritage Committee, Durban, 2005, pp 46–​47, http://​whc.une​ sco.org/​en/​decisi​ons/​&id_​d​ecis​ion=​348; see Doc. WHC-​05/​29.COM/​7A. Regarding the subsequent 2006 decision of the World Heritage Committee to remove the cathedral from the List of World Heritage in Danger, see the commentary on Arts 8–​11 by Scovazzi, Section IV.B. The property was removed from the List of World Heritage in Danger in 2006: ‘Cologne Cathedral (Germany), Djoudj Bird Sanctuary (Senegal), Ichkeul National Park (Tunisia), and Hampi (India) removed from List of World Heritage in Danger’, https://​whc. une​sco.org/​en/​news/​264/​. See also D. Zacharias, ‘Cologne Cathedral versus Skyscrapers—​World Heritage as Archetype of a Multilevel System’ (2006) 10 Max Planck UNYB 273–​366. 40

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vicinity of the monuments.41 A further example is the deletion from the World Heritage List of Liverpool –​Maritime Mercantile City (UK) ‘due to the irreversible loss of attributes conveying the outstanding universal value of the property’, as new construction within the site and in the buffer zone were seen as ‘detrimental to the site’s authenticity and integrity’.42 In dealing with the issue of how heritage properties and modern architecture can be reconciled, attention is drawn to the Vienna Memorandum on ‘World Heritage and Contemporary Architecture—​Managing the Historic Urban Landscape’43 and the United Nations Declaration on the Conservation of Historic Urban Landscapes 2005.44 The Vienna Memorandum canvasses the design and management considerations involved in integrating modern architecture with historic buildings. It recommends, among other things, the following: With regard to historic urban areas already inscribed on the World Heritage List, the concept of the historic urban landscape and the recommendations expressed in this Memorandum need to be taken into account when reviewing any potential or ascertained impact on the integrity of a World Heritage property. These principles should be enhanced by plans which delineate the specific measures to be taken for the protection of the historic urban landscape.45

There are now over 300 World Heritage cities as of 2023.46 There is no doubt that conflicts will continue to arise between the need to conserve World Heritage cities or World Heritage historic centres47 and individual buildings within cities, and the nearby construction of modern functional buildings designed according to contemporary architectural styles and standards.48 In part to address these issues, and building on the Vienna Memorandum, the UNESCO Recommendation on the Historic Urban Landscape called on member states ‘to integrate conservation and management of cultural heritage in cities and settlements with policies and practices for sustainable urban development. This innovative standard-​setting instrument embraces the power of cultural heritage to make

41   See World Heritage website, Kathmandu Valley Inscription on the List of World Heritage in Danger, Decision 27 COM 7B.52, https://​whc.une​sco.org/​en/​decisi​ons/​693; Kathmandu Valley was removed from the In Danger List in 2007: Royal Palaces of Abomey and Kathmandu removed from the In Danger List, https://whc.unesco.org/en/news/356. 42   UNESCO ‘World Heritage Committee deletes Liverpool -​Maritime Mercantile City from UNESCO’s World Heritage List’: https://www.unesco.org/en/articles/world-heritage-committee-deletes-liverpool-maritimemercantile-city-unescos-world-heritage-list. 43  Vienna Memorandum on World Heritage and Contemporary Architecture: http://​www.ico​mos.org/​ usico​mos/​Scient​ific​_​Com​mitt​ees/​Lan​dsca​pes/​UNE​SCO-​Vienn​aMem​oran​dum-​2005.pdf; this Memorandum was generated at an international conference on World Heritage and Contemporary Architecture—​Managing the Historic Urban Landscape, Vienna, Austria, May 2005. Some 70 case studies were presented concerning high-​rise or contemporary architectural interventions in both historic cities and urban landscapes of heritage value: see http://​ whc.unesco.org/​en/​activities/​48 . 44   Declaration on the Conservation of Historic Urban Landscapes WHC-​05/​15.GA/​7 23 September 2005, http://​whc.une​sco.org/​uplo​ads/​act​ivit​ies/​proje​cts/​docume​nts/​proj​ect-​67-​3.pdf. 45   Vienna Memorandum, para. 32. 46   World Heritage Cities Programme, map: https://​whc.une​sco.org/​en/​cit​ies 47   In 2023, there were 139 properties listed as ‘historic centres’: https://​whc.une​sco.org/​en/​list/​?sea​rch=​histo​ ric+​cen​tre&order=​coun​try 48  Conference on World Heritage and Contemporary Architecture—​ Managing the Historic Urban Landscape, 2005, http://​whc.une​sco.org/​en/​act​ivit​ies/​48.

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cities and settlements culturally vibrant, economically prosperous, socially inclusive, and environmentally sustainable.’49

IX.  Delineating Boundaries of Properties Deciding what to include within the physical boundaries in a cultural property nomination can be a difficult process. Variables include the extent to which the surrounding area forms a buffer between the item and buildings or areas which may be necessary for the preservation of visual integrity by the protection of sight lines, the need to include buildings or structures that may be necessary to give the site a broader historical, and/​or architectural context. (See the commentary on Art. 1 by Yusuf.) In relation to natural areas, such as a lake or forested area contiguous to the site, even though these areas would not of themselves qualify for World Heritage nomination, their protection is nevertheless often necessary in order to safeguard the World Heritage values of the listed property. (See the commentary on Art. 2 by Redgwell.) Delineation of the physical boundaries of properties may require advice from the Advisory Bodies, the International Council on Monuments (ICOMOS), and the International Union for Conservation of Nature as part of the evaluation process for a World Heritage nomination (see generally, Operational Guidelines, paras 35 and 37).

X.  Preparation of Nominations of Identified Properties As noted earlier, it is the responsibility of the State Party to identify and delineate properties under Article 3, to submit inventories, and to prepare and submit nominations (Art. 11(1) and Operational Guidelines, paras 120–​142). States Parties are encouraged to bring together their cultural and natural heritage experts as well as representatives of the Advisory Bodies and other partners to participate in deliberations on the implementation of the Convention (Operational Guidelines, para. 14). Paragraph 14bis, added in 2019, has broadened the range of considerations that States Parties should take into account by mainstreaming into their programmes and activities the various principles of the relevant policies adopted by the World Heritage Committee, the General Assembly of States Parties, and the UNESCO Governing Bodies. Significantly, these include the ‘Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ and the ‘UNESCO policy on engaging with indigenous peoples’,50 the 2030 Agenda for Sustainable Development,51 and international human rights standards. While the reference to human rights standards is vague, it can be taken to refer at least to the right to participate in cultural life as found in the Universal Declaration on Human Rights,52 the International Covenant on Civil and Political Rights,53 the International Covenant 49  Recommendation on the Historic Urban Landscape, 36 C/​Resolution 41, General Conference of UNESCO at its 36th session on 10 November 2011, https://​whc.une​sco.org/​en/​hul/​. 50   See UNESCO Policy on Engaging with Indigenous Peoples (note 15). 51   ‘Transforming our World: the 2030 Agenda for Sustainable Development’, 2015, https://​sdgs.un.org/​ 203​0age​nda. 52   See note 28. 53   International Covenant on Civil and Political Rights, 999 UNTS 171 (1966).

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on Economic, Social and Cultural Rights,54 and the United Nations Declaration on the Rights of Indigenous Peoples.55

XI.  Identification and Delineation of Transnational and Transboundary Properties The Convention under Article 11(3) and the Operational Guidelines in paragraph 134 contemplate the nomination of transboundary properties. These are properties that are located on the territory of relevant States Parties having adjacent borders. The Operational Guidelines indicate that the nomination should be prepared jointly, and that a joint management committee should be established (para. 135). There were 43 transboundary properties involving 67 States Parties as of 2023.56 The most numerous multilateral nomination, the Struve Geodetic Arc, is shared between ten States Parties with adjacent borders.57 Examples of bilateral transboundary properties are the Waterton Glacier International Peace Park, shared between Canada and the United States,58 the Mosi-​oa-​ Tunya/​Victoria Falls World Heritage site, jointly managed by Zambia and Zimbabwe,59 and the Curonian Spit, a 98-​kilometre sand-​dune spit shared by the Curonian Spit National Park in Lithuania and the Kurshskaya National Park of the Russian Federation.60

XII.  Identification and Delineation of Serial Properties Serial nominations are those made up of a number of component parts that, as set out in paragraph 137(a) of the Operational Guidelines, ‘should reflect cultural, social or functional links over time that provide, where relevant, landscape, ecological, evolutionary or habitat connectivity’. Serial nominations often raise inherently complex issues and detailed responses.61 The individual component parts of a nominated property need not have outstanding universal value, provided that the series as a whole is of outstanding universal value (see Operational Guidelines, para. 137(b) and (c)). A serial listing can occur within the national territory of one State Party or within the territories of several State Parties. Relevant states need not be contiguous, as made clear in paragraph 138. An example of an extensive serial property is the Mexican nomination of the Islands and Protected Areas of the Gulf of California, comprising 244 islands, islets, and coastal areas.62 In Europe, the listing in 2016 of 17 properties by seven countries focused on the architecture of Le Corbusier, and provides an example of an extensive serial nomination

  International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (1966).   See note 16. 56   Transboundary properties, https://​whc.une​sco.org/​en/​list/​?&transb​ound​ary=​1. 57   The Struve Geodetic Arc is a chain of survey triangulations from Norway to the Black Sea; the parties are Belarus, Estonia, Finland, Latvia, Lithuania, Norway, Republic of Moldavia, Russian Federation, Sweden, and Ukraine: https://​whc.une​sco.org/​en/​list/​1187/​. 58   Waterton Glacier International Peace Park, https://​whc.une​sco.org/​en/​list/​354/​. 59   Mosi-​oa-​Tunya/​Victoria Falls, https://​whc.une​sco.org/​en/​list/​509/​. 60   Curonian Spit, https://​whc.une​sco.org/​en/​list/​994. 61   ‘Large Complex Serial Transnational Nominations and the Need for Nomination Strategies’, Decision 41 COM 8B.50 (2017), https://​whc.une​sco.org/​en/​decisi​ons/​6922/​. 62   Islands and Protected Areas of the Gulf of California, https://​whc.une​sco.org/​en/​list/​1182/​. 54 55

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devoted to the work of a single architect, described as ‘a testimonial to the invention of a new architectural language that made a break with the past’.63 Another example is ‘The Limes’, consisting of sections of the border line of the Roman Empire at its greatest extent in the second century CE, exemplifying a complex serial listing over three decades from 1987 to 2021 of transboundary cultural sites across Germany and the United Kingdom of Great Britain and Northern Ireland64 as one section, the Netherlands and Germany65 as another section, and Austria, Germany, and Slovakia66 as a third section. The nomination of serial sites must conform to the same legal and management prescriptions as for single sites. Obviously, with comprehensive serial nominations, this is a complex task. Paragraph 138bis of the Operational Guidelines require the establishment of ‘a joint management committee or similar body to oversee the management of the whole of a nominated serial transnational property’. Where the serial sites within one State Party’s territory are classified as protected areas under one piece of federal legislation, as in the Gulf of California nomination by Mexico,67 it may be considerably easier to conform to the requirements of the Convention and the Operational Guidelines. Another example of a national serial listing is the 11 ‘convict sites’ spanning three non-​contiguous Australian sub-​national state jurisdictions.68 These sites are subject to the detailed World Heritage Principles specified in the Australian federal legislation69 as well as the relevant laws of the Australian state jurisdictions.

XIII.  Identification of World Heritage Properties in Danger Article 11(4) of the Convention establishes the List of World Heritage in Danger. As noted in the commentary on Article 11 by Buzzini and Condorelli, States Parties can nominate one of their properties to this List, or the Committee can place a property on this List without the consent of the State Party once certain conditions are satisfied, or can remove it from the List (see Operational Guidelines, paras 177–​199).70 The process of identifying a property that may need to be listed on the In Danger List must take into account the terms of Article 11(4) together with the four requirements of paragraph 177, as to whether the property under consideration is on the World Heritage List, whether it is threatened by serious and specific danger, whether major operations are necessary to conserve it, and whether assistance has been requested for the property ‘by any Committee member or by the Secretariat’.  The Architectural Work of Le Corbusier, an Outstanding Contribution to the Modern Movement, https://​whc.une​sco.org/​en/​list/​1321/​. 64   Frontiers of the Roman Empire, listed in 1987, https://​whc.une​sco.org/​en/​list/​430. 65   Frontiers of the Roman Empire—​The Lower German Limes, listed in 2021, https://​whc.une​sco.org/​en/​ list/​1631/​. 66   Frontiers of the Roman Empire—​The Danube Limes (Western Segment), listed in 2021, https://​whc.une​sco.org/​en/​list/​1608. 67   General Law for Ecological Balance and Environmental Protection of Mexico 1988 (Mexico, as amended) . 68   The Australian Convict sites relate to places where convicts from Great Britain were transported to, incarcerated, and worked, form the 1780s to the 1860s. The sites are located in the states of New South Wales, Tasmania, and Western Australia, listed under criteria (iv) and (vi), https://​www.awe.gov.au/​parks-​herit​age/​ herit​age/​pla​ces/​world/​conv​ict-​sites. 69  Environment Protection and Biodiversity Conservation Regulations 2000 (Australia), Schedule 5, Part 10.1. Australian World Heritage management principles. 70   See also IUCN, Draft Operational Guidelines: An Analysis of the Legal Issues, 14 May 2002, Doc. WHC-​02/​CONF.202/​INF.12, https://whc.unesco.org/en/documents/1389. 63

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The placing of a property on the List of World Heritage in Danger can, of course, have political and economic repercussions, which is why some States Parties may wish assiduously to avoid such a listing. The example of Kathmandu Valley illustrates this. When the Nepalese authorities could not efficiently manage to meet the threats to the endangered property in the Kathmandu Valley,71 the World Heritage Committee decided in 2003 to inscribe this site in the List of World Heritage in Danger, despite opposition from the Nepalese authorities.72 In another example, a difficult situation also arose in Australia in the late 1990s, when the World Heritage Committee was called upon to consider the placing of Kakadu National Park in the Northern Territory on the List of World Heritage in Danger.73 (See the commentary on Art. 11, para. 4, by Buzzini and Condorelli.) Similarly, also in Australia, the Great Barrier Reef has twice been threatened with placement on the In Danger List in 201574 and 2021.75 There have been occasions where the nomination of a property to the World Heritage List has been accompanied by an immediate placing of the property on the List of World Heritage in Danger.76 This generally has the effect of promoting more immediate international technical and financial assistance to address the threats to the property.

XIV.  Global Strategy for a Balanced, Representative, and Credible World Heritage List In considering the Tentative List and the nominations from States Parties, the Committee must also take into account the Global Strategy for a Balanced, Representative and Credible World Heritage List.77 The Operational Guidelines encourage the States Parties, the World Heritage Committee, and the Advisory Bodies to participate in the implementation of the Global Strategy. The Operational Guidelines also indicate that all efforts should be made to maintain a ‘reasonable balance’ between cultural and natural heritage on the List. Given the quite different characteristics of most cultural and natural properties, the question is what criteria should be applied in bringing these numbers into balance over time. With a view to addressing this question, and promoting a more balanced list, the Committee merged the criteria for assessment of outstanding universal value for cultural and natural properties into one set of ten criteria, as found in paragraph 77 of the

  See the Report of the 24th session of the World Heritage Committee, Cairns, 2000, VIII.32.   See Decision 27COM 7B.52 from the 27th session of the World Heritage Committee, Paris, 2003. 73   See World Heritage website, http://​whc.une​sco.org/​en/​news/​127. 74   Decision 39 COM 7B.7, Great Barrier Reef (Australia) (N 154) (Bonn, 2015). 75   Decision 44 COM 7B.90, Great Barrier Reef (Australia) (N 154) (Fuzhou, 2021), https://​whc.une​sco. org/​en/​decisi​ons/​7807; the final decision as to whether the In Danger listing would go ahead was pending at the time of publication. 76   Examples include Angkor Wat, Cambodia (see the Report of the 16th session of the World Heritage Committee, Santa Fe, 1992) removed from the List of World Heritage in Danger in 2004 (see Decision 28COM 15A.23 from the 28th session of the World Heritage Committee, Suzhou, 2004); Minaret and Archaeological Remains of Jam, Afghanistan (2002); Cultural Landscape and Archaeological Remains of the Bamiyan Valley, Afghanistan (2003); Bam and its Cultural Landscape, Iran (2004). 77   Adopted by the Committee in 1994; see Operational Guidelines, paras 54–​58. 71 72

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Operational Guidelines. In addition, since 1996 the Committee has required a common set of conditions of integrity to be applied (paras. 78–95).78 Despite various efforts, the balance of cultural and natural listings has remained in similar proportions to that of 1994. The current number (in 2023) of cultural properties (900) outnumbers the number of natural properties (218).79

78   Revision of the Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.96/​CONF.201/​18, https://​whc.une​sco.org/​en/​decisi​ons/​3010/​. 79   World Heritage List, http://​whc.une​sco.org/​en/​list/​ .

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Article 4 Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-​operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain. Article 5 To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country: a. to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; b. to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c. to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; d. to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and e. to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field. Article 6 1. Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate. 2. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request. 3. Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

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Article 7 For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-​operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.

I. Scope of Chapter II and Autonomy from Chapter III  100 II. Importance of Chapter II  104 A. Significance under International and Intergovernmental Perspectives  104 B. Existence and Significance of a ‘Collective Interest’ of the International Community as a Whole in the Protection of Heritage  105 C. Structure of the Convention  105 D. Double Coverage  105 III. Commentary’s Approach  105 IV. Article 4  106 A. Heritage Concerned  106 B. Content of Duty  106 1. Identification 107 2. Protection 107 3. Presentation 107 4. Transmission of heritage to future generations 107 C. Who is the Duty Bearer? The International Community as a Whole or the Territorial State Party?  108 D. Nature of the Duty  109 E. International Assistance and Cooperation  109 V. Article 5  109 A. Importance  109 B. Scope  110 C. Nature of the Obligation  110 D. Content  110 E. An Open-​Ended List  110 F. The 1972 Recommendation Might Assist Only the National Protection of Special Value Heritage  111 VI. Article 6  111 A. Commentary on Paragraph 1  111 B. The Convention, Article 6, and the Law of Treaties  114 C. Commentary on Paragraph 2  115 D. Commentary on Paragraph 3  116 1. Content and scope 116 2. State responsibility 117 3. The 2003 UNESCO Declaration 118 VII. Article 7  120 VIII.  Collective Interest, Erga Omnes (Partes) Obligations, and State Enforceability  120 A. Common Heritage of Mankind—​Erga Omnes Obligations  120 B. Where Does the Convention Stand?  123 C. Does the Convention Clearly Express the Existence of a ‘Collective Interest’?  124 D. Does the Protection of Heritage Under the Convention Match the Requirement of the ‘Importance’ of the Interest Involved Required by the ICJ?  126 E. From Erga Omnes to Erga Omnes Partes Obligations With Regard to Treaty Law  127

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F. Does the Convention Establish Obligations Relevant for and Enforceable Under Article 48(1) of the International Law Commission’s Articles on State Responsibility?  G. Conclusions  H. Suitability of State Responsibility and its Remedies for Heritage Protection Purposes 

128 130 131

Private and public international law offer various mechanisms of legal protection for cultural property and heritage. They offer a higher or lower protection threshold depending on, respectively, the applicable law (in private international law or conflict of laws) or international law rule (in public international law).1 The 1972 Convention (hereinafter the Convention) belongs to (public) international law and directly governs its subject matter—​cultural and natural heritage—​by substantive provisions. The Convention does not entail private international or conflict of laws rules determining an applicable law. While the Convention has gained importance over the years, through increasing membership and visibility of its Lists, few studies initially commented on the Convention following its adoption in 1972.2 Chapter II of the Convention is particularly important from a legal and policy-​making perspective. However, before entering into an analysis of each provision, some introductory observations seem necessary.

I.  Scope of Chapter II and Autonomy from Chapter III The title of Chapter II is ‘National Protection and International Protection of the Cultural and Natural Heritage’. While it certainly relies on Articles 1 and 2 with regard to the definition of cultural and natural heritage having ‘outstanding universal value’ for the purposes of the Convention, Chapter II is particularly important, per se and in its autonomy from other Chapters, in particular from Chapter III, where Articles 11–​13 deal with the ‘Lists’—​one of the most visible features of the Convention. To prevent some common assumptions or misunderstandings, the following points and clarifications should be considered: 1.  Legally, States Parties are bound by and implement treaties within their scope of application. It is not the Convention which ‘protects’ the heritage, but States Parties that ‘protect’ the heritage on their territory by acting in compliance with the Convention at the national level. More indirect language used at times, even in official texts3—​whereby the Convention ‘ensures the protection’—​is undesirable and rather confusing. Focus should instead be on the key role and effective action of States Parties in compliance with the Convention for 1   e.g. G. Carducci, ‘Beni culturali in diritto internazionale pubblico e privato’, in Enciclopedia Giuridica Treccani (Treccani, Rome, 2000). 2   e.g. E. J. Roucounas, ‘Aspects juridiques de la protection du “patrimoine mondial, culturel et naturel” ’ (1972) 25 RHDI 42; R. L. Meyer, ‘Travaux Préparatoires for the UNESCO World Heritage Convention’ (1976) 2 ELJ 45. 3   UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC 21/​01, 31 July 2021, para. 52: ‘The Convention is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint.’ ’

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the purposes of this protection. The active role of the Secretariat and of the World Heritage Committee (hereinafter WH Committee) represents no exception, and also reflects their functions and duties to be performed in compliance with the Convention. 2.  Chapter II applies directly to States Parties. The application of Chapter II to a specific heritage requires: (a) that it belongs to the type of ‘cultural’ (monuments, groups of buildings, sites, see Article 1) or of ‘natural’ (natural features, geological and physiological formations, natural sites, see Art. 2) heritage; and (b) that it possesses outstanding universal value.4 If these two conditions are met, Chapter II applies and the territorial State Party is bound to comply with the obligations established in it.5 Then also other provisions of the Convention apply as soon as the WH Committee confirms that the heritage at stake is of outstanding universal value and is consequently inscribed on the List.6 The definitions of heritage in Articles 1 and 2 of the Convention were presented as the ‘keystone of the building’ at the end of the drafting exercise of the Special Committee of government experts,7 on 21 April 1972.8 3.  The WH Committee is the organ in charge of testing and confirming the existence of (or inversely, the lack of ) these two conditions (above, point 2) and, in particular, the existence of an outstanding universal value.9 In practice, each State Party is to test these two conditions with regard to the property concerned well before the state submits it to the WH Committee. The territorial State Party does so in compliance with its general (Arts 3, 4) and then specific identification duty as to the property it submits to the WH Committee (Art. 11, para. 1).10 This is the role of the territorial State Party even in those exceptional cases where it is assisted by another State Party in the process of identifying the heritage in its territory.11 4.  Despite the significant role of the territorial State Party and its legislation for its own purposes, the Convention defines the threshold of significance of the heritage—​ ‘Outstanding Universal Value’ (Arts 1 and 2)—and leaves to the WH Committee the elaboration of the relevant criteria for assessing such significance. The criteria are presented in the Operational Guidelines, as progressively revised. For the sake of clarity, their paragraph 49 reads:   As duly reflected in the Operational Guidelines, e.g., paras 4 and 7.   These two preliminary tests are necessary for the applicability (ratione materiae and loci) of the Convention with regard to the heritage and the territorial State Party in question. However, in a technical sense, Art. 3 applies before and prepares States Parties for these preliminary tests. 6   Art. 11. 7   This Committee was held at UNESCO in Paris from 4–​22 April 1972 to examine and finalize, on the basis of drafts submitted by the UNESCO Secretariat, a draft Convention and a draft Recommendation for the protection of the cultural and natural heritage of mankind. Sixty Member States of UNESCO took part in the proceedings and six other member states and two non-​member states were represented by observers. It held 22 plenary meetings to study the draft Convention and set up a drafting committee. There were 128 draft amendments to the draft Convention presented to the Committee. 8   At that time, the title and the mandate of this drafting entity was the ‘Special Committee of Government Experts to Prepare a Draft Convention and a Draft Recommendation to Member States Concerning the Protection of Monuments, Groups of Buildings and Sites’ (UNESCO Headquarters, 4–​22 April 1972), Doc. SHC.72/​Conf.37/​19, p. 4. 9   Generally, the inscription is first on the World Heritage List (Art. 11, para. 2) and then, where appropriate, from that List the property may be inscribed on the List of World Heritage in Danger (Art. 11, para. 4). 10   Interestingly enough, the mandatory language of the Convention in Art. 11, para. 1 (‘shall’, though qualified with ‘in so far as possible’), has over the years become, in the Committee’s view and in its Operational Guidelines (para. 50), a mere invitation to States Parties to submit nominations of properties. 11   See Art. 6, para. 2. 4 5

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Outstanding Universal Value means cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole. The Committee defines the criteria for the inscription of properties on the World Heritage List.

Whatever the views of the territorial (where the heritage is located) State Party as to the criteria adopted by the WH Committee, only these criteria are relevant under the Convention. They have extended over time and are significantly broader than what one may expect under ‘outstanding universal value’ per se or in a narrow sense. Indeed, these criteria, beyond their understanding of such value,12 include also the conditions of integrity and/​or authenticity, as well as of an adequate protection and management system to ensure their safeguarding.13 The territorial State Party’s criteria in its national legislation identify and govern heritage in its territory for this legislation’s purposes, while they are irrelevant under the Convention.14 For instance: • For the State Party itself. Once a state is party to the Convention, the remark that a state remains free to decide whether to grant national or an international significance to its heritage15 may be misleading as to the latter, to the extent that the value and criteria to assess the international significance of its heritage are exclusively internationally defined (by the WH Committee) and States Parties are to identify properties according to these criteria and submit to the WH Committee the resulting qualified heritage. • Vis-​à-​vis other States Parties. For instance, if a State Party requests assistance from other States Parties with regard to a heritage site on its territory that the requesting state alleges to fall under the scope of the Convention—​in view of an outstanding universal value which it construed under criteria that are different or less demanding than those set out in the Operational Guidelines—​then the other States Parties concerned are not required to treat this request of assistance as being governed by the Convention. They may wish to respond, even to assist if assistance is sought, but such response will not be on the grounds of the Convention and compliance with it by States Parties is not required. These preliminary clarifications lead to the conclusion that Chapter II (National Protection and International Protection of the Cultural and Natural Heritage) is the most significant in terms of substance (i.e. protection) and operates autonomously from, and regardless of, Chapter III (Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage) even before and regardless of the possible inclusion of heritage, if the WH Committee characterizes it as one of ‘outstanding universal value’, in the World Heritage List (Art. 11, para. 2) or in the List of World Heritage in Danger   i.e. the Committee’s understanding, para. 77.   At present, see the current Guidelines (2021) paras 78–​119. 14   e.g. in the Report of the Special Committee of Government Experts (note 8) p. 6: ‘Each State Party may of course regard a property that is part of its cultural heritage or some part of its natural heritage as being of outstanding universal value, although it may not be considered as such for the purposes of the Convention—​that is, it may not be included in one of the two lists provided for in Article 11.’ 15   W. Rudolf, ‘Über den internationalen Schutz von Kulturgütern’, in Festschrift für Karl Doehring: Staat und Völkerrechtsordnung (Springer, Berlin, 1989) pp. 853, 863. 12 13

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(Art. 11, para. 4). Indeed, Chapter II operates autonomously by requiring States Parties to identify and protect both: 1. ‘ordinary’ cultural and natural heritage, though only ‘as appropriate for each country’ (Art. 5); and 2. cultural and natural heritage of ‘outstanding universal value’ on their territories even before the WH Committee confirms such value. In addition, under the Convention the territorial State Party ‘will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-​operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain’ (Art. 4). Chapter II is thus the exclusive source of these two protection obligations (points 1 and 2)16 to the benefit of both categories of heritage, even before the WH Committee may decide, perhaps one day, that this heritage is of ‘outstanding universal value’. So these two obligations to protect (points 1 and 2) for any territorial State Party exist and apply exclusively on the basis of Chapter II. No joint reading with Article 12 is necessary to reach this conclusion.17 Of course, listed properties concern only cultural and natural heritage that the WH Committee characterizes as of ‘outstanding universal value’ (point 2, not point 1). With regard to heritage included in one of the Lists, States Parties are subject to additional obligations under the Convention and the concrete content of these obligations is defined by the WH Committee case by case, depending on the specific circumstances and status of the heritage at stake, later also in the broad framework of reactive monitoring18 and periodic reporting19 which may lead to additional protection obligations.20 16   Other kinds of obligations exist under other Chapters, such as identifying (Art. 3, although extended under Chapter II) or making regular contributions to the World Heritage Fund (Art. 16, para. 1). 17   Contra, for the opinion that protection of a non-​listed heritage requires a ‘joint reading’ of Arts 12 and 4, F. Francioni and F. Lenzerini, ‘The Obligation to Prevent and Avoid Destruction of Cultural Heritage: From Bamiyan to Iraq’, in B. Hoffman (ed.) Art and Cultural Heritage (Cambridge University Press, Cambridge, 2006) p. 33. 18 19   Operational Guidelines (2021), paras 169–​176.   ibid, paras 199–​210. 20   Committee Meetings offer various examples. One, inter alia, is in Decision 29 COM 7A.5 adopted at the 29th session of the World Heritage Committee (Durban, 2005), Doc. WHC-​05/​29.COM/​22, p. 13, on Simien National Park (Ethiopia), where, having taken note of the ‘State Party’s concern that the reduction of the human population within the park is very difficult to achieve under the prevailing conditions, despite efforts to initiate a voluntary resettlement programme’, the World Heritage Committee requests the State Party:

[Point 6] to undertake the following additional steps: a) map the extent of the agricultural encroachment within the park and monitor the level of encroachment annually; b) restrict use of the area by domestic livestock; c) undertake a household by household census of the people living within the park; d) continue the policy of zero tolerance of domestic dogs; e) set up a system to continuously monitor the human population in the property; and f ) consider strategic extensions to the park or its buffer zone to ensure that no further increase in agriculture, livestock and human populations occur. [Point 7] to continue to cooperate with the Canid specialist group of IUCN’s Species Survival Commission as well as other organizations (such as WildCODE, the Ethiopian Wolf Conservation Programme, the Frankfurt Zoological Society and Ethiopian Universities) to survey the population of Simien Fox at the property. [Point 8] to invite a joint mission of UNESCO and IUCN to the property to assess progress and review the possibility of removal of the property from the List of World Heritage in Danger at its 30th session [Vilnius, 2006]. [Point 9] to submit by 1 February 2006 a report on progress towards the achievement of the benchmarks set by the Committee for a removal of the property from the List of World Heritage in Danger as well as

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Paragraph 53 of the 2021 Operational Guidelines adds a self-​commitment of the territorial State Party to the effect that: Nominations presented to the Committee shall demonstrate the full commitment of the State Party to preserve the heritage concerned, within its means. Such commitment shall take the form of appropriate policy, legal, scientific, technical, administrative and financial measures adopted and proposed to protect the property and its Outstanding Universal Value.

II.  Importance of Chapter II Chapter II is particularly important from a legal and policy-​making perspective. It basically embodies in legal provisions what the drafters of the Convention felt the proper legal consequences of the specific scope (heritage of outstanding universal value) and objective of the Convention should be. What this specific scope represents is spelled out, not in the Convention, but by the WH Committee in its Operation Guidelines (para. 49): Outstanding Universal Value means cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole.

This exceptional scope and subject matter of the Convention are the raison d’être of most of the philosophy, structure (WH Committee and a Lists system), and provisions of the Convention. The importance of Chapter II is considered in the following subsections from different perspectives.

A.  Significance under International and Intergovernmental Perspectives Through Chapter II the drafters of the Convention took positions on: 1. The obligations of States Parties. Self-​evidently they are bound by the Convention and by other treaties they are parties to. 2. The expected roles of some qualified third states and the international community as a whole (see subsection B in commentary of Art. 6 and section VIII). Opposed to the rights and/​or obligations of States Parties, this terminology of ‘expected roles’ means any third state’s involvement in the protection of world heritage as members of the international community of states, obviously not as States Parties directly bound by the Convention. It is worth anticipating that under Article 6, paragraph 1: ‘the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate’.

on the implementation of additional recommendations by the Committee and to provide information on the development of a tourist lodge in the property.

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B.  Existence and Significance of a ‘Collective Interest’ of the International Community as a Whole in the Protection of Heritage Unlike the majority of treaties that follow the ordinary and traditional path of synallagmatic agreements and reciprocal obligations, the language of the Preamble and the objectives of the Convention raise the question of whether there exists a ‘collective interest’ of the international community as a whole in the protection of World heritage, and, if so, what its legal implications are. In particular, the question is whether the Convention entails at least some non-​synallagmatic obligations that are erga omnes partes from the perspective of their enforcement, and, if so, what their impact on heritage is. Section VIII covers these issues.

C.  Structure of the Convention Chapter II represents the first set of legal duties and protected interests, as well as operative provisions for States Parties. Chapter II remains distinct from Chapter I, which merely provides definitions of cultural and natural heritage (except to some extent Art. 3). Chapter II differs in nature from subsequent Chapters, which address both structures and mechanisms established by the Convention (Intergovernmental World Heritage Committee (III), Funding (IV), Conditions and Arrangements for International Assistance (V)), or serve broader objectives (Educational Programs (VI) and Reports (VII)).

D.  Double Coverage Chapter II covers both national and international protection. From this perspective, it is unique in the Convention and represents the most significant Chapter as to substance (i.e. protection). This significance is not reduced by the fact that, only with regard to international protection, the obligations established by Chapter II find most of their concrete terms in the WH Committee’s determinations, case by case, depending on the listed heritage at stake (see Art. 7 later).

III.  Commentary’s Approach A final introductory clarification: to remain concise, this commentary must stay focused on the main rule of interpretation of treaties; that is, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their object and purpose.21 So, self-​evidently only the Convention is the treaty and is commented upon as such. Despite their practical importance, the Operational Guidelines are adopted by the WH Committee—​which is composed of 21 States Parties—​and are neither treaty law nor a document agreed upon by all States Parties.22 States Parties are bound by the Convention. The Guidelines (No. 1) merely ‘aim to facilitate the implementation of the

21  Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 31, para. 1. 22   The Guidelines do not meet the requirements and are also excluded from the application of Art. 31(2)(b), Vienna Convention on the Law of Treaties.

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Convention ... by setting forth the procedures for’: (a) the inscription of properties on the Lists; (b) the protection and conservation of World Heritage properties; (c) the granting of international assistance; and (d) the mobilization of national and international support in favour of the Convention. A variety of existing documents of diverse nature and scope, produced by the Secretariat, the WH Committee, and States Parties in their implementation of a given provision of the Convention (projects financed under the Convention, etc.) exist and are not directly legally relevant as treaty-​law per se and for the purposes of this commentary on Chapter II. Some of these documents, where appropriate for other Chapters and provisions of the Convention, are referred to by other contributors (see, in particular, the commentaries on Arts 15–​29).

IV.  Article 4 The subject matter of this provision is the ‘duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory’. A similar duty may already exist under domestic legislation in non-​States Parties and apply to what the national authorities deem cultural and/​or natural heritage in their territory, which may perhaps encompass what the Convention describes as heritage in its Articles 1 and 2. If this country becomes a State Party to the Convention, Article 4 applies only to the cultural and natural heritage of outstanding universal value as defined by the Convention, while the pre-​existing legislation remains applicable to other heritage on the territory of that State Party. In any event, the duty established under Article 4 of the Convention is important from several perspectives.

A.  Heritage Concerned As noted earlier, Chapter II applies to heritage on the territory of States Parties, whether or not that heritage is listed under Article 11.23 The visibility of the World Heritage List should not lead the reader to confusion and to conclude that the whole Convention applies only to listed heritage; that is, cultural and natural heritage that the WH Committee has listed as it regards as ‘having outstanding universal value in terms of such criteria as it shall have established’.24

B.  Content of Duty This content consists of ensuring the identification, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2. These terms deserve some observations.

23   Inversely, before the final version of the Convention adopted on 16 November 1972, the Draft Report of the Special Committee of Government Experts (note 8), with reference to Art. 4 of the draft Convention, read: ‘under this provision, the States Parties recognize that they bear the chief responsibility for the cultural and natural heritage included [in the lists specified in Article 11 and] situated on their territory’, Doc. SHC.72/​ CONF.37/​19, p. 6. 24   Art. 11, para. 2.

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1. Identification As far as identification of cultural and natural heritage on the State Party’s territory is concerned, in terms of substance the provision restates basically what is already codified—​ indeed ‘identify and delineate the different properties’—​under Article 3 in Chapter I. Identification of what is to be protected is key, and the first step in any protection process. The pace of achievement and the likelihood of achieving fully comprehensive identification under Article 4 depend on several variables specific to each country and each property, and include: the size of its territory; the volume and significance of its natural and cultural heritage; the existence and the extent of an identification duty under its (pre-​existing) legislation; the date that territorial state became a party to the Convention; the human and financial resources made available for the identification process, etc.

2. Protection The term ‘protection’ of cultural property and heritage makes full sense only if it makes clear the form(s), the content(s), and the effect(s) (and thus the threshold) of the protection at stake. Article 4 focuses on the entity concerned by the obligation to protect, not on its content and scope (in contrast to Art. 5, on which see later). The content and implications of the term protection of heritage are thus not defined by this provision, nor by others in the Convention, despite its importance for Chapter II—​and actually for the whole Convention. The concrete content of protection is thus essentially left, case by case, to the appreciation of the WH Committee with regard to listed heritage.

3. Presentation Also, the term presentation of (natural and/​or cultural) heritage, which is more straightforward and less open-​ended than protection, lacks a definition in the Convention.

4.  Transmission of heritage to future generations This expression is rather straightforward and the lack of a definition in the Convention is of lesser relevance. Transmission of heritage to future generations implicitly covers transmission both as a process and as a result. The latter is the main objective: securing transmission to future generations implies prevention of serious damage, even more destruction. Transmission matters from different (sociocultural–​legal) perspectives and reflects a substantial part of the reasons why heritage is protected under domestic and international law. Transmission of tangible heritage is, at least, less problematic than transmission of intangible heritage from generation to generation.25 Transmission of heritage generates some implications, including a legal implication that States Parties consider adopting legal regimes (or adapting the existing ones)

25   The transmission process is more or less at risk depending also on the definition of the heritage concerned. Noteworthy is the definition adopted in the UNESCO 2003 Convention on the Safeguarding of Intangible Cultural Heritage, which reads:

the practices, representations, expressions, knowledge, skills—​as well as the instruments, objects, artefacts and cultural spaces associated therewith—​that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

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governing heritage in such a way as to avoid risks of no-​transmission, for instance also preventing extreme legal prerogatives by the owner as an unrestricted abusus that may lead to destruction and be incompatible with transmission of heritage (or elements of it as defined in Arts 1 and 2) to future generations. Among the various legal regimes that may seriously affect heritage worldwide, change in the ownership of the land is relevant and explicitly identified as a possible cause of destruction that, in some cases, may lead to the inclusion of heritage on the List of World Heritage in Danger.26 From a broader and terminological perspective, the use of the term ‘heritage’ rather than ‘property’ in the Convention reflects the relevance of immovables and, in addition, is a subtle way of discouraging certain incompatible legal implications.27 While ‘heritage’ is traditionally linked to protection, conservation, and transmission,28 ‘property’ is a broader term, legally qualified under property law as subject to ownership and to the owner’s legal rights and interests that may, at times, oppose some forms of protection.

C.  Who is the Duty Bearer? The International Community as a Whole or the Territorial State Party? It is not unusual in common parlance to hear that cultural heritage subject to the Convention is ‘protected’ by the ‘international community’ and/​or ‘UNESCO’. This understanding may somehow be nurtured by parts of the Preamble (see Section VIII). However, Article 4 clearly states that the duties it establishes—​ensuring the identification, protection, conservation, presentation, and transmission to future generations—​ belong primarily to the territorial State Party. This rule is both in line with tradition and realistic. States traditionally consider cultural and natural heritage on their territory subject to their sovereignty. Also, from the private law perspective, territoriality applies to immovables and conflict of laws rules regard immovable and movable property subject to the law of its situation. It follows that the territorial state is the relevant lawmaker. Recognizing the primary duty of the territorial State Party is also realistic from at least four perspectives as this rule reflects: 1. the history that created a specific cultural or natural heritage in that specific location; 2. the traditional application of the lex situs to govern property, immovable as movable, confirmed by the territorial sovereignty and property rights under the Convention (Art. 4, and Art. 6, para. 1); 3. the need to remind the territorial State Party that it ‘will do all it can to this end, to the utmost of its own resources’ and thus prevent excessive expectations being put on the international community as a whole, or on other states (uti singuli), for the protection of heritage of outstanding universal value situated outside their territories; 4. the need, at the same time, to balance the commitment under point 3 with the opportunity for the territorial State Party to benefit from, where appropriate, ‘any international assistance and co-​operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain’.

  Art. 11, para. 4.   Property is nevertheless used in some provisions (as in Arts 11, 12, and 13), but in a non-​legal context, as properties forming part of the cultural and natural heritage (Art. 11, para. 1). 28   More or less so, depending on the jurisdiction and its legislation as well as the property or heritage at stake. 26 27

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The primary duty of the territorial State Party was thus decisively affirmed in the Convention and it remained, realistically, the leading consideration for the purposes of the interpretation and application of the Convention.29

D.  Nature of the Duty Under Article 4, the territorial State Party has the ‘duty of ensuring the identification, protection, conservation, presentation and transmission to future generations’ and ‘will do all it can to this end, to the utmost of its own resources’. This final wording reflects sensitivity to the real social, economic, cultural, and natural variables in each State Party. Indeed, variables include the extension and accessibility of the national territory, the volume and the variety of heritage concerned, the technical, financial, and human resources states possess and can rely on to protect heritage, and more. The assistance system established by the Convention (Chapter V) is, within the resources the system makes available, a valuable contribution to the reduction of imbalances in resources worldwide.

E.  International Assistance and Cooperation As observed earlier, Article 4 strikes a balance between the principle or certainty, meaning the territorial State Party’s duty to be performed ‘to the utmost of its own resources’, and the exception or possibility for this state to receive—​‘where appropriate’—​international assistance and cooperation, in particular financial, artistic, scientific, and technical assistance. Article 4 makes clear that such international assistance and cooperation are in no way systematically due by other States Parties to the territorial State Party. On the contrary, they may become a reality only ‘where appropriate’—​a determination in the hands of the WH Committee, and only if the territorial state has been ‘able to obtain’ them after filing a request in conformity with the Convention (Chapter V). A distinction to be made is between the content of international cooperation and assistance, which varies from property to property, and ‘a system of international co-​operation and assistance designed to support States Parties’, which is expressly the meaning of ‘international protection’ under the Convention (see Art. 7 later). So, institutionally a multilateral and intergovernmental ‘system’ is created by the Convention, and practically articulated forms and contents of international cooperation and assistance have been organized since 1975,30 where appropriate, for the specific property at stake in a State Party.

V.  Article 5 If Articles 4 and 6 may perhaps appear somehow abstract, Article 5 is more straightforward and rather descriptive.

A. Importance Article 5 entails a list of actions and measures that each territorial State Party shall endeavour to take to ensure effective and active measures for the protection, conservation, and presentation of the cultural and natural heritage situated on its territory. The term ‘to   Roucounas (note 2) 49.   The Convention entered into force on 17 December 1975.

29 30

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the utmost of its own resources’ already used in Article 4, is also used in Article 5 and in even more deliberately soft and relative (ratione personae) terms: the territorial State Party ‘shall endeavour, in so far as possible, and as appropriate for each country’. Article 5 refers exclusively to heritage as defined by Articles 1 and 2. Of course, this scope does not prevent States Parties, if they wish, from extending, outside the Convention and under their domestic legislation, the application of all, or some, of the actions and measures listed in Article 5 to natural and cultural heritage sites on their territories. The high threshold of an outstanding universal value would not be applicable outside the Convention’s scope, not even in States Parties.

B. Scope The territorial State Party is to design, adopt, and implement in its territory the actions and measures listed under Article 5(a)–​(e) for the protection, conservation, and presentation of cultural and natural heritage. Some of these measures may be implicitly covered or implied by other provisions—​for instance, identification as part of protection—​others are probably based only (or also) on this provision, as with regard to legal, scientific, technical, administrative, and financial measures necessary for the identification, protection, conservation, presentation, and rehabilitation of heritage (para. (d)).

C.  Nature of the Obligation Three restrictive terms in the provision make the obligation that Article 5 places on territorial States Parties rather modest and, as noted earlier, reflects realism31 and sensitivity towards the existing cultural and/​or social and/​or economic variables and differences among States Parties. So, the territorial State Party shall (merely) ‘endeavour, in so far as possible, and as appropriate for each country’ adopting or setting up the measures listed (paras (a)–​(e)).

D. Content The list established by Article 5 is self-​explanatory and does not appear to require clarifications for each category of actions and measures. As a whole, the scope of the list is very broad. It extends, among other things, from policy-​making, enacting suitable legal and administrative rules, setting up services, and developing studies, to research and training. Furthermore, para (d) by itself encompasses a significant number and variety of measures.

E.  An Open-​Ended List Article 5 is drafted in a broad and open-​ended style. While it has to take ‘effective and active measures’, the territorial State Party has significant latitude in determining both the scope and content of each category of the listed measures (paras (a)–​(e)). Would this list be different if the Convention were renegotiated and redrafted today? Not necessarily perhaps, in the light of its broad and open-​ended style that accommodates diverse national and financial resources and related measures despite the undoubtedly greater appreciation for cultural and natural heritage thanks to the Convention’s over 50 years

  Primarily in available financial and human resources.

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of action and visibility worldwide and parallel developments at the national and regional levels.

F.  The 1972 Recommendation Might Assist Only the National Protection of Special Value Heritage Parallel to the Convention, on 16 November 1972 a UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage was also adopted. Similar to the Convention, it applies to both cultural and natural heritage. However, in contrast to the Convention, the Recommendation is only a soft law instrument and applies to a broader number of properties as it encompasses heritage of ‘special value’. A further difference is that the Convention addresses national and international protection, while the Recommendation addresses only the former. Half a century after their adoption, most international recommendations have a very limited impact, if any, especially if most of their objectives have been ‘promoted’ to treaty law and it so happened with the 1972 Convention. Nevertheless, if adopted by national authorities, several measures that the Recommendation presents for the protection of heritage, even if ‘just’ of a ‘special value’, may usefully complement the list of actions and measures under Article 5 of the Convention.

VI.  Article 6 Article 6 complements Article 4 and is important as it openly addresses both the undisputed territorial sovereignty of the territorial State Party and the legitimate interest of the international community of states in the protection of heritage of outstanding universal value which is present in the territory of any State Party. This coexistence of territorial sovereignty and the legitimate interest of the international community as it is set up in positive international law, in a treaty in force nearly in all jurisdictions, is simply remarkable. Such coexistence goes beyond ad hoc regimes of private–​public cooperation for specific matters, for instance forestry within the natural heritage.32

A.  Commentary on Paragraph 1 1. Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate.

Beyond the formal equality of sovereign states, by this important provision the Convention: • recalls that the sovereignty of a sovereign state is, primarily, on its territory, which is an undisputed principle; • stresses that the property rights of natural and cultural heritage33 granted by the national legislation in the territorial State Party—​legislation which applies universally 32   e.g. E. Meidinger, ‘The Administrative Law of Global Private–​Public Regulation: The Case of Forestry’ (2006) 17 EJIL 47. 33   Heritage mentioned in Arts 1 and 2, not under national law.

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as lex situs—​are not affected by the ‘international interest’. This interest is the result of this part of the provision: ‘States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate.’ This wording is considered in detail below. The (relative) theoretical risk of criticism that the international community as a whole could interfere with the domestic law and affairs of a state in regard to such heritage is rather remote considering that the only territorial state at issue is a State Party that voluntarily ratified the Convention, not any state. The remaining portion of that risk disappears entirely in view of the fact that the following paragraph 2 protects the sovereignty of the territorial State Party by subjecting to the request of that state any help from other States Parties with regard to heritage on its territory. That initiative (i.e. request) may come only from the territorial State Party. It is worth adding that, whatever its modalities and content, this ‘help’ from other States Parties is to be provided, in any event, in conformity, first, with the Convention, the Guidelines, and the concrete measures determined by the WH Committee; and secondly, with the territorial State Party’s legislation on the property rights related to the heritage at stake. It would be rare, but possible, that more than one state may claim sovereignty, which is per se associated with the legal personality of statehood and thus to territory, over the same natural or cultural heritage. Though exceptional, this situation still falls under the scope of application of the Convention with regard to the territorial state(s) which is (are) party(ies) to the Convention. As noted, despite the international interest and possible help from other States Parties as to a given heritage, only the territorial State Party legislation governs the property rights on (cultural and natural) heritage, which include a variety of important practical issues, such as whether and how title is transferred derivatively, as well as non-​derivatively by possession in good faith of movable elements of that heritage and whether the creditors of the owner of the heritage, or elements thereof, may attach that heritage. This brief reference to movable heritage leaves unaffected the fact that most cultural and natural heritage to which the Convention applies, under the definitions of heritage in Articles 1 and 2, is immovable heritage. However, there is nothing in Articles 1 and 2 to radically exclude all movable elements of that heritage from the scope of the Convention.34 Interestingly, and somehow surprisingly, the WH Committee took a radical position in the Guidelines (para. 48): ‘Nominations of immovable heritage which are likely to become movable will not be considered.’ The Convention does not substantiate this radical position. Indeed, we deal with movable elements of heritage under the Convention and its relationships to the 1970 UNESCO and 1995 UNIDROIT Conventions in Part III of this volume. In the Convention’s sequence of Chapters and Articles, what was ‘heritage’ of outstanding universal value under Articles 1 and 2, becomes ‘world heritage’ in the wording of Article 6, paragraph 1, essentially to justify the international interest: ‘world heritage for whose protection it is the duty of the international community as a whole to co-​operate’. This ‘world’ addition disappears in paragraphs 2 and 3 of the same Article. It appears again in Article 7 and then—​rightly—​in Article 11, paragraphs 2 and 4 with regard to the two ‘World Heritage’ Lists as listed heritage is only of outstanding universal value. 34   In addition, e.g., in Art. 1, para. 1, ‘works of monumental sculpture and painting, elements or structures of an archaeological nature’ are not necessarily immovable.

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It has been suggested that the addition of ‘world’ to heritage, should be interpreted, on the one hand, as a pure euphemism because of the primary role of the territorial state, and on the other, as an expression of the fact that the heritage so characterized may be subject to international action under the Convention.35 This suggestion is clearly substantiated in its first part, in view of the territorial State Party’s primary role (Art. 4), the respect due to its sovereignty, and to the application of its legislation as to property rights (Art. 6, para. 1). Indeed, the territorial State Party’s primary role leaves the addition of ‘world’ with no major legal significance, at least certainly in terms of property law and rights. Legally, the Convention creates no pure internationalized status and property regime for the heritage it covers, before as well as after the heritage is included in one of the Lists. However, in its second part the suggestion that ‘world’ is to express the fact that the heritage so characterized may be subject to international action under the Convention is partially misleading. Indeed, any heritage qualified under Articles 1 and 2 of the Convention may be subject to some international action, and not only heritage in the two Lists, which is certainly ‘world’ heritage if one understands that term36 as heritage listed because of its outstanding universal value. Indeed, international assistance may be sought and granted to heritage which has not yet been submitted to the Committee for inclusion on the List and fails the determination of whether that heritage meets the outstanding universal value requirement.37 Through Article 6, paragraph 1, States Parties recognize that ‘heritage’ (as defined by Arts 1 and 2) constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate. While only States Parties mutually commit within a treaty, through this particular provision States Parties recognize the duty of the international community as a whole to cooperate for the protection of world heritage. This recognition was remarkable in 1972. Perhaps it is still today, though much less in practical terms of a duty to protect, because the Convention is in force in nearly all states. It follows that all these States Parties are bound, directly under the treaty law which is binding upon them, to protect heritage under the Convention. Therefore, the ‘duty of the international community as a whole to co-​operate’ affirmed in 1972 has a very limited role in practice and with regard to the few states not (yet) parties. However, what remains unaffected since 1972, and irrespective of the number of States Parties, is the important fact that any territorial state is the beneficiary of the ‘duty of the international community as a whole to co-​operate’. Being a State Party to the Convention is irrelevant both conceptually, under this reference to the ‘international community as a whole’, and operationally as it is not a condition for a state to benefit from this duty of the international community. While generous vis-​à-​vis its beneficiaries, this ‘duty of the international community as a whole’ remains modest as far as its content is concerned: simply cooperation for the protection of world heritage. Last but not least, does this provision actually bind states that are members of the international community but not parties to the Convention? The answer requires consideration of the law of treaties.

  Roucounas (note 2) 49.   Failing an explanation in the provisions concerned. 37   Art. 19. Also Art. 20 reserves international assistance to heritage in the Lists, as well as to heritage the Committee ‘or may decide, to enter in one of the lists’. 35 36

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B.  The Convention, Article 6, and the Law of Treaties The whole Convention is a treaty and Article 6 is, necessarily, a treaty law provision. It thus deserves to be considered under the law of treaties. A reminder of some of these principles, as codified in the 1969 Vienna Convention, facilitates the understanding of the meaning, as well as the limits, of Article 6, paragraph 1, of the Convention. As a general rule of international law, codified in the Vienna Convention, treaties are binding only upon their parties38 and do not create obligations or rights for a third state without its consent.39 A parallel rule exists in domestic law since a long time and applies to legal acts and contracts (pacta tertiis nec nocent nec prosunt). During the negotiation of the 1969 Vienna Convention on the Law of Treaties, the International Law Commission added the principles of the sovereignty and independence of states to this traditional domestic contract law rule.40 If the parties to a treaty intend to establish an obligation for a third state through a provision of the treaty,41 the obligation arises only if the third state accepts it in writing.42 Inversely, if a treaty establishes a right for a third state, the assent of that state to the right is presumed43 so long as the contrary is not indicated.44 For instance, certain international waterways were deemed to benefit all nations in the famous Wimbledon case.45 A completely different situation occurs where a provision in a treaty becomes binding upon a third state as a customary rule of international law, recognized as such.46 In this case, the provision is customary law per se and thus neither subject to the law of treaties and its requirements, nor is binding as treaty-​law.47 This commentary considers the Convention for what it is, a set of treaty law rules, and leaves aside the question whether this treaty has generated customary rules.48 That being noted, turning to Article 6, paragraph 1, of the Convention, under the law of treaties the ‘duty of the international community as a whole to co-​operate’ for the protection of world heritage does not limit the territorial state beneficiary to a State Party. As preliminary test, does the Convention evidence that its ‘parties’ intended to establish an obligation or a right for a third party? With reference to such a treaty’s intention, the Vienna Convention refers to States Parties. Actually, the relevant states are those that drafted the Convention. Indeed, the existence (or the absence) of such an intention is

39   Art. 26.   Art. 34.  (1966) YILC, Vol. II, 226. 41   We refer only to treaty law obligations for a third state. As to potential obligations under international customary law, see Art. 38. 42 43 44   Art. 35.   While ‘consent’ is the general requirement under Art. 34.   Art. 36(1). 45 46   [1932] PICJ Series A, No. 1.   Art. 38. 47   This question also concerns cultural property, G. Carducci, ‘L’obligation de restitution des biens culturels et des objets d’art en cas de conflit armé: droit coutumier et droit conventionnel, avant et après la Convention de La Haye de 1954. L’importance du facteur temporel dans les rapports entre les traités et la coutume’ (2000) Revue Générale de Droit International Public 288–​357. 48   See R. R. Baxter, ‘Treaties and Custom’ (1970) 129 Hague Academy Collected Courses 25; H. W. A. Thirlway, International Customary Law and Codification (Brill, Leiden, 1972); K. Doehring, ‘Gewohnheitsrecht aus Verträgen’ (1976) 36 ZAÖRV 77; U. Scheuner, Internationale Verträge als Elemente der Bildung von Völkerrechtlichem Gewohnheitsrecht: Festschrift für F. A. Mann (C. H. Beck, Munich, 1977) p. 409; L. B. Sohn, ‘Unratified Treaties as a Source of Customary International Law’, in A. Bos and H. Siblesz (eds) Realism in Law-​Making: Essays in International Law in Honour of W. Riphagen (Nijhoff, Dordrecht, 1986) p. 231; O. Schachter, ‘Entangled Treaty and Custom’, in Y. Dinstein and M. Tabory (eds) International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Nijhoff, Dordrecht, 1989) p. 717; M. E. Villiger, Customary International Law and Treaties (2nd edn., Kluwer, The Hague, 1997). 38 40

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obviously to be assessed at the time of the conclusion of the treaty.49 Of course, not all the states that draft a treaty become necessarily and later States Parties. Nevertheless, in the case of the 1972 Convention, at present the States Parties comprise nearly the whole international community of states. In any event, despite the generous language in parts of the Preamble and in Article 6, paragraph 1, there is no clear evidence of the drafters’ intention (until the adoption in November 1972) to establish an obligation or a right for a third party. Failing evidence of any clear intention, the law of treaties applies and, as we noted earlier, while the positive effect of the Convention (i.e. granting a right to a third state vis-​à-​vis the beneficiary) is admitted as long as its assent is presumed (and the contrary is not indicated), the negative effect of the Convention (i.e. subjecting a third state to an obligation of cooperation for the protection of heritage, as a member of the international community as a whole) is not per se automatic, and requires acceptance, in particular in written form,50 by those states (members of this community) that are not yet parties to the Convention. In conclusion, under the law of treaties applicable with regard to third states,51 Article 6, paragraph 1: • admits any state as beneficiary52 of ‘the duty of the international community as a whole to co-​operate’; • does not impose53 that duty to cooperate upon states that are members of the international community but not parties to the Convention. Although they may feel morally expected or obliged to cooperate on the basis of this provision, under the law of treaties these third states are not legally bound to a duty to cooperate for the protection of (world) heritage, unless they have expressed (jointly or individually) that obligation by a written acceptance. Failing evidence of such acceptance, they are not bound and there can be no legal issue, in treaty law, of their non-​compliance with the Convention.54 This remains true at present for the few remaining third states not yet party to the Convention; 194 states were parties as at November 2022.55

C.  Commentary on Paragraph 2 The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request.

Paragraph 2 is more ‘ordinary’ than paragraph 1, as it reserves for States Parties an obligation to assist and does not refer to ‘the international community as a whole’. As far 49   See also P. Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers’ (1974) 637 Hague Academy Collected Courses 591. 50   In writing under the Vienna Convention (see note XXX). 51   For a presentation beyond treaty obligations, see generally, C. Tomuschat, ‘Obligations Arising for States Without or Against their Will’ (1993) 241 Hague Academy Collected Courses 195. 52 53   Assent to a right is presumed.   As a matter of law of treaties. 54   We refer to non-​compliance with the Convention as a treaty law instrument, not as a possible (under some conditions) set of customary rules recognized as such (in the sense of Art. 38 of the 1969 Vienna Convention). 55   Information available at https://​www.une​sco.org.

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as the beneficiaries of this obligation to assist are concerned, paragraph 2 refers to ‘the States’, not explicitly to States Parties. However, other terms of the provision provide the answer: only States Parties can be the beneficiary of this obligation. Indeed, the only heritage concerned in paragraph 2 is that referred to under paragraphs 2 (World Heritage List) and 4 (List of World Heritage in Danger) of Article 11 and only States Parties may submit to the WH Committee inventories of properties suitable for inclusion.56 Paragraph 2 deals literally with ‘help’ from States Parties, a term not to be confused with ‘international assistance’ which has its own regime and is granted by the WH Committee.57 The obligation at stake is modest. States Parties simply undertake to give their help, not automatically or on their own initiative. As noted earlier, they may give help only if so requested by the territorial State Party. In terms of content, under this provision States Parties undertake to help in the identification, protection, conservation, and presentation of heritage. Depending on the heritage and the needs at stake, these forms of help are generally granted separately, starting with identification, unless the heritage is already identified under Articles 1 and 2. These forms of help are generally involved before the heritage is presented to the Committee for insertion in the List. If inscribed in the List, then the territorial State Party may seek international assistance from the Committee.58 Most of this assistance operates through States Parties’ compulsory and voluntary contributions to the Fund59 and the WH Committee’s decisions within the mechanism of international assistance.60 Other initiatives exist, for instance, ‘Convention France–​ UNESCO’ for heritage is a framework agreement whereby France, and/​or some of its cities, offer a number of assistance projects for the protection of heritage.61 Another example is Angkor Wat (Cambodia), which has attracted a number of international projects from different countries and entities (government bodies, NGOs, foundations, universities, etc.), under a variety of state roles and involvements.62

D.  Commentary on Paragraph 3 Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

1.  Content and scope This provision requires States Parties to perform a negative obligation; that is, refrain from taking deliberate measures which might damage directly or indirectly the heritage situated on the territory of other States Parties. Unlike paragraph 1, this provision is simple and straightforward, also in terms of the law of treaties, as it refers exclusively to States Parties, both as obliged parties and beneficiaries.

  Art. 11, paras 1 and 2.    57  Arts 19–​26.   Nevertheless, Art. 19 also allows assistance for heritage that the Committee may decide to enter in one of the Lists. 59 60   Art. 15, paras 3 and 16.   Chapter V. 61   Depending on the heritage and the needs at stake, this assistance may vary in form and content, and be targeted, e.g., at ensuring protection in a material sense, and/​or at contributing to the preparation of inventories and/​or files to submit properties to the WH Committee for inclusion in one of the two Lists. 62   Direction or supervision; official support, with or without, total or partial, financial assistance, etc. 56 58

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The scope of the provision is, at the same time, broad (i.e. any measure which might directly or indirectly damage the heritage) and narrow (i.e. only deliberate measures). For instance, with regard to the continuous threats to the five World Heritage properties in the Democratic Republic of Congo,63 and unlike previous decisions on the same subject,64 the WH Committee requested ‘the cooperation of the State Party of Sudan to ensure, in accordance with Article 6, paragraph 3 of the Convention, that the State Party does its best to prevent transborder poaching activities and that no action will be taken that threatens the value or integrity of a property located on the territory of another State Party to the Convention’.65 Use of this clear provision does not exclude other action, based on different grounds within or outside the Convention,66 from other States Parties,67 relevant organizations,68 the Secretariat, and/​or the Advisory Bodies, that may be urged or recommended by the WH Committee as it deems appropriate and for different beneficiaries.69

2.  State responsibility The obligation to refrain from taking deliberate measures which might damage directly or indirectly the heritage situated on the territory of other States Parties applies to and among States Parties. As deliberate destruction or at least damage to heritage in other territories is usually undertaken by groups, the main issue is whether the activity of such groups can be attributed to a State Party. Not surprisingly, the Convention does not provide a specific answer to this issue. The answer is to be sought in international law, more precisely in its provisions on state responsibility. Complex and lengthy codification work in this branch of international law resulted, after a number of drafts and amendments,70 in the International Law

63   In Decision 29 COM 7A.4 adopted at the 29th session of the World Heritage Committee (Durban, 2005), Doc. WHC-​05/​29.COM/​22, p. 10, on World Heritage properties of the Democratic Republic of the Congo (DRC), the Committee refers, inter alia, to ‘especially encroachment and extraction of natural resources, including mining, poaching and ivory trafficking by armed groups, inter alia, elements of the regular army, the national police and former rebel troops that are awaiting demobilization or integration into the national army’. 64   Decision 27 COM 7A.2 adopted at the 27th session of the World Heritage Committee (Paris, 2003) on World Heritage properties of the DRC: Virunga National Park; Garamba National Park; Kahuzi-​Biega National Park; Okapi Wildlife Reserve; and Salonga National Park. 65  ibid. 66   Either a different provision of the Convention, if relevant in the circumstances, or outside the Convention, on moral or policy grounds, or customary law grounds (if any). 67   See, e.g., in Decision 29 COM 7A.4 (note 63): ‘also urges the State Party to implement immediately the measures announced at the international conference (on the conservation of the DRC World Heritage properties in September 2004) to guarantee the integrity of the properties, in particular the evacuation of all armed troops from the properties’. 68   ibid: ‘further urges the multilateral donor agencies and bilateral donor governments to honour their commitments, towards the conservation of the DRC World Heritage properties, pledged at the international conference (on the conservation of the DRC World Heritage properties in September 2004)’. 69  See, e.g., Decision 29 COM 7A.21 adopted at the 29th session of the World Heritage Committee (Durban, 2005), Doc. WHC-​05/​29.COM/​22, p. 26, on ‘Cultural Landscape and Archaeological Remains of the Bamiyan Valley (Afghanistan)’. 70   The importance of the issues debated as well as of the options, concepts, and terminologies adopted or rejected, is rather self-​explanatory. E.g. B. Stern, ‘Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des Etats’ (2001) 47 AFDI 1.

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Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, adopted at its 53rd session in 2001 (see Section VIII).71 Several wrongful acts, as they breach an international obligation on the part of the state,72 are attributed to a state, for instance the conduct of: (a) a person or entity which, is not an organ of the state, but is empowered by the law of that state to exercise elements of governmental authority, provided the person or entity is acting in that capacity in the particular instance;73 (b) an organ of a state or a person or entity empowered to exercise elements of governmental authority if the organ, person, or entity acts in that capacity, even if it exceeds its authority or contravenes instructions;74 (c) a person or group of persons if the person or group of persons are in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct;75 (d) a person or group of persons if the person or group of persons is in fact exercising elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority;76 (e) an insurrectional movement which becomes the new government of a state; (f) a movement, insurrectional or other, which succeeds in establishing a new state in part of the territory of a pre-​existing state or in a territory under its administration;77 and (g) any other conduct to the extent that the state acknowledges it and adopts it as its own.78 These numerous types of actors and related conduct cover a variety of situations that may cause damage or destruction to heritage and may trigger a state’s responsibility.

3.  The 2003 UNESCO Declaration Following the destruction of the Buddhas of Bamiyan in Afghanistan and the subsequent growing concern, the General Conference of UNESCO adopted a declaration in 2003 concerning the Intentional Destruction of Cultural Heritage (hereinafter the Declaration). Where does this Declaration stand with regard to the Convention? First, the legal nature of the Declaration is obviously different and, as with other Declarations, it is a soft law instrument and is not per se legally binding. Secondly, the scope of the Declaration goes well beyond the scope of the Convention. Ratione materiae, the Declaration addresses any intentional destruction of cultural heritage, including cultural heritage linked to a natural site, and not only cultural heritage having an outstanding universal value as defined by the Convention. Intentional destruction is taken broadly to include any act intended to destroy cultural heritage in whole or in part, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience. Ratione temporis, the Declaration, as with the Convention, applies to both peacetime and wartime situations. Thirdly, in terms of substance, the Declaration solemnly states that the international community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the succeeding generations.79 The primary objective (i.e. ensuring transmission of heritage to future generations) reflects what is clearly stated in the Convention80 and other international instruments and national texts. 71   Submitted to the General Assembly as a part of the Commission’s report covering the work of that session: UNGA Res. 56 (1983) GAOR 25th session Supp. 10. 72 75   ibid, Art. 2.    73  ibid, Art. 5.    74  ibid, Art. 7.   ibid, Art. 8. 76 79 80   ibid, Art. 9.    77  ibid, Art. 10.    78  ibid, Art. 11.   Art. 1.   Art. 5.

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Fourthly, from the perspective of Article 6, paragraph 3, of the Convention and the case of damage to heritage, an important provision of the Declaration is its Article VI on state responsibility which reads: A State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization, bears the responsibility for such destruction, to the extent provided for by international law.

Does this provision apply to the situation covered by Article 6, paragraph 3, of the Convention (‘deliberate measures which might damage directly or indirectly’ heritage)? Ratione materiae the answer is affirmative if the relevant authority interprets heritage of great importance for humanity (under Art. VI of the Declaration) as being equivalent to heritage having an outstanding universal value (under the Convention). However, for the purposes of the 1972 Convention and of the effects of being included in the Lists, only the Committee is entitled to decide what heritage has an outstanding universal value, not any territorial state, nor other entities.81 In addition, a major difference of scope exists, as Article 6, paragraph 3, of the Convention covers deliberate measures which might damage heritage directly or indirectly, while Article VI of the Declaration covers only the intentional destruction of it. The two texts would then be simultaneously relevant only if deliberate damage to heritage amounts to its intentional destruction. One may object to such simultaneous relevance and note that damage and destruction are different in nature—​what is damaged is not destroyed, and vice versa. What is the significance of Article VI of the Declaration for international law? Interestingly enough, its final sentence, which reads ‘to the extent provided for by international law’, has been emphasized by some authors82 and not mentioned by others.83 We were in charge of the intergovernmental negotiation of the Declaration and this final sentence is essential: it was adopted in the spirit of facilitating consensus, despite opposition from some delegations and being suggested at the final stage of the negotiation. This final sentence refers responsibility for destruction to ‘the extent provided for by international law’ which is not to say per se that through Article VI the Declaration denies that states currently owe customary obligations84 against intentional destruction or failure to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity. In our recollection of the negotiation, this final sentence was added as a general reminder of the necessity to check the existence, under custom and/​or treaties, of an international obligation and a resulting responsibility for the specific state concerned and vis-​à-​vis the specific heritage intentionally destroyed. Lastly, a different provision of the Declaration refers to individual criminal responsibility.85 While it is not expressly formulated to establish grounds for universal jurisdiction, 81   Art. 12 of the Convention concerns only purposes other than those resulting from inclusion in the two Lists. 82   R. Goy, ‘La destruction intentionnelle du patrimoine culturel en droit international’ (2005) 109 RGDIP 273, 295; R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53 ICLQ 189, 208. 83   See Francioni and Lenzerini (note 17) p. 38. 84   As suggested by O’Keefe (note 82) 209. Mr O’Keefe refers only to peacetime customary obligations, which is in contradiction to Art. VI of the Declaration which is not limited to peacetime. 85   Art. VII reads: ‘States should take all appropriate measures, in accordance with international law, to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to

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the terms of this provision are sufficiently broad to invite states to consider establishing it. While universal jurisdiction is rather well settled in international law to ensure jurisdiction over crimes such as genocide, torture, and crimes against humanity, two further parallel developments should be recalled. On the one hand, in some jurisdictions the idea of universal jurisdiction has also slowly penetrated civil jurisdiction, with regard at least to certain civil remedies.86 On the other hand, a state’s immunity from human rights and humanitarian law violations is less and less certain.87

VII.  Article 7 This provision is the only clarification provided by the Convention on what is meant by ‘international protection’ in the Convention and—​most visibly—​in the title of its Chapter II. So, ‘international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-​operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.’ Article 7 is innovative and valuable where it states that international protection means ‘the establishment of a system’ of international cooperation and assistance. Indeed, this system is the main contribution of the whole Convention to the protection of cultural and natural heritage, in practice at least for those states where protection would not become a reality without some forms of international cooperation and assistance. The stability and regularity implied in such a ‘system’ are important elements—​binding upon States Parties in treaty law. Setting compulsory contributions by States Parties and inviting voluntary contributions to the Fund under the Convention certainly contributes to this ‘system’ which operates primarily through international assistance (Chapter V of the Convention).

VIII.  Collective Interest, Erga Omnes (Partes) Obligations, and State Responsibility Section VI.B dealt with the question whether, under the law of treaties, Article 6, paragraph 1, creates beneficiaries and ‘debtors’ of the obligation—​in treaty law—​to cooperate. We now consider a related but distinct question. International law has given a particular status to certain ‘collective’ interests of the international community as a whole, in recent years primarily by two categories of principles or rules.

A.  Common Heritage of Mankind—​Erga Omnes Obligations 1.  The first category is the ‘Common Heritage of Mankind’: it is at times referred to in treaty law, particularly in the law of the sea with regard to the Area (i.e. outside the be committed, acts of intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization.’ 86  For a survey, see D. F. Donovan and A. Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142. 87   See, in particular, the decision of the Italian Corte di Cassazione of 11 March 2004 in Ferrini v Federal Republic of Germany; A. Bianchi, ‘Ferrini v. Federal Republic of Germany’ (2005) 99 AJIL 242.

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limits of national jurisdiction). Following the famous UN General Assembly Resolution No. 274988 and then the complex negotiations of the UN Convention on the Law of the Sea, the Area and its resources are declared as the common heritage of mankind,89 and a given conduct is expected by any state.90 This and other adoptions in treaties are limited to each treaty’s scope and content. However, if one turns to general international law, the concept of the ‘Common Heritage of Mankind’ is not, by itself or ex se, part of international customary law. Unless usus and opinio iuris are proved to exist in a specific context.91 2. The second category is the erga omnes obligations identified in 1970 by the International Court of Justice (ICJ) in the Barcelona Traction case as follows:92 In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-​à-​vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.93

So, while ordinary obligations in international are between states—​one (or more) is the debtor, the other(s) is the creditor or beneficiary of the obligation—​the fewer and more exceptional obligations erga omnes are obligations of a state towards the international community as a whole. That state is the debtor and all states which are part of the community are the creditors or beneficiaries of the obligation and may seek performance, or invoke breach for lack of performance, of the obligation from the debtor.   12 December 1970.   For the sake of clarity:

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Article 136 Common heritage of mankind The Area and its resources are the common heritage of mankind. Article 137 Legal status of the Area and its resources 1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority. 3. No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.   1982 Convention on the Law of the Sea (21 ILM 1261 (1982)) Arts 136 and 138.   See R. Wolfrum, ‘The Principle of the Common Heritage of Mankind’ (1983) 43 ZAÖRV 312; R.-​J. Dupuy, ‘Réflexions sur le patrimoine commun de l’humanité’ (1985) 1 Droits 63; A. Gattini, ‘Il Common Heritage of Mankind: una rivoluzione in diritto internazionale?’ (1985) 17 CS 649. 92   [1970] ICJ Rep 3, p. 32, para. 33. 93   For the sake of clarity, the following para. 34 reads: 90 91

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-​universal character.

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The terminology of erga omnes obligations is in part misleading if taken literally as erga omnes generally means ‘towards all’ or ‘towards everyone’. Applied to an obligation, its erga omnes character would then make it due by a debtor towards all, all being creditors. Put differently, what erga omnes obligations in international law refer to is not the binding effect that an international obligation may have for the whole international community as a debtor—​an effect which is common to all general customary international law obligations94—​but the extension of the beneficiaries (or ‘creditors’) and the enforcement of the obligation, and its erga omnes nature implies that any state member of the international community is a beneficiary and may seek performance by the debtor or, failing full performance, claim a breach of the obligation. As the ICJ held: ‘In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.95 Inversely, in ordinary obligations only the state which is the creditor may seek performance or, failing full performance, claim a breach. The conditions under which an ordinary obligation in international law is to be upgraded to the status of an erga omnes obligation are rather uncertain. Common is an inquiry as to such conditions by sector, if not by a single matter.96 Regrettably, over the years some authors have confused ius cogens rules (peremptory norms of general international law) with erga omnes obligations. Actually, the mandatory nature of the former (i.e. a rule states may not set aside by treaty97) has no impact on the latter category. Erga omnes obligations are not associated with the mandatory character of the rule and their existence and recognition do not depend on such character.98 This being clarified, most erga omnes obligations express mandatory rules of the international community that pursue a certain community’s collective interest, while they do not pursue merely a limitation of states’ conduct and treaty-​making power as do ius cogens norms. This confusion is probably also nourished by the codification of international state responsibility to the extent that the International Law Commission’s final draft (2001) Articles on the Responsibility of States for Internationally Wrongful Acts has oversimplified these matters and impoverished the category of erga omnes obligations,99 by merely excluding the latter terminology100 and associating state responsibility

94  Leaving aside here the persistent objector theory vis-​à-​vis the custom in the process of formation (Conclusion 15, UN International Law Commission Draft Conclusions on Identification of Customary International Law), and the potential effects (though more controversial) of subsequent objector and the acquiescence vis-​à-​vis an existing custom. 95   [1970] ICJ Rep 3, p. 32, para. 33. 96   e.g. with regard to some environmental concerns, J. Brunée, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ (2004) 53 ICLQ 353. 97   For the sake of clarity, in the Vienna Convention on the Law of Treaties, Art. 53 (Treaties conflicting with a peremptory norm of general international law (‘jus cogens’)) reads:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 98   This confusion has been criticized, rightly and for some decades, by Picone in several publications, see most recently, P. Picone, Obblighi ‘erga omnes’ e uso della forza (Editoriale Scientifica, Naples, 2017) p. 295. 99   Clearly, Picone ibid, p. 197. 100   These obligations were present in Art. 19 of the Ago’s Project and maintained in some later drafts.

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for serious breaches to obligations under ius cogens.101 Nevertheless, despite the exclusion of this terminology the final draft maintains the essence of erga omnes obligations—​ again, they are not to be confused with ius cogens—​by maintaining their effects for any state in the case of serious breach102 and the right for any state, other than an injured state, to invoke the responsibility of another state if the obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group, or is owed to the international community as a whole.103 This last formulation104 refers clearly to erga omnes obligations, although the International Law Commission’s final draft of 2001 omits this terminology. Importantly, three years later in 2004, the ICJ105 disregarded this final draft’s omission, and came back to its ruling in Barcelona Traction (1970) and its terminology of erga omnes obligations with regard to the right of the Palestinian people to self-​determination106 and consequently extended the relative binding effects upon all states.107

B.  Where Does the Convention Stand? Over 50 years after its adoption, the Convention is applicable almost universally and, as such, it applies directly, as treaty law, and in all its provisions in all its States Parties. As both a matter of principle, and practically mostly for the few non-​States Parties, the main question is where the Convention stands with regard to these ‘collective interests’ and related international law regimes. Certainly, a collective interest in the protection of heritage as defined by the Convention exists in an intergovernmental and diplomatic sense, and operates mostly within the WH Committee—​composed of 21 States Parties—​ and at the intergovernmental diplomatic level of its deliberations. If a State Party does not take measures which are deemed sufficiently protective with regard to a heritage site inserted in the List, and this fact is reported to and debated by the WH Committee, the collective interest may take various forms, such as leading to observations and/​or criticisms 101   See Chapter III, Serious Breaches of Obligations under Peremptory Norms of General International Law, Arts 40, 41. 102   Art. 41, para. 1: ‘States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.’ 103 104   Art. 48.   Art. 48, para 1(b). 105  ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports 136. 106   Para. 155:

The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature ‘the concern of all States’ and, ‘In view of the importance of the rights involved, all States can be held to have a legal interest in their protection’ (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33). The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-​determination, and certain of its obligations under international humanitarian law. (See also para. 157.) 107   Para. 159: Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-​determination is brought to an end.

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by the WH Committee as a whole or by some of its members. The WH Committee may also reflect its disappointment through some of its prerogatives, such as the inscription in the List of World Heritage in Danger108 and the reaction to requests for international assistance.109 A further issue is then whether a collective interest is to be deemed to exist legally, separately from and beyond intergovernmental diplomacy, and outside the Committee and its deliberations. A response to this issue may not be clear-​cut and requires several considerations. As we observed and commented on earlier, one author considered the Convention’s reference to ‘world’ heritage to be just a euphemism, while the reality is, and remains under Article 6, based on sovereign territoriality and the state’s primary role and responsibility in the protection of heritage.110 That author wrote a long time ago, in 1972, and did not explicitly mention erga omnes obligations despite the fact that, at that time, the issue of ‘collective interest’ had already been debated for some time, and the existence of a category of erga omnes obligations had already been elucidated, though in a concise dictum by the ICJ in 1970. Another author concluded, more than three decades later, that the Convention establishes obligations erga omnes partes.111 As such, it would be relevant under Article 48(1) (a) of the International Law Commission’s Articles on the Responsibility of States for International Wrongful Acts: any state, other than the injured state, may then invoke the responsibility of another state if the obligation breached is: (a) owed to a group of states including that state, and is established for the protection of a collective interest of the group; or (b) owed to the international community as a whole. The author drew this conclusion only from the non-​synallagmatic nature of the Convention and its expressed textual reference to a universal interest in the preservation of the cultural heritage in question.112 Are these two elements a sufficiently rigorous basis from which to draw this conclusion? A closer scrutiny of the issue and conclusion appears necessary. However, the problem is less likely to be the conclusion, which is one of the possible options, than, from a broader perspective, the still unclear conditions under the ICJ’s case law since 1970 for an international obligation to be considered an erga omnes obligation. Before drawing conclusions on the existence of obligations erga omnes (partes), several elements and conditions will be considered: the existence of a collective interest (subsection C); the transition from erga omnes to erga omnes ‘partes’ obligations (subsection D); outstanding universal value and the international community (subsection E); and state responsibility (subsection F). Follow the conclusion (subsection G) and a final condition assesses the suitability of state responsibility for heritage protection purposes (subsection H).

C.  Does the Convention Clearly Express the Existence of a ‘Collective Interest’? Expression of such an interest is to be sought first in its Preamble then in relevant, if any, substantive provisions. 108 110

  Art. 11, para. 4.   Roucounas (note 2).

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  Art. 13, in particular para. 3. 111   O’Keefe (note 82).

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112

  ibid, 190.

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Analysing the various uses of ‘Considering’ and the one use of ‘Recalling’, the sequence adopted in the Preamble emphasizes: (a) the threats that heritage faces;113 (b) how those threats are amplified by the demanding resources that proper protection implies;114 and (c) the need to preserve heritage with an outstanding universal value as part of the world heritage of mankind as a whole.115 The Preamble also notes that the importance of heritage protection was already stressed by pre-​existing international instruments116 adopted in the light of the specific mandate of UNESCO.117 The final and forward-​looking part of the Preamble is relevant. It presents the need to establish, through the then new Convention, an ‘effective system of collective protection’ of the cultural and natural heritage,118 and in which the role of the international community is to ‘participate’, by the ‘granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an efficient complement thereto’.119 To summarize, the combination of (a) ‘deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world’; and (b) the ‘need to preserve heritage having an outstanding universal value as part of the world heritage of mankind as a whole’; as well as (c) the Convention establishing an ‘effective system of collective protection’, represents the closest the Preamble comes to substantiating the idea of a ‘collective interest’ of protection of such heritage under the Convention. These combined elements are the main reason for establishing ‘participation’ which is, however, rather modest: the international community is called upon simply to efficiently complement the territorial state’s action by granting collective assistance. Furthermore, if this collective assistance is the concrete outcome, as set out in the Convention, of the idea of a ‘collective interest’ (though it is only partially substantiated in the Preamble), then this interest is limited in its scope from a practical perspective and covers only ‘assistance’ as regulated under Chapter V of the Convention, in spite of an encouraging ‘collective’ qualifier. Chapter II, which is the heart of States Parties’ obligations to protect heritage, appears outside the scope of the practical outcome of this ‘collective interest’. Even if this interest were deemed sufficient to substantiate the idea of 113  ‘Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.’ 114  ‘Considering that protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific, and technological resources of the country where the property to be protected is situated.’ 115  ‘Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.’ 116  ‘Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong.’ 117   Which explains why it is not ‘Considering’. ‘Recalling that the Constitution of the Organization provides that it will maintain, increase, and diffuse knowledge by assuring the conservation and protection of the world’s heritage, and recommending to the nations concerned the necessary international conventions.’ 118  ‘Considering that it is essential for this purpose to adopt new provisions in the form of a convention establishing an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods.’ 119  ‘Considering that, in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an efficient complement thereto.’

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erga omnes (partes) obligations, in terms of scope they do not seem to cover and affect the obligations established under Chapter II. A hypothetical argument could be that Chapters V and II are linked to the extent that, if assistance is granted, it is because of the poor condition of heritage due to non-​compliance with Chapter II obligations by the territorial State Party. However, Chapter V is rather autonomous from the obligations under Chapter II: (a) no evidence of non-​compliance (if any) with these obligations is required in order to request assistance; (b) assistance may take several forms,120 not necessarily replacing performance that is absent but expected under Chapter II; (c) if it is granted, assistance is defined in and carried out in accordance with a specific agreement concluded between the WH Committee and the recipient State Party, and that state is explicitly responsible for continuing the protection of the heritage concerned under that agreement, not under Chapter II. This Chapter, although it represents a lex generalis for States Parties’ protection obligations under the Convention, is not even referred to.121 We commented earlier on Article 6, paragraph 1, but another provision that deserves consideration is Article 25. Regulating assistance, this provision establishes ‘[a]‌s a general rule, [that] only part of the cost of the work necessary shall be borne by the international community’. Under the provision, this community is referred to as such, not ‘as a whole’. Rightly so because, in essence, it is not the international community ex se which shall bear only part of these costs, but only those members of that community that are contributors to the Fund. In addition, compulsory contributors are only States Parties,122 not the international community. Once again, presentations of collective interests and commitments for the protection of heritage exist and are philosophically and morally attractive, but it is a fact that, legally, they are essentially rather thin and tend to vanish as soon as a legal obligation to contribute to and nurture that commitment is sought under the Convention. For the rest, outside legal obligations, it is not surprising that voluntary contributions, gifts, or bequests may be made by a variety of entities, among others, States Parties.123

D.  Does the Protection of Heritage Under the Convention Match the Requirement of the ‘Importance’ of the Interest Involved Required by the ICJ? In the Barcelona Traction judgment, the ICJ stated that ‘in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.124 This obiter provides a useful ‘importance of the rights involved’ test as guidance for understanding the conditions under which an obligation may be qualified as erga omnes, while the rest of the obiter is more on the effects than on the conditions of those obligations. In our view, the effects of the erga omnes obligations appear clearer and more settled since 1970 than the conditions required to conclude the existence of such obligations. Others also consider the effects (in the case of the breach of such an obligation) to be unclear.125 On this issue, ICJ case law after 1970 has not provided significant guidance on the relevant conditions.   Art. 22. 122   Art. 26.   Art. 16, para. 1, with an important exception under paras 2 and 4. 123 124   Art. 15, para. 3.   See note 95, para. 33. 125  See the Dissenting Opinion of Judge Weeramantry in the Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90, para. 214. More generally, on effects from an enforcement perspective, see C. J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, Cambridge, 2005). 120 121

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On 9 July 2004, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ referred to the same test (‘importance of the rights involved’), by referring to obligations that ‘are by their very nature “the concern of all States” ’ and so ‘in view of the importance of the rights involved, all States can be held to have a legal interest in their protection’.126 This test is also relevant under the Separate Opinion of Judge Higgins in spite of the fact that, rightly in our view, it warns against the Barcelona Traction dictum as ‘frequently invoked for more than it can bear’, while it ‘was directed to a very specific issue of jurisdictional locus standi’.127 The idea of an ‘importance’ test of the ‘right’ involved is clear and self-​explanatory. However, from an operational perspective, it lacks determination as to the relevant threshold. In any event, does the protection of heritage under the Convention match the ‘importance’ test required by the ICJ to substantiate the existence of an erga omnes (partes) obligation? Certainly, protection of heritage is ‘important’. The protection under the Convention is ‘even more important’ as it focuses on heritage that is particularly significant, in possession of outstanding universal value. However, is this importance adequate for the purposes of substantiating the existence of erga omnes (partes) obligations? At least ethically, the response may be assumed to be affirmative. Legally, considerations and final opinions are more complex.

E. From Erga Omnes to Erga Omnes Partes Obligations With Regard to Treaty Law The concept of erga omnes obligations has been developed with regard to obligations arising in general international law. Also the International Law Commission’s final draft (2001) Articles on the Responsibility of States for Internationally Wrongful Acts—​which omits the terminology of erga omnes obligations (see earlier, subsection A)—​with regard to serious breaches refers only to international customary law by associating such breaches with international obligations under ius cogens; that is, peremptory norms of general international law.128 So, while the concept of erga omnes obligations has been developed with regard to obligations arising in general international law, a treaty law version—​which may be relevant with regard to the Convention—​exists under the terms of erga omnes partes obligations. A significant difference exists from customary international law and related erga omnes obligations. In matters of erga omnes partes obligations, states that negotiate a treaty have the opportunity to spell out in it the specific enforcement regime they deem appropriate

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  Para. 155 reads:

The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature ‘the concern of all States’ and, ‘In view of the importance of the rights involved, all States can be held to have a legal interest in their protection’. ‘The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-​determination, and certain of its obligations under international humanitarian law’. 127  Separate Opinion, para. 37: ‘As the International Law Commission has correctly put it in the Commentaries to the draft Articles on the Responsibility of States for Internationally Wrongful Acts (A/​56/​10 at p. 278), there are certain rights in which, by reason of their importance “all states have a legal interest in their protection”. It has nothing to do with imposing substantive obligations on third parties to a case.’ 128   See Chapter III Serious Breaches of Obligations under Peremptory Norms of General International Law, Arts 40, 41.

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for these treaty obligations, whether an ordinary ‘synallagmatic’ or an innovative ‘non-​ synallagmatic’ regime equivalent to that of erga omnes obligations. By clarifying ab initio the relevant regime, the states concerned avoid leaving it to interpretation, and the consequent uncertainties, for the treaty concerned. While they adopted the clear reference to ‘protection it is the duty of the international community as a whole to co-​operate’ (Art. 6, para. 1), the drafters of the Convention did not see the benefit of providing this clear position and adopted no provision providing specifically for a ‘non-​synallagmatic’ enforcement regime equivalent to erga omnes obligations. Should this omission be justified only by noting that the Convention was adopted in 1972, only two years after the ICJ ruling in Barcelona Traction? Probably not. The ILC’s Articles on the Responsibility of States, adopted in 2001, welcome both treaties and custom as possible sources of international obligations that, in the case of action or omission of a state in breach of the obligation, characterize an internationally wrongful act.129 As we noted earlier in subsection B, the ILC’s Articles openly admit in Article 48(1)(a) that any state other than an injured state is entitled to invoke the responsibility of another state if the obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group, or the obligation breached is owed to the international community as a whole. The provision does not qualify the legal source of such an obligation and, in addition to treaties and general custom, ‘regional’ customs and related obligations are also eligible. Treaty law obligations erga omnes partes are not, in any way, excluded by Article 48(1)(a), or by the Special Rapporteur’s comment on Article 48(1)(a) which gave as an example a treaty, such as a regional nuclear-​free zone treaty.130 Similarly, other members of the International Law Commission refer the category of erga omnes partes obligations to the same provision.131

F.  Does the Convention Establish Obligations Relevant for and Enforceable Under Article 48(1) of the International Law Commission’s Articles on State Responsibility? If one assumed that all the elements and/​or conditions considered under subsections C, D, and E were complied with, for all or some of the obligations the Convention establishes for its States Parties, then the enforcement of this (these) obligation(s) as erga omnes partes obligations may benefit from Article 48(1) of the ILC’s Articles on the Responsibility of States. We know this provision is related to the category of erga omnes obligations, although it does not mention it, and entitles any state, other than the injured state, to invoke the responsibility of another state if the obligation breached is: (a) owed to a group of states including that state, and is established for the protection of a collective interest of the group; or (b) owed to the international community as a whole. Certainly, that state can claim fewer remedies132 than the injured state could claim under Article 42 and Chapter II of the ILC’s Articles. It can, nevertheless, invoke another state’s responsibility, and this option is not a minor development in contemporary international law. 129  Arts 2 and 48. See J. Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge University Press, Cambridge, 2002) pp. 83, 277. 130  ibid. 131   A. Pellet, ‘Les Articles de la C.D.I. sur la responsabilité de l’Etat pour fait internationalement illicite. Suite et fin?’ (2002) 48 AFDI 1, 10. 132   See Art. 48, paras 2 and 3. See also Art. 54.

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Some remarks are, however, necessary. First, it must be stressed that Article 48(1) omits an explicit reference to the importance test of the right involved, which is a condition for the existence of an erga omnes obligation in the ICJ’s case law since the Barcelona Traction case. This omission suggests that the importance test, which identifies erga omnes obligations and did not and cannot merely disappear despite this omission, is necessarily implied and integrated into the structure of Article 48(1) and its scope, which grants a privileged status only to some qualified obligations (para. 1(a) and (b)). The Special Rapporteur’s commentary is of no assistance.133 While the importance test of the right involved is not expressly referred to in the ILC’s Articles, it remains essential to characterize erga omnes obligations and cannot be merely disregarded in the context of Article 48(1) which follows, from the perspective of state responsibility, the substance (conditions and effects) though not the terminology of erga omnes obligations, certainly for paragraph 1(b) (‘the obligation breached is owed to the international community as a whole’), and in some circumstances for paragraph 1(a) (‘protection of a collective interest of the group’).134 Generally, the main grounds for an interest of the international community of states under the Convention, and consequently for a potential qualification of its obligations as erga omnes partes, relates to the outstanding universal value of the heritage at stake. The intuitive symmetry between the two elements—​interest of the international community/​ outstanding universal value—​makes sense. However, it should not be overstated and extrapolated from a legal perspective.135 Article 48(1) of the ILC’s Articles covers obligations which are breached and which are owed: (a) to a group of states (including that state) and established for the protection of a collective interest of the group; or (b) to the international community as a whole. Interestingly enough, we observed earlier that neither the Preamble nor other provisions of the Convention expressly use the terminology of ‘collective interest’.136 Would they have retained this terminology if the Convention were adopted after 2001, after the adoption of the ILC’s Articles? Perhaps. In any event, while the Convention is silent, the Operational Guidelines refer to a ‘collective interest of the international community to cooperate in the protection of heritage’.137 133   It seems to avoid any idea of ‘omission’ as to the importance of the right involved test, a fortiori as to erga omnes obligations, and shifts the focus to the character of the obligations by observing that obligations owed to the international community as a whole (para. 1(b)) require no additional qualification and are by definition collective obligations protecting the interests of the international community as such. In contrast, the obligations owed to a group of states and for the protection of the collective interest of the group (para. 1(a)) need additional qualifications. See Crawford (note 129) pp. 277–​278. 134   Despite the Special Rapporteur’s view that no additional qualification seemed necessary for the purposes of Art. 48, para. 1. 135   This cautious approach appears desirable even more with regard to other instruments of a soft law nature with terminology closer to public-​awareness-​raising purposes than to clear-​cut legal principles and consequences. The UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, adopted on 16 November 1972, applies to cultural and natural heritage merely of ‘special value’—​a characterization less qualified than ‘outstanding universal value’ under the Convention. However, one ‘Considering’ in its Preamble reads: ‘every country in whose territory there are components of the cultural and natural heritage has an obligation to safeguard this part of mankind’s heritage and to ensure that it is handed down to future generations’. 136   While the Preamble entails ‘collective assistance’ and ‘collective protection’. 137   Operational Guidelines, para. 15: ‘While fully respecting the sovereignty of the States on whose territory the cultural and natural heritage is situated, States Parties to the Convention recognize the collective interest of the international community to cooperate in the protection of this heritage. ...’

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For the sake of clarity, we compare the two texts: 1. Article 6, paragraph 1): ‘. . . the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate.’ 2. Operational Guidelines, paragraph 15): ‘... States Parties to the Convention recognize the collective interest of the international community to cooperate in the protection of this heritage.’ Of course, only point 1 is treaty law and, as such, is binding upon States Parties. While point 2 is not treaty law and, as with all the Guidelines, is a creation of the intergovernmental committee, composed of 21 States Parties, which is the WH Committee. In terms of substance, the formulation in point 2 is more modern and, more importantly, significantly closer to the erga omnes obligations concept and regime, by its use of ‘collective interest’—​the same terminology used in Article 48(1) of the ILC’s Articles. At the same time, point 2 loses some legal recognition by omitting the more standardized formulation ‘international community as a whole’ and retaining simply ‘international community’. Summarizing, Article 48(1) of the ILC’s Articles finds an easier application under the Operational Guidelines than the Convention’s formulation. However, the former is not treaty law and represents the 21 States Parties that compose the Committee (following its regular re-​election) since paragraph 15 of the Operational Guidelines was adopted (and not later amended or deleted), while only Article 6 (para. 1) of the Convention is treaty law and creates the international law obligations that may generate the international erga omnes partes required under Article 48(1) for a state, other than the injured one, to invoke a breach of those obligations and the responsibility of the state. A different conclusion may be reached if a protection obligation qualifiable as erga omnes under Article 48(1) of the ILC’s Articles were considered to exist, not under the Convention, as the relevant treaty law source, but under an international customary law obligation. This commentary focuses on the Convention and is not aimed at examining state practice and opinio iuris138 to conclude on the existence (or absence), scope, and content of a customary obligation. In a previous article on treaty law and customary obligations for the restitution of cultural property—​limited to movables and armed conflicts—​we expressed some reservations as to some common statements of the existence, since an undefined ‘long time’, of general customary law and restitution duty, expressed without an adequate verification of usus and opinio, and/​or without necessary (sub)distinctions to be drawn within the used, and at times abused, terminology of ‘protection’ of cultural property or heritage.139

G. Conclusions In the over 50 years since its adoption, the Convention is in force in nearly all jurisdictions and directly applicable, nearly universally, on the solid basis of treaty law. This 138   Beyond the generally agreed dichotomy usus–​opinio iuris, there are various opposing theories in the field of customary international law. See, e.g., from different perspectives: P. Guggenheim, ‘Contribution à l’histoire des sources du droit des gens’ (1958) 94 Hague Academy Collected Courses 1, 36; A. Verdross, ‘Entstehungsweisen und Geltungsgrund des universelle völkerrechtlichen Gewohnheitsrechts’ (1969) 29 ZAÖRV 635; B. Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (Fink, Munich, 1970); M. Akehurst, ‘Custom as a Source of International Law’ (1974–​1975) BYIL 1. 139   See Carducci (note 47).

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feature reduces, except for the relatively few non-​States Parties, the practical, not the theoretical, interest of these developments on erga omnes obligations. That being noted, in view of the existing uncertainties as to what conditions and/​or interests make an international obligation an erga omnes partes obligation, the analysis of the Convention provides several arguments in favour as well as against the finding of erga omnes partes obligations under the Convention. It provides no absolute certainty and, in the event that a dispute arises, the judge or arbitrator will decide as appropriate in the circumstances, between arguments in favour and against. More clarification on the conditions to be met for the existence of erga omnes obligations through future international rulings would be beneficial. Some examples of international obligations qualified as having an erga omnes nature have been provided by the ICJ, such as the right of peoples to self-​determination, as it evolved from the Charter and United Nations practice,140 though its scope may be debated as being, for instance, beyond colonial powers,141 and also the many rules (although not clearly identified) of humanitarian law applicable in armed conflict.142 A clear, analytical, and unambiguous ICJ or other international tribunal ruling on the 1972 UNESCO Convention from the perspective of its possible qualification as a set of one or more erga omnes partes obligations would be welcome. No less welcome would be a ruling on the existence of one or more customary international law erga omnes obligation(s) as to the protection of cultural and natural heritage (of outstanding universal value). Interestingly, one may wonder whether the position taken by the WH Committee in favour of an explicit reference to ‘collective interest’ (subsections D and F) would find any support in state practice and opinio iuris to evidence a customary law development towards an erga omnes obligation more explicitly based on such collective interest. Questionable extrapolations or extensive interpretations from other rulings on the same qualification, but with regard to distinct issues, though associated within the broad field of ‘culture’, would carry no weight and no clarification for the purposes of legal predictability.

H.  Suitability of State Responsibility and its Remedies for Heritage Protection Purposes Even assuming that Article 48(1) of the ILC’s Articles is applicable to the Convention and some of its obligations to protect heritage, and that its enforcement regime entitles non-​injured states to enforce such obligations, the question as to whether state responsibility is suitable for heritage-​protection purposes in view of its remedies remains open. Such suitability depends on factual and legal considerations. Very pragmatically and to take an extreme situation, if the violation of the protection obligation has gone so far   See note 125 (in relation to the East Timor case), 102, para. 29.   e.g. it was challenged in the Separate Opinion of Judge Kooijman, in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), para. 33: 140 141

In the East Timor case the Court called the rights of peoples to self-​determination in a colonial situation a right erga omnes, therefore a right opposable to all. But it said nothing about the way in which this ‘right’ must be translated into obligations for states which are not the colonial power. And I repeat the question: Is every impediment to the exercise of the right to self-​determination a breach of an obligation to respect it? Is it so only when it is serious? Would the discontinuance of the impeding act restore the right or merely bring the breach to an end? 142   See the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 257, para. 79.

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as to imply the destruction of heritage, no legal remedy can perform miracles at that late stage. However, the Convention applies to immovable heritage, usually of an important size, and generally only a rather long-​lasting lack of protective measures would lead to its destruction. An example to the contrary, where the destruction of heritage was extremely rapid, actually instantaneous, is the famous destruction of the Buddhas of Bamiyan. Legally speaking, other obstacles may reduce the suitability of state responsibility and its remedies for heritage-​protection purposes. First of all, any responsibility requires evidence of a breach of an international obligation, in law and fact. Furthermore, a foreign state may have particular difficulty in acquiring such evidence for a breach committed in a different territory and under different state sovereignty. The extreme visibility via the press, and access to what was a deliberate act in the famous destruction of the Buddhas of Bamiyan, was, again, an exceptional and specific example that should not be generalized. States may have different approaches to compliance with and, breaches of, treaties to which they are parties.143 Paraphrasing George Orwell, if all breaches of a multilateral treaty constitute a failure with respect to attaining a uniform standard, some breaches are more visible and identifiable than others. If compliance with treaties is somehow a dogma to international lawyers,144 any breach presupposes clearly defined obligations. The more the performance expected under the obligation lacks clarity, the more difficult it is to invoke and evidence a breach. This risk is quite real with the Convention in view of the rather open-​ended drafting of its Chapter II and the discretion it grants to States Parties in performing the obligation, depending on specific national situations. Even assuming an incontestable breach, responsibility obviously has concrete legal significance and effects when the aggrieved party relies on legal remedies, as available in the circumstances under international law. This is assumed to be the case here, although some aggrieved parties may consider it preferable to first exhaust political, economic, and diplomatic pressure to encourage compliance. Taken to the extreme, this latter option would considerably reduce the difference between ‘hard’ and ‘soft’ law, between the Convention and Recommendation of the same year, on cultural and natural heritage. However, the difference remains most relevant as soon as legal remedies are sought, after, or regardless of, the exhaustion of other means. Even assuming an uncontested breach and a willingness to seek legal remedies, as observed earlier, Article 48(1) of the ILC’s Articles entitles any state, other than the injured state, to invoke the responsibility of another state. However, the remedies it entitles that state to claim are more limited145 than those the injured state could claim against the same defaulting state under Article 42 and Chapter II of the ILC’s Articles. Basically the (non-​injured) state can invoke the cessation of the internationally wrongful act with assurances and guarantees of non-​ repetition (if circumstances so require), and performance of the obligation of reparation in the interest, at least, of the injured state or, more broadly, of the beneficiaries of the obligation breached.146 As long as the destruction of heritage is not the outcome of a breach of protection obligations, cessation of the wrongful act and reparation in interest are generally a real assistance to heritage.   e.g. D. F. Vagts, ‘The United States and Its Treaties: Observance and Breach’ (2001) 95 AJIL 313.   For an example, ibid, 323: ‘In the background, one must remember that to an orthodox international lawyer the sanctity of treaty obligations is an Article of faith. Thus, there is no mystery here from the point of view of international lawyers and international tribunals. The obligation of a treaty, the doctrine of pacta sunt servanda, arises in the law of nations quite independently of national law.’ 145 146   See Art. 48, paras 2 and 3. See, however, Art. 54.   Art. 48, para. 2. 143 144

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Articles 8–​11: World Heritage Committee and World Heritage List Tullio Scovazzi *

Article 8 1. An Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value, called ‘the World Heritage committee’, is hereby established within the United Nations Educational, Scientific and Cultural Organization. It shall be composed of 15 States Parties to the Convention, elected by States Parties to the Convention meeting in general assembly during the ordinary session of the General Conference of the United Nations Educational, Scientific and Cultural Organization. The number of States members of the Committee shall be increased to 21 as from the date of the ordinary session of the General Conference following the entry into force of this Convention for at least 40 States. 2. Election of members of the Committee shall ensure an equitable representation of the different regions and cultures of the world. 3. A representative of the International Center for the Study of the Preservation and Restoration of Cultural Property (Rome Center), a representative of the International Council of Monuments and Sites (ICOMOS) and a representative of the International Union for Conservation of Nature and Natural Resources (IUCN), to whom may be added, at the request of States Parties to the Convention meeting in general assembly during the ordinary sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization, representatives of other intergovernmental or non-​governmental organizations, with similar objectives, may attend the meetings of the Committee in an advisory capacity. Article 9 1. The term of office of States members of the World Heritage Committee shall extend from the end of the ordinary session of the General Conference during which they are elected until the end of its third subsequent ordinary session. 2. The term of office of one-​third of the members designated at the time of the first election shall, however, cease at the end of the first ordinary session of the General Conference following that at which they were elected; and the term of office of a further third of the members designated at the same time shall cease at the end of the second ordinary session of the General Conference following that at which they were elected. The names of these members shall be chosen by lot by the President of the General Conference of the United Nations Educational, Scientific and Cultural Organization after the first election. 3. States members of the Committee shall choose as their representatives persons qualified in the field of the cultural or natural heritage. Article 10 1. The World Heritage Committee shall adopt its Rules of Procedure. 2. The Committee may at any time invite public or private organizations or individuals to participate in its meetings for consultation on particular problems. 3. The Committee may create such consultative bodies as it deems necessary for the performance of its functions. *  Former professor of International Law in the Universities of Parma, Genoa, Milan, and Milan-Bicocca.

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Article 11 1. Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance. 2. On the basis of the inventories submitted by States in accordance with paragraph 1, the Committee shall establish, keep up to date and publish, under the title of ‘World Heritage List’, a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years. 3. The inclusion of a property in the World Heritage List requires the consent of the State concerned. The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute. [Paragraph 4 examined in the next chapter] 5. The Committee shall define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included in either of the lists mentioned in paragraphs 2 and 4 of this article. 6. Before refusing a request for inclusion in one of the two lists mentioned in paragraphs 2 and 4 of this article, the Committee shall consult the State Party in whose territory the cultural or natural property in question is situated. 7. The Committee shall, with the agreement of the States concerned, co-​ordinate and encourage the studies and research needed for the drawing up of the lists referred to in paragraphs 2 and 4 of this article.

I. Article 8  A. Paragraph 1  B. Paragraph 2  C. Paragraph 3  II. Article 9  A. Paragraph 1  B. Paragraph 2  C. Paragraph 3  III. Article 10  A. Paragraph 1  B. Paragraph 2  C. Paragraph 3  IV. Article 11 (Except Paragraph 4)  A. Paragraph 1  B. Paragraph 2  C. Paragraph 3  D. Paragraph 5  E. Paragraph 6  F. Paragraph 7 

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I.  Article 8 A.  Paragraph 1 The Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (usually known under the abbreviated name of World Heritage Committee or under the acronym WHC), which in Article 8, paragraph 1, is mentioned for the first time, is the organ entitled to exercise the main responsibilities set forth in the Convention. It can be considered as representing the common commitment of States Parties for the ‘cultural and natural heritage of outstanding interest’ and for its preservation ‘as part of the world heritage of mankind as whole’ (to recall the Preamble to the Convention).1 The functions of the WHC, to be performed in cooperation with States Parties, are specified in the relevant provisions of the Convention and listed in the Operational Guidelines,2 namely to: identify, on the basis of tentative lists and nominations submitted by States Parties, cultural and natural properties of outstanding universal value, which are to be protected under the Convention, and inscribe them on the World Heritage List; examine the state of conservation of such properties through the processes of reactive monitoring and periodic reporting; decide which properties inscribed on the World Heritage List are to be inscribed on, or removed from, the List of World Heritage in Danger; decide whether a property should be deleted from the World Heritage List; define the procedure by which requests for international assistance are to be considered and carry out studies and consultations, as necessary, before coming to a decision; determine how the resources of the World Heritage Fund can be used most advantageously to assist States Parties in the protection of their properties of outstanding universal value; seek ways to increase the World Heritage Fund; submit a report on its activities every two years to the General Assembly of States Parties and to the UNESCO General Conference; review and evaluate periodically the implementation of the Convention; and revise and adopt the Operational Guidelines. In order to facilitate the implementation of the Convention, in 2002 the WHC established a number of strategic objectives that are periodically reviewed and revised to ensure that new threats placed on the world heritage are addressed effectively. The current strategic objectives, also referred to as ‘the five Cs’ are: to strengthen the credibility of the World Heritage List; to ensure the effective conservation of World Heritage properties; to promote the development of effective capacity-​building in States Parties; to increase public awareness, involvement, and support for world heritage through

1   On the Convention and the WHC, see, in general, F. Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’, in A. Yusuf (ed.) Standard-​Setting in UNESCO, vol. I (Martinus Nijhoff, Leiden, 2007) p. 221; T. Scovazzi, ‘La notion de patrimoine culturel de l’humanité dans les instruments internationaux’, in J. A. R. Nafziger and T. Scovazzi (eds) Le patrimoine culturel de l’humanité—​The Cultural Heritage of Mankind (Martinus Nijhoff, Leiden, 2008) p. 3; W. Ferchichi, ‘La Convention de l’UNESCO concernant la protection du patrimoine mondial culturel et naturel’, ibidem, p. 455; C. Cameron and M. Rössler, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate, Farnham, 2013); F. Francioni, ‘World Cultural Heritage’, in F. Francioni and A. F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, Oxford, 2020) p. 250. 2   Para. 24 of the Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​01, of 31 July 2021.

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communication; to enhance the role of the communities in the implementation of the Convention.3 As it appears from the adjective ‘intergovernmental’, the WHC is a body composed of states. The individuals who attend the meetings of the WHC do not act in their personal capacity, but as representatives of the States Parties by which they are appointed.4 However, it is explicitly provided in the Operational Guidelines that: Committee decisions are based on objective and scientific considerations, and any appraisal made on its behalf must be thoroughly and responsibly carried out. The Committee recognizes that such decisions depend upon:

a) carefully prepared documentation; b) thorough and consistent procedures; c) evaluation by qualified experts; and d) if necessary, the use of expert referees.5

As indicated in Article 8, paragraph 1, the number of states members of the WHC, which are elected by the General Assembly of States Parties, was increased from 15 to 21 after the entry into force of the Convention for at least 40 states. Given that 194 states are today bound by the Convention,6 the ratio between states members of the WHC and States Parties has decreased from an initial theoretical 0.75 (15/​20, 20 being the number of parties required for the entry into force of the Convention) to 0.108 (21/​194). At the end of each ordinary session, the WHC elects, from amongst those members whose term continues through the next ordinary session, a Chairperson, five Vice-​ Chairpersons, and a Rapporteur, who remain in office until the end of that session.7 They constitute the Bureau of the WHC which is entrusted with the task of coordinating the WHC work and fixing the dates, hours, and order of business of the meetings.8 The WHC is established within the framework of UNESCO, the international organization within which the Convention was negotiated and adopted and which performs the depositary functions. The WHC is assisted by a Secretariat whose functions since 1992 have been assumed by the World Heritage Centre.9

B.  Paragraph 2 In the case of the WHC, the concept of ‘equitable representation’, which is frequent in international bodies having a restricted membership, is based not only on geographical but also on cultural factors (the ‘different regions and cultures of the world’).10 According to the Rules of Procedure of the General Assembly of States Parties to the Convention,11 the election of the WHC members is conducted on the basis of the composition of UNESCO electoral groups, as determined by the UNESCO General

  Operational Guidelines, para. 26.    4  See also under Art. 9, para. 3 in Section II.C.   Operational Guidelines, para. 23. 6   The only states that are not parties to the Convention are Liechtenstein, Nauru, and Tuvalu. 7   WHC Rules of Procedure, Doc. WHC-​215/​5, of July 2015, Rule 13.1.    8  ibid, Rule 12.1. 9   See Art. 14, para. 1, later. 10   The current members of the WHC are Argentina, Belgium, Bulgaria, Egypt, Ethiopia, Greece, India, Italy, Japan, Mali, Mexico, Nigeria, Oman, Qatar, Russian Federation, Rwanda, Saint Vincent and the Grenadines, Saudi Arabia, South Africa, Thailand, and Zambia. 11  Rules of Procedure of the General Assembly of States Parties, Doc. WHC-​14/​GA/​1 Rev. 4, of 14 November 2014, Rules 13 and 14, which regulate in detail the voting procedure. 3 5

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Conference at its most recent session, namely Europe and North America (group I, two seats), Eastern Europe (group II, two seats), Latin America and the Caribbean (group III, two seats), Asia and the Pacific (group IV, three seats), Africa (group V a, four seats), and Arab States (group V b, two seats). An additional seat is allocated for group III and group IV on a rotational basis. Ballots for allocated seats precede the ballots for the remaining seats to be filled. Due consideration is given to the election of at least one State Party which has never served as a member of the WHC.12 Candidatures should be sent to the Secretariat at least six weeks prior to the opening of the General Assembly. At least four weeks prior to the same date, the Secretariat sends to all States Parties the provisional list of the candidate states, providing also information on the status of all compulsory and voluntary contributions to the World Heritage Fund made by each of them. This implies that financial considerations may have an influence on the success of candidatures. The election of members of the WHC is conducted by secret ballot whenever five or more delegations having the right to vote so request or if the Chairperson so decides.

C.  Paragraph 3 Article 8, paragraph 3, identifies the three so-​called Advisory Bodies to the WHC. These bodies, which are entitled through their representatives to attend the meetings of the WHC in an advisory capacity, are entrusted with a broad range of functions, namely to: (a) advise on the implementation of the World Heritage Convention in the field of their expertise; (b) assist the Secretariat, in the preparation of the Committee’s documentation, the agenda of its meetings and the implementation of the Committee’s decisions; (c) assist with the development and implementation of the Global Strategy for a Representative, Balanced and Credible World Heritage List, the World Heritage Capacity Building Strategy, Periodic Reporting, and the strengthening of the effective use of the World Heritage Fund; (d) monitor the state of conservation of the World Heritage properties (including through Reactive Monitoring missions at the request of the Committee and Advisory missions at the invitation of the States Parties) and review requests for International Assistance; (e) in the case of ICOMOS and IUCN evaluate properties nominated for inscription on the World Heritage List, in consultation and dialogue with nominating States Parties, and present evaluation reports to the Committee; and (f ) attend meetings of the World Heritage Committee and the Bureau in an advisory capacity.13

12   The following states have been elected to the WHC since its establishment in 1976: Algeria (3 mandates), Angola (1), Argentina (3), Australia (5), Azerbaijan (1), Bahrain (2), Barbados (1), Belgium (2), Benin (2), Bosnia and Herzegovina (1), Brazil (5), Bulgaria (3), Burkina Faso (1), Cambodia (1), Canada (4), Chile (1), China (4), Colombia (3), Croatia (1), Cuba (4), Cyprus (2), Democratic Republic of the Congo (1), Ecuador (2), Egypt (5), Estonia (1), Ethiopia (2), Finland (2), France (5), Germany (4), Greece (3), Guatemala (1), Guinea (1), Hungary (2), India (4), Indonesia (2), Iran (1), Iraq (2), Israel (1), Italy (5), Jamaica (1), Japan (4), Jordan (2), Kazakhstan (1), Kenya (1), Kuwait (2), Kyrgyzstan (1), Lebanon (4), Libya (1), Lithuania (1), Madagascar (1), Malawi (1), Malaysia (1), Mali (2), Malta (1), Mauritius (1), Mexico (5), Morocco (2), Nepal (1), Netherlands (1), New Zealand (1), Niger (1), Nigeria (4), Norway (3), Oman (3), Pakistan (2), Panama (1), Peru (3), Philippines (2), Poland (2), Portugal (2), Qatar (2), Republic of Korea (3), Russian Federation (3), Rwanda (1), Saint Kitts and Nevis (1), Saint Lucia (1), Saint Vincent and the Grenadines (1), Saudi Arabia (1), Senegal (4), Serbia (1), South Africa (3), Spain (3), Sri Lanka (1), Sudan (1), Sweden (1), Switzerland (2), Syria (1), Thailand (4), Tunisia (4), Turkey (2), Uganda (1), United Arab Emirates (1), UK (1), United Republic of Tanzania (2), United States (4), Viet Nam (1), Yemen (1), Zambia (1), and Zimbabwe (2). 13   Operational Guidelines, para. 31.

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The International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre or ICCROM) was established in 1956 in Rome as an intergovernmental organization.14 It aims to contribute to the worldwide conservation and restoration of cultural property by initiating, developing, promoting, and facilitating conditions for such conservation and restoration.15 The specific role of ICCROM in relation to the Convention includes: being the priority partner in training for cultural heritage, monitoring the state of conservation of the World Heritage cultural properties, reviewing requests for International Assistance submitted by States Parties, and providing input and support for capacity-​building activities.16

ICOMOS (International Council of Monuments and Sites) is an international NGO founded in 1965 and located in Charenton-​le-​Pont, France. Its members are individuals and institutions formed into national committees which may be organized in any member state of UNESCO. The aim of ICOMOS is ‘to promote the application of theory, methodology and scientific techniques to the conservation of the architectural and archaeological heritage’.17 The specific role of ICOMOS in relation to the Convention includes: evaluation of properties nominated for inscription on the World Heritage List, monitoring the state of conservation of World Heritage cultural properties, reviewing requests for International Assistance submitted by States Parties, and providing input and support for capacity-​building activities.18

IUCN (International Union for Conservation of Nature and Natural Resources) is an international organization established in 1948 and located in Gland, Switzerland. Its members are both governmental (states and government agencies; political or economic integration organizations) and non-​ governmental (national and international non-​ governmental organizations; indigenous peoples’ organizations; affiliates) entities.19 The objectives of IUCN are ‘to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable’.20 The specific role of IUCN in relation to the Convention includes: evaluation of properties nominated for inscription on the World Heritage List, monitoring the state of conservation of World Heritage natural properties, reviewing requests for International Assistance submitted by States Parties, and providing input and support for capacity-​building activities.21

Annex 6 to the Operational Guidelines sets forth the ICOMOS or IUCN procedures for preliminary assessments and evaluation of cultural or natural properties. Properties that are nominated under both natural and cultural criteria entail a joint IUCN and ICOMOS mission to the nominated property. Following the mission, IUCN and ICOMOS prepare separate evaluation reports of the property under the relevant criteria and harmonize and coordinate their evaluations to the extent possible. While properties nominated as cultural landscapes are evaluated by ICOMOS, IUCN may provide advice, when relevant, on the natural values and the conservation and management of the   See Art. 2, para. 1, of the ICCROM Statutes, as revised and approved on 29 November 2013. 16 17   ibid, Art. 1.   Operational Guidelines, para. 33.   ibid, para. 34. 18   ibid, para. 35. 19   IUCN Statutes of 5 October 1948, as revised in 1996 and last amended in 2016, Art. 4. 20 21   ibid, Art. 2.   Operational Guidelines, para. 37. 14 15

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nominated property and addresses any questions that are raised by ICOMOS. In some cases, a joint mission is required. Besides the three Advisory Bodies, other intergovernmental or non-​governmental organizations, with similar objectives and with appropriate competence in the cultural or natural field, may attend WHC meetings in an advisory capacity to assist in the implementation of its programmes and projects, including for reactive monitoring missions.22 However, this can be done only at the request of States Parties meeting in General Assembly during the ordinary sessions of the UNESCO General Conference.

II.  Article 9 A  Paragraph 1 As the UNESCO General Conference meets once every two years, the term of office of WHC member states is six years. To ensure equitable representation and rotation, it is common for elected states voluntarily to decide to reduce their term of office from six to four years. Nothing in the Convention prevents a state from being consecutively re-​ elected. However, the Rules of Procedure of the General Assembly of States Parties to the Convention provide that members of the WHC may stand again for election after a gap of six years after the expiry of their mandate.23 Moreover, as stated in the Operational Guidelines, ‘States Parties are invited by the General Assembly to consider voluntarily reducing their term of office from six to four years and are discouraged from seeking consecutive terms of office’.24

B.  Paragraph 2 Provisions aiming at a partial renewal are often found in international instruments that establish organs having a restricted number of members. They aim to ensure some degree of continuity in the work of the organ. Drawing by lot the states that have a reduced term of mandate avoids any subjectivity in their choice.

C.  Paragraph 3 To correctly perform the functions peculiar to the WHC, the representatives of member states shall be persons qualified in the cultural or natural field. Persons having more general competences, such as diplomats or politicians, are in principle excluded from the WHC. However, it seems very difficult, if not practically impossible, for a State Party to challenge the margin of discretion that a WHC member state has in choosing its own representative. WHC member states are strongly encouraged to include in their delegation persons qualified in both the cultural and natural field.25 This is facilitated by the fact that the delegate may be assisted by alternates, advisers, and experts.26 To ensure a fair representation   ibid, para. 38.   Rules of Procedure of the General Assembly of States Parties (note 11) Rule 13, para. 2. 24   Operational Guidelines, para. 21. 25   WHC Rules of Procedure (note 7) Rule 5.2. On a specific risk see E. Bertacchini et al., ‘The Politicization of UNESCO World Heritage Decision Making’ (2016), 6(1) Public Choice 95. 26   WHC Rules of Procedure (note 7) Rule 5.1. 22 23

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within the WHC of the various geographical and cultural areas, the WHC allocates in its budget a sum intended to cover the cost of participation of representatives of developing countries, ‘but only for persons who are experts in cultural or natural heritage’.27 States members of the WHC must transmit to the Secretariat in writing the names, designations, and qualifications of their representatives.28 In 2019, the General Assembly of States Parties, recalled the need to ensure the highest standards of integrity and transparency of working methods within the process of decision making of the governing bodies of the Convention and emphasized the collective responsibilities of all stakeholders—​States Parties, World Heritage Centre, and Advisory Bodies—​to uphold the integrity and the credibility of the Convention, expecting all stakeholders to conduct themselves according to the highest ethical standards of professionalism, equity, and transparency. It decided to establish an open-​ended working group of States Parties with the mandate to develop a Code of Conduct or Statement of Ethical Principles or equivalent text.29 In 2021, the General Assembly of States Parties endorsed30 the Declaration of principles to promote international solidarity and cooperation to preserve World Heritage, as drafted by the working group.31 The Declaration, which is not a legally binding instrument, provides, inter alia, that States Parties will be guided by the core principles of integrity,32 objectivity,33 impartiality,34 and respect for cultural diversity.35 The WHC commits to remain impartial and base its decisions on objective and scientific considerations, as well as to endeavour to appreciate different competencies and opinions, encourage mutual respect, promote humble and respectful dialogue, and in the case of disagreement, seek to reach agreement by consensus through cooperation.36

III.  Article 10 A.  Paragraph 1 The Rules of Procedure were adopted by the WHC in 1977 and have subsequently been amended 11 times (in 1978, 1979, 1996, 2000, 2001, 2003, 2006, 2010, 2011, 2013, 28 29 30   ibid, Rule 5.4.   ibid, Rule 5.3.   Decision 22 GA 10.  ibid.   Doc. WHC/​21/​23.GA/​Inf.10, of 9 November 2021. 32   ‘ “Integrity” is upholding the highest standards of professional principles, ethics and fairness in the implementation of the Convention’ (ibid, para. I.i). 33   ‘ “Objectivity” is basing recommendations and decisions on scientific facts and rigorous analysis of the documentation presented to the Committee’ (ibid, para. I.ii). 34  ‘ “Impartiality” is acting in accordance with the Convention, its Operational Guidelines and Rules of Procedure of the World Heritage Committee and the General Assembly of States Parties, and the documents guiding the ethical principles of all respective stakeholders such as the UNESCO Constitution, the Standards of Conduct for International Civil Service, UNESCO Staff Regulations and Rules, ICCROM Staff Regulations and Rules, ICOMOS Ethical Principles, Code of Conduct and Professional Ethics for the Secretariat of IUCN and Terms of reference for the IUCN World Heritage panel; and to benefit the credibility of the World Heritage List and ensure the ethical integrity of their decisions’ (ibid, para. I.iii). 35   ‘ “Respect for cultural diversity” is understood as a recognition that cultural heritage must be considered and judged primarily within the cultural contexts to which it belongs and that judgments about values attributed to cultural properties may differ from culture to culture, and even within the same culture. Taking into account the universal nature of the Convention, assessing issues related to Outstanding Universal Value requires approaches that may involve multidisciplinary collaboration and the appropriate use of all available expertise and knowledge, encompassing varying experts’ professional, geographical and cultural perspectives, in addition to analytical processes and tools specific to the nature and needs of those cultures. Experts’ recommendations could diverge based on varying professional, geographical and cultural perspectives’ (ibid, para. I.iv). 36   ibid, para. II.4. 27 31

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and 2015). They deal with membership (Part I), sessions (Part II), participants (Part III), agenda (Part IV), Bureau (Part V), conduct of business (Part VI), voting (Part VII), Secretariat of the WHC (Part VIII), working languages and reports (Part IX), and adoption, amendment, and suspension of the Rules of Procedure (Part X). Some of the most important rules, which have not been mentioned elsewhere in this Commentary, are recalled hereunder. The WHC meets at least once per year in ordinary session and, at the request of at least two-​thirds of states members, in extraordinary session.37 Any state member of the WHC may invite it to hold a session in its territory. In determining the location of the session, the WHC gives due regard to the need to ensure an equitable rotation among the different regions and cultures of the world.38 For example, the 2016, 2017, 2018, and 2019 ordinary sessions were respectively held in Istanbul (Turkey), Krakow (Poland), Manama (Bahrain), and Baku (Azerbaijan), the 2020 session was postponed due to the Covid-​19 pandemic and, for the same reason, the 2021 extended session was chaired from Fuzhou (China) and held totally online according to special methods of work.39 The 45th session was due to be held in Kazan (Russian Federation) in 2022, but was postponed. In December 2022, the WHC decided that the conditions to hold the session as foreseen were not met. At plenary meetings, the WHC quorum consists of a majority of the states members of the WHC.40 Meetings are held in public, unless the WHC decides otherwise.41 States Parties to the Convention which are not members of the WHC may attend the sessions of the WHC and its Bureau as observers.42 Nothing in the Convention prevents a state which is a member of the WHC from presenting a nomination of a property situated in its territory for inclusion in the World Heritage List.43 Representatives of a State Party, whether or not a member of the WHC, may be invited by the Chairperson to present their views after the Advisory Bodies have presented their evaluation of the site proposed by the state for inscription. The presentation must be limited to a clarification or an update on the proposed site. After this permitted time, the State Party may be allowed to take the floor again, but only in order to answer questions, within a limited time, that have been asked.44 The WHC is entitled to adopt such decisions and recommendations as it deems appropriate.45 Each state member of the WHC has one vote.46 Decisions on matters covered by the provisions of the Convention are taken by a majority of two-​thirds of states members present and voting.47 Other decisions are taken by a majority of the WHC states members present and voting.48 The decision as to whether a particular matter is covered by the provisions of the Convention is taken by a majority of the WHC states members present and voting.49 The expression ‘present and voting’ means states members casting an affirmative or negative vote. Abstaining states members are regarded as not voting.50 In WHC practice, deliberations are mostly taken by consensus. 38   WHC Rules of Procedure (note 7) Rule 2.   ibid, Rules 4.2 and 4.3.   See Doc. WHC/​21/​15EXT.COM/​3, of 23 March 2021. Prior to the Covid-​19 pandemic, the WHC had never held any ordinary session other than in presentia. 40 41 42   WHC Rules of Procedure (note 7) Rule 17.1.   ibid, Rule 18.   ibid, Rule 8.1. 43   See also under Art. 11, para. 2 (Section IV.B). 44 45 46   WHC Rules of Procedure (note 7) Rule 22.7.   ibid, Rule 34.1.   ibid, Rule 35. 47 48 49 50   ibid, Rule 37.   ibid, Rule 38.1.   ibid, Rule 38.2.   ibid, Rule 39. 37 39

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At the closure of each session, the rapporteur prepares a report comprising a list of decisions.51 The Secretariat prepares a summary record of all the interventions made.52 The report and the summary record are published. The WHC may suspend the application of any of the Rules of Procedure, except when they reproduce provisions of the Convention, by a decision taken in plenary meeting by a two-​thirds majority of the states members present and voting.53

B.  Paragraph 2 The United Nations and organizations of the UN system, as well as, upon written request at least 15 days prior to the date of the session of the WHC, other international governmental and non-​governmental organizations, permanent observer missions to UNESCO, and non-​profit-​making institutions having activities in the fields covered by the Convention, may be authorized by the WHC to participate in its sessions as observers.54 The UNESCO Director-​General may provisionally invite any organization referred above, subject to subsequent confirmation by the WHC.55 The representatives of organizations, individuals, and observers may address the meeting with the prior consent of the Chairperson.56 The list of attendees is published in the report of the WHC session, after the list of participants.

C.  Paragraph 3 The WHC may create such consultative bodies as it deems necessary for the performance of its functions. The composition and the terms of reference (including mandate and duration of office) of the consultative bodies are defined by the WHC at the time of their creation.57 These bodies can include states non-​members of the WHC. In appointing members of consultative bodies, due regard is given to the need to ensure an equitable representation of the different regions and cultures of the world.58 The WHC determines the extent to which the WHC Rules of Procedures apply to any consultative body.59 Each consultative body elects its chairperson and, if necessary, its rapporteur.60 The WHC has on several occasions established consultative bodies, also called working groups, to seek advice on various matters, for instance the Working Group on the representativity of the World Heritage List (1999), the Working Group on the equitable representation in the WHC (1999), the Task Force for the implementation of the World Heritage Convention (1999), the Working Group on the World Heritage Fund (2001), the Working Group on the World Heritage and mining (2002), the Working Group on the working methods of the WHC (2004), and the Working Group to develop a Code of Conduct or Statement of Ethical Principles (2019). Different from the consultative bodies are the subsidiary bodies which are established by the WHC for the conduct of its work within the limits of the technical facilities available. The composition and the terms of reference (including mandate and duration of office) of subsidiary bodies are defined by the Committee at the time of their creation. These bodies can only be constituted from amongst states members of the WHC.61   ibid, Rule 46.   ibid, Rule 8.4. 59   ibid, Rule 20.3. 51 55

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52

56

  ibid, Rule 52.   ibid, Rule 20.2. 61   ibid, Rule 21.2.

53

57

  ibid, Rule 8.3. 58   ibid, Rule 20.5.

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Subsidiary bodies’ recommendations are made in the form of draft decisions, submitted for subsequent discussion and, as the case may be, adoption by the WHC.62

IV.  Article 11 (Except Paragraph 4) A.  Paragraph 1 The process for the inclusion of a property, either cultural or natural, in the World Heritage List is composed today of the following successive steps. First, States Parties submit to the WHC an inventory of properties suitable for inclusion, usually called the tentative list. Secondly, the relevant State Party prepares and submits to the WHC a specific nomination dossier. Thirdly, the WHC takes a decision on the nomination.63 As regards the first step, tentative lists are a useful and important planning tool for States Parties, the WHC, the Secretariat, and the Advisory Bodies, as they provide an indication of future nominations.64 The obligation to draw up and submit a tentative list is not expressed in the Convention in strictly mandatory terms. Under Article 11, paragraph 1, it has to be complied with ‘in so far as possible’. The wording suggests that states lacking the technical or financial capability to draw up a tentative list, or having more urgent priorities, might present nominations even if a tentative list has not yet been drawn up and this was the case in the past. However, today the Operational Guidelines disregard such a flexible interpretation by providing that ‘a nomination dossier will not be considered complete unless the nominated property has already been included on the State Party’s Tentative List and has undergone a Preliminary Assessment’.65 So far, 185 out of 194 States Parties have submitted tentative lists. Some of the lists include many properties.66 In particular, States Parties should include in their tentative lists those properties that they consider to be of cultural or natural heritage of outstanding universal value situated in their territory and which they intend to nominate for inscription on the World Heritage List in the following years.67 Tentative lists should be established selectively and on the basis of evidence that supports potential outstanding universal value. States Parties are encouraged to consult the analyses of both the World Heritage List and tentative lists prepared at the request of the WHC by ICOMOS and IUCN to identify the gaps in the World Heritage List. These analyses could enable States Parties to compare themes, regions, geo-​cultural groupings, and bio-​geographic provinces for prospective World Heritage properties. States Parties are encouraged to harmonize, with the assistance of the Advisory Bodies, their tentative lists at regional and thematic levels, in order to review gaps and identify common themes. The harmonization has considerable potential to generate fruitful dialogue between States Parties and different cultural communities, promoting respect for common heritage and cultural diversity, and can also result in improved tentative lists, 63   ibid, Rule 21.6.   For the second and third steps see, under Art. 11, para. 2 (Section IV.B).  Operational Guidelines, para. 70. See UNESCO, ICOMOS, ICCROM, and IUCN, Guidance on Developing and Revising World Heritage Tentative Lists (2020). 65   Operational Guidelines, para. 63. 66   Turkey lists 84 properties, China and Iran 61, India 46, Egypt and France 34, Uzbekistan 33, Italy 31, Spain 30. 67   Operational Guidelines, para. 62. 62 64

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new nominations from States Parties, and cooperation amongst groups of States Parties in the preparation of nominations.68 States Parties are also encouraged to prepare their tentative lists with the full, effective and gender-​balanced participation of a wide variety of stakeholders and rights holders, including site managers, local and regional governments, local communities, indigenous peoples, NGOs, and other interested parties and partners. In the case of sites affecting the lands, territories, or resources of indigenous peoples, States Parties are required to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior, and informed consent before including the sites on their tentative list.69 The tentative lists must be submitted to the Secretariat (the UNESCO World Heritage Centre) in the standard format annexed to the Operational Guidelines, containing the name of the properties, their geographical location, a brief description of the properties, and a justification of their outstanding universal value,70 at least one year prior to the submission of a preliminary assessment request for a nomination. Upon receipt, the World Heritage Centre checks for compliance with the required documentation and, if so, the tentative list is registered and transmitted to the relevant Advisory Bodies for information.71 When a decision is taken by the WHC on the inscription or non-​inscription of a property on the World Heritage List, such property is removed from the tentative list.72 States Parties are encouraged to re-​examine and resubmit their tentative list at least every ten years.73 The sole responsibility for the content of tentative lists lies with the State Party concerned. Publication of the tentative lists does not imply the expression of any opinion whatsoever of the WHC, the World Heritage Centre, or the UNESCO Secretariat concerning the legal status of any country, territory, city, or area or of its boundaries.74 In view of the implementation of the Global Strategy for a Representative, Balanced and Credible World Heritage List, adopted by the WHC in 1994, cooperative efforts in capacity-​building and training are made to assist some States Parties to acquire or consolidate their expertise in the preparation, updating, and harmonization of their tentative lists and the preparation of nominations.75 International assistance may be requested for these purposes.76 The Advisory Bodies and the Secretariat hold regional training workshops to assist under-​represented states in the methods of preparation of tentative lists and nominations.77 Article 11, paragraph 1, provides that every State Party shall submit an inventory of properties ‘situated in its territory’.78 A State Party cannot nominate a property situated in the territory of another state, irrespective of the outstanding universal value that the property might have.79 As the reference to the ‘territory’ of a State Party is repeated elsewhere 69 70   ibid, para. 73.   ibid, para. 64.   ibid, para. 66.   ibid, para. 68. If the documentation is not considered sufficient, the World Heritage Centre refers the tentative list back to the State Party. 72 73 74 75   ibid, para. 68.   ibid, para. 65.   ibid, para. 68.   ibid, para. 74. 76 77   ibid, para. 75.   ibid, para. 76. 78   It is implied that the properties do constitute portions of the territory of the relevant state. However, in one case the whole territory of a single state has been included on the World Heritage List: Vatican City (Holy See, 1984). This was also due to the exceptionally small extension of the state in question (0.44 km2). 79   An exceptional case is the Historic Centre of Rome, the Properties of the Holy See in that City Enjoying Extraterritorial Rights and San Paolo fuori le Mura (Holy See and Italy, 1980). According to the 1929 Treaty between the Holy See and Italy, the specified properties of the Holy See in Rome (different from Vatican City) 68 71

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in the Convention (see Arts 3, 4, and 6, para. 2), it can be understood as a prerequisite for inscription on the World Heritage List. The practice of the WHC has developed in the direction of allowing the nomination of properties situated in the territory of two or more States Parties. In the case of ‘transboundary properties’, the property is situated ‘on the territory of all concerned States Parties having adjacent borders’.80 Wherever possible, transboundary nominations should be prepared and submitted by States Parties jointly and the States Parties concerned are required to establish a joint management committee or similar body to oversee the management of the whole nominated transboundary property.81 For example, in 2005 the WHC inscribed on the World Heritage List the Struve Geodetic Arc on the basis of a nomination jointly submitted by ten states (Belarus, Estonia, Finland, Latvia, Lithuania, Moldova, Norway, Russian Federation, Sweden, Ukraine). Extensions to an existing World Heritage property located in one State Party may be proposed to become a transboundary property, with the consent of the State Party on the territory of which the existing World Heritage property is located.82 For example, in 2005 the WHC extended the Belfries of Flanders and Wallonia (Belgium), to include the belfries of Flanders, Artois, Hainaut, and Picardy (France), and decided to close the list of inscribed belfries. In the case of ‘serial transnational properties’, the property is situated within the territory of two or more State Parties, which need not be contiguous, and is nominated with the consent of all States Parties concerned.83 The States Parties concerned are required to establish a joint management committee or similar body to oversee the management of the whole of a nominated serial transnational property.84 For example, in 2016 the WHC inscribed on the World Heritage List the ‘Architectural Work of Le Corbusier, an Outstanding Contribution to the Modern Movement’ on the basis of a nomination jointly submitted by Argentina, Belgium, France, Germany, India, Japan, and Switzerland. The condition that the properties must be situated in the ‘territory’ of States Parties becomes a serious obstacle for the achievement of the very universal objectives of the Convention with regard to the heritage located in spaces beyond the limits of national jurisdiction. Irrespective of their natural or cultural value, sites located on the Moon or other celestial bodies—​for example, the footprints left on 21 July 1969 by Neil Armstrong and Edwin Aldrin on the lunar soil—​cannot be inscribed on the World Heritage List (is this because they belong to other ‘worlds’?). A regime for the protection of such sites could develop in contexts other than UNESCO.85 According to Article 7, paragraph 3, of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York, 1979):

are located in Italian territory, although they enjoy the immunity recognized by international law for the premises of diplomatic missions. In fact, in this case, the Holy See participated in the nomination of a property that is totally situated in Italy. 81 82   Operational Guidelines, para. 134.   ibid, para. 135.   ibid, para. 136.   ibid, para. 138. A serial property may also occur only on the territory of a single State Party. 84   ibid, para. 138bis. 85  See L. Lixinski, M. M. Losier, and H. Schreiber, ‘Envisioning a Legal Framework for Outer Space Cultural Heritage’ (2021) 45 Journal of Space Law 1. 80 83

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States Parties shall report to other States Parties and to the Secretary-​General concerning areas of the moon having special scientific interest in order that, without prejudice to the rights of other States Parties, consideration may be given to the designation of such areas as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.

Under the so-​called 2020 Artemis Accords:86 The Signatories intend to preserve outer space heritage, which they consider to comprise historically significant human or robotic landing sites, artifacts, spacecrafts, and other evidence of activity on celestial bodies in accordance with mutually developed standards and practices. The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to preserving outer space heritage.

Irrespective of their natural and cultural value, sites located on the Antarctic continent cannot be inscribed on the World Heritage List, as all questions relating to claims of sovereignty over portions of the Antarctic continent, or to recognition or non-​recognition of such claims, have been left without prejudice by the 1959 Antarctic Treaty. The case of Antarctica is, however, a special one, as the States Parties to the so-​called Antarctic Treaty System have already established a network of Antarctic Specially Protected Areas under Annex V to the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 1991): Any area, including any marine area, may be designated as an Antarctic Specially Protected Area to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research.87

Especially in the case of marine spaces, it seems that the Convention in fact protects a ‘Semi-​World Heritage’ and needs to be enlarged in its geographical scope of application. Taking into account the developments in the international law of the sea, as reflected in the United Nations Convention on the Law of the Sea (Montego Bay, 1982), it may be asked how far the term ‘territory’ extends seawards. It surely includes marine internal waters, archipelagic waters, and the territorial sea where the coastal state is entitled to exercise its sovereignty. On the basis of WHC practice, ‘territory’ can today also be considered to include the exclusive economic zone and the continental shelf, that are marine spaces where the coastal state can exercise only some types of rights. A number of natural properties which include waters situated in these areas have already been inscribed on the World Heritage List (50 so far, of which 46 are natural and four are mixed88), such as: in 1981, the Great Barrier Reef (Australia), extending for 348,700 km2 along the coast

86   Section 9, paras. 1 and 2. The Artemis Accords (Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes) were signed on 13 October 2020 by eight States (Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, UK, and United States). The Accords are closer to a political commitment than to an international treaty. 87   Art. 3, para. 1. Notable is the use in this provision of the adjective ‘outstanding’, which is typical of the World Heritage Convention. Several Antarctic Specially Protected Areas and Historic Sites and Monuments have been designated under recommendations of Antarctic Treaty Consultative Parties. 88  Three marine properties are transboundary: Kluane/​Wrangell—​St Elias/​Glacier Bay/​Tatshenshini—​ Alsek (Canada and United States), High Coast/​Kvarken Archipelago (Finland and Sweden), and Wadden Sea (Denmark, Germany, and Netherlands).

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of Queensland; in 2010, Papahānaumokuākea (United States), extending for 362,074 km2 around the islands and atolls west of Hawaii; in 2010, Phoenix Islands Protected Area (Kiribati), extending for 408,250 km2; and in 2019, French Austral Lands and Seas (France), extending for 672,969 km2 and divided into three separate zones around Crozet, Kerguelen, and St Paul/​Amsterdam islands. However, a literal reading of the Convention leads to the conclusion that the protection of properties of outstanding universal value located in marine spaces beyond the limits of national jurisdiction (the high seas) is not allowed. There is no state that can include such property in its tentative list and submit a nomination. The problem did not remain unnoticed. In 2011, the report of UNESCO’s external auditor on the implementation of the Global Strategy from its inception in 1994 to 2011 already included a recommendation to States Parties to: reflect upon appropriate means to preserve sites that correspond to conditions of outstanding universal value, which are not dependent on the sovereignty of States Parties.89

A group of individual experts convened by UNESCO in 2016 and 2018 provided the following explanation: The text of the Convention . . . reflects what was seen by the drafters in the 1970s as the appropriate processes for assessing the overwhelming majority of cultural and natural heritage sites of OUV [outstanding universal value] that are located within national borders. At that time of course, there was no widespread knowledge, or understanding, of the significance of many ecosystems far from land and deep beneath the ocean.90

After having indicatively identified five natural sites located on the high seas in the Atlantic, Pacific, and Indian Oceans that would qualify for the World Heritage List,91 the Group hoped that a remedy would be found for such a ‘historical oversight’. It remarked that nothing in the inspirational vision embodied in the Convention suggested that natural or cultural heritage of outstanding universal value which is located in marine areas beyond national jurisdiction should be excluded from protection.92 The suggestion by the Group was to review the Operational Guidelines accordingly, without modifying the text of the Convention: The lack of specific provisions is rather a historical oversight that may be corrected through a review of the Operational Guidelines and provision of further guidance to States Parties to ensure that the Convention fulfils the full scope of its mandate and protect World Heritage wherever it is located.93

If this were done, it would be an instance of interpretation of treaty provisions according to the spirit of a treaty, rather than its literal wording.94

  Doc. WHC-​11/​35.COM/​INF.9A, of 27 May 2011, p. 24.   D. Freestone et al., ‘World Heritage in the High Seas: An Idea whose Time Has Come’, World Heritage Reports, No. 44, July 2016, p. 47. 91   The Lost City Hydrothermal Field, the Sargasso Sea, the White Shark Café, the Costa Rica Thermal Dome, and the Atlantis Bank (ibid., respectively pp. 32, 38, 36, 34, and 40). 92   ibid, p. 46. 93   See Doc. CLT-​2019/​WS/​12, Protecting Sites of Potential Outstanding Universal Value in Marine Areas beyond National Jurisdiction: The Practical Modalities (2020) point 5. 94   Both criteria of interpretation are indicated in Art. 31, para. 1, of the Convention on the Law of Treaties (Vienna, 1969), according to which ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. 89 90

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B.  Paragraph 2 As regards the second and third steps of the process for the inclusion of a property in the World Heritage List (preparation of a nomination dossier and decision by the WHC), in 2019 the WHC recognized the importance of the overarching objective of reform of the nomination process, as a key measure for restoring the balance and the credibility of the World Heritage List, improving the quality of nominations for properties that have a strong potential to succeed, and strengthening dialogue between the States Parties and the Advisory Bodies from a very early stage.95 Under the new process, the final decision by the WHC is taken after a voluntary Upstream Process and a mandatory preliminary assessment. In 2021, the relevant provisions of the Operational Guidelines were reviewed, amended, and endorsed by an ad hoc WHC Working Group. The transition period will end in 2027 and the preliminary assessment will be mandatory from 2028 onwards.96 The Guidelines encourage a voluntary Upstream Process. This comprises advice, consultation, and analysis that occurs prior to the preliminary assessment and the preparation of a nomination dossier and is aimed at reducing the number of nominations that experience significant problems during the evaluation process. The basic principle of the Upstream Process is to enable the Advisory Bodies and the World Heritage Centre to provide guidance and capacity-​building directly to States Parties throughout the whole process leading up to the preparation of a possible World Heritage nomination. The Upstream Process can take place either at the moment of preparation or revision of the tentative list or before a request for preliminary assessment is submitted by the interested state. The Upstream Process advice may be desk-​based or could involve a site visit and the holding of a workshop. The purpose of the advice, that does not prejudge the results of any future preliminary assessment, is limited to providing guidance on the technical merit of the nomination and the technical framework needed, in order to offer the State Party the essential tools to enable it to assess the feasibility and the actions necessary to prepare a possible nomination.97 The preliminary assessment is a mandatory desk-​based process for all sites that may be nominated to the World Heritage List and is undertaken following a request by the relevant State Party. Information included in the preliminary assessment request should build on the information provided in the tentative list and also on any Upstream Process advice and preparatory assistance. In particular, the preliminary assessment provides States Parties with an opportunity for enhanced dialogue with the Advisory Bodies. It also helps to establish the feasibility of a potential nomination and avoid the use of resources in the preparation of nominations that may be unlikely to succeed. It provides guidance on the potential of a site to justify outstanding universal value, including integrity and authenticity, and on the requirements for protection and management. The preliminary assessment is undertaken by ICOMOS and IUCN, on a joint basis whenever relevant. It is an independent desk review, which includes consultation with expert reviewers. No mission to the site is undertaken. Based on available information, the conclusions of the assessment include an indication of whether the site may have potential to justify outstanding universal value. If so, specific guidance and advice, in the form of recommendations, is provided to assist the State Party in the development of the nomination dossier. The outcome of the preliminary assessment must be provided at least one year before a   Decision 43 COM 12.

95

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96

  Operational Guidelines, para. 121.

97

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full nomination dossier can be submitted by the State Party. The preliminary assessment report by the Advisory Bodies is relevant for up to five years. The decision to prepare a full nomination dossier, regardless of the outcome of the preliminary assessment, rests with the relevant State Party. At each session of the WHC, the Secretariat provides a list of preliminary assessments requests received and those undertaken, but will not indicate the guidance given by the Advisory Bodies to the concerned State Party. However, once a nomination is submitted, the related preliminary assessment report is annexed to it.98 States Parties are encouraged to prepare nominations with the widest possible participation of stakeholders, such as local communities, indigenous peoples, and governmental, non-​governmental, and private organizations. In particular, they are required to demonstrate, as appropriate, that the free, prior, and informed consent of indigenous peoples has been obtained, through, inter alia, making the nominations publicly available in appropriate languages and public consultations and hearings. Where appropriate, States Parties are also encouraged to consult potentially concerned States Parties, including neighbouring States Parties, to promote consensus and collaboration and to celebrate cultural diversity.99 This invitation implies that if a site has the potential to become a transboundary or transnational property, efforts should be made in that direction. To be considered complete, a nomination dossier must include an executive summary and nine sessions, namely: (1) identification of the nominated property, with clearly defined boundaries drawn on sufficiently detailed maps, clearly distinguishing between the property and buffer zones, if any; (2) description of the nominated property, including its history and development (how the nominated property has reached its present form and the significant changes that it has undergone); (3) justification for inscription, clarifying in detail why the nominated property is considered to be of outstanding universal value (criteria proposed and argument for each criterion; statements of integrity and authenticity; comparative analysis in relation to similar properties, whether or not on the World Heritage List; proposed statement of outstanding universal value); (4) state of conservation and factors affecting the nominated property, including information on the physical condition of the property and any conservation measures in place; (5) protection and management, listing the legislative, regulatory, contractual, planning, institutional, or traditional measures most relevant to the protection of the nominated property and providing a detailed analysis of the way in which that protection actually operates, as well as including a copy of the management plan or documentation of the management system, followed by its detailed analysis or explanation; (6) monitoring, including the key indicators in place or proposed to measure and assess the state of conservation of the nominated property, the factors affecting it, conservation measures at the nominated property, the periodicity of their examination, and the identity of the responsible authorities; (7) documentation; (8) contact information of responsible authorities; and (9) signature on behalf of the State Party. The Secretariat establishes and submits at each Committee session a list of all nomination dossiers received, including the date of reception, an indication of their status as ‘complete’ or ‘incomplete’, as well as the date on which they were considered ‘complete’.100 Nomination dossiers may be submitted at any time during the year, but only

  ibid, para. 122.

98

  ibid, para. 123.

99

  ibid, para. 141.

100

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those nomination dossiers that are ‘complete’ and received by the Secretariat on or before 1 February are considered for inscription on the World Heritage List during the following year.101 The cycle of a nomination dossier normally lasts one and a half year between submission in February of year 1 and the decision of the Committee in June or July of year 2.102 As regards the last step of the process for inclusion of a property in the World Heritage List (decision by the WHC), the Advisory Bodies—​ICOMOS for cultural heritage and IUCN for natural heritage—​evaluate whether or not properties nominated by States Parties have outstanding universal value, meet the conditions of integrity and, where relevant, of authenticity, and meet the requirements of protection and management.103 In the case of ‘cultural landscapes’, the evaluation is carried out by ICOMOS in consultation with IUCN, as appropriate. For mixed properties, the evaluation is carried out jointly by ICOMOS and IUCN.104 The Operational Guidelines specify in detail the principles that must guide the evaluations and presentations of ICOMOS and IUCN.105 The Advisory Bodies make their recommendations to the WHC under three categories: (a) properties which are recommended for inscription without reservation; (b) properties which are not recommended for inscription; and (c) nominations which are recommended for referral or deferral.106 The WHC is not bound by the recommendations and there are cases where the WHC has taken a different decision. A State Party may withdraw a nomination it has submitted at any time prior to the Committee session at which it is scheduled to be examined. If the State Party so wishes, it can resubmit a nomination for the site withdrawn, which will be considered as a new nomination.107 The WHC decides whether a property should or should not be inscribed on the World Heritage List, referred or deferred.108 When deciding to inscribe a property on the World Heritage List, the WHC, guided by the Advisory Bodies, adopts a statement of outstanding universal value for the property.109 It is a summary of the WHC’s determination that the property has outstanding universal value, identifying the criteria under which the property was inscribed, including the assessments of the conditions of integrity, and, for cultural and mixed properties, authenticity.110 If the WHC decides that a property should not be inscribed on the World Heritage List, the nomination may not be presented again except in exceptional circumstances, such as new discoveries, new scientific information about the property, or different criteria not presented in the original nomination. In these cases, a new nomination must be submitted.111 The WHC may refer back to the State Party a nomination if additional information is necessary to determine the outstanding universal value of the property. Referred nominations may be resubmitted to the following WHC session for examination.112 The WHC may defer a nomination for more in-​depth assessment or study, or a substantial revision by the State Party. If resubmitted by the State Party, a deferred nomination is evaluated again by the relevant Advisory Bodies.113 102 103   ibid, para. 128.   ibid, para. 142.   ibid, paras 143–​145. 105 106   ibid, para. 146.   See ibid, para. 148.   ibid, para. 151. 107 108 109   ibid, para. 152.   ibid, para. 153.   ibid, para. 154. 110  ibid, para. 155. The statement of outstanding universal value was introduced in 2007. Statements for properties inscribed on the World Heritage List between 1978 and 2006 are adopted by the WHC retrospectively. 111 112 113   ibid, para. 158.   ibid, para. 159.   ibid, para. 160. 101 104

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Apart from the required nomination process, Article 11, paragraph 2, confirms that only cultural or natural properties that have an ‘outstanding universal value’ deserve to be inscribed on the World Heritage List and to be granted the forms of special protection provided for in the Convention. The expression ‘outstanding universal value’, which is repeated several times in the Convention,114 appears as one of its core issues. Here, the Convention shows its selective purpose and its more exclusive than inclusive character.115 As stated in the OG: the Convention is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint. It is not to be assumed that a property of national and/​or regional importance will automatically be inscribed on the World Heritage List.116

The expression ‘outstanding universal value’ is not defined in the Convention. It would have been difficult, if not impossible, to draft a precise definition of such a concept. Nevertheless, as suggested in the Operational Guidelines, the essential element of the notion of outstanding universal value is that the value of the property goes beyond the limits of both space and time. Every state and every generation benefit from such heritage and are concerned for its protection, irrespective of where it is located and when it was created: Outstanding universal value means cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present or future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole.117

Article 11, paragraph 2 (and also para. 5), entrusts the WHC with a broad margin of discretion in establishing the criteria according to which the heritage is considered for inscription on the World Heritage List. In this regard, the WHC has been quite meticulous in elaborating in the Operational Guidelines ten criteria (six cultural and four natural) and three conditions. In particular, the heritage must meet one or more of the following criteria:

(i) represent a masterpiece of human creative genius; (ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-​ planning or landscape design; (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history; (v) be an outstanding example of a type of a traditional human settlement, land-​use, or sea-​ use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change;

114   e.g. in Arts 1 and 2, which provide the definition of cultural and natural heritage, the phrase ‘outstanding universal value’ is repeated six times. 115   A similar selective approach was not followed in the subsequent Convention on the Safeguarding of the Intangible Cultural Heritage (Paris, 2003) that establishes a Representative List of the Intangible Cultural Heritage of Humanity ‘in order to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity’ (Art. 16, para. 1). 116 117   Operational Guidelines, para. 52.   ibid, para. 49.

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(vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (The Committee considers that this criterion should preferably be used in conjunction with other criteria); (vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (viii) be outstanding examples representing major stages of earth’s history, including the record of life, significant on-​going geological processes in the development of landforms, or significant geomorphic or physiographic features; (ix) be outstanding examples representing significant on-​going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; (x) contain the most important and significant natural habitats for in-​situ conservation of biological diversity, including those containing threatened species of Outstanding Universal Value from the point of view of science and conservation.118

Properties meeting one or more of the first six criteria have a cultural character. Properties meeting one or more of the last four criteria have a natural character. Those properties which meet criteria belonging to both categories have a mixed character. ‘Cultural landscapes’ are cultural properties that represent the ‘combined works of nature and of man’. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and opportunities presented by their natural environment and of successive social, economic, and cultural forces, both external and internal.119 They fall into three main types: namely, landscapes created and designed intentionally by people, organically evolved landscapes, and associative cultural landscapes.120 In addition to conforming to at least one of the criteria, a property must also meet the conditions of integrity and authenticity (the latter only in the case of cultural properties) and have an adequate protection and management system to ensure its safeguarding.121 Integrity is a measure of the wholeness and intactness of the cultural or natural heritage and its attributes.122 For cultural properties, the physical fabric of the property and its significant features should be in good condition, and the impact of deterioration processes controlled.123 For natural properties, bio-​physical processes and landform features should be relatively intact. However, it is recognized that no area is totally pristine and that all natural areas are in a dynamic state, and to some extent involve human contact.124 Depending on the type of cultural heritage and its cultural context, properties are understood to meet the conditions of authenticity if their cultural values are truthfully and credibly expressed through a variety of attributes, such as: form and design; materials and substance; use and function; traditions, techniques, and management systems; location and setting; language, and other forms of intangible heritage; spirit and feeling; and other internal and external factors.125 The reconstruction of archaeological remains or historic buildings or districts is justifiable only in exceptional circumstances and is acceptable only on the basis of complete and detailed documentation and not subject   ibid, para. 77.  ibid, para. 47. See M. Rössler, ‘World Heritage—​ Linking Cultural and Biological Diversity’, in B. Hoffman (ed.) Art and Cultural Heritage—​Law, Policy and Practice (Cambridge University Press, New York, 2006) p. 201. 120 121 122   Operational Guidelines, para. 47bis.   ibid, para. 78.   ibid, para. 88. 123 124 125   ibid, para. 89.   ibid, para. 90.   ibid, para. 82. 118 119

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to conjecture.126 In certain cases, authenticity can be shown by correspondence to the social or religious function of a building rather than by the preservation of its original materials. Annex 4 to the Operational Guidelines, which reproduces the document elaborated at a conference held in 1994 in Nara, Japan, on authenticity in the context of the Convention, provides, inter alia, the following explanation: All judgements about values attributed to cultural properties as well as the credibility of related information sources may differ from culture to culture, and even within the same culture. It is thus not possible to base judgements of values and authenticity within fixed criteria. On the contrary, the respect due to all cultures requires that heritage properties must be considered and judged within the cultural contexts to which they belong.127

Far from passively contemplating the intrinsic qualities of properties, States Parties are bound to ensure that they benefit from adequate long-​term legislative, regulatory, institutional, or traditional protection and management to assure their protection from social, economic, and other pressures or changes that might negatively impact their outstanding universal value, including the integrity or authenticity of the property.128 The delineation of boundaries is an essential requirement in the establishment of the effective protection of nominated properties.129 Buffer zones should be provided wherever necessary for the proper protection of the property.130 Each nominated property should have an appropriate management plan or other documented management system, which must specify how the outstanding universal value of a property should be preserved, preferably through participatory means131 (this requirement has proved to be difficult to meet in several cases). Management systems may vary according to different cultural perspectives, the resources available, and other factors. They may incorporate traditional practices, existing urban or regional planning instruments, and other planning-​control mechanisms, both formal and informal. Impact assessments for proposed interventions are essential for all World Heritage properties.132 Although rather detailed, the criteria and conditions allow for flexibility in the WHC’s decision making. In the cultural field, the WHC has not only followed a traditional ‘monumental’ concept of heritage (gothic cathedrals, Roman ruins, etc.), but has also entered into the fields of contemporary architecture, industrial archaeology and so-​called company towns, postwar city planning, technological developments, such as railways or bridges, as well as quasi-​intangibility.133 Despite the caveat not to ‘preferably’ do so, the WHC has in some instances applied criterion (vi) in isolation.134 In 2021, the WHC, ‘acknowledging the persistent divergent views regarding how sites associated with memories of recent conflicts relate to the purpose and scope of the Convention’, decided to establish an open-​ended working group of States Parties in order to broaden the scope of 126   ibid, para. 86. E.g. the Historic Centre of Warsaw (Poland, 1980) was more than 85% destroyed during the Second World War and meticulously reconstructed and restored, being ‘an outstanding example of a near-​ total reconstruction of a span of history covering the 13th to the 20th century’. 127   Para. 11 of the Nara Document on authenticity. 128 129 130   Operational Guidelines, paras 97 and 98.   ibid, para. 99.   ibid, para. 108. 131   ibid, para. 103. 132   ibid, para. 110. For common elements of an effective management system, see para. 111. 133   The already mentioned Struve Geodetic Arc, which is almost non-​existent in the real world. 134   e.g. Island of Gorée (Senegal, 1978); Independence Hall (United States, 1979); Auschwitz Birkenau—​ German Nazi Concentration and Extermination Camp (1940–​1945) (Poland, 1979); Hiroshima peace memorial (Genbaku Dome) (Japan, 1996); the Old Bridge area of the Old City of Mostar (Bosnia and Herzegovina, 2005).

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such reflections.135 Generally speaking, a shift can be noticed in the practice of the WHC from a selective understanding of ‘outstanding universal value’—​meaning ‘the best of the best’—​to a more inclusive approach, especially in the case of cultural properties—​ meaning ‘representative of the best’.136 No formal limit is imposed on the total number of properties to be inscribed.137 As at the end of 2022, 1,157 properties were on the World Heritage List (897 cultural, 218 natural, and 39 mixed138). Being located on the territory of 167 States Parties (out of 194), it appears that 27 States Parties have not yet inscribed any property on the World Heritage List and, conversely, that some states have a higher representation than others.139 For many years, concerns have been expressed as to the representative, balanced, and credible character of the World Heritage List. In 1994, the WHC began a Global Strategy for a Representative, Balanced and Credible World Heritage List, designed to identify and fill the major gaps in the World Heritage List and to maintain a reasonable balance between cultural and natural heritage.140 The inscription of categories of properties which are not sufficiently represented in the List (e.g. coastal, marine, small island, polar and sub-​polar sites, deserts, rock art, technological ensembles, vernacular/​traditional architecture) is promoted and States Parties with no or few properties on the World Heritage List, which are often developing countries, are encouraged to submit nominations. As to credibility, some criticism has been made that a few properties might have been inscribed on the World Heritage List without meeting all the required criteria and conditions to qualify as outstanding universal value. In 2021, an independent study commissioned by the World Heritage Centre141 found, inter alia, that the Global Strategy avoided progression towards an unreasonable number of inscriptions, but did not necessarily improve the inscription of under-​represented categories of properties, and that the imbalance between cultural and natural properties and between representation of categories persisted. To promote the establishment of a representative, balanced, and credible World Heritage List, States Parties are requested to consider whether their heritage is already well represented and, if so, to slow their rate of submission of further nominations by voluntarily spacing their nominations according to conditions that they will define, proposing only properties falling into categories still under-​represented and linking each of their nominations with a nomination presented by a State Party whose heritage is under-​ represented or deciding, on a voluntary basis, to suspend the presentation of new nominations.142 States Parties whose heritage is under-​represented are requested to give priority to the preparation of their tentative lists and to initiate and consolidate partnerships and   Decision 44 COM 8.   See C. Cameron, Evolution of the Application of ‘Outstanding Universal Value’ for Cultural and Natural Heritage, Doc. WHC-​05/​29.COM/​INF.98, of 15 June 2005. According to Francioni (note 1) p. 254, ‘the revised criteria entail a shift from the prevailing criterion of artistic achievement, as a hallmark of outstanding universal value, to the anthropological dimension of heritage reflecting human values, living cultures, and the interaction between the cultural and natural heritage’. 137 138   Operational Guidelines, para. 58.   43 properties are transboundary. 139  The states that so far have more properties on the World Heritage List are Italy (58), China (56), Germany (51), France (49), Spain (49), India (40), Mexico (35), UK (34), Russian Federation (30), Iran (26), Japan (25), United States (24), and Brazil (23). 140   Operational Guidelines, paras 55–​57. 141   M. Ishizawa and C. Westrik, ‘Analysis of the Global Strategy for a Representative, Balanced and Credible World Heritage List (1994–​2020)’, March 2021. 142   Operational Guidelines, para. 59. 135 136

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forms of bilateral and multilateral cooperation to increase their expertise and technical capacities.143 At the 2000 Cairns session, ‘in order to promote the effective management of the increasing size of the World Heritage List’, the WHC decided on an interim basis to limit the number of nominations examined each year. As later modified, the present limits and system of prioritization provide that the annual limit on the number of nominations examined by the WHC is 35, inclusive of nominations deferred and referred by previous sessions, extensions (except minor modifications of limits of the property), and transboundary and serial nominations. Each State Party can submit for examination only one nomination.144 The following order of priorities composed of 13 entries is applied if the overall annual limit of 35 nominations is exceeded:

i) nominations of properties submitted by States Parties with no properties inscribed on the List, ii) nominations of properties submitted by States Parties having up to 3 properties inscribed on the List, iii) resubmitted referred nominations that were not transmitted to the relevant Advisory Bodies for evaluation . . ., iv) nominations of properties that have been previously excluded due to the annual limit of 35 nominations and the application of these priorities, v) nominations of properties submitted in the 5th year following the report by the Advisory Bodies on the related Preliminary Assessment . . ., vi) nominations of properties for natural heritage, vii) nominations of properties for mixed heritage, viii) nominations of transboundary/​transnational properties, ix) nominations from States Parties in Africa, the Pacific and the Caribbean, x) nominations of properties submitted by States Parties having ratified the World Heritage Convention during the last twenty years, xi) nominations of properties submitted by States Parties that have not submitted nominations for five years or more, xii) nominations of States Parties, former Members of the Committee, who accepted on a voluntary basis not to have a nomination reviewed by the Committee during their mandate. This priority will be applied for 4 years after the end of their mandate on the Committee, xiii) when applying this priority system, date of receipt of full and complete nominations by the World Heritage Centre shall be used as a secondary factor to determine the priority between those nominations that would not be designated by the previous points.145

The consistency of the Cairns decision with the Convention is open to discussion. Given the difference in the size and characteristics of States Parties’ territories and other relevant factors, no one would maintain that all of them should have a similar number of properties inscribed on the World Heritage List. Under specific provisions of the Convention, States Parties are under the ‘duty of ensuring the identification, protection,   ibid, para. 60.   The States Parties co-​authors of a transboundary or transnational serial nomination can choose, amongst themselves and with a common understanding, the State Party that will submit the preliminary assessment request (ibid, para. 61). 145   ibid, para. 61. Notably, the already mentioned Declaration of principles to promote international solidarity and cooperation to preserve World Heritage (see under Art. 9, para. 3 (Section II.B)) strengthens the invitation implied in ibid, para. 61, xii, by committing the WHC members to keep in mind the priorities which ‘consist of avoiding examining their nominations during their mandate on the Committee in the spirit of contributing to the impartiality and objectivity of decision making’ (para. II.5). 143 144

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presentation and transmission to future generations’ of heritage having an outstanding universal value (Art. 4) and to present, ‘in so far as possible’, the relevant inventories to the WHC (Art. 11, para. 1). The Operational Guidelines themselves confirm that States Parties ‘are invited to submit nominations’ of properties considered to be outstanding universal value.146 Ideally, the very aim of the Convention is to identify all the properties which present an outstanding universal value, in whatever state they are located, to allow their inscription on the World Heritage List and, more importantly, to strengthen their protection. The spirit of the Convention is not to start a competition for having more entries on the World Heritage List, but to improve their conservation and promote international cooperation for the benefit of properties having an outstanding universal value. The fact that some states are under-​represented on the List is not a direct consequence of the fact that other states are better represented. The problem of under-​ representation, which is indeed a serious one, is to be addressed more through improvement of the means of technical and financial assistance than through imposition of limits on nominations. That being said, such limits can be justified insofar as the WHC and the Advisory Bodies inevitably have a given workload capacity and, whenever that is exceeded, it is equitable to grant priority to under-​represented States Parties. In other words, the limits are to be explained as a measure of fair self-​restraint rather than as a form of punishment. Even if the Convention does not explicitly deal with the question, it seems to be implied in its competences that the WHC, which can inscribe properties on the World Heritage List, can also delete them from the List.147 Notably, Article 11, paragraph 2, requests the WCH to distribute, at least every two years, an ‘updated’ World Heritage List, which presupposes also that changes other than additions can occur. Under the procedure for the ‘eventual deletion’ of properties, which is specified in the Operational Guidelines, deletion can occur in two circumstances: namely, where the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the List; and where the intrinsic qualities of the property were already threatened at the time of its nomination by the actions of man and the necessary corrective measures, as outlined by the State Party at that time, have not been taken within the time proposed.148 Both situations may depend on various factors, ranging from natural events beyond the control of the State Party concerned, to deliberate neglect or even detrimental action taken by the state itself. In the latter case, the deletion can be seen as a moral sanction against a State Party which has not complied with its commitments. To be previously inscribed on the List of World Heritage in Danger, set out in Article 11, paragraph 4, is not a condition for a property to be deleted from the World Heritage List, even if, in most cases, this is likely to happen. But sudden and complete loss of a property can be envisaged in extraordinary circumstances. Information on the occurrence of a case for deletion should be provided to the Secretariat by the State Party on whose territory the property is situated.149 When

  ibid, para. 50.   See L. Condorelli, ‘Considérations juridiques concernant l’inscription des biens sur la liste du patrimoine mondial en péril et le retrait des biens de la liste du patrimoine mondial’, Doc. WHC-​02/​CONF.202/​8, of 24 May 2002. 148 149   Operational Guidelines, para. 192.   ibid, para. 193. 146 147

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information is received from other sources, the Secretariat must, as far as possible, verify the source and the contents of the information in consultation with the State Party concerned and request its comments.150 The Secretariat also requests the relevant Advisory Bodies to forward comments.151 Any decision on deletion must be taken by a majority of two-​thirds of the WHC members present and voting. The WHC cannot decide to delete any property ‘unless the State Party has been consulted on the question’.152 This implies that, according to the Operational Guidelines, a deletion can occur even against the will of the State Party concerned, provided that it has been previously consulted by the WHC (or, it may be thought, it has received an invitation to be consulted but has not paid due regard to it). Delisting can be a measure used by the WHC to persuade a State Party to comply with its recommendations. For example, in 2005 the WHC inscribed Cologne Cathedral (Germany, 1996) in the List of World Heritage in Danger, regretting the construction of a modern tower in the city and reiterating its requests that Germany reconsider current building plans to respect the visual integrity of the cathedral, adding that: in the case the State Party cannot provide the assurance for an acceptable solution, which conforms with the Committee’s recommendation, the Committee will start the process of delisting the property in accordance with the established procedures.153

In 2006, the WHC noted with satisfaction that a high-​rise building project was halted to protect the integrity of the property and therefore decided to remove Cologne Cathedral from the List of World Heritage in Danger.154 Regretfully in 2007, for the first time in the history of the Convention, the WHC took the decision to delete a property from the World Heritage List. This occurred with the natural Arabian Oryx Sanctuary (Oman, 1994). In particular, the WHC: . . . Recalling that States Parties have the obligation under the Convention to protect and conserve the World Cultural and Natural Heritage situated on their territory, notably, to ensure that effective and active measures are taken for the protection and conservation of such heritage, . . . Noting with alarm that despite several years of intensive efforts, the wild population of Arabian Oryx in the property is in serious decline and its future viability is uncertain, Also noting that most recommendations from the 2000 monitoring mission as well as from previous Committee decisions, . . . have not been implemented, Notes with deep regret that the State Party failed to fulfill its obligations defined in the Convention, in particular the obligation to protect and conserve the World Heritage property of the Arabian Oryx Sanctuary; Regrets that the State Party has proceeded to significantly reduce the size of the Arabian Oryx Sanctuary, in violation of Paragraph 165 of the Operational Guidelines, thus destroying the property’s Outstanding Universal Value and integrity; Regrets that the entreaties of the World Heritage Committee, at its 31st session (Christchurch, 2007) failed to protect the property; Further regrets that the State Party is seeking to pursue hydrocarbon exploration activities within the original boundaries of the property, as recognized by this Committee, thus contributing to the loss of Outstanding Universal Value;

150 153

151 152   ibid, para. 194.   ibid, para. 195.   ibid, para. 196. 154   Decision 29 COM 7A.29.   Decision 30 COM 7A.30.

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Concludes with regret that, having further consulted IUCN and being convinced that as a result of the reduction of the Sanctuary under Omani Law, the property has deteriorated to the extent that it has lost its Outstanding Universal Value and integrity.155

Sadly, two other properties were subsequently removed by the WHC, increasing the entries in what appears today as an unofficial ‘Deleted World Heritage List’. In 2009, the WHC decided to delete the cultural property of the Dresden Elbe Valley (Germany, 2004), regretting the fact that the competent authorities had not halted the construction of a new bridge detrimental to the outstanding universal value of the property, and that the damage already caused had not been reversed.156 In 2021, the WHC took the same action for the Liverpool—​Maritime Mercantile City (UK, 2004), regretting that inadequate governance processes, mechanisms, and regulations for new developments in and around the property, in particular the large-​scale infrastructure projects on the waterfront and northern dock area, had resulted in serious deterioration and irreversible loss of the attributes conveying its outstanding universal value.157

C.  Paragraph 3 While very simple in its wording, the first sentence of Article 11, paragraph 3, addresses another core issue of the Convention, that is the balance between two opposite elements: national sovereignty, on the one hand, and the collective interest of mankind as a whole, on the other.158 In fact, all the machinery established under the Convention, aiming at the protection of a heritage of outstanding universal value, depends on the consent ‘of the State concerned’, that is the state on the territory of which the heritage is located. As already seen,159 every inscription must take place on the basis of the inventories and nominations submitted by the States Parties concerned. In that regard, the WHC cannot act ex officio. To pursue a collective objective, it is assumed that individual States Parties act in good faith in taking the first step in the process established by the Convention. That is the way the Convention was conceived and agreed upon. The approach embodied in the Convention is not really open to criticism. It would be difficult to envisage how the WHC could act in an effective way without the cooperation of the state concerned. Good faith in complying with international obligations and goodwill for the protection of the cultural or natural heritage is the normal situation. However, conflicts between the preservation of the cultural or natural heritage and the political and economic programmes followed by some states may arise in some instances and are not conducive to the submission of nominations for the World Heritage List. A state may have an interest in the exploitation of certain sites and their resources. That is perhaps the reason why the Operational Guidelines emphasize that the inscription of a property on the List does not necessarily preclude a variety of uses, provided that they are environmentally and culturally sustainable: World Heritage properties may sustain biological and cultural diversity and provide ecosystem services and other benefits, which may contribute to environmental and cultural sustainability. Properties may support a variety of ongoing and proposed uses that are ecologically and 156   Decision 31 COM 7B.11.   Decision 33 COM 7A.26.   Decision 44 COM 7A.34. 158  See F. Francioni and F. Lenzerini, ‘The Obligation to Prevent and Avoid Destruction of Cultural Heritage: From Bamiyan to Iraq’ in Hoffman (note 119) p. 28. 159   Under Art. 11, paras 1 and 2 (Sections IV.A and IV.B). 155 157

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culturally sustainable and which may enhance the quality of life and well-​being of communities concerned. The State Party and its partners must ensure their use is equitable and fully respects the Outstanding Universal Value of the property. For some properties, human use would not be appropriate. Legislation, policies and strategies affecting World Heritage properties should ensure the protection of the Outstanding Universal Value, support the wider conservation of natural and cultural heritage, and promote and encourage the effective, inclusive and equitable participation of the communities, indigenous peoples.160

The second sentence of Article 11, paragraph 3, applies to the case where there is a dispute relating to sovereignty or jurisdiction (one may wonder about the difference between sovereignty and jurisdiction—​the answer is far from clear) over the territory where a property is situated. The inclusion of such property on the World Heritage List does not prejudice any rights which may be put forward by any of the claimant states. In such cases, the nomination could be submitted by one of the claimant States Parties; but it would be more in conformity with the spirit of the Convention if the nomination were submitted jointly by the two litigants. While disagreeing on questions of sovereignty or jurisdiction—​which would not be prejudiced and would be settled sooner or later—​ they could in the interim both agree that the property has outstanding universal value and deserves to be covered by the protection regime set out in the Convention. Such an ideal situation has not yet occurred. A well-​known case of a territorial dispute relating to properties on the World Heritage List relates to Jerusalem and the Palestinian territories occupied by Israel. In 1981, the Old City of Jerusalem and its Walls was nominated by Jordan for inscription on the World Heritage List. The city was under the administration and de facto occupation of Israel, a state which at that time was not a party to the Convention. The delegate of Jordan stated that the nomination was presented ‘in the spirit of the unique value of Jerusalem’ and not as ‘a vehicle of political claim’, since the very complicated issue of the status of Jerusalem could not be decided by the WHC. The majority of states members of the WHC had no doubts about the competence of Jordan to make the proposal. However, a few states expressed reservations, although recognizing that Article 11, paragraph 3, had the effect of leaving without prejudice questions of sovereignty or jurisdiction. Only the United States explicitly objected to the nomination as not being in conformity with the articles of the Convention which provide that properties must be situated in the territory of the nominating state, require the consent of the state concerned, and bind the nominating state to draw up an effective plan for the protection and management of the site. The property was inscribed on the World Heritage List by 14 votes in favour, one against, and five abstentions. It officially appears on the World Heritage List as a ‘site proposed by Jordan’, without being referred to the territory of any specific state. The fact that the inclusion of a property on the World Heritage List does not prejudice the rights of the parties regarding sovereignty or jurisdiction does not necessarily mean that UNESCO cannot take a position on the issue. According to UNESCO, in line with relevant UN Resolutions, East Jerusalem remains part of the occupied Palestinian territory and the status of Jerusalem must be resolved in permanent status negotiations. Moreover, according to UNESCO, the two properties of the ‘Birthplace of Jesus: Church of the Nativity and the Pilgrimage Route, Bethlehem’ (Palestine,

160

  Operational Guidelines, para. 119.

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2012) and Hebron/​Al-​Khalil Old Town (Palestine, 2017) are an integral part of the Occupied Palestinian Territory. In 2008, the World Heritage Committee decided to inscribe the Temple of Preah Vihear (Cambodia) on the World Heritage List, although with ‘a revised graphic plan of the property’, which excluded an area in dispute between Cambodia and Thailand. The dispute between the two states was settled by the International Court of Justice in 2013.161 A last remark is that the second sentence of Article 11, paragraph 3, which presupposes the existence of a ‘dispute’ on sovereignty or jurisdiction, does not concern transboundary properties162 where no such dispute occurs between the states concerned.

D.  Paragraph 5 Article 11, paragraph 5, is a partial repetition of what is already said in Article 11, paragraph 2, that also states that the WHC is entitled to establish the criteria for inclusion of properties on the World Heritage List.163 The criteria for inclusion of properties on the List of World Heritage in Danger, also referred to in Article 11, paragraph 5, are specified in the Operational Guidelines.164

E.  Paragraph 6 Cooperation between the WHC and States Parties is needed not only at the time a nomination is made, but also in the case of refusal of inscription of a property on either of the two lists. The recent revision of the nomination procedure (Upstream Process and preliminary assessment165) is intended to ensure closer cooperation between the relevant state and the WHC Advisory Bodies. As regards the World Heritage List, previous consultations between the WHC and the state concerned may provide useful explanations about why the WHC is not convinced that the nominated property presents outstanding universal value. Consultations may perhaps transform a likely refusal into a deferral; they may also persuade a state to withdraw a nomination. In this case, the State Party, if it so wishes, can resubmit the nomination which will be considered as a new nomination.166 In relation to the List of World Heritage in Danger, consultations between the WHC and the state concerned may provide useful explanations about why the WHC is or is not convinced that a property is threatened by serious and specific dangers.

F.  Paragraph 7 As specified in the OG,167 the WHC develops and coordinates international cooperation in the area of research needed for the effective implementation of the Convention. States Parties are encouraged to make resources available to undertake research, since knowledge and understanding are fundamental to the identification, management, and 161   Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear, Judgment of 11 November 2013. 162   Under Art. 11, para. 1 (Section IV.A). 163   Under Art. 11, para. 2 (Section IV.B). The criteria are specified in the Operational Guidelines, para. 77. 164   Operational Guidelines, paras 178–​182. See under Art. 11, para. 4. 165   Under Art. 11, paras 1 and 2 (Sections IV.A and IV.B). 166 167   Operational Guidelines, para. 152.   ibid, para. 215.

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monitoring of World Heritage properties. States Parties are also encouraged to support scientific studies and research methodologies, including traditional and indigenous knowledge held by local communities and indigenous peoples, with their necessary consent. Such studies and research are aimed at demonstrating the contribution that the conservation and management of World Heritage properties, their buffer zones, and wider setting make to sustainable development, such as in conflict prevention and resolution, including, where relevant, by drawing on traditional ways of dispute resolution that may exist within communities. As regards the World Heritage List, studies and research are usually coordinated or financed for the drawing up of the tentative lists. In 2019, for instance, more than 50% of Upstream Process assistance requests submitted by States Parties concerned tentative lists.168 As regards the List of World Heritage in Danger, studies and research may take place during a mission made by the relevant Advisory Body, in cooperation with the State Party concerned, in order to assess the extent of deterioration of the state of conservation of the property. The inventory of agreements in support of world heritage lists a number of cooperation or funds-​in-​trust agreements concluded by UNESCO, on one hand, and some States Parties to the Convention, on the other. For instance, one of the objectives of the funds-​in-​trust agreement concluded in 2001 by UNESCO and Italy, is to identify under-​ represented categories of cultural and natural properties and accordingly to prepare nomination dossiers for the inscription of sites.

168

  UNESCO, ICOMOS, ICCROM, and IUCN (note 64) p. 3.

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Article 11: List of World Heritage in Danger and Deletion of a Property from the World Heritage List Gionata P. Buzzini * and Luigi Condorelli **

2. On the basis of the inventories submitted by States in accordance with paragraph 1, the Committee shall establish, keep up to date and publish, under the title of ‘World Heritage List,’ a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years. 4. The Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of ‘List of World Heritage in Danger’, a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention. This list shall contain an estimate of the cost of such operations. The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large-​scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves. The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately.

I. Preliminary Observations on the Nature of the Convention  163 II. Conditions for the Inscription of a Property on the List of World Heritage in Danger  166 A. The Text of the Convention  166 B. The Preparatory Work of the Convention  171 C. Subsequent Practice Relating to the Interpretation and Application of the Convention  172 1. The Operational Guidelines 172 2. Cases relating to the application of Article 11, paragraph 4, of the Convention 173 D. Conclusion  182 III. The Deletion of a Property from the World Heritage List  183 A. Analysis  183 B. Conclusion  187

Article 11, paragraph 4, of the Convention governs the inscription of a property on the List of World Heritage in Danger. The present commentary*** will focus on certain *  PhD in International Law; Secretary-General, City of Geneva, Switzerland; Former Legal Officer, Codification Division, Office of Legal Affairs, United Nations, New York. The views expressed herein are, however, personal. **  Honorary Professor of Public International Law, Universities of Florence and Geneva. ***  This commentary is an updated and completed version of a study submitted by the authors to UNESCO in 2002.

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questions relating to the interpretation of this provision, which have generated intense legal debate. It will also deal with the question of the deletion of a property from the World Heritage List. As regards the inscription of a property on the List of World Heritage in Danger, the central issue relates to whether or not the consent of the State Party concerned (i.e. the state in whose territory the World Heritage property is located, or ‘territorial state’) is required to that effect. Clarification is also needed of the condition laid down in Article 11, paragraph 4, of the Convention, according to which a request for assistance must have been made ‘under this Convention’ for a property to be inscribed on the aforementioned List. As will be seen, a distinction needs to be made in this respect between the inscription of a property on the List of World Heritage in Danger under ordinary circumstances (first three sentences of Art. 11, para. 4) and in the event of ‘urgent need’ (last sentence of Art. 11, para. 4). Concerning the deletion of a property from the World Heritage List, the question arises whether such a deletion is allowed under the Convention, and if so, under which conditions it may be decided. As all these questions relate to the interpretation of the Convention, the answers must be formulated in the light of the rules and principles of general international law applicable to the interpretation of international treaties, as codified in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties. The most important of these principles is unquestionably that according to which any term or expression contained in a treaty must be interpreted in its context and in the light of the object and purpose of the treaty concerned.1 As regards the context, it is the treaty as a whole (including its preamble, annexes, etc.) that must first and foremost be taken into consideration.2 Thus, in order to establish a proper basis for this analysis, a number of preliminary remarks need to be made, which are intended to highlight the overall features of the Convention, the spirit which is characteristic of it, and the main aims pursued by it.

I.  Preliminary Observations on the Nature of the Convention The Convention, like any international agreement among states, is the expression and product of the sovereignty of the States Parties to it, who have simply and rightly exercised their sovereignty by freely deciding to negotiate and undertake to respect it. It is therefore not surprising that the Convention is as a whole very mindful of respecting state sovereignty. Article 3 sets the tone, underscoring the fact that it is for each state to identify and delineate the properties in its territory which form part of the natural and cultural heritage. Article 6, paragraph 1, then expressly declares that the recognition that the natural and cultural heritage constitutes ‘world heritage’ must take place ‘whilst fully respecting the sovereignty’ of the territorial state. Article 7 highlights that the expression ‘international protection of world heritage’ shall be understood to mean

1   Art. 31, para. 1, of the 1969 Vienna Convention on the Law of Treaties: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ 2   ibid, Art. 31, para. 2.

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the ‘establishment of a system of international co-​operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage’. Furthermore, certain important actions and decisions of the World Heritage Committee are subject either to having obtained the consent of the territorial state (such being the case for the inscription of a property on the World Heritage List3 and for the coordination and encouragement of the studies and research needed for drawing up the World Heritage List and the List of World Heritage in Danger4), or to the requirement to enter into consultation with that state (such being the case before refusing a request for the inclusion of a property in the World Heritage List or in the List of World Heritage in Danger).5 However, the sovereignty of states is compatible with the limitations of sovereignty which are freely (and hence in a sovereign capacity) entered into, namely binding commitments undertaken by means of international agreements. Moreover, all the obligations which states have, in a sovereign capacity, decided to assume by being parties to the Convention are characterized by the fact that they correspond, not to a bilateral logic (that is of an inter partes reciprocal arrangement or ‘give-​and-​take’ agreement), but to a logic based on the general or common interest. Thus, the obligations created by the Convention are erga omnes contractantes obligations, that is to say, obligations whose violation is deemed to be an offence against all the States Parties to the Convention. In fact, by means of indicative language, the Convention highlights the existence of an interest for the international community as a whole in the protection and ‘transmission to future generations’6 of certain properties which are of ‘outstanding universal value’7 and whose deterioration or disappearance would constitute ‘a harmful impoverishment of the heritage of all the nations of the world’.8 Moreover, the safeguarding of these properties is of fundamental importance ‘for all the peoples of the world’,9 given that they ‘are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole’.10 The Preamble also underscores the need to supplement the efforts undertaken at state level ‘by the granting of collective assistance which, although not taking the place of action of the State concerned, will serve as an effective complement thereto’, and highlights that such assistance is the responsibility of ‘the international community as a whole’,11 precisely because of the general interest which is at issue. Still in the same vein, the Convention mentions on several occasions the importance of international cooperation12 in guaranteeing the effective protection of the properties in question, and sets up a body, the World Heritage Committee, which it entrusts with the mission of pursuing the general interest through different actions. The Committee is, in particular, responsible for drawing up the World Heritage List and the List of World Heritage in Danger,13 for making decisions on requests for international assistance,14 and for deciding on the use of the resources of the World Heritage Fund.15 An analysis of the relationship between Article 4 and Article 6 reveals, in a particularly striking manner, the erga omnes nature of the obligations arising from the Convention. Indeed, Article 6 commits the States Parties to the Convention first to recognizing that

4 5 6 7   Art. 11, para. 3.   ibid, para. 7.   ibid, para. 6.   Art. 4.   Arts 1 and 2. 9 10   Preamble, second recital.   ibid, fifth recital.   ibid, sixth recital. 11   ibid, seventh recital. 12   See, in particular, Art. 7, as well as Art. 4 (second sentence), and Art. 6, para. 1 and para. 2. 13 14 15   Art. 11.   Art. 13 and Arts 19–​26.   Art. 13, para. 6, and Art. 15. 3 8

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the natural and cultural heritage mentioned in Articles 1 and 2 ‘constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate’ (para. 1) and, secondly, to providing their assistance in the identification, protection, conservation, and preservation of the properties concerned, if the territorial state so requests (para. 2). To these erga omnes obligations of all States Parties corresponds the right of each State Party to request international assistance and cooperation for the properties situated in its territory.16 Nevertheless, the exercise of this right is but one of the means enabling the State Party to fulfil its obligation—​also erga omnes17—​of guaranteeing the protection of the natural and cultural heritage within its jurisdiction, in order for it to be transmitted to ‘future generations’; a duty which, according to Article 4 of the Convention, ‘belongs primarily’ to the territorial state. There is no question, therefore, that there is a degree of tension within the Convention itself, between its concern to respect state sovereignty and the need to undertake effective international action with the aim of safeguarding values perceived as transcending the individual interest which might be claimed by each of the States Parties to the Convention as regards a world heritage property located in its territory. However, tension does not in this case mean contradiction, but rather a dialectical relationship. It would be fundamentally incorrect to present the respect for state sovereignty and international protective action as being two competing or even opposing objectives, which would be pursued in a parallel and incoherent way by the Convention. On the contrary, the clear aim of the Convention is to find a proper balance between the two objectives. It is clear, in effect, that the preservation of the properties belonging to the world heritage requires a high degree of cooperation on the part of the territorial state as well as, depending on the circumstances, of other States Parties to the Convention; cooperation which these states undertake to provide precisely by their acceptance of the Convention. In other words, by acceding to this instrument and by undertaking the obligations of cooperation set forth therein, the States Parties to the Convention willingly agree to submit the exercise of their sovereignty to the achievement of the objectives of general interest pursued by the Convention. According to this logic, each state will—​by a free sovereign act—​propose to the Committee the inscription on the World Heritage List of a number of properties located in its territory. Inscription which, once approved by the Committee, subjects the properties concerned to a treaty regime based on the recognition of their ‘outstanding universal value’18 and, consequently, of the need to safeguard these properties, if necessary by means of appropriate international action. This function assigned to state sovereignty, whereby it is voluntarily subordinated by the States Parties in pursuit of certain objectives recognized as being in the general interest of all States Parties and their common heritage, constitutes the background which must

  Art. 6, para. 2, and Art. 13.   In this respect, it is also worth recalling Art. 4 of the Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, adopted by the General Conference on 16 November 1972 at the same time as the adoption of the Convention (UNESCO Doc. 17 C/​107). This provision states: ‘The cultural and natural heritage represents wealth, the protection, conservation and presentation of which impose responsibilities on the States in whose territory it is situated, both vis-​à-​vis their own nationals and vis-​à-​vis the international community as a whole; member States should take such action as may be necessary to meet these responsibilities.’ 18   In Arts 1 and 2 of the Convention, this expression is used for all the categories of property falling within the scope of cultural and natural heritage. 16 17

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constantly be kept in mind when interpreting the Convention, including its core provisions such as Article 11.

II.  Conditions for the Inscription of a Property on the List of World Heritage in Danger Does the inscription of a property on the List of World Heritage in Danger require the consent of the State Party in whose territory the property concerned is located? How must the condition laid down in Article 11, paragraph 4, of the Convention be interpreted, according to which assistance relating to this property must have been requested under the Convention?

A.  The Text of the Convention Whereas Article 11, paragraph 3, of the Convention provides expressis verbis that the inscription of a property on the World Heritage List requires the consent of the state in whose territory the property is situated, such a condition has not been laid down for the inscription of a property on the List of World Heritage in Danger. In this respect, the clarity of the requirement for the consent of the State Party concerning the inscription of a property on the World Heritage List underlines all the more clearly the absence of such a requirement in Article 11, paragraph 4, relating to the List of World Heritage in Danger.19 According to the first three sentences of Article 11, paragraph 4, a property ‘for the conservation of which major operations are necessary’, and which is threatened by ‘serious and specific dangers’, may only be included by the Committee in the List of World Heritage in Danger if it appears in the World Heritage List, and if ‘assistance [for that property] has been requested under this Convention’. The request for assistance under the Convention, which constitutes one of the conditions laid down in the first sentence of Article 11, paragraph 4, should not be confused with a request by the State Party concerned for the inscription of a property on the List of World Heritage in Danger, nor with its consent thereto.20 A request for assistance means a request aimed at obtaining help from the Committee, according to Article 13, paragraph 1, of the Convention, for ‘the protection, conservation, presentation or rehabilitation’ of a property. Article 22 of the Convention mentions various forms of international assistance which may be requested.21 According to Article 20 of the Convention, assistance may be granted for properties which the Committee ‘has decided, or may decide, to enter

19   See, however, the interpretation suggested by Australia, according to which ‘ . . . [a]‌requirement for a request from the State concerned before a property is entered on the List of World Heritage in Danger would explain the absence of any express provision in terms similar to article 11 (3) requiring the consent of the State concerned to the inclusion of a property on that list’; Solicitor-​General of Australia, Opinion in the matter of the ‘List of World Heritage in Danger’ under the World Heritage Convention, 20 May 1999, p. 10. Such an interpretation finds no basis in the Convention, which nowhere states the need for a request from the state concerned in order for a property to be inscribed on the List of World Heritage in Danger. 20   A different view was expressed by Professor Erik Franckx in a legal opinion of 30 November 2001, delivered to the Permanent Representation of Belgium to UNESCO (p. 9, para. 20). However, the reasons for equating ‘request for assistance’ and ‘consent’ by the territorial state were not stated in the opinion. 21   Among these are: studies, provision of experts, technicians or skilled labour, training of staff and specialists, supply of equipment, loans at preferential conditions, as well as ‘the granting, in exceptional cases and for special reasons, of non-​repayable subsidies’.

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in one of the lists mentioned in paragraphs 2 and 4 of Article 11’. Thus, a request for assistance pursuant to the Convention may well concern a property which the territorial state does not want to be inscribed on the List of World Heritage in Danger. The correct meaning of the notion of ‘assistance’ under the Convention shows that the territorial state must not necessarily be, in accordance with Article 11, paragraph 4, of the Convention, the initiator of the inscription of a property on the List of World Heritage in Danger.22 Therefore, a request for assistance under the Convention is not the same as a request for the inscription of a property on the List of World Heritage in Danger. Nevertheless, although a request for inscription emanating from the territorial state is not necessary for a property to be inscribed on the List of World Heritage in Danger, nor, moreover, the consent of that state, the question arises, also in the light of the Committee’s practice,23 whether the presentation of a request for the inscription of a property on the List of World Heritage in Danger can be considered as equivalent to a request for assistance under the Convention. The answer, as dictated not by the letter of the Convention but by its general spirit, must be in the affirmative. In fact, the Convention refers to various kinds of assistance, including forms of assistance other than the granting of a sum of money.24 Hence, in spite of the silence of the Convention on this specific point, there is nothing to prevent a request for inscription being made to the Committee by a state which itself has the financial and technical resources enabling it effectively to combat a ‘serious and specific danger’ affecting a property located in its territory. Such an inscription may not only raise awareness amongst the general public and the state authorities directly concerned (including, as the case may be, local authorities) of the seriousness of the situation affecting the threatened property, but also might justify the adoption by the State Party of special conservation measures and facilitate the allocation of a sufficient portion of the state budget to such measures. In this respect, it should also be emphasized that assistance under the Convention does not replace the measures of various kinds that the state concerned is obliged to adopt with a view to safeguarding the property in question, but is designed to be complementary to those measures.25 From the moment that a property is included in the World Heritage List, and the state in question has made a request for assistance in relation to that property, the condition laid down in the first sentence of Article 11, paragraph 4, according to which assistance must have been requested ‘under this Convention’, has been met. The territorial state will not, therefore, be in a position to prevent the inscription of that property on the List of World Heritage in Danger, since neither a request for inscription presented by it nor its consent thereto is required by the Convention. The Committee will then decide on a

22   Such an interpretation was proposed by Sir Elihu Lauterpacht in a legal opinion of 1 July 1999 supporting Australia’s position (para. 9). 23   Notwithstanding the fact that, in a majority of cases, properties have been included in the List of World Heritage in Danger as a result of a request for assistance submitted by the territorial state either at an earlier date or at the time of the inscription, in some cases such a request was presented only after the inscription of the property on the List of World Heritage in Danger. 24   Art. 22 (note 21). 25   See, on the one hand, the seventh recital of the Preamble to the Convention, which refers to ‘the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an effective complement thereto’ and, on the other hand, Art. 25, which states that ‘[a]‌s a general rule, only part of the cost of the work necessary shall be borne by the international community. The contribution of the State benefiting from international assistance shall constitute a substantial share of the resources devoted to each programme or project, unless its resources do not permit this.’

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case-​by-​case basis, taking due account of the criteria laid down in Article 11, paragraph 4, of the Convention and specified in the Operational Guidelines,26 whether or not to include the property concerned in the List of World Heritage in Danger. As regards the request for assistance, it results from a literal and contextual interpretation of the Convention that such a request must have been made by the State Party in whose territory the property is located; in fact, the Convention does not mention the possibility of a request for assistance emanating from another entity.27 From this, one might be tempted to conclude that the territorial state could prevent the inscription of a property on the List of World Heritage in Danger by abstaining from requesting assistance for that property. Such an approach is, however, unsatisfactory. First, it would appear difficult to reconcile it with the erga omnes nature of the obligations set forth in the Convention.28 Secondly, due consideration must be given to the last sentence of Article 11, paragraph 4, of the Convention. In fact, if a request for assistance emanating from the State Party is normally necessary for the inscription of a property on the List of World Heritage in Danger, that is not, however, always the case. Indeed, the last sentence of Article 11, paragraph 4, provides as follows: The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately.

This provision can have no real meaning unless it authorizes the World Heritage Committee, in the case of urgent need, to make such an inscription as a matter of course and independently of whether or not a request for assistance has been made under the Convention. In other words, this provision confers a special power which may be used by the Committee, in the case of urgent need, to include a property in the List of World Heritage in Danger at any time. Such an interpretation is dictated by the principle of effectiveness (ut res magis valeat quam pereat), according to which each provision contained in an international convention has its own reason for being, and may not therefore be presumed to be non-​useful.29 In the case in point, the last sentence of Article 11, paragraph 4, would be useless, and could even be deemed not to have been written, if it were intended simply to state that, in the case of urgent need, the Committee could proceed at any time with the inscription of a property on the List of World Heritage in Danger, when and only when the conditions normally required for such an inscription (i.e. those established in the first three sentences of Art. 11, para. 4)—​and in particular the condition that a request for assistance be made by the State Party—​were also to be met.30

26   Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​01, 31 July 2021, paras 177–​182. 27   See, in particular, Arts 13, 19, and 21, para. 1. However, the Operational Guidelines provide a broader interpretation of the notion of ‘request for assistance’; see Section II.C.1. 28   See Section I. 29   The principle of effectiveness in this context was applied by the International Court of Justice in the Corfu Channel case ([1949] ICJ Rep 24) and in the Libya v Tchad case ([1994] ICJ Rep 23, para. 47). 30   The existence of a special power enjoyed by the Committee in exceptional circumstances was recognized by the Director-​General of UNESCO, Mr Federico Mayor, in a speech given on the occasion of the 16th session of the World Heritage Committee. However, the Director-​General based his considerations on the assumption, which finds no basis in the Convention, that a request for inscription by the territorial state or, at least, its consent thereto, would normally be necessary for a property to be inscribed on the List of World Heritage in Danger:

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An important question arises regarding the characterization of a situation as a case of ‘urgent need’ capable of triggering the extraordinary powers conferred upon the Committee by the last sentence of Article 11, paragraph 4. As the Convention in no way defines this notion, its interpretation is a matter for the Committee. Although the Committee disposes of considerable latitude in its appreciation in this field, its discretionary power must be exercised for the ultimate purpose of serving the general interest identified by the Convention.31 Of course, discretionary power does not mean arbitrary power. Clearly, the notion of ‘urgent need’ (last sentence of Art. 11, para. 4) is not identical in meaning and application to the ‘serious and specific dangers’ (third sentence of Art. 11, para. 4) with regard to the inclusion of a property in the List of World Heritage in Danger under ordinary circumstances. Something more must be required. In abstract terms, the notion of ‘urgent need’ may be defined as the particular imminence characterizing the ‘serious and specific dangers’ which threaten a property in a given case. The imminence of such dangers would be likely to provoke irreversible damage if rapid or even immediate action were not undertaken for the preservation of the property in question. As appears from the wording of Article 11, paragraph 4, of the Convention, the dangers that may justify the inscription of a property on the List of World Heritage in Danger may be the result of a variety of factors, among which are not only natural events but also human actions, such as behaviour adopted or even tolerated by the territorial state.32 Similarly, in the light of the practice of the Committee,33 it is no doubt conceivable that one of the factors contributing to the aggravation of a situation to one of ‘urgent need’ may be the lack of cooperation demonstrated by the state concerned, as well as its disinterested, lax, or directly harmful attitude with regard to a world heritage property. In those cases, it is also conceivable that the inscription of a property on the List of World Heritage in Danger be considered by the Committee as necessary in order to address a strong call to the territorial state as well as the other States Parties to the Convention. In fact, the notion of ‘urgency’ must be envisaged not only in relation to the seriousness and the rapidity with which a danger occurs, but also with respect to the rapidity with which the inscription of a property on the List of World Heritage in Danger must be effected. In this regard, the degree of cooperation manifested by the state concerned may well be a relevant factor. On the question of World Heritage in Danger, and bearing in mind recent discussions in the Executive Board, it seems to me that exceptional circumstances—​such as the recent case of Dubrovnik—​may justify the inclusion of a property on the List of World Heritage in Danger without preliminary request from the State concerned. However, in most instances the inclusion in the list should involve the consent of the State Party and should never be assimilated to a sanction. (Opening address of the Director General of UNESCO, Mr Federico Mayor, annexed to the Report of the World Heritage Committee, 16th session (Santa Fe, 1992).) 31   It should be emphasized that the general interest which the Committee must constantly take as its inspiration in exercising its functions must not be considered as fixed and immutable. Indeed the Convention, like any international instrument, must be interpreted by taking into account developments in the law and hence new principles which may have been developed since it came into force (see, in particular, the decision of the International Court of Justice in the Aegean Sea Continental Shelf case [1978] ICJ Rep 34, para. 80). Thus, the Committee must, in performing its functions, take into due account, e.g., the principles relating to the protection of the environment which are currently recognized under international law. 32   Among the ‘serious and specific dangers’ referred to in this provision which are the result of human behaviour are ‘the threat of disappearance caused by accelerated deterioration, large-​scale public or private projects or rapid urban or tourist development projects’, ‘destruction caused by changes in the use or ownership of the land’, ‘abandonment for any reason whatsoever’, as well as ‘the outbreak or the threat of an armed conflict’. 33   See Section II.C.

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To summarize, it follows from an analysis of the text of the Convention in the light of its context and its object and purpose, that the Convention does not require, for the inscription of a property on the List of World Heritage in Danger, a previous request for inscription emanating from the territorial state nor its consent. Once a property is inscribed on the World Heritage List (this having been possible only with the consent of the territorial state), and once a request for assistance under the Convention has been made with respect to that property by the territorial state, the Committee has a discretionary power concerning the inscription of the property on the List of World Heritage in Danger. Such a power is limited by the criteria set forth in Article 11, paragraph 4, of the Convention and specified by the Committee itself in the Operational Guidelines.34 It may be exercised from the moment that ‘serious and specific dangers’ threaten a property and ‘major operations’ are necessary for its conservation. However, when the Committee considers that there is a situation of ‘urgent need’, it can proceed at any time to the inscription of a property on the List of World Heritage in Danger, whether or not the territorial state has presented a request for assistance concerning that property.35 Any other interpretation would render the last sentence of Article 11, paragraph 4, completely useless.36 This interpretation appears to be entirely consistent with the general spirit of the Convention. In particular, it cannot be claimed that it does not take due account of the sovereignty of the States Parties. Indeed, in accordance with Article 11, paragraph 3, of the Convention, each State Party is entitled to refuse to include a property situated in its territory in the World Heritage List. But once that State Party has given its consent to such an inscription, it agrees by this freely exercised act of sovereignty to subject the property in question to the provisions of the Convention which recognizes that the properties included in the World Heritage List are of ‘outstanding universal value’ taking precedence over the individual interest of the state concerned.37 Furthermore, it seems evident that the tension between the two concerns of the Convention remains latent when the territorial state shows itself willing to collaborate with the Committee in order fully to meet the objectives of protection pursued by the Convention. This tension is only really manifested in situations where the state concerned does not agree to cooperate, seeking to give precedence to its own interests over the general interest protected by the Convention. Now, if the state concerned decides to abstain from making any request for assistance with respect to a property, the Committee will find itself in a situation where one of the conditions normally required for the inscription of the property on the List of World Heritage in Danger is missing. Nevertheless, the last sentence of Article 11, paragraph 4, enables the Committee fully to assume its role of guardian of the general interest of the Convention when it believes the situation to

  Paras 177–​182 of the Operational Guidelines.   The same view was expressed with respect to Art. 11, para. 4, in fine, by Professor Erik Franckx in his legal opinion of 30 November 2001 (note 20), delivered to the Permanent Representation of Belgium to UNESCO (pp. 9–​13, paras 21–​38, and p. 16, para. 51.) 36   See, however, the position taken by Sir Elihu Lauterpacht in his legal opinion (note 22) of 1 July 1999 (supporting Australia’s arguments), according to which ‘. . . There is nothing in these words that clearly dispenses with the need for consent that flows from the general tenor of the Convention and the words used earlier in its text’ (para. 10). 37   A similar view was expressed by the World Conservation Union (IUCN) in its legal analysis submitted to the Committee as Doc. WHC-​02/​CONF.202/​INF.12, p. 5. 34 35

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be of such ‘urgent need’ as to require it. As already mentioned, such an urgent need may be generated by various factors, including lack of cooperation manifested by the state in whose territory the property is located. It is clear that even in such a situation effective protection may be secured only if the state concerned adequately responds to the signal represented by the inscription of a property on the List of World Heritage in Danger. The territorial state is obliged under the Convention to react positively and constructively to such an inscription and to make every possible effort to give effect to the requests which the Committee might address to it, with a view to securing the preservation of that property.

B.  The Preparatory Work of the Convention An analysis of the preparatory work of the Convention appears to contradict the interpretation of Article 11, paragraph 4, provided previously. In fact, the Intergovernmental Committee of Experts which was responsible for preparing the draft Convention made the following observation concerning the inscription of a property on the World Heritage List or on the List of World Heritage in Danger: The inclusion of a property in these lists requires the consent of the State Party concerned. Although a request by the latter will be necessary before a property may be included on the ‘List of World Heritage in Danger’, the Committee will be able to include a property in the ‘World Heritage List’ without the State concerned having requested it, but on condition that it consents.38

However, besides the fact that a differentiation of this kind between the provisions applicable to the two lists is in no way addressed by the text of the Convention,39 it must be pointed out that recourse to preparatory work for the purposes of interpretation is only admissible as a ‘supplementary means of interpretation’—​in accordance with Article 32 of the 1969 Vienna Convention on the Law of Treaties—​when the interpretation given on the basis of Article 31 ‘a) leaves the meaning ambiguous or obscure; or b) leads to a result which is manifestly absurd or unreasonable’. Now, it cannot be claimed that the interpretation provided above is ambiguous or obscure: the overall economy of Article 11, paragraph 4, as well as the observance of the principle of effectiveness lead to a clear conclusion: whereas normally the inscription of a property on the List of World Heritage in Danger presupposes a request for assistance made by the State Party, in situations of ‘urgent need’ the Committee is vested with an extraordinary power to make such an inscription rapidly by setting aside that requirement. Nor is such an interpretation absurd or unreasonable, as it makes it possible in a particularly satisfactory manner to establish the balance between the two concerns expressed in the Convention, which are, on the one hand, to preserve as far as possible the

38  Report of the Intergovernmental Committee of Experts, submitted to the General Conference of UNESCO in June 1972, para. 29. 39   The Convention contains in this respect a provision—​Art. 11, para. 6—​stating that ‘[b]‌efore refusing a request for inclusion in one of the two lists mentioned in paragraphs 2 and 4 of this article, the Committee shall consult the State Party in whose territory the cultural or natural property in question is situated’. This provision, which deals with the inscription of a property on either of the lists in the same way, refers to the case (probably the most frequent) in which the state concerned makes a request for inscription. This does not mean, however, that the Committee itself is not empowered to take the initiative in making the inscription of a property on the List of World Heritage in Danger, when all the conditions required for such an inscription are met.

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sovereignty of the territorial state and, on the other hand, to allow rapid and effective action at the international level when a particularly serious threat arises with regard to a property which has been internationally recognized under the Convention as being of ‘outstanding universal value’ and as belonging to the ‘heritage of mankind as a whole’, that recognition being given at the request or with the consent, it should not be forgotten, of the territorial state.

C.  Subsequent Practice Relating to the Interpretation and Application of the Convention As relevant elements of subsequent practice,40 consideration must be given to the Operational Guidelines adopted by the World Heritage Committee41 as well as to the concrete application of Article 11, paragraph 4, of the Convention.

1.  The Operational Guidelines Although the Committee is not authorized to revise the Convention,42 the Operational Guidelines adopted by it may provide useful insight as they are an important element in the implementation of the Convention. Provided that they are not substantially contradicted by the States Parties to the Convention—​especially those that are not members of the Committee—​the Operational Guidelines may represent, in accordance with Article 31, paragraph 3, of the 1969 Vienna Convention on the Law of Treaties, a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ (lit. a) or ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ (lit. b). At first sight, certain wording of the Operational Guidelines seems to be at variance with the wording of Article 11, paragraph 4, of the Convention. In fact, paragraph 177(d) of the Guidelines states that the request for assistance (first sentence of Art. 11, para. 4) may be made ‘by any Committee member or the Secretariat’. Furthermore, the notion of ‘request for assistance’ issuing from the Committee is interpreted broadly since ‘the Committee is of the view that its assistance in certain cases may most effectively be limited to messages of its concern, including the message sent by inscription of a property on the List of World Heritage in Danger’. Concerning the position of the territorial state and its consideration by the Committee, paragraph 183 of the Operational Guidelines indicates that ‘[w]‌hen considering the inscription of a property on the List of World Heritage in Danger, the Committee shall develop, and adopt, as far as possible, in consultation with the State Party concerned, a “Desired state of conservation for the removal of the property from the List of World Heritage in Danger” and a programme for corrective measures’.43 Moreover, paragraphs 186 and 187 of the Operational Guidelines stress the decision-​making power of the Committee in this matter. In spite of their ambiguity, the Operational Guidelines may be read in a manner consistent with the interpretation arising from the wording of the Convention itself. 41   See Art. 31, para. 3, of the 1969 Vienna Convention on the Law of Treaties.   See note 26.   The Convention regulates its own revision in Art. 37. 43   Para. 184 of the Guidelines, relating to the assessment, to be made by the Secretariat, of the present condition of a property, of the dangers which threaten it, and of the feasibility of undertaking corrective measures, also indicates that this has to be done ‘as far as possible in cooperation with the State Party concerned’. 40 42

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Certainly, the Operational Guidelines widen the notion of assistance, as well as the circle of entities empowered to request it. However, on further reflection, and given that the Operational Guidelines state that ‘in certain cases’ the request for assistance may take the form of a message emanating, where appropriate, from the Committee itself (including ‘the message sent by inscription of a property on the List of World Heritage in Danger’), it may well be considered that, under the Operational Guidelines, in the cases mentioned here, the condition that a request for assistance be made ‘under this Convention’ would quite simply not apply. Given that the Operational Guidelines in no way define the nature of the particular cases to which they refer in this context, it would be reasonable to consider that these cases were the cases of ‘urgent need’ mentioned in the last sentence of Article 11, paragraph 4, of the Convention. Thus interpreted, the Operational Guidelines constitute an element of practice confirming the interpretation of the last sentence of Article 11, paragraph 4, which would seem to be dictated by the wording of the Convention in the light of its context, and object and purpose.

2.  Cases relating to the application of Article 11, paragraph 4, of the Convention The application to date of Article 11, paragraph 4, of the Convention broadly supports the interpretation of this provision as proposed earlier. The practice adopted with respect to the inscription of a property on the List of World Heritage in Danger certainly shows that, in a majority of cases, a property has been included in this List as result of a request for inscription emanating from the territorial state,44 or of contacts from which it was possible to infer an agreement, albeit informal, of that state.45 Furthermore, it is worth noting that, in a number of instances, the inscription of a property on the List of World Heritage in Danger has even been decided simultaneously with its inscription on the World Heritage List.46

44  See, e.g., World Heritage Committee, 10th session (Paris, 24–​28 November 1986), Report of the Rapporteur, VIII, p. 6—​Chan Chan Archeological Zone (Peru); Report of the World Heritage Committee, 16th session (Santa Fe, 7–​14 December 1992), VIII.13, p. 29—​Air and Ténéré Nature Reserve (Niger); Report of the World Heritage Committee, 24th session (Cairns, 27 November–​2 December 2000), VIII.31, p. 26—​ Historic Town of Zabid (Yemen); 33COM 7B.34 (2009), para. 4—​Los Katíos National Park (Colombia); 34COM 7B.29 (2010), para. 3—​Everglades National Park (United States); World Heritage Committee, 34th session (Brasília, 25 July–​3 August 2010), Summary Record, Doc. WHC-​10/​34.COM/​INF.20, p. 260—​ Tombs of Buganda Kings at Kasubi (Uganda); 35COM 7B.31 (2011), para. 5—​Río Plátano Biosphere Reserve (Honduras); and World Heritage Committee, 36th session (St Petersburg, 24 June–​6 July 2012), Summary Record, Doc. WHC-​12/​36.COM/​INF.19, p. 95—​Timbuktu and Tomb of Askia (Mali). 45   See, e.g., Report of the Word Heritage Committee, 25th session (Helsinki, 11–​16 December 2001), III.226—​ Abu Mena (Egypt); World Heritage Committee, 26th session (Budapest, 24–​ 29 June 2002), Summary Record, Doc. WHC-​02/​CONF.202/​INF.15, p. 72—​Tipasa (Algeria); World Heritage Committee, 29th session (Durban, 10–​17 July 2005), Summary Record, Doc. WHC-​05/​29.COM/​INF.22, p. 190—​ Humberstone and Santa Laura Saltpeter Works (Chile); World Heritage Committee, 30th session (Vilnius, 8–​ 16 July 2006), Summary Record, Doc. WHC-​06/​30.COM/​INF.19, p. 203—​Medieval Monuments in Kosovo (Serbia); World Heritage Committee, 31st session (Christchurch, 23 June–​2 July 2007), Summary Record, Doc. WHC-​07/​31.COM/​INF.24, p. 75—​Galapagos Islands (Ecuador); World Heritage Committee, 31st session (Christchurch, 23 June–​2 July 2007), Doc. WHC-​07/​31.COM/​7B, p. 13—​Niokolo-​Koba National Park (Senegal); World Heritage Committee, 36th session (St Petersburg, 24 June–​6 July 2012), Summary Record, Doc. WHC-​12/​36.COM/​INF.19, p. 79—​Fortifications on the Caribbean Side of Panama: Portobelo San Lorenzo (Panama); 38COM 7B.95 (2014), para. 5—​Selous Game Reserve (United Republic of Tanzania); and World Heritage Committee, 42nd session (Manama, 24 June–​4 July 2018), Summary Record, Doc. WHC/​ 18/​42.COM/​INF.18, p. 358—​Lake Turkana National Parks (Kenya). 46  See, e.g., World Heritage Committee, Tenth Session (Paris, 24–​28 November 1986), Report of the Rapporteur, VIII—​Chan Archeological Zone (Peru); Report of the World Heritage Committee, 16th session

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However, it would be misleading to consider this practice as an indication according to which a State Party’s request for, or agreement with, the inscription of a property on the List of World Heritage in Danger would be necessary for such an inscription to be made (as it must be reiterated that the Convention does not contain such a requirement). This should be considered rather as a positive element reflecting the concern of the States Parties to fulfil their obligations arising from the Convention (in particular, from Art. 4) and, consequently, their desire to cooperate in good faith with the Committee when a situation of serious danger affects a world heritage property situated in their territory. Moreover, it should not come as a surprise that the territorial state itself may request the inscription of a property on the List of World Heritage in Danger, if due consideration is given to the fact that such an inscription may facilitate the granting of adequate international assistance for the preservation of the property in question. In general terms, Article 13, paragraph 4, of the Convention calls on the Committee to determine an order of priorities for its operations. Among the criteria enunciated for the determination of this order of priorities is that of the ‘urgency of the work to be done’.47 In the same vein, paragraph 189 of the Guidelines provides that ‘[t]‌he Committee shall allocate a specific, significant portion of the World Heritage Fund to financing of possible assistance to world heritage properties inscribed on the List of World Heritage in Danger’. Attention may also be drawn to paragraph 236 of the Guidelines, according to which ‘[p]riority is given to International Assistance for properties inscribed on the List of World Heritage in Danger’. Furthermore, paragraph 235(a) of the Guidelines mentions, as first in order of priority, emergency assistance requested for a particular property,48 and paragraph 239(c) mentions ‘the urgency of the protective measures to be taken at World Heritage Properties’ among the considerations governing the Committee’s decisions in granting international assistance. Thus, in the light of these elements, the existence of a situation possibly entitling the territorial state to priority assistance may not easily be disputed once a property has been inscribed on the List of World Heritage in Danger. Moreover, one should not forget the positive effects that the inscription of a property on the List of

(Santa Fe, 1992), X.A—​Angkor (Cambodia); 26COM 23.2 and 26COM 23.3 (2002) (specifying that the inscription on the List of World Heritage in Danger was made ‘with the agreement of the State Party’)—​Minaret and Archeological Remains of Jam (Afghanistan); 27COM 8C.43 and 27COM 8C.44 (2003)—​Cultural Landscape and Archeological Remains of the Bamiyan Valley (Afghanistan); 27COM 8C.45 and 27COM 8C.46 (2003)—​Ashur (Qal’at Sherqat) (Iraq); 28COM 14B.55 and 28COM 14.B.56 (2004)—​Bam and its Cultural Landscapes (Islamic Republic of Iran); 29COM 8B.51 and 29COM 8B.52 (2005)—​Humberstone and Santa Laura Saltpeter Works (Chile); 31 COM 8B.23 (2007)—​Samarra Archeological City (Iraq); 36COM 8B.5 (2012)—​Birthplace of Jesus: Church of the Nativity and the pilgrimage route, Bethlehem (Palestine), referring, in para. 2, to ‘an emergency that needs to be addressed by the World Heritage Committee with immediate action necessary for the survival of the property’; 38COM 8B.4 (2014)—​Palestine: Land of Olives and Vines—​Cultural Landscape of Southern Jerusalem, Battir (Palestine); 40COM 8B.22 (2016)—​ Nan Madol: Ceremonial Centre of Eastern Micronesia, Federated States of Micronesia (Micronesia); 41COM 8B.1 (2017)—​Hebron/​Al-​Khalil Old Town (Palestine); and 44COM 8B.26 (2021)—​Roș ia Montană Mining Landscape (Romania). 47   See also Art. 21, para. 1, which prescribes that requests for international assistance must include certain indications, among which is the ‘degree of urgency’ of the work to be done, as well as para. 2 of the same provision, according to which ‘[r]‌equests based upon disasters or natural calamities should, by reasons of the urgent work which they may involve, be given immediate, priority consideration by the Committee, which should have a reserve fund at its disposal against such contingencies’. 48   A definition of ‘emergency assistance’ is provided in the table contained in para. 241 of the Operational Guidelines.

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World Heritage in Danger might produce at the domestic level, by raising awareness of the seriousness of the threats affecting the property concerned.49 Notwithstanding the fact that, in a majority of cases, the Committee has inscribed a property on the List of World Heritage in Danger after the state concerned had requested or expressed its agreement with the inscription, a number of properties have been inscribed on this List in the absence of such a request or agreement. In this respect, it is worth noting that, with few exceptions,50 in such cases there are no records that the territorial state manifested any opposition to the inscription. This is particularly true in the case of the Old City of Dubrovnik, which was included in the List of World Heritage in Danger by the Committee at its 15th session (Carthage, 1991). It was inscribed in the absence of a previous request from the former Yugoslavia, but without the former Yugoslav government clearly opposing the inscription. However, what is of greatest significance here is that the Committee decided to inscribe the property by referring, on the one hand, to the many appeals that UNESCO had unsuccessfully made to the national authorities and, on the other hand, to the last sentence of Article 11, paragraph 4:51 in other words, precisely to the extraordinary power that this provision confers on the Committee in situations of ‘urgent need’.52 Other cases in which the Committee has inscribed a property on the List of World Heritage in Danger without having received a previous request for inscription from the state concerned may be regarded as similar, for the purposes which are of interest here, to the Dubrovnik case. Thus, at its 16th session (Santa Fe, 1992), the Committee included seven new properties on the List of World Heritage in Danger, four of them without a request for inscription being submitted by the state concerned, in situations that appeared to be characterized by a sense of urgency.53 An analogous situation occurred at the 20th session of the Committee (Mérida, 1996) with regard to the re-​inscription of the Garamba National Park (Democratic Republic of the Congo) on the List of World Heritage in Danger, where the Committee noted that ‘no commitment’ had been obtained from the national authorities.54 In the light of the interpretation of ‘urgent need’ provided earlier,55 it can be envisaged that the low degree of cooperation demonstrated by the State Party could have given rise to a situation of urgent need, or at least could have compounded such a situation. Moreover, the State Party had requested international assistance for the site on several occasions. Attention may also be drawn to the case of Cologne Cathedral (Germany), a property which the Committee inscribed on the List of World Heritage in Danger at the 28th 50   See Section II.A.   See later.   See Report of the World Heritage Committee, 15th session (Carthage, 1991), para. 29. 52   The property was removed from the List of World Heritage in Danger in 1998; see Report of the World Heritage Committee, 22nd session (Kyoto, 30 November–​5 December 1998), VII.17. 53   ‘Even though there were no requests from the States Parties concerned, the Committee on the basis of state of conservation reports provided by IUCN . . . decided, in accordance with Article 11, paragraph 4 of the Convention, to include the following sites on the List of World Heritage in Danger: Angkor (Cambodia), Mt Nimba Nature Reserve (Côte d’Ivoire/​Guinea), Sangay National Park (Ecuador) and Manas Wildlife Sanctuary (India)’; Report of the World Heritage Committee, 16th session (Santa Fe, 1992), X.E.A.; see also ibid, VIII.13 and X.A, illustrating the sense of urgency in relation to the inscription of these properties on the List of World Heritage in Danger. As regards Sangay National Park, it should be noted that Ecuador had already requested international assistance for that property; therefore, the Committee was able to make the inscription regardless of whether or not there existed a situation of ‘urgent need’. 54   Report of the World Heritage Committee, 20th session (Mérida, 2–​7 December 1996), VII.37. 55   See Section II.A. 49 51

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session (Suzhou, 2004)56 in the absence of a request for inscription emanating from the territorial state but without the latter formally opposing the inscription. The existence, at that time, of an ‘urgent need’ with respect to that property may be inferred from the wording of the decision subsequently adopted by the Committee at its 29th session (Durban, 2005). In fact, the Committee ‘[r]‌ecall[ed] the urgent need for a clearly designated buffer-​zone that extends on both sides of the river, and takes into account the protection of the visual integrity of the property, as requested at its 28th session (Suzhou, 2004)’,57 and even threatened to ‘start the process of delisting the property in accordance with the established procedures’ ‘[i]n case the State Party cannot provide the assurance for an acceptable solution, which conforms with the Committee’s recommendation’.58 A similar analysis may be proposed regarding the case of the Dresden Elbe Valley (Germany), which the Committee inscribed on the List of World Heritage in Danger at its 30th session (Vilnius, 2006), without the State Party expressing a position at the relevant Committee meeting,59 and this ‘with a view to considering delisting the property from the World Heritage List at its 31st session in 2007, if the plans [for the construction of the “Waldschlösschen bridge”] [were] carried out’.60 In its decision, the Committee indicated that the said construction ‘would irreversibly damage the values and integrity of the property in accordance with paragraph 179 (b) of the Operational Guidelines’,61 and requested the State Party and the City authorities to: urgently halt this construction project and to take up discussions with all stakeholders to find alternative solutions so as to ensure the safeguarding of the outstanding universal value of the property and to provide details on this process and a time frame in conformity with Decision 29 COM 7C.62

Also worth mentioning is the case of the Bagrati Cathedral and Gelati Monastery (Georgia), a property which the Committee inscribed on the List of World Heritage in Danger at its 34th session (Brasília, 2010).63 Although the State Party had initially expressed its disagreement with the envisaged inscription,64 at the relevant Committee meeting it did not oppose it.65 In any event, the wording of the decision appears to indicate that the Committee regarded the situation as a case of ‘urgent need’ enabling it to proceed with the inscription of the property on the List of World Heritage in Danger,

  28COM 15B.70, para. 8.    57  29COM 7A.29, para. 10.   Para. 9 of the same decision. The Committee subsequently deleted the property from the List of World Heritage in Danger at its 30th session (Vilnius, 2006), commending the State Party for the progress made with the definition of the buffer zone, and noting with satisfaction the halting of a high-​rise building project; 30COM 7A.30. 59   World Heritage Committee, 30th session (Vilnius, 8–​16 July 2006), Summary Record, Doc. WHC-​06/​ 30.COM/​INF.19, p. 136: ‘The Chairperson asked the State Party if it would agree to danger listing. In reply, the Observer Delegation of Germany said that it could not give an answer pending consultations with the relevant authorities.’ 60   30COM 7B.77, para. 8. The property was eventually deleted from the World Heritage List in 2009 (see note 110). 61 62 63   ibid, para. 6.   ibid, para. 7.   34COM 7B.88, para. 10. 64   See World Heritage Committee, 34th session (Brasília, 25 July–​3 August 2010), Summary Record, Doc. WHC-​10/​34.COM/​INF.20, p. 320, mentioning a letter sent by the State Party to the World Heritage Centre on 12 July 2010. 65   ibid, pp. 321–​322. The State Party even expressed its ‘deep respect towards any decision of the 34th session of the World Heritage Committee’ as well as the hope ‘that the inscription of the property on the List of the World Heritage in Danger [would] facilitate productive dialogue with the international expert community and raise international awareness of the problems faced by this site’. 56 58

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even in the absence of a request for assistance emanating from the territorial state.66 This conclusion is also supported by the fact that the Committee included in its decision a warning that, ‘if further reconstruction works are carried out on Bagrati Cathedral, the property might be considered, in conformity with Chapter IV.C of the Operational Guidelines, for deletion from the World Heritage List’.67 Analogous considerations as to the existence of a situation of ‘urgent need’ may be made with regard to the inscription, at the Committee’s 36th session (St Petersburg, 2012), of Liverpool—​Maritime Mercantile City (UK) on the List of World Heritage in Danger, ‘with the possibility of deletion of the property from the World Heritage List, should the current project [relating to the proposed development of Liverpool Waters] be approved and implemented’.68 It should be noted that, within the Committee, a laconic mention was made of a divergence of views between the national and local authorities69 with respect to the impact of the project on the property. Attention may also be drawn to the inscription, at the Committee’s 43rd session (Baku, 2019), of the Islands and Protected Areas of the Gulf of California (Mexico) on the List of World Heritage in Danger,70 in the absence of a formal request emanating from the State Party. Noteworthy is that, during the procedure before the Committee, Mexico did not oppose the inscription and recognized In Danger Listing as a positive mechanism.71 Furthermore, the existence of a situation of ‘urgent need’ may be deduced from certain wording in the Committee’s decision.72   See, in particular, the following paragraphs of the decision: 5. Expresses its serious concern about irreversible interventions carried out by the State Party as part of the preparations for the Bagrati Cathedral reconstruction project prior to any review or approval of the project and its impact on the Outstanding Universal Value, integrity and authenticity of the property; 6. Urges the State Party to halt immediately all interventions at Bagrati Cathedral, which threaten the Outstanding Universal Value, integrity and authenticity of the property; 7. Also urges the State Party to immediately adopt all necessary measures aiming to ensure the safeguarding of the Outstanding Universal Value, integrity and authenticity of the property, monitoring and survey of the state of conservation of the property, preparation, adoption and implementation of a Management Plan (including a tourism strategy and guidelines for the use of historic buildings and monuments, an Urban Master Plan and a Conservation Master Plan for the monuments). On the sense of urgency, see also Doc. WHC-​10/​34.COM/​7B.Add, pp. 149–​152. 67   Para. 13. 68  36COM 7B.93, para. 7. The property was, indeed, deleted from the World Heritage List at the Committee’s 2021 session (see note 111). 69   World Heritage Committee, 36th session (St Petersburg, 24 June–​6 July 2012), Summary Record, Doc. WHC-​12/​36.COM.INF.19, p. 62. 70   43COM 7B.26, para. 4. 71   World Heritage Committee, 43rd session (Baku, 30 June–​10 July 2019), Summary Record, Doc. WHC/​ 19/​43.COM/​INF.18, pp. 176 and 179–​180. 72   43COM 7B.26, para. 3: . . . expresses its utmost concern that despite the significant efforts, illegal fishing of totoaba has continued and even escalated in the Upper Gulf of California resulting in a threat of imminent extinction of the vaquita population, specifically recognized as part of the property’s Outstanding Universal Value (OUV) and endemic to the Gulf of California, and considers therefore that illegal fishing represents an ascertained danger to the OUV and integrity of the property, in line with Paragraph 180 of the Operational Guidelines. And para. 6: taking into account the recommendations of the Comité Internacional para la Recuperación de la Vaquita (CIRVA) to avoid the imminent extinction of the vaquita, also urges the State Party to further strengthen its enforcement and surveillance activities to ensure that the area where the last remaining individuals of vaquita are concentrated remains completely gillnet-​free and to ensure that illegal net retrieval programmes are continued. See also the Analysis and Conclusions of the World Heritage Centre and IUCN, Doc. WHC/​19/​43.COM/​ 7B.Add, pp. 26–​27, emphasizing the sense of urgency. 66

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It is now necessary to consider a few cases where it has been recorded that the State Party opposed the possible inscription of a property situated in its territory on the List of World Heritage in Danger. In all but one of the cases identified below, the Committee did in fact make the inscription. Based on the evaluations provided to it at its 20th session (Mérida, 1996), the Committee decided to inscribe Simien National Park (Ethiopia) on the List of World Heritage in Danger. Although Ethiopia manifested its opposition after the property had already been inscribed,73 further consultations and cooperation with the State Party took place. Furthermore, Ethiopia had submitted a request for assistance from the World Heritage Fund,74 so that in accordance with the interpretation of Article 11, paragraph 4, of the Convention proposed in Section II.A, the Committee was entitled to make such an inscription independently of the existence, in this particular case, of a situation of ‘urgent need’.75 Concerning the opposition shown by Australia to the inscription of Kakadu National Park on the List of World Heritage in Danger, the Committee refrained from making such an inscription, basing its decision, amongst other things, on the spirit of cooperation underpinning the Convention. However, the Committee took this opportunity to emphasize the vigilant role that it was called on to adopt in that case.76 With regard to the matter of the Kathmandu Valley, on several occasions the Committee noted that Nepal had adopted no specific plans with a view to counteracting the deterioration of the site.77 The opposition of the Nepalese authorities to the inscription of the site on the List of World Heritage in Danger generated an intense legal debate. In 2003, the Committee finally decided to inscribe the property on the List of World Heritage in Danger notwithstanding the opposition of the Nepalese authorities.78 In any event, since Nepal had submitted several requests for assistance relating to the site, the Committee was able to inscribe the property on the List of World Heritage in Danger, regardless of whether or not there existed a situation of ‘urgent need’ according to the last sentence of Article 11, paragraph 4, of the Convention. Concerning the case of the Tropical Rainforest Heritage of Sumatra (Indonesia), inscribed on the List of World Heritage in Danger at the Committee’s 35th session (UNESCO, Paris, 2011), the State Party had indicated that it did not favour such an inscription, which was not, in its view, ‘the best response to address the issues’.79 The Committee nevertheless proceeded with the inscription,80 and it was certainly   Report of the World Heritage Committee, 21st session (Naples, 1–​6 December 1997), VII.16.   Report of the World Heritage Committee, 20th session (Mérida, 2–​7 December 1996), VII.32. 75   The Committee eventually removed the property from the List of World Heritage in Danger at its 41st session (Kraków, 2017), congratulating the State Party for the efforts made in the implementation of the corrective measures and achieving the desired state of conservation for the removal of the property from the List of World Heritage in Danger; 41COM 7A.13, paras 3 and 4. 76   Report of the World Heritage Committee, 22nd session (Kyoto, 30 November–​5 December 1998), VII.28. See also Decisions of the Third Extraordinary Session of the World Heritage Committee (Paris, 12 July 1999) concerning Kakadu National Park, Australia, 03EXTCOM XI.1-​4. 77  Report of the World Heritage Committee, 24th session (Cairns, 27 November–​2 December 2000), VIII.32. 78   27COM 7B.52 (2003), para. 4. At its 31st session (Christchurch, 2007), the Committee removed this site from the List of World Heritage in Danger, ‘based on the results achieved’; see 31COM 7A.23, para. 6. 79   See World Heritage Committee, 35th session (Paris, 19–​29 June 2011), Summary Record, Doc. WHC-​ 11/​35.COM.INF.20, pp. 84 and 86. 80   35COM 7B.16, para. 6. 73 74

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entitled to do so, given that assistance had been requested for that property under the Convention, and possibly also in view of the existence of a situation of ‘urgent need’.81 Regarding the inscription of East Rennel (Solomon Islands) on the List of World Heritage in Danger at the Committee’s 37th session (Phnom Penh, 2013),82 it should be noted that the State Party expressed, at the relevant Committee meeting, regrets about such a decision.83 However, given that requests for assistance had been made under the Convention, the Committee was entitled to proceed with the inscription, irrespective of the probable existence of a situation of ‘urgent need’ as the wording of the decision would in fact suggest.84 Reference may be also made to the case of the Historic Centre of Shakhrisyabz (Uzbekistan), a property inscribed by the Committee on the List of World Heritage in Danger at its 40th session (Istanbul, 2016). At the relevant Committee meeting, the State Party opposed the inscription, claiming in particular that ‘all construction and reconstruction works had been halted’.85 The Committee nevertheless proceeded with the inscription,86 inter alia by: tak[ing] note with deep concern of the report provided by the 2016 joint World Heritage Centre/​ ICOMOS Reactive Monitoring mission, which observed that major interventions had been carried out to date in the framework of the State Programme, including the demolition and re-​building activities that have brought about irreversible changes to the original appearance of large area within the historic centre of Shakhrisyabz, the setting of the architectural monuments and the overall historical town planning structure and layers.87

  See, in particular, the following paragraphs of the decision:

81

4. Expresses its utmost concern that road development plans and agricultural encroachment continue to pose a major threat to the property, and considers that these threats represent both a potential and ascertained danger to its Outstanding Universal Value in line with Paragraph 180 of the Operational Guidelines, as confirmed by three monitoring missions since 2006; 11. Requests furthermore the State Party to submit to the World Heritage Centre, by 1 February 2012, a report on the state of conservation of the property, including confirmation that all road development proposals within the property have been halted, and on the progress achieved in addressing the other points raised above, for examination by the World Heritage Committee at its 36th session in 2012. On the urgency of the situation, see also Doc. WHC-​11/​35.COM/​7B.Add, pp. 39–​40. 82   37COM B.14, para. 9. The threats mainly consisted of major damage to the forest’s ecology due to ongoing logging on the western part of Rennell island—​only 12 km from the World Heritage site—​and serious danger to endemic wildlife as a result of the introduction of invasive species by logging and container ships. 83   See World Heritage Committee, 37th session (Phnom Penh, 16–​27 June 2013), Summary Record, Doc. WHC-​13/​37.COM.INF.20, p. 45:

The Observer Delegation appealed for the right to deal with the situation and regretted the decision to inscribe the property in the In Danger List. It added that if it was the case, the Observer Delegation [was] optimistic that attention and support [could] be provided when needed and commented that the Centre should have appropriate capacity and means to assist the property to maintain its credibility. 84   37COM B.14, in particular para. 4 (‘Reiterates its request to the State Party to immediately ban all commercial logging from East Rennell to avoid loss of the property’s Outstanding Universal Value’) and para. 5 (‘Also reiterates its request to the State Party to urgently undertake an assessment of the impact of invasive species, especially of associated introduction of rats and invasive snails, to institute control and eradication measures as a matter of utmost priority, and to assess the feasibility of a long-​term biosecurity programme to prevent reinvasion . . .’). On the sense of urgency, see also Doc. WHC-​13/​37.COM/​7B, pp. 29–​32. 85  World Heritage Committee, 40th session (Istanbul, 10–​17 July 2016/​Paris, 20–​26 October 2016), Summary Records, Doc. WHC/​16/​40.COM.INF.19, p. 94. 86 87   40COM 7B.48 (2016), para. 6.   ibid, para 4.

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The existence, in the Committee’s view, of a situation of ‘urgent need’ may be clearly inferred from the wording of the decision,88 which also contemplated a possible delisting of the property.89 The case of the Historic Centre of Vienna deserves a specific mention. The Committee inscribed the property on the List of World Heritage in Danger at its 41st session (Kraków, 2017), pointing inter alia to the lack of change to existing planning controls and to the inadequate extent of change proposed for the Vienna Ice-​Skating Club—​Intercontinental Hotel—​Vienna Konzerthaus project, and considering that such planning controls posed serious and specific threats to the outstanding universal value of the property.90 The inscription was decided in the absence of requests for assistance emanating from the territorial state, and notwithstanding the disagreement expressed by the Austrian authorities at the relevant Committee meeting.91 However, especially in the light of the preparatory works of that decision,92 there seem to be reasons for believing that the situation of the property may have been regarded as one of ‘urgent need’ within the meaning of the last sentence of Article 11, paragraph 4, of the Convention.93 It has also occurred that the Committee decided that a property would be inscribed on the List of World Heritage in Danger unless the states(s) concerned positively responded, within a specified time frame, to certain requests addressed by the Committee. Attention may be drawn, in this respect, to the case of the Curonian Spit (Lithuania/​Russian Federation), where the Committee expressed its concern about a project to undertake activities of oil exploitation in the vicinity of the world heritage property. At its 28th session (Suzhou, 2004), the Committee:   ibid, paras 3, 4, 7, and 8. On the urgency of the situation, see also the Analysis and Conclusions of the World Heritage Centre, ICOMOS, and ICCROM, as contained in Doc. WHC/​16/​40.COM/​7B.Add, pp. 61–​62. 89   ibid, para. 8. See also Doc. WHC/​16/​40.COM.INF.19, pp. 92–​93, indicating that several members of the Committee were of the opinion that the situation was compromised to such an extent that even the retention of the property on the World Heritage List was under question. 90   41COM 7B.42 (2017), paras 10 and 11. 91   See World Heritage Committee, 41st session (Kraków, 2–​12 July 2017), Summary Records, Doc. WHC/​ 17/​41.COM.INF.18, pp. 160–​161: 88

The Delegation of Austria stated that efforts had been made to raise awareness on the requirement of World Heritage and to advise the legal and administrative authorities of the Historic Centre of Vienna. As Austria is a Federal Republic, all provisions related to building legislation, urban development and townscape protection fell within sole legal competence of the local authorities. He therefore presented the representative of the Viennese municipality. The latter expressed his disagreement with the decision that had just been adopted by the Committee and appealed—​albeit unsuccessfully—​to the Committee to rethink and revise it, and therefore refrain from inscribing the property on the List of World Heritage in Danger. 92   See the Analysis and Conclusions of the World Heritage Centre, ICOMOS, and ICCROM, as contained in Doc. WHC/​17/​41.COM/​7B.Add, pp. 35–​36, especially p. 36, stating that ‘The urgency of this issue was clearly articulated in the 2015 Reactive Monitoring mission report, which highlighted that [the problematic planning controls] could lead to “a serious deterioration of its architectural and town-​planning coherence, a serious loss of morphological integrity”, and result in damage to OUV.’ As regards the sense of urgency, also relevant is the indication, provided by the State Party itself, according to which the resolution that had been recently adopted by the City Council of Vienna, which clarified the planning instruments for urban development, would not prevent the Vienna Ice-​Skating Club—​Intercontinental Hotel—​Vienna Konzerthaus project from proceeding; ibid, p. 35. 93   See also the wording of para. 9 of the decision (‘urges the State Party not to amend the current land use and development plans and to halt any further approvals for high-​rise projects, pending the preparation of the revised planning rules . . .’), as well as the reference to ‘urgency’ already contained in the 2015 decision of the Committee regarding the same property; 39COM 7B.94, para. 7.

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decid[ed] to inscribe the property on the List of World Heritage in Danger on 1 February 2005 if no written agreement by the two States Parties to carry out an EIA [Environmental Impact Assessment] in a transboundary context was submitted to the World Heritage Centre. This EIA should involve independent expertise, and should lead to the preparation of a joint work plan for monitoring, prevention/​mitigation measures such as risk assessment, compensation measures and emergency plans, in order to ensure the conservation of the World Heritage property.94

The states concerned complied with the request of the Committee and the latter, at its 29th session (Durban, 2005), ‘warmly commend[ed]’ the States Parties for establishing the said agreement ‘and therefore avoiding the inscription of the property on the List of World Heritage in Danger’.95 There have been other cases in which the Committee envisaged the inscription of a property on the List of World Heritage in Danger with the purported intent to enhance cooperation or compliance by the territorial state. For instance, at its 32nd session (Quebec City, 2008), the Committee warned that, ‘in the absence of substantial progress’, it would consider at its following session the inscription of the Belize Barrier Reef System (Belize) on the List of World Heritage in Danger.96 The Committee did proceed with the inscription of the property on that List at its 33rd session (Seville, 2009).97 It should be noted that the Committee’s decisions were adopted in the absence of the State Party and of any feedback from it,98 in a context that might well be characterized as one of ‘urgent need’.99 Also, in its 2014, 2016, 2017, and 2019 decisions regarding Venice and its Lagoon (Italy), the Committee made explicit reference to the possibility of inscribing the site on the List of World Heritage in Danger.100 More specifically, at its 43rd session (Baku, 2019), the Committee requested the State Party: to submit to the World Heritage Center, by 1 February 2020, an updated report on the state of conservation of the property and the implementation of the above, for examination by the World Heritage Committee at its 44th session in 2020, with a view to considering the inscription of the property on the List of World Heritage in Danger if the implemented mitigation measures and the adapted management system does not result in significant and measurable progress in the state of conservation of the property.101

For the time being, the Committee has refrained from proceeding with the inscription of Venice and its Lagoon on the List of World Heritage in Danger. At its 44th session (Fuzhou (online), 2021), it acknowledged the progress and the efforts made in respect of certain aspects, while also reiterating its concerns on a number of issues and addressing specific requests to the State Party.102   28COM 15B.75 (2004), para. 6.    95  29COM 7B.67 (2005), para. 3.   32COM 7B.33 (2008), para. 6.    97  33COM 7B.33 (2009), para. 9. 98   See World Heritage Committee, 32nd session (Quebec City, 2–​10 July 2008), Draft Summary Record, Doc. WHC-​08/​32.COM, p. 141; and 33rd session (Seville, 22–​30 June 2009), Summary Record, Doc. WHC-​09/​33.COM, pp. 161–​162. 99   See, in particular, 32COM 7B.33 (2008), para. 2 (‘Expresses its serious concern at the reported destruction of mangrove and coral reef ecosystems within the property with accompanying adverse impacts on the Outstanding Universal Value and the integrity of the property’) and para. 3 (‘Requests the State Party to urgently ensure that these destructive activities cease immediately and that the affected areas be ecologically rehabilitated . . .’). 100   38COM 7B.27 (2014), para. 12; 40COM 7B.52 (2016), para. 10; 41COM 7B.48 (2017), para. 12; and 43COM 7B.86 (2019), para. 11. The threats to the property arose from various factors such as over-​ tourism, damage caused by a steady stream of cruise ships (including ones weighing over 40,000 tons), potential negative effects of new developments, as well as the lack of an integrated management system for the site. 101 102   43COM 7B.86 (2019), para. 11.   44COM 7B.50 (2021). 94 96

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Before concluding this selective analysis of the practice of the Committee with respect to the inscription of properties on the List of World Heritage in Danger, it is worth recalling the views expressed by the Committee at the time of the inscription on this List of the Yellowstone National Park (United States). Although it can be considered that an informal request for inscription had been made to the Committee by the State Party, the Committee specified that: even if the State Party did not request action, the Committee still had an independent responsibility to take action based on the information it had gathered.103

In reality, the position adopted by the Committee in this case may be deemed somewhat theoretical. Indeed, it appears that up to the present time, the Committee, in the absence of any request or expression of agreement from the State Party, has included properties in the List of World Heritage in Danger in cases where the property in question had been the subject of one or more requests for assistance104 or in situations of ‘urgent need’ (a case of ‘urgent need’ either generated or aggravated, as the case may be, by a lesser degree of cooperation on the part of the states concerned, or by natural events105 or other circumstances beyond the control of the authorities of the territorial state).106

D. Conclusion The Operational Guidelines and the application of Article 11, paragraph 4, of the Convention appear to confirm the interpretation of this provision that results from the   Report of the World Heritage Committee, 19th session (Berlin, 4–​9 December 1995), VII.22.   We have seen that in some cases where most probably there was ‘urgent need’, the Committee would at any rate have been authorized to inscribe the property in question on the List of World Heritage in Danger, as the State Party had submitted to it one or more request(s) for assistance. This was also the situation for Ichkeul National Park (Tunisia), inscribed on the List of World Heritage in Danger in 1996. In this case, although not explicitly mentioned, there probably also existed a situation of ‘urgent need’. This can be inferred from the fact that the Committee was informed that the Bureau at its 20th extraordinary session had even considered the possibility of an eventual deletion of that property from the World Heritage List; see Report of the World Heritage Committee, 20th session (Mérida, 2–​7 December 1996), VII.36. 105   See, e.g., 29COM 7B.92 (2005), regarding Coro and its Port (Venezuela), noting inter alia that ‘the gradual and considerable deterioration in the state of conservation, authenticity and integrity of the property was considerably aggravated by heavy rains that occurred between November 2004 and February 2005’ (para. 7). At the time of the Committee’s decision, no comments had been received from the State Party on the content of a mission report stating that the property met the conditions for inscription on the List of World Heritage in Danger; see Doc. WHC-​05/​29.COM/​7B.Rev, p. 118. 106   See, e.g., 39COM 7B.51 (2015), regarding Hatra (Iraq), where the urgency arose from a context of violence leading to the destruction of parts of the site, and notably sculptures on the walls, by armed groups using weapons, explosives, and bulldozers (Doc. WHC-​15/​39.COM/​7B.Add, pp. 70–​71). Several members of the Committee emphasized that the inscription of the property on the List of World Heritage in Danger was to be seen as an expression of solidarity and not as a punishment; see World Heritage Committee, 39th session (Bonn, 28 June–​8 July 2015), Summary Records, Doc. WHC-​15/​39.COM.INF.19, pp. 107–​108. See also the general decisions adopted by the Committee with regard to World Heritage property situated in two countries affected by conflict situations: 37COM 7B.57 (2013), inscribing the Ancient City of Damascus, Ancient city of Bosra, Site of Palmyra, Ancient City of Aleppo, Crac des Chevaliers and Qal’at Salah El-​Din, and Ancient Villages of Northern Syria (Syria) on the List of World Heritage in Danger; and 40COM 7B.106 (2016), inscribing on that List the Archaeological Site of Cyrene, the Archaeological Site of Leptis Magna, the Archaeological Site of Sabratha, the Old Town of Ghadamès, and the Rock-​Art Sites of Tadrart Acacus (Libya). Furthermore, mention should be made of the decisions adopted by the Committee, in 2015, regarding two properties situated in Yemen: 39COM 7B.59 (Old City of Sana’a) and 39COM 7B.60 (Old Walled City of Shibam). The State Party underlined that ‘danger listing was not enough to protect heritage and that only stopping the war would’; World Heritage Committee, 39th session (Bonn, 28 June–​July 2015), Summary Records, Doc. WHC-​15/​39.COM.INF.19, p. 116. 103 104

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wording of the Convention as understood in the light of its context, and object and purpose. Thus, the responses to this first set of issues regarding the inscription of a property on the List of World Heritage in Danger are as follows: 1. The Convention does not require that the territorial state present a request for the inscription of a property on the List of World Heritage in Danger or give its consent to such an inscription. 2. Under ordinary circumstances, the inscription of a property on the List of World Heritage in Danger presupposes that a request for assistance has been submitted to the Committee under the Convention.107 However, if the territorial state requests (or otherwise agrees with) the inscription of a property on the List of World Heritage in Danger, this may be considered as equivalent to a request for assistance under the Convention. 3. In the event of ‘urgent need’, the Committee is empowered, under the last sentence of Article 11, paragraph 4, of the Convention, to inscribe a property on the List of World Heritage in Danger even if a request for assistance relating to that property has not been made under the terms of the Convention.

III.  The Deletion of a Property from the World Heritage List Can a property be deleted from the World Heritage List? Is the consent of the State Party in whose territory the property is located required to that effect? Is it necessary for the property in question to have been previously inscribed on the List of World Heritage in Danger?

A. Analysis The Convention does not expressly provide for the possibility of a property being deleted from the World Heritage List.

107   A different interpretation was put forward by the IUCN in its legal analysis submitted to the Committee as Doc. WHC-​02/​CONF.202/​INF.12 (p. 8):

The main argument is based on Article 13 para. 1, relating to the relationship between the In-​Danger listing process, and requests for assistance. It assumes that only the State Party can request assistance. The Operational Guidelines, however, have adopted the interpretation that a request for assistance may come from ‘any Committee member or the Secretariat.’ Moreover, the Convention notes that such requests may be made either before or after the property is placed on the In-​Danger List, indicating that a site may be added to the In-​Danger List without any request for assistance. Although clumsily drafted, the intent of this passage seems clear—​a broad interpretation of the provisions for requests for assistance. In other words, the final phrase of the first sentence of Art. 11, para. 4 (‘. . . and for which assistance has been requested under this Convention’) should not be interpreted as a mandatory link between In-​Danger listing and requests for assistance, but merely as a listing of possible sources for commencement of the In-​Danger process. Any other interpretation would conflict with the overall scheme and objectives of the Convention, as described in this paper. [Citations omitted.] It is the opinion of the present writers that the purpose of Art. 13, para. 1, is simply to specify the properties for which a request for international assistance may be made. Therefore, it would be misleading to interpret the provision as waiving the requirement, explicitly mentioned in Art. 11, para. 4, that a request for assistance must—​under ordinary circumstances (as opposed to cases of ‘urgent need’)—​be submitted for a property to be inscribed on the List of World Heritage in Danger.

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However, the last sentence of Article 11, paragraph 2, of the Convention states that ‘[a]‌n updated list shall be distributed at least every two years’. This implies that the inscription of a property on the World Heritage List does not confer upon it a permanent and immutable status, but a status which may be subsequently called into question taking into account possible changes in circumstances (changes which might lead not only to additions, but also to removals from the List).108 To date, only three properties have been deleted from the World Heritage List: the Arabian Oryx Sanctuary (Oman);109 the Dresden Elbe Valley (Germany);110 and Liverpool—​Maritime Mercantile City (UK).111 Nevertheless, there have been a number of debates in the Bureau and Committee regarding other possible deletions.112 108   At its 2nd session, the Bureau considered that a procedure for the deletion of properties from the World Heritage List should be developed and requested the Secretariat to prepare a draft text. The latter indicates that:

although the Convention does not explicitly refer to the possibility of deleting items from the World Heritage List, the stipulation that the List should be kept up-​to-​date would appear to imply that the List should be regularly reviewed and that only those properties which continue to meet the Committee’s criteria should be maintained on the List and consequently that properties which no longer satisfy the criteria should be deleted. (Para. 2 of Doc. CC-​79/​CONF.003/​10, presented at the 3rd session of the World Heritage Committee (Luxor, 1979).) 109   31COM 7B.11 (2007), paras 12 and 13. The Committee based its action on Oman’s decision to reduce significantly the size of the protected area, in contravention of the Operational Guidelines, as well as on Oman’s plans to pursue hydrocarbon exploration activities within the original boundaries of the property; ibid, paras 9 and 11. This was seen by the Committee as destroying the outstanding universal value and integrity of the site. 110   33COM 7A.26 (2009), para. 9. The Committee ‘not[ed] with deep regret that the State party was unable to fulfil its obligations defined in the Convention, in particular the obligation to protect and conserve the Outstanding Universal Value, as inscribed, of the World Heritage property of the Dresden Elbe Valley’ (para. 6), and ‘[a]‌lso regret[ted] the fact that the authorities [had] not halted the [construction project of the Waldschlösschen Bridge], detrimental to the Outstanding Universal Value of the property and that the damage already caused [had] not been reversed’ (para. 8). 111   44COM 7A.34 (2021), para. 11. The Committee (para. 6): not[ed] with deep regret that inadequate governance processes, mechanisms, and regulations for new developments in and around the World Heritage property, [had] resulted in serious deterioration and irreversible loss of attributes conveying the OUV of the property along with significant loss to its authenticity and integrity, that the process of further deterioration [was] irreversible, and that the State Party [had] not fulfilled its obligations defined in the Convention with respect to protecting and conserving the OUV, as inscribed, of the [property]. At para. 9, it: [a]‌lso note[d] with deep regret that, as a result of approved and implemented projects, the property ha[d] deteriorated to the extent that it ha[d] lost characteristics, which [had] determined its inclusion in the World Heritage List . . . [and] [a]lso regret[ted] that the process for the implementation of the ‘Liverpool Waters’ project and other large-​scale infrastructure projects in the waterfront and northern dock area of the property and its buffer zone [had] resulted in serious deterioration and irreversible loss of attributes that convey its OUV, and that further projects, such as the approved new football stadium in Bramley-​ Moore Dock within the property, add[ed] to the ascertained threat of further deterioration and loss of the OUV of the property. 112   See, in particular, the following cases in which the deletion of a property from the World Heritage List was envisaged: Ichkeul National Park (Tunisia)—​(see note 104); Historic Centre of Vienna (Austria)—​ 26COM 21B.35 (2002), para. 5; Kathmandu Valley (Nepal)—​27COM 7B.52 (2003), para. 6, and 28COM 15A.25 (2004), para. 8; Garamba National Park (Democratic Republic of the Congo)—​29COM 7A.4 (2005), para. 18; Cologne Cathedral (Germany)—​29COM 7A.29 (2005), para. 9; Ksar of Aït-​Ben-​Haddou (Morocco)—​29COM 7B.43 (2005), para. 8; Begrati Cathedral and Gelati Monastery (Georgia)—​34COM 7B.88 (2010), para. 13; and Historic Centre of Shakhrisyabz (Uzbekistan)—​40COM 7B.48 (2016), para. 8, 41COM 7A.57 (2017), para. 11, 42COM 7A.4 (2018), para. 17, 43COM 7A.44 (2019), para. 13, as well as 44COM 7A.31 (2021), para. 6.

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The possibility of a property being deleted from the World Heritage List was envisaged by the Committee at an early stage. It was included in the first version of the Operational Guidelines adopted in 1977, maintained throughout successive revisions to the Operational Guidelines, and is currently governed by paragraphs 191(c), and 192–​ 198 of the 2021 Operational Guidelines. More precisely, according to paragraph 192 of the Guidelines, the possibility of such a deletion is to be examined by the Committee in the following cases:

a) where the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World Heritage List; and b) where the intrinsic qualities of a World Heritage site were already threatened at the time of its nomination by human action and where the necessary corrective measures as outlined by the State Party at the time, have not been taken within the time proposed.

The provisions adopted in the Operational Guidelines appear to be correct and logical, given that it would not be appropriate for a property to continue to appear in the World Heritage List if the conditions forming the basis of the decision to include it in the List were now lacking due to an irremediable deterioration of the property having deprived it of its value. Thus, although not established explicitly in the wording of the Convention, the possibility of deleting a property from the World Heritage List must be considered as inherent to the spirit of the Convention.113 Furthermore, according to the legal principle of parallelism of forms, the body competent to carry out such a deletion is the same as that which, under the Convention, holds the decision-​making power in matters of inscription on the World Heritage List, namely the World Heritage Committee.114 Moreover, in the circumstances envisaged here, the Committee is not only authorized to carry out such a deletion, but is in fact called on to do so under Article 11, paragraph 2, of the Convention, which requires it to update the World Heritage List on a periodic basis. The question of whether the consent of the territorial state is necessary for the Committee to carry out such a deletion must receive a negative answer.115 According to Article 11, paragraph 3, of the Convention, the consent of the State Party is certainly necessary for a property to be included in the World Heritage List. However, that consent alone is not sufficient to cause such an inscription, given that in accordance with Article 11, paragraph 2, the Committee itself ‘shall establish’ the World Heritage List, including in it the properties ‘which it considers as having outstanding universal value in terms of such criteria as it shall have established’. Consequently, given that it is the Committee which has the ultimate power to inscribe a property on the World Heritage List, by extension it also has the power to decide whether or not to maintain a property in that List. It should also be noted that, in their successive revisions, the Operational Guidelines have never provided for the requirement of the territorial state giving its consent for the deletion of a property from the World Heritage List. The current Operational Guidelines only recommend, in this context, that consultations be entered into with the state

113   The same view was expressed by the IUCN in its legal analysis submitted to the Committee as Doc. WHC-​02/​CONF.202/​INF.12, p. 9. 114   Art. 11, para. 2. 115  See also the legal opinion delivered by Professor Erik Franckx to the Permanent Representative of Belgium to UNESCO on 30 November 2001 (note 20) pp. 14–​16, paras 42–​50, and p. 17, para. 54.

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concerned.116 For the rest, the Operational Guidelines specify that the Committee shall take a decision to this effect,117 which will be notified to the State Party.118 Moreover, it is worth noting that in two of the three cases where the Committee proceeded with the deletion of a property from the World Heritage List, the territorial state had not consented to it. In fact, while Oman itself eventually requested, given the circumstances, the deletion of the Arabian Oryx Sanctuary from the World Heritage List,119 neither Germany120 nor the UK121 consented to the deletion of their respective sites from the World Heritage List. The question of whether the property to be deleted from the World Heritage List must previously have been included in the List of World Heritage in Danger also requires a negative response.122 Of course, it is possible that a property under serious threat might still be saved, which would then justify, depending on the circumstances, its inscription on the List of World Heritage in Danger. However, the latter List is intended for properties which, although endangered, have a value such that they can be considered as still being part of the World Heritage. In contrast, once a property has permanently and irrevocably lost the outstanding universal value which justified its inclusion in the World Heritage List, it would not be of any use to inscribe that property on the List of World Heritage in Danger. In that 116   See, in particular, para. 196 of the Operational Guidelines, which states: ‘The Committee shall not decide to delete any property unless the State Party has been consulted on the question’. See also para. 194 of the Guidelines. 117 118   ibid, para. 196.   ibid, para. 197. 119   See World Heritage Committee, 31st session (Christchurch, 23 June–​2 July 2007), Doc. WHC-​07/​ 31.COM/​7B, p. 34 in fine:

A response from the State Party, received by the Centre on 12 April 2007, invites the Committee to delete the property from the World Heritage List during its 31st session, and commits itself to conserve the Arabian Oryx and ensure the viability of the sanctuary. Also in this correspondence, the State Party states that once new boundaries (including buffer zone) and a comprehensive management plan have been established, a new nomination can be submitted, if this is acceptable. 120  See World Heritage Committee, 33rd session (Seville, 22–​30 June 2009), Summary Records, Doc. WHC-​09/​33.COM, pp. 90–​91:

The Delegation of Germany (Observer) explained that the Decision would set an important precedent for the Convention. The deletion of a site from the List had not been imagined at the time the Convention was passed, and the Convention did not contain the necessary instruments to delete sites, since these were contained in the Operational Guidelines. It recommended that all avenues be tried in order to ensure that a consensual decision be reached, taking into account the State Party’s concerns. The Delegation did not believe that all the conditions for deletion had been met. It asked that the Decision be postponed to allow for further consideration of the options, noting that a full debate had not taken place on the issue in the Committee. The Delegation raised the issue of the harmful impacts of a tunnel and of concerns regarding European law, explaining that time was needed to review the issue. It referred to paragraph 196 of the Operational Guidelines, which indicated that the Committee should not delete a site without consulting the State Party. It explained that it felt it had not been adequately consulted on the matter. It also expressed its interest in examining the possibility of a boundary change under c­ hapter 3.1 of the Operational Guidelines, as well as a possible modification of the criteria under which the property was inscribed. . . . It stated that it fully supported the Convention and that by asking for a postponement of the Decision it was only asking for its right as a State Party for all procedures to be respected. It asked the Chairperson for permission to let the Mayor of Dresden speak. 121   See World Heritage Committee, Extended 44th session (Fuzhou (online), 16–​31 July 2021), Intervention of the United Kingdom of Great Britain and Northern Ireland (Observer) at the 18th July meeting (audiovisual recording available at https://​whc.une​sco.org), expressing the view that the site continued to merit recognition under the Convention as it had not lost its outstanding universal value. 122   In this regard, attention may be drawn to the decision of the Committee in the case of Ksar of Aït-​Ben-​ Haddou (Morocco). The inscription of this property on the List of World Heritage in Danger or its deletion from the World Heritage List were alternatively envisaged by the Committee for the case where the State Party would not comply with the Committee’s requests; see 29COM 7B.43 (2005), para. 8.

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case, the solution implied by the general spirit of the Convention is quite simply to delete the property from the World Heritage List. An example of this can be seen from the deletion, in June 2007, of the Arabian Oryx Sanctuary (Oman), a property inscribed on the World Heritage List in 1994 and never included in the List of World Heritage in Danger.123

B. Conclusion The responses to the questions concerning the deletion of a property from the World Heritage List are as follows: 1. Although the Convention does not contain any specific provision referring to the deletion of a property from the World Heritage List, the possibility of such a deletion must be considered as inherent to the object and purpose of the Convention. The Committee is responsible for examining whether or not the property in question should be removed from the World Heritage List. 2. The consent of the territorial state is not required for the deletion of a property from the World Heritage List. 3. Although the previous inclusion of the property in question in the List of World Heritage in Danger is a possibility which may be envisaged by the Committee, depending on the circumstances, it is not a necessary condition for the deletion of that property from the World Heritage List.

123

  See note 109.

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Article 12: Protection of Properties Not Inscribed on the World Heritage List Federico Lenzerini *

The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.

I. The Purpose of Article 12  II. The Significance of the Inclusion of Article 12 in Chapter III of the Convention  III. The Content of the Obligations Arising from Article 12  IV. The Effectiveness of the Obligations Arising from Article 12  V. The Use of Article 12 in the Implementing Practice of the Convention  VI. Practical Effects Arising from Article 12  VII. Conclusion: Is the Presence of Article 12 in the Text of the Convention Necessary? 

188 189 190 192 195 198 200

I.  The Purpose of Article 12 As results from the travaux préparatoires of the World Heritage Convention, Article 12 was adopted by the UNESCO General Conference without discussion.1 Its meaning plainly emerges from its text, which is quite clear and readily understandable. Its purpose is to express the principle that a cultural or natural property may be of outstanding universal value, being consequently included within the scope of the Convention ratione materiae, even in the event that it is not inscribed either in the World Heritage List (established by para. 2 of Art. 11) or in the List of World Heritage in Danger (provided for by para. 4 of the same article). The scope of application of Article 12 is reserved to the properties falling within the areas delineated by the definitions set up by Articles 1 and 2 (see the commentaries on Art. 1 by Yusuf and Art. 2 by Redgwell), since its text explicitly refers to properties ‘belonging to the cultural or natural heritage’, and it is actually the first two articles of the Convention that define the concepts of ‘cultural heritage’ and ‘natural heritage’.

*   Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO. 1  See UNESCO, ‘Records of the General Conference, 17th session’ (Paris, 17 October–​21 November 1972) Vol. 2, Reports, para. 298.

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II.  The Significance of the Inclusion of Article 12 in Chapter III of the Convention Article 12 is included in Chapter III of the Convention, which concerns the World Heritage Committee. This collocation may appear, under a certain perspective, quite bizarre, because Article 12 does not regulate any aspect of the composition, work, or functions of the Committee. For this reason, in trying to assess the meaning and significance of the provision in point, it is first of all opportune to reflect on the possible reason(s) which could have persuaded the drafters and negotiators of the Convention to opt for this systematic choice. From this perspective, it is neither easy nor properly correct, in the light of the rules on treaty interpretation under both Article 31 of the 1969 Vienna Convention on the Law of Treaties2 and customary international law, to make a sort of ex post investigation of the minds of the World Heritage Convention drafters. However, one cannot ignore a priori the possibility that the choice of including Article 12 in Chapter III was made with the deliberate intention of affecting the legal significance of this provision, in the sense of excluding its content from producing any legal obligation for States Parties. This conclusion could be drawn from the fact that the section of the Convention contemplating obligations for States Parties is represented by Chapter II, dedicated to ‘National Protection and International Protection of the Cultural and Natural Heritage’. As a consequence, the fact that Article 12 is not included in this part could abstractly be interpreted as a demonstration of the intention of the Convention drafters to preclude Article 12 from producing legal obligations for States Parties. This interpretation would not be a priori irrational, since, as I will try to explain further on in this chapter, the implications attached to Article 12 do not merely confirm the existence of certain obligations for States Parties already contemplated by other provisions of the Convention, but also presuppose some additional effects. In any event, other circumstances clearly demonstrate that the collocation of Article 12 in Chapter III of the Convention does not imply in any way that this provision is not capable of producing obligations for States Parties. In particular, if that were the case, then the inclusion of the phrase ‘for purposes other than those resulting from inclusion in these lists’ at the end of the provision in point would result in a clear contradiction with the intention of the Convention drafters and negotiators. Such a phrase may, in fact, only refer to purposes contemplated by the Convention, and in particular to those listed in Chapter II. In addition, a sort of indirect confirmation of the fact that Article 12 actually produces obligations for States Parties was provided during the negotiations for the adoption of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage,3 an instrument whose provisions have been heavily ‘inspired’ by the norms of the World Heritage Convention. The draft text of the 2003 Convention included a provision—​Article 12—​that provisionally read as follows: The fact that an item [of the intangible cultural heritage] has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed [as meaning] [taken] to mean that it does not have an outstanding value for purposes other than those resulting 2   1155 UNTS 331. Para. 1 of Art. 31 states that ‘[a]‌treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (emphasis added). The content of this provision corresponds to a rule of customary international law. 3   Adopted by the UNESCO General Conference on 17 October 2003. The full text of the Convention is available at https://​ich.une​sco.org/​en/​con​vent​ion (accessed 4 March 2023).

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from inclusion in these lists, nor does it in any way detract from the obligation of the State Party concerned to safeguard its intangible cultural heritage.4

The similarity of such a provision to Article 12 of the World Heritage Convention is self-​evident, the only significant difference consisting in the addition of the last sentence at the end of the text (‘nor does it in any way detract from the obligation of the State Party concerned to safeguard its intangible cultural heritage’). The inclusion of the latter sentence was proposed by some delegations with the intention of strengthening the practical significance of this provision with respect to the correspondent article of the World Heritage Convention, which, as we will see later, has been recognized, so far, as being scarcely relevant in actual practice concerning the implementation of the Convention. In any event, during the last phase of the negotiations, draft Article 12 was deleted in its entirety from the text of the 2003 Convention. Some of the delegations supporting this deletion made reference to the presumed redundancy of the provision, in the light of the fact that the legal obligations it implied were already contemplated by other provisions of the Convention. In reality, every person who was in the room during the discussion concerning that draft provision was perfectly aware that the real reason for its deletion was that most delegations did not want to include precise obligations in the Convention. In fact, it is quite easy to note that the Convention on Intangible Heritage lacks virtually any legal obligation, in the proper sense of the word, binding States Parties. Delegations were also aware of the fact that the deletion of only the last part of draft Article 12, explicitly referring to the ‘obligation of the State Party concerned’ to safeguard its intangible cultural heritage, could not be enough to preclude the provision from in any way producing legal obligations for States Parties. This is the reason why the entire provision was deleted. This behaviour demonstrates that a norm having the content of Article 12 of the World Heritage Convention is considered by UNESCO members as actually entailing precise obligations for States Parties to a treaty including such a provision. It is quite clear that the reason why Article 12 was included in Chapter III, rather than in Chapter II, of the 1972 Convention was due to the simple fact that the provision in point explicitly refers to the lists contemplated by Article 11 (see the commentaries on Arts 8–​11 by Scovazzi and Art. 11 by Buzzini and Condorelli). Consequently, the fact of referring to the lists (which actually represent the central part of the Convention itself ) before mentioning them at all and defining their purposes was probably considered inappropriate. In reality, the ordinary meaning of the terms used in Article 12, interpreted in the light of the object and purpose of the Convention, clearly demonstrates that the provision in point entails precise legal obligations for States Parties. Having ascertained this, it is now time to try to define the content of these obligations.

III.  The Content of the Obligations Arising from Article 12 Article 12 is applicable with respect to all obligations of a general character included in the Convention, which are contemplated by the provisions of Chapter II of the Convention 4   See UNESCO Doc. CLT-​2003/​CONF.203/​3 Rev., of 12 February 2003 (brackets in the original text), on file with the author (the present author participated, as a member of the Italian delegation, in the negotiations leading to the adoption of the Convention on Intangible Cultural Heritage).

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(see the commentary on Arts 4–​7 by Carducci). With regard to such provisions, the presence of Article 12 in the Convention text implies that States Parties are bound to respect the rules established by Articles 4 ff even with regard to those cultural or natural properties which, although not included in any of the two lists established by Article 11, objectively satisfy the conditions and requirements for being considered of outstanding universal value pursuant to Articles 1 and 2 (see the commentary on the Preamble by Francioni). This would mean, in concrete terms, that States Parties have the duty, that lies primarily on them, of ‘ensuring the identification, protection, conservation, presentation and transmission to future generations’ of all items of cultural and natural heritage of outstanding universal value located in their own territory (doing ‘all [they] can to this end, to the utmost of [their] own resources’, including the recourse to international cooperation, as prescribed by Art. 4), and of complying with the specific requirements provided for in Article 5, irrespective of the fact that such items are included or not in any of the two lists contemplated by Article 11. In particular, Article 5 requires that each State Party endeavours, ‘in so far as possible, and as appropriate for each country’ to carry out a number of measures aimed at granting ‘the protection, conservation and presentation of the cultural and natural heritage situated on its territory’, including the adoption of a general policy aimed at giving the heritage concerned a function in the life of the community5 and the implementation of appropriate (‘legal, scientific, technical, administrative and financial’) measures for the ‘identification, protection, conservation, presentation and rehabilitation’ of such heritage.6 In addition, parties also have the duty of recognizing that even the cultural and natural items not included in either the World Heritage List or the List of World Heritage in Danger, but of outstanding universal value from an objective point of view, constitute ‘a world heritage for whose protection it is the duty of the international community as a whole to co-​operate’ (entailing the obligation of each State Party not to take ‘any deliberate measures which might damage directly or indirectly the cultural and natural heritage’ situated on the territory of other States Parties),7 pursuant to Article 6, and are thus ‘part of the world heritage of mankind as a whole’, as solemnly proclaimed by the sixth recital of the Preamble. In other words, as underlined by an Expert Meeting which took place in Phuket (Thailand) in 2010, Article 12—​together with Article 5—​‘sets a broad aspiration to protect the world’s heritage—​not just World Heritage—​and there are international, regional and national options beyond World Heritage to protect and conserve heritage’.8 On the other hand, it seems indisputable that the effects of Article 12 may not be extended to international assistance as provided for by Article 7, since it is excluded by the wording of Article 20, which, in stating that such assistance ‘may be granted only to property forming part of the cultural and natural heritage which the World Heritage Committee has decided, or may decide, to enter in one of the lists mentioned in paragraphs 2 and 4 of Article 11’, explicitly includes the phrase ‘international assistance provided for by this Convention’ (see the commentary on Arts 19-​26 by Lenzerini), thus comprising any form of international assistance as contemplated by any provision of the 6 7   Art. 5, para. a.   ibid, para. d.   Art. 6, para. 3.  See World Heritage Committee, Report (34th session, Brasilia, Brazil, 25 July–​ 3 August 2010), UNESCO Doc. WHC-​10/​34.COM/​20, of 3 September 2010, Attachment C, ‘Key points of discussions and Recommendations of the expert meeting on Upstream Processes to nominations: creative approaches in the nomination process, 27–​29 April 2010, Phuket, Thailand’, p. 277, para. 2(a). 5 8

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Convention. The rule set up by Article 20, however, is textually subjected to three specific exceptions, concerning the provisions of Article 13, paragraph 2 (see the commentary on Art. 13 by Vrdoljak), Article 22, and Article 23 (see the commentary on Arts 19–​26 by Lenzerini). Consequently, the forms of international assistance established by such provisions are also available to cultural and/​or natural properties not inscribed on any of the two lists contemplated by Article 11. The choice of the Convention drafters resulting in the inclusion of such exceptions is particularly sound, since international assistance aimed at the identification and presentation of the cultural and natural heritage (as referred to in Arts 13, para. 2, 22, and 23) may be realized only before the inscription of the heritage concerned on the World Heritage List (as well as on the List of World Heritage in Danger). In an identical fashion, Article 4 (referring to international assistance in the context of the identification, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage) and Article 13, paragraph 1 (relating to international assistance for the safeguarding of properties potentially suitable for inclusion in the lists established by Art. 11), are to be considered as exceptions to the rule set up by Article 20, irrespective of the fact that they are not explicitly mentioned in that provision.

IV.  The Effectiveness of the Obligations Arising from Article 12 Certainly the fact that specific obligations actually exist in principle does not always mean that they are concretely enforceable and productive of effects in practice, especially at the international level. Sometimes, there are particular factors which may in fact prevent a legal provision from being translated into concrete outcomes. In the case of Article 12, these factors are mainly ascribed to the fact that it relates to specific provisions (i.e. those contemplated by Chapter II of the Convention) that are in practice rather abstract and indefinite. First of all, Article 4 only refers to a duty (and not a technical ‘obligation’), belonging primarily (and not exclusively) to the territorial state, which is not capable of being translated into specific requirements, but in practice it simply entails a commitment to not acting in ways which are manifestly at odds with the purposes of the Convention. As for Article 5, its effectiveness is virtually annihilated by the joint presence of the expressions ‘shall endeavour’, ‘in so far as possible’, and ‘as appropriate’. Finally, the principle of cooperation entailed by Article 6 is inherently incapable of producing definite legal obligations which may be internationally enforceable. However, the lack of effectiveness of Article 12 is not only the consequence of the substantially indefinite character of the obligations linked to said article. It is, indeed, also the result of the objective difficulty of establishing whether a given property that is not inscribed on the lists provided for by Article 11 is really of outstanding universal value, which is a precondition for the applicability of Article 12. This difficulty derives from the fact that, according to the system set up by the Convention, the only body competent to authoritatively recognize that a cultural or natural property is of outstanding universal value is the Committee, which makes such a recognition only with a view to the inscription of the item on the World Heritage List. The practice of the Committee does not lack examples of properties proposed for inscription on the List by a State Party that have not been considered of outstanding universal value by the Committee itself. This demonstrates that sometimes such a value may be attributed to items that, according to Federico Lenzerini

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the Convention (in the light of the interpretation given to it by the authoritative body entrusted with its implementation), are not outstandingly valuable under a universal perspective. This, of course, also implies the contrary; that is, that a given property may actually be of outstanding universal value even in the event that it is not considered as having such value by the government of the territory in which it is located. As a consequence, the nature of a cultural or natural property (not inscribed on any of the two lists contemplated by Article 11) as an item deserving protection in the light of Article 12 may in practice be invoked only in very clear situations; that is, in the case of items which are objectively and patently of such an extraordinary character that their universally outstanding value may not be reasonably denied and that, for whatever reason, are not (yet) inscribed on the World Heritage List. However, the difficulty of ascertaining whether a property is of outstanding universal value, and whether it falls within the scope of application of the Convention, is today partially mitigated by virtue of the fact that the Committee (as will be shown in this chapter) has recognized that the inclusion of a property in the national inventories contemplated by paragraph 1 of Article 11 already entails a form of international recognition according to the Convention.9 Apart from this, the concrete ineffectiveness of the obligations arising from Article 12 is reflected in the relevant practice. To the knowledge of the present writer, after the entry into force of the Convention, UNESCO has called upon States Parties to respect their responsibilities arising from the Convention, with regard to properties not inscribed on the lists contemplated by Article 11, only in blatant cases of deliberate acts of hostility against items of obviously great importance, such as the Buddhas of Bamiyan destroyed by the Taliban regime in Afghanistan in 2001.10 Apart from this kind of sensational situations, the Convention has had no influence with regard to the very frequent cases of not-​blatantly-​improper actions performed by governments party to the Convention within their own territory (for whatever reason, including public works, urban planning, and promotion of tourism), which threaten or actually prejudice the integrity of cultural or natural properties objectively being of outstanding universal value but not inscribed on any of the two lists contemplated by Article 11. Even when UNESCO calls upon States Parties to the Convention to respect their obligations with regard to non-​listed sites, its action is often unproductive. In addition to the case of the Buddhas of Bamiyan, an example is provided by the Burmese government with regard to the ancient city of Bagan, located in Myanmar, which, with its spectacular collection of several hundred eleventh-​and twelfth-​century Buddhist temples, is considered one of the most outstanding sites of Buddhist architecture in Asia. During the 22nd session of the Committee, held in Kyoto in 1998, the Japanese delegate, given the objectively undisputed outstanding universal value of the site, urged the Secretariat to encourage the government of Myanmar (party to the Convention since 1994)11 ‘to submit a preparatory assistance request in the framework of the Fund’s international assistance’. However, the Director of the World Heritage Centre informed the Committee that

  See note 23 and corresponding text.  On this case, see F. Francioni and F. Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 EJIL 619. 11  See http://​whc.une​sco.org/​en/​states​part​ies (accessed 29 December 2021). 9

10

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he had undertaken a mission to Bagan and invited the Burmese authorities ‘to apply for emergency and/​or preparatory assistance’, without receiving any such request by the Myanmar government.12 For its part, the Burmese government totally ignored the invitation of the Centre and, on the contrary, a few years later decided to build a 60-​ metre viewing tower (Nanmyint) in Bagan in order to give tourists a ‘fine view’ of the city. Despite the concern manifested by UNESCO with respect to such a project,13 the tower, which definitely prejudiced the integrity of the site, was actually constructed and inaugurated on 10 April 2005.14 However, in 2019 Bagan was finally inscribed on the World Heritage List.15 The reality is that the huge success that has characterized the Convention since its entry into force is limited in substance to the system instituted by the lists contemplated by Article 11, having produced virtually no outcome outside this system. As a consequence, in practical terms only the properties that are inscribed on such lists enjoy effective and significant protection per effect of the Convention. However, Article 12 may play a significant role in connection with listed properties. The effectiveness of the listing system is in fact inherently limited to the areas included within the boundaries of each listed property as defined by its geographical coordinates at the time of its inscription on the World Heritage List. Sometimes it may occur that such boundaries do not include the entire area of the site as commonly conceived by virtue of its original characterization, for reasons that are unrelated to the evaluation of the site from the Convention’s perspective (e.g. where local religious leaders are opposed to the inclusion in the area of the site, as listed in the World Heritage List, of certain religious buildings for which they consider inscription on the List as contrary to their religious rules, thus persuading the national government to exclude such buildings from the area of the site proposed to the Committee for inscription). In such cases, it is to be maintained that Article 12 concretely binds the State Party concerned to also consider the part of the site which has not been inscribed on the List as falling within the scope of the Convention, this obligation being the result of the fact that the inherent outstanding universal value of the site has been recognized by the Committee, which, as the authoritative body having the competence to decide whether or not a given site possesses such value, has definitely determined (at least for the time being) that the property concerned actually has such quality. Of course, the evaluation by the Committee of a property as having outstanding universal value naturally extends to the property in its entirety, and the fact that part of it has not been included in the World Heritage List for reasons that are extraneous to the above evaluation does not prevent the non-​listed parts of the site concerned from maintaining their exceptional value, authoritatively recognized by the Committee, for all purposes other than those resulting from inclusion in the lists provided for by Article 11, thus being ipso facto subjected to the (concrete) operation of Article 12.

12   See World Heritage Committee, Report (22nd session, Kyoto, Japan, 30 November–​5 December 1998), UNESCO Doc. WHC-​98/​CONF.203/​18, of 29 January 1999, para. XII.9. 13   See ‘UN Body Fears for Myanmar’s Plans for Ancient Pagan’, EBO Burma News (9 May 2003), available at http://​www.ibib​lio.org/​obl/​docs/​EBO2​003-​05-​09.htm (accessed 19 April 2006). 14   See ‘Pagan’s Controversial Tower Opens’, The Irrawaddy News, News in Brief (April 2005), available at http://​www.irrawa​ddy.org/​avie​wer.asp?a=​4576&z=​9 (accessed 19 April 2006). 15  See https://​whc.une​sco.org/​en/​list/​1588/​ (accessed 29 December 2021).

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V.  The Use of Article 12 in the Implementing Practice of the Convention The meagre practical relevance of Article 12 in the context of the implementation of the Convention is demonstrated by the very rare and minor use of this provision by the Committee, since its first meeting in 1977, as well as by States Parties to the Convention. In particular, with regard to the Committee, it seems that sometimes it has underestimated the significance of Article 12. During its 16th session (Santa Fe, December 1992), the Committee concluded its evaluation report on the implementation of the Convention with this curious excerpt, according to which: [b]‌y stipulating in Article 12 that: The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 (i.e. the World Heritage List) and 4 (i.e. the List of World Heritage in Danger) of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists, the Convention puts special emphasis on what form the basis of its provisions, namely that identification of property belonging to the cultural and natural heritage and its inclusion in one or the other of the two lists are associated with the protection, conservation, presentation and transmission to future generations of that heritage. For the purposes of the Convention, inclusion in the list is therefore aimed at conservation. Hence, the measures to be taken to ensure that conservation constitutes a duty for the States Parties requesting the inclusion of the property (Articles 4 and 5); and co-​operation by the international community to protect the listed property is also a duty (Article 6). In practice, inclusion in the World Heritage List has become a status symbol that is sought for its own sake and sometimes leads to heated and prolonged discussion, while the measures taken to conserve the listed property often prove to be less effective and active than is laid down.16

It seems quite paradoxical that the Committee considers that the fact that the system of the lists represents the essential purpose of the Convention is to be derived from Article 12, even in relation to the duties arising from Articles 4 ff. According to the ordinary meaning of the words of Article 12, it rather appears the contrary, in the sense that such a provision establishes a form of explicit protection for items of cultural and natural heritage of outstanding universal value that are included neither in the World Heritage List nor in the List of World Heritage in Danger. Of course, if the importance attributed to Article 12 by the Committee is to be drawn from the excerpt reproduced above, then it is no wonder that the provision has been so insignificant in the context of the implementing practice of the Convention. However, during other sessions of the Committee, the significance of Article 12 has been emphasized in its correct meaning, although through the use of very laconic references. In particular, during the Naples meeting (1997), the Director of the World Heritage Centre stressed that the practitioners of the Convention must remember ‘Article 12 of the Convention and that the fact that a property is included in the List does not mean that it does not have outstanding universal value’ (sic).17 Of course, we can clearly   World Heritage Committee, ‘Evaluation Report on the Implementation of the Convention’, item 6 of the Provisional Agenda (16th session, Santa Fe, United States, 7–​14 December 1992), UNESCO Doc. WHC-​92/​ CONF.002/​3, of 16 November 1992, p. 16. 17  World Heritage Committee, ‘Reports of the Rapporteur of the sessions of the Bureau of the World Heritage Committee held in 1997’, item 4 of the Provisional Agenda (21st session, Naples, Italy, 1–​6 December 1997); ‘Report of the Rapporteur of the Twenty-​first session of the Bureau of the World Heritage Committee’ (Paris, 23–​28 June 1997), UNESCO Doc. WHC-​97/​CONF.208/​4A, of 10 October 1997, Annex XI; ‘Report of the World Heritage Global Strategy Nature–​Culture Consultation Meeting’ (Introductory remarks by the 16

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assume that a ‘not’, which should evidently have been incorporated between the words ‘is’ and ‘included’, was overlooked during the drafting of the document. In 2002, the Bureau of the Convention, at its 26th session, established a working group to prepare a draft decision on the situation of cultural heritage in the Palestinian Territories, which was transmitted by the Bureau to the World Heritage Committee for consideration and adoption at its 26th session (in Budapest, Hungary). The text of the draft decision emphasized, in the Preamble, that: despite the fact that the [cultural heritage in the Palestinian Territories, particularly the Basilica of the Nativity in Bethlehem, birthplace of Jesus Christ and one of the most significant and historic sites on Earth, the historic centre of Nablus including its mosques and the old City of Hebron], are not inscribed on the World Heritage List, this does not mean that they are not of outstanding universal value according to Article 12 of the World Heritage Convention.18

At its meeting in Budapest, the Committee adopted the decision. Although its definitive text includes no explicit reference to Article 12, it emphasizes ‘the exceptional universal value of cultural heritage in Palestine’,19 and points out that: until the conditions for the inscription of this heritage on the World Heritage List are fulfilled, appropriate measures shall be taken to ensure its protection.20

The combination of these two sentences clearly implies that, when a given property is of ‘exceptional universal value’, the Convention is applicable to such property even in the event that it is not inscribed on either the World Heritage List or the List of World Heritage in Danger, at least to the extent of allowing appropriate measures to be taken by UNESCO to ensure its protection (of course, with the exception of any measures related to the purposes resulting, and effects arising, from the inscription of an item on one of the two lists),21 provided that the property concerned is located in a territory which is within the scope of application of the Convention.22 This represents an evident case of the Director, World Heritage Centre, UNESCO Headquarters, Paris, France, 28 June 1997, 10.00–​12.00’), para. 2. 18   World Heritage Committee, ‘Draft Decision on the Protection of the Cultural Heritage in the Palestinian Territories’, item 6 of the Provisional Agenda (26th session, Budapest, Hungary, 24–​29 June 2002), UNESCO Doc. WHC-​02/​CONF.202/​3, of 7 May 2002, Annex, Preamble, fifth sentence. 19   World Heritage Committee, Decision 26 COM 6.1, adopted by the 26th session of the World Heritage Committee, UNESCO Doc. WHC-​02/​CONF.202/​25, of 1 August 2002, pp. 3, 5. 20   ibid, p. 6. 21   The measures contemplated by Decision 26 COM 6.1 (note 19) included the invitation to the UNESCO Director-​General, ‘in consultation with the Chairman of the Committee, to assist with the task of establishing an inventory of [the cultural and natural heritage concerned], assessing state of conservation and the measures for its preservation and rehabilitation’ (see para. 7) and the decision ‘to provide financial support for the implementation of [the task provided for at para. 7] and that part of this contribution should be used for training and capacity building of Palestinian specialists in the field of preservation and safeguarding of cultural and natural heritage’ (see para. 8). 22   Although the Palestinian Territories were, at the time of the adoption of Decision 26 COM 6.1 (note 19) (as at the time of writing), contested, for the purposes of the Convention they have to be considered as part of Israel, which has been party to the Convention since 1999. See, consistently, the declaration released by Syria upon accession (in 1975), according to which:

[t]‌he Government of the Syrian Arab Republic views that the obligation emanated in Article 4 covers the occupied Arab territories and consequently, the Israeli occupation authorities are under obligation to preserve the cultural and natural heritage existing in the occupied territories in view of the fact that occupation does not eliminate sovereignty and that the occupation authorities are considered internationally responsible for any attenuation of the cultural and natural heritage even if Israel has not acceded to the Convention. (See https://​verdra​genb​ank.overh​eid.nl/​en/​Tre​aty/​Deta​ils/​00270​0_​b (accessed 29 December 2021.)

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application of Article 12, although the provision in point was not explicitly mentioned by the Committee. The significance of Article 12 has also been stressed by the Committee in connection with the tentative lists prepared by States Parties to the Convention, pursuant to paragraph 1 of Article 11, in view of their inscription on the World Heritage List (see the commentary on Arts 8–​11 by Scovazzi). In a decision adopted at its 27th session (at the UNESCO Headquarters in Paris), the Committee considered that, ‘[b]‌earing in mind Articles 11 and 12 of the Convention’, the status of the tentative lists ‘should be enhanced so that the inclusion of properties on [its tentative] list would already entail, for the State Party, a form of international recognition’.23 It clearly appears that in this instance Article 12 was considered to be the legal foundation of the assertion that the inclusion of a property in the national tentative list constitutes by itself a form of international recognition. Since it is actually Article 12 which specifies that a property may be of outstanding universal value even if not included in any of the two lists contemplated by Article 11, it is this provision that may serve as a legal gateway for recognizing the relevance of non-​ inscribed properties within the scope of the Convention. In practical terms, consistent with the statement of the Committee, the inclusion of a cultural or natural property in the national tentative list would ipso facto produce the effect of bringing such property to the attention of the international community, making it the object of protection of the Convention. Such property, once it has been inscribed on the national tentative list, should accordingly be safeguarded by the territorial state so that the scope and purpose of the Convention, with regard to the property concerned, is not neutralized, according to the terms and conditions established by the Convention that are applicable to non-​ inscribed items of cultural or natural heritage. However, it would appear quite curious that, since national tentative lists are prepared by States Parties without any kind of control by the Convention bodies, international recognition is given to a property on the sole basis of the unilateral evaluation by the state in whose territory such property is located. According to Articles 1 and 2 of the Convention, in order for cultural and natural properties to be entitled to international protection pursuant to the Convention, they must be of outstanding universal value according to objective criteria, and nothing prevents States Parties, through providing their own interpretation of such criteria, from considering properties as having such value (through their inclusion in the national tentative list) even when they would not hypothetically be considered as such by the Committee (circumstance which can only be ascertained at a later stage). Consequently, following the reasoning of the Committee in its Decision 27 COM 13.3, it is concretely possible that the kind of international recognition referred to in that decision may be given to properties which do not de facto possess the objective qualities for being considered of outstanding universal value according to Articles 1 and 2, consequently being ex lege out of the scope of application ratione materiae of the Convention. On the other hand, however, Article 3 of the Convention explicitly states that ‘[i]‌t is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above’. This means that, for all ‘purposes other than those resulting from inclusion’ in the two lists contemplated

23   World Heritage Committee, Decision 27 COM 13.3 adopted by the 27th session of the World Heritage Committee, UNESCO Doc. WHC-​03/​27COM/​24, of 10 December 2003, p. 125, para. 6.

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by Article 11,24 it is actually the state concerned that has the right/​duty of establishing whether a property located in its own territory is of outstanding universal value pursuant to Article 1 and/​or 2 of the Convention. This interpretation has been confirmed by the jurisprudence of the High Court of Australia: [w]‌hat emerges from the terms of the [World Heritage] Convention with clarity is that it is for a State Party to identify for itself the cultural and natural heritage on its territory. The obligation of a State Party to protect, conserve, preserve and transmit to future generations the cultural and natural heritage situated on its territory does not flow from any listing upon the World Heritage List. ... Once identified, even if there is a refusal to enter ... a property on the World Heritage List, it does not cease to be part of the cultural and natural heritage and the obligations imposed by the Convention in relation to it remain in force. While the inclusion of a property on the World Heritage List may, in a practical sense, confirm the appropriateness of the identification of that property by a State Party as part of its cultural or natural heritage, it leads to no consequence under the Convention other than eligibility for international assistance.25

Consequently, in line with the interpretation of the Committee, the inclusion of a property in the tentative list of a State Party amounts to the identification and delineation of its own cultural and natural heritage (pursuant to Art. 3) that is included within the scope of the definition provided for by Article 1 and/​or 2 and recognized pursuant to Article 12 as having outstanding universal value ‘for purposes other than those resulting from inclusion’ in the lists contemplated by Article 11. In other words, the identification by a State Party of certain properties situated in its territory as falling within the definitions of Articles 1 and 2 is constitutive of their status as world heritage for the purposes of the Convention (again, with the exception of purposes arising from the inclusion of the properties concerned in the World Heritage List or in the List of World Heritage in Danger).

VI.  Practical Effects Arising from Article 12 In spite of the relatively scarce use made by the Committee of Article 12, the following practical effects arise from the wording of the provision in object, evaluated in the context of the Convention and in the light of its object and purpose (pursuant to para. 1 of Art. 31 of the 1969 Vienna Convention on the Law of Treaties):26 1. as emerges from the plain reading of the text of Article 12, the fact that a property is not inscribed on any of the two lists contemplated by Article 11 does not mean that it does not have outstanding universal value. This implies that, when the Committee is called upon to assess whether a property deserves inscription on the World Heritage List, it is not called to decide whether the property concerned is of outstanding universal value, but only to objectively verify the existence of such value. In other words, under the perspective of the intrinsic significance of the property concerned, inscription on the World Heritage List represents a declaratory element, and not a constitutive process, the outstanding universal value of the cultural or natural item being a precondition for, and not the result of, the inscription. This is, of course, without 24   These purposes (i.e. all the purposes of the Convention except those arising from the inclusion of a property in one of the two lists provided for by Art. 11) actually demarcate the scope of application of Art. 12. 25  See Queensland v Commonwealth (1989) 167 CLR 232, 245–​246 (emphasis added), J. Dawson, cited by B. Boer and G. Wiffen, Heritage Law in Australia (Oxford University Press, Oxford, 2006) p. 73. 26   See note 2.

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prejudice to the role of inscription with respect to the significance of the inscribed property as emblematic of a given cultural or natural category (e.g. as the best example of a given architectural style); in this respect, the inscription of a property in the World Heritage List may be considered as ‘constitutive’ of its emblematic significance (see the commentary on the Preamble by Francioni); 2. a cultural or natural property of outstanding universal value deserves protection even if it is not inscribed on any of the two lists of Article 11 (of course, as Art. 12 textually specifies, with regard to purposes other than those resulting from the inscription on the lists). This means that States Parties are not allowed to consider non-​listed properties, when they objectively satisfy the requirement of the outstanding universal value, as inherently less important than listed ones (in this respect, Art. 12 represents a sort of ‘saving clause’); 3. not all cultural or natural properties of outstanding universal value have to be inscribed on the World Heritage List (or on the List of World Heritage in Danger), as they are the object of the protection measures set up by the Convention even if they are not included in either of the two lists (with the exception, of course, of the measures arising from the inscription on such lists). This point was stressed, inter alia, by an Expert Meeting on Evaluation of general principles and criteria for nominations of natural World Heritage sites, which took place in the Parc national de la Vanoise, France, on 22–​26 March 1996.27 Among other things, the experts recommended that paragraph 6(i) of the Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines), according to the version in force at the relevant time,28 was amended with the addition of the following text: [i]‌nscription on the World Heritage List is reserved for only a selection of the most outstanding properties from the international point of view. In accordance with Article 12 of the Convention, States Parties should not assume that a site of national and/​or regional importance will automatically be included in the World Heritage List.29

This amendment was not textually included in the Operational Guidelines, and the text makes no explicit reference to Article 12. However, the Guidelines specify that the Convention ‘is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from 27   See World Heritage Committee (20th session, Merida, Mexico, 2–​7 December 1996), UNESCO Doc. WHC-​96/​CONF.201/​INF.8, of 25 September 1996. 28   See the 1996 version of the UNESCO Operational Guidelines for the Implementation of the World Heritage Convention (available at http://​whc.une​sco.org/​arch​ive/​opguid​e96.pdf, accessed 29 December 2021), para. 6(i) of which stated that:

[t]‌he Convention provides for the protection of those cultural and natural properties deemed to be of outstanding universal value. It is not intended to provide for the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint. The outstanding universal value of cultural and natural properties is defined by Articles 1 and 2 of the Convention. These definitions are interpreted by the Committee by using two sets of criteria: one set for cultural property and another set for natural property. The criteria and the conditions of authenticity or integrity adopted by the Committee for this purpose are set out in paragraphs 24 and 44 below. [Footnotes omitted.] 29   See UNESCO Doc. WHC-​96/​CONF.201/​INF.8 (note 27) p. 2. However, this proposal of the Parc national de la Vanoise experts was not followed by the 1997 version of the Operational Guidelines (available at http://​whc.une​sco.org/​arch​ive/​opguid​e97.pdf, accessed 29 December 2021), where the text of para. 6(i) remained unchanged with respect to the previous version of the Guidelines.

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an international viewpoint. It is not to be assumed that a property of national and/​ or regional importance will automatically be inscribed on the World Heritage List.’30 This implies, as emphasized by ICOMOS, ‘that there will always be important sites that are not inscribed on the List’.31

VII.  Conclusion: Is the Presence of Article 12 in the Text of the Convention Necessary? As previously noted,32 during the negotiations for the Convention on the Safeguarding of Intangible Cultural Heritage it was decided that draft Article 12 (which reproduced in a quasi-​identical fashion the text of Art. 12 of the World Heritage Convention) had to be deleted, on account of its presumed redundancy. Leaving aside any consideration concerning the concealed reasons which persuaded the majority of delegations to support that decision,33 the doubt arises as to whether the presence of Article 12 in the World Heritage Convention is to be considered as really necessary, as the structure of the Intangible Heritage Convention is, in substance, the same as the 1972 World Heritage Convention. This raises the issue of whether the principle expressed by Article 12 could be implicitly deduced, even in the absence of such a provision, by other articles and/​or the spirit and purpose of the Convention. It is not easy to resolve this question objectively. In principle, the fact that not only inscribed properties fall within the scope of the Convention could most probably be deduced even without the presence of Article 12 in the Convention text. Articles 4, 5, and 6 (paras 1 and 3) refer in fact to a general concept of cultural and natural heritage which is in no way linked to its possible inscription on the World Heritage List or on the List of World Heritage in Danger. Article 4, in particular, is applicable to the cultural and natural properties referred to in Articles 1 and 2, which are thus to be qualified on the basis of objective criteria (i.e. the circumstance that they are of ‘outstanding universal value’), and not on their possible inscription on one of the two lists contemplated by Article 11 as a constitutive condition for their status as heritage deserving protection within the scope of the Convention. In more general terms, Article 5 refers to ‘the cultural and natural heritage situated on [the] territory’ of each State Party (without limiting itself to the heritage referred to in Arts 1 and 2), appearing to go even beyond the definitions provided by Articles 1 and 2 and, a fortiori, the scope of Article 4. As for Article 6, concerning international protection, its paragraphs 1 and 3 also refer to the cultural and natural heritage as resulting from the definitions laid down by Articles 1 and 2, thus implying that the obligations provided for by such paragraphs are to be fulfilled with respect to all properties satisfying the objective criteria established by this definition, irrespective of the fact that they are included or not in either list. Having said this, it is, however, to be stressed that the actual scope of operation in the real world of an international treaty (or any other legal instrument) is actually defined 30   See the version of the Operational Guidelines current at the time of writing, last amended in 2021, UNESCO Doc. WHC.21/​01, of 31 July 2021, available at https://​whc.une​sco.org/​en/​gui​deli​nes/​ (accessed 29 December 2021), para. 52. 31   See Progress Report by ICOMOS, March 2007, in World Heritage Committee, Thirty-​first Session, Christchurch, New Zealand, 23 June–​2 July 2007, ‘Item 9 of the Provisional Agenda: Discussion on the outstanding universal value’, UNESCO Doc. WHC-​07/​31.COM/​9, of 23 May 2007, p. 18. 32 33   See text following note 4.  ibid.

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by its application in practice, which may not precisely correspond with what would in theory result from the objective exegesis of its provisions considered in the light of the object and purpose of the treaty concerned. In other words, the ‘living substance’ of a legal instrument is sometimes significantly different from its written content. In the case of the World Heritage Convention, it is not a mystery that, even with the presence of Article 12, the Convention is concretely and effectively implemented only with regard to the properties inscribed on the World Heritage List and/​or on the List of World Heritage in Danger, and effective protection is granted almost exclusively to such properties. Thus, with this univocal practice in mind, one may assume that today, if Article 12 were not included in the Convention text, the question of whether non-​inscribed properties would also deserve protection pursuant to the Convention would probably be resolved in negative terms. For that reason, the presence of Article 12 in the Convention text is to be considered essential, because it keeps the idea alive that the regime established by the Convention is not applicable only to inscribed properties and that non-​inscribed properties also deserve protection according to the Convention. The translation of this idea into concrete terms implies that, due to the existence of Article 12, the obligations that arise from the Convention may be invoked when an act at odds with the spirit and the purpose of the Convention itself is perpetrated or even simply planned to the prejudice of a cultural or natural property of great importance for humanity, even in the event that such property is not inscribed on the World Heritage List or on the List of World Heritage in Danger.

Federico Lenzerini

Article 13: World Heritage Committee and International Assistance Ana Filipa Vrdoljak *

1. The World Heritage Committee shall receive and study requests for international assistance formulated by States Parties to this Convention with respect to property forming part of the cultural or natural heritage, situated in their territories, and included or potentially suitable for inclusion in the lists mentioned referred to in paragraphs 2 and 4 of Article 11. The purpose of such requests may be to secure the protection, conservation, presentation or rehabilitation of such property. 2. Requests for international assistance under paragraph 1 of this article may also be concerned with identification of cultural or natural property defined in Articles 1 and 2, when preliminary investigations have shown that further inquiries would be justified. 3. The Committee shall decide on the action to be taken with regard to these requests, determine where appropriate, the nature and extent of its assistance, and authorize the conclusion, on its behalf, of the necessary arrangements with the government concerned. 4. The Committee shall determine an order of priorities for its operations. It shall in so doing bear in mind the respective importance for the world cultural and natural heritage of the property requiring protection, the need to give international assistance to the property most representative of a natural environment or of the genius and the history of the peoples of the world, the urgency of the work to be done, the resources available to the States on whose territory the threatened property is situated and in particular the extent to which they are able to safeguard such property by their own means. 5. The Committee shall draw up, keep up to date and publicize a list of property for which international assistance has been granted. 6. The Committee shall decide on the use of the resources of the Fund established under Article 15 of this Convention. It shall seek ways of increasing these resources and shall take all useful steps to this end. 7. The Committee shall co-​operate with international and national governmental and non-​ governmental organizations having objectives similar to those of this Convention. For the implementation of its programmes and projects, the Committee may call on such organizations, particularly the International Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre), the International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature and Natural Resources (IUCN), as well as on public and private bodies and individuals. 8. Decisions of the Committee shall be taken by a majority of two-​thirds of its members present and voting. A majority of the members of the Committee shall constitute a quorum.

*  UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney.

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Ana Filipa Vrdoljak I. Introduction  II. International Assistance in the Context of the World Heritage Convention  A. Rationale  B. Relationship Between UNESCO and the World Heritage Organs  III. Powers to Receive Requests  IV. Powers to Determine Requests and the Order of Priorities  A. Power to decide what action is to be taken  B. Nature and extent of grants  C. Order of priorities for its operations  D. Power to make necessary arrangements with government concerned  V. Lists of Grants  VI. World Heritage Fund and Fundraising  VII. Cooperation with Other Organizations, Bodies, and Individuals  VIII. Conclusion 

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I. Introduction The core framework created by the World Heritage Convention which originally defined it as innovative and successful is made up of three elements: international assistance, the World Heritage Fund, and the World Heritage Committee. While the World Heritage List raises the profile of the properties in the public eye, the financial and technical support potentially accessible through international assistance is intended to promote their conservation, the central objective of the Convention. The establishment, operation, and viability of international assistance is only possible through the effective working of the Committee and the sustainability of the Fund. Each has come under increasing scrutiny in recent years. This chapter covers Article 13, which serves as the intersection of these three defining elements of the World Heritage framework. Located within Part III of the Convention, this provision outlines the role of the Committee in realizing the purposes of the Convention through the granting of international assistance and management of the Fund. The conditions concerning requests and grants for and types of international assistance are defined in Articles 19–​26 of Part IV (see the commentary on Arts 19–​26 by Lenzerini). The workings of the Fund are regulated by in Part V by Articles 15 and 16 (see the commentary on Arts 15–​18 by Lenzerini). While certain provisions contained in Article 13 read independently provide a broader notion of the powers bestowed on the Committee, this chapter is delimited by the placement of Article 13 within Part III of the Convention entitled the ‘Intergovernmental Committee for the Protection of World Cultural and Natural Heritage’. The Part articulates the composition, work method, and powers of the Committee. Accordingly, Article 13 as a whole can be read as defining the Committee’s policy and decision-​making role in respect of international assistance. The references to the Fund and the Advisory Bodies are to be read in the context of this role as defined by the provision. Nonetheless, Article 13 and Part IV cannot be read in isolation. Thus, implementation by the Committee must be informed by the Convention as a whole, particularly the purposes intimated in the Ana Filipa Vrdoljak

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Preamble, and the cross-​references to related provisions contained in Parts IV (Fund) and V (International Assistance). This commentary focuses on the powers granted to the Committee in respect of international assistance and the Fund. First, there is an examination of the rationale for international assistance as it evolved from the negotiations leading up to the final text of the Convention to the recent evaluations of grants provided from 1978 to date. Secondly, the parameters of the Committee’s power to receive requests for international assistance are considered. Next, the Committee’s power to determine the outcome of requests and to set the order of priorities of its operations is examined. Then, the requirement that the Committee maintain and publicize a list of successful grants for international assistance is briefly outlined. Following this, the Committee’s power in respect of the Fund and fundraising is explained in the context of its role in international assistance and the increasingly depleting resources of the Fund. Finally, the power of the Committee to cooperate with international and national governmental and NGOs, public and private bodies, and individuals in the realization of its programmes and projects is considering a critical examination of the role of the Advisory Bodies.

II.  International Assistance in the Context of the World Heritage Convention The World Heritage Committee can be seen as the executive body of the institutional framework established by the Convention and related documents. Part III of the Convention lays down the binding policy and decision-​making powers with which this organ is endowed. Article 13 defines the role in respect of granting international assistance and the use of the World Heritage Fund. To uphold the legitimacy of the World Heritage framework and the Committee, its function must be carried out in accordance with its constitutive instrument (i.e. the Convention) and established rules of procedure.1 As explained later, this has not always been straightforward. The intertwining of the World Heritage framework with the institutional structure of UNESCO has led to disputes concerning decision-​making powers and the hierarchy between organs, which are exacerbated as the financial resources of UNESCO and the World Heritage framework become increasingly stretched. Nonetheless, the Convention and the rationales for international cooperation must be a constant guide for the Committee’s decision-making in respect of international assistance.

A. Rationale The earliest proposals for the World Heritage Convention emphasized the need for international cooperation for the protection and preservation of sites of universal value when the relevant country in which it was located was unable to do so.2 At the 14th session of the UNESCO General Conference, the Director-​General was requested to undertake 1   Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Rules of Procedure, adopted at its first session (Paris, 1977), and as amended to 2015, Doc. WHC-​2015/​5 (Committee Rules of Procedure), in UNESCO World Heritage Centre, Basic Texts of the 1972 World Heritage Convention (2021) p. 25. 2  Report of the 16th session of the World Heritage Committee, 14 December 1992, Doc. WHC-​92/​ CONF.002/​12, Annex: Speech by Russell E. Train, Chair of the World Wildlife Fund.

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a study of ‘arranging an appropriate system of international protection at the request of the States concerned, for a few of the monuments that form an integral part of the cultural heritage of mankind’.3 These efforts quickly gained momentum following the international forces marshalled to alleviate the damage sustained by cultural sites in Venice and Florence because of significant flooding in late 1966, and the submersion of Abu Simbel necessitated by the construction of the Aswan Dam in Egypt. The travaux préparatoires record that this system of ‘international charity’ needed to be replaced by one based on ‘world-​wide international solidarity’.4 It noted that: [T]‌o provide international protection, the international authority can regulate these problems by international convention, establish such institutions as appear necessary and determine the assistance which it can give to States and the conditions under which it will be granted. Although both States and the international community have duties in regard to these monuments, groups of building and sites, the extent and subject and their responsibility are not the same in the two cases.5

The final text of the Convention’s Preamble captures the rationale and aims of the instrument. It states that due to a lack of resources at the national level, the protection of heritage by states can be ‘incomplete’; therefore, because of the scale and gravity of the threats posed to heritage of outstanding universal value, the international community would grant ‘collective assistance’ which would not take ‘the place of action by the State concerned, [but] will serve as an effective complement thereto . . .’6 The initial Operational Guidelines for the Implementation of the World Heritage Convention adopted by the Committee at its first session in 1977, stated again that ‘world heritage is now being impaired and lost everywhere at an alarming rate’ and that to ‘ensure as far as possible the proper identification, protection, preservation and presentation of the world’s most significant heritage’ the Convention was adopted by UNESCO member states.7 It noted that the instrument ‘complements and in no way competes with heritage conservation programmes at the national level, [and] provides for the establishment of a World Heritage Committee and a World Heritage Fund’.8 Elaborating upon the ‘immense’ responsibilities bestowed on the Committee, the Guidelines observed there was ‘no more worthwhile task than an endeavour, on behalf of the peoples of the world, to assist the States in protecting for future generations those cultural and natural properties, which are of outstanding universal value’.9 At the first session of the Committee, it was noted that the Convention provides that as a ‘general rule’ the international community should only make a contribution, with the recipient state contributing the substantial share, where possible.10 Similarly, the Operational Guidelines adopted in 2021 state that international assistance is intended to be ‘supplementary’ to national conservation   Res. 3.3411 adopted by the General Conference at its 14th session.   International Instruments for the Protection of Monuments, Groups of Buildings and Sites, Preliminary Report, 30 June 1971, Doc. SHC/​MD/​17, para. 19. 5   Doc. SHC/​MD/​17, para. 21. 6   Third and seventh recitals, Preamble of the Convention concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, in force 17 December 1975, 1037 UNTS 151, and 11 ILM 1358 (1972) (hereinafter WHC), in UNESCO, Basic Texts (note 1) p. 1. 7   Operational Guidelines for the Implementation of the World Heritage Convention adopted by the World Heritage Committee at its first session, 20 October 1977, Doc. CC-​77/​CONF.001/​8 Rev, paras 1 and 2 (hereinafter 1977 OG), in UNESCO, Basic Texts (note 1) p. 51. 8   ibid, para. 2.    9  ibid, para. 4. 10   Issues arising in connection with the implementation of the World Heritage Committee, 9 June 1977, Doc. CC-​77/​CONF.001/​4, para. 40. 3 4

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and management of World Heritage and tentative list properties, when ‘adequate resources’ cannot be marshalled domestically.11 Yet, as explained later, the application of international assistance, particularly as it intersects with the operation of the List of World Heritage in Danger, has been one of the junctures exposing the ‘dialectical relationship’ between respect for state sovereignty and effective international action.12 In endeavouring to ‘find a proper balance’ between the two in the Convention, the Committee has observed that the States Parties agreed to circumscribe the exercise of their sovereignty to achieve the Convention’s objectives—​the recognition of certain properties as being of ‘outstanding universal value’ and their safeguarding, if necessary, by ‘appropriate international action’.13 However, the increasing politicization of the Committee in recent decades has led to a greater deference to state sovereignty.

B.  Relationship Between UNESCO and the World Heritage Organs Within the institutional framework established by the World Heritage Convention, and in respect of Article 13 in particular, the World Heritage Committee must strike a ‘proper balance’ when determining requests for international assistance, and distributing the Fund. However, from time to time, there have been disputes about the subordination of its powers within the UNESCO organizational hierarchy. UNESCO’s General Conference sponsors and adopts international instruments pursuant to Article IV.4 of its Constitution.14 It adopted the World Heritage Convention on 16 November 1972 during its 17th session. Article 8.1 of the Convention states that the Committee is ‘hereby established within UNESCO’. However, while the UNESCO General Conference and the Executive Board can make requests to the World Heritage Committee, its primary obligation to them is the provision of a report of its activities at the ordinary session of the General Conference (Art. 29.3).15 Even if the Convention was adopted by the UNESCO General Conference, and there is institutional cross-​fertilization envisaged by the World Heritage Convention, it remains simply a treaty. Like any other treaty, the Convention does not bind states which have not formally consented to be bound by it (unless it has become customary international law in whole or part),16 nor are non-​parties bound by decisions of the General Assembly of States Parties to the Convention or the World Heritage Committee. Similarly, the UNESCO Constitution is a multilateral agreement, and the decisions of the UNESCO General Conference, Executive Board, or Secretariat cannot bind countries which are not 11   Para. 233, Part VII.C of the Operational Guidelines for the Implementation of the World Heritage Convention, Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Paris, 31 July 2021, Doc. WHC.21/​01 (hereinafter 2021 OG). 12   Legal Considerations concerning the Inscription of Properties on the List of World Heritage in Danger and the Deletion of Properties from the World Heritage List, 24 May 2002, Doc. WHC-​02/​CONF.202/​8, para. 3. 13   ibid, para. 34. 14  Constitution of the United Nations Education, Scientific and Cultural Organisation, London, 16 November 1945, in force 4 November 1946, 4 UNTS 275 (as amended) (UNESCO Constitution), reprinted in UNESCO, Basic Texts (revised edn, 2020) p. 5. 15   Discussion on the Relationship between the World Heritage Committee and UNESCO, 4 June 2002, Doc. WHC-​02/​CONF.202/​12, para. 29. 16   Arts 11 and 38 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (VCLT).

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member states. In this sense, they are of equal hierarchical value. Francesco Francioni, as chair of the World Heritage Committee in 1997 noted: ‘[The Committee’s] relation to the General Conference is one of co-​operation and co-​ordination between institutions of equal standing . . .’17 However, States Parties have raised the need to more clearly delineate the powers of the Committee and the various organs of UNESCO in respect of World Heritage protection.18 This complexity has become pronounced as the Fund has continued to struggle to meet the demands for international assistance, and with the operating costs of the World Heritage framework becoming ever more reliant on funding from UNESCO and sources other than States Parties’ contributions.19 Nonetheless, as explained later, the Committee has resisted recommendations by evaluations instigated by the Organization to ameliorate the current financial situation. That said, in respect of deciding requests for international assistance under the Convention and the dispersal of resources from the Fund, Article 13 of the Convention explicitly endows the Committee with such powers.

III.  Power to Receive Requests Article 13.1 states that the purpose of requests for international assistance ‘may be to ensure the protection, conservation, presentation or rehabilitation’ of property for which it is sought. These terms appear at various points throughout the Convention, including Articles 5 (covering the obligations of states), 22 (concerning forms of international assistance), 23 (international assistance to non-​State Parties), and 24 (studies for large-​scale international assistance). The Operational Guidelines use the same words in respect of the periodic reporting requirements of States Parties.20 Neither the Convention nor the Operational Guidelines provide any further guidance on the interpretation to be placed on these terms beyond their ordinary meaning,21 although the Committee has more recently emphasized conservation as the objective of the Convention in addressing the operation of international assistance.22 Article 13 empowers the Committee to receive and consider requests for international assistance for properties included or having the potential to be included on the World Heritage List (Art. 11.2) or the List of World Heritage in Danger (Art. 11.4). It may also consider requests concerning the identification of property falling within the definition contained in Articles 1 and 2 when ‘preliminary investigations’ indicate that further research is warranted. This position accords with Article 20, which provides that international assistance may be requested for sites which the Committee has listed or may decide to inscribe on either List. Therefore, a request for international assistance can be received and studied by the Committee for a site which is not included on either List, provided (implicitly) that it is of such outstanding universal value to warrant its listing at a later date. This interpretation is in keeping with the wording of the Convention and the subsequent practice of the Committee, including the Operational Guidelines. For   Report of the World Heritage Committee, 1997, Doc. WHC-​97/​CONF.208/​17, para. XII.11, p. 59.   Doc. WHC-​02/​CONF.202/​INF.15, para. 14 (Chilean delegate). 19   The budget dedicated to the operational costs of the Convention is roughly equivalent to the budget for the other culture Conventions combined: Draft Programme and Budget 2022–​2025, 41C/​5 Draft, p. 148. 20   Format for the Periodic Reporting on the Application of the World Heritage Convention, Annex 7, para. 7, 2021 OG. 21 22   Art. 31 VCLT.   Decision 40 COM 15, para. 12. 17 18

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instance, preparatory assistance for the purpose of formulating nominations and tentative lists has consistently been defined by the Committee as a type of international assistance.23 Article 13 of the Convention indicates that a State Party must make the request for international assistance for property within its territory. This is reaffirmed by Article 19. Furthermore, the application form for international assistance must be signed by the relevant National Commission for UNESCO, Permanent Delegation to UNESCO, or appropriate government department or ministry.24 This requirement is consistent with the rationale of the Convention, discussed earlier. The Convention and subsequent practice defer to state sovereignty because, in practice, without the cooperation of the territorial state any international assistance would have limited value.25 Nevertheless, by consenting to be bound by the Convention, a State Party has voluntarily circumscribed its sovereignty by agreeing to pursue the instrument’s objectives and be bound by its obligations. Given the erga omnes partes nature of the obligations in the Convention, the Committee may arguably refuse to approve a request for international assistance in response to the transgression of treaty obligations.26 This legal position explains the stance taken by the Committee in refusing to consider requests for international assistance made by a State Party that is in arrears in paying its compulsory or voluntary contributions to the Fund.27 However, to apply this sanction when the site in question is facing imminent danger would be contrary to the object and purpose of the Convention. Therefore, the Committee has decided that this position does not apply to requests for emergency assistance.28 However, the requirement that a State Party on whose territory the property is located is the only entity able to make a request for international assistance under the Convention is qualified in at least three respects. First, Article 23 provides that national and regional centres for training staff and specialists may be provided with international assistance. Non-​state actors—​in particular, advisory bodies namely the International Union for Conservation of Nature and Natural Resources (IUCN), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), and various universities and research institutes—​have applied for and received international assistance under the Convention.29 Secondly, a request for assistance is generally a prerequisite for the inclusion of a property on the List of World Heritage in Danger (Art. 11.4). The relationship between this prerequisite and international assistance was elaborated upon by the Committee during its deliberations on the power to include properties on that List without the consent of the territorial state. The UNESCO Legal Adviser stated that the condition would be fulfilled   Art. 31.3 VCLT; and Summary Table, para. 241, Part VII.E, 2021 OG.   Para. 244, Part VII.F and Annex 8, 2021 OG. Cf. Art. 11.4 WHC concerning the nomination of properties for the List of World Heritage in Danger which is silent on this point: Doc. WHC-​02/​CONF.202/​8, para. 36. 25   e.g. in respect of the unsuccessful efforts to prevent the destruction of the Bamiyan Buddhas by the Taliban in Afghanistan, see F. Francioni and F. Lenzerini, ‘The Obligation to Prevent and Avoid Destruction of Cultural Heritage: From Bamiyan to Iraq’, in B. Hoffman (ed.) Art and Cultural Heritage: Law, Policy and Practice (Cambridge University Press, Cambridge, 2006) pp. 28–​40. 26   Doc. WHC-​02/​CONF.202/​8, para. 80. 27 28   Para. 237, Part VII.D, 2021 OG; and Decision 13 COM XII 34.  ibid. 29  Information on the Evaluation of the World Heritage Fund’s Preparatory Assistance, Technical Cooperation, Training, and Promotional and Educational Activities, 30 June 2005, Doc. WHC-​05/​29.COM/​ 14B, pp. 8 and 27. 23 24

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by a request for international assistance, but that it did not have to take that form.30 He added that: ‘[F]‌rom a literal and contextual interpretation of the Convention . . . the assistance must have been requested by the State Party’, although the Convention ‘does not expressly exclude the possibility of a request for assistance from another entity’.31 The IUCN noted that the Operational Guidelines indicated that a request could ‘come from “any Committee member or the Secretariat” ’.32 The Belgian delegate agreed with this interpretation since it was ‘in conformity with the evolving trends of international law’ and ‘the issues at stake also have implications in the field of human rights and environmental law’.33 Thirdly, following reforms over the last two decades, the Committee has moved towards international assistance, driven largely by requests for a programmatic approach to maximize the impact of the limited resources of the Fund. Regions (and their related properties) benefit from these programmes even if the relevant territorial states have not requested (or cannot request) the international assistance themselves.

IV.  Power to Determine Requests and the Order of Priorities The Committee is empowered to decide what action, if any, is taken concerning requests for international assistance under the Convention using the resources of the World Heritage Fund (Art. 13.3). This power includes determining the nature and extent of the assistance, authorizing the finalization of arrangements for implementation of international assistance (with the relevant government on its behalf ), and setting the order of priorities for its operations (Art. 13.4).

A.  Power to decide what action is to be taken The decision of the Committee when exercising its powers in respect of international assistance must be made by a two-​third majority of its members present and voting (Art. 13.8). As detailed in the Operational Guidelines, the Committee has delegated its decision-​making power in respect of certain applications for international assistance.34 Currently, requests for all forms of international assistance up to US$5,000 can made to and approved by the Director of the World Heritage Centre at any time. The Chairperson of the Committee can approve applications for assistance for emergency assistance for US$5,000–​75,000, preparatory assistance and most forms of conservation and management assistance for US$5,000–​30,000, and international, regional, and national meetings and educational programmes for US$5,000–​10,000. The Chairperson cannot authorize requests made by their own country.35 Requests for conservation and management 30   Doc. WHC-​02/​CONF.202/​8, para. 37. Concerning the temporal requirement for the submission, the Legal Advisor noted that the request should be made within a reasonable time frame before inscription on the List but that, in practice, the Committee has accepted requests at the time of inscription: para. 39. He incorrectly cited Art. 22 WHC as setting the time frame for requests. 31   ibid, para. 36. 32  IUCN, Draft Operational Guidelines, Analysis of the Legal Issues: Responding to the 2nd Draft Operational Guidelines and Issues Raised during the Drafting Group of October 2001, Doc. WHC.02/​ CONF.202/​INF.12, p. 8. 33   Summary Record of the Committee’s deliberations of Doc. WHC-​02/​CONF.202/​8, in Doc. WHC-​02/​ CONF.202/​INF.15, para. 12. 34 35   Summary Table, para. 241, Part VII.E, 2021 OG.   Para. 253, Part VII.G, 2021 OG.

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assistance (excluding meetings and educational programmes) over US$30,000 must be determined by the Committee.36 These latter, larger sum requests are subject to an annual submission deadline. The Committee examines a report on international assistance requests, makes a determination where required, and adopts a related decision at its annual meetings. Following the evaluations of international assistance in the early 2000s designed to make the application more rigorous and systematic,37 all requests for international assistance are initially evaluated by the Secretariat, with emergency assistance applications to be processed within ten days of submission. A panel with a representative from the World Heritage Centre Regional Desks and Advisory Bodies, with the Committee’s Chairperson (or their designated observer) meets one or twice a year to examine requests exceeding US$5,000 (except emergency-​assistance applications) in order to make recommendations to the Chairperson or the Committee.38 Requests exceeding US$30,000 require the assessment of one of the Advisory Bodies, with the Secretariat able to request assistance from those bodies in assessing requests below that sum.39

B.  Nature and extent of grants The nature (or types) and extent (or budget ceilings) of grants for international assistance referred to in Article 13.3 are enumerated in the Operational Guidelines approved by the Committee in 2021.40 The types of international assistance, based on Articles 21 and 22 (see the commentary on Arts 19–​26 by Lenzerini), have been consolidated into the following categories: • Emergency assistance—​for actual or potential threats to properties on the World Heritage List or List of World Heritage in Danger which have suffered severe damage or are in imminent danger of such damage caused by ‘sudden, unexpected phenomena’. There is a maximum limit of US$75,000 per property, with countries able to make applications for more than one property. • Preparatory assistance—​preparation or updating of tentative lists based on approved thematic advice, meetings to promote ‘geo-​cultural’ harmonization of tentative lists, preparation of properties for inscription, preparation of requests for conservation, and management assistance. The maximum being US$30,000. • Conservation and management assistance—​encompasses training of specialist staff and research assistance, technical cooperation assistance, including the establishment and reform of national heritage policies and laws, and promotion of education assistance and awareness raising at the international, regional, and national levels. Only educational assistance and awareness raising has an upper limit of US$10,000.41 Successive evaluations and related recommendations of international assistance in the 2000s led the Committee to reconfigure the nature and extent of its international   ibid. See Art. 13.8 WHC and Rule 37 Committee Rules of Procedure.   Doc. WHC-​05/​29.COM/​14B. 38   Para. 252, Part VII.G, 2021 OG; Decision 30 COM 14A, para. 7(d); Decision 36 COM 13.I; and Decision 43 COM 11A. 39   Para. 247, Part VII.G, 2021 OG. The Advisory Bodies must be consulted if the request specifically requires their involvement in the relevant project. 40   Summary Table, para. 241, Part VII.E, 2021 OG; and International Assistance Request Form, Annex 8, 2021 OG. 41   Doc. WHC-​07/​31.COM/​18B, paras 19–​20. 36 37

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assistance grant-​making towards a programmatic approach to maximize the impact of the dwindling value of the Fund and align it with the strategic objectives.42 There was a paucity of detail concerning the selection criteria for early international assistance requests, which was primarily determined on a ‘first come, first served’ basis.43 As part of reforms in the 2000s, the Advisory Bodies facilitated the drafting and inclusion of selection criteria in the Operational Guidelines to reinforce efforts to ensure that international assistance aligned with the strategic objectives and order of priorities set by the Committee.44 However, as explained later, the dwindling value of the Fund has thwarted those efforts considerable in recent years.

C.  Order of priorities for its operations Article 13.4 empowers the Committee to set an order of priorities for its operations in respect of international assistance. The provision stipulates that when defining these priorities the Committee should give due regard to the respective importance of the relevant property for world heritage; the need to provide international assistance to sites ‘most representative of a natural environment or of the genius and the history of the peoples of the world’; the urgency of the work to be undertaken; and the resources of the State Party on whose territory the property is located to safeguard the site itself. At its first session in 1977, the Secretariat advised the Committee that while -​the treaty provision ‘shall always prevail’, it may wish to ‘expand on the priorities established by the Convention by determining, as requested by the Convention, a more detailed order of priorities’.45 Successive evaluations have stressed that the setting of priorities for the operation of international assistance is ever more crucial because of the depleting budget available through the Fund.46 This, in turn, is exacerbated by the increasing number of States Parties to the World Heritage Convention and the exponential growth in the World Heritage List and, to a lesser extent, the List of World Heritage in Danger. The current Operational Guidelines provide the following order of priority: (1) emergency assistance; (2) conservation and management assistance; and (3) preparatory assistance.47 Emergency assistance remains the leading priority for the Committee 42   See Report on the Evaluation of International Assistance provided under the World Heritage Fund, 12 October 2000, Doc. WHC-​2000/​CONF.204/​16; Report of the Rapporteur on the 26th session of the Bureau of the World Heritage Committee, Doc. WHC-​02/​CONF 202/​2, para. IX 10, p. 7; UNESCO, ‘Investing in World Heritage: Past Achievements, Future Ambitions. A Guide to International Assistance’, World Heritage Papers No. 2 (2002), pp. 45 ff; Report of the Secretariat, Doc. WHC-​03/​27.COM/​5, p. 7; Progress Report on the Evaluation of World Heritage Fund Emergency Assistance, 17 June 2004, Doc. WHC-​04/​28.COM/​10B; Doc. WHC-​05/​29.COM/​14B, p. 26; Examination of the Recommendation on International Assistance, 23 June 2006, Doc. WHC-​06/​30.COM/​14A; Decision 25 COM 17 3; and Decision 30 COM 14A.

  Doc. WHC-​2000/​CONF.204/​16, pp. 2–​3.   Annex 9, 2021 OG; Decision 30 COM 14A, para. 7(e); and Decision 43 COM 11A. 45   Doc. CC-​77/​CONF.001/​4, para. 42. 46   UNESCO, ‘Investing in World Heritage’ (note 42) pp. 20–​21; Doc. WHC-​05/​29.COM/​14B, pp. 6–​8; Report of the execution of the budget for the biennium 2014–​2015 and preparation of the budget for the biennium 2016–​2017, 15 May 2015, Doc. WHC-​15/​39.COM/​15, Table of Evaluation of the World Heritage Fund Budget by Biennium (1978–​2015); and Presentation of the final accounts of the World Heritage Fund for 2018–​2019, report on the execution of the budget of the World Heritage Fund for the biennium 2002–​2021, budget proposal of the World Heritage Fund under the biennium 2022–​2023 and follow-​up on Decision 43 COM 14, 21 June 2021, Doc. WHC/​21/​44.COM/​14. 47   Para. 235, Part VII.C, 2021 OG. The order of priority between preparatory assistance and conservation and management assistance as reversed in 2012 following the recommendation 16 of Independent 43 44

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when determining grants for international assistance. The Convention and the Operational Guidelines give primacy to sites on the List of World Heritage in Danger.48 Unfortunately, despite its prioritization, the linking of emergency assistance to inscription on the List of World Heritage in Danger may be one of the reasons why allocation of emergency-​assistance funding has consistently lagged significantly behind that of the other two categories combined. The External Auditor noted in 2011 that ‘inscription is increasingly perceived, not as a means of mobilising international assistance for the conservation of the a site in accordance with the spirit and letter of the 1972 Convention, but as a stigmatic measure, “dishonourable” ’.49 In addition, the Committee also complies with the priorities established by its decisions (including those related to state of conservation reports) and regional programmes formulated in response to periodic reporting.50 Over and above these priorities, the Committee shall consider the following when making decisions on international assistance, several of which have been priorities since the first decade of the Convention’s operation:51 • whether the assistance is likely have a ‘catalytic and multiplier effect’ and precipitate funding and technical contributions from other sources;52 • when funding is limited, preference is given to requesting States Parties which are a least developed country or low-​income country according to ECOSOC’s Committee for Development Policy, a low-​to-​middle income county as defined by the World Bank, small island developing states (SIDS), or in post-​conflict situation;53 • the urgency of the protective measures to be undertaken; • the existence of legislative, administrative, and possible financial commitment from the recipient State Party for the activity;54 • the impact of the activity in furthering the revised Strategic Objectives set out in the Budapest Declaration on World Heritage including credibility, conservation, capacity-​ building, communication, and communities (the ‘5 Cs’),55 and other policies such as the Policy Document for the Integration of a Sustainable Development Perspective into the

Evaluation by the UNESCO External Auditor on the Implementation of the Global Strategy for a Credible, Representative and Balanced World Heritage List and the Partnerships for Conservation Initiative (PACT), 1 August 2011, Doc. WHC-​11/​18.GA/​INF.8, p. 49; Decision 36 COM.13I (2012), para. 8; and Examination of International Assistance Requests, 11 May 2012, Doc. WHC-​12/​36.COM/​ 14, pp. 10–​11. However, the allocation of resources between these was to remain balanced: para. 240, Part VII.D, 2021 OG. 48   Arts 11.4 and 21.2 WHC; para. 236, Part VII.D, 2021 OG; and Decision 41 COM 14, Roadmap for Sustainability of World Heritage Fund; and Decision 42 COM 14, Annex, Resource Mobilization and Communications Strategy Framework. The application form for international assistance amalgamates applications for emergency assistance into this one form for all types of international assistance: Annex 8, 2021 OG; and Decision 30 COM 7.2. The Committee has also asked the World Heritage Centre to verify that emergency assistance is used to address emergency situations strictly relating to the conservation of the relevant site: Decision 28 COM 10B; and para. 241, Part VII.E, 2021 OG. 49 50   WHC-​11/​18.GA/​INF.8, para. 130.   Para. 238, Part VII.D, 2021 OG. 51   ibid, para. 239. See Doc. CC-​77/​CONF.001/​4, paras 44–​46. 52   Doc. CC-​77/​CONF.001/​4, para. 43; Decision 30 COM 14A, para. 7(a); Doc. WHC-​2000/​CONF.204/​ 1, pp. 2–​3; and Doc. WHC-​05/​29.COM/​14B, p. 5. 53   Decision 30 COM 14A, para. 5(a); Decision 31 COM 18B, para. 4; Doc. WHC-​05/​29.COM/​14B, pp. 17, 25; and Reform of International Assistance, 10 May 2007, Doc. WHC-​07/​31.COM/​11B, paras 11–​14. 54 55   Art. 25, Part VI, WHC.   Decision 26 COM 9; and para. 26, 2021 OG.

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Processes of the World Heritage Convention (WH-​SDP)56 or Policy Document on the Impact of Climate Change on World Heritage Properties;57 • whether the activity responds to the needs highlighted through the reactive monitoring process or analysis of regional periodic reports;58 • the ‘exemplary’ value of the activity to scientific research and development of cost-​ effective conservation techniques; • the cost of the activity and the expected results; • the educational value for general public and training experts; and • the inclusive nature of the application, particularly in respect of gender equality and indigenous peoples and local communities.59 Priority is also internally indicated in respect of requests for preparatory assistance to avoid and facilitate up-​streaming,60 and funding ‘nomination files with little/​no chances of success’.61 The current order of priority being: preparation or updating of tentative lists, regional meetings for harmonization of tentative lists within a geo-​cultural area, preparation of nominations for inscription on the World Heritage List, and preparation of conservation and management requests for the Committee. Setting priorities for international assistance was initially rendered difficult due to the lack of data collected on the implementation of international assistance in order to assess outcomes and trends.62 In the last decade, the Committee has increasingly been able to adapt the order of priorities and decisions concerning international assistance based on data collected from the periodic reports provided by States Parties and the reactive monitoring reports prepared by the World Heritage Centre and Advisory Bodies.63 This shift has further reinforced the move from ad hoc decision making driven by requests to an emphasis on a programmatic approach to international assistance. The strategic aims of the Committee can potentially create conflicts with the limited resources of the Fund, which must necessarily (but are not always) be resolved by setting priorities for international assistance. For example, the Budapest Declaration on World Heritage adopted at the 30th anniversary of the Convention was designed to promote the uptake of the Convention and development of a more representative List.64 The funds

56   Draft Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention (hereinafter WH-​SDP), 6 November 2015, Doc. WHC-​15/​20.GA/​INF.13, adopted by Res. 20 GA 13. 57   Policy Document on the Impacts of Climate Change on World Heritage Properties, 28 September 2007, Doc. WHC-​07/​16.GA/​10, adopted by Res. 16 GA 10. At the time of writing, the revised policy document was being finalized. 58 59   Decision 20 COM XII.   WH-​SDP (note 56). 60   Examination of International Assistance, 2 June 2017, Doc. WHC/​17/​41.COM/​13, paras 9–​12; and Progress Report on the reflection concerning the Upstream Processes, 2 June 2017, Doc. WHC-​17/​41COM/​ 9A. 61   Summary Table, para. 241, Part VII.E, 2021 OG. See Decision 36 COM 13.I, para. 8; and Examination of International Assistance Requests, 11 May 2012, Doc. WHC-​ 12/​ 36/​ COM/​ 14, paras 13–​ 17. Cf. Examination of International Assistance Requests, 3 May 2013, Doc. WHC-​13-​37.COM/​14, Annex: Analysis of Preparation Assistance Granted for Preparation of Nomination Files. 62   The 2005 evaluation found there was little or no tracking or assessment of the implementation of international assistance: Doc. WHC-​05/​29.COM/​14B, pp. 18–​19. 63   Decisions 26 COM 17.2, 26 COM 20, and 26 COM 25.3; and UNESCO, ‘Investing in World Heritage’ (note 42) pp. 46–​47. 64   The Budapest Declaration on World Heritage, 6 May 2002, Doc. WHC-​02/​CONF.202/​5; and Decision CONF 202 9.

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earmarked for preparatory assistance were oversubscribed by the following year65 and a subsequent evaluation found that the emphasis on preparatory assistance was detrimental to conservation efforts, concluding that the promotion of inscription of new properties ‘without means to support them later can be seen as less than responsible’.66 A more recent illustration, detailed later, relating to efforts to strengthen the rigour and depoliticization of the international assistance process has led to an increasing role for the Advisory Bodies with a significant financial impact on the Fund and its overall sustainability.

D.  Power to make necessary arrangements with government concerned Article 13.3 empowers the Committee to authorize the conclusion, on its behalf, of necessary arrangements for the implementation of international assistance grants with the government of the requesting State Party. The Committee has decided that agreements are to be finalized between UNESCO and the relevant State Party, or its representative, to implement the approved international assistance grant in compliance with the work plan and budget breakdown (contained in the original request), and UNESCO regulations.67

V.  List of Grants The Convention requires the Committee to create, update, and publicize a list of properties that have been granted international assistance (Art. 13.5).68 The list is incorporated in the Committee’s report following its annual meeting.69 A digital database on international assistance was created to align with the application and approval processes and with differing levels of accessibility, following the recommendations of the evaluations in the 2000s.70 The availability of this information aids States Parties in preparing requests for international assistance and provides a measure of transparency in the decision-​making process. The Operational Guidelines indicate that implementation of grants for international assistance will be monitored and evaluated within three months of completion of the activities.71 Evaluations of international assistance grants are to be collated and kept by the Secretariat (together with the Advisory Bodies) and examined by the Committee on a regular basis.72 The digital database, which draws on information provided in the

66   Doc. WHC-​05/​29.COM/​14B, p. 9.   ibid, p. 20.   Para. 255, Part VII.H, 2021 OG; Art. 26, Part VI, WHC; and UNESCO Financial Regulations, adopted 6C/​Resolutions, pp. 53–​54, 59, 67–​67, and as revised to 38 C/​Resolutions, p. 69, in UNESCO, Basic Texts (note 14) p. 97. 68   The Secretariat noted the overlap between the International Assistance List and the List of World Heritage in Danger in the Committee’s first session: Doc. CC-​77/​CONF.001/​4, para. 48. 69  The World Heritage Centre has kept an internal database of international assistance grants since 1998: Examination of the Recommendation on International Assistance, Part II: Analysis of Procedures and Technical Issues and Recommendations for Tools to Strengthen International Assistance Procedures, 23 June 2006, Doc. WHC-​06/​30.COM/​14A, para. 84. However, evaluations have described the early data on international assistance grants as pauce: Doc. WHC-​05/​29.COM/​14B, p. 6. 70  International Assistance, Part I: Update on the new database on International Assistance, 11 May 2009, Doc. WHC-​09/​33.COM/​INF.15, p. 2. States Parties, World Heritage Centre staff, Advisory Bodies, UNESCO Regional Offices, the Committee, and Chairperson can access the database, with the general public having restricted access: Doc. WHC-​07/​31.COM/​18B, paras 7–​8. 71   Para. 256, Part VII.I, 2021 OG. 72   ibid, paras 256–​266. The 2005 Evaluation found that World Heritage regional desks monitored contracts and retained final reports but there were no accountability requirements placed on States Parties nor where they required to monitor the grant activities: Doc. WHC-​05/​29.COM/​14B, p. 18. 65 67

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international assistance applications and existing tools used by the World Heritage Centre, is created to track implementation.73 The international assistance request form annexed to the Operational Guidelines is likewise designed to make the international assistance process ‘more efficient and results-oriented’.74 It covers project aims, implementation measures, outcomes, and impact assessed by specific indicators; details of the evaluation criteria to be used by the Advisory Bodies; reporting requirements, field supervision visits, and summaries of outcomes at the completion of activities; and explanatory notes to aid applicants in completing the form.75 The rationale for strengthening the evaluations of the implementation of international assistance grants is that it enables the Committee to pursue a ‘results-​based approach’ for dispersal of the Fund’s ever limited resources.76 It is important to note that publicly available information on the international assistance process is limited compared to the Committee’s other functions. This is problematic given that funding for World Heritage properties is increasingly derived from sources other than compulsory contributions from States Parties; the ratione materiae of the Convention is by definition of importance to all humanity; and access to and assessment of the data by persons independent of the Committee, the Advisory Bodies, and UNESCO would further aid transparency, accountability, and the integrity and viability of international assistance. Instead, publicly available information on international assistance on the World Heritage Centre website is increasingly being geared towards fundraising efforts to address the consistent shortfall of the Fund in fulfilling approved requests.77

VI.  World Heritage Fund and Fundraising The World Heritage Fund is the primary source by which international assistance under the Convention is financed.78 Pursuant to Article 13.6, the Committee is empowered to decide how the resources of the Fund are distributed and utilized.79 The UNESCO General Conference adopts this budget, following the recommendation of the Executive Board, and the General Assembly of States Parties to the World Heritage Convention takes note of the accounts submitted by the Director-​General.80 73   Doc. WHC-​07/​31.COM/​18B, para. 7. The existing tools used by the World Heritage Centre relate to contributions to the Fund, tentative lists, World Heritage List, List of World Heritage in Danger, State of Conservation reports, Committee Decisions, working documents, and UNESCO’s financial management system. See International Assistance, Part I: Update on the new database on International Assistance, 11 May 2009, Doc. WHC-​09/​33.COM/​INF.15 reiterating concerns about accessibility and ensuring the integrity of data. 74   Doc. WHC-​07/​31.COM/​18B, para. 3 and Annex I. 75   Decision 30 COM 14A, para. 7; and Decision 31 COM 18B, para. 5(a). See Doc. WHC-​06/​30.COM/​ 14A, pp. 17 ff; and Doc. WHC-​07/​31.COM/​18B, paras 3–​6, and Annex II. 76   Para. 257, Part VII.I, 2021 OG; Decision 30 COM 14A, para. 6(a), and Doc. WHC-​07/​31.COM/​18B, paras 9–​10 and Annex III. 77   Report on the execution of the budget for the biennium 2016–​2017 and preparation of the budget for the biennium 2018–​2019, 2 June 2017, Doc. WHC/​17/​41.COM/​14, para. 57. 78   Para. 234, Part VII.C, 2021 OG. 79   In conformity with the Financial Regulations of the World Heritage Fund, WHC/​7, available at http://​ whc.une​sco.org/​en/​finan​cial​regu​lati​ons; and the Financial Regulations of UNESCO, adopted at the General Conference at its 6th session, 1951, 6 C/​Resolutions, pp. 53–​54 and 67–​72, and last amended at the 38th session, 38 C/​Resolution, p. 69, and reprinted in UNESCO, Basic Texts (note 14) pp. 97 ff. See Doc. CC-​77/​ CONF.001/​4, para. 54. 80   See Arts 3.4, 3.7, and 6.6 of UNESCO Financial Regulations (note 14); and Art. 6.4 of the Financial Regulations of the World Heritage Fund, in UNESCO, Basic Texts (note 1) p. 47.

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The Committee determines the budget for international assistance on a biennial basis.81 Emergency assistance has a dedicated budget line.82 In addition, the Committee has indicated that it will maintain a balance between cultural and natural heritage (with 65% of the total international assistance budget set aside for cultural properties and 35% for natural properties) and between conservation and management and preparatory assistance when allocating international assistance and it will regularly review its allocation to ensure that balance,83 thereby notionally reintroducing earmarking of funds.84 For the 25 years, the international assistance requests approved by the Committee (and its delegates) has consistently exceeded the available budget85 and the General Assembly of States Parties has warned of the need to address the viability of the Fund over the same period.86 The Committee has expressed concern about the declining international assistance budget and the capacity of the Fund to meet costs ‘underpin[ning] the Convention as a flagship of UNESCO’.87 In the decade to 2010, international assistance contracted from 55% to 16% of the Fund’s budget, and it was unable to meet approved requests from least developed and low-​income States Parties, including for properties on the List of World Heritage in Danger.88 This situation has remained relatively unchanged since 2010.89 This is exacerbated by the decreasing resources of the Fund overall. Even after a substantial increase, the 2016–​2017 international assistance budget was 50% that of the US$1million budget for 2006–​2007.90 Unsurprisingly, the international assistance budget is often quickly exhausted,91 hampering the commitment to move beyond the ‘first come, first served’ model,92 and approved requests, including emergency assistance requests, are going unfunded.93 Consequently, early reforms to international assistance are being undermined. If the early reforms of 2000s were defined by ensuring the rigour of the application process, the more recent reforms since 2010 have been marked by efforts to address the   Para. 234, Part VII.C, 2021 OG.   Art. 21.2, Part VI, WHC; and para. 236, Part VII.D, 2021 OG. The application form for international assistance amalgamates applications for emergency assistance into this one form for all types of international assistance: Annex 8, 2021 OG. 83   Para. 240, Part VII.D, 2021 OG; Decision 31 COM 18B, para. 5(c); and Decision 36 COM 13.I. See Doc. WHC-​07/​31.COM/​18B, paras 16–​18. 84   Examination of International Assistance, 11 May 2012, Doc. WHC-​12/​36.COM/​14, paras 7–​12. 85   Doc. WHC-​05/​29.COM/​14B, p. 26. 86   e.g. Res. 22 GA 7, para. 5 recalling that payment of assessed annual contributions to the Fund is a ‘legal obligation and also carries a moral character incumbent on all States Parties’. 87   Decision 35 COM 15B, para. 11. See also 39 COM 15, paras 7 and 8. 88   Decision 37 COM 15.1, para. 28. 89   Report on the execution of the budget for the biennium 2018–​2019, budget proposal of the World Heritage Fund for the biennium 2020–​2021 and follow-​up to Decision 42 COM 14, para. 31 Table Breakdown of the World Heritage Fund budget (2014–​2021). 90   Examination of International Assistance Requests, 15 May 2015, Doc. WHC-​15/​39.COM/​14, para. 5. 91   The entire international assistance budget (excluding emergency assistance) for the 2016–​2017 biennium was earmarked for approved requests by April 2016. The only preparatory assistance request for the period could not be approved because of lack of funding: Examination of International Assistance Requests, 27 May 2016, Doc. WHC-​16/​40.COM/​14, para. 3. Doc. WJC-​16/​40.COM/​14, paras 16 and 23. 92   Following adjustments in submission and approval deadlines to alleviate this issue, by mid-​2018 only 21% of the budget for conservation and management assistance and preparatory assistance was left remainder for 2018–​2019. The budget for emergency assistance had been stable for 12 years: Examination of international assistance requests, 15 June 2018, Doc. WHC/​18/​42.COM.13.Rev, paras 2–​3. 93   By 2021, the Fund was unable to meeting approved emergency assistance requests, or approved preparatory assistance requests: Examination of International Assistance Requests, 21 June 2021, Doc. WHC/​21/​ 44.COM/​13, paras 8–​12. 81 82

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long-​term sustainability of the Fund, particularly as it relates to international assistance. These efforts have ranged from trying to ensure that States Parties comply with their obligations under the Convention in respect of compulsory contributions,94 to encourage voluntary contributions by States Parties,95 and initiatives to garner contributions from sources other than States Parties.96 Article 13.6 also provides that the Committee shall pursue means of increasing these resources over and above the compulsory or voluntary contributions from States Parties (see the commentary on Arts 15–​18 by Lenzerini).97 The Operational Guidelines provide that the Fund can be used ‘to the extent possible’ of mobilizing additional resources for international assistance from other sources.98 The Committee has delegated to the Secretariat the task of mobilizing financial and technical resources for World Heritage conservation. This role includes the development of partnerships with public and private institutions in conformity with the Committee’s decisions and guidelines and UNESCO regulations.99 As part of this effort, the World Heritage Partnership Initiative (WHPI) was launched in 2002, and later transformed into the Partnerships for Conservation Initiative (PACT) (the commentary on Arts 15–​18 by Lenzerini). The purpose of PACT was to address the financial shortfall of the Fund and develop ‘a dialogue, an exchange, and an interaction between all stakeholders in World Heritage conservation’.100 This initiative has led to agreements with private sector organizations covering private corporations and not-​for-​ profit organization or civil society groups, and with the public sector including national institutions and universities of States Parties and intergovernmental organizations.101 The UNESCO External Auditor in 2011 found that the PACT was functioning ‘well below expectations’ and recommended harmonization with UNESCO’s development of partnership strategies and other remedial measures covering accountability, traceability, and impact evaluations to be undertaken by the Director-​General and the World Heritage Centre.102 In preparing a revised PACT Strategy in response, the Secretariat observed that 94   Res. 19 GA 8, para. 6; Decision 37 COM 15.I, para. 29; Determination of the amount of the contribution to the World Heritage Fund in accordance with the provisions of Article 16 of the World Heritage Convention, 7 October 2013, Doc. WHC-​13/​19.GA/​8; Decision 38 COM 12, para. 11. In 2018, it noted with concern that 60% of the compulsory and assessed voluntary contributions remained unpaid and that this had ‘adverse and damaging implications on the functioning of the World Heritage programme’: Decision 43 COM 14, para. 2. 95  Item 14 International Assistance, 3 May 2013, Doc. WHC-​13/​37.COM/​INF.14, Part I, para. 6; Decision 39 COM 15, para. 10; and Decision 40 COM 15, paras 4 and 13. 96   Decision 35 COM 15B, para. 24; and Presentation of final accounts of the World Heritage Fund for 2010–​2011, the interim financial statement and the statement of implementation of the 2012–​2013 budget, 1 June 2012, Doc. WHC-​12/​36.COM/​15.Rev, Part III: Analysis of ways to ensure the efficiency and effectiveness of the implementation of the World Heritage Convention with proposals to improve the sustainability of the World Heritage Fund; Doc. WHC-​13/​37.COM/​INF.14, Part III; and Doc. WHC/​19/​43.COM/​14, para. 29, Table Evolution of the ‘Other Income’ Category under the World Heritage Fund (2010–​2017). 97   States Parties are invited to provide additional contributions to the Fund or directly to the properties beyond their obligatory contributions: para. 227, Part VII.B, 2021 OG; and Art. 15.3 WHC. They are also encouraged to participate in World Heritage fundraising campaigns launched by UNESCO through contributions to the Fund: paras 228–​229, Part VII.B, 2021 OG. 98   Para. 225, Part VII.B, 2021 OG.    99  ibid, para. 231. 100   5D. Revised PACT Initiative Strategy, 17 May 2013, Doc. WHC-​13/​37.COM/​5D, para. 1. 101  The current list of partners is accessible online at ‘Our Partners’, https://​whc.une​sco.org/​en/​partn​ ers/​ (with list of previous partnerships). See UNESCO, Basic Texts (n 42) pp. 47–​48; and Doc. WHC-​13/​ 37.COM/​5D, Annex Inventory of World Heritage Partnerships. 102   Final Report of the Audit of the Global Strategy and the PACT initiative, 1 August 2011, Doc. WHC-​ 11/​35.COM/​INF/​8, p. 92 at p. 109; Evaluation of the Global Strategy and the PACT Initiative, 1 August 2011, Doc. WHC-​11/​18.GA/​8; and Res. 18 GA 8, para. 5.

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private sector partnerships had become ‘indispensable in compensating for the lack of resources dedicated to conservation, including International Assistance’.103 In 2016, the World Heritage Centre proposed the establishment of a dedicated ‘Marketplace’ web page on its official website accessible by potential donors to possibly fund approved requests that could not be resourced through the Fund.104 This initiative is distinct from PACT. The approved international assistance requests initially offered in the IA Marketplace were taken up by official funding bodies of States Parties.105 The initiative has been expanded to include projects outside the international assistance framework on the ‘Donors Forum’ web page.106 The Roadmap for Sustainability of the World Heritage Fund, adopted in 2017, reiterates the need for States Parties to fulfil their Convention obligations in respect of contributions, while also reflecting the increasing emphasis on pursuing alternative (often commercial) sources of funding for international assistance and other statutory functions.107 It sets short, medium, and long-​term goals for increasing funding, and the recalibration of existing resources, functions, and procedures. It also reaffirms that fundings sources must align with the objectives of the Convention and comply with UNESCO and UN regulations and policies, with ‘transparency and accountability’ being ensured ‘at all times’.108

VII.  Cooperation with Other Organizations, Bodies, and Individuals Article 13.7 requires the World Heritage Committee to cooperate with international and national governmental and NGOs whose aims complement those of the Convention. Indeed, since 1978 UNESCO has encouraged close cooperation with intergovernmental organizations whose objectives align with the Convention.109 However, the Committee has recognized that like-​ minded intergovernmental organizations have their own 110 fundraising demands. As with Articles 13.4 and 13.6, subparagraph 7 is sufficiently broad that it does not need to be read as a power ancillary to the role of international assistance bestowed on the Committee by that provision. Therefore, Article 13.7 supports cooperation and coordination of heritage protection between complementary UNESCO Conventions and other multilateral instruments and regimes. This role is discussed further in ‘The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions and Other Instruments on Cultural Heritage’ by Carducci in this volume. In addition, Article 13.7 (with Art. 14.2) enables the Committee to delegate to the Advisory Bodies the task of evaluating requests for international assistance.111 The

  Doc. WHC-​13/​37.COM/​5D, para. 13.   Doc. WHC-​16/​40.COM/​14, paras 25–​26; Decision 41 COM 13, para. 5. 105   Examination of International Assistance, 2 June 2017, Doc. WHC/​17/​41.COM/​13, paras 5–​8. 106   Doc. WHC/​17/​41.COM/​13, para. 8; and Report on the execution of the budget for the biennium 2016–​2017 and preparation of the budget for the biennium 2018–​2019, 2 June 2017, Doc. WHC/​17/​ 41.COM/​14, paras 55–​58. 107   Doc. WHC/​18/​42.COM/​12A, para. 25; Decision 41 COM 14, Roadmap for Sustainability of World Heritage Fund; and Decision 42 COM 14, Annex Resource mobilization and communications strategy Framework. 108 109   Decision 41 COM 14, para. 17.   Doc. CC-​78/​CONF.010/​10 Rev, para. 7. 110 111   Doc. WHC/​18/​42.COM/​12A, para. 27.   Decision 13 COM XII.34. 103 104

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Convention’s Preamble states that its purpose is to establish ‘an effective system of collective protection’ of heritage ‘organized . . . in accordance with modern scientific methods ...’112 By using the expertise of the Advisory Bodies, the Committee satisfies the aims of the Convention and aids in depoliticizing the decision-​making process. Requests for international assistance for cultural heritage are evaluated by ICOMOS and ICCROM, those for natural heritage by IUCN, and mixed properties by ICOMOS, ICCROM, and IUCN.113 These Advisory Bodies assisted in the preparation of the evaluation criteria for international assistance requests, approved by the Committee and annexed to the Operational Guidelines.114 By 2012, the States Parties had expressed concern about ‘the growing discrepancy between expert advice and the decisions of the World Heritage Committee’ which was ‘negatively impacting . . . the credibility of the Convention’. They called on the Committee to follow the Operational Guidelines and its own Rules, and provide reasons for any departures from them.115 A UNESCO Internal Oversight Service Report (IOS Report) commissioned by the Secretariat in 2017 observed that the Committee ‘seldom’ followed advice on deferral, referral, or non-​inscription.116 It found that this could create a ‘negative impact on the credibility of the World Heritage List’ and foster ‘the impression that States Parties prize the inscription of heritage properties more for its capillary transactional potentials rather than its conservation values’.117 In response, the Committee maintained that ‘political interests and pressure given the huge financial and human investments in the preparation of the nomination process’ were a factor in not following the advisory bodies’ advice.118 The General Assembly, in 2021, adopted the Declaration of Principles to promote international solidarity and cooperation to preserve World Heritage which requires the states members of the Committee to ‘remain impartial and base their decision on objective and scientific considerations’.119 The IOS Report comparing operations across the culture Conventions found that the growing cost of advisory services ‘at the expense of other budget lines’ came at the expense of ‘crowding out of other activities like international assistance’ and was unsustainable.120 In 1978, international assistance made up 80% of the allocated budget of the Fund, while funding to Advisory Bodies was 5%; by 2012, that balance had reversed, with funding for international assistance being 10%, while the Advisory Bodies were receiving almost

  Eighth recital, Preamble, WHC.   Paras 247–​252, Part VII.G, 2021 OG. 114   ibid, Annex 9; Decision 30 COM 14A, para. 7(e); and Decision 43 COM 11A. 115   Summary of the meeting ‘The World Heritage Convention: Thinking Ahead’ between the Director-​ General of UNESCO, States Parties to the World Heritage Convention, and the Advisory Bodies to the World Heritage Committee, 2 and 3 October 2012, para. 6; and Summary of the meeting ‘The World Heritage Convention: Thinking Ahead’ between the Director-​General of UNESCO, Chairperson of the 39th session of the World Heritage Committee, States Parties to the World Heritage Convention, and the Advisory Bodies to the World Heritage Committee, 21 January 2015, Part C (v): States Parties reiterating ‘the need to curb the worrying trend of politicization’, at https://​whc.une​sco.org/​en/​thinki​ngah​ead/​. See Doc. WHC-​15/​39.COM/​ 5C, para. 31. 116   UNESCO Internal Oversight Service (IOS) Comparative Mapping Study of Forms and Models for the use of Advisory Service by Instruments and Programmes, 13 June 2017, Doc. WHC/​17/​41.COM/​INF.14. II, para. 38. 117   ibid, para. 40; and para. 37 Table 1 Committee Decisions. 118   Doc. WHC/​18/​42.COM/​12A, para. 38. 119  Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage, 9 November 2021, Doc. WHC/​21/​23.GA/​INF.10, para. 4; and para. 23, 2021 OG. 120   Doc. WHC/​17/​41.COM/​INF.14.II, para. 12. 112 113

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70% of the funding.121 This trend has continued to date.122 The Committee largely failed to implement the recommendations of the IOS Report commissioned to address this issue.123 The Report found no justification for administrative and contingency fees rendered by Advisory Bodies, and not charged for other Conventions. The recommendation to review and eliminate these overhead charges124 was rejected by the Committee.125 In addition, the IOS Report found that the complexity of the Operational Guidelines made the Advisory Bodies’ work methods ‘unnecessarily long, time consuming and costly’. It recommended that these change in line with practices used for other Conventions, particularly the Intangible Cultural Heritage Convention, to increase efficiency including reducing the role of the Advisory Bodies in assessing international assistance.126 In response, the Operational Guidelines were revised to limit when the advisory services of the Advisory Bodies are sought for international assistance requests.127 The IOS Report concluded that there was a perceived monopoly by the Advisory Bodies in providing the Committee with advisory services and recommended it obtain legal advice as to whether advisory services could be sought from other sources.128 Indeed, Article 13.7 also states that the Committee may seek the assistance of public and private bodies and individuals to implement its programmes and projects. The UNESCO Office of Legal Affairs advised that neither the Convention, Rules of Procedure, nor Operational Guidelines prohibited the provision of advisory services by other entities.129 The Committee nonetheless decided to continue with its current practice of relying on the advisory services of the Advisory Bodies for international assistance requests.130

VIII. Conclusion This chapter examined the implementation of Article 13 which empowers the World Heritage Committee to determine requests for international assistance under the Convention and allocate monies from the World Heritage Fund. The Committee’s working documents in 2015 recognized that international assistance was ‘conceived as a major means’ of helping States Parties to protect their cultural and natural heritage; and

121   See Report on the execution of the 2010–​2011 Budget in preparation of the 2012–​2013 Budget, 27 May 2011, WHC-​11/​35/​COM/​15, para. 43 Table Evolution of the three main components of the World Heritage Fund (1978–​2013). 122   Report of the execution of the budget for the biennium 2014–​2015 and preparation of the budget for the biennium 2016–​2017, 15 May 2015, Doc. WHC-​15/​39.COM.15, para. 52, Table Evolution of the World Heritage Fund Budget by Biennium (1978–​2015). 123 124   Doc. WHC/​17/​41.COM/​INF.14.II, para. 13.   ibid, para. 27. 125 126   Decision 42 COM 14, para. 19.   Doc. WHC/​17/​41.COM/​INF.14.II, paras 41–​44. 127   Follow-​up to Recommendations of Evaluations and Audits on Working Methods: Outcomes of the Ad-​Hoc Working Group, 22 June 2018, Doc. WHC/​18/​42.COM/​12A, paras 43–​48; Decision 42 COM 13, para. 6; Revision of Operational Guidelines, 20 May 2019, Doc. WHC/​19/​43/​COM/​11A, paras 26–​38; and Decision 43 COM 11A. 128   Doc. WHC/​17/​41.COM/​INF.14.II, paras 29–​34. 129   Follow-​up to the Recommendations of Evaluations and Audits on Working Methods: Outcomes of the Ad-​Hoc Working Group, 22 June 2018, Doc. WHC/​18/​42.COM/​12A, Annex C Summary of Legal Advice. 130   Decision 42 COM 14, para. 20. Committee’s main argument being that ‘the current system had been functioning well for the past 40 years with a high quality of service’: Doc. WHC/​18/​42.COM/​12A, para. 35; and the Working Group established to consider this issue also found that ‘there was no need to change the current practice’: Follow-​up to the Recommendations of Evaluations and Audits on Working Methods: Outcomes of the Ad Hoc Working Group, 24 June 2019, Doc. WHC/​19/​43.COM/​12, para. 68.

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‘this is why [it] is the subject of ten articles of the Convention’.131 If, indeed, this is a reasonable gauge of the intended purpose of the Convention, even a cursory examination of the documents and decisions of the Committee reveals that international assistance is no longer a priority, but an afterthought. Of the voluminous documentation prepared for each meeting, the report on international assistance requests is often only a scant two to three pages at the end (and just before the budget document for the Fund). This trend is reinforced by the ever depleting resources, in real terms, devoted to international assistance since the Convention came into force. And today, it represents only a minor fraction of the Fund’s overall budget. In the 25 years of the Convention’s operation, international assistance has been subject to multiple evaluations and audits, often at the behest of UNESCO. The first phase focused on ensuring that the international assistance process was rigorous and followed a programmatic approach to maximize the available resources. The second (and ongoing) phase is defined by the need to ensure the sustainability of the Fund to finance approved international assistance requests. These reform efforts have met with limited success. The evaluations and audits, and the responses to them, have highlighted the growing politicization of the operation of the Committee and the increasing emphasis on non-​States Parties’ contributions and the private sector or ‘marketplace’ to stem the decline of the Fund. This does not bode well for international assistance and the conservation of the most at-​risk World Heritage properties. Article 13 highlights that both the Committee and the Fund are integral to the viability of international assistance, and therefore to the viability and credibility of the World Heritage framework overall.132

  Examination of International Assistance Requests, 15 May 2015, Doc. WHC-​15/​39.COM/​14, para. 9.   See I. Bokova, Director-​General of UNESCO, cited in Doc. WHC/​17/​41.COM/​INF.14.II, p. 10, fn 3; States Parties cited in Summary of the meeting ‘The World Heritage Convention: Thinking Ahead’ (note 115); and Doc. WHC/​17/​41.COM/​INF.14.II, para. 40. 131 132

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Article 14: The Secretariat and Support of the World Heritage Committee Ana Filipa Vrdoljak *

1. The World Heritage Committee shall be assisted by a Secretariat appointed by the Director-​ General of the United Nations Educational, Scientific and Cultural Organization. 2. The Director-​General of the United Nations Educational, Scientific and Cultural Organization, utilizing the fullest extent possible the services of the International Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre), the International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature and Natural Resources (IUCN) in their respective areas of competence and capability, shall prepare the Committee’s documentation and the agenda of its meetings and shall have the responsibility for the implementation of its decisions.

I. Introduction  223 II. Article 14.1—​Secretariat of the World Heritage Committee  224 A. Profile of the Secretariat  224 B. Roles of the Secretariat  227 1. Management of the World Heritage Convention 229 2. Nominations for the World Heritage List 229 3. Periodic reporting 231

4. Reactive monitoring, List of World Heritage in Danger, and deletion from World Heritage List 231 5. Global Strategy for a Representative, Balanced and Credible World Heritage List and tentative lists 232 6. Upstream Process and preliminary assessment 233 7. World Heritage Fund and other financial resources 233 8. International assistance 234 9. Awareness raising and education 234 10. Coordination with UNESCO and related Conventions 235 11. World Heritage emblem 237

237 237 240 1. International Union for the Conservation of Nature and Natural Resources (IUCN) 240 2. International Council on Monuments and Sites (ICOMOS) 240

III. Article 14.2—​The Secretariat, Advisory Bodies, and Work of the Committee  A. Interrelationship between the Secretariat and the Advisory Bodies  B. Profiles of Advisory Bodies 



3. International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) 241

C. Roles of the Advisory Bodies in Assisting the World Heritage Committee  242 1. Nomination process 242



2. Global Strategy for a Balanced, Representative and Credible World Heritage List and tentative lists 244 3. Upstream Process and preliminary assessment 245

*  UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney.

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4. Periodic reporting and reactive monitoring 245 5. Capacity building and research 246 6. International assistance 247

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IV. Conclusion 

I. Introduction The institutional framework established under the World Heritage Convention and related documentation provides for three main organs.1 First, the General Assembly of States Parties to the World Heritage Convention (WHC) is its plenary body with each State Party having a representative with voting rights.2 The General Assembly meets annually during the ordinary sessions of the UNESCO General Conference.3 Befitting a plenary body which is required to set standards applicable to all parties to the Convention, the General Assembly elects the members of the World Heritage Committee and sets the uniform percentage contribution by States Parties to the World Heritage Fund.4 Secondly, the World Heritage Committee, with its Bureau, is the executive body with a rotating membership of 21 persons drawn from the States Parties who meet at least once a year.5 Its role includes making binding decisions concerning the World Heritage List, the List of World Heritage in Danger, international assistance, and the World Heritage Fund, and is discussed in detail in the commentary on Art. 13 by Vrdoljak. Thirdly, the Secretariat is the administrative body of this institutional framework. Under Article 14, the Secretariat is intended to facilitate the work of the Committee by preparing the documentation and agenda for the meetings of the Committee and implementing its decisions. The responsibilities of the Secretariat, so vaguely defined by Article 14, are circumscribed by resolutions, decisions, and documents subsequently adopted by the General Assembly and the Committee, including the Operational Guidelines for the Implementation of the Convention, as amended from time to time. Article 14 enables the Director-​General of UNESCO to appoint a Secretariat to assist the Committee and directs them to use the expertise of the relevant Advisory Bodies, that is, the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), the International Council of Monuments and Sites (ICOMOS), 1   Individual States Parties to the World Heritage Convention are arguably organs of the institutional framework established by this instrument. States Parties are integral the realization of the purpose of the Convention and the implementation of the decisions made by the World Heritage Committee: Arts 4–​7, Part II of the Convention concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, in force 17 December 1975, 1037 UNTS 151, and 11 ILM 1358 (1972) (WHC), in UNESCO World Heritage Centre, Basic Texts of the 1972 World Heritage Convention (2021) p. 1; and paras 12–​16, Part I.C of the Operational Guidelines for the Implementation of the World Heritage Convention, Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (hereinafter 2021 OG), 31 July 2021, Doc. WHC.21/​01, ibid, p. 51. 2   Rules 1 and 12 of the Rules of Procedure of the General Assembly of the States Parties of the Convention concerning the Protection of the World Cultural and Natural Heritage, adopted by the Second General Assembly of States Parties (GA Rules of Procedure), 24 November 1978 as revised 2014, Doc. WHC-​14/​GA/​ 1 Rev.2, UNESCO, Basic Texts (note 1) p. 17. See also para. 17, 2021 OG. 3 4   Art. 16.1 WHC.   Arts 8.1 and 16.1 WHC. 5   Art. 8.1 WHC; Rules 1 and 2.1 of the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Rules of Procedure, adopted at its first session (Paris, 1977), and as amended to 2015, Doc. WHC-​2015/​5 (Committee Rules of Procedure), in UNESCO, Basic Texts (note 1) p. 25, and para. 19.

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and the International Union for Conservation of Nature and Natural Resources (IUCN). Today, this role is fulfilled by the World Heritage Centre which was established in 1992 by the Director-​General and is based at UNESCO headquarters in Paris.6 If the rationale for the protection of world heritage and the philosophical outlook of the Convention were revolutionary, Part III including Article 14 embodies the related ground-​ breaking aspect—​the mechanisms to implement its goals. The roles devolving, and ever evolving and growing, to the Secretariat of the Committee and the Advisory Bodies are unique and extensive. So extensive and ill-​defined, in fact, that it has led to tensions and recent efforts to more clearly articulate the competences of the Secretariat, the Committee, the General Assembly of States Parties to the Convention, and the various organs of UNESCO. The composition, role, and interplay of the Secretariat with the other institutional components of the World Heritage framework are the subject of this chapter. The first part examines the historical development of the Secretariat and defines its relationship to other Convention organs and the broader UNESCO institutional framework; and details its current role. The second part examines how this role has been complemented over time by the work of the Advisory Bodies; this is followed by a brief background of each of the Advisory Bodies; and their roles as they are currently defined in respect of the Secretariat’s activities is outlined.

II.  Article 14.1—​Secretariat of the World Heritage Committee A.  Profile of the Secretariat During the drafting and negotiations leading up to the World Heritage Convention, there was discussion that the new regime to be established by the proposed Convention would be implemented by a Secretariat to be aided by scientific experts.7 The draft Convention presented by the United States proposed that the World Heritage Committee would be assisted by a Secretariat appointed by the UNESCO Director-​General.8 Its role as defined in the final text of Article 14.1 of the Convention is more circumscribed than was envisaged by the United States. Under Article 14, the Secretariat of the Committee must be appointed by the Director-​General of UNESCO. Personnel are selected on a neutral basis, with the general UNESCO staff requirement of adequate geographical distribution.9 Until 1992, the Secretariat role was performed by persons drawn from various existing sectors of UNESCO and its staff (with specific expertise) seconded from particular States Parties. During the twentieth anniversary of the Convention, the Director-​ General of UNESCO announced the creation of the World Heritage Centre.10 The Director-​ General appointed the Director of the Centre as the Secretary to the Committee and   Para. 3.c, Part I.A, and para. 27, Part I.F, 2021 OG.   International Instruments for the Protection of Monuments, Groups of Buildings and Sites, Doc. SHC/​ MD/​17, p. 3, para. 89. 8   ibid, Annex II, 4. 9   In respect of the selection of staff of the UNESCO Secretariat, see Art. 6.4 of the Constitution of the United Nations Education, Scientific and Cultural Organisation, 16 November 1945, in force 4 November 1946, 4 UNTS 275 (as amended) (UNESCO Constitution), reprinted in UNESCO, Basic Texts (revised edn, 2020) p. 5. Audits of the World Heritage Centre have raised the lack of transparency of appointments as a concern. 10   DG/​Note/​92/​13, 13 April 1992. 6 7

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General Assembly.11 The Director and the staff of the Centre act as the Secretariat and coordinate World Heritage activities within UNESCO. The Centre is headed by a Director placed under the authority of the Director-​General.12 The Centre carries out the functions which the Convention entrusted to the Director-​General of UNESCO: it acts as the Secretariat for the General Assembly of State Parties to the Convention and the World Heritage Committee and its Bureau; it prepares their meeting agendas and carries out their decisions, including projects approved under the World Heritage Fund.13 The Director-​ General has entrusted the Centre to coordinate, at the UNESCO Secretariat level, the activities of all sectors, field offices, and units covering matters within its competence.14 Located in the Culture Sector, the Centre coordinates but does not substitute its actions for those of other sectors.15 The Director-​General established a Steering Committee made up of the Assistant Directors-​General for Culture and Natural Sciences, the Centre’s Director, and Director of the Division of Ecological Earth Sciences, which oversees the work of the World Heritage Centre and ensures intersectoral coordination.16 While the Convention was sponsored by UNESCO,17 the final text adopted by its General Conference is like any other instrument developed independently of this institutional framework. A state can only be bound by the Convention if it has consented to do so by ratifying, accepting, or accessing it.18 So, for example, a state may be a State Party to the Convention while not being a member state of UNESCO, as has been the case with the United States on and off since the 1980s. This situation becomes complicated where the institution is given a role in respect of the agreement after it has entered into force, and non-​parties have a role because of their membership of that institution. The World Heritage Convention provides such intersections at various places, including the power of the UNESCO Director-​General to appoint the Secretariat to the World Heritage Committee (and the General Assembly). The difficulties arising from the intertwining of the institutional frameworks of UNESCO and the World Heritage Convention in respect of the appointment of the Secretariat came to the fore with the establishment of the World Heritage Centre. The question of the autonomy or otherwise of the Centre has remained a vexed issue. When launching the Centre in May 1992, the then Director-​General of UNESCO stated that its role would be to ‘take the World Heritage Convention to new heights, and for this it will have all the autonomy necessary within the Organization’.19 The Director-​ General, in his report to the Executive Board in 1994, advised them of his intention to confer administrative flexibility on the Centre within the framework of UNESCO.20 The Draft Programme and Budget for 1996–​1997 contained a proposal to grant the Centre ‘functional autonomy’.21 The Director-​General argued that the proposal did not   Letter DG/​4.1/​16/​03, 21 October 2003, from Director-​General to Committee.   Office of the External Auditor of UNESCO, Audit Report on the World Heritage Centre, 2010, Doc. WHC-​10/​34.COM/​5G, para. 5. 13   Rule 15.2, GA Rules of Procedure; and Rule 43.1, Committee Rules of Procedure; and Letter DG/​4.1/​ 16/​03, 21 October 2003, from Director-​General to Committee. 14 15   Para. 27, Part I.F, 2021 OG.   Director-​General Note, 7 January 2008, DG/​Note/​08/​01. 16 17   Doc. WHC-​10/​34.COM/​5G, para. 6-​8.   Pursuant to Art. IV.4, UNESCO Constitution. 18   Art. 33 WHC. 19   Address by Federico Mayor, Director-​General of UNESCO, 8 July 1992, DG/​92/​27, p. 2. 20   Additional Recommendations concerning Docs 28 C/​4 and 28 C/​5, 6 September 1995, 147 EX/​4, p. 7, para. 9. 21   ibid, p. 7, para. 10. 11 12

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entail any changes to the nature of the responsibilities entrusted to him or her under the Convention, and the Secretariat would continue to operate within UNESCO under his or her authority. He maintained that it was not intended to endow the Centre with any form of legal or institutional personality distinct from that of UNESCO.22 In response to this proposal, the UNESCO Executive Board, and the Committee, requested a detailed report on the functioning and funding of the Centre.23 The external auditor found that: there was confusion and tension about the roles and responsibilities of the Centre and the Committee; the roles and responsibilities on World Heritage matters within UNESCO needed to be coordinated more effectively; and cooperation with the relevant international organizations could be improved.24 The Director-​General subsequently confirmed that the Centre was under his direct control and located in the Culture Sector.25 Nonetheless, following another external audit a decade later, the Committee called on the Director-​General to take the ‘necessary measures’ to restore the operational autonomy of the Centre ‘which at present does not sufficiently exist’.26 Funding for the Centre is drawn from three sources: UNESCO’s Regular Budget, the World Heritage Fund, and extra-​budgetary funds. UNESCO’s Regular Programme funds for the implementation of the Convention are used as approved by the UNESCO General Conference in the Programme and Budget and work plan submitted biennially by the Director of the Centre. Accounts presented for the Regular Programme funds are governed by the Organization’s Financial Regulations.27 This funding is intended to enable the Centre to perform its duties as the Secretariat and cover staff costs.28 A 2010 audit report noted that the World Heritage Fund had represented 51% of its budget in 1996–​1997. This had dropped to 18% of the Centre’s total funding by 2008–​2009,29 and that extra-​budgetary funds had become its main funding resource during that period.30 Under-​resourcing of the Centre, particularly as it relates to staffing, has been a perennial issue. The use of temporary staff and the payment of staff using the World Heritage Fund in the early years of the Convention’s operation were viewed as compromising the realization of the Convention’s aims and the purpose for which the Fund was established.31 In 2021, the Centre had 28 permanent posts funded by the UNESCO Regular Programme and 26 positions financed by voluntary/​in-​kind funds by 14 States Parties.32   ibid, pp. 7–​11, paras 13, 14, 15, 20, and 21.   146 EX/​Decision 4.2, paras 54–​55. See Report on the Work of the Committee’s Consultative Body on the overall management and financial review of the administration of the World Heritage Convention’, item 5 of the Provisional Agenda, 28 November 1997, Doc. WHC-​97/​CONF.208/​5, p. 2; Report of the External Auditor to the Director-​General of UNESCO on the Management Review of the World Heritage Convention, November 1997, Doc. WHC-​97/​CONF.208/​5, Annex B; and Comments of the Director-​General, Doc. WHC-​97/​CONF.208/​5, Annex C. 24 25   See Doc. WHC-​97/​CONF.208/​5, Annex B.   DG/​Note/​00/​01, 13 January 2000. 26   Decision 31 COM 19, para. 11. 27   UNESCO Financial Regulations, adopted 6C/​Resolutions pp. 53–​54, 59, 67–​67, and as revised to 38 C/​ Resolutions, p. 69, in UNESCO, Basic Texts (note 9) p. 97. 28   Report of the Director-​General of UNESCO concerning the roles and functions of the World Heritage Centre as requested by the 23rd session of the World Heritage Committee, 22 October 1999, Doc. WHC-​ 99/​CONF.209/​INF.15, Annex II, p. 21; and Audit of the Working Methods of the Culture Conventions, 14 October 2013, Doc. WHC-​13/​19.GA/​INF.8A. 29   Doc. WHC-​10/​34.COM/​5G, para. 40. 30   ibid, para. 39. The audit report called for improved regulation and accountability of use of funds. 31  UNESCO Doc. CC-​ 78/​ CONF.001/​ 3; UNESCO Doc. CC-​ 79/​ CONF.003/​ 13, para. 53(b); and UNESCO Doc. CC-​88/​CONF.001/​13, para. 53. 32   Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 4 June 2021, Doc. WHC/​21/​44.COM/​5A, para. 3; Follow-​up to the work of the 22 23

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The Secretariat noted that ‘the ratio between the requests put forward to [it] and the actual human and financial means available’ remained a ‘challenge’.33 It continues to rely heavily on temporary staff funded by voluntary funds or in-​kind contributions, two decades after the external auditor recommended that the situation be remedied as a matter of urgency.34 The delineation of the roles of the various actors in the Convention framework, and in UNESCO generally, engaged in World Heritage activities and their relationship to each other continues to evolve with ever-​increasing workloads and depleting resources. In response to the perceived politicization of statutory decision making and its potential impact on the credibility of the Convention, the General Assembly adopted the Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage. The Declaration indicates that the Secretariat shall ‘act in a manner consistent with the Declaration’ including ‘transparent, equal and open processes and strengthen efforts to enhance dialogue and provision of early advice’ and facilitate direct dialogue with States Parties.35

B.  Roles of the Secretariat The task of a secretariat in international institutions is usually defined as being of a neutral, administrative character with the aim of facilitating the activities and implementing the decisions of other organs. The role of the Secretariat proposed in the original US draft Convention was intended to be far-​reaching.36 By contrast, the only role attributed to the Secretariat in the final text of the Convention is to ‘assist’ the World Heritage Committee (Art. 14.1).37 The form and nature of this assistance was conservatively defined. Article 14.2 provides that the Director-​General utilizes the expertise of the relevant Advisory Bodies to prepare the agenda and documentation for the Committee’s statutory meetings and implements its decisions. This role has been delegated to the Centre since 1992 which was ‘specifically established for this purpose’.38 The vagueness of Article 14 led to significant difficulties in the articulation of the interrelationship between the Secretariat of the Committee, the UNESCO Secretariat and its other organs, the World Heritage Committee, the General Assembly of States Parties to the Convention, the States Parties individually, and the Advisory Bodies. As with other aspects of the Convention, its goals and their implementation have grown with the needs of the States Parties through the revised Operational Guidelines for the Implementation of the World Heritage Convention, which were intended to provide clarity concerning the role of the Secretariat. Under the first Operational Guidelines adopted at the Committee’s first session in 1977, the Secretariat on behalf of the Committee was responsible for the registration of nominations, transmission of nominations to the appropriate Advisory Body, liaison with the relevant nominating State Party to ensure completeness of application, to translate and reproduce the nomination into the working languages of the World Heritage Committee, Consultative Body of the World Heritage Convention, 19 November 1999, Doc. WHC-​99/​CONF.209/​9, p. 8; and Decision 31 COM 19; and Res. 16 GA 5, Annex.   Doc. WHC/​21/​44.COM/​5A, para. 152.   Doc. WHC/​21/​23.GA/​INF.10, para. 16. 37 38   Para. 27, Part I.F, 2021 OG.  ibid.

 ibid.   Doc. SHC/​MD/​17, Annex II, pp. 5–​6.

33

34

35

36

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and submission of nominations to the Bureau of the World Heritage Committee.39 Yet, within two decades of its operation it was determined that the Centre had become a ‘victim of its own success’, with the external auditor recommending that its role be clearly defined and that it concentrate and consolidate its operations.40 The Secretariat has undergone successive audits in the intervening years, many, if not most, addressing the same concerns which have only intensified with the expanding World Heritage List, the proliferating of additional layers of responsibility, and its ever shrinking resources.41 The Operational Guidelines, revised and adopted in 2021, set out the current functions of the Secretariat.42 Its various roles are directly derived or implied from the Convention and related documents, delegated by the Director-​General of UNESCO or derived from the UNESCO Constitution. The Operational Guidelines stipulate that the Centre, working in close cooperation with the Advisory Bodies, implements the decisions and Strategic Objectives of the Committee, and the resolutions of the General Assembly of States Parties to the Convention.43 The list of roles assigned to the Centre, and Advisory Bodies, has increased manifold in the last decade. Sitting as it does within UNESCO and funded in part by the Organization’s Regular Budget, the Secretariat’s work also addresses its priorities and programmes, for example

39   Para. 16(b), Operational Guidelines for the World Heritage Committee, 30 June 1977, Doc. CC-​77/​ CONF.001/​8 (hereinafter 1977 OG). 40   Doc. WHC-​97/​CONF.208/​5, Annex B, paras 111, 113, and 115. 41  See Result-​Based Management Framework and Roadmap, 20 June 2006, Doc. WHC-​06/​30.COM/​ INF.12; Final Report on the management audit of the World Heritage Centre, 10 May 2007, Doc. WHC-​07/​ 31.COM19A, p. 4, noting in the report conclusion that: ‘That there is a growing imbalance between resources and workload’, where the IOS responded that the report provided insufficient data to properly assess the resourcing requirements of the Centre; Results-​Based Plan for Implementing the Major Recommendations of the Management Audit of the World Heritage Centre, 15 October 2007, Doc. WHC-​07/​16.GA/​5; Decision 31 COM 19; Progress on the implementation of Decision 31 COM 19, 18 June 2008, Doc. WHC-​08/​ 32.COM/​17; Res. 16 GA 5, Annex, Progress Report on the Implementation of the Recommendations of the 2007 Audit, Doc. WHC-​07/​32.Com/​17, p. 13; Decision 32 COM 17, Mapping the Workload of the World Heritage Centre for 2008, 29 May 2009, Doc. WHC-​09/​33.COM/​INF.5A.3 (2009 IOS Audit Report); Progress Report on the implementation of the Decision 31 COM 19, 19 June 2008, Doc. WHC-​08/​32.COM/​ 17; Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decision, 11 May 2009, Doc. WHC-​09/​33.COM/​5A, pp. 3–​8; Audit Report on the UNESCO World Heritage Centre, 2010, Doc. WHC-​10/​34.COM/​5G, p. 2; Follow-​up on the recommendations by the External Auditor on the audit of the World Heritage Centre, 6 May 2011, Doc. WHC-​11/​35.COM/​5C particularly on recommendation concerning monitoring of extra-​budgetary funds, centralize call for funds and collection through Comptroller, and establish result-​based management approach; Decision 35 COM 12B, Working Methods of the Statutory Organs of the Convention; Audit Plan of the World Heritage Centre by the Internal Oversight Service, 1 August 2011, Doc. WHC-​11/​18.GA/​9, para. 9; Progress Report on the implementation of the recommendations of the External Auditor on the 2009 audit of the World Heritage Centre, 1 June 2012, Doc. WHC-​12/​36.COM/​INF.5A.3; Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 11 May 2012, Doc. WHC-​12/​36.COM/​ 5A.1, noting that the financial constraints where such that the meeting’s documentation had to be ‘drastically reduced’ and replaced by weblinks, and ‘resources under the World Heritage Fund are extremely limited, as also the budgetary situation at UNESCO’, and ‘the severe reductions in funding while demands by the World Heritage Committee and States Parties are increasing will have to be carefully analysed and the World Heritage Centre and the Advisory Bodies have committed to clearly identify a list of “unfunded activities” ’ (para. 15); Summary and Follow-​up of the Director General’s meeting on ‘The World Heritage Convention: Thinking Ahead, 3 May 2013, Doc. WHC-​13/​37.COM/​5C, para. 11. 42   Para. 28, Part I.F, 2021 OG. 43  ibid, para. 27. See Discussion on the Relationship between the World Heritage Committee and UNESCO, Doc. WHC-​02/​CONF.202/​12, paras 9–​25.

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in respect of the Sustainable Development Goals and global priorities, Africa, and gender equality.44 In 2021, the Secretariat advised the Committee that given its current levels of staffing and resourcing, the situation was ‘unsustainable’ because of the proliferation of thematic initiatives by the General Assembly and Committee which needed to be implemented, together with its statutory and operational workload which had also increased.45

1.  Management of the World Heritage Convention The role proscribed for the Director-​General under Article 14.2 of the Convention has been delegated to the World Heritage Centre.46 However, as the Operational Guidelines detail, the Secretariat’s responsibilities go beyond this function and include: organizing the documentation and agenda of the meetings of the Committee and General Assembly; implementing the decisions of the Committee and the General Assembly and reporting on their execution; receiving, registering, checking for completeness, archiving, and transmitting to the relevant Advisory Body nominations for the World Heritage List; coordinating activities for the Global Strategy for a Representative, Balanced and Credible World Heritage List; organizing periodic reporting; coordinating and conducting reactive monitoring including related missions; coordinating international assistance; mobilizing extra-​budgetary funds for conservation and management of World Heritage properties; assisting States Parties in the implementing the Committee’s programmes and projects; and promoting World Heritage and the Convention through provision of information to States Parties, Advisory Bodies, and the general public.

2.  Nominations for the World Heritage List In addition to providing the bureaucratic structure for the registration and transmission of nominations to the World Heritage List by States Parties to the relevant Advisory Bodies and the Committee, the Operational Guidelines define a more proactive role for the Secretariat.47 States Parties are encouraged to approach the Secretariat for assistance throughout the nomination process including guidance on mapping, examples of successful nominations and related management and legislation, guidance on different types of sites, and guidance on serial and transboundary sites. To facilitate this process, the relevant State Party may submit a draft nomination for comment and review within a specific time frame in order to obtain feedback from the Secretariat.48 In respect of the formal aspect of the nomination process, nomination dossiers must be submitted by the State Party to the Secretariat.49 The Secretariat, on receipt of an application from a State Party, must acknowledge receipt, examine it for completeness, and register it, and also retain all supporting documentation submitted with the dossier.50 If the nomination is complete, it is forwarded to the relevant Advisory Body for evaluation and an electronic version of the main text of the nomination dossier is made available to the Committee. The Secretariat will seek additional information from the nominating party if it is requested by the Advisory Body. Then, the Secretariat prepares a list of all 44   The Centre’s annual reports details the activities covered by this component of its workload: Doc. WHC/​ 21/​44.COM/​5A, paras 7–​10, 28–​30, and Annex 1; Programme and Budgets for 2018–​2019 (39C/​5) and 2020–​2021 (40C/​5), PI2, 3 and 4; Doc. WHC/​21/​44.COM/​INF.5A 1; and Doc. WHC/​21/​44.COM/​5C. 45 46   Doc. WHC/​21/​44.COM/​5A, para. 152.   Para. 27, Part I.F, 2021 OG. 47   Paras 125–​128, Part III.A; and paras 140–​142, Part III.D, 2021 OG. 48 49   Para. 127, Part III.A, 2021 OG.   Para. 132, Part III.B, 2021 OG. 50   Paras 140 and 133, Part III.D, 2021 OG.

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nominations received together with the date received, details of whether or not they are complete, and when the nomination was completed for the Committee’s meeting.51 If a nomination is referred back to the nominating State Party for additional information, it must be received by the Secretariat within a set time frame in the year that the State Party seeks to have it considered by the Committee. This additional information must also be sent by the Secretariat to the relevant Advisory Body for evaluation. Evaluations by the Advisory Bodies are sent to the World Heritage Centre for distribution to the Committee Chair. The State Party must inform the Secretariat of factual errors in the evaluation prior to the Committee meeting, with copies sent to the Advisory Body. The Secretariat must be advised in writing of the withdrawal of a nomination at any time prior to the Committee session scheduled to examine it.52 Where the withdrawal involves a transboundary nomination, and the request for withdrawal is made by only one State Party, the Secretariat will immediately advise the other nominating States Parties.53 The Secretariat advises the nominating States Parties of the Committee’s decision. States Parties of inscribed properties and the relevant site managers are provided with a map of the inscribed area and a statement of outstanding universal importance.54 The Secretariat publishes the updated World Heritage List annually after the annual meeting of the Committee. Nominations referred back to the State Party for additional information by the Committee, must be received by the Secretariat within three years of referral, otherwise they will need to be submitted as fresh nominations.55 A State Party is able to seek advice from the Secretariat and Advisory Bodies in respect of such request for additional information. Similarly in respect of nominations deferred by the Committee, the State Party is encouraged to approach the Secretariat and the relevant Advisory Body when preparing a response to the Committee’s recommendations.56 The Secretariat provides the published report of all the Committee’s decision to all States Parties.57 Emergency nominations are likewise submitted to the Secretariat, which then immediately passes them to the relevant Advisory Body for assessment. The Committee, when reviewing such nominations, may recommend follow-​up missions by the Secretariat and relevant Advisory Body after inscription on the List in order to fulfil its recommendations.58 States Parties submitting a new nomination dossier should voluntarily contribute to the costs of evaluations (and preliminary evaluations) by the Advisory Bodies, as indicated by estimated costs drawn up by the Secretariat in reports prepared concerning the World Heritage Fund.59 Requests for modification to the boundaries of a site, criteria justifying inscription of the site, and the name of the World Heritage property are submitted through the Secretariat.60 Major modifications to the boundaries and inscription of a site under additional, fewer, or different criteria to the original inscription follow the process prescribed for new nominations.61 The World Heritage Centre updates the Statement of Outstanding Universal Value of a property pursuant to Committee decisions relating to

  ibid, para. 141; Decision 26 COM 14; and Decision 28 COM 14B, p. 57. 53 54   Para. 152, Part III.F, 2021 OG.   ibid, para. 152bis.   ibid, p. 55. 55   Para. 159, Part III.G, 2021 OG; and Decision 39 COM 11. 56 57   Para. 160, Part III.G, 2021 OG.   ibid, p. 55. 58   Para. 162, Part III.K, 2021 OG; and Decision 37 COM 12.II. 59   Para. 168bis, Part III.K, 2021 OG; and Decisions 43 COM 11A and 43 COM 14. 60 61   Part III.I, 2021 OG; and Decision 39 COM 11.   Paras 165 and 166, Part III.I, 2021 OG. 51 52

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name changes, boundary modifications, and correction of factual errors agreed by relevant Advisory Body.62

3.  Periodic reporting States Parties to the Convention are requested to report on the legal, administrative, and other actions taken to implement the Convention and conserve World Heritage listed properties located on their territories.63 Effectively, periodic reporting is intended to ensure the long-​term conservation of inscribed properties as well as strengthening the credibility of the implementation of the Convention and, in particular, the List.64 The Secretariat coordinates and facilitates the periodic reporting process worldwide, with reporting occurring on a region-​by-​region basis on a six-​year cycle.65 To assist States Parties in this task, they may seek advice from the Secretariat and the Advisory Bodies.66 Further, with the consent of the relevant States Parties, the Secretariat may commission expert advice. The Secretariat and Advisory Bodies facilitate the consolidation of national periodic reports into the Regional State of the World Heritage reports. Following this, States Parties with the help of the Secretariat and Advisory Bodies, draw up long-​term regional programmes based on the Strategic Objectives, the needs of States Parties, and facilities for international assistance which are then submitted to the Committee.67

4.  Reactive monitoring, List of World Heritage in Danger, and deletion from World Heritage List Reactive monitoring is reporting by the Secretariat (and other UNESCO Sectors and the Advisory Bodies) to the Committee on the conservation of specific World Heritage properties which are threatened.68 It is this task, above all others, which has the potential to move the Secretariat beyond the realm of a neutral administrator into a politically contentious arena. It is for this reason that the current Operational Guidelines stress the need to obtain, wherever possible, the input of the State Party on whose territory the relevant property is located. States Parties are required to submit to the Committee through the Secretariat a report and impact study when exceptional circumstances arise or activities are undertaken which affect the conservation of a property inscribed on the List which may affect its outstanding universal value.69 When the Secretariat obtains information, from a source other than the relevant State Party, that a property is ‘seriously deteriorated’ or ‘necessary corrective measures’ have not been undertaken within the prescribed time, it will where possible obtain comments from that State Party about the authenticity of the source and accuracy of the content of the information.70 The Secretariat will then seek comments from the relevant Advisory Body about the information. That information together with the comments are forwarded as ‘a state of conservation report’ to the Committee.71 If the Committee decides that the characteristics for which the property was inscribed have been ‘irretrievably lost’, prior to its deletion from the World Heritage List the   Para. 155, Part III.G, 2021 OG. 64   Art 29 WHC; and para. 199, Part V.A, 2021 OG.   Para. 202, Part V.A, 2021 OG. 65   ibid, para. 200 and para. 203, Part V.B, 2021 OG; and Decision 41 COM 11. The periodic reports are submitted by States Parties to the Secretariat using the prescribed online tool. 66 67  ibid.   Para. 210, Part V.C, 2021 OG; Decision 36 COM 13.I; and Decision 41 COM 11. 68 69 70   Para. 169, Part IV.A, 2021 OG.   ibid, paras 169 and 172.   ibid, para. 174. 71   ibid, paras 175 and 176. 62 63

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Secretariat must inform the State Party of that decision and seek its feedback which is then conveyed to the Committee.72 Where the information is determined by the Committee to be insufficient for it to make a decision, then it may authorize the Secretariat to take the necessary action (in cooperation with the relevant State Party) to determine the present state of the property, the threat to it, the feasibility of adequately restoring the property, and to report its findings to the Committee. The process can include despatching a fact-​finding mission or consultation with experts. The objective of reactive monitoring is to ensure that all possible measures are taken to prevent the removal of a property from the World Heritage List.73 This also covers properties that are or are to be included on the List of World Heritage in Danger and inscribed properties to be deleted from the World Heritage List. In respect of World Heritage in Danger, the Secretariat is required to bring to the attention of the Committee information from the State Party and comments of the Advisory Bodies or another expert. It is also required to publish and maintain a List of World Heritage in Danger.74 With regard to the procedure for deletion of properties from the List, the State Party of the inscribed property which has seriously deteriorated or for which corrective measures have not be taken within the proposed time must inform the Secretariat of that fact.75 If such information is received from a source other than the State Party, the Secretariat must where possible seek the comments of that State Party on the authenticity of the source and the information.76 It will seek comments from the Advisory Body on the information received. The information and comments are forwarded to the Committee. The State Party is informed of the Committee’s decision and a public notice of the decision is made immediately. If the Committee’s decision leads to a change in the List, then that modification must be made by the Secretariat to the next updated List when it is published.77

5.  Global Strategy for a Representative, Balanced and Credible World Heritage List and tentative lists The Secretariat to the Committee facilitates the realization of the Global Strategy in line with the Strategic Objectives adopted by the Committee in 2002.78 The Global Strategy aims to identify and correct the gaps in the List by encouraging countries to become States Parties, to prepare tentative lists, and to nominate properties for the List.79 The preparation of tentative lists by States Parties and submission to the Secretariat are considered a ‘useful and important planning tool’ for future nominations and therefore fundamental to the realization of that strategy.80 The tentative list must be submit at least one year prior to the submission of a preliminary assessment request to the Secretariat of a nominated property for review by the Advisory Bodies.81 The Secretariat receives and checks the submitted tentative lists from States Parties to ensure that they are in compliance with

  ibid, para. 176(d).    73  ibid, para. 170.    74  Paras 185 and 188, Part IV.B, 2021 OG. 76   Para. 193, Part IV.C, 2021 OG.   Para. 194, Part IV.C, 2005 OG. 77   Paras 197 and 198, Part IV.C, 2021 OG. 78   The Budapest Declaration on World Heritage, 6 May 2002, Doc. WHC-​02/​CONF.202/​5; and Decision CONF 202 9. 79   Para. 55, Part II.C, 2021 OG; and Art 11.1 WHC. See Report of Expert Meeting on the ‘Global Strategy’ and thematic studies for the representative World Heritage List, Paris, 13 October 1994, Doc. WHC-​94/​ CONF.003/​INF.6; Decision 39 COM 11; and Decision 43 COM 11A. 80 81   Para. 70, Part II.C, 2021 OG.   ibid, para. 65. 72 75

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the approved format.82 Those not in compliance are referred back to the State Party and those in compliance are registered and sent to the relevant Advisory Body.83 A summary of the tentative lists is presented in an annual report to the Committee. The Secretariat, in consultation with the State Party, also updates this information by deleting properties that are then inscribed on the List or nominations that are rejected.84 As part of the Global Strategy, States Parties are encouraged to harmonize their tentative lists at the regional and thematic levels, and they may request international assistance to that end.85

6.  Upstream Process and preliminary assessment International assistance can also be requested as part of the Upstream Process covering advice, consultation, and analysis prior to the preliminary assessment of nomination dossiers designed to minimize unviable nominations.86 Therefore the Upstream Process and the preliminary assessment are mechanisms designed to be engaged prior to the preparation of a nomination.87 Preliminary assessments are a mandatory desk-​based process of sites intended for nomination and are current for five years. They provide information that builds on the tentative list and advice provided as part of the Upstream Process and preparatory assistance. Request for preliminary assessment are submitted to the World Heritage Centre. The Centre checks that the requests are in order, registers them, and forwards them to the relevant Advisory Bodies. Additional information requested by an Advisory Body must be received through the Secretariat. The Advisory Bodies forward assessments to the Secretariat which then forwards it to the relevant States Parties. At each session of the Committee, the Secretariat provides a list of preliminary assessment requests received and completed, with the advice proffered only provided to it once the nomination has been submitted. To facilitate capacity building, the Secretariat, and the Advisory Bodies, may utilize evaluation missions to conduct regional training workshops to aid under-​represented States Parties in the preparation of their tentative lists and nominations.88

7.  World Heritage Fund and other financial resources The Secretariat implements the decisions of the Committee covering the World Heritage Fund and other forms of assistance (see the commentary on Arts 19–​26 by Lenzerini).89 The Fund, which is a trust, was established pursuant to Article 15 of the Convention and is subject to the Financial Regulations of UNESCO90 and the Financial Regulations for the World Heritage Fund formulated by the Director-​General.91 The Director-​General is responsible for annual accounts, their review by the UNESCO External Auditor, and submission to the General Assembly of States Parties to the Convention. The Secretariat supports the mobilization of financial and technical resources for World Heritage conservation.92 In addition to the compulsory and voluntary contributions of the States Parties to the Convention, the Fund includes: resources from 83 84   ibid, para. 68 and Annex 2; and Decision 7 EXT.COM 4A, para. 4.  ibid.  ibid. 86   ibid, paras 72 and 75.   Paras 75, Part II.C and 121, Part III.A, 2021 OG. 87 88   Para. 122, Part III, 2021 OG.   Para. 76, Part II.C, 2021 OG. 89   Art 15.4 WHC; and para. 28, Part I.F, 2021 OG. 90   Adopted at the General Conference at its 6th session, 6 C/​Resolutions, pp. 53–​54 and 67–​72, and last amended at the 31st session, 31 C/​Resolution, 92. 91   Financial Regulations of the World Heritage Fund, Doc. WHC/​7, in UNESCO, Basic Texts (note 1) p. 47. 92   Para. 28(h), Part 1.F, 2021 OG. 82 85

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other states, UNESCO, and other UN agencies; public or private bodies or individuals; interest due on the Fund; monies raised from events organized to benefit the Fund; and other sources approved by the Committee.93 The Centre’s mobilization of resources must conform with the decisions and strategies of the Committee and UNESCO regulations.94

8.  International assistance The Secretariat is responsible for the coordination of international assistance.95 While the Fund is the primary source of funding for international assistance; the provision of financial resources is not the only form of aid provided under this rubric. The Operational Guidelines stipulates that the Fund will be used to mobilize additional funds for international assistance from alternate sources.96 The Secretariat administers applications for international assistance.97 States Parties to the Convention are encouraged to seek assistance from the Secretariat, and Advisory Bodies, when preparing applications including examples of past successful applications. The application is then lodged and processed by the Secretariat with the assistance of the Advisory Bodies.98 The Secretariat, together with the Advisory Bodies, prepares the selection criteria to be used to evaluate requests for international assistance99 which are contained in Annex 9 to the Operational Guidelines. Following a grant by the Fund, the Secretariat must collate and maintain, with the assistance of the Advisory Bodies, the results of the evaluation of the implementation of the international assistance within three months of the activities’ completion.100

9.  Awareness raising and education States Parties to the Convention are required to use all appropriate means, including educational and information programmes, to promote and protect the world heritage (Art. 27). The Secretariat provides assistance to States Parties in raising public awareness of the Convention generally and threats to world heritage. It also guides States Parties concerning on-​site educational projects funded under international assistance. The Advisory Bodies and the appropriate national agencies may be asked to provide guidance on such projects.101 These Secretariat functions are delegated to the Secretariat by the Director-​General pursuant to the UNESCO Constitution and under the authority of the Committee.102 This role has been augmented by the Director’s coordination of the Centre’s activities with those of UNESCO’s Education Sector, Advisory Bodies, and other partners to prepare educational materials for schools, universities, museums, and

  Reg. 3(1), Financial Regulations of World Heritage Fund; and Art. 15.3.e WHC.   Paras 231 and 232, Part VII.B, 2021 OG; Decision 43 COM 11A; Decision 39 COM 11; and 192 EX/​ 5.INF. 95   Para. 28(g), Part 1.F, 2021 OG.    96  Para. 225, Part VII.B, 2021 OG. 97   Parts VII.F, G, and I, 2021 OG.    98  Para. 247, Part VII.G, 2021 OG. 99   Decision 30 COM 14A, para. 7(e).    100  Para. 256, Part VII.I, 2021 OG. 101   Para. 218, Part VI.C, 2021 OG. 102   Doc. WHC-​97/​CONF.208/​5, Annex B, para. 121. Art. 16.2, Part VI of the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Art. IV, para. 4 of the Constitution, adopted by the General Conference at its 5th session, 5C/​Resolutions, pp. 133–​ 134 and 137–​139 (as amended) requires that UNESCO Member States (including non-​signatories to the Convention) make the text of the Convention available to the bodies, target, groups and other entities interested in matters dealt with by the instrument. 93 94

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other educational authorities and it is encompassed in the World Heritage Education Programme initiated in 1994.103 In addition, in respect of information sources, the Secretariat is required to maintain a database of all documentation of the World Heritage Committee and General Assembly of States Parties to the Convention. It also maintains archives of the tentative lists, World Heritage nominations and their supporting documentations, information on inscribed properties including evaluations and related documentation from Advisory Bodies, correspondence received from States Parties including information on periodic reporting and reactive monitoring, international assistance, and correspondence from the UNESCO Secretariat and World Heritage Committee.104 Archived materials are kept in paper copy and electronic copy, appropriate to long-​term storage. There are currently varying levels of access to documentation via the official World Heritage website established and maintained by the Centre.105 States Parties may request copies of documents but are urged to post nomination dossiers of inscribed properties on their own websites and advise the Secretariat accordingly, so that other States Parties may access them when preparing nomination files. Advisory Bodies’ evaluations and Committee decisions on an inscribed property are provided on a dedicated page on the Centre’s website.106 The Secretariat also maintains a database of the Committee’s decisions and the General Assembly’s resolutions available on that website.

10.  Coordination with UNESCO and related Conventions At its meeting in Cartagena, Colombia in 1993, the World Heritage Committee requested that the Centre strengthen its role by coordinating the actions decided by the Committee with those of other related actions in UNESCO and other organizations; and ensuring in that framework the Secretariat services of the Committee and General Assembly.107 The Operational Guidelines require the Secretariat when performing its functions to ‘work in close-​co-​operation with the other sectors and field offices of UNESCO’.108 Article 13.7 requires the Committee to cooperate with international and national governmental and NGOs whose work complements the Convention’s objectives. The Operational Guidelines acknowledge the need for the Committee, with the assistance of the Secretariat, to enhance the coordination of its work with other UNESCO programmes and related Conventions,109 including the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its two Protocols, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), Convention on the Protection of the Underwater Cultural Heritage (2001), the Convention for the Safeguarding of the Intangible Cultural Heritage (2003),110 and the Man and the 103   Paras 220–​221, Part VI.C, 2022 OG; DG/​Note/​00/​01, 13 January 2000; Doc. WHC-​02/​CONF.202/​ 12, paras 20–​24; Doc. WHC/​21/​44.COM/​5A, paras 31–​34 and 77–​83. 104   Paras 280 and 281, Part IX.A, 2021 OG; and Decision 30 COM 14A, para. 7(f ). 105 106   Available at http://​whc.une​sco.org/​docume​nts.   Paras 283–​284, Part IX.A, 2021 OG. 107   Doc. WHC-​94/​CONF.003/​16, para. VIII.2; and Decision 17COM VII.9–12. 108   Para. 27, Part I.F, 2021 OG; and Art. 13.7 WHC. See Discussion on the Relationship between the World Heritage Committee and UNESCO, Doc. WHC-​02/​CONF.202/​12, paras 9–​25; and Cooperation and Coordination between UNESCO Conventions on Heritage, Doc. WHC-​04/​7 EXT.COM/​9. 109   Para. 42, Part I.J, 2021 OG. 110   See Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage, 22 October 2004, Doc.WHC-​04/​7 EXT.COM/​INF.4, Annex 1.

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Biosphere (MAB) Programme. To facilitate these efforts, the Cultural Conventions Liaison Group (CCLG), chaired by UNESCO’s Director of the Division for Heritage, was formed in 2012 to promote better synergy in common areas of cooperation including ratifications, listing, and periodic reporting.111 The CCLG became a focal point addressing not only working methods and procedures but also ‘cost-​efficiency’ of statutory meetings across these Conventions.112 Revisions to the periodic reporting format and the official website promote these synergies,113 as well as the Rules of Procedure.114 The UNESCO General Conference has reaffirmed the need for the cultural Conventions, including the World Heritage Convention, to collaborate and proactively foster synergies.115 However, this coordinated approach is not limited to UNESCO Conventions and programmes covering World Heritage and extends to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar) (1971), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973), the Convention on the Conservation of Migratory Species of Wild Animals (CMS) (1979),116 the United Nations Convention on the Law of the Sea (UNCLOS) (1982), the Convention on Biological Diversity (1992), the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995), the United Nations Framework Convention on Climate Change (1992), and the International Treaty on Plant Genetic Resources for Food and Agriculture (2001).117 With the assistance of the Secretariat, the Committee can invite representatives of the intergovernmental bodies under these Conventions to attend its meetings as observers with priority given to biodiversity-​related conventions.118 Conversely, the Committee can, if invited to do so, appoint a representative to observe meetings of these other intergovernmental bodies.119 While there is clear merit in coordinating the activities of UNESCO and related Conventions covering natural and cultural heritage, there is a danger (however slight) that the centralization of these Secretariat tasks of the UNESCO Conventions with the World Heritage Centre could lead to a conflict of priorities, if not of purposes.120

111   UNESCO Conventions in the field of Culture, 11 May 2012, Doc. WHC-​12/​36.COM.5A.1; Audit of the Working Methods of the Culture Conventions, 14 October 2013, Doc. WHC-​13/​19.GA/​INF.8A. 112   Decision 37 COM 5A, para. 9; and Decision 38 COM 5F.2. The Conventions Common Service (CCS) Unit in the Culture Sector facilitated this effort through sharing of resources: Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 27 May 2016, Doc. WHC/​16/​40.COM/​5A, para. 65; Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 19 May 2017, Doc. WHC/​17/​41.COM/​5A, para. 90; Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 20 May 2019, Doc. WHC/​19/​43.COM/​5A, paras 114–​117. 113   Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, Doc. WHC/​18/​42.COM/​5A, paras 107–​108. 114   Doc. WHC/​21/​44.COM/​5A, paras 115–​118. 115   41C/​5; and Doc. WHC/​21/​44.COM/​INF.5A 11. 116   In conjunction with the Science Sector, the Centre finalized a Memorandum of Understanding in respect of the Convention on Migratory Species: Doc. WHC-​02/​CONF.202/​12, para. 17. 117   Para. 44, Part I.J, 2021 OG; World Heritage Convention and main multilateral environment agreements, 31 March 2009, Doc. WHC-​09/​33.COM/​5C; and Doc. WHC-​12/​36.COM/​INF.5A.1, pp 4–​6. 118  Doc. WHC/​ 19/​ 43.COM/​ 5A, paras 123–​ 134. It is coordinated through the Liaison Group on Biodiversity-​related Conventions (BLG) at UNESCO headquarters. 119 120   Para. 43, Part I.J, 2021 OG.   Doc. WHC-​02/​CONF.202/​INF.15, para. 9.

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11.  World Heritage emblem The World Heritage Convention makes no reference to the World Heritage emblem but regulation of the emblem’s usage is extensively covered by the Operational Guidelines.121 States Parties must provide the Secretariat with a list of names and contact details of the authorities charged with managing the use of the emblem.122 In addition, the Director of the Centre has the authority to grant use of the emblem (in accordance with the Operational Guidelines). A request for authorization must be sent to the Director setting out the objective of the use, its duration, and its territorial validity.123 Difficult cases may be referred to the Chairperson of the Committee, who may leave the final decision to the Committee. An annual report must be submitted by the Secretariat to the Committee of all authorized uses of the emblem.124 Authorized usage by third parties under strict conditions may be approved by the Director, and the Secretariat may create an agreement with a relevant partner.125 Any decision to decline an application for usage must be given in writing by the Director.126 When financial benefit is derived from authorized usage, the Secretariat must conclude an agreement which ensures that the World Heritage Fund obtains an appropriate proportion of the income. Also, in cases of commercial usage, any time expended by Secretariat staff, except that which is nominal, must be reimbursed by the party seeking authorization.127 Partners for production of products deemed necessary by the Secretariat must, at a minimum, conform with the criteria contained in the Comprehensive Partnership Strategy (including the Separate Strategy for Engagement with Individual Categories or Partners)128 and the PACT Strategy.129 Only States Parties are authorized to approve products with the emblem relating to properties on their territory. Other States Parties may review such uses or refer them to the Secretariat. States Parties must inform the Secretariat of the appropriate national authority to be advised when such a review is requested.130

III.  Article 14.2—​The Secretariat, Advisory Bodies, and Work of the Committee A.  Interrelationship between the Secretariat and the Advisory Bodies In fulfilling the role delegated to it pursuant to Article 14.2 of the Convention, the Secretariat is required to ‘the fullest extent possible [use] the services’ of ICCROM, ICOMOS, and IUCN. The plain language of this provision appears to indicate that these three governmental and non-​governmental organizations may be called upon by the Secretariat to fulfil its tasks. The Secretariat is also required to consult the Advisory Bodies in respect of its other functions, including the preparing of documentation for nominations, periodic reporting, reactive monitoring, procedures for deletion of inscribed properties, and   Part VIII, 2021 OG.   Para. 277, Part VIII.F, 2021 OG; and Circular letter of 14 April 1999. 123   Para. 278(a), Part VIII.F, 2021 OG. 124 125 126   ibid, para. 278(b).   ibid, para. 278(d).   ibid, para. 278(e). 127   ibid, para. 275(h). The Secretariat cannot accept any advertising, travel, or other promotional incentives from travel agents or similar companies in lieu of financial remuneration for the use of the emblem: para. 275(g), Part VIII.E, 2021 OG. 128  192 EX/​ 5.INF.   129  Doc. WHC-​13-​37.COM/​5D.    130  Para. 279, Part VIII.G, 2021 OG. 121 122

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international assistance. By contrast to Article 14, Article 13.7 enables the Committee to call upon other such organizations to implement its programmes and projects. The role of the Advisory Bodies is to provide the Secretariat (and the Committee) with technical advice in their relevant areas of expertise in policy and decision-​making processes within the institutional framework established under the Convention. These organizations were instrumental in the drafting and negotiation of the Convention and in subsequent reform processes such as revision of the Operational Guidelines. The travaux préparatoires of the Convention noted the important work being undertaken by these organizations in the preservation and conservation of natural and cultural heritage of universal interest and urged every Member State to cooperate with them.131 It was foreseen when the Convention was being drafted and negotiated that the Advisory Bodies would play a vital role in the promotion and implementation of the objectives of the Convention and the Committee.132 However, their roles have not been without controversy. The role of the Advisory Bodies was designed in part to neutralize the process in two ways: depoliticizing it through the application of clearly defined criteria by independent experts;133 and the oversight of the processes in the system by external bodies. However, even the Advisory Bodies—​like any body of experts—​are also subject to scrutiny including suggestions of lack of accountability and transparency and the composition of the organizations themselves. The delineation and coordination of the roles of the Secretariat and Advisory Bodies continue to develop with their evolving roles and responsibilities. The 1997 external audit of the Centre recommended that the Centre and Advisory Bodies finalize memoranda of understanding to better coordinate functions and resources.134 The delineation of the roles of the Centre and the Advisory Bodies concerning their ‘shared responsibility’ was revisited a decade later.135 It was concluded that their roles were ‘complementary’ and ‘not overlapping’. The Centre was a ‘facilitator’ and needed to adopt a ‘neutral attitude’, while the Advisory Bodies gave ‘professional and independent advice’.136 This approach has been reiterated in successive UNESCO programmes and budgets approved since 2014 which have emphasized the effective implementation of the Convention through sustainable management by the member states.137   See Doc. SHC/​MD/​17, p. 20.   ibid, Annex I, pp. 4–​5, paras 14, 15, 17, and 18. They may attend the meetings of the Committee in an advisory capacity (Art. 8.3); be called upon for the implementation of the Committee’s projects and programmes (Art. 13.7); and the Director-​General shall use their services to prepare the agenda of the Committee’s meetings and implement its decisions (Art. 14.2). 133   e.g. the 1997 external audit noted that: ‘The delegation of nomination evaluations to ICOMOS and IUCN allows for a relatively objective and independent assessment and frees the Committee and Centre from the political pressure that might be brought to bear’: Doc. WHC-​97/​CONF.208/​5, Annex B, para. 44. However, the report also recommended that the Centre ‘periodically and selectively obtain an independent second opinion on the nomination process’. 134   See Doc. WHC-​97/​CONF.208/​5, Annex B, para. 77; and Working Methods of the World Heritage Committee, 4 July 2006,, Doc. WHC-​06/​30.COM/​13, para. 16. 135   Decision 31 COM 19, para. 12(d); Res. 16 GA 5; Decision 32 COM 17; and Doc. WHC-​09/​33.COM/​ 5A; Roles of the World Heritage Centre and the Advisory Bodies, 9 July 2010, Doc. WHC-​2010/​34.COM/​ 5C, para. 4; Doc. WHC-​13/​37.COM/​5C, p. 6 Advisory Bodies (expertise, independent technical, and analytical functions) and Secretariat (regulatory and technical function). 136   Doc. WHC-​2010/​34.COM/​5C, para. 15; Roles of the World Heritage Centre and the Advisory Bodies, 6 May 2011, Doc. WHC-​11/​35.COM/​5D. 137   Report of the World Heritage Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 15 May 2015, Doc. WHC-​15/​39.COM/​5A, paras 5–​6; Report of the World Heritage 131 132

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The cost of the services provided by the Advisory Bodies has come under increasing scrutiny over the last decade because of the perilous state of the World Heritage Fund, of which the largest portion of the budget is allocated to the Advisory Bodies; and the increasing trend of the Committee not to follow advice on that subject despite the costs and the impact on the credibility of the Convention (see the commentary on Art. 13 by Vrdoljak). In recent years, the annual reports of the Advisory Bodies to the Committee have consistently emphasized budgetary constraints rendering their roles more difficult and threatening the credibility of the Convention.138 These financial constraints are different for each Advisory Body. ICCROM being an intergovernmental organization receives contributions from member states and in-​kind and financial contributions from partner organizations, and also funding for its advisory work under the Convention.139 ICOMOS and IUCN are NGOs, with ICOMOS being ‘entirely dependent’ on UNESCO funds,140 while the IUCN is in receipt of other funding through partnership agreements with donors and volunteers.141 Although they have their own respective codes of ethics, the Advisory Bodies are also subject to the Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage. This requires them, among other things, to act consistently with the Declaration when advising the Committee in its deliberations, to be transparent during the evaluation process including through consultation and constant dialogue with nominating States Parties, and in their advisory roles to consider divergence of ‘expertise views based on professional, geographical and cultural perspectives’.142 Nonetheless, it cannot be disputed that these organizations through their role in the day-​to-​day application of the Convention, the review and revision of the Operational Guidelines, and the implementation of the Global Strategy and Capacity Building Strategy continue to facilitate the conservation of World Heritage.

Centre on its activities and the implementation of the World Heritage Committee’s Decisions, 20 May 2019, Doc. WHC/​19/​43.COM/​5A, paras 6–​7. Indeed, the IUCN called for a biennial meeting of the Committee, ‘to enable budgets of both the Convention and the States Parties to be reprioritised to follow up Committee decisions, and increasing dialogue in the evaluation and monitoring processes of the Convention’: Doc. WHC/​ 16/​40.COM/​5B, para. 49. 138   General Joint Comment of the Advisory Bodies on the Implementation of the Convention, in Reports of the Advisory Bodies, 11 May 2012, Doc. WHC-​12/​36.COM/​5B, para. 57. 139   ICCROM Annual Report 2020 Issue 46, at https://​www.icc​rom.org/​sites/​defa​ult/​files/​2021-​08/​iccrom​ _​ann​ual_​repo​rt_​2​020.pdf; and Financial performance of ICCROM in 2020, at https://​www.icc​rom.org/​ about/​corpor​ate-​info/​financ​ial-​info; and p. 31. 140   ICOMOS’s annual reports have consistently commenced with reaffirmation of their commitment to serve the Committee ‘in spite of the challenges that the World Heritage Convention is facing’: Reports of the Advisory Bodies, 27 May 2016, Doc. WHC/​16/​40.COM/​5B, para. 16; Reports of the Advisory Bodies, 19 May 2017, Doc. WHC/​17/​41.COM/​5B, para. 18 and calling on the Committee to finance efforts to ‘strength dialogue with Advisory Bodies’ (para. 20); Reports of the Advisory Bodies, 14 May 2018, Doc. WHC/​18/​ 42.COM/​5B, para. 17; and Reports of the Advisory Bodies, 4 June 2021, Doc. WHC/​21/​44.COM/​5B, para. 23. 141   Doc. WHC-​10/​34.COM/​5G, p. 17; Reports of the Advisory Bodies, 18 June 2010, Doc. WHC-​10/​ 34.COM/​5B, pp. 26–​27; Doc. WHC/​16/​40.COM/​5B, para. 49 ‘notes the Convention’s severe budgetary challenges continue’; Reports of the Advisory Bodies, 19 May 2017, Doc. WHC/​17/​41.COM/​5B, para. 59; Doc. WHC/​18/​42.COM/​5B, para. 62; Doc. WHC/​18/​42.COM/​5B, para. 63. 142   Doc. WHC/​21/​23.GA/​INF.10, paras 13–​15.

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B.  Profiles of Advisory Bodies The World Heritage Convention nominates three Advisory Bodies: IUCN, ICOMOS, and ICCROM.

1.  International Union for the Conservation of Nature and Natural Resources (IUCN) According to the Operational Guidelines, the specific role of IUCN in relation to the Convention includes: evaluation of natural and mixed properties nominated for inscription on the World Heritage List, monitoring of natural World Heritage properties, reviewing international assistance requests received from States Parties, facilitating capacity-​building activities,143 and contributing to the Global Strategy in respect of natural heritage sites. Currently, IUCN’s World Heritage Panel provides this technical advice to the Committee on natural heritage, with members being IUCN staff and members and external experts selected because of their high level of experience with the Convention.144 IUCN was established in 1948. It was known as the International Union for the Protection of Nature (IUPN) and changed its name in 1956. Since 1990, it has been known as the World Conservation Union or IUCN. It is an international association comprising governmental and non-​governmental entities. It headquarters are located in Gland, Switzerland and its Secretariat is made up of 900 staff spread across 60 countries (as at 2019).145 The Statutes of the IUCN identify its objectives as ‘to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable’.146 Its Preamble states that as an international organization concerned with the ‘protection and conservation of nature and natural resources of vital importance to all nations’ it will be of value to ‘governments, the United Nations and its Specialized Agencies and other interested organizations’.

2.  International Council on Monuments and Sites (ICOMOS) ICOMOS’s role is similar to that of IUCN except that it gives expert advice on cultural properties and cultural landscapes. It provides the World Heritage Committee with evaluations of properties with cultural values proposed for inscription on the World Heritage List, monitors the state of conservation of cultural World Heritage properties, reviews requests for international assistance, and supports capacity-​building activities.147 ICOMOS was established following the Resolution concerning the Creation of an International Non-​Governmental Organisation for Monuments and Sites put forward by UNESCO and adopted at the Second Congress of Architects and Specialists of Historic Buildings in 1964. ICOMOS is an NGO with its headquarters in Paris, France and was   Para. 37, Part I.G, 2021 OG.  Terms of Reference for the ICUN World Heritage Panel, approved by the IUCN Director General, November 2015, at https://​www.iucn.org/​sites/​dev/​files/​cont​ent/​docume​nts/​tor_​for_​iucn_​world_​heritage_​ panel_​revi​sed_​nove​mber​_​201​5_​fi​nal.pdf; and Code of Conduct for IUCN’s work in relation to providing advice to the World Heritage Committee, 2015. 145  IUCN 2019 Annual Report, p. 5 at https://​port​als.iucn.org/​libr​ary/​sites/​libr​ary/​files/​docume​nts/​ 2020-​025-​En.pdf. 146   Art. 2, Statute of 5 October 1948, revised on 22 October 1996 and last amended on 10 September 2021, at https://​port​als.iucn.org/​libr​ary/​sites/​libr​ary/​files/​docume​nts/​2022-​002-​En.pdf. 147   Para. 35, Part I.F, 2021 OG. 143 144

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established in 1965. It adheres to the principles established in the International Charter on the Conservation and Restoration of Monuments and Sites (Venice Charter) adopted during the 1964 conference.148 ICOMOS’s revised Statutes define its aim as providing ‘advice on and support the implementation’ of the World Heritage Convention (Art. 4.i). It is required to ‘establish and maintain close co-​operation with UNESCO, [ICCROM], regional conservation centres sponsored by UNESCO, and other international or regional institutions and organisations pursuing similar goals’ (Art. 4.h).149 Its stated mission includes promoting conservation, protection, use and enhancement of monuments, building complexes, and sites, participating in the development of doctrine and evolution of ideas, and advocacy.150 To realize these and other objectives, it provides scientific and professional assistance in respect of cultural and mixed properties.151 The ICOMOS World Heritage Panel is drawn from its National Committees, International Scientific Committee, and individual members based on their competence and experience.152

3.  International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) Under the Operational Guidelines, ICCROM is defined as the priority partner in respect of training for cultural heritage. It also monitors cultural World Heritage properties, reviews international assistance requests, and provides support for capacity-​building activities.153 In 1956, at its 9th session, the UNESCO General Conference sought to establish an intergovernmental centre to study and promote conservation methods. ICCROM was established with its headquarters in Rome, Italy following a formal agreement with the Italian government in 1959. As at 2022, it has 139 member states. Under its governing Statutes, ICCROM is charged with contributing to the worldwide conservation and restoration of cultural property (movable and immovable) by initiating, developing, promoting, and facilitating conditions for conservation and restoration.154 Its

148   International Charter on the Conservation and Restoration of Monuments and Sites (Venice Charter) approved at the 2nd International Congress of Architects and Technicians of Historic Monuments, Venice, 25–​31 May 1964, at https://​www.ico​mos.org/​ima​ges/​DOCUME​NTS/​Chart​ers/​venic​e_​f.pdf. See the list of relevant standard setting instruments adopted by ICOMOS, at https://​www.ico​mos.org/​en/​what-​we-​do/​invo​ lvem​ent-​in-​intern​atio​nal-​conv​enti​ons/​standa​rds. 149   ICOMOS Statutes adopted by the 5th General Assembly of ICOMOS, 22 May 1978, and revised to 12 November 2017, at https://​www.ico​mos.org/​en/​about-​ico​mos/​miss​ion-​and-​vis​ion/​statu​tes-​and-​polic​ies. 150   ICOMOS’ Mission, 7 October 2011, at https://​www.ico​mos.org/​en/​about-​ico​mos/​miss​ion-​and-​vis​ion/​ ico​mos-​miss​ion. 151   ICOMOS and World Heritage Mission Statement, 6 December 2016, at https://​www.ico​mos.org/​en/​ ico​mos-​and-​world-​herit​age/​the-​world-​herit​age-​con​vent​ion-​2. 152   Terms of Reference of the ICOMOS World Heritage Panel, November 2015, includes Policy for the Implementation of the ICOMOS World Heritage mandate (approved by ICOMOS Board, 17 January as amended at October 2015), at https://​www.ico​mos.org/​ima​ges/​Term​s_​of​_​ref​eren​ce_​P​anel​_​EN.pdf; and Ethical Principle adopted by general Assembly on 12 November 2014 as amened 7 December 2020, at https://​ www.ico​mos.org/​ima​ges/​DOCUME​NTS/​Secr​etar​iat/​2015/​GA_​2​014_​resu​lts/​20150​114-​eth​ics-​asadop​ted-​ langua​gech​eck-​fina​lcir​c_​re​v202​012.pdf. 153   Para. 33, Part I.G, 2021 OG. 154  Statutes of the International Centre for the Study of the Preservation and Restoration of Cultural Property, as revised and approved by the XXVIII session of the General Assembly on 29 November 2013, Art. 1, at https://​www.icc​rom.org/​sites/​defa​ult/​files/​Basic%20te​xts-​%20Tex​tes%20f​onda​ment​aux%20pdf. pdf; and ICCROM, Values and Ethics, at https://​www.icc​rom.org/​about/​overv​iew/​val​ues.

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stated functions include: (a) collection, study, and circulation of information on scientific, technical, and ethical issues relating to the conservation and restoration of cultural property; (b) coordination, stimulation, and instigating research in that field; (c) giving advice and making recommendations in that area; (d) promotion, development, and provision of training programmes on conservation and restoration and strengthening standards and practices in the field; and (e) encouraging activities that encourage understanding of the field.

C.  Roles of the Advisory Bodies in Assisting the World Heritage Committee Pursuant to the Convention, the Operational Guidelines, and the Budapest Declaration on World Heritage, as well as advising on the implementation of the Convention in their respective areas of expertise, the roles of the Advisory Bodies include: • assisting the Secretariat in preparing the agenda and documentation for Committee meetings, and implementing its decisions; • aiding in developing and implementing the Global Strategy, World Heritage Capacity Building Strategy, periodic reporting, and effective use of the World Heritage Fund; • monitoring the state of conservation of World Heritage properties including reactive monitoring missions requested by the Committee and Advisory missions by the relevant State Party, and reviewing international assistance requests; • evaluating nomination dossiers and presenting evaluation report to the Committee; and • attending Committee and Bureau meetings in an advisory capacity.155

1.  Nomination process As part of the nomination process, a nominated property is evaluated by the two Advisory Bodies mandated by the Convention: ICOMOS and IUCN.156 The Operational Guidelines set out in detail the role of the Advisory Bodies in the evaluation the nominations. They are required to evaluate whether the nominated properties are ‘of outstanding universal value, meet the conditions of integrity and (where relevant) of authenticity and meet the requirements of protection and management’.157 The evaluation of cultural heritage nomination is undertaken by ICOMOS; natural heritage nominations by IUCN; ‘cultural landscapes’ by ICOMOS in consultation with IUCN; and mixed properties are evaluated jointly by IUCN and ICOMOS.158 These bodies are required to adhere to the following principles when undertaking evaluations of nominations: • complying with the Convention, Operational Guidelines, and additional policies proscribed by the Committee’s decisions; • being ‘objective, rigorous and scientific’ in considering nomination dossiers and other information; • engaging in a ‘consistent standard of professionalism, equity and transparency’ during evaluation in the nomination process when consulting with the relevant State Party;   Para. 31, Part I.G, 2021 OG; and Decision 39 COM 11. 157   Art. 14.2 WHC; and Part III.E, 2021 OG.   Para. 143, Part III.E, 2021 OG. 158   ibid, paras 144–​147. 155 156

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• preparing evaluations in a format proscribed by the Secretariat and providing details of experts engaged in the evaluation process except confidential desk reviews, and providing detailed costings; • engaging regional experts familiar with the subject area; • clearly indicating whether the nominated property is of outstanding universal value, meets the integrity or authenticity conditions, management plan, and legislative protection; • evaluating each property according to all relevant criteria, including state of conservation, in comparison with similar properties in the State Party’s territory and externally; • considering Upstream Process advice (if provided), and the outcome of the preliminary assessment and including Committee decisions and requests concerning the nomination; • detailing the literature referenced to support its views; and • disregarding information provided by the State Party after a certain date in the year the nomination is considered by the Committee.159 The Advisory Bodies are asked to provide a short interim report outlining the status, issues relevant to evaluation, and requests for additional information, to States Parties and the Secretariat, which forwards it to the Committee Chairperson.160 The nominating State Party can address such factual errors using the form annexed to the Operational Guidelines and submitted to the World Heritage Centre and Advisory Bodies, who may respond to these comments prior to their publication. The increasing costs related to the implementation of the Convention led to acceptance of the recommendation to chargeback the costs of the evaluation of nominations.161 The nominating State Party is ‘expected’ to make a ‘voluntary’ contribution to the funding of evaluations of the nomination (and preliminary assessments) by the Advisory Body based on the average costs published by the Secretariat. The contribution is to be made after a successful check for completeness. It should not affect the evaluation by the Advisory Body or the order of priority in processing nominations. Contributions are not expected from least developed countries or low-​income economies, lower middle income countries, small island developing states, or States Parties in conflict or post conflict.162 The recommendation to the Committee is made in one of three forms: (a) recommended for inscription without reservation; (b) not recommended for inscription; or (c) recommended for referral or deferral.163 When the Committee decides to inscribe a property on the World Heritage List, it is guided by the Advisory Bodies concerning the Statement of Outstanding Universal Value (OUV Statement).164 Where the Committee has decided to refer the nomination back to the State Party for further information, it may be submitted to the Secretariat prior to the next session (within a set time frame) and that information is then forward by the   ibid, para. 148; Decision 28 COM 14B.57; Decision 30 COM 13; and Decision 39 COM 11.   Para. 149, Part III.E, 2021 OG; Decision 7 EXT COM 4B1; and Decision 39 COM 11. 161   Doc. WHC-​13/​19.GA/​INF.8A, p. 6, Recommendation 2. ICOMOS noted that the nomination had become ‘increasingly complex’, at the ‘expense of clarity or coherence of dossiers’, which could ‘benefit from a longer preparation time’: Doc. WHC/​17/​41/​COM/​5B, para. 31. 162   Para. 16 bis, Part III.K, 2021 OG; Decision 43 COM 11A and Decision 43 COM 14. 163   Para. 151, Part III.E, 2021 OG. 164   Para. 154, Part III.G, 2021 OG. The protection and management plan contained in the OUV Statement is updated by the Committee in consultation with the State Party and review of the Advisory Bodies: para. 155. 159 160

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Secretariat to the Advisory Body for evaluation.165 The nominating State Party can seek advice from the Advisory Body. A similar procedure, but with a different timetable, is followed in respect of deferred nominations.166 The usual timetable and requirements for information and processing of nominations does not apply to nominations on an emergency basis; that is, properties which in the view of the Advisory Body ‘would unquestionably justify Outstanding Universal Value’.167 When evaluating the nomination dossier, the Advisory Body must assess whether the property may justify the appellation of outstanding universal value, the nature of the danger, and urgency of the Committee’s decision. A field visit may be conduct if time permits.168 The Committee may determine that the Advisory Body conduct a follow-​up mission after inscription to fulfil its recommendations. In addition, the Secretariat seeks the advice of the relevant Advisory Body when a State Party requests a minor modification to the boundaries of an inscribed property, that is, it does not have ‘a significant impact on the extent of the property nor affects its outstanding universal value’.169 If a State Party proposes a significant modification to the boundaries or change in the criteria for which the property is inscribed, that is treated as a new nomination with the relevant timetable and procedures to be followed by the Secretariat and Advisory Bodies applicable to that process, including inclusion of the tentative list and preliminary assessment.170 The increasing divergence between the evaluation and recommendations on nomination dossiers and the decisions by the Committee has come into stark relief because of the cost of preparing evaluations, politicization of the decision-​making processes, and its impact on the credibility of the Convention. In 2019, 87% of the Advisory Bodies’ recommendations were not followed by the Committee, with the Secretariat recording that ‘for the first time in the history of the Convention sites recommended for non-​inscription were inscribed on the World Heritage List’.171 More recently, the IUCN ‘expresse[d]‌its continued and increasing concern’ with the continuation of the trend and stated that if it were ‘unchecked [it] threatens to undermine the credibility of the Convention’.172 The Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage, adopted in 2021, is intended to address some of these concerns.

2.  Global Strategy for a Balanced, Representative and Credible World Heritage List and tentative lists Research undertaken by ICOMOS, and subsequently by IUCN, proved crucial in setting in train the reforms which led the World Heritage Committee in 1994 to adopt the Global Strategy.173 From its launch to late 2006, the number of signatories to the Convention rose from 139 to 194, largely from previously underrepresented regions such as the Pacific Islands, Africa, and Eastern Europe.174 The number of State Parties who have submitted tentative lists complying with the format established by the Committee has grown from 33 to 185 with a ‘very high proportion’ being cultural sites.175 The 166   Para. 159, Part III.E, 2021 OG.   ibid, para. 160. 168   Para. 161, Part III.H, 2021 OG.   ibid, para. 162(c). 169 170   Paras 163 and 164, Part III.I, 2021 OG.   ibid, paras 165 and 166. 171 172   Doc. WHC/​19/​43.COM/​5A, para. 91.   Doc. WHC/​21/​44.COM/​5B, para. 74. 173   Report of the Expert Meeting on the ‘Global Strategy’ and thematic studies for a Representative World Heritage List, Doc. WHC.94/​CONF.003/​05, adopted by the World Heritage Committee at its 18th session, 1994. 174 175   Doc. WHC/​21/​44.COM/​5A, para. 11.   ibid, para. 60. 165 167

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preparation of an inventory of natural and cultural heritage properties on their territories by States Parties is required by the Convention (Art. 11.1), with the Global Strategy reinforcing the significance of tentative lists. The promotion of the preparation and submission of tentative lists is intended to encourage States Parties that are under-​represented or unrepresented on the World Heritage List to nominate properties for inscription and widen the types of properties on the List. The Operational Guidelines encourage States Parties to consider the analyses of the World Heritage List and tentative lists prepared by ICOMOS and IUCN to enable them to identify and compare themes, regions, geo-​cultural groupings, and bio-​geographic provinces for possible World Heritage properties.176 In addition, they are encouraged to request Upstream Process advice from the Advisory Bodies when preparing tentative lists and consult thematic studies and technical studies prepared by them.177 Advisory Bodies are also involve in the regional harmonization of tentative lists between States Parties and ‘different cultural communities’.178 Advisory Bodies are additionally asked to use the evaluation missions as an opportunity for regional training seminars on the preparation of tentative lists and nominations.179

3.  Upstream Process and preliminary assessment Advisory Bodies are part of the voluntary Upstream Process providing advice and capacity-building for States Parties in preparation for the nomination of a property.180 The requisite preliminary assessment prior to the submission of a nomination is viewed as ‘an opportunity for enhanced dialogue’ with the Advisory Bodies with the establishment of points of contact with the nominating State Party to facilitate the process and ensure that conclusions of the preliminary assessment are relayed to the relevant stakeholders.181 This is undertaken by ICOMOS and IUCN jointly whenever relevant and is a desk review prepared in consultation with expert reviewers, with the report provided to the State Party via the Secretariat. The cost of an Upstream Process request is met by the requesting state, while the cost of the preliminary assessment is part of the overall evaluation process costs.182 Nonetheless, the IUCN has noted that lack of adequate resources for the Upstream Process’s effective implementation could lead to ‘further distort[ing] the imbalance in the World Heritage List’.183

4.  Periodic reporting and reactive monitoring Under the current Operational Guidelines, States Parties may request the assistance of the Advisory Bodies (and the Secretariat) in the preparation of periodic reports for the UNESCO General Conference.184 The Committee may ask the Secretariat, together with the Advisory Bodies, to prepare regional strategies for the periodic reporting process and to develop regional objectives.185 As explained earlier, IUCN and ICOMOS are responsible for monitoring the state of conservation of World Heritage natural and cultural properties, respectively.   Para. 71, Part II.C, 2021 OG; Decision 39 COM 11; Doc. WHC-​04/​28.COM/​13.B, Annexes I and II. 178 179   Paras 71 and 72, Part II.C, 2021 OG.   ibid, para. 73.   ibid, para. 76. 180   Para. 121, Part III.A, 2021 OG; Decision 34 COM 12 (III) Report of the Expert Meeting on Upstream Processes to Nominations; Decision 36 COM 13.I; Decision 39 COM 11; and Decision 43 COM 11A. 181 182   Para. 122, Part III.A, 2021 OG.   ibid, para. 122(i). 183   Doc. WHC/​17/​41.COM/​5B, para. 61. 184 185   Para. 200, Part V.A, 2021 OG; and Art. 29 WHC.   Para. 147, Part III.E, 2021 OG. 176 177

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In addition, the Advisory Bodies are able to provide reactive monitoring to the Committee on the state of conservation of specific World Heritage properties that are under threat, inscribed, or to be inscribed on the List of World Heritage in Danger, or those scheduled for deletion from the World Heritage List.186 The Committee recommends that the relevant State Party cooperates with the Advisory Body which has been requested to monitor and report to the Committee on the progress of work to preserve the inscribed properties.187 The Advisory Body will comment on information received concerning the deterioration of the property, which is forwarded to the Committee as part of the state of conservation report.188 The Committee may require the deployment of a reactive monitoring mission of expert observers from the relevant Advisory Body (or some other organization) to visit the property to evaluate the danger, and financed as an emergency assistance request by the World Heritage Fund.189 Over the last decade, the Advisory Bodies have flagged up a threat to the credibility of the Convention because of the Committee’s fixation on the nomination process, and the under-​resourcing of state-​of-​conservation monitoring viewed as vital for conservation—​ its raison d’être.190 They have repeatedly called for more funding for monitoring of properties.191

5.  Capacity building and research The Committee had increasingly recognized the complexity and necessary skills required for World Heritage conservation and the capacity-​ building initiatives for State Parties, Indigenous peoples, and local populations, by the Advisory Bodies and the World Heritage Centre.192 This was formalized in the World Heritage Capacity Building Strategy aimed at ‘ensuring the necessary skills . . . for better implementation of the Convention’ and in the Global Strategy by a ‘wide range of actors’, which was adopted in 2011.193 The Advisory Bodies are tasked by the Committee with working with UNESCO Category 2 Centres in the development of regional and national initiatives to achieve this aim.194 Both the Centre and the Advisory Bodies in their annual reports to the Committee detail at length their various capacity-​building activities. Yet, IUCN has noted that due to its capacity-​building funding being cut since 2012 because of UNESCO’s budgetary constraints, it has been funding this activity through extra-​budgetary fundraising.195

  Para. 169, Part IV.A, 2021 OG; and Decision 39 COM 11. 188   Para. 171, Part IV.A, 2021 OG.   ibid, para. 175. 189   Paras 28(f ), 176(e), 184, Part IV.B, 2021 OG. 190   Doc. WHC/​16/​40.COM/​5B, paras 34 and 55; Doc. WHC-​12/​36.COM/​5B, para. 57. 191  Doc. WHC/​17/​41.COM/​5B, para. 38. In 2017, the IUCN advised that it had ‘contributed fully, and primarily from its own resources, to the continued programme of Periodic Reporting’: Doc. WHC/​18/​ 42.COM/​5B, para. 68. 192   Part VI, 2021 OG; Decision 43 COM 11A. 193   Doc. WHC-​11/​35.COM/​9B; and Decision 43 COM 11A. 194   Para. 214, Part VI.A, 2021 OG. 195  Doc. WHC/​18/​42.COM/​5B, para. 69; and Follow-​up to the World Heritage Capacity Building Strategy and Progress Report on the World Heritage-​related Category 2 Centres, 4 June 2021, Doc. WHC/​21/​ 44.COM/​6. ICCROM was asked to provide a results-​based evaluation of the Strategy on its 10th anniversary of operation and, because funds were unavailable for a full evaluation, was confined to a desk-​based internal review: Doc. WHC/​21/​44.COM/​5B, para. 7. 186 187

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6.  International assistance States Parties seeking international assistance are encouraged to seek advice and assistance from the Advisory Bodies and the Secretariat in the preparation of their request (see the commentary on Art. 13 by Vrdoljak).196 The Advisory Bodies assist the Secretariat in assessing requests above US$30,000, with ICCROM and ICCROM assessing requests related to cultural heritage (with ICCROM not assessing requests relating to preparatory assistance); ICCROM, ICOMOS, and IUCN evaluating mixed properties (with ICCROM not assessing preparatory assistance requests); and IUCN assessing all requests related to natural heritage. The Secretariat can request the advice of the Advisory Bodies in assessing requests valued at less than US$30,000. They will also be consulted where the international assistance requests ‘specifically demand [their] involvement’ in the project.197

IV. Conclusion The successful uptake of the World Heritage Convention by states and its high profile owes much to the work of the World Heritage Centre.198 Created to fulfil the role of secretariat to the World Heritage Committee so vaguely articulated in Article 14, it has been required to take on multifarious roles beyond the strict letter of the Convention. While the World Heritage Committee and the General Assembly of States Parties to the Convention meet on a regular basis, the permanency of the Centre has meant that it has become a central point of contract and coordinator of World Heritage activities within and beyond UNESCO. This governance and oversight structure of the Convention was viewed as so successful that it became the template for other culture Conventions. Yet, the sustainability of the Secretariat in respect of resourcing, including staffing and financing, to effectively discharge its role has been a concern since the Convention came into force. This concern has only intensified over the last quarter of a century with unrelenting growth in the volume and diversity of the Centre’s responsibilities (and those of the Advisory Bodies) and the shrinking resources of UNESCO and the World Heritage Fund. Successive internal and external audits and the Secretariat and Advisory Bodies have repeatedly emphasized its untenable nature and detrimental impact on the World Heritage Convention’s credibility.

197   Para. 242, Part VII.F, 2021 OG.   Para. 247, Part VII.G, 2021 OG.   Doc. WHC/​21/​44.COM/​5A, para. 4 noting that as at 2019 visits to the World Heritage Centre’s website accounted for 41% of the page views and 33% of visits to UNESCO’s website. 196 198

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Articles 15–​18: World Heritage Fund Federico Lenzerini * Article 15 1. A Fund for the Protection of the World Cultural and Natural Heritage of Out-​standing Universal Value, called ‘the World Heritage Fund’, is hereby established. 2. The Fund shall constitute a trust fund, in conformity with the provisions of the Financial Regulations of the United Nations Educational, Scientific and Cultural Organization. 3. The resources of the Fund shall consist of: (a)  compulsory and voluntary contributions made by States Parties to this Convention, (b)  contributions, gifts or bequests which may be made by: (i)  other States; (ii) the United Nations Educational, Scientific and Cultural Organization, other organizations of the United Nations system, particularly the United Nations Development Programme or other intergovernmental organizations; (iii)  public or private bodies or individuals; (c)  any interest due on the resources of the Fund; (d) funds raised by collections and receipts from events organized for the benefit of the fund; and (e) all other resources authorized by the Fund’s regulations, as drawn up by the World Heritage Committee. 4. Contributions to the Fund and other forms of assistance made available to the Committee may be used only for such purposes as the Committee shall define. The Committee may accept contributions to be used only for a certain programme or project, provided that the Committee shall have decided on the implementation of such programme or project. No political conditions may be attached to contributions made to the Fund. Article 16 1. Without prejudice to any supplementary voluntary contribution, the States Parties to this Convention undertake to pay regularly, every two years, to the World Heritage Fund, contributions, the amount of which, in the form of a uniform percentage applicable to all States, shall be determined by the General Assembly of States Parties to the Convention, meeting during the sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization. This decision of the General Assembly requires the majority of the States Parties present and voting, which have not made the declaration referred to in paragraph 2 of this Article. In no case shall the compulsory contribution of States Parties to the Convention exceed 1% of the contribution to the regular budget of the United Nations Educational, Scientific and Cultural Organization.

*  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO. The author gratefully acknowledges Prof. Francesco Bandarin, Director of the World Heritage Centre, UNESCO, Paris, from 2000 to 2010, for the extremely useful information provided with his background paper on the subject of this chapter, used by the author for the first edition of this Commentary. Sections I, II, IV, and V have been written by Federico Lenzerini. Section III is based on a contribution written by Lynne Patchett for the first edition of this Commentary, and has been updated by Federico Lenzerini.

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2. However, each State referred to in Article 31 or in Article 32 of this Convention may declare, at the time of the deposit of its instrument of ratification, acceptance or accession, that it shall not be bound by the provisions of paragraph 1 of this Article. 3. A State Party to the Convention which has made the declaration referred to in paragraph 2 of this Article may at any time withdraw the said declaration by notifying the Director General of the United Nations Educational, Scientific and Cultural Organization. However, the withdrawal of the declaration shall not take effect in regard to the compulsory contribution due by the State until the date of the subsequent General Assembly of States Parties to the Convention. 4. In order that the Committee may be able to plan its operations effectively, the contributions of States Parties to this Convention which have made the declaration referred to in paragraph 2 of this Article, shall be paid on a regular basis, at least every two years, and should not be less than the contributions which they should have paid if they had been bound by the provisions of paragraph 1 of this Article. 5. Any State Party to the Convention which is in arrears with the payment of its compulsory or voluntary contribution for the current year and the calendar year immediately preceding it shall not be eligible as a Member of the World Heritage Committee, although this provision shall not apply to the first election. The terms of office of any such State which is already a member of the Committee shall terminate at the time of the elections provided for in Article 8, paragraph 1 of this Convention. Article 17 The States Parties to this Convention shall consider or encourage the establishment of national public and private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage as defined in Articles 1 and 2 of this Convention. Article 18 The States Parties to this Convention shall give their assistance to international fund-​raising campaigns organized for the World Heritage Fund under the auspices of the United Nations Educational, Scientific and Cultural Organization. They shall facilitate collections made by the bodies mentioned in paragraph 3 of Article 15 for this purpose.

I. The Nature of the World Heritage Fund  250 II. The Resources Making up the World Heritage Fund  252 III. Other Funds Available for the Implementation of the World Heritage Convention—​Implementation of Articles 17 and 18  257 A. Article 17  259 1. Funds-​In-​Trust 261 2. Publicly funded foundations 261 3. Privately funded foundations 263 4. Associations 263 B. Article 18  263 1. International Programme for the Preservation of Angkor, Cambodia 264



2. Biodiversity Conservation in Regions of Armed Conflict: Protecting World Natural Heritage in the Democratic Republic of the Congo 266 3. #Unite4Heritage 267 4. International cooperation through bi-​and multilateral agreements with governments and development agencies and partnerships with NGOs and the corporate sector 267

C. Collaboration with NGOs and the Corporate Sector  IV. The Penalty Imposed on States Parties in Arrears with their Contributions to the World Heritage Fund  V. The Management of the World Heritage Fund 

268

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I.  The Nature of the World Heritage Fund As expressly stated by paragraph 2 of Article 15, the Fund for the Protection of the World Cultural and Natural Heritage of Outstanding Universal Value is a ‘trust fund’ which is managed—​as a ‘Special Account’—​in conformity with the Financial Regulations of UNESCO. Contrary to most of the other trust funds in existence, no overhead is charged by UNESCO for servicing of the Fund. The main purpose of the Fund is to support States Parties to the World Heritage Convention in need of international assistance.1 The presence of the Fund may be considered as the ‘operational’ dimension of the Convention, and probably constitutes one of the main reasons for the huge success of the Convention since its entry into force. In fact—​although the Fund falls greatly short of covering the whole cost of implementing the Convention—​the availability of the resources necessary for the Convention to function does not rely (at least in part) on the ‘lunatic’ willingness of States Parties to provide them voluntarily, but may count on a reserve of funds ‘inherently produced’ by the system of the Convention itself. In addition, the existence of the Fund is one of the elements making the ratification of the Convention particularly attractive for (most) states, on account of the fact that, through accessing the Convention, in principle they not only have the chance of obtaining international recognition for their own cultural and/​or natural heritage, but also tangible economic assistance for its preservation. During the travaux préparatoires of the Convention, the issue of the establishment of the Fund and the nature of its resources was at the very centre of the negotiations, giving rise to a very lengthy debate. This is quite understandable, since the requirement to contribute to the Fund may be considered as the unique (or, at least, the main) legal obligation—​in the technical sense of the term—​pending on States Parties pursuant to the Convention. A deep divergence of views among the different delegations consequently emerged. Many of them (in particular Algeria, Burundi, Cameroon, Central African Republic, Mauritania, Morocco, Jordan, Afghanistan, Iraq, Qatar, Egypt, Syria, Kenya, and India) supported a system of compulsory contributions, relying on the ‘need to ensure regular funds for the planning and development of long-​term activities aimed at a more effective implementation of the Convention’2 and invoking the ‘universal character of the cultural and natural heritage’ as calling ‘for a global sense of responsibility and equitable participation of all States Parties to the Convention’.3 In contrast, a number

  On international assistance, see the commentary on Arts 19–​26 by Lenzerini.  See UNESCO, ‘Records of the General Conference, 17th session’ (Paris, 17 October–​21 November 1972) Vol. 2, Reports, para. 302. 3   ibid. See, in this respect, the statement of the delegate of Morocco, according to which, in view of: 1 2

l’importance que présente la culture pour le développement économique et social . . . [l’activité pour la culture] ne peut être efficace, ne peut être utile, que si elle bénéficie de subventions et de crédits suffisant. Chacun ici en est évidemment conscient et, pour ce qui est de l’aide financière à apporter à la culture, il est certain que beaucoup de nations sont prêtes à rivaliser entre elles. Cependant—​et je me réfère spécialement aux articles 15 et 16—​si l’on se remettait aux seules aides volontaire, les résultats ne répondraient peut-​être pas à nos espoirs. C’est pourquoi l’aide demandée aux 130 Etats membres de l’UNESCO, et notamment à ceux d’entre eux qui disposent de ressources colossales et d’important moyens financiers, devrait et pourrait, à mon avis, avoir un caractère obligatoire. (See Doc. 17C/​VR.33 of 16 November 1972, para. 11 (official translation from the Arabic).) See also the declaration of the representative of Kenya, saying that:

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of other delegations (including Czechoslovakia,4 Thailand,5 and the Soviet Union6) supported a scheme based on voluntary contributions, stating that ‘compulsion would present difficulties for their governments and parliaments and, consequently, decrease the flow of contributions and delay the Convention’s entry into effect’.7 In order to find a compromise solution, an ad hoc working group was set up, composed of the delegations of Afghanistan, Algeria, Canada, Mexico, Spain, the Soviet Union, Switzerland, Tunisia, and the United States. The working group drafted a text of Article 15 which was accepted by all its members with the exception of Algeria and the Soviet Union. This text was put to a two-​thirds majority vote pursuant to the rules of procedure of the negotiating Commission. It obtained 37 votes in favour, 30 against, and six abstentions;8 as a consequence, in the absence of a two-​thirds majority, the text drafted by the working group was not adopted. A new proposal was then submitted by Cameroon and Switzerland, which was also put to a two-​thirds majority vote and obtained the required majority (38 votes in favour, 19 against, 13 abstentions), leading the Fund to assume the structure resulting from the final text of Articles 15 and 16. The Fund is governed by special financial regulations—​ called the ‘Financial 9 Regulations for the World Heritage Fund’ (FRWHF) —​established by the UNESCO Director-​General in accordance with Regulation 6.7 of the Financial Regulations of the Organization. According to Regulation 2.1 of the FRWHF, the financial period of the Fund is two consecutive calendar years, coinciding with the financial period of the regular budget of UNESCO. The Fund is financed by the sources listed in paragraph 3 of Article 15 of the Convention, which is substantially reproduced—​with a few textual changes—​in Regulation 3.1 of the FRWHF. Compulsory contributions made by the States Parties to the Convention play a decisive role in ensuring the stability of the Fund and, a fortiori, the correct functioning of the system of international assistance set up by the Convention. At the same time, however, the importance of voluntary contributions has progressively increased over the years.10 [to use] some African sayings . . . it is known that when two elephants fight it is the grass that is going to suffer. . . . when the grass is destroyed it can grow. But this time it appears that there is a fight between two giants, the giant of money and the giant of votes, and the thing that is going to suffer will not be able to germinate again: it is the cultural heritage. . . . we are doing anything commendable for posterity (Ibid, para. 25.1.) 4

  See Doc. 17C/​VR.33, para. 13:

[la délégation de Tchécoslovaquie] regrette de ne pouvoir accepter le texte dont nous somme saisis, en raison de l’introduction du principe des contributions obligatoires au Fonds créé pour la protection de . . . patrimoine [mondial]. La République socialiste de Tchécoslovaquie est prête à accorder son aide à la protection effective du patrimoine cultural et naturel, ayant une valeur universelle et exceptionnelle, mais uniquement à titre bénévole. 5   See ibid, para. 15 (‘in this draft convention the committee concerned has gone beyond the limit of the possible, since we all know that compulsory contributions from Member States are required . . . We therefore . . . have to vote against this draft convention. However, we will be fully prepared to vote for it if the element of compulsory contribution is deleted’). 6   See ibid, paras 17.4 ff. 7   See UNESCO, ‘Records of the General Conference’ (note 2) para. 303. 8   ibid, paras 306 ff. 9  See http://​whc.une​sco.org/​en/​finan​cial​regu​lati​ons (last accessed 20 June 2023). 10   See the analysis in Section II.

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II.  The Resources Making up the World Heritage Fund According to Article 16, paragraph 1, of the Convention, compulsory contributions to the Fund must be paid by States Parties every two years, with the exception of those parties which—​pursuant to paragraph 2 of the same article—​at the time of the deposit of their own instrument of ratification, acceptance, or accession to the Convention have expressly declared that they will not be bound by the provisions of the said paragraph 1. This declaration has been made, at the time of writing, by Brazil, Bulgaria, Cape Verde, Denmark, France, Germany, the Holy See, Moldova, Norway, Oman, South Africa, South Sudan, and the United States.11 None of these countries has—​so far—​notified the Director-​General of its intention to withdraw the declaration in object, pursuant to paragraph 3 of Article 16.12 For this reason, these states would not be bound to respect Article 16, paragraph 1, of the Convention. It is curious that, apparently without a precise reason, Moldova, Oman, and South Africa have been listed for years, in the documents submitted to the General Assembly of States Parties, among the countries bound to pay compulsory contributions to the Fund;13 therefore, for quite a long time, in the ‘living practice’ of the Convention, the regime of voluntary contributions was not applied with respect to such countries. In more recent times, however, this inconsistency has been corrected, and all the 13 states just listed are properly considered as being subjected to the regime of voluntary contributions.14 These 13 countries, however, are compelled to pay ‘on a regular basis, at least every two years’, a contribution whose amount should ‘not be less than the contributions which they should have paid if they had been bound by the provisions of paragraph 1 of this Article’, pursuant to paragraph 4 of Article 16. In substance, it appears that they should pay in favour of the Fund the same contributions paid by those states which have not made the declaration contemplated by Article 16, paragraph 2. The textual formulation of Article 16, paragraph 4 was the object of intense discussion during the travaux préparatoires. In particular, a strongly political point was raised by the delegate of the United States, disguised as an ‘innocent’ semantic issue; that is, ‘a small translation correction in the English text’ which apparently was not intended to affect the meaning of the provision in point.15 Specifically, with respect to the term ‘shall’ (‘shall be paid on a regular basis’) used in the third line of paragraph 4, the American delegate—​relying on the fact that the French text of the norm used the word ‘doivent’—​stated that ‘the accurate translation of the French word “doivent” is the English “ought to” ’, proposing that ‘this [small] correction be made

11  See http://​por​tal.une​sco.org/​en/​ev.php-​URL​_​ID=​13055&URL​_​DO=​DO_​TO​PIC&URL_​SECT​ION=​ 201.html (last accessed 9 January 2022). 12  ibid 13   Information kindly provided—​on 2 May 2007—​by Ms Yuki Daijo, Assistant Legal Officer, UNESCO Office of International Standards and Legal Affairs, upon request to the World Heritage Centre and the Office of the Comptroller. See consistently, e.g., Docs WHC-​2001/​CONF.206/​3b, of 20 July 2001, and WHC-​ 2001/​CONF.206/​3b.Add, of 26 October 2001 (see, in both documents, the list of States Parties bound by compulsory contributions, which includes Oman and South Africa). 14   See, consistently, Doc. WHC/​21/​44.COM/​14, of 21 June 2021, Annex I. 15   See Doc. 17C/​VR.33, para. 2.

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in the English text in paragraph 4 of Article 16[, so that] . . . the United States delegation will be able to vote with enthusiasm in favour of the Convention’.16 This proposal was also supported by the UK, which, although pointing out that it was a ‘slight adjustment of the text’ not made for the purpose of ‘alter[ing] the French text’, emphasized that such a slight adjustment ‘is quite vital to us . . . [so that] we could vote in favour of the Convention as a whole’.17 Germany18 and Canada19 also endorsed the American proposal. As was shrewdly noted by the delegate of Algeria, ‘si certaines délégations font du changement du mot “shall” une condition sine qua non à l’adoption du projet de Convention, c’est qu’il y a là non seulement un problème de forme mais une question de fond’.20 The same position was taken by the representative of Tunisia, who underlined the fact that ‘[i]‌l ne s’agit donc pas en l’occurrence . . . d’une question de forme, mais bel et bien d’une question qui touche le fond et même le tréfonds du problème’.21 Sudan, furthermore, expressed its impression that ‘la proposition d’amendement . . . constitue, en fait, une tentative pour soulever de nouveau, sur le plan linguistique, le problème du caractère—​ obligatoire ou facultatif—​des contributions’.22 Last but not least, Senegal—​joined by Nigeria23—​emphasized that ‘le problème qui se pose n’est pas d’ordre sémantique, mais politique’.24 In addition to these five countries, Kenya,25 Afghanistan,26 Cameroon,27 and India28 also rebuffed the American proposal,29 on the basis of the fact, inter alia, that the text of Article 16 was the result of a difficult compromise—​derived from a very complicated debate—​which had been accepted by the two-​thirds majority of states and that, consequently, should not be reopened. The impasse created by the conflict arising from the issue in object put the adoption of the whole Convention under threat. In order to overcome such an impasse, the Director-​General of the Organization, joining a proposal made with a point of order by the delegate of Belgium,30 suggested even ‘la possibilité de prélever sur le budget de l’UNESCO des sommes destinées à alimenter substantiellement’ the Fund. In particular, the Director-​General made the following declaration: [s]‌i vous décidez par exemple qu’à partir de l’exercice 1975–​1976, un crédit de un million de dollars (montant qui équivaudrait approximativement à l’1% du budget de fonctionnement prévu pour l’exercice 1973–​1974) sera réservé dans le budget biennal de l’UNESCO à l’alimentation de ce fonds, cette somme pourrait être considérée comme un apport provenant des contributions obligatoires des Etats membres, lesquels demeureraient évidemment libres d’y ajouter s’ils le voulaient des contributions bénévoles.31

Finally, however, the United States—​‘in view of the comments that have been made and in a sincere effort to co-​operate with all’—​ceased to press for the ‘semantic’ change   ibid, para. 2.   ibid, paras 19.1 f.    18  ibid, para. 35. 19   ibid, paras 47.1 f. The Canadian delegate stressed that, ‘[a]‌s is pointed out in Article 30, all five [official] texts are equally authoritative, and our delegation, for one, will not be able to vote in favour of the Convention if we do not have an accurate English text’. 20 21   ibid, para. 29.4.   ibid, para. 21.4. 22 23 24   ibid, para. 23.2 (official translation from Arabic).   ibid, para. 45.   ibid, para. 33. 25 26 27 28   ibid, para. 25.2.   ibid, paras 27.1 ff.   ibid, para. 31.   ibid, para. 37.3. 29   Switzerland and France, for their part, opted for a substantially neutral position; see ibid, paras 39.2 and 41.1 respectively. 30   ibid, para. 49.2.    31  ibid, para. 51.10. 16 17

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proposed earlier,32 and Article 16, paragraph 4 was left with the text which had previously been adopted. In the light of the adopted text, what is the ‘combined interpretation’ to be given to the two last sentences of Article 16, paragraph 4? The meaning of the ‘delicate compromise’ realized by the provision in point was explained by the delegate of Tunisia during the travaux préparatoires: [l]‌’expression anglaise ‘shall be paid on a regular basis’ . . . a fait l’objet de négociations serrées et a été finalement admise, avec le mot ‘shall’ . . ., en contrepartie d’une concession sur le mode du verbe du membre de phrase suivant: ‘should not be less than’. L’obligation qui découle de ‘shall’ ne s’applique donc qu’à la régularité des versements, afin que, comme dit le texte ‘Le Comité soit en mesure de prévoir ses opérations d’une manière efficace’; le montant des contributions versées n’est lui, assorti que d’une recommandation commandée par ‘should’ et reste donc en dernière analyse à la discrétion du contributeur volontaire. C’est là l’élément fondamental et raisonnable du compromis, la concession extrêmement importante qui a été demandée par les uns et acceptée par les autres pour répondre à l’argument selon lequel certains parlements auraient éprouvé des difficultés à accepter une contribution d’un montant fixe ou déterminé.33

The representative of Sudan, following the same line of reasoning, emphasized that the term ‘shall’ included in Article 16, paragraph 4 ‘implique . . . l’obligation pour les Etats signataires de la Convention de payer leurs contributions’;34 the same position was taken by India.35 This argument was further elaborated by the delegate of Nigeria, emphasizing that, ‘although members are free to choose their manner of contribution, those who wish to contribute voluntarily should do so regularly’.36 Even leaving aside those statements, an objective interpretation of the provision in point, ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’—​pursuant to Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties37—​leads to the same direction taken by the delegations of Algeria, India, Nigeria, and Sudan during the travaux préparatoires. Those states which make the declaration contemplated by paragraph 2 of Article 16 consequently have the obligation of regularly paying voluntary contributions to the Fund (‘the contributions . . . shall be paid on a regular basis’38), but they retain the faculty of deciding the amount of these contributions (‘should not be less than . . .’39). This means that the voluntary nature of the contributions in point is only related to their quantum, while they are of compulsory character with respect to the an, in the sense that the parties to the Convention opting for the choice offered by Article 16, paragraph 2, must pay them obligatorily and regularly. The word ‘should’ used in paragraph 4 is the only element differentiating the contributory position of the countries which have made the declaration pursuant to paragraph 2 from that of the other States Parties. In the end, all parties to the Convention have the obligation of contributing to the Fund along the same space of time, but those which have made the declaration provided for

  ibid, para. 53.2.   ibid, para. 21.4. 37   1155 UNTS 331. 32 33

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  ibid, para. 23.3. 38   Emphasis added.

34

  ibid, para. 37.3. 39   Emphasis added.

35

  ibid, para. 45.

36

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by paragraph 2 are free to decide the quantum of their contributions, while the others are bound to pay the amount decided by the General Assembly of State Parties pursuant to Article 16, paragraph 1. It may also be said that the formulation of paragraph 4 (‘the contributions . . . should not be less than the contributions which they should have paid if they had been bound by the provisions of paragraph 1 of this Article’) clearly indicates that the countries choosing the option set up by paragraph 2 have a ‘duty’ to contribute to the Fund to the same amount as the other parties to the Convention. However, this duty, for the reasons just explained, may not be considered as an obligation, with the consequence that the parties concerned may decide to pay an amount of contributions to the Fund which is less than the sum provided by the other parties, without breaching the Convention. In the practice of implementation of the Convention, the contributions arising from Article 16, paragraph 4 have always been considered as voluntary contributions (as opposed to the mandatory contributions due by the States Parties which have not made the declaration contemplated by Art. 16, para. 2). However, the fact that their voluntary character is only limited to their quantum—​while they are compulsory with respect to the obligation of the states concerned to pay them regularly—​is confirmed by the text of paragraph 5 of Article 16, which expressly extends to parties not paying their ‘voluntary contribution’ the penalty provided for the countries in arrears for two years with the payment of their contributions to the Fund (i.e. non-​eligibility as members of the World Heritage Committee). With respect to the States Parties which have not made the declaration provided for by Article 16, paragraph 2, they are compelled to pay ‘regularly, every two years’, ‘compulsory’ contributions, the amount of which is determined by the General Assembly of States Parties to the Convention ‘in the form of a uniform percentage applicable to all States’ that cannot exceed 1% of the contribution to the regular budget of UNESCO. During the first meeting of the General Assembly, held in Nairobi on 26 November 1976, Switzerland proposed that ‘the amount of compulsory or voluntary contributions that States Parties will make to the “World Heritage Fund” ’ be fixed at 0.75% of the contribution to the regular budget of UNESCO, while Zaire, Nigeria, Algeria, Syria, and Australia proposed 1%. This disagreement was settled very plainly, since the Chairman, having noted that ‘no objection was lodged when [he] asked the General Assembly if it accepted this latter percentage’, decided that it was adopted without recourse to a vote. Switzerland, on its part, declared that, had a vote occurred, ‘it would have abstained’.40 It is to be noted that the General Assembly did not make any distinction between ‘compulsory’ and ‘voluntary’ contributions, considering the amount of both kinds of contributions as fixed at the same rate of 1%. This is inconsistent with the text of Article 16, paragraph 4—​which, as seen earlier, qualifies as ‘voluntary’ the nature of the contributions to be paid by the parties which have made the declaration contemplated by paragraph 2 of the same article—​as well as with Regulation 3.2 of the FRWHF, according to which ‘the contributions of States which have not made the

  See Doc. SHC/​76/​conf.014/​COL.9, of 15 February 1977, para. 20.

40

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declaration referred to in paragraph 2 of [Article 16] shall be made according to the scale of assessments determined every two years by the General Assembly of States Parties to the Convention’.41 This provision, in textual terms, confirms that the General Assembly may only determine the amount of the compulsory contributions pursuant to paragraph 1 of Article 16. However, this inconsistency was corrected at the 2nd session of the General Assembly, held in Paris on 24 November 1978, when the Assembly started to make reference to the ‘contribution foreseen in Article 16, paragraph 1, of the Convention’,42 or to the ‘mandatory contributions to be paid to the World Heritage Fund foreseen in Article 16, paragraph 1, of the Convention’.43 In more recent times, the General Assembly has used the more generic phrase ‘contributions to be paid to the World Heritage Fund by States Parties’.44 The 1% rate for compulsory contributions has been unanimously confirmed—​so far—​ in all meetings of the General Assembly of States Parties subsequent to the first one held in Nairobi in 1976.45 As for additional voluntary contributions paid by States Parties, their consistency with the Convention is expressly stated by the very first sentence of Article 16 (‘[w]‌ithout prejudice to any supplementary voluntary contribution’). This was also confirmed by the ‘authentic interpretation’ given by the Representative of the Director-​General at the 6th General Assembly of States Parties to the Convention, in replying to an enquiry by the Indian representative asking whether it was possible for her government ‘to pay to the World Heritage Fund a voluntary contribution in addition to the mandatory contribution’.46 In general terms, the practice of making voluntary contributions to the Fund, additional to those due pursuant to Article 16, paragraphs 1 and 4, is well developed, and the amount of such contributions has constantly grown over the years. Additional voluntary contributions may also be specifically finalized to achieve explicit goals, including, inter alia, funding of individual programmes—​such as assistance to World Heritage sites in danger or organizational activities and expert meetings—​and support and assistance to less developed countries in the submission of nominations for the World Heritage List as well as in the management of their World Heritage properties.47 Among the other possible resources of the Fund—​as listed by Article 15, paragraph 3 of the Convention and Regulation 3.1 of the FRWHF—​the contributions made by ‘other States’ (as provided for by Art. 15, para. 3(b)(i)) are worth considering. Since the first years of implementation of the Convention after its entry into force, contributions   Emphasis added.  See Docs CC-​78/​CONF.011/​6, of 24 November 1978, para. 6, and CLT-​83/​CONF.022/​6, of 28 November 1983, para. 12. 43   See, inter alia, Docs CLT-​85/​CONF.009/​5, of 6 November 1985, para. 11, and CC-​87/​CONF.013/​6, of 31 October 1987, para. 12 (emphasis added). 44   See Res. 14 GA 7.1, para. 1. 45   See, eventually, Res. 23 GA 7, in Doc. WHC/​21/​23.GA/​13, of 26 November 2021, p. 3, para. 3. 46   See Doc. CC-​87/​CONF.013/​6, of 31 October 1987, para. 12. 47   See, e.g., Doc. WHC-​2000/​CONF.206/​INF.4, of 14 June 2001, para. 19, where it is ‘announced that the Government of Japan had made an exceptional contribution of US$300,000 for preparatory assistance to Least Developed Countries and Least Industrialized Countries’; Doc. WHC/​21/​44.COM/​14, para. 8, in which it is noted that ‘[t]‌he very high level of funding under the sub-​account for Specific Activities in 2018-​2019 comes from a contribution by Norway of US$ 2.9 million, directed mainly to Africa and for sites on the List of World Heritage in Danger’. 41 42

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by states not parties have represented an important source of funding for the Fund. During the 6th General Assembly of States Parties, for example, it was noted that ‘voluntary contributions have been regularly paid to the World Heritage Fund by Austria and The Netherlands, states which are not parties to the Convention, and that a voluntary contribution was paid to the Fund by Monaco, before this State became Party to the Convention’.48 These contributions have often been made by states in view of their subsequent ratification of the Convention. It is, however, self-​evident that contributions from states not parties to the Convention have progressively reduced as almost all existing countries are now parties to the Convention. As provided for by Article 15, paragraph 3(b)(ii) of the Convention, additional resources may be granted to the Fund by UNESCO, other organizations of the United Nations system, or other intergovernmental organizations, as well as by public or private bodies or individuals. The Fund may finally be financed by the interest due on the deposits, the royalties arising from special events and publishing partnerships, and by any other resource authorized by the Fund’s regulations (i.e. pursuant to Reg. 3.1, para. 5, of the FRWHF, ‘any other resources acceptable to the World Heritage Committee’). For an idea of the contribution given to the Fund by the different sources contemplated by Article 15, paragraph 3 of the Convention, one can consider that, in the budget of the Fund for the biennium 2018–​2019, the total amount of assessed compulsory contributions was US$4,038,108, while assessed voluntary contributions amounted to US$980,751, for a total amount of US$5,018,859. At the same time, additional voluntary contributions amounted to US$7,199,340. It is to be clarified, however, that, in the biennium under consideration, the amount of voluntary contributions for specific activities was exceptionally high due to the previously mentioned ‘contribution by Norway of US$ 2.9 million . . . Without this single contribution, the level of funding under this sub-​account would have been roughly the same as it was in 2016-​2017[, amounting to US$ 3,984,892].’49 Other income—​ including, among others, interest, transfers from other funds, and online donations—​ totalled US$553.906, determining a total amount of the Fund corresponding to US$12,772,105 (as of 31 December 2019).50 However, it is also to be noted that the World Heritage Committee denounced a preoccupying—​unprecedented—​54% increase in unpaid compulsory contributions, in addition to a drop by 25% in the collection of voluntary contributions for the biennium 2018–​2019, compared with 2016–​2017.51 See Table 3.

III.  Other Funds Available for the Implementation of the World Heritage Convention—​Implementation of Articles 17 and 18 With the constant increment in the number of properties inscribed on the World Heritage List, the Fund can no longer provide an effective support to all such properties. In recognition of this situation, the Committee decided in 2005 that ‘International Assistance should be seen as supplementary to national efforts for the conservation and management of World Heritage and Tentative List properties when adequate resources cannot be   See Doc. CC-​87/​CONF.013/​6, para. 12. 50   See note 47.   See Doc. WHC/​21/​44.COM/​14, Annex I.

48 49

  ibid, para. 3.

51

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Table 3  Statement of income and expenditure of the World Heritage Fund, biennium 2018–​2019

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secured at the national level.’52 In the last two decades, the need to mobilize governments, civil society, and local populations living in and around World Heritage properties has become an increasingly essential component of heritage conservation. The World Heritage Centre—​which is ‘the focal point and coordinator within UNESCO for all matters related to World Heritage’53—​manages three different kinds of resources, namely the Fund, funds from the budget of the UNESCO regular budget, and extra-​budgetary funds. The respective size of the sources of funding of the Convention for the biennium 2018–​2019 was US$11,159,430 for the Fund, US$12,056,339 for the UNESCO regular budget, and US$8,928,460 for the extra-​budgetary funds.54 See Table 4. The ‘urgency of securing adequate financial resources to achieve the objectives of the World Heritage Convention to identify and conserve the world’s cultural and natural heritage of Outstanding Universal Value’ was reiterated in Resolution 23 GA 7 of the General Assembly of States Parties to the World Heritage Convention.55 On other occasions, the same General Assembly has urged the Director-​General of UNESCO to ‘explore additional resources for the activities of the World Heritage Centre from the Regular Budget of UNESCO [and] seek additional extrabudgetary resources for the implementation of the World Heritage Convention’.56 This recommendation was based on the argument raised by some delegations (particularly Canada and India), according to which the Fund is to be considered as a contribution for the implementation of the Convention additional to contributions coming from the regular budget of UNESCO, and it was ‘created to protect World Heritage sites and could not be used to support the activities of the World Heritage Centre’ for the implementation of the Convention.57 In this context, the provisions of Articles 17 and 18 have therefore acquired a greater prominence than at any time in the life of the Convention.

A.  Article 17 Article 17 may be read as more of a suggestion than a legal obligation, in that States Parties are to ‘consider or encourage’ the establishment of national public and private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage as defined by Articles 1 and 2 of the Convention. In fact, at State Party level, funding for the protection of World Heritage properties is provided predominantly through governmental subventions and the development of foundations and associations dedicated to World Heritage protection has not been as widespread as the founders of the Convention may have envisaged. Furthermore, not all such associations or foundations work directly with or through the UNESCO World Heritage Centre, the Secretariat to the World Heritage Committee. They may also be narrow in scope, operating at a national rather than an international level. The following subsections deal with examples of national funds and associations or foundations that operate internationally.

52  See UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines), Doc. WHC.21/​01, of 31 July 2021, para. 233. 53  See http://​whc.une​sco.org/​pg.cfm?cid=​134 (last accessed 11 January 2023). 54   See Doc. WHC/​21/​44.COM/​14, Annex II. 55   See Doc. WHC/​21/​23.GA/​13, of 26 November 2021, p. 3. 56   See Res. 14 GA 5, paras 6 and 7, in Doc. WHC-​03/​14.GA/​10, of 2 February 2004, p. 19. 57   See Doc. WHC-​03/​14.GA/​10, particularly paras 82 and 121.

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Table 4  General overview of the 2018–​2019 programme and budget for the World Heritage Convention related to all sources of funding

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1.  Funds-​in-​Trust The World Heritage Fund is integrated by a number of so-​called ‘Funds-​In-​Trust’; that is, special donations granted by states ‘to support specific projects with defined goals and objectives’.58 At the time of writing, the major Funds-​In-​Trust are the following: Flemish Funds-​in-​Trust, which, ‘[f ]‌ollowing the 24th session of the World Heritage Committee in December 2000, . . . [financed a project] to support the development of World Heritage management capacity in the Arab States’;59 France–​UNESCO Cooperation Agreement (not a simple fund-​in-​trust, but a bilateral agreement between France and UNESCO ‘for the protection and enhancement of the monumental, urban and natural heritage . . . to enhance understanding of cultural and natural heritage, to encourage the integration of the preservation of heritage in urban and territorial development projects, and to ensure the inclusion of a social element to heritage conservation’);60 Japanese Funds-​in-​Trust for the Preservation of the World Cultural Heritage (aimed at preserving ‘the tangible cultural heritage such as historic monuments and archaeological remains of great value’);61 UNESCO/​Netherlands Funds-​In-​Trust (NFiT), aiming at reinforcing the implementation of the World Heritage Convention;62 and Spanish Funds-​In-​Trust (supporting selected projects relating to World Heritage).63 A grants programme called Rapid Response Facility (RRF) also exists; it is an emergency fund that is jointly operated by the World Heritage Centre, the United Nations Foundation, and Fauna & Flora International, which provides grants to protected areas—​particularly natural World Heritage properties—​in times of crisis.64

2.  Publicly funded foundations The Nordic World Heritage Foundation (previously the Nordic World Heritage Office) and the German World Heritage Foundation are two examples of publicly funded foundations, albeit of a very different scale. The Nordic World Heritage Foundation was established by the government of Norway in March 2002 to act as a focal point, bringing Nordic countries together in their collective attempt to fulfil the intentions and requirements of the World Heritage Convention. The Foundation had an official relationship with UNESCO and supported the World Heritage Centre by facilitating technical expertise, disseminating information, and contributing to innovative projects in support of the Convention and the World Heritage Committee’s Global Strategy for a Balanced, Representative and Credible World Heritage List.65 The Foundation also mobilized funds from bi-​and multilateral sources and facilitates assistance for natural and cultural World Heritage conservation efforts in developing countries in support of the Convention. The Foundation was granted the status of a Regional Centre under the auspices of UNESCO during the 32nd UNESCO General

 See https://​whc.une​sco.org/​en/​fund​ing/​ (last accessed 11 January 2022).  See https://​whc.une​sco.org/​en/​ffit (last accessed 11 January 2022). 60  See https://​whc.une​sco.org/​en/​cfu (last accessed 11 January 2022). 61  See https://​whc.une​sco.org/​en/​partn​ers/​277/​ (last accessed 11 January 2022). 62  See https://​whc.une​sco.org/​en/​nfit (last accessed 11 January 2022). 63  See https://​whc.une​sco.org/​en/​partn​ers/​279 (last accessed 11 January 2022). 64  See https://​www.rapid-​respo​nse.org/​ (last accessed 11 January 2022). 65  See Report of Expert Meeting on the ‘Global Strategy’ and thematic studies for a representative World Heritage List (UNESCO Headquarters, 20–​22 June 1994), Doc. WHC-​94/​CONF.003/​INF.6, 13 October 1994. 58 59

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Conference in 2003. The Foundation’s work was supported by all the governments of the Nordic countries. In 2003 and 2004, the Foundation provided US$1,170,522 for World Heritage projects. The Foundation was closed in 2014. At the other end of the spectrum, the German World Heritage Foundation was established in 2001 by the Hanseatic Towns of Stralsund and Wismar as a result of their experience in preparing a joint nomination to the World Heritage List (Historic Centres of Stralsund and Wismar, 2002). The towns continue to provide the Foundation’s core funding. There is no formal working agreement between the World Heritage Centre and the Foundation, which has as its principal objectives to contribute to the balance of the World Heritage List and to assist endangered World Heritage sites. In addition to the core funding provided by the local authorities of Stralsund and Wismar, the German World Heritage Foundation offers the facility for members of the public to make donations to its projects. In 2016, the capital of the north-​east German state of Mecklenburg-​ Vorpommern, Schwerin, joined the German World Heritage Foundation, offering a donation of €50,000.66 Since 2004, work has been undertaken by African States Parties to the World Heritage Convention to establish an African World Heritage Fund (AWHF). The concept for such a fund, which would combine South–​South, North–​South, and public–​private cooperation, emanates from the recommendations of the periodic report exercise on Africa undertaken in 200267 in line with the requirements of Article 29 of the Convention. The proposal to establish the Fund was endorsed by the 29th session of the World Heritage Committee (Durban, South Africa, 2005), by the 15th General Assembly of States Parties to the 1972 Convention (UNESCO, Paris, October, 2005), by the Conference of Ministers of Culture of the African Union held in Nairobi, Kenya in December 2005, as well as by the 6th Ordinary Session of the Assembly of Heads of State and Government of the African Union in Khartoum, Sudan, held between 16 and 24 January 2006. The Fund, which is a trust registered under South African law, was launched on 5 May 2006 to support the effective conservation and protection of natural and cultural heritage of outstanding universal value in Africa. The Fund was established as an operational body that seeks to promote partnerships with African and international bodies and heritage programmes to consolidate and expand technical and administrative expertise and financial assistance in support of World Heritage conservation; to contribute to the NEPAD process using World Heritage sites as tools for poverty alleviation and income generation; and to support sustainable growth and development through the implementation of specific pilot projects. By February 2007, an initial contribution by the government of the Republic of South Africa of ZAR 20 million (approximately US$3.3 million), announced at the launch, had been complemented by pledges—​valued at around US$2 million—​from China, India, Norway, the Netherlands, Algeria, and Gabon. Further fundraising efforts are being channelled towards three main needs: the constitution of an endowment to support fixed expenditures, operating expenditures, and project support and grant-​making activities. UNESCO and the African Union have been designated as permanent observers to the 66  See https://​www.schwe​rin-​for-​world-​herit​age.info/​pre​serv​ing-​world-​herit​age/​ger​man-​world-​herit​age-​fou​ ndat​ion/​ (last accessed 27 March 2022). 67   See UNESCO World Heritage Centre, ‘Periodic Report Africa’ (2003) World Heritage Reports 3, available at http://​whc.une​sco.org/​docume​nts/​publi_​wh_​p​aper​s_​03​_​en.pdf (last accessed 27 March 2022).

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Board of Trustees. The role of UNESCO, represented by its World Heritage Centre, is to offer advice and to ensure that the objectives and actions of the AWHF are fully in line with those of the World Heritage Committee, which has requested regular reports on progress. Other institutions may be invited as observers on an ad hoc basis. In 2010, the Fund became a Category II Centre under the auspices of UNESCO, assuming the position of official partner of the World Heritage Centre.68 In the years 2020 and 2021, the AWHF invested, respectively, ZAR 14,392,533 (approximately US$988,743) and ZAR 11,105,038 (approximately US$762,897) for its activities.69 Other regions, including the Pacific, have begun work to develop and adapt this model of an independent regional Fund for World Heritage to complement those available through the World Heritage Fund.

3.  Privately funded foundations The most significant private foundation, in terms of its direct contribution to World Heritage conservation, is the US-​based United Nations Foundation (UNF). Since its establishment in 1998, the Foundation has worked with the UNESCO World Heritage Centre to support and promote the management and conservation of natural World Heritage properties. Financial support to such properties is guaranteed by UNF through its own resources and matching funds from a variety of NGOs or foundations such as the Nature Conservancy, Fauna and Flora International, and the Gordon and Betty Moore Foundation. UNF also provides a facility for individual members of the public to donate to conservation projects, although this has not thus far yielded significant amounts. In the cultural heritage field, the World Monuments Fund, a private non-​profit organization, headquartered in New York, has since 1965 undertaken significant fundraising activities focused on the rescue and preservation of imperilled works of art and architecture. Some of the sites it works at are World Heritage properties. Although there is no formal partnership arrangement between WMF and UNESCO’s World Heritage Centre, the two organizations work closely in areas of common interest.

4. Associations Many countries have promoted the development of non-​ governmental UNESCO clubs and associations which encourage international cooperation and solidarity in the spirit of the UNESCO Constitution. Such associations may have a specific World Heritage element attached to their activities. Some, including the National Federation of UNESCO Associations in Japan (NFUAJ), undertake fundraising activities in support of World Heritage.

B.  Article 18 In contrast to Article 17, the language of Article 18 is more directive, in that it implies a requirement for States Parties to give their assistance to international fundraising campaigns. In its first 60 years of existence, UNESCO launched 26 international safeguarding campaigns, at a total cost of almost US$1 billion,70 as well as numerous safeguarding 68   See AWHR, Annual Report 2021, available at https://​awhf.net/​wp-​cont​ent/​uplo​ads/​2022/​02/​AWHF-​ Ann​ual-​Rep​ort-​2021.pdf (last accessed 27 March 2022), p. 1. 69   ibid, p. 47. 70  See https://​whc.une​sco.org/​en/​107/​#intern​atio​nal (last accessed 27 March 2022).

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projects. Other similar initiatives have been launched in more recent times. International safeguarding campaigns are launched at the behest of the biennial UNESCO General Conference, whereas safeguarding projects are launched directly by the member states and are often of an emergency nature, as in the case of Angkor, described in the following subsection. Many of the flagship international efforts, such as those inspired by the disastrous floods in Venice in 1965, predate the development and adoption of the 1972 Convention, although Venice and other sites for which international safeguarding campaigns were developed—​for example, Abu Simbel and Nubia (Egypt), launched in 1960, the Temple of Borobodur (Indonesia), launched in 1972, and Moenjodaro (Pakistan), launched in 1974—​eventually became World Heritage properties. However, even when international campaigns and projects have concerned sites on the World Heritage List, they have not been directly ‘organized for the World Heritage Fund’ in the terms of Article 18. Whether they are defined as an international campaign or a project, such international efforts are characterized by complex issues and long-​term financial needs. For example, the 1960 International Campaign to Save the Monuments of Nubia, arising as a result of the 1954 decision to build the Aswan High Dam, ran for 20 years and incurred costs in excess of US$80 million—​approximately half of which came from 50 countries. The campaign for Borobodur raised in excess of US$20 million over ten years (6 September 1972 to 23 February 1983); and the project for Angkor Wat (Cambodia) cost US$50 million over ten years. These and others, for example for Tyre (Lebanon), demonstrate the importance of solidarity and nations’ shared responsibility in conserving outstanding places. In the last 20 years or so, UNESCO has increasingly played a leading and high-​profile role internationally in coordinating operations to safeguard cultural and natural heritage damaged or threatened by conflicts, often involving public and private contributors.

1.  International Programme for the Preservation of Angkor, Cambodia Stretching over some 400 km2, including forested area, Angkor Archaeological Park is one of the most important archaeological sites in South-​East Asia and contains the magnificent remains of the different capitals of the Khmer Empire, from the ninth to the fifteenth centuries. It contains an exceptional concentration of monuments of religious, historical, artistic, and human value. In addition to the world-​renowned temples of Angkor Wat, there are about 40 other edifices representing different periods and styles. All are part of an exceptional natural environment, characterized by rivers, forests, and rice paddies. Angkor is also a community made up of tens of thousands of people who are the keepers of popular traditions, with a rich oral heritage. The abandonment of the site as the result of war and other upheavals between 1975 and 1991 led to extensive and serious damage. Shortly after the establishment of the Japanese Trust Fund in UNESCO in 1989, the government of Japan decided to support, as a first project, the organization of the First Technical Round Table of Experts on the Preservation of the Angkor Monuments in June 1990 in Bangkok, proposed by UNESCO within the framework of its Plan of Action for the Conservation of the Angkor Monuments. This first technical meeting on Angkor, bringing together some 30 experts, Cambodian specialists, and representatives of various international institutions and governmental and non-​governmental organizations, adopted a series of recommendations for future action. With the return of peace, and following an appeal by the Director-​General of UNESCO in 1991 to ‘Save Angkor!’, the international community awoke to the need federico lenzerini

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to safeguard the site. The international community gave formal recognition to the site in 1992, by simultaneously inscribing it on both the World Heritage List71 and the List of World Heritage in Danger. In making this decision, the World Heritage Committee decided to waive some of the conditions required ‘in answer to an exceptional situation’. Priority was given to de-​mining operations essential for free and safe movement in the area. Theft, vandalism, pillage, and trafficking of cultural objects were also ravaging the site, sometimes causing irreparable damage to temples and monuments which, during the years of civil war and under the regime of the Khmer Rouge, had been totally abandoned. In October 1993, the government of Japan hosted an Intergovernmental Conference on the Safeguarding and Development of the Historic Site of Angkor. Bringing together some 30 representatives—​ notably representatives of Cambodia and those of international organizations, financial institutions, and NGOs—​the Conference adopted the ‘Tokyo Declaration’,72 which decided to establish in Phnom Penh the International Co-​ ordinating Committee on the Safeguarding and Development of the Historic Site of Angkor (ICC), to support the Cambodian Authorities (APSARA, the Authority for the Protection and Management of Angkor and the Region of Siem Reap, created by Royal Decree in February 1995). ICC has convened regularly since December 1993 under the co-​chairmanship of Japan and France and with the assistance of UNESCO as permanent secretary. Over a period of ten years, most of the serious problems affecting the site that is so emblematic of Khmer culture were resolved, thanks to the efforts of the international community, which invested more than US$50 million, the commitment of the Kingdom of Cambodia’s authorities, and UNESCO-​led ­coordination. The results speak for themselves: 100 restoration and development projects carried out, including the clearing of more than 25,000 anti-​personnel mines—​some 3,000 of which were found in archaeological sites—​and the destruction of 80,000 explosive devices; the establishment of a special heritage protection police force; a detailed inventory of cultural goods and awareness-​raising campaigns against the sale of stolen objects have stopped cultural pillaging in the protected area. Angkor was removed from the List of World Heritage in Danger at the World Heritage Committee’s 28th session in Suzhou, China, in July 2004.73 In so doing, the Committee requested the State Party to work closely with the World Heritage Centre, the Division of Cultural Heritage, ICOMOS, and other partners to ensure the long-​term conservation and management of the property; to regularly report to the World Heritage Centre on progress with outstanding issues; and strongly urged the State Party to elaborate a  See https://​whc.une​sco.org/​en/​list/​668 (last accessed 27 March 2022).   The signatories of the Tokyo Declaration were: Australia, Belgium, Brunei, Cambodia, Canada, China, France, Germany, Hungary, India, Indonesia, Italy, Japan, Laos, Luxembourg, Malaysia, the Netherlands, Norway, the Philippines, Poland, Russia, Singapore, Spain, Sri Lanka, Sweden, Switzerland, Thailand, the UK, the United States, Vietnam, the European Community, the Asian Development Bank, the International Centre for the Study of the Conservation and Restoration of Cultural Property (ICCROM), the Southeast Asian Ministers of Education Organization Regional Centre for Archaeology and Fine Arts (SEAMEO/​ SPAFA), the United Nations Development Program (UNDP), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the United Nations Volunteers Progam (UNV). The full text of the Declaration is available at https://​fr.une​sco.org/​sites/​defa​ult/​files/​decl​arat​ion-​de-​tokyo-​eng.pdf (last accessed 27 March 2022). 73   Decision 28COM 15A.23. 71 72

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comprehensive master plan to address conservation issues, development control, and tourism management in order to ensure the future preservation of the property. Along with the rescue of Abu Simbel (Egypt), and the campaigns in favour of Borobudur (Indonesia), Angkor illustrates the efficiency of joint initiatives when it comes to preserving a World Heritage site.

2.  Biodiversity Conservation in Regions of Armed Conflict: Protecting World Natural Heritage in the Democratic Republic of the Congo An example of international action to safeguard natural heritage is the project, ‘Biodiversity Conservation in Regions of Armed Conflict: Protecting World Natural Heritage in the Democratic Republic of the Congo’,74 whose first phase ran from 2000 to 2004 and brought together UNESCO’s World Heritage Centre and the Division of Ecological Sciences in cooperation with the World Conservation Union (IUCN), GTZ–​Germany, the Institut Congolais pour la Conservation de la Nature (ICCN) of the Democratic Republic of the Congo (DRC), and a task force of conservation NGOs comprising: International Rhino Foundation (IRF); International Gorilla Conservation Programme (IGCP); Wildlife Conservation Society (WCS); the World Wide Fund for Nature (WWF); and Gilman International Conservation (GIC) to support the five World Heritage sites of the DRC (the national parks of Virunga, Garamba, Kahuzi-​Beiga, and Salonga, as well as the Okapi Wildlife Reserve), each of which had also been inscribed on the List of World Heritage in Danger. The project was funded by a US$2.9 million grant from the United Nations Foundation (UNF) channelled through the UN Fund for International Partnerships (UNFIP) based in the UN in New York. Of the estimated total of US$4,186,600 required to implement the project, UNF/​UNFIP provided US$2,895,912 and cooperated with UNESCO and Task Force members to raise the additional US$1,290,688 from alternative sources, of which US$300,000 came through the government of Belgium’s bilateral agreement with UNESCO. With the first phase of the project drawing to a close, a major international event in support of Congo’s World Heritage in Danger took place at UNESCO in September 2004. The three-​week event, ‘Congo: Heritage in Danger’, sought to raise awareness about and funds for the protection of the World Heritage properties in the DRC. During the event, the government of the DRC made a high-​level and public commitment to support the work of UNESCO and its partners in safeguarding the five World Heritage properties, all of which are also inscribed on the List of World Heritage in Danger. New or continued financial support for activities in the Congo Basin and at the World Heritage properties was confirmed by the governments of Belgium, Germany, and Italy, the World Bank–​GEF, UNDP–​GEF, the European Union, USAID, the United Nations Foundation and Wildlife Conservation Society, and the conservation NGOs active in DRC confirmed their intention to continue working there over the coming years. During its Phase II, running from 2005 to 2010, the programme supported the implementation of emergency action plans in the five World Heritage properties of the DRC; in particular, emergency action plans were developed for the three pilot

 See https://​whc.une​sco.org/​en/​congob​iodi​vers​ity/​ (last accessed 27 March 2022).

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sites of Kahuzi-​Biega National Park,75 Virunga National Park,76 and Okapi Wildlife Reserve.77 In the period 2010–​2013, Phase III of the programme was implemented, with the purpose of setting the strategies for the rehabilitation of the five Congolese World Heritage properties, especially through emergency action plans. On 14 January 2011, the Kinshasa Declaration on the World Heritage Sites of the Democratic Republic of the Congo was adopted, expressing, inter alia, satisfaction with the effective implementation by Congo of corrective measures aimed at rehabilitating, with the support of UNESCO, the outstanding universal value of the Congolese properties inscribed on the List of World Heritage in Danger, and launching an appeal to the international community to help to reach such an outcome.78 At the time of writing (March 2023), four out of the five Congolese properties inscribed on the World Heritage List are still included in the List of World Heritage in Danger as well; the only exception is represented by Salonga National Park, removed from the latter List in July 2021, during the 44th Session of the World Heritage Committee.79

3. #Unite4Heritage Following the systematic, blatant, and intolerance-​based destruction of cultural heritage of great importance for humanity—​including the World Heritage site Hatra, in Iraq, in March 2015—​perpetrated by the Islamic State of Iraq and the Levant (ISIL), on 28 March 2015 the Director-​General of UNESCO Irina Bokova launched the campaign #Unite4Heritage. As it can be seen on the campaign’s web page, it was intended to be ‘a response to address the deliberate destruction of cultural heritage by violent extremist groups. Well-​received by the international community, the #Unite4Heritage campaign has since become a widely expanding global movement devoted to the engagement of the global audience, with young people as its core demographic.’80 #Unite4Heritage is a multi-​structured campaign involving a number of different initiatives, including exhibitions, online conversations, and digital campaigns. Among them, the campaign #faces4heritage is worth mentioning, which invites individuals to change their profile on social networks to contribute to raise awareness about destruction of cultural heritage. UNESCO member states contribute in various ways to the campaign. Italy, for instance, in October 2015 established a Task Force of the Carabinieri, the Carabinieri Unite4Heritage—​also commonly known as Blue Helmets of Culture—​a highly qualified unit having the specific task of protecting cultural heritage against destruction or damage and countering illegal trafficking of cultural property, especially in situations of crisis such as armed conflicts or natural calamities.

4.  International cooperation through bi-​and multilateral agreements with governments and development agencies and partnerships with NGOs and the corporate sector In the last 20 years, the World Heritage Centre has embarked on a process to seek to expand the existing network of bi-​and multilateral partnerships with governments and  See https://​whc.une​sco.org/​en/​list/​137 (last accessed 6 March 2023).  See https://​whc.une​sco.org/​en/​list/​63 (last accessed 6 March 2023). 77  See https://​whc.une​sco.org/​en/​list/​718 (last accessed 6 March 2023). 78  The text of the Declaration is available at https://​whc.une​sco.org/​en/​news/​702 (last accessed 27 March 2022). 79  See https://​whc.une​sco.org/​en/​news/​2313/​ (last accessed 27 March 2022). 80  See https://​www.uni​te4h​erit​age.org/​ (last accessed 6 March 2023). 75 76

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intergovernmental institutions through the development of specific agreements and the mainstreaming of World Heritage into development programmes. UNESCO and the World Heritage Centre have signed bilateral agreements on world heritage with a number of states, including Australia, Belgium, France, Italy, Japan, Netherlands, New Zealand, Norway, Spain, and the UK. These vary in both scope and scale and frequently derive from States Parties’ foreign aid priorities.81 While such agreements have not replaced the flagship international fundraising campaigns and programmes, they have massively augmented the resources available year on year for international cooperation in support of world heritage conservation. The World Heritage Centre has also developed its relations with multilateral organizations active in the field. Such agreements can provide extremely important support to World Heritage properties and their conservation at the site and national levels. Agreements with the World Bank, the Inter-​American Development Bank, the UNDP–​GEF Small Grants Programme, Agence Française de Développement, the European Union, African Development Bank, and JBIC (Japan Bank for International Cooperation) have been finalized. An increasingly important element of the work of the World Heritage Centre is that of coordinating its work with other multilateral cultural and environmental agreements, UNESCO cultural heritage conventions and recommendations, and natural heritage programmes to ensure greater complementarity and synergy. For example, a Biodiversity Liaison Group, comprising the heads of the secretariats of the five biodiversity-​related conventions, was established in 2004.

C.  Collaboration with NGOs and the Corporate Sector In 2002, in the context of a partnership with the private sector within the common framework of the ‘United Nations Global Compact’, the World Heritage Committee welcomed the World Heritage Partnerships Initiative82—​ subsequently renamed the World Heritage PACT (Partnerships for Conservation)—​as a means to achieve, on an experimental basis, a new systematic approach to partnerships, with a specific focus on NGOs, civil society, and the business community. While the World Heritage PACT was initially set up to work equally on raising awareness and funds for world heritage conservation through partnerships conceived to address the strategic priorities and thematic programmes of the World Heritage Committee, it fairly quickly became apparent that there was an overwhelming need to give visibility to world heritage. Efforts were therefore placed on sensitizing the public at large and potential donors to the world heritage cause and the implementation of projects that would provide more exposure, and therefore generate more interest from potential partners and donors. This strategy led to the development of activities with Hewlett-​Packard, National Geographic Maps, Pressgroup Holdings, the American Museum of Natural History, and media groups such as NTT DoCoMo, Evergreen Digital Contents, Tokyo Broadcasting Systems, SWR, NHK, and others that have contributed significantly to promoting the world heritage message and attracting other potential non-​governmental donors. 81   Summaries of these agreements may be viewed in ‘Progress Report on World Heritage PACT’, item 13 of the Provisional Agenda (29th session of the World Heritage Committee, Durban, South Africa, 10–​17 July 2005)’, Doc. WHC-​05/​29.COM/​13, of 27 May 2005. 82   See Decision 17C, 12, WHC-​02/​CONF.202/​25, adopted at the 26th session of the World Heritage Committee.

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One example of a partnership developed with non-​traditional donors under the PACT initiative is a fellowship programme launched in 2006. The programme, which seeks to contribute to the World Heritage Committee’s capacity-​building objectives at site level, provides master level interdisciplinary university training for up to two years to students and professionals in World Heritage site management. Smaller grants for short courses are also envisaged in the near future. The programme seeks to fill an important gap in the international assistance budget, which no longer provides individual study grants for capacity-​building purposes. The agreement governing this programme was concluded between UNESCO and a French not-​for-​profit association, ‘Vocations Patrimoine’. It distributes responsibility for identifying new sources of funding between the association and UNESCO, thus multiplying efforts and increasing the chances of being successful. Funding for the fellowships is currently provided by two French multinationals, AXA Insurance and Mazars, who have so far provided €600,000 for ten such fellowships (five each in 2006 and 2007) and UNESCO’s associated management costs. Other new models of cooperation created to facilitate the provision of funding to World Heritage Committee-​approved programmes include work with the UN Foundation to establish modalities of cooperation through increased support from the online travel company Expedia Inc. This collaboration has served to establish a Friends of World Heritage Fund that will finance sustainable tourism projects in the field. Income to the Fund is generated thanks to direct contributions from Expedia Inc. that are matched by the UN Foundation. In addition, the Friends of World Heritage Fund has an online donation capacity through the UN Foundation’s website which is visible from Expedia’s highly visited website. While housed and managed outside UNESCO, the use of contributions to the Fund are jointly decided and evaluated by UNF, Expedia, and the World Heritage Centre. In September 2007, an online donation function, allowing individuals to contribute directly to the World Heritage Fund via secure credit card payments, was incorporated into the World Heritage Centre website. This was the first online donation scheme proposed within the UNESCO portal. The need to mobilize new financial resources was a key issue in establishing the World Heritage PACT. While the resources mobilized as a direct result of the World Heritage PACT may not have been as large as originally and optimistically anticipated, they do represent a significant contribution to the overall rate of extra-​budgetary resources available in recent years. At its 36th session, held in St Petersburg in 2012, the World Heritage Committee requested the World Heritage Centre to present, at its 37th session, a revised PACT Initiative Strategy.83 The Revised PACT Initiative Strategy was presented at the 37th session, taking place in Phnom Penh in June 2013.84 On that occasion, it was reiterated that the principles on which the PACT Strategy is based are those of shared objectives (‘consistent with UNESCO’s mandate and the mission of the World Heritage Convention’), equality among the partners, legality, clarity, transparency, fairness, accountability, and sustainability.85 The Revised PACT Initiative Strategy was adopted with Decision 37 COM 5D of 2013. 83  See Decision 36 COM 5A.2, ‘Draft of the new Partnerships for Conservation (PACT) Initiative Strategy’, 2012. 84 85   See Doc. WHC-​13/​37.COM/​5D, of 17 May 2013.   Ibid., para. 15.

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IV.  The Penalty Imposed on States Parties in Arrears with their Contributions to the World Heritage Fund According to Article 16, paragraph 5 of the Convention, ‘[a]‌ny State Party to the Convention which is in arrears with the payment of its compulsory or voluntary contribution for the current year and the calendar year immediately preceding it shall not be eligible as a Member of the World Heritage Committee’. It should first be emphasized that, as previously noted, this provision also applies—​with respect to voluntary contributions—​to states that have made the declaration contemplated by paragraph 2 of Article 16. This discloses the ‘compulsory’ side of voluntary contributions, which must be paid by any party wishing to be elected as a member of the World Heritage Committee. Thus, the penalty contemplated for states that do not pay their voluntary contributions is exactly the same as that reserved to parties not providing compulsory ones. The provision of Article 16, paragraph 5, is taken very seriously in the context of the implementation of the Convention. During the 12th General Assembly of States Parties (Paris, 1999), for example, the President took note that the contribution of Bolivia had not been received for the current year, and that, consequently, ‘it could not present its candidacy for the Committee’. This happened despite the fact that the delegate of Bolivia declared that his country’s contribution had actually been paid, expressing disappointment at the fact that this was not mentioned in the relevant documentation.86 The same happened with respect to Indonesia; although the representative of that country declared that it had recently paid its contribution, supporting that assertion with a copy of the bank transfer of the payment, the President informed him that his country could only present its candidacy for the Committee if the amount of the transfer appeared among the sums received by UNESCO before the first ballot of elections of the Committee’s representatives.87 In order to clarify this issue, at its 14th meeting the General Assembly adopted Resolution 14 GA 4.2, in which the new Rule 13 of the ‘Procedures for the presentation of candidatures to the World Heritage Committee’ was approved.88 This Rule was then revised in 2014.89 According to its paragraph 4, the list of candidatures for the election of the members of the World Heritage Committee: shall be finalised 48 hours before the opening of the General Assembly. No other candidatures nor payments of compulsory and voluntary contributions to the World Heritage Fund (for the purpose of presenting a candidature to the Committee) will be accepted in the 48-​hour period prior to the opening of the General Assembly.

During the same session of the General Assembly, the need to respect the prescription set up by Article 16, paragraph 5, was reiterated,90 and the Chairperson also stated that Uzbekistan was not eligible for membership of the World Heritage Committee as it had   See Doc. WHC-​99/​CONF.206/​7, of 8 November 1999, para. 27.   See Doc. WHC-​2001/​CONF.206/​INF.4, of 14 June 2001, para. 28. 88   See Doc. WHC-​03/​14.GA/​10, p. 9. 89  See Res. 1EXT GA 3, available at https://​whc.une​sco.org/​en/​decisi​ons/​6412/​ (last accessed 11 January 2022). 90  See, e.g., WHC-​03/​14.GA/​10, paras 128 (‘none of the States Parties seeking election to the World Heritage Committee were in arrears with the payment of their compulsory or voluntary contributions to the World Heritage Fund and . . . all of those States Parties were therefore eligible to present themselves for election’) and 182. 86 87

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not paid its contributions to the World Heritage Fund.91 More recently, in 2013, the fact that ‘no country in arrears with its Contributions can be candidate’ to the World Heritage Committee was reiterated by the Director of the World Heritage Centre.92 In many cases, delegates of States Parties to the Convention have manifested their concern at the lack of regular payment of contributions to the Fund. In some instances, they have even proposed additional sanctions (not provided for by Art. 16); for instance, in 2019, the Delegation of the United Republic of Tanzania made a suggestion before the General Assembly ‘to mandate the World Heritage Committee to consider the possible suspension of States Parties which have not paid their assessed contributions since a determined date’.93 The final part of Article 16, paragraph 5, also adds that the terms of office of any party in arrears with the payment of its contributions to the Fund which is already a member of the World Heritage Committee ‘shall terminate at the time of the elections provided for in Article 8, paragraph 1 of this Convention’; that is, the first time the General Assembly of the States Parties to the Convention meets during the ordinary session of the General Conference of UNESCO, if at that time the member concerned is still in arrears with contributions due to the Fund.

V.  The Management of the World Heritage Fund The power of deciding how the resources of the Fund are to be used pertains to the World Heritage Committee—​pursuant to Article 13, paragraph 6, of the Convention—​which has the task of ‘seek[ing] ways of increasing these resources and [of ] tak[ing] all useful steps to this end’. Given the scarce amount of the Fund, its resources are allocated by the World Heritage Committee taking into account the urgency of requests for assistance, with priority for the most threatened World Heritage sites. According to Article 22 of the Convention,94 international assistance granted by the Fund may take the following forms: 1. studies concerning the artistic, scientific and technical problems raised by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage, as defined in paragraphs 2 and 4 of Article 11 of this Convention; 2. provision of experts, technicians and skilled labour to ensure that the approved work is correctly carried out; 3. training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage; 4. supply of equipment which the State concerned does not possess or is not in a position to acquire; 5. low-​interest or interest-​free loans which might be repayable on a long-​term basis; 6. the granting, in exceptional cases and for special reasons, of non-​repayable subsidies.

Translating the foregoing into ‘operative’ terms, the Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines)95 clarify 91   See Doc. WHC-​03/​14.GA/​INF.1, of 22 July 2003, para. 91. The delegate of Uzbekistan, however, informed the General Assembly ‘that there had been a delay in the transfer of funds and gave his assurance that the contributions would be paid’ (ibid). 92 93   See Doc. WHC-​13/​19.GA/​INF.12, p. 6.   See Doc. WHC/​19/​22.GA/​INF.11, p. 25. 94   On this provision, see the commentary on Arts 19–​26 by Lenzerini. 95   See Doc. WHC.21/​01, of 31 July 2021, available at https://​whc.une​sco.org/​en/​gui​deli​nes/​ (last accessed 11 January 2023).

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that the resources of the Fund may be used to support requests related to the following categories, in order of priority: (a) emergency assistance (‘to address ascertained or potential threats facing properties included on the List of World Heritage in Danger and the World Heritage List which have suffered severe damage or are in imminent danger of severe damage due to sudden, unexpected phenomena’);96 (b) preparatory assistance (for preparation or update of tentative lists, organization of meetings for ‘the harmonization of national Tentative Lists within the same geo-​cultural area’, nomination of properties for inscription on the World Heritage List, or preparation of ‘requests for Conservation & Management assistance for consideration by the World Heritage Committee’);97 and (c) conservation and management assistance, which incorporates training and research assistance, technical cooperation assistance, and promotion and education assistance.98 This is consistent with the strategic objectives for the support of world heritage fixed by the World Heritage Committee in the Budapest Declaration of 2002, which are:

(a) strengthen the credibility of the World Heritage List, as a representative and geographically balanced testimony of cultural and natural properties of outstanding universal value; (b) ensure the effective Conservation of World Heritage properties; (c) promote the development of effective Capacity-​building measures, including assistance for preparing the nomination of properties to the World Heritage List, for the understanding and implementation of the World Heritage Convention and related instruments; (d) increase public awareness, involvement and support for World Heritage through communication.99

According to the Operational Guidelines, the contributions offered to the Fund for international assistance and other projects for the properties inscribed on the World Heritage List ‘shall be accepted and used as international assistance pursuant to Section V of the Convention, and in conformity with the modalities established for carrying out the campaign or project’.100 Also, the Fund should be used—​to the extent possible—​‘to mobilize additional funds for International Assistance from other sources’.101 In order to increase the amount of the Fund, the Operational Guidelines invite States Parties, with the aid of the World Heritage Centre, to provide support to the Convention in addition to compulsory contributions paid to the Fund (‘through additional contributions to the World Heritage Fund or direct financial and technical contributions to properties’,102 in line with the provision of Article 15, paragraph 3, of the Convention), to participate in international fundraising campaigns ‘launched by UNESCO and aimed at protecting World Heritage’,103 and to promote ‘the establishment of national, public and private foundations or associations aimed at raising funds to support World Heritage conservation efforts’.104 Pursuant to Article 15, paragraph 4, of the Convention, it is up to the World Heritage Committee to define the purposes for which ‘[c]‌ontributions to the Fund and other forms of assistance made available’ to it should be used. However, the Committee may accept contributions to be used only for a certain programme or project predetermined by the donor, on the condition that the Committee has previously ‘decided on the   ibid, para. 241.    97 ibid.   98 ibid.   See Budapest Declaration on World Heritage, 28 June 2002, available at http://​whc.une​sco.org/​en/​decisi​ ons/​1217/​ (last accessed 11 January 2022), para. 4. 100 101 102   See Operational Guidelines, para. 226.   ibid, para. 225.   ibid, para. 227. 103 104   ibid, para. 228.   ibid, para. 229. 96 99

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implementation of such programme or project’ and that no political conditions are attached to the contributions in point. Following the so-​called Cairns Decision105—​placing strict limitations to the number of nominations that may be submitted at each session of the World Heritage Committee by States Parties which have cultural sites already inscribed on the World Heritage List (in view of ensuring the representation of sites from all regions on the World Heritage List)106—​certain developed countries, at least on one occasion, have tried to persuade the Committee to allow the presentation of additional nominations for those parties which agree to support the submission of nominations by less-​developed states through granting them financial and technical assistance in order to improve their capacity building in the field.107 Where such financial donations were regarded as voluntary contributions to the Fund, they had to be considered as inconsistent with Article 15, paragraph 3, of the Convention, on account of the fact that the states concerned would have attached to them a condition which was considered to be political pursuant to the provision at issue. However, the proposal in point was resolutely refused by the Committee, and the theme of its possible (in)consistency with Article 15, paragraph 3, was not even raised during the relevant discussions.

105  Adopted by the World Heritage Committee at its 24th session, Cairns, Australia, 27 November–​2 December 2000; the full text of the Decision is available at http://​whc.une​sco.org/​en/​decisi​ons/​1218 (last accessed 11 January 2022). 106   ibid, Section 3. 107   This happened in Suzhou (China), during the 28th session of the Committee (28 June–​7 July 2004); the present writer was a member of the Italian delegation participating at the session, and participated personally in the discussion referred to in the text.

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Articles 19–​26: International Assistance Federico Lenzerini * Article 19 Any State Party to this Convention may request international assistance for property forming part of the cultural or natural heritage of outstanding universal value situated within its territory. It shall submit with its request such information and documentation provided for in Article 21 as it has in its possession and as will enable the Committee to come to a decision. Article 20 Subject to the provisions of paragraph 2 of Article 13, sub-​paragraph [3.] of Article 22 and Article 23, international assistance provided for by this Convention may be granted only to property forming part of the cultural and natural heritage which the World Heritage Committee has decided, or may decide, to enter in one of the lists mentioned in paragraphs 2 and 4 of Article 11. Article 21 1. The World Heritage Committee shall define the procedure by which requests to it for international assistance shall be considered and shall specify the content of the request, which should define the operation contemplated, the work that is necessary, the expected cost thereof, the degree of urgency and the reasons why the resources of the State requesting assistance do not allow it to meet all the expenses. Such requests must be supported by experts’ reports whenever possible. 2. Requests based upon disasters or natural calamities should, by reasons of the urgent work which they may involve, be given immediate, priority consideration by the Committee, which should have a reserve fund at its disposal against such contingencies. 3. Before coming to a decision, the Committee shall carry out such studies and consultations as it deems necessary. Article 22 Assistance granted by the World Heritage Fund may take the following forms: 1. studies concerning the artistic, scientific and technical problems raised by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage, as defined in paragraphs 2 and 4 of Article 11 of this Convention; 2. provisions of experts, technicians and skilled labour to ensure that the approved work is correctly carried out; 3. training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage; 4. supply of equipment which the State concerned does not possess or is not in a position to acquire; 5. low-​interest or interest-​free loans which might be repayable on a long-​term basis; 6. the granting, in exceptional cases and for special reasons, of non-​repayable subsidies.

*  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). He has occasionally been a Consultant to UNESCO. The present chapter is based on the contribution included in the first edition of this Commentary and has been updated by Federico Lenzerini. The first edition chapter was co-​written with Anne Lemaistre.

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Federico Lenzerini Article 23

The World Heritage Committee may also provide international assistance to national or regional centres for the training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage. Article 24 International assistance on a large scale shall be preceded by detailed scientific, economic and technical studies. These studies shall draw upon the most advanced techniques for the protection, conservation, presentation and rehabilitation of the natural and cultural heritage and shall be consistent with the objectives of this Convention. The studies shall also seek means of making rational use of the resources available in the State concerned. Article 25 As a general rule, only part of the cost of work necessary shall be borne by the international community. The contribution of the State benefiting from international assistance shall constitute a substantial share of the resources devoted to each programme or project, unless its resources do not permit this. Article 26 The World Heritage Committee and the recipient State shall define in the agreement they conclude the conditions in which a programme or project for which international assistance under the terms of this Convention is provided, shall be carried out. It shall be the responsibility of the State receiving such international assistance to continue to protect, conserve and present the property so safeguarded, in observance of the conditions laid down agreement by the agreement.

275 276 276 278 280 285 285 287

I. Introduction  II. Conditions and Priorities for International Assistance  A. Beneficiaries of International Assistance  B. Priorities for International Assistance  III.  Types of International Assistance  IV. Modalities of International Assistance  A. Requests for International Assistance  B. The Administrative Procedure 

I. Introduction Strictly linked to the World Heritage Fund,1 the scheme of international assistance represents the operational core of the World Heritage Convention, establishing an international system of support for cultural and natural properties of outstanding universal value to which States Parties to the Convention may have access when they are unable to defend the integrity of their heritage with only their own forces. It thus constitutes the main concrete realization of the principle of international solidarity proclaimed by the seventh sentence of the Convention’s Preamble, according to which:

1

  On the World Heritage Fund, see the commentary on Arts 15–​16 by Lenzerini.

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it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an efficient complement thereto.

The objectives and scope of international assistance are spelt out in Article 13 of the Convention. For this reason, this commentary should be read in conjunction with the commentary on Article 13.2 In particular, according to paragraph 1 of this provision, ‘[t]‌he purpose of [requests for international assistance] may be to secure the protection, conservation, presentation or rehabilitation’ of World Heritage properties. Articles 19 to 26, under Chapter V of the Convention, set out the conditions and modalities for international assistance. The conditions and priorities for granting international assistance are defined by Articles 19, 20, 21 paragraph 2, 22 paragraph 3, 23, and 25. These articles explain the eligibility requirements for accessing international assistance. The modalities for granting international assistance are described in Articles 19, 21 paragraph 1, 21 paragraph 3, 24, and 26. Only Article 22 describes the different forms the international assistance may take. The Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines) deal with this subject under Chapter VII.C (The World Heritage Fund and International Assistance).3 At the request of the World Heritage Committee, the World Heritage Centre commissioned an independent evaluation of all types of international assistance from 1998 to 2003. The evaluation of emergency assistance was conducted and presented to the Committee in 2004.4 The evaluation of preparatory assistance, technical cooperation, training, and promotional and educational activities was undertaken in 2005.5 The conclusions of these evaluations are reflected in the present commentary, with opportune updates.

II.  Conditions and Priorities for International Assistance A.  Beneficiaries of International Assistance Article 19 states that international assistance can be granted to any State Party ‘for property forming part of the cultural and natural heritage of outstanding universal value situated within its territory’. While this provision naturally reserves international assistance to States Parties to the Convention, according to Article 20 it may be granted not just to properties already inscribed on the World Heritage List (or on the List of World Heritage in Danger), but also to sites which the Committee ‘may decide, to enter in one of the[se] lists’ (thus including that heritage which, not yet being inscribed on the World Heritage List, has not yet been officially recognized as ‘World Heritage’ by the Committee). This is consistent with the provision of Article 13, paragraph 1, allowing the Committee to ‘receive and study requests for international assistance . . . with respect to property forming part of the cultural or natural heritage . . . potentially suitable’ for inscription on the World Heritage List.   On the commentary on Art. 13 by Vrdoljak.   See Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​ 01, of 31 July 2021, paras 233–​257. 4   See Doc. WHC-​04/​28.COM/​10B, of 17 June 2004. 5   See Doc. WHC-​05/​29.COM/​14B, of 30 June 2005. 2 3

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In any event, international assistance may only be granted in favour of properties ‘forming part of the cultural and natural heritage’ (whether or not—​as just noted—​they are (already) inscribed on the World Heritage List); this is made clear by Article 20, whose univocal wording (‘may be granted only’)6 does not allow any different interpretation. Consequently, as a general principle, no assistance may be granted pursuant to Chapter V of the Convention which is not specifically linked to one or more pre-​ identified cultural or natural properties of outstanding universal value. As a partial derogation to such a principle, according to paragraph 2 of Article 13 (expressly recalled by Art. 20 as a provision conditioning its scope), requests for international assistance may also be submitted for ‘identification of cultural or natural property defined in Articles 1 and 2, when preliminary investigations have shown that further inquiries would be justified’. This means that a State Party to the Convention may ask to be granted assistance in order to identify what cultural or natural properties in its territory are of outstanding universal value pursuant to the Convention, being thus eligible for inscription on the World Heritage List. A further exception to the principle that international assistance is to be linked to pre-​ established and specific properties is contemplated by Article 23, also recalled by the text of Article 20, according to which such assistance may also be provided by the Committee in favour of ‘national or regional centres for the training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage’. The focus here is on capacity building, which is an indispensable prerequisite for making less advanced States Parties effectively capable of creating the conditions for inscription of their cultural and natural treasures on the World Heritage List. It may thus be envisaged as a sort of ‘preventive assistance’ to World Heritage sites, aimed at leading them to become part of the said List. The provision of Article 23 is also expressed in identical terms by subparagraph 3 of Article 22—​recalled by Article 20 as another norm to which its text is ‘subject’—​which includes the ‘training of staff and specialists at all levels’ in the fields listed by Article 23 among the forms of assistance that may be granted by the World Heritage Fund. It is clear from Article 25 that international assistance only supplements—​and does not replace—​a country’s commitment to invest in its own heritage. The said provision indeed states that—​as a general rule—​only part of the cost necessary for providing the assistance needed by a property forming part of the World Heritage ‘shall be borne by the international community’. This is also confirmed by paragraph 233 of the Operational Guidelines, placing emphasis on the principle that ‘International Assistance should be seen as supplementary to national efforts for the conservation and management of World Heritage and Tentative List properties when adequate resources cannot be secured at the national level.’ The state concerned should consequently contribute—​pursuant to Article 25—​‘a substantial share of the resources devoted to each programme or project’, except in the event that ‘its resources do not permit this’. International assistance is thus seen as additional to the action of the States Parties. However, the use of the expression ‘as a general rule’ and the inclusion of the last sentence in Article 25 (‘unless its resources do not permit this’) clearly imply that derogations are possible, allowing the Committee (as the ‘sovereign body’ of the Convention, which—​pursuant to Art. 13—​decides on requests

  Emphasis added.

6

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Articles 19–26: International Assistance

for international assistance)7 to determine to grant assistance even covering the whole cost of any activity to be carried out, with no contribution by the state benefiting from it.

B.  Priorities for International Assistance The criteria to be borne in mind by the Committee in determining ‘an order of priorities for its operations’ (with particular respect to international assistance) are set up by Article 13, paragraph 4 of the Convention, identifying them as: the respective importance for the world cultural and natural heritage of the property requiring protection, the need to give international assistance to the property most representative of a natural environment or of the genius and the history of the peoples of the world, the urgency of the work to be done, the resources available to the States on whose territory the threatened property is situated and in particular the extent to which they are able to safeguard such property by their own means.

In any event, the absolute priority of international assistance is expressed in Article 21, paragraph 2, according to which requests based ‘upon disasters or natural calamities’ should be granted immediate and priority consideration by the Committee, ‘by reasons of the urgent work which they may involve’. To this end, the Committee ‘should have a reserve fund at its disposal against such contingencies’. This principle is reiterated by paragraph 235 of the Operational Guidelines, which places emergency assistance at the top of the list of the types of international assistance, listed ‘in order of priority’. On the occasion of the debate on the ‘Evaluation of the Emergency Assistance’, the Committee, at its 28th session (Suzhou, China, 2004), indicated, among the desirable improvements to this kind of assistance, a clearer definition of the meaning of the term ‘emergency’, a ‘more rigorous use of resources’ reserved to ‘emergency situations strictly relating to the conservation of World Heritage sites’, as well as ‘a more rapid allocation of funds’.8 The ‘Strategy for Reducing Risks from Disasters at World Heritage Properties’, adopted by the Committee at its 30th session (Vilnius, 2006),9 tries to reach this outcome through, inter alia, a request to the World Heritage Centre and the Advisory Bodies: to prepare a revised draft format for Emergency Assistance requests including the requirement to clarify what is the specific serious threat/​danger affecting the property, how it might affect its overall outstanding universal value, and how the proposed activity intends to mitigate/​prevent it, and submit it to the Committee for examination at its 31st session in 2007.

At its 31st session (held in Christchurch, New Zealand, in 2007), the Committee adopted the new application form for international assistance, designed to make the system of such assistance more efficient.10 The special importance of emergency assistance is reflected in paragraph 237 of the Operational Guidelines, which—​while excluding eligibility for international assistance for States Parties ‘in arrears of payment of their compulsory or voluntary contributions to the World Heritage Fund’—​explicitly excludes the applicability of this rule ‘to requests for emergency assistance’. 7   According to Art. 13, para. 3, of the Convention, ‘[t]‌he Committee shall decide on the action to be taken with regard to these requests, determine where appropriate, the nature and extent of its assistance, and authorize the conclusion, on its behalf, of the necessary arrangements with the government concerned’. 8   See Doc. WHC-​06/​30.COM/​7.2, of 26 June 2006, para. 6. 9   See Decision 30COM 7.2, in Doc. WHC-​06/​30.COM/​19, of 23 August 2006, p. 9, para. 8. 10   See Decision 31COM 18A, in Doc. WHC-​07/​31.COM/​24, of 31 July 2007, p. 197. The new form is available in Doc. WHC-​07/​31.COM/​18B, of 10 May 2007, p. 14.

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An element for establishing a priority—​apart from the absolute precedence given to emergency assistance—​among requests for international assistance may be found in Article 21, paragraph 1, of the Convention, dealing with the definition by the Committee of ‘the procedure by which requests to it for international assistance shall be considered’. It is ‘the degree of urgency’, which is also reflected in Article 13, paragraph 4 and in paragraph 239(c) of the Operational Guidelines, instructing the Committee to consider ‘the urgency of the protective measures to be taken at World Heritage properties’ as a factor governing its decisions in granting international assistance. However, the chapeau of paragraph 239 of the Operational Guidelines explicitly defines as ‘priorities’ for international assistance those ‘outlined in paragraphs 236–​238’. Paragraph 236, in particular, gives priority to requests concerning ‘properties inscribed on the List of World Heritage in Danger’, for which the Committee has created ‘a specific budget line to ensure that a significant portion of assistance from the World Heritage Fund is allocated’ to such properties. Other priorities to be considered by the Committee—​pursuant to paragraph 238 of the Operational Guidelines—​are those ‘set out by Regional Programmes’, which are adopted as ‘follow-​up to Periodic Reports’, and are ‘regularly reviewed by the Committee based on the needs of States Parties identified in Periodic Reports’, as established by paragraph 210. With the constant and impressive growth in the number of the properties on the World Heritage List, the need for rules allowing the Committee to define which requests for international assistance should be given priority has progressively increased. For this reason, paragraph 239 of the Operational Guidelines lists a number of criteria to be taken into account by the Committee in deciding such requests: (a) the likelihood that the assistance will have a catalytic and multiplier effect (‘seed money’), and promote financial and technical contributions from other sources; (b) when funds available are limited and a selection has to be made, preference is given to: a least developed country or low-​income economy as defined by the United Nations Economic and Social Council’s Committee for Development Policy, or a lower middle-​income country as defined by the World Bank, or a small island developing state (SIDS), or a State Party in a post-​conflict situation;11 (c) the urgency of the protective measures to be taken at World Heritage properties; (d) whether the legislative, administrative, and, wherever possible, financial commitment of the recipient State Party is available to the activity; (e) the impact of the activity on furthering the Strategic Objectives or on the implementation of policies adopted by the by the Committee;12 (f ) the degree to which the activity responds to needs identified through the reactive monitoring process and/​or the analysis of regional periodic reports;

  It is worth noting that in 2006 the Committee decided that in the grant of international assistance ‘[p]‌reference will be given to developing countries . . . as already provided for in paragraph 239(b) of the Operational Guidelines’; see Decision 30COM 14A, in Doc. WHC-​06/​30.COM/​19, p. 185, para. 5a). 12   These strategic objectives, referred to as ‘the 5Cs’, are defined by para. 26 of the Operational Guidelines as: ‘1) Strengthen the Credibility of the World Heritage List; 2) Ensure the effective Conservation of World Heritage Properties; 3) Promote the development of effective Capacity-​building in States Parties; 4) Increase public awareness, involvement and support for World Heritage through Communication; 5) Enhance the role of Communities in the implementation of the World Heritage Convention’ (bold and Italics in original). 11

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(g) the exemplary value of the activity in respect of scientific research and the development of cost-​effective conservation techniques; (h) the cost of the activity and expected results; (i) the educational value both for the training of experts and for the general public; (j) the inclusive nature of the activity, in particular as concerns gender equality, and the involvement of local communities and Indigenous peoples. A further element to be considered by the Committee—​provided for by paragraph 240 of the Operational Guidelines—​is the need to maintain a balance ‘in the allocation of resources to activities for cultural and natural heritage’; this balance should be ‘reviewed and decided upon on a regular basis by the Committee’.

III.  Types of International Assistance Since its inception in 1972, the Convention and its World Heritage Fund have provided different forms of international assistance, which have evolved over the last four decades in consideration of the progressive increment in the number of properties inscribed on the World Heritage List. The forms of assistance that may be granted by the World Heritage Fund are listed by Article 22. The modalities and conditions of the available types of international assistance are defined by the summary table included in paragraph 241 of the Operational Guidelines, which is reproduced as Table 5 below. It is worth noting that the types of international assistance detailed in the summary table originate from Article 22 of the Convention and correspond substantially to the forms listed by such provision, with, however, some remarkable differences. In sum: • paragraphs 1 (‘studies concerning the artistic, scientific and technical problems raised by the protection, conservation, presentation and rehabilitation of the cultural and natural heritage’) and 3 (‘training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage’) of Article 22 correspond to the type of assistance defined as ‘Training and research assistance’ (incorporated within conservation and management assistance); • paragraph 2 of Article 22 (‘provisions of experts, technicians and skilled labour to ensure that the approved work is correctly carried out’) does not exactly correspond to any type of international assistance as described in paragraph 241 of the Operational Guidelines, and it constitutes much more a system for monitoring the activities undertaken due to the granted assistance; • paragraphs 4 (‘supply of equipment which the State concerned does not possess or is not in a position to acquire’) and 5 (‘low interest or interest-​free loans which might be repayable on a long-​term basis’) of Article 22 correspond to the type defined by paragraph 241 as ‘Technical co-​operation assistance’ (incorporated within Conservation and Management Assistance); • paragraph 6 of Article 22 (‘the granting, in exceptional cases and for special reasons, of non-​repayable subsidies’) is not taken into account and does not feature in any category contemplated by paragraph 241. This may be due to its obsolescence, as reflected by relevant practice. federico lenzerini

Purpose

This assistance may be requested to address ascertained or potential threats facing properties included on the List of World Heritage in Danger and the World Heritage List which have suffered severe damage or are in imminent danger of severe damage due to sudden, unexpected phenomena. Such phenomena may include land subsidence, extensive fires, explosions, flooding, or man-​made disasters including war. This assistance does not concern cases of damage or deterioration caused by gradual processes of decay, pollution, or erosion. It addresses emergency situations strictly relating to the conservation of a World Heritage property (see Decision 28COM 10B 2.c). It may be made available, if necessary, to more than one World Heritage property in a single State Party (see Decision 6EXT. COM 15.2). The budget ceilings relate to a single World Heritage property. The assistance may be requested to: (i) undertake emergency measures for the safeguarding of the property; (ii) draw up an emergency plan for the property.

This assistance may be requested to: (i) prepare or update national Tentative Lists of properties suitable for inscription on the World Heritage List; a commitment will be required from the State Party to nominate in priority on these lists sites recognized in approved thematic advice, such as the thematic studies prepared by the Advisory Bodies, as corresponding to gaps on the List; (ii) organize meetings for t he harmonization of national Tentative Lists within the same geo-​ cultural area;

Type of international assistance

Emergency Assistance

Preparatory assistance

Up to US$5,000 Between US$5,001 and 30,000

Up to US$5,000 Between US$5,001 and 75,000

Budget ceilings per request

Table 5  Modalities and conditions for types of international assistance (paragraph 241 of the Operational Guidelines)

At any time 31 October

At any time At any time

Deadline for submission of request

(continued )

Director of the World Heritage Centre Chairperson of the Committee

Director of the World Heritage Centre Chairperson of the Committee

Authority for approval

Conservation and Management Assistance (incorporating Training and Research assistance, Technical

Type of international assistance

This assistance may be requested for: (i) the training of staff and specialists at all levels in the fields of identification, monitoring, conservation, management, and presentation of World Heritage, with an emphasis on group training; (ii) scientific research benefiting World Heritage properties or studies on the scientific and technical problems of conservation, management, and presentation of World Heritage properties;

(iii) prepare nominations of properties for inscription on the World Heritage List, including preparatory work such as collection of basic information, scoping studies of the potential for demonstration of Outstanding Universal Value, including integrity or authenticity, comparative studies of the property in relation to other similar properties (see 3.2 of Annex 5), including analysis in the context of the Gap Studies produced by the Advisory Bodies. Priority will be given to requests for sites recognized in approved thematic advice as corresponding to gaps on the List and/​or for sites where preliminary investigations have shown that further inquiries would be justified, especially in the case of States Parties whose heritage is unrepresented or under-​represented on the World Heritage List; (iv) prepare requests for Conservation & Management assistance for consideration by the World Heritage Committee. Requests by States Parties whose heritage is unrepresented or under-​represented in the World Heritage List will be given priority for preparatory assistance.[*]‌

Purpose

Table 5  Continued

Only for requests falling under items (i) to (vi): Up to US$5,000

Budget ceilings per request

Only for requests falling under items (i) to (vi): At any time

Deadline for submission of request

Only for requests falling under items (i) to (vi) Director of the World Heritage Centre

Authority for approval

(iii) establishment/​revision of national policies or legal frameworks on heritage preservation benefiting World Heritage properties. Note: Requests for support for individual training courses from UNESCO should be submitted on the standard ‘Application for fellowship’ form available from the Secretariat. (iv) provision of experts, technicians, and skilled labour for the conservation, management, and presentation of properties inscribed on the List of World Heritage in Danger and the World Heritage List; (v) supply of equipment which the State Party requires for the conservation, management, and presentation of properties inscribed on the List of World Heritage in Danger and the World Heritage List; (vi) low-​interest or interest-​free loans for undertaking activities for the conservation, management, and presentation of properties inscribed on the List of World Heritage in Danger and the World Heritage List, which may be repayable on a long-​term basis. (vii) At the regional and international levels for programmes, activities, and the holding of meetings that could: –​help to create interest in the Convention within the countries of a given region; –​create a greater awareness of the different issues related to the implementation of the Convention to promote more active involvement in its application; –​be a means of exchanging experiences; –​stimulate joint education, information, and promotional programmes and activities, especially when they involve the participation of young people in World Heritage conservation activities. (viii) At the national level for: –​meetings specifically organized to make the Convention better known, especially amongst young people, or for the creation of national World Heritage associations, in accordance with Article 17 of the Convention; –​the preparation and discussion of education and information material (such as brochures, publications, exhibitions, films, multimedia tools) for the general promotion of the Convention and the World Heritage List and not for the promotion of a particular property, and especially for young people.

Between US$5,001 and 30,000 Over US$30,000 Only for requests falling under items (vii) and (viii): Up to US$5,000 Between US$5,001 and 10,000

31 October 31 October Only for requests falling under items (vii) and (viii): At any time 31 October

Chairperson of the Committee Committee Only for requests falling under items (vii) and (viii): Director of the World Heritage Centre Chairperson of the Committee

* The special importance of international assistance for countries which have no properties or are under-​represented on the World Heritage List has been emphasized by the Committee ‘as a primary means to help lead to a greater representation of outstanding universal value’; see Decision 30COM 9, in Doc. WHC-​06/​30.Com/​19, p. 165, para. 5.

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At the time of writing, the following requests of international assistance have been approved:

  Source: https://whc.unesco.org/en/intassistance/action=stats (accessed on 10 April 2022).13

  In terms of requests financed per state, the data are the following: United Republic of Tanzania 76 (total amount: 4,152,014 USD); Costa Rica 63 (total amount: 1,148,851 USD); Ecuador 57 (total amount: 1,205,660 USD); Brazil 50 (total amount: 1,156,417 USD); Peru 49 (total amount: 926,890 USD); Egypt 48 (total amount: 993,207 USD); Democratic Republic of the Congo 46 (total amount: 1,198,205 USD); China 46 (total amount: 962,050 USD); Senegal 44 (total amount: 981,805 USD); Nepal 42 (total amount: 1,006,086 USD); India 39 (total amount: 945,464 USD); Ethiopia 37 (total amount: 851,616 USD); Colombia 32 (total amount: 808,511 USD); Pakistan 32 (total amount: 600,976 USD); Bulgaria 30 (total amount: 415,684 USD); Tunisia 30 (total amount: 780,296 USD); Philippines 30 (total amount: 567,062 13

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IV.  Modalities of International Assistance A.  Requests for International Assistance As previously noted, according to paragraph 237 of the Operational Guidelines any State Party that has regularly paid its (compulsory or voluntary) contributions to the World Heritage Fund is entitled to be granted all types of international assistance. On the other hand, only emergency assistance can be granted in favour of States Parties in arrears of payment of those contributions. In practice, States Parties to the Convention with difficulties in adequately safeguarding World Heritage properties located in their territory are very often invited or recommended to submit a request for international assistance by the Committee itself. To benefit from international assistance, the State Party concerned has to submit a request accompanied by the information and documentation ‘provided for in Article 21 as it has in its possession’, pursuant to the second part of Article 19. Article 21, for its part, does not explicitly define what this ‘information and documentation’ consists USD); Indonesia 29 (total amount: 700,740 USD); Vietnam 29 (total amount: 736,708 USD); Guinea 28 (total amount: 614,736 USD); Mali 28 (total amount: 608,627 USD); Turkey 28 (total amount: 523,823 USD); Algeria 28 (total amount: 476,431 USD); Syrian Arab Republic 27 (total amount: 594,965 USD); Côte d’Ivoire 27 (total amount: 628,753 USD); Cameroon 27 (total amount: 534,510 USD); Mexico 27 (total amount: 721,791 USD); Niger 25 (total amount: 598,651 USD); Malawi 24 (total amount: 396,794 USD); Yemen 24 (total amount: 556,878 USD); Honduras 23 (total amount: 517,141 USD); Argentina 21 (total amount: 337,482 USD); Madagascar 20 (total amount: 509,611 USD); Lebanon 20 (total amount: 291,560 USD); Morocco 19 (total amount: 314,917 USD); Guatemala 17 (total amount: 416,201 USD); Zimbabwe 17 (total amount: 413,480 USD); Benin 17 (total amount: 272,738 USD); Lao People’s Democratic Republic 17 (total amount: 344,272 USD; Malta 16 (total amount: 212,554 USD); Jordan 16 (total amount: 447,101 USD); Cuba 16 (total amount: 609,250 USD); Kenya 16 (total amount: 307,396 USD); Poland 15 (total amount: 304,301 USD); Bolivia 15 (total amount: 256,933 USD); Sri Lanka 15 (total amount: 357,612 USD); Mauritania 15 (total amount: 263,632 USD); Ghana 14 (total amount: 323,536 USD); Croatia 14 (total amount: 252,339 USD); Oman 14 (total amount: 305,840 USD); Russian Federation 14 (total amount: 291,543 USD); Cambodia 14 (total amount: 398,767 USD9; Portugal 13 (total amount: 135,940 USD); Mozambique 13 (total amount: 315,640 USD); Uganda 13 (total amount: 481,786 USD); Lithuania 13 (total amount: 239,550 USD); United States of America 12 (total amount: 180,809 USD); Haiti 12 (total amount: 282,710 USD); Slovakia 12 (total amount: 158,233 USD); Panama 11 (total amount: 334,100 USD); Bangladesh 11 (total amount: 286,143 USD); Chile 11 (total amount: 390,703 USD); Georgia 11 (total amount: 266,740 USD; Gambia 11 (total amount: 220,772 USD); Nigeria 10 (total amount: 132,201 USD); Nicaragua 10 (total amount: 150,682 USD); El Salvador 10 (total amount: 220,250 USD); Uzbekistan 10 (total amount: 269,510 USD); Seychelles 10 (total amount: 336,000 USD); Canada 9 (total amount: 113,900 USD); Cyprus 9 (total amount: 125,400 USD); Greece 9 (total amount: 208,910 USD); Albania 9 (total amount: 239,226 USD); Latvia 9 (total amount: 154,500 USD); Dominican Republic 8 (total amount: 172,857 USD); Congo 8 (total amount: 109,852 USD); Afghanistan 8 (total amount: 323,670 USD); Ukraine 8 (total amount:153,465 USD); Democratic People’s Republic of Korea 8 (total amount: 146,386 USD); Kyrgyzstan 8 (total amount: 114,502 USD); Montenegro 7 (total amount: 202,500 USD); Iran (Islamic Republic of ) 7 (total amount: 147,750 USD); Burkina Faso 7 (total amount: 127,094 USD); Iraq 7 (total amount:136,700 USD); Gabon 7 (total amount: 134,600 USD); Romania 7 (total amount: 76,600 USD); Fiji 7 (total amount: 119,013 USD); Guyana 7 (total amount: 63,967 USD); Armenia 7 (total amount: 136,700 USD); South Africa 7 (total amount: 186,799 USD); Turkmenistan 7 (total amount: 187,685 USD); Central African Republic 7 (total amount: 324,521 USD); Serbia (total amount: 679,300 USD); Japan 6 (total amount: 135,700 USD); Mongolia 6 (total amount: 149,760 USD); Sudan 6 (total amount: 183,400 USD); Republic of Korea 6 (total amount: 95,000 USD); Hungary 6 (total amount: 136,680 USD); Togo 6 (total amount: 99,984 USD); Kazakhstan 6 (total amount: 141,216 USD); Palestine 6 (total amount: 370,000 USD); Paraguay 6 (total amount: 97,899 USD); Thailand 5 (total amount: 56,800 USD); UK 5 (total amount: 83,730 USD); Cabo Verde 5 (total amount: 112,485 USD); Uruguay 5 (total amount: 63,500 USD); Dominica 5 (total amount: 72,000 USD); Grenada 5 (total amount: 86,798 USD); Tajikistan 5 (total amount: 127,188 USD); Vanuatu 5 (total amount: 115,531 USD); Palau 5 (total amount: 259,005 USD); Libya 4 (total amount: 56,178 USD); Zambia 4 (total amount: 36,135 USD); Malaysia 4 (total amount: 40,775

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of, but mandates the Committee to ‘define the procedure by which requests to it for international assistance shall be considered’. Since, in defining such a procedure, the Committee has to specify certain elements (i.e. ‘the content of the request, which should define the operation contemplated, the work that is necessary, the expected cost thereof, the degree of urgency and the reasons why the resources of the State requesting assistance do not allow it to meet all the expenses’), it must be intended that the ‘information and documentation’ in object has first to deal with these elements. The Committee has revised the procedure for requesting international assistance several times. The major changes occurred in 1998—​with the addition of the category ‘Information and Promotion’14—​and in 2001 (at the 25th session of the Committee, held in Helsinki, Finland)—​with the division of international assistance into two main sections: States Parties’ requests and World Heritage Programmes initiatives.15 At that time, different formats of international assistance requests were elaborated for each type of assistance.16 The present Operational Guidelines encourage States Parties wishing to submit a request for international assistance to consult the Secretariat and the Advisory Bodies—​‘during the conceptualization, planning and elaboration of each request’—​in order to improve the chances that their request is successful.17 The importance of providing all information requested in the application form (as well as—​when it is appropriate or necessary—​additional information and reports, including experts’ reports as requested by Art. 21, para. 1 ‘whenever possible’) is also emphasized.18 Contrary to previous practice, only one application form is now USD); Germany 4 (total amount: 55,000 USD); Norway 4 (total amount: 85,000 USD); Botswana 4 (total amount: 97,629 USD); Belarus 4 (total amount: 59,032 USD); Eritrea 4 (total amount: 99,916 USD); Spain 3 (total amount: 28,500 USD); Maldives 3 (total amount: 52,350 USD); Bosnia and Herzegovina 3 (total amount: 59,960 USD); Austria 3 (total amount: 60,000 USD); Jamaica 3 (total amount: 44,485 USD); Azerbaijan 3 (total amount: 37,994 USD); France 3 (total amount: 30,000 USD); New Zealand 3 (total amount: 29,000 USD); Papua New Guinea 3 (total amount: 75,000 USD); Venezuela 3 (total amount: 56,077 USD); St Kitts and Nevis 3 (total amount: 27,000 USD); Australia 3 (total amount: 70,000 USD); Samoa 3 (total amount: 40,000 USD); Rwanda 3 (total amount: 54,800 USD); Mauritius 3 (total amount: 60,987 USD); Comoros 3 (total amount: 79,960 USD); Marshall Islands 3 (total amount: 90,000 USD); Djibouti 3 (total amount: 79,863 USD); Lesotho 3 (total amount: 55,016 USD); North Macedonia 2 (total amount: 75,000 USD); Belgium 2 (total amount: 5,000 USD); Namibia 2 (total amount: 38,000 USD); Estonia 2 (total amount: 42,600 USD); Bahrain 2 (total amount: 56,500 USD); Czechia 2 (total amount: 125,000 USD); Solomon Islands 2 (total amount: 56,335 USD); South Sudan 2 (total amount: 59,900 USD); Qatar 1 (amount: 30,000 USD); Denmark 1 (amount: 5,000 USD); Belize 1 (amount: 9,700 USD); Saudi Arabia 1 (amount: 30,000 USD); Suriname 1 (amount: 19,500 USD); Sweden 1 (amount: 10,000 USD); Finland 1 (amount: 10,000 USD); Saint Lucia 1 (amount: 19,950 USD); Israel 1 (amount: 15,000 USD); Bhutan 1 (amount: 2,830 USD); Kiribati 1 (amount: 20,000 USD); Guinea-​Bissau 1 (amount: 23,712 USD); Angola 1 (amount: 30,000 USD); Slovenia 1 (amount: 5,000 USD); Sierra Leone 1 (amount: 29,940 USD); Saint Vincent and the Grenadines 1 (amount: 21,352 USD); Barbados 1 (amount: 30,000 USD); Myanmar 1 (amount: 30,000 USD); Italy 1 (amount: 20,000 USD); Chad 1 (amount: 29,910 USD); Equatorial Guinea 1 (amount: 27,628 USD); Liberia 1 (amount: 29,998 USD); Micronesia 1 (amount: 30,000 USD); Somalia 1 (amount: 30,000 USD).   See Doc. WHC-​2000/​CONF.204/​16, of 12 October 2000, p. 9.   See Doc. WHC-​01/​CONF.208/​19, of 4 December 2001, p. 3. 16   See the 2002 version of the Operational Guidelines, Doc. WHC.02/​2, of July 2002, available at http://​ whc.une​sco.org/​arch​ive/​opguid​e02.pdf (last accessed 26 April 2007), paras 94 ff. 17   See Operational Guidelines, para. 242. 18   See ibid, para. 246. The principal information requested by the application form (see note 10) are the following: whether the activity will benefit a property or properties inscribed on the List of World Heritage in Danger, the World Heritage List, or nominated for inscription on the World Heritage List; type of activity for which assistance is required; whether previous contributions have been provided by the World Heritage Fund in favour of the property or properties concerned; place, date, and duration of the activity for which assistance is required; whether the activity is local, national, sub-​regional, regional, or international; description of the 14 15

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used for all types of international assistance,19 included as Annex 8 to the Operational Guidelines. This has greatly simplified the procedure for submitting requests for international assistance. In order to further enhance the feasibility of these requests, at its 30th session (Vilnius, 2006) the Committee decided on a new application form to be developed and assessed at the 32nd session in 2008, taking into account the need ‘to focus on project aims, implementation measures, outcomes, and impacts’.20 In its present form, Annex 8 to the Operational Guidelines, in addition of including the form, specifies that ‘[t]‌he International Assistance request form is available at: https://​whc.une​sco.org/​en/​ intass​ista​nce and can be filled out online’. Additional information, supplementary to that given by the requesting country, can be provided by the World Heritage Centre staff, UNESCO field offices, Advisory Bodies, and experts. The Committee itself, pursuant to Article 21, paragraph 3, ‘shall carry out such studies and consultations as it deems necessary’ before deciding on the request. According to Article 24, these studies—​of scientific, economic, and technical character—​are mandatory for ‘[i]‌nternational assistance on a large scale’ (although no definition of the term ‘large scale’ is provided), consistent with the objectives pursued by the Convention, and ‘draw upon the most advanced techniques for the protection, conservation, presentation and rehabilitation of the natural and cultural heritage’. The studies in point should also be used for seeking ‘means of rational use of the resources available in the State concerned’, pursuant to the last sentence of Article 24.

B.  The Administrative Procedure When a request for international assistance is considered to be coherent and complete by the World Heritage Centre, it is forwarded to the Advisory Bodies. Incomplete requests are generally referred back by the Centre to the States Parties for more information, but in most cases they are not finalized or resubmitted to the Centre. All complete requests ‘are assessed by the Secretariat irrespective of the amount requested’, pursuant to paragraph 247 of the Operational Guidelines. Additionally, ‘requests with a budget above US$ 30,000 are assessed as follows: a) By ICOMOS for requests for cultural heritage (all types of assistance) and ICCROM (all types of assistance except Preparatory assistance); b) By IUCN for requests for natural heritage; c) By ICOMOS and IUCN for requests for mixed heritage (all types of assistance) and ICCROM (all types of assistance except Preparatory assistance)’.21 In evaluating these requests, the Advisory Bodies should be guided by the ‘Evaluation criteria for International Assistance requests’, attached to the Operational Guidelines as Annex 9. According to paragraph 252 of the Operational Guidelines, a ‘panel composed of representatives of the World Heritage Centre Regional Desks and the Advisory Bodies, reasons justifying the activity; indication of the objectives intended to be achieved through the activity; programme, work plan, and timetable of the activity/​activities; profiles of the person(s) involved in the activity; description of the required equipment; expected results, outcomes, and follow-​up of the activity; detailed breakdown of the costs of the activity; indication of the agency/​agencies responsible for the implementation of the activity.   See note 10.   See Decision 30COM 14A, in Doc. WHC-​06/​30.COM/​19, p. 185, para. 7b). As previously noted, the new application form for international assistance had already been adopted by the Committee at its 2007 session; see text accompanying note 10. 21   See Operational Guidelines, para. 247. 19 20

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and if possible, the Chairperson of the World Heritage Committee or, in observer capacity, a person designated by the Chairperson, meets once or twice a year to examine the International Assistance requests of more than US$ 5,000, except those for Emergency Assistance, and to make recommendations to the Chairperson and/​or the Committee’. The Chairperson is not authorized to approve requests submitted by his/​her own country. Such requests must be examined by the Committee.22 Once a request for international assistance is approved by the Committee, an agreement must be concluded between UNESCO and ‘the concerned State Party or its representative(s) for the implementation of the approved International Assistance requests in conformity with UNESCO regulations, following the work plan and budget breakdown described in the originally approved request’,23 in conformity with Article 26 of the Convention. The last sentence of Article 26 (stating that ‘[i]‌t shall be the responsibility of the State receiving . . . assistance to continue to protect, conserve and present the property so safeguarded, in observance of the conditions laid down by the agreement’) clearly implies that this international assistance should be considered as a starting point of an improved conservation rather than a one-​off grant. For the sake of transparency, a list of property for which international assistance has been granted is drawn up, kept up to date, and publicized by the Committee, as requested in paragraph 5 of Article 13 of the Convention. According to paragraph 256 of the Operational Guidelines, the monitoring and evaluation of the implementation of the activity for which international assistance has been granted ‘will take place within 3 months of the activities’ completion’. The results of these evaluations are collected and maintained by the Secretariat in collaboration with the Advisory Bodies, and are ‘examined by the Committee on a regular basis’. The Committee is also called to review ‘the implementation, evaluation and follow-​up of International Assistance in order to evaluate the International Assistance effectiveness and to redefine its priorities’.24

  ibid, para. 253.   

22

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  ibid, para. 255.   

23

  ibid, para. 257.

24

Articles 27–​28: Educational Programmes Federico Lenzerini *

Article 27 1. The States Parties to this Convention shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage defined in Articles 1 and 2 of the Convention. 2. They shall undertake to keep the public broadly informed of the dangers threatening this heritage and of the activities carried on in pursuance of this Convention. Article 28 States Parties to this Convention which receive international assistance under the Convention shall take appropriate measures to make known the importance of the property for which assistance has been received and the role played by such assistance.

I. Awareness Raising and World Heritage Education (Secondary School Level)  A. Introduction  II. Application of Article 27, Paragraphs 1 and 2  A. The Awareness-​Raising Component  B. The Educational Component  III. Higher Education and Forum UNESCO–​University and Heritage (FUUH) Network  IV. Application of Article 28 

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I.  Awareness Raising and World Heritage Education (Secondary School Level) A. Introduction Article 27(1) of the World Heritage Convention specifically refers to the endeavours expected to be made by States Parties to work on strengthening the appreciation and respect of world heritage among their national/​local communities. Article 27, paragraph 2, underlines the need to raise awareness on the threats to world heritage and inform the public about safeguarding the activities undertaken. The Operational Guidelines for the Implementation of the World Heritage Convention deal with this subject under Chapter VI on ‘Encouraging support for the World Heritage *  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO. The present chapter is based on the contribution included in the first edition of this Commentary and has been updated by Federico Lenzerini. The chapter for the first edition was written by Vesna Vujicic-​Lugassy and Marielle Rochon.

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Convention’, in particular Section VI.C on ‘Awareness raising and education’ and Chapter VIII on ‘The World Heritage Emblem’.1 Chapter VII, on international assistance, is also relevant, although the category of ‘Assistance for education, information and awareness raising’, previously contemplated by Section VII.E, is today incorporated in Conservation and management assistance. Furthermore, one of the four principal strategic objectives of the World Heritage Committee stipulated in the Budapest Declaration of 2002, or the fourth among the ‘5 Cs’, is to ‘[i]‌ncrease public awareness, involvement and support for World Heritage through Communication’.2

II.  Application of Article 27, Paragraphs 1 and 2 A.  The Awareness-​Raising Component In the past two decades, due to a variety of factors, including one as obvious as the strong growth in the number of World Heritage properties, threats to world heritage have increased and the management of properties has become more challenging. Apart from wars and natural disasters, which are threats that have been present throughout the history of humankind, more recent threats include pollution, global warming, uncontrolled urbanization, unchecked tourist development, and poaching. As a response to these threats, mobilizing governments, civil society, and local populations living in and around World Heritage properties has evolved into an essential component of world heritage conservation. Information programmes are intended to raise the general public’s awareness, understanding, and appreciation of the need to preserve world heritage. Increased awareness leads to an enhanced role of world heritage in the life of the communities in and around World Heritage properties and encourages the participation of these communities in heritage protection. Information and awareness raising should be integrated into each phase of world heritage conservation work (legislation, administration, identification, nomination, preservation, periodic reporting, interpretation, etc.). States Parties are encouraged to promote among their general public the World Heritage Convention and the importance of preserving World Heritage properties situated on their territories, in particular those under potential or ascertained threat. They should also make clear to their public the benefits and duties deriving from World Heritage inscription, as well as enhance the international cooperation component of the Convention. Such promotion can be obtained by preparing and diffusing information material to the public and to all stakeholders in the world heritage conservation process, by publicizing world heritage preservation activities through local press, and by organizing national and local exhibitions and world heritage-​related events. States Parties are also encouraged to adequately mark World Heritage properties on their territory, and publicize their inscription on the World Heritage List and the activities geared towards their preservation.

1   See Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​ 01, of 31 July 2021. 2   Budapest Declaration on World Heritage, Decision adopted by the 26th session of the World Heritage Committee, Doc. WC-​02/​CONF. 202/​25, p. 9; Operational Guidelines, para. 26 (original emphasis).

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By promoting the world heritage values associated with inscribed sites, States Parties have been encouraged to make wide use of the World Heritage emblem. Although the text of the Convention does not refer directly to the existence of a symbol/​emblem representing World Heritage, in practice, the World Heritage emblem, designed by Mr Michel Olyff and approved by the World Heritage Committee in 1978, is considered to be the official emblem of the World Heritage Convention. This emblem symbolizes the interdependence of cultural and natural properties, the two being intimately linked. It also symbolizes the Convention, signifies the adherence of States Parties to it, and serves to identify World Heritage properties. The use of the emblem by States Parties and World Heritage property authorities, the UNESCO Secretariat, and other contracting parties is directed by specific guidelines adopted at the 22nd session of the World Heritage Committee in 1998 and outlined in Chapter VIII of the Operational Guidelines. In 2005, the World Heritage emblem was officially registered under Article 6ter of the Paris Convention for the Protection of Industrial Property (Paris Convention). It is to be noted that the protection of the World Heritage emblem is the responsibility, under Article 6ter of the Paris Convention, of the States parties to the Paris Convention, and of the members of the World Trade Organization not having ratified the Paris Convention under the TRIPS Agreement. When registered in 2005, it was clearly indicated that the World Heritage emblem may also be encircled by the words ‘World Heritage’ in one or more languages. The World Heritage Committee is responsible for determining the use of the emblem and for making policy prescriptions concerning its use. In relation to the legal ownership of the World Heritage emblem, as stated by the UNESCO Legal Advisor in working document WHC CONF.201/​17 presented to the World Heritage Committee at its 20th session in 1996, UNESCO is the owner and ‘the assignee of all intellectual property rights of the [design] and can, on these grounds, dispose of it’, but ‘the decision to make the design the emblem of the Convention could only be taken by the Committee’ and, in this sense, ‘UNESCO can only dispose of it through the Committee’. The Secretariat/​UNESCO World Heritage Centre has a role in assisting States Parties to fulfil this obligation by preparing and disseminating basic information material for the States Parties to translate and diffuse to their public, publicizing success stories, case studies, and best practice examples through periodicals and the World Heritage Centre website, collaborating with the media, as well as through the organization of special events. Special attention is given to the diffusion of information concerning properties on the List of World Heritage in Danger in order to attract the funding necessary to improve their condition. Partnerships with the civil society are increasingly important vectors of world heritage awareness raising. The World Heritage Centre website is the official site of the Secretariat of the World Heritage Convention and the source of the most up-​to-​ date information about the World Heritage List, the Convention, and its many partners around the world. It is by far UNESCO’s most visited site.

B.  The Educational Component Young people, tomorrow’s decision makers, should be encouraged and enabled to participate in heritage conservation on a local as well as on a global level. States Parties are encouraged to raise awareness of the World Heritage Convention among young people and develop effective educational approaches and materials. The long-​term aim is to have Federico Lenzerini

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education integrated into each phase of World Heritage conservation work (legislation, administration, identification, nomination, preservation, periodic reporting, interpretation, etc.). States Parties are encouraged to develop educational programmes and activities, as well as educational material related to world heritage, with the participation of schools and local and national educational authorities. Until the 1990s, few educational initiatives were undertaken in an organized and strategic manner. However, since the launching in 1994 of the UNESCO Project on Young People’s Participation in World Heritage Preservation and Promotion, States Parties have been able to actively participate in the project and ensure synergy between educators, young people, and heritage conservation experts in order to introduce World Heritage Education into the secondary school curricula. Over 130 countries have participated in this project. Among other things, the project has produced a World Heritage in Young Hands Kit for secondary-​school teachers, translated into 40 national languages. It has also allowed the training of nearly 1,250 teachers and educators, and determined the organization of 40 international and regional youth forums, with an estimated 1,560 young people participating.3 Extra-​budgetary contributions are extremely important in the implementation of the project, to complete the relatively modest allocations from the World Heritage Fund. The Secretariat assists States Parties in fulfilling this duty by: the preparation of special projects such as that mentioned above and assisting the States Parties in implementing them through providing both financial and expert assistance; preparing and diffusing educational materials (including, as already noted, the World Heritage in Young Hands Kit); preparation and diffusion of information brochures and preparation of multimedia educational material; and assisting States Parties in the organization of skills-​training courses, teacher-​training workshops, and youth forums linked to world heritage education. In 1999, an external evaluation of the project resulted in a highly positive assessment of the results achieved, the impact made on both teachers and students, and a confirmation of the vital need to pursue, develop, and extend further the Special Project. Current efforts, both within States Parties and at UNESCO, go mainly towards mainstreaming world heritage education in national curricula and the production of new multimedia educational materials.

III.  Higher Education and Forum UNESCO–​University and Heritage (FUUH) Network Higher education is referred to in a number of articles of the World Heritage Convention other than Articles 27 and 28, such as Article 5(c) and (e): ‘each State Party to this Convention shall endeavour . . .: (c) to develop scientific and technical studies and research; and (e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.’ Similarly, Article 22, paragraphs (a), (b), and (c) refer to the academic manpower and input that universities can provide which can also be financed by means of international assistance from the World Heritage Fund: 3

 See https://​whc.une​sco.org/​en/​whed​ucat​ion/​ (accessed 10 April 2022).

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Assistance may take the following forms: 1. studies concerning the scientific and technical problems raised by the protection, conservation and rehabilitation of the cultural and natural heritage . . . 2. provisions of experts, technicians and skilled labour . . .; and 3. training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage.

Lastly, Article 23 refers to ‘the training of staff and specialists’ which can be ensured by academic staff. In 2002, an international network created in 1995, entitled ‘Forum UNESCO–​ University and Heritage’, was placed under the responsibility of the World Heritage Centre and managed jointly by UNESCO and the Polytechnic University of Valencia (UPV), Spain. Designed to partner with universities, considered among key stakeholders, perennial and independent elements of civil society dealing with knowledge and youth, the forum was conceived as a tool to support UNESCO efforts in the protection and conservation of heritage, pursuing the objectives of disseminating among the academic community UNESCO’s issues of concern in the field of heritage conservation and protection, linking heritage professionals to academics and students, developing research in the field of heritage protection, sharing programmes, activities, or academic exchanges, as well as creating synergies between universities and other key stakeholders in the civil society, such as locally elected representatives, media, or teachers for the benefit of awareness raising and heritage conservation. After 11 years of existence, in 2006 the network counted some 10,000 affiliates from over 400 universities located in 112 countries (three levels of membership based on academics or researchers, heritage practitioners, and students above Masters level and one level for universities and research centres or institutes), effected through the signature by universities of a memorandum of understanding with the World Heritage Centre. Since 2002, the themes of the annual international seminars of the network were related to the Convention and aimed at responding to the terms of Articles 27 and 28 of the Convention. Seminars, traditionally held in three languages (English, French, and Spanish), were focused on world heritage issues such as cultural tourism (2002, Jordan), natural heritage (2003, Spain), management of centre and periphery (2004, Argentina), cultural landscapes (2005, UK), and documentation for conservation and development (2006, Italy), and were of high impact. Although not exclusively linked to the promotion of the objectives of the World Heritage Convention—​being more generally related to the purposes pursued by UNESCO—​the UNITWIN/​UNESCO Chairs Programme is also of significance. It was launched in 1992 in order to promote ‘international inter-​university cooperation and networking to enhance institutional capacities through knowledge sharing and collaborative work’.4 It involves, at the time of writing, over 850 institutions in 117 countries.5 Through this programme, ‘higher education and research institutions all over the globe pool their resources, both human and material, to address pressing challenges and contribute to the development of their societies’.6 To date, at least seven UNESCO Chairs are specifically devoted to issues related to world heritage, while several others, which deal more generally with the protection of cultural heritage, are relevant to the World Heritage Convention as well.7 5  See https://​www.une​sco.org/​en/​educat​ion/​unit​win (accessed 10 April 2022).  ibid.  ibid. 7  See https://​www.une​sco.org/​sites/​defa​ult/​files/​med​ias/​files/​2022/​03/​list-​une​sco-​cha​irs.pdf (accessed 10 April 2022). 4 6

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World heritage studies may actually represent a genuine added value for higher education institutions if they are linked with the World Heritage Committee’s objectives and the daily experience and preoccupation of the World Heritage Centre. Programmes should aim at real life and at the job market in order to attract students who will become future World Heritage property managers. To build their curricula, universities may choose a perspective which benefits from their own strengths, expertise, and capacities, in order to make a difference in the increasingly competitive market of higher education programmes.

IV.  Application of Article 28 The implementation of Article 28 ties in closely with Article 27, as it concerns raising awareness about the benefits deriving from the various forms of international assistance that States Parties receive from the World Heritage Fund. The contractual arrangements made with States Parties’ authorities with regard to international assistance requests that they submit, stipulate, in most of the cases, the need to promote the use made of this assistance. The evaluation and follow-​up of international assistance undertaken within 12 months of the activities’ completion include the evaluation of dissemination efforts and results. However, the potentialities of this component of the educational programmes linked to international assistance and its benefits to World Heritage properties and local communities have not yet been fully exploited.

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Article 29: Reports Ben Boer*

1. The States Parties to this Convention shall, in the reports which they submit to the General Conference of the United Nations Educational, Scientific and Cultural Organization on dates and in a manner to be determined by it, give information on the legislative and administrative provisions which they have adopted and other action which they have taken for the application of this Convention, together with details of the experience acquired in this field. 2. These reports shall be brought to the attention of the World Heritage Committee. 3. The Committee shall submit a report on its activities at each of the ordinary sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization

I. Introduction  II. State Party Reports: Periodic Reporting  III. World Heritage Committee Reports to the General Assembly of States Parties to the Convention and the General Conference of UNESCO  IV. Reports by the World Heritage Centre/Secretariat  V. Reports of World Heritage Committee Meeting Decisions to States Parties  VI. Reports from the Advisory Bodies to the World Heritage Committee  A. Advice on Implementation of the Convention  B. Reports on the Global Strategy for a Representative, Balanced and Credible World Heritage List  C. Periodic Reporting by the States Parties  D. Reports on Reactive Monitoring  E. Evaluation Reports  VII. Reactive Monitoring Reports on State of Conservation  VIII. Reports of Expert Meetings and Studies  IX. Archiving of Information 

295 297 300 300 300 300 301 301 301 301 301 303 304 304

I. Introduction Article 29 of the Convention contemplates a very wide range of reporting processes, by the States Parties, the World Heritage Committee, the World Heritage Centre, the official Advisory Bodies, and by expert panels and reviewers. The reporting requirements under the Convention have developed considerably from the original commencement in 1997. The wording of Article 29 leaves a wide margin

*  Professor Emeritus of Law, University of Sydney and Distinguished Professor of Law, Research Institute of Environmental Law, Wuhan University, China.

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of discretion to UNESCO’s General Conference with regard to reporting dates and manner of reporting. The ever-evolving Operational Guidelines include a complex range of reporting provisions. This chapter attempt to summarize these provisions in an accessible form. The increased emphasis on reporting requirements can be seen in part as a result of rising demands for public participation in environmental and heritage decision making at an international level since the 1990s, as reflected in several instruments at a regional level and, in many countries, at a national level. Principle 10 of the 1992 Rio Declaration on Environment and Development1 has been central driver of these demands. It urges that environmental issues are best handled with the participation of all concerned citizens, and that at the national level, appropriate access should be given to environmental information and to judicial and administrative proceedings, including redress and remedy. The principle is implemented in the European context by the Aarhus Convention2 where Article 1 states: ‘In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-​being, each Party shall guarantee the rights of access to information, public participation in decision-​making, and access to justice in environmental matters in accordance with the provisions of this Convention.’ Principle 10’s elements were also incorporated into the Escazú Agreement adopted by Latin American and Caribbean States in 2018.3 Paragraphs 39 and 40 of the Operational Guidelines reflect these demands for the particpation of stakeholders in a range of ways, including changes to the partnership approach, which must now be ‘underpinned by inclusive, transparent and accountable decision-​m aking to nomination, management and monitoring. . .’ (Para 39). 4 Further, the United Nations Declaration on the Rights of Indigenous Peoples, 5 reference to which was specifically included in the sidenote to the Operational Guidelines at paragraph 40 in 2015, places expectations on all UN organs to ensure the participation of Indigenous peoples in all issues that affect them. 6 The range of reports and reporting tasks required are summarized in Table 6,7 as far as possible in the order in which they appear in the 2021 Operational Guidelines.

  Rio Declaration on Environment and Development, 31 I.L.M. 874 (1992).   Access to Information, Public Participation in Decision-​making and Access to Justice in Environmental Matters (1998) 2161 UNTS 447. 3   Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018; entered into force, 22 April 2021). 4 5   Decision 43 COM 11 (Baku, 2019).   UN Doc A/​RES/​61/​295, annex, 13 September 2007. 6   ibid. Art. 41 of the Declaration states: 1 2

The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established. 7   Table 6 is not intended to be exhaustive; functions such as advice, appraisal, assessment, evaluation, and preparation of dossiers inevitably involve the preparation of some form of report, although not referred to as such in the Operational Guidelines.

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Table 6  Main reports and reporting tasks off States Parties, World Heritage Committee, World Heritage Centre/​Secretariat, Expert Meetings and Advisory Bodies Report

Operational Guidelines paragraphs

State Party reports to the General Conference of UNESCO:

18

World Heritage Committee reports on its activities every two years to the General Assembly of States Parties and the UNESCO General Conference:

24(h)

World Heritage Centre/​Secretariat reporting tasks:

28

Reports by the World Heritage Centre/​Secretariat to the World Heritage Committee:

28 and 176(e)

Reports of expert meetings and studies placed on the Internet:

56, 72

Reports from the Advisory Bodies to the State Parties, World Heritage Committee, and World Heritage Centre on state of conservation, preliminary assessments, evaluation of nominations, in-​danger listing, reactive monitoring:

31, 35, 122, 149, 161, 169, 176

State Party periodic reports to World Heritage Committee:

199, 200, 201, 202, 203

World Heritage Committee preparation of ‘Global World Heritage Report’:

204

World Heritage Committee adoption of periodic reporting process, indicators, and frameworks:

205, 205bis, 206, 206bis, 207

The Secretariat and the Advisory Bodies facilitate the States Parties to consolidate national reports into Regional State of the World Heritage reports:

208

World Heritage Committee review of issues in periodic reports and follow-​up programmes to periodic reports:

209, 210

Yearly report from Director of World Heritage Centre to World Heritage Committee on use of emblem:

278(b)

II.  State Party Reports: Periodic Reporting Article 29 is the fundamental reporting provision of the Convention. Its initial focus is on the obligation of the States Parties to submit reports to the General Conference of UNESCO concerning the legislative and administrative provisions adopted, and any other actions they have taken for the application of the Convention. The national report is a combination of individual reports completed for each World Heritage property (where the state Party has more than one property) together with a national-​level report. They are normally completed through government departments responsible for heritage matters. As stated in Article 29(a), the details of dates and the manner of reporting are left to be specified by the UNESCO General Conference, and many of those details are found in the Operational Guidelines. The reports are required to be sent the World Heritage Committee. The process is now known as ‘periodic reporting’. The organization of periodic reporting is listed in paragraph 28(e) of the Operational Guidelines as one of the main tasks of the World Heritage Centre Secretariat. The Centre notes that periodic reporting ‘is one of the core conservation monitoring mechanisms of the World Heritage Convention’.8 Paragraph 200 of the Operational Guidelines makes it clear that periodic reporting is a ‘self-​reporting process’, to be led ‘as far as possible’, by the states themselves. The 8

  World Heritage Centre, ‘What is Periodic Reporting?’, https://​whc.une​sco.org/​en/​period​icre​port​ing/​.

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‘self-​reporting’ description was included in 2017.9 It is intended to be carried out on a regional basis, coordinated and facilitated by the World Heritage Centre at the global level, with expert advice able to be requested from the Advisory Bodies and the World Heritage Centre. Paragraph 201 of the Operational Guidelines indicates the main purposes of periodic reporting: a) to provide an assessment of the application of the World Heritage Convention by the State Party; b) to provide an assessment as to whether the outstanding universal value of the properties inscribed on the World Heritage List is being maintained over time; c) to provide up-​dated information about the World Heritage properties to record the changing circumstances and state of conservation of the properties; d) to provide a mechanism for regional cooperation and exchange of information and experiences between States Parties concerning the implementation of the Convention and World Heritage conservation.

Paragraph 202 reveals a strong motivation for periodic reporting: it is seen as being important ‘for more effective long-​term conservation of the properties inscribed, as well as to strengthen the credibility of the implementation of the Convention.’ In 2017, this paragraph was amended,10 enhancing the significant function performed by the periodic reporting process. It states: ‘It is also an important tool for assessing the implementation by States Parties and World Heritage properties of policies adopted by the World Heritage Committee and the General Assembly.’ According to paragraph 203, periodic reporting takes place over a six-​year cycle on a regional basis. Regional reporting strategies are intended to result in a consolidated Regional State of the World Heritage Report.11 Paragraph 209 provides that the Committee reviews the reports and then advises States Parties on issues which arise from those reports. The intention is for the World Heritage Centre, along with the Advisory Bodies and in consultation with the States Parties, to develop long-​term regional programmes. These should reflect the needs of the region in terms of World Heritage (para. 210). Paragraphs 238 and 239(f ) indicate that programmes are adopted as follow-​ups to periodic reports and are relied upon in determining the grant of international assistance to States Parties. The format for periodic reports is set out in detail in Annex 7 to the Operational Guidelines, which also provides the basis for the questionnaire.12 In relation to the state of conservation reports of specific properties, Section II of Annex 7 specifies that the preparation of the reports should involve those responsible for the day-​to-​day management of sites, presumably on the basis that the on-​site managers of World Heritage properties can speak with first-​hand knowledge of issues and problems.13 It also recommends that for transboundary properties, reports be prepared jointly by or with close collaboration between the agencies concerned.   Annex to Decision 41 COM 11 (2017).   See ibid. 11   Regional reports are available at http://​whc.une​sco.org/​en/​publi​cati​ons; see, e.g., ‘Understanding World Heritage in Asia and the Pacific—​The Second Cycle of Periodic Reporting 2010–​2012’, https://​whc.une​sco. org/​en/​ser​ies/​35/​. 12   The Periodic Reporting questionnaire for the Third Cycle exercise, 2018-​2024 is at https://​whc.une​sco. org/​en/​prcyc​le3/​ . 13   See detailed guidance and training tools for site managers at ibid. 9

10

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Section II.1 of Annex 7 sets out in some detail the specific matters to be addressed in the chapters of the periodic report, summarized as follows: 1. World Heritage property data: requires that information be provided or existing information validated with regard to the basic data of the property. 2. Other conventions/​programmes under which the World Heritage property is protected: information relating to synergies with other conventions and programmes (UNESCO and others) relevant to the property and on the extent of cooperation and integration existing between these conventions and programmes 3. Statement of outstanding universal value and defining of attributes: gathers information on the attributes of outstanding universal value, their current condition, and the trend in that condition since the last cycle of periodic reporting. 4. Factors affecting the property: gathers information on the range of factors that are currently affecting or have strong potential to affect the property, both positively and negatively. 5. Protection and management of the property: gathers information on practical issues of management, and the effectiveness of protection, management, and monitoring of the property and its outstanding universal value. 6. Financial and human resources: gathers information on the sources of funding available, the adequacy of budget for management needs, as well as the availability of human resources and levels of capacity building at the property. 7. Scientific studies and research projects: gathers information on the adequacy of available knowledge (both scientific and traditional) regarding the values and attributes of the World Heritage property and the existence of research programmes directed towards management needs and/​or improvement of the understanding of the outstanding universal value. 8. Education, information, and awareness building: gathers information on the existence and effectiveness of heritage education and awareness programmes at the property as well as general services dedicated to education, information, interpretation, and awareness building. 9. Visitor management: gathers information on tourism activities and visitor management at the property. 10. Monitoring: gathers information on the existence of monitoring programmes and indicators for the property as well as on the implementation of property-​related Committee Decisions (where applicable). 11. Identification of priority management needs: automatically lists all the management needs requiring further action which have been highlighted in this section of the periodic report. 12. Summary and conclusions: highlights the most important positive and negative factors (up to ten of each) which have been highlighted in this section of the periodic report. 13. Impact of World Heritage status: gathers information regarding the impact of World Heritage status in relation to various topics, with a particular focus on the World Heritage and Sustainable Development Policy (2015). 14. Good practices in the implementation of the World Heritage Convention: offers the opportunity to provide an example of good practice in World Heritage protection, identification, conservation, and preservation implemented at the property level. Ben Boer

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15. Assessment of the periodic reporting exercise: assesses the format, content, and process of the periodic reporting exercise, including how the data generated is used and the training and guidance available to respondents. Periodic reports necessarily involve a great deal of research, consultation, and analysis at the level of the individual property, within institutions at national level (and at sub-​ national level in federally organized states) and at national political level, as well as the World Heritage Centre, and the World Heritage Committee, in order to comply with the prescriptions contained in the Operational Guidelines. In the case of many developing countries with a lack of technical capacity, the close cooperation of the World Heritage Centre, the Advisory Bodies, and other States Parties is especially needed to fulfil these reporting obligations.

III.  World Heritage Committee Reports to the General Assembly of States Parties to the Convention and the General Conference of UNESCO Article 29, paragraph 3 of the Convention requires the World Heritage Committee to report to the General Conference of UNESCO on the Committee’s activities. The Operational Guidelines specify in paragraph 24(h) that a report on its activities be submitted every two years to the General Assembly of States Parties, as well as the General Conference of UNESCO.

IV.  Reports by the World Heritage Centre/​Secretariat Reports by the Secretariat, known as the World Heritage Centre, on the implementation of decisions of the World Heritage Committee, go to the General Assembly of UNESCO and to the Committee.14 These reports cover a very wide variety of issues, as set out in Table 6 .

V.  Reports of World Heritage Committee Meeting Decisions to States Parties The timetable set out under paragraph 168 of the Operational Guidelines stipulates that the published reports of the Committee are sent to all States Parties within one month of the closure of the annual session of the Committee. The reports are also placed on the World Heritage website.15

VI.  Reports from the Advisory Bodies to the World Heritage Committee Paragraph 31 of the Operational Guidelines sets out the roles of the Advisory Bodies, namely the International Council on Monuments and Sites (ICOMOS), the International   World Heritage Convention, Art. 14(2) and Operational Guidelines, para. 28(b).   http://​whc.une​sco.org/​en/​publi​cati​ons.

14 15

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Union for Conservation of Nature (IUCN), and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM). These roles necessarily involve the preparation of reports, as detailed below.

A.  Advice on Implementation of the Convention Advice is sought from the Advisory Bodies on various aspects of the implementation of the Convention.16 There is no specific direction in the Operational Guidelines concerning the content or format of this advice; however, the provisions concerning Advisory Body evaluation reports do contain specific directions (see Section VII, below).

B.  Reports on the Global Strategy for a Representative, Balanced and Credible World Heritage List Paragraph 56 of the Operational Guidelines encourages both the States Parties and the Advisory Bodies to be involved in the implementation of the Global Strategy for a Representative, Balanced and Credible World Heritage List. This work also involves regular reporting. Reports and studies on the Global Strategy are found on the World Heritage Centre website.17

C.  Periodic Reporting by the States Parties As noted earlier, paragraph 200 of the Operational Guidelines makes it clear that periodic reporting is a ‘self-​reporting’ process, but the Advisory Bodies can be requested by the States Parties to provide expert advice in the process of periodic reporting, and the World Heritage Centre may commission further advice, with the agreement of the concerned States Parties.

D.  Reports on Reactive Monitoring Paragraph 169 of the Operational Guidelines indicates that the Advisory Bodies are expected to be involved in reporting of reactive monitoring concerning the state of conservation of World Heritage properties under threat (see also later, VII Reactive Monitoring Reports, covering reporting obligations of States Parties for State of Conservation of their properties).

D.  Evaluation Reports The preparation of evaluation reports is one of the central roles that IUCN and ICOMOS play. Paragraph 31(e) of the Operational Guidelines obliges IUCN and ICOMOS to present evaluation reports of World Heritage nominations to the Committee. The evaluations must be done ‘in consultation and dialogue with nominating States Parties’. The evaluation process by IUCN and ICOMOS must be guided by the principles set out in paragraph 148. These include that the evaluations and presentation must ‘be conducted to a consistent standard of professionalism, equity and transparency, in consultation and dialogue with the nominating State Parties (para. 148(c)) and involving ‘regional experts familiar with the subject’ (para. 148(e)).

  Operational Guidelines, para. 31(a).

16

  http://​whc.une​sco.org/​en/​glo​bals​trat​egy.

17

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Annex 6 sets out the detailed joint ICOMOS/​IUCN procedure for preliminary assessment of potential nominated properties, for the evaluation of cultural properties by ICOMOS, for the evaluation of natural properties by IUCN, and requirement for collaboration for evaluation of cultural and natural properties (known as mixed properties) and for cultural landscapes. Paragraphs 122 and 143–​151 of the Operational Guidelines are relevant to the requirements for preliminary assessment and evaluation of nominations set out in Annex 6. Figures 1 and 2 of Annex 6 include summaries of the evaluation procedures for ICOMOS and IUCN. When evaluating nominated mixed properties, namely properties that have been nominated under both natural and cultural criteria specified in paragraph 77 of the Operational Guidelines (see commentary by Boer on Article 3), ICOMOS and IUCN must undertake a joint mission to the property and then prepare separate reports under the detailed criteria specified for each body in Annex 6. They are obliged to harmonize and coordinate their evaluations to the extent possible.18 Cultural landscapes are evaluated by ICOMOS under the cultural criteria (i) to (vi) pursuant to paragraph 77 of the Operational Guidelines. However, Annex 6, D, on Advisory Body Collaboration, makes clear that ‘IUCN may provide advice when relevant on the natural values and the conservation and management of the nominated property, and addresses any questions that are raised by ICOMOS. In some cases, a joint mission is required’. A new paragraph inserted into Annex 6 in 201519 explicitly recognizes the links between nature and culture. It states: As most properties nominated to the World Heritage list include aspects of management related to the interaction of nature and culture, IUCN and ICOMOS, to the extent possible, discuss any such interactions during their evaluation processes.

The issue of how to deal with the links between natural and cultural sites have been grappled with by World Heritage practitioners from the early days of the Convention.20 This paragraph is a sensible addition, encouraging IUCN and ICOMOS to work closely together on the majority of evaluations of nominations. The enhanced need to cooperate is manifested by a joint project by ICOMOS and IUCN that commenced in 2013 and was completed in 2021, described as follows: Connecting Practice is a joint exploration by ICOMOS and IUCN aimed at learning and developing new approaches that recognise and harness the interconnection of natural and cultural values and processes of highly significant heritage landscapes and seascapes to achieve a more effective, creative and inclusive way to maintain them and to learn from their long-​lasting lessons.21

  Operational Guidelines, Annex 6, D. Advisory Body Collaboration.   ‘Revision of the Operational Guidelines’, Decision: 39 COM 11, https://​whc.une​sco.org/​en/​decisi​ons/​ 6198/​. 20   See, e.g., M. Batisse and G. Bolla, ‘The Invention of “World Heritage” ’, UNESCO History Papers 2 (2005); ‘Culture—​Nature Links’, World Heritage No. 75, April 2015, https://​whc.une​sco.org/​en/​rev​iew/​75/; S. Kai and M. Rössler, ‘A World Heritage Perspective on Culture and Nature—​Beyond a Shared Platform’ (2017) 34(2) The George Wright Forum 134; B. Boer, ‘The Environment and Cultural Heritage’, in F. Francioni and A. F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, Oxford, 2020) pp. 329–​332. 21   Luisa De Marco et al., Connecting Practice Phase III: Final Report (ICOMOS, 2021) p. 3, https://​open​ arch​ive.ico​mos.org/​id/​epr​int/​2477/​. 18 19

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VII.  Reactive Monitoring Reports on State of Conservation Reactive monitoring is defined in paragraph 169 of the Operational Guidelines as ‘the reporting by the Secretariat, other sectors of UNESCO and the Advisory Bodies to the Committee on the state of conservation of specific World Heritage properties that are under threat’. Paragraph 169 makes it clear that States Parties have the responsibility to ‘submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the Outstanding Universal Value of the property or its state of conservation’. In adopting the process of reactive monitoring, the main objective, as stated by paragraph 170, is ‘that all possible measures should be taken to prevent the deletion of any property from the List and [the Committee] was ready to offer technical cooperation as far as possible to States Parties in this connection’. Such properties include those inscribed or proposed for inscription on the List of World Heritage in Danger (see paras 177–​191) or for deletion from the World Heritage List (see paras 192–​198). Where properties are under threat, States Parties are required to send a report, known as a State of Conservation Report, to the Committee through the World Heritage Centre, by 1 February of any particular year.22 The format of these reports is specified in Annex 13, complying with paragraph 169 of the Operational Guidelines. If the property is on the List of World Heritage in Danger, paragraph 2 of Annex 13 specifies that the reports should include (in summary): • progress achieved in implementing the corrective measures adopted by the World Heritage Committee; • where needed, a description of the success factors or difficulties in implementing each of the corrective measures identified; • suitability of the time frame for implementing the corrective measures; • progress achieved towards the desired state of conservation for the removal of the property from the List of World Heritage in Danger; • other current conservation issues identified by the relevant State Party which may have an impact on the property’s outstanding universal value. Pursuant to paragraph 172 of the Operational Guidelines, Annex 13, paragraph 4 of specifies that the report should also ‘describe any potential major restorations, alterations and/​or new construction(s) intended within the property, the buffer zone(s) and/​or corridors or other areas, where such developments may affect the Outstanding Universal Value of the property, including authenticity and integrity’. This information is used as a basis for further action, if required, concerning the property. According to Operational Guidelines, paragraph 176, these actions may include (in summary): • if the property has not seriously deteriorated, to keep the property on the List with no further action being taken; • if the property has seriously deteriorated, but not to the extent that its restoration is impossible, the property be maintained on the List, subject to necessary measures being taken by the State Party to restore the property; 22   The World Heritage Centre website on monitoring is available at: http://​www.iucn.org/​the​mes/​wcpa/​ wherit​age/​mon​itor​ing/​mon​itor​ing.htm.

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• the provision of technical cooperation; and • in some circumstances, an advisory mission by the relevant Advisory Body, other organizations, or experts may be invited by a State Party for advice on necessary measures to reverse deterioration and address any identified threats. The report, and any subsequent reports on the state of conservation of the property, can be used by the Committee as the basis for inscription of the property on the List of World Heritage in Danger or as a basis for deletion of the property from the World Heritage List (Operational Guidelines paras 177–​191). State of conservation reports are found on the State of Conservation Information System.23

VIII.  Reports of Expert Meetings and Studies Meetings of the Advisory Bodies and States Parties, and studies by the Advisory Bodies and by experts also result in a variety of reports, as noted in various places in the Operational Guidelines. These reports include initiatives concerning the Global Strategy for a Representative, Balanced and Credible World Heritage List (Operational Guidelines para. 56) and the studies and reports associated with the preparation and review of tentative lists,24 periodic reporting,25 and reactive monitoring.26

IX.  Archiving of Information Finally, it is noted that, pursuant to Part IX of the Operational Guidelines on information sources, the World Heritage Centre archives all reports, and a wide variety of other documents, as well as a database of decisions of the Committee and the General Assembly of States Parties, both in paper form and electronically.27 Part XI.C specifies that the Secretariat ‘provides access to information labelled as publicly available and copyright free on World Heritage properties and other relevant matters, wherever possible (see commentary by Boer on Article 3, concerning access to information and public participation).

  World Heritage Centre, State of Conservation Information System, see https://​whc.une​sco.org/​en/​soc. 25 26   ibid, para. 72.   ibid, paras 199–​200.   ibid, paras 169–​198. 27  See http://​whc.une​sco.org/​en/​statu​tory​doc and http://​whc.une​sco.org/​en/​decisi​ons. 23 24

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Article 34: Federal or Non-​Unitary Constitutional Systems Ben Boer *

The following provisions shall apply to those States Parties to this Convention which have a federal or non-​unitary constitutional system: a. with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States; b. with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces or cantons of the said provisions, with its recommendation for their adoption.

I. Introduction  II. Judicial Scrutiny of Article 34  III. In-​Danger Listing and Article 34  IV. Conclusion 

305 308 309 311

I. Introduction Article 34 addresses the responsibilities for the implementation of the Convention of States Parties that are federally organized or have a ‘non-​unitary constitutional system’. Federal systems and non-​unitary systems are typically those that embody a national or central government, operating in collaboration with two or more constitutionally recognized sub-national governments that have varying degrees of power to legislate and govern. Article 34 affects at least 23 States Parties under the Convention, depending how the phrase ‘federal or non-​unitary constitutional system’ is interpreted.1 Most simply use ‘federal’ as the descriptor, while some use other terms, such as ‘confederation’ in Switzerland, encompassing the national government and 26 cantons2 or ‘federative’ as in the case of *  Professor Emeritus of Law, University of Sydney and Distinguished Professor of Law (retired), Research Institute of Environmental Law, Wuhan University. 1   States recognized as being federally constituted include: Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Canada, Comoros, Ethiopia, Federated States of Micronesia, Germany, India, Malaysia, Mexico, Nigeria, Pakistan, Russian Federation, Serbia and Montenegro, Switzerland, United Arab Emirates, United States, and Venezuela. 2   Federal Constitution of the Swiss Confederation 1999; Art. 3 specifies ‘The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution. They exercise all rights that are not vested in the Confederation’; see further, Section III.

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Brazil with its 26 states and one federal district.3 In most instances of federal governance types, there is a sharing of power and law-​making between a central or national government and two or more sub-​national governments, as specified in their constitutions. The definition of ‘non-​unitary system’ can be problematic, as some states have strong central governments, but nevertheless include states or regions with allocated powers and responsibilities. While these entities do have some autonomy, they generally exist as creations of the central government, and their law-​making power is limited by the scope of central government laws. For example, the People’s Republic of China has some 31 sub-​national governance entities, including provinces, municipalities, special administrative areas, and autonomous regions, but should be characterized as being a unitary state rather than a federation.4 Another example is South Africa, the Constitution of which refers to the concept of ‘cooperative government’, 5 between the national, provincial and local spheres. National legislative authority is exercised by the National Assembly, but it can ‘assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government’.6 Article 34 (a) of the Convention fundamentally means that federal governments have exactly the same obligations for the implementation of the Convention as those states whose governments take a unitary form. Article 34(b), which contemplates implementation of the obligations of the Convention by lower levels of government, nevertheless places the responsibility on the federal or central government to persuade the lower levels to carry out the provisions of the Convention, notwithstanding the lack of direct federal or central government power. It appears to be clear on a plain reading of Art 34(b) that while management of a World Heritage property can be left to be carried out by a subordinate government or entity, the ultimate responsibility for implementing the Convention nevertheless lies with the national government.7 Article 34 as a whole thus raises the issue of the ways in which federal or central governments interact with state or provincial governments, as well as municipalities and other local authorities concerning national-​level World Heritage obligations. The introduction of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 and the

3   Constitution of the Federative Republic of Brazil 1988; Art. 25 provides: ‘The states are organized and governed by the Constitutions and laws they may adopt, in accordance with the principles of this Constitution; Art. 32 covers the powers of the Federal District. see further, Section III. 4   ‘The People's Republic of China is a unitary multi-​national State created jointly by the people of all its nationalities’, Preamble, Constitution of the People's Republic of China (as amended 2018). 5  Constitution of the Republic of South Africa, 1996 -​Chapter 3: Co-​ operative Government; the Organization of Economic Cooperation and Development (OECD) characterizes South Africa as ‘a quasi-​ federal country as it is a unitary state with federal tendencies and specific governance arrangements, based on a system of co-​operative governance’, OECD (2016), South Africa, Quasi-​Federal Country, https://​www.oecd. org › regional › profile-​South-​Africa. 6   Ibid, section 44; see also section 146. 7   As stated by ICOMOS:

All government levels may have a role to play in relation to tourism and cultural World Heritage Sites. The role each plays will vary from country to country and from site to site and will depend on a range of factors including the respective government’s philosophy and involvement in tourism and conservation. However, so far as the protection and management of a cultura1 World Heritage Site is concerned, it is the national government that is under obligation to comply with the requirements of the World Heritage Convention. Only the national government has an international responsibility under the Convention. (ICOMOS, ‘The World Heritage Convention: an Overview’, available at http//​www.intern​atio​nal.ico​mos.org. publi​cati​ons/​93tour​is1.pdf.)

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introduction of the UNESCO Indigenous Peoples Policy of 2018,8 especially with the increasingly broad adoption of the term ‘First Nations’ in some member states, has made these matters more complex, especially with regard to the question of access rights, and in particular, participation in World Heritage decisions concerning First Nations lands and marine areas.9 As a further point, it can be noted that the use of the words ‘States’ and ‘countries’ in Article 35(b) is confusing, as these terms are usually associated with independent, sovereign nation states or countries. States and countries are legally the same for most intents and purposes. The phrase ‘individual constituent States, countries, provinces or cantons’ (emphasis added) underlines this point. Thus, in this particular context, the word ‘States’ should rather be regarded as referring to the ‘state’ in the sense of a state of Australia, Brazil, India, Malaysia, the United States, and similar federations. With regard to the word ‘countries’, it is likely, given the use of the other terms in the sentence, that the reference to ‘countries’ is intended to be ‘counties’. Lixinski refers to these sub-​national governments as ‘constituent units’ to refer to ‘entities that form a federal state’.10 As noted in a commentary11 on the 2003 Intangible Cultural Heritage Convention,12 Article 35 of that Convention is identical to Article 34 of the World Heritage Convention. The same issue of drafting with regard to the use of ‘countries’ is found in the French and Spanish versions of both Conventions. In French, ‘pays’ can mean either a country or region; it would have been clearer to use ‘comtés’. Similarly, in the Spanish version, ‘países’ should have been ‘condados’. This view is strengthened by the fact that in the Diversity of Cultural Expressions Convention,13 in its equivalent federal provision, Article. 30(b), ‘counties’ is used in English, ‘comtés’ in French, and ‘condados’ in Spanish. In principle, under Article 35(b) of the World Heritage Convention, the relevant federal government is obliged to impress upon the sub-​national governments the need to adopt and implement the obligations under the Convention.14 This is consistent with Article 27 of the Vienna Convention on the Law of Treaties with regard to the international obligations of States Parties: ‘A state may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’15 Thus, by virtue of the fact that it is a signatory to the Convention, the ultimate responsibility of a federally or non-​unitarily organized State Party for carrying out the obligations of the Convention lies with its national or central government. For the most part, it appears that Article 34 has been uncontroversial, as the governments of federally organized States Parties either have the power to directly implement treaties, or they have developed a modus operandi with their constituent states or provinces, or lower level governments and authorities, to ensure that they implement the   UNESCO Policy on Engaging with Indigenous Peoples, https://​en.une​sco.org/​ind​igen​ous-​peop​les/​pol​icy   See further, the commentary on Art. 3 by Boer. 10  Lucas Lixinski, ‘Trialogical Subsidiarity in International and Comparative Law: Engagement with International Treaties by Sub-​State Entities as Resistance or Innovation’ (Oct 2018) 55 The Canadian Yearbook of International Law 1–​32, 3. 11   Ben Boer, ‘Article 35: Federal or Non-​Unitary Constitutional Systems’, in Janet Blake and Lucas Lixinski (eds) The 2003 UNESCO Intangible Heritage Convention (Oxford University Press, Oxford, 2020) p. 437. 12   Convention on the Safeguarding of the Intangible Cultural Heritage, 2368 UNTS 3 (2003): 13   Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2440 UNTS 311 (2005). 14   This paragraph draws on the equivalent points made by Boer in Blake and Lixinski (note 10) p. 438. 15   For further discussion, see ibid, pp. 3–​4. 8 9

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objects of the Convention. An example is the Republic of South Africa, which is one of the few State Parties that implements the Convention in specific legislation. An objective of its World Heritage Convention Act 199916 is: [t]‌o make the Convention part of South African domestic law and to create a framework to ensure that the Convention and the Operational Guidelines are effectively implemented in the Republic, subject to the provisions of the Constitution and the provisions of this Act.17

The South African Constitution 1996 specifies that national legislation prevails over provincial legislation where that legislation includes matters that, to be dealt with effectively, require uniformity across the nation.18 The protection of the environment is one of the matters specified, thus leaving no doubt that the South African government has overriding power to address World Heritage matters throughout the country.19 Some states have had occasion, indirectly or directly, to consider Article 34. For example, the United States, in an official memorandum on federalism issues in treaties, has stated that the United States ‘has not traditionally taken advantage of so-​called “federalism clauses” that allow federal states to modify their obligations under a treaty because of the legal division of competencies between a federal government and its constituent units’. The memorandum, however, goes on to say that the United States has ‘on occasion, sought to tailor certain international obligations to maintain the existing balance of federal–​state relations with respect to the treaty’s subject matter’. However, the memorandum refers to Article 34 of the World Heritage Convention as one of the examples of federal clauses which the United States has chosen not to invoke.20

II.  Judicial Scrutiny of Article 34 In Australia, the provisions of Article 34 were clearly raised in federal–​state conflicts over the distribution of environmental powers between the federal government and the Australian states in the late 1980s, especially in the area of World Heritage. In order to clarify responsibilities, the Australian federal government concluded an Intergovernmental Agreement on the Environment with the Australian states and territories in 1992.21 Schedule 8 to that Agreement provides in part: 1. The States recognise that the Commonwealth has an international obligation as a party to the World Heritage Convention to ensure the identification, protection, conservation, presentation and transmission to future generations of Australia’s natural and cultural heritage of ‘outstanding universal value’ . . . 16   Other States with legislation that includes provisions for implementing World Heritage obligations include Australia, Hungary, Italy, Macedonia, Romania, Suriname, and the United States. 17   World Heritage Convention Act 1999, Republic of South Africa, s. 3(b); for the purposes of rational interpretation and implementation of the provisions, reference to the Operational Guidelines of the World Heritage Convention at any particular time would need to mean the current updated version of those Guidelines. 18 19   Constitution of the Republic of South Africa 1996, s. 146.   ibid, s. 146(2)(c)(vi). 20   The reason for this is that the US Supreme Court has refused to interpret the 10th Amendment as a limitation on the exercise of the Treaty Power. The 10th Amendment states that ‘[t]‌he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. Memorandum summarizing US views and practice in addressing federalism issues in treaties, Advisory Committee on International Law, Meeting of 8 November 2002, ‘Federalism & US Treaties: New Developments’, available at https://​2009-​2017.state.gov/​s/​l/​38637.htm. 21   See Intergovernmental Agreement on the Environment 1992, available at https://​www.eco​lex.org/​deta​ils/​ legi​slat​ion/​interg​over​nmen​tal-​agreem​ent-​on-​the-​envi​ronm​ent-​lex-​fao​c013​006/​.

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5. Arrangements for the management of a property will be determined as far as practicable prior to the nomination. The management arrangements will take into consideration the continuation of the State’s management responsibilities for the property while preserving the Commonwealth’s responsibilities under the World Heritage Convention.22

Australia continues to have the only jurisprudence on Article 34. In the famous Franklin Dam case in 1983,23 several judges of the High Court of Australia dealt with the question as to whether Article 34 had any effect on the responsibilities and powers of the Australian federal government concerning the building of a major hydroelectric dam in a World Heritage area in south-​west Tasmania. The case concerned the constitutional validity of the World Heritage Properties Conservation Act 1983 (Commonwealth).24 Mason CJ stated: Article 34 of the Convention, the federal clause, does not relieve Australia from the performance of its obligations under the Convention. Paragraph (a) of the article makes it clear that in the case of a central legislative power possessing legal jurisdiction to implement the provisions of the Convention, the State party to the Convention has an obligation to implement the provisions. Then the obligation of the State party to the Convention is to inform the constituent organs in the federation and make recommendations for adoption of its provisions. The existence of the power conferred by s 51(xxix) [the external affairs power under the Australian Constitution] has the consequence that para (a) of art 34 imposes an obligation on the Commonwealth of Australia to implement the provisions of the Convention by legislation enacted by the Commonwealth Parliament.25

This was a strong statement of the position under Article 34, especially since the judgment called for the implementation of the Convention by legislation.26

III.  In-​Danger Listing and Article 34 The placing of Cologne Cathedral (Kölner Dom) on the List of World Heritage in Danger in 2004 provides a rare example of the operation of Article 34. The basis of the In-​Danger listing was the decision of the Cologne city administration to give consent to a skyscraper development on the right bank of the Rhine River, which was considered to compromise the visual integrity of the cathedral. The property was placed on the In-​ Danger List at the 28th session of the World Heritage Committee in Suzhou, China, in July 2004. The Committee had urged the German federal government to declare a buffer zone around the cathedral and to have a height planning scheme presented to the public. The issue was the subject of further debate at the 29th session of the Committee in Durban in July 2005, where it was noted that the first high-​rise building which had

22   The provisions of the 1992 Intergovernmental Agreement concerning World Heritage were largely incorporated into the Environment Protection and Biodiversity Conservation Act 1999 (Comm). 23   Commonwealth of Australia v State of Tasmania [1983] HCA 21 (High Court of Australia), available at http://​www8.aust​lii.edu.au/​cgi-​bin/​view​doc/​au/​cases/​cth/​HCA/​1983/​21.html 24   The World Heritage Properties Conservation Act 1983 was repealed and replaced by the Environment Protection and Biodiversity Conservation Act 1999. The new Act includes a scheme whereby World Heritage properties are included on a list of matters of national environmental significance. See B. W. Boer and G. Wiffen, Heritage Law in Australia (Oxford University Press, Oxford, 2006) pp. 109–​110. 25   Commonwealth of Australia v State of Tasmania (1983) 158 CLR 1 at [40] (High Court of Australia). 26   This statement was reinforced by the other judges in the majority in the case: Murphy, Deane, and Brennan; see ibid.

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led to the listing on the In-​Danger List had been completed and that a cluster of four more high-​rise buildings was planned.27 After the decision was made by the Committee to place the property on the In-​Danger list, there was continuing direct interaction between the Committee and the City of Cologne, and in particular an invitation to collaborate with the World Heritage Centre and the International Council on Monuments and Sites (ICOMOS) in a review of the building plans. It is not suggested that the Committee and the Centre ought not to interact in such a direct fashion. However, the situation raised some interesting questions about the complex constitutional relationships between the German federal government, the state (Land) of North-​Rhine Westphalia, and the relevant local government authority, the city administration of Cologne. This is because of the history of the relationship between the German federal government and the German states, on the basis of the Lindau Agreement of 1957 and the German Basic Law, wherein German constitutional provisions indicate that the states are to be specifically consulted and to give their consent concerning treaties into which the federal government wishes to enter. In relation to Cologne Cathedral and Article 34, Zacharias commented: . . . according to the domestic system of competences, the implementation or execution of arts 4 and 5 of the Convention is also a task of the German Federal states which have competences especially in the field of the protection of the substance of historic monuments. Thus, it is decisive whether the Federal states are obliged by the constitutional system of the [F]‌ederation to take legislative measures. The common opinion rightly holds that there is such an obligation of the Federal states in Germany. That obligation is one aspect of the general principle of federal loyalty which is a guarantor of the cohesion of the federal system. Consequently, article 34 (b) of the World Heritage Convention does not allow the German authorities to ignore the Convention when interpreting domestic law. The Federal State of North Rhine Westphalia and the City of Cologne had to consider the concerns of world heritage protection in their decisions relating to the city planning measures vis-​à-​vis Cologne Cathedral.28

From an analysis of the constitutional and legislative provisions, combined with the practice developed between the federal government and subordinate governments, it appears that the German federal government does indeed have the legal power to intervene in order to ensure that its international obligations under the World Heritage Convention are met. However, according to Zacharias, the government relied on political pressure rather than on its legal powers with regard to the City of Cologne.29 Nevertheless, a positive outcome was finally reached with the 2006 decision of the World Heritage Committee to remove Cologne Cathedral from the List of World Heritage in Danger, after German assurances to halt the building project30 (see the commentary on Art. 11 by Buzzini and Condorelli). 27   The Committee decided to retain the property on the In-​Danger List and called for a comprehensive report on the situation for its 30th meeting in July 2006: see http://​deni​stn.mine.nu/​pdf2h​tml.php?url=​http://​ whc.une​sco.org/​arch​ive/​2005/​whc05–​29com-​07Ae.pdf, p. 47. See also (1983) 46 Australian Law Reports 625 and Boer and Wiffen (note 24) pp. 88–​89. 28   D. Zacharias, ‘Cologne Cathedral versus Skyscrapers—​World Cultural Heritage Protection as Archetype of a Multilevel System’ (2006) 10 Max Planck UNYB 273, 331; see also commentary by Boer on Article 3, at Section VIII. 29   Ibid. 365. 30   UNESCO World Heritage Centre, Updates of the World Heritage List in Danger (Removed Properties) Germany, Cologne Cathedral Decision: 30 COM 7A.30 (2006), available at https://​whc.une​sco.org/​en/​decisi​ ons/​1033 (accessed 15 February 2022).

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IV. Conclusion It will be obvious from this commentary that Article 34 can potentially raise some thorny issues in situations where sub-​national levels of government do not wish to cooperate with federally organized or non-​unitary national governments.31 However, experience to date indicates that by legislation, judicial action, policy agreements, negotiation, and political pressure, such governments are able to achieve implementation of the Convention notwithstanding the obstacles raised by uncooperative governmental entities in the constitutional hierarchy.

31   For further commentary on similar issues arising from the identical ‘federal clause’ in the Convention on Safeguarding the Intangible Heritage in various federal or non-​unitary systems, including Belgium, Switzerland, Brazil, Malaysia, Canada and Australia, see Boer, note 11, above.

Ben Boer

Articles 30–​33 and 35–​38: Final Clauses Federico Lenzerini *

Article 30 This Convention is drawn up in Arabic, English, French, Russian and Spanish, the five texts being equally authoritative. Article 31 1. This Convention shall be subject to ratification or acceptance by States members of the United Nations Educational, Scientific and Cultural Organization in accordance with their respective constitutional procedures. 2. The instruments of ratification or acceptance shall be deposited with the Director General of the United Nations Educational, Scientific and Cultural Organization. Article 32 1. This Convention shall be open to accession by all States not members of the United Nations Educational, Scientific and Cultural Organization which are invited by the General Conference of the Organization to accede to it. 2. Accession shall be effected by the deposit of an instrument of accession with the Director General of the United Nations Educational, Scientific and Cultural Organization. Article 33 This Convention shall enter into force three months after the date of the deposit of the twentieth instrument of ratification, acceptance or accession, but only with respect to those States which have deposited their respective instruments of ratification, acceptance or accession on or before that date. It shall enter into force with respect to any other State three months after the deposit of its instrument of ratification, acceptance or accession. Article 35 1. Each State Party to this Convention may denounce the Convention. 2. The denunciation shall be notified by an instrument in writing, deposited with the Director General of the United Nations Educational, Scientific and Cultural Organization. 3. The denunciation shall take effect twelve months after the receipt of the instrument of denunciation. It shall not affect the financial obligations of the denouncing State until the date on which the withdrawal takes effect. Article 36 The Director General of the United Nations Educational, Scientific and Cultural Organization shall inform the States members of the Organization, the States not members of the Organization which are referred to in Article 32, as well as the United Nations, of the deposit of all the instruments of ratification, acceptance, or accession provided for in Articles 31 and 32, and of the denunciations provided for in Article 35. *  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO.

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Article 37 1. This Convention may be revised by the General Conference of the United Nations Educational, Scientific and Cultural Organization. Any such revision shall, however, bind only the States which shall become Parties to the revising convention. 2. If the General Conference should adopt a new convention revising this Convention in whole or in part, then, unless the new convention otherwise provides, this Convention shall cease to be open to ratification, acceptance or accession, as from the date on which the new revising convention enters into force. Article 38 In conformity with Article 102 of the Charter of the United Nations, this Convention shall be registered with the Secretariat of the United Nations at the request of the Director General of the United Nations Educational, Scientific and Cultural Organization.

313 315 316 317 317 317 318 318

I. Article 30  II. Article 31  III. Article 32  IV. Article 33  V. Article 35  VI. Article 36  VII. Article 37  VIII. Article 38 

I.  Article 30 Although the World Heritage Convention was drawn up in five different texts that are equally authoritative, only two languages are used in practice by the World Heritage Committee, that is English and French.1 In addition, no significant problems have ever arisen with regard to possible conflicts between the different texts on account of dissimilar wording of the diverse languages. There are not many apparent discrepancies between the different texts, because during the negotiations leading to the adoption of the Convention, ‘[t]‌he dialogue between experts of various languages allowed an enrichment of reflection and the successful adoption, in five languages, of texts as similar as possible’.2 This notwithstanding, it should not be assumed a priori that, in the future, controversy will not arise as a result of possible inconsistencies between the two languages that are commonly used in the context of the work of the Committee. It may thus be opportune 1  This is confirmed by the Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​01, of 31 July 2021, available at https://​whc.une​sco.org/​en/​gui​deli​nes/​ (accessed 11 January 2022), which in several paragraphs refers to the ‘two working languages of the Convention’ (see, e.g., paras 122(e), 149, and 168). Such an approach is also followed within the activity of the Committee; see, as a matter of example, Doc. WHC-​08/​32.COM, of 22 June 2009, in which the Chairperson of the Committee ‘recalled that the working languages of the World Heritage Committee were English and French, unlike the General Assembly of States Parties in which six languages were used’ (p. 4). 2   See G. Bolla, ‘Episodes of a Painstaking Gestation’, in M. Batisse and G. Bolla, ‘The Invention of “World Heritage” ’, UNESCO History Papers 2 (2005) pp. 67, 80.

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to try to assess whether the English and French texts of the Convention appear to present discrepancies which could represent the grounds for potential future interpretative problems in the application of the Convention. This assessment will be made on the basis of the rule of treaty interpretation proclaimed by Article 33, paragraph 4 of the 1969 Vienna Convention on the Law of Treaties (Vienna Convention),3 reproducing customary international law, according to which: when a comparison of the authentic texts [of a treaty] discloses a difference of meaning which the application of articles 31 and 32 [on the general rule and supplementary means of interpretation, respectively] does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

The first apparent potential elements of discrepancy between the English and French texts of the Convention may be found in the text of Article 4. In fact, in the English text this provision refers to ‘the duty’ of ensuring the identification, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 situated in the territory of each State Party, while in the French text the world ‘obligation’ is used in place of ‘duty’. Here, a problem of interpretation arises concerning the degree of effectiveness and the enforceability of the provision in point, on account of the fact that the terms ‘duty’ (which in French should be translated as ‘devoir’) and ‘obligation’ (which in English is actually to be translated as ‘obligation’) refer to two technically different concepts. The second refers to a compulsory legal requirement which must be obeyed, the first indicates (at least from the international legal perspective) a sort of moral commitment that should be respected. In this case, it would not be easy to reconcile the two texts pursuant to the rule of Article 31, paragraph 4 of the Vienna Convention, although the text of, and tone used in, the other provisions of Chapter II of the Convention seem to indicate that the commitment provided for by Article 4 is to be intended more as a ‘duty’ than as an ‘obligation’ in its strict meaning. The English text of Article 4 apparently raises another problem, that is, the use of the word ‘presentation’, which is also used in Article 5 (in several instances) as well as in Articles 6, 13, 22, 23, 24, and 26. This term corresponds to the more appropriate words ‘mise en valeur’, used in the French version. It emerges from the travaux préparatories of the Convention that the term originally used in the draft text of the Convention in place of ‘presentation’ was ‘development’, which was later changed. According to Justice Brennan of the High Court of Australia, this change, mainly supported by the UK, was made for the following reasons: [t]‌he duty of ‘presentation’ is not easily understood . . . The term, the drafting secretariat observed, ‘when applied to monuments, groups of buildings and sites, is taken to mean conserving and arranging them to bring out their potentialities to the best advantage’. It seems that ‘presentation’ is the term adopted in the final text to convey that meaning, not only in respect to the cultural heritage but also with respect to the natural heritage. The duty of presentation may thus require the provision of lighting or access or other amenities so that the outstanding universal values of the property can be perceived; nevertheless, conservation of the property is an element in its presentation and is not to be sacrificed by presentation. The duty thus requires protection and conservation of the features which give the property its outstanding universal value. It is the ‘object and purpose’ of the Convention to ensure that those features are protected and conserved.4   1155 UNTS 331.  See Commonwealth v Tasmania (1983) 158 CLR 1, 224, cited by B. Boer and G. Wiffen, Heritage Law in Australia (Oxford University Press, Oxford, 2006) p. 81. 3 4

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If the meaning of the term ‘presentation’ is the one resulting from the interpretation of Justice Brennan, then no particular problems of inconsistency with the French text arise, since it basically corresponds to the sense of the words ‘mise en valeur’, although the use of this term does not appear particularly appropriate from an etymological perspective. Apart from the potential interpretative problems just referred to, no other relevant discrepancies between the English and the French texts of the Convention seem to exist, which could concretely influence the effects of the implementation of the Convention.

II.  Article 31 Articles 31 and 32 were the object of intense debate during the negotiations leading to the adoption of the World Heritage Convention.5 In particular, the USSR submitted a draft resolution before Commission V proposing the deletion of the words ‘members of the United Nations Educational, Scientific and Cultural Organization’ from the text of Article 31, on the basis of the argument that, being universal in character, the Convention had to be open for accession by all states.6 As the Soviet delegate later explained before the General Conference, on the day of the adoption of the Convention (16 November 1972): [l]‌es buts de la Convention qu’on se propose d’établir pour la protection du patrimoine mondial culturel et naturel intéressent—​comme le montre le titre même de cette convention—​toute la société internationale; c’est pourquoi on ne peut pas considérer comme normal que cette convention ait été préparée sans le concours de certains Etats qui, pour des raisons qui ne dépendent pas d’eux, se trouvent encore privés de la possibilité de devenir membres de l’UNESCO. Les articles 31 et 32 du projet de convention, selon lesquels seuls les Etats membres de l’UNESCO pourraient adhérer à la Convention, ont un caractère discriminatoire à l’égard de certains Etats socialistes qui, pour le moment, ne sont pas membres de l’UNESCO.7

In the course of the debate concerning the Soviet proposal at issue, the UNESCO Legal Adviser replied to the delegation of the USSR that the Organization’s practice up to the relevant time had been oriented towards the recognition of the possibility of a non-​ member state becoming party to a UNESCO convention only at the invitation of the General Conference or the Executive Board. A number of delegations expressed concern that some former member states could accede to the Convention under these conditions. The proposed amendment was put to the vote and rejected by 34 votes to 19, with 15 abstentions. The Soviet delegate announced that his country was unable to accept Articles 31 and 32 (in addition to Arts 15 and 16) in their existing text, and was thus forced to abstain from voting in favour of the adoption of the Convention.8 The USSR was joined in this decision by Czechoslovakia.9 Article 31 was finally adopted in its original text. 5  See UNESCO, ‘Records of the General Conference, 17th session’ (Paris, 17 October–​21 November 1972) Vol. 2, Reports, paras 314 ff; General Conference, 33rd plenary meeting, 16 November 1972 at 3.10 p.m., Doc. 17C/​VR.33 (on file with the author; courtesy of the UNESCO World Heritage Centre). 6   Draft res. 17C/​DR.245 Rev. 7   See Doc. 17C/​VR.33 (note 5) para. 17.6 (official translation from Russian). 8 9   ibid, para. 17.7.   ibid, para. 13.3.

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III.  Article 32 During the negotiations of the Convention, the Soviet delegation proposed, also with regard to Article 32, that the Convention should be opened to accession by all states (without conditioning this possibility on the explicit invitation of the UNESCO General Conference).10 This proposed amendment was put to the vote and rejected by 32 votes to 14, with 18 abstentions. Paragraph 1 of Article 32 was then adopted by 58 votes to six, with two abstentions, while the final text of the provision in point was adopted by 63 votes to six, with two abstentions.11 Pursuant to Article 32, five countries have acceded to the Convention that were not members of UNESCO at the time of their accession to the Convention. Four of them became UNESCO members shortly after their accession to the Convention. In particular, the Solomon Islands acceded to the Convention on 10 June 1992 and became a UNESCO member on 7 September 1993;12 Tajikistan became a party to the Convention on 28 August 1992 and became a UNESCO member on 6 April 1993;13 Uzbekistan acceded to the Convention on 13 January 1993 and became a UNESCO member on 26 October 1993;14 and, finally, Montenegro became a party to the Convention on 3 June 2006 (through notification of succession from Yugoslavia) and became a UNESCO member on 1 March 2007.15 The only case of a party to the Convention that has not yet become a member of UNESCO following its accession to the Convention is that of the Holy See, which acceded to the Convention on 7 October 1982 and has never become a UNESCO member, as at 20 June 2023.16 In addition to the states just mentioned, there are also three cases of parties to the Convention that, after having ratified or acceded to the Convention while they were already UNESCO members, have withdrawn from the Organization. As a consequence, for the relevant periods of their respective absence from UNESCO, they have been/​are parties to the Convention without being members of the Organization. One of them, the UK, withdrew from UNESCO for a period and successively re-​entered the Organization, at the time of writing retaining its status of member.17 The second of the said countries is the United States, which became a UNESCO member on 4 November 1946 and ratified the Convention on 7 December 1973 (being the first country to become part of it); it then withdrew from UNESCO on 31 December 1984, re-​entered the Organization on 1 October 2003, but withdrew from UNESCO again on 31 December 2018.18 Finally, Israel joined UNESCO on 16 September 1949, ratified the Convention on 6 October 1999, and withdrew from the Organization also on 31 December 2018, not being a UNESCO member at the time of writing.19   See Draft res. 17C/​DR.245 Rev. (note 6) and corresponding text.   See UNESCO, ‘Records of the General Conference’ (note 5) para. 315. 12  See the list of Member of UNESCO, available at https://​en.une​sco.org/​countr​ies (accessed 20 June 2023). 13 14 15 16  ibid.  ibid.  ibid.  ibid. 17   The UK became a UNESCO member on 4 November 1946 and ratified the Convention on 29 May 1984. It then withdrew from UNESCO on 31 December 1985. It finally re-​entered the Organization on 1 July 1997. See https://​en.une​sco.org/​countr​ies/​uni​ted-​king​dom-​great-​brit​ain-​and-​north​ern-​irel​and (accessed 20 June 2023). 18   At the time of writing, the United States is therefore not a member of UNESCO; see https://​en.une​sco. org/​countr​ies/​uni​ted-​sta​tes-​amer​ica (accessed 20 June 2023). 19  See https://​en.une​sco.org/​countr​ies/​isr​ael (accessed 20 June 2023). 10 11

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IV.  Article 33 Article 33 of the Convention, together with Article 34, was adopted by the General Conference without vote, after one delegation had withdrawn its proposal that Article 34 be deleted.20 In accordance with Article 33, the Convention entered into force on 17 December 1975, three months after the deposit by Morocco of its ratification instruments, which, on 28 October 1975, was the twentieth state to make such a deposit. On the day of its entry into force, the following states were parties to the Convention (in chronological order of ratification or acceptance): United States, Egypt, Iraq, Bulgaria, Sudan, Algeria, Australia, Democratic Republic of Congo, Nigeria, Niger, Islamic Republic of Iran, Tunisia, Jordan, Ecuador, France, Ghana, Syrian Arab Republic, Cyprus, Switzerland, and Morocco. For all states which became parties to the Convention after that date, it entered into force with respect to each of them three months after the deposit of their respective instruments of ratification, acceptance, or accession, pursuant to the final part of Article 33.

V.  Article 35 Article 35 of the Convention was adopted by the General Conference without vote.21 No State Party has ever denounced the Convention as of 12 January 2022. In 2011, following the inscription on the World Heritage List of the Temple of Preah Vihear as a site belonging to Cambodia in 2008,22 the government of Thailand announced its intention to denounce the Convention, on account of the assumption that the Committee would have ignored Thailand’s concern and ‘did not care about our sovereignty and territory. They cared only about the conservation of the temple.’23 However, in the end this intention was not followed by the effective denunciation of the Convention, and Thailand is currently a member of the Committee, after the mandate held from 2009 to 2013.24 In the event that a party might in the future denounce the Convention, it will be bound, pursuant to paragraph 3 of Article 35, to honour its due financial obligations for the 12 months following the receipt of its deposit of denunciation by the UNESCO Director General.

VI.  Article 36 Since, during the final discussion concerning the adoption of the Convention before the General Conference, one delegation requested a vote, Article 36 was adopted by 58 votes to seven, with three abstentions.25 Article 36 provides for the duty of the

21   See UNESCO, ‘Records of the General Conference’ (note 5) para. 316.  ibid.  See https://​whc.une​sco.org/​en/​list/​1224 (accessed 12 January 2022). 23  See ‘Thailand Denounces the 1972 UNESCO World Heritage Convention’, Cultural Property & Archaeology Law, 30 June 2011, available at https://​cult​ural​prop​erty​law.wordpr​ess.com/​2011/​06/​30/​thail​ and-​denoun​ces-​the-​1972-​une​sco-​world-​herit​age-​con​vent​ion/​ (accessed 12 January 2022); see also ‘UNESCO regrets Thai decision to denounce World Heritage Convention’, UN News, 26 June 2011, available at https://​ news.un.org/​en/​story/​2011/​06/​379​752-​une​sco-​regr​ets-​thai-​decis​ion-​denou​nce-​world-​herit​age-​con​vent​ion (accessed 12 January 2022). 24  See https://​whc.une​sco.org/​en/​states​part​ies/​th (accessed 20 June 2023). 25   See UNESCO, ‘Records of the General Conference’ (note 5) para. 317. 20 22

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UNESCO Director-​General to inform all States Parties to the Convention, as well as the United Nations, of any change concerning the group of countries that are parties to the Convention, such change being either the effect of the accession of a new state or of the exit of a party (that in this latter case would become effective after 12 months from the receipt of its instrument of denunciation by the Director-​General, pursuant to Art. 35). This information is important in that it allows the relevant actors to be aware, at any point, of the states with regard to which the obligations provided for by the Convention are to be implemented.

VII.  Article 37 Article 37, together with Article 38, was adopted by the General Conference without discussion.26 As of 20 June 2023, no revision of the Convention has taken place. A proposal for the revision of the Convention was advanced by the Italian Ambassador at UNESCO in 1992, in order to modify its text so as to enable the Committee to inscribe ex officio (i.e. absent a proposal of the territorial state concerned and without its consent) a property in the World Heritage List when a situation of emergency (e.g. a state of war) constituted a threat for such property and made it impossible or impracticable for the territorial state to submit to the Committee a proposal for the inscription of the property concerned on the List. A preliminary study for a revised text of the Convention was prepared by the team of Professor Francesco Francioni at the University of Siena (Italy) in 1992,27 and the proposal of revision was then discussed and coordinated by a group of experts at the European level. However, in the end this proposal produced no result, and the efforts to reinforce the protection of cultural properties during armed conflicts were transferred in the context of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict.28 Such efforts were eventually finalized through the adoption, in 1999, of the Second Protocol to that Convention.29

VIII.  Article 38 The Convention was registered at the United Nations on 15 March 1977, at No. 15511.30 The number of the United Nations Treaty Series (UNTS) is 1037, at page 151. Pursuant to Article 102 of the UN Charter, the provisions of the Convention are capable of being invoked before the organs of the United Nations, on account of its registration in the UNTS.

27   ibid, para. 318.   Document on file with the author.   The full text of the Convention is available at https://​en.une​sco.org/​sites/​defa​ult/​files/​1954​_​Con​vent​ ion_​EN_​2​020.pdf (accessed 12 January 2022). 29  Available at http://​por​tal.une​sco.org/​en/​ev.php-​URL​_​ID=​15207&URL​_​DO=​DO_​TO​ PIC&URL_​SECT​ION=​201.html (accessed 12 January 2022). 30  See https://​treat​ies.un.org/​Pages/​show​Deta​ils.aspx?objid=​08000​0028​00fe​ce0&clang=​_​en (accessed 12 January 2022). 26 28

Federico Lenzerini

PA RT I I I R E L AT I O N S O F T H E WO R L D H E R I TA G E C O N V E N T I O N W I T H OT H E R I N S T RU M E N T S O F I N T E R N AT I O N A L L AW

The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions and Other Instruments on Cultural Heritage Guido Carducci

I. Preliminary Clarifications  321 II. The 1972 Convention, Armed Conflicts and Occupation, the 1954 Convention and its Protocols  323 A. The 1954 Convention  323 1. Significance 323 2. Content 324 3. Scope 324 B. The ‘First’ Protocol (1954)  325 C. The ‘Second’ Protocol (1999)  326 III. The 1972 Convention, Illicit Trafficking (1970 UNESCO and the 1995 UNIDROIT Conventions) and the 2017 Council of Europe Convention  327 A. The 1970 UNESCO Convention  328 B. The 1995 UNIDROIT Convention  329 C. The 2017 Council of Europe Convention on Offences relating to Cultural Property  330 D. Standard-​Setting Instruments and Ad Hoc Measures  331 IV. The 1972 Convention, Underwater Cultural Heritage, and the 2001 Convention  331 V. The 1972 Convention, Intangible Cultural Heritage, and the 2003 Convention  331 VI. The 1972 Convention, Cultural Diversity, and the 2005 Convention  332 VII. The 1972 Convention and the 1994 Council of Europe Archaeological Heritage Convention  333 VIII. The 1972 Convention and EU Law  333

I.  Preliminary Clarifications Cultural ‘property’ and ‘heritage’ exist worldwide under a variety of definitions and forms. Moving from generalities to law, a variety of legal definitions and regimes of cultural ‘property’ and ‘heritage’ exist in domestic law and, to a lesser extent and more recently, in international law and EU law. While the continuous reference to cultural and natural heritage of ‘outstanding universal value’ in the 1972 Convention may inspire ‘universalism’, from the legal perspective universalism is unrealistic, with very few exceptions in international law if general customary international law or a highly ratified treaty is universally recognized and applied. A realistic starting point in law is to note that each state is an independent lawmaker in its territory and makes three determinations1 in enacting national law: (a) what is ‘cultural’ 1

  More or less clearly depending on the jurisdiction and the formulation of rules.

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‘property’ and ‘heritage’; (b) what legal regime (i.e. legal status and consequences) each of such property or heritage carries; and (c) the extent and the forms of specificity this particular legal regime for cultural property or heritage has from the ordinary regime governing tangible or intangible2 property under national property law. In a world of legal relativity and sovereign territoriality, depending on the applicable national law the same property or heritage can be considered ‘cultural’ and subject to some specific rules in country A, and ‘ordinary’, subject to ordinary property law in country B. These three determinations (points (a)–​(c) above) in law-​making also appear in international law since the time states adopted normative instruments on cultural property and heritage. The international community of states, through UNESCO, the only UN agency having a specific mandate for the protection of cultural heritage, has negotiated and adopted several conventions3 on tangible–​both movable and immovable, on land and underwater (1954, 1970, 1972, 2001 Conventions)—​and intangible (2003 Convention) cultural heritage.4 Despite their diversity in scope and content, all these Conventions share the same philosophy and objectives, that is the protection, or safeguarding,5 of cultural heritage, and they reflect similar traditions in national law in the negotiating states. Following up on the three above-​mentioned determinations in points (a)–​(c), in concrete terms both international and domestic laws leave empty and meaningless the terms of legal ‘protection’ or ‘safeguarding’ of ‘cultural’ property or heritage unless they adopt specific rules that differentiate, in some forms and/​or extents, the law governing this ‘cultural’ from ‘ordinary’ property or heritage. This chapter is on the ‘framework’ provided by the instruments considered, other than the 1972 Convention, and focuses primarily on scope and only indirectly on terms such as coexistence (elements existing together or in conjunction),6 overlapping (partial overlying or coincidence),7 and interaction (mutual communication or reaction) among treaties. Scope is key, and any legal text—​be it part of domestic law (statute, decree, etc.) or international law (Convention, Recommendation, etc.)—​applies and regulates its subject matter only within its scope. Conventions, and the 1972 Convention is no exception, are international agreements among states: only within their scope of application and according to their content is the agreement binding and may States Parties mutually expect compliance, meaning performance in good faith,8 on legal grounds,9 with the   If one refers to intangible cultural heritage.  See http://​por​tal.une​sco.org/​cult​ure/​en/​ev.php-​URL​_​ID=​11471&URL​_​DO=​DO_​TO​PIC& URL_​ SECTION =​201.html. 4   G. Carducci, The Role of UNESCO in the Elaboration and Implementation of International Art, Cultural Property, and Heritage Law, in Intersections in International Cultural Heritage Law (Oxford University Press, Oxford, 2020) pp. 183–​201. 5   In particular with reference to intangible cultural heritage under the 2003 Convention. 6   Oxford English Dictionary, Vol. III.   7  ibid, Vol. X. 8   It is worth recalling the precise wording of ‘pacta sunt servanda’ in the Vienna Convention on the Law of Treaties (Art. 26): ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ 9   What a State Party does in the context of a treaty is most often, though not necessarily, in compliance with the treaty. A State Party may comply with a treaty even beyond its scope, but that conduct is not legally required by the treaty itself, and the State Party is not entitled under the treaty to expect the same conduct by another State Party. 2 3

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instrument. From the outset, it should be recalled that the 1972 Convention applies to both cultural and natural heritage, as defined in Articles 1 and 2, only if that heritage is of ‘outstanding universal value’ (exceptions are considered later). With this introduction in mind, we consider the 1972 Convention in relation to the other UNESCO Conventions (Sections II–​VI) and some other instruments (Sections VII–​VIII).

II.  The 1972 Convention, Armed Conflicts and Occupation, the 1954 Convention and its Protocols Unfortunately, armed conflicts are far from being a remote legacy of the past. They are a reality, particularly in some areas of the world, and may break out at almost any time with varied forms, manifestations, and degrees of aggression. The 1972 Convention does not exclude its application in the case of international or internal armed conflict.10 Unsurprisingly, neither the substantive provisions of the Convention, nor its final clauses, entitle a State Party to suspend compliance with its obligations because of an internal armed conflict on its territory or an international armed conflict with another state, whether or not party to the Convention. Indeed, a suspension of compliance would be incompatible with: 1. the Convention and its explicit reference to ‘the outbreak or the threat of an armed conflict’, a situation or a threat justifying the listing of the property in the ‘List of World Heritage in Danger’ (Art. 11, para. 4); 2. the Preamble to the Convention, which encompasses all possible risks of destruction and threats to heritage, and this with reference to any cultural or natural heritage11 not only that of an ‘outstanding interest’.12 In stressing these risks and threats, the Preamble omits any difference between peacetime and armed conflict. Unsurprisingly, the Convention does not establish measures specifically designed to address armed conflicts. In complying with the Convention, the territorial State Party is to adopt effective measures adequate to the specific circumstances of the heritage concerned, including the specific circumstances of an (international or internal) armed conflict on its territory.13 These observations on armed conflict should also extend to situations of occupation of the territory of the State Party, with or without armed resistance, to the extent that the occupation generates equivalent threats to the heritage in the occupied territory.

A.  The 1954 Convention 1. Significance The UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereinafter the 1954 Convention) was adopted at The Hague (Netherlands) in 1954. Currently in force in 133 states,14 the Convention represents the first international 10   From this perspective, the Convention and its implementation by a State Party are not concerned with the distinction in international law between international and internal armed conflict. 11 12   Preamble, paras 1–​5.   ibid, paras 6–​8. 13   Primarily within the framework of Arts 4–​6. See the commentary on Arts 4–​7 by Carducci. 14   See the updated list available at http://​erc.une​sco.org/​cp/​con​vent​ion.asp?KO=​13637& language =​ E.

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treaty focusing exclusively on the protection of cultural heritage in the event of armed conflict, a remarkable achievement at the time of its adoption.15 Indeed, earlier stages of the progressive codification of the international law of war had granted only some provisions, though at times fundamental for future developments, to cultural property and heritage in the event of armed conflict.

2. Content Among other obligations, under the 1954 Convention States Parties undertake primarily to: • ‘safeguard’ (i.e. undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory) against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate;16 and • ‘respect’ cultural property situated within their own territory as well as within the territory of other States Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property. This obligation may be waived only in cases where military necessity imperatively requires such a waiver;17 • support as far as possible the competent national authorities of the occupied country (another State Party) in safeguarding and preserving its cultural property.18

3. Scope While the 1972 Convention applies to both cultural and natural heritage of outstanding universal value, the 1954 Convention applies to cultural heritage only. The 1954 Convention applies exclusively during armed conflict and occupation.19 As both situations may take different degrees and forms, the drafters of the Convention wisely adopted a broad definition, to include, on the one hand, declared war or any other armed conflict which may arise between two or more States Parties, even if the state of war is not recognized by one or more of them; and on the other, all cases of partial or total occupation of the territory of a State Party, even if the occupation meets with no armed resistance.20 A State Party to the 1972 Convention does not automatically benefit from the protection of the 1954 Convention (or its two Protocols) in the case of armed conflict or occupation. It benefits from it only if: (a) it is party to the 1954 Convention (and so is the other state(s) involved in the conflict) or to one or both of its two Protocols;21 and (b) the heritage at stake falls within the definition adopted by the 1954 Convention.

  See J. Toman, Protection of Cultural Property in the Event of Armed Conflict (Routledge, Abingdon, 1996). 17 18   See Art. 4.   See Art. 5.   See Art. 6. 19   Obviously with the exception of those provisions to be implemented in peacetime. 20   Art. 18. 21   The state which is party to the 1954 Convention is not automatically also party to the 1954 or 1999 Protocols. On the interplay between the World Heritage Convention and the Hague system, see F. Francioni, ‘World Cultural Heritage and National Sovereignty’ (1993) 4 Humanitäres Völkerrecht 195 ff. 15 16

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Indeed, the definition adopted in the 1954 Convention22 is similar in substance but still differs from the definition adopted in the 1972 Convention.23 The latter covers only monuments, groups of buildings, sites, which are of ‘outstanding universal value’ from the point of view of history, art, or science (monuments and groups of buildings), or from the historical, aesthetic, ethnological, or anthropological point of view (sites).24 If the 1954 Convention refers inter alia to movable or immovable property of ‘great importance to the cultural heritage of every people’, that is not to be automatically seen as a synonym ex se of ‘outstanding universal value’ under the 1972 Convention. Therefore, the cultural heritage or property at stake should be subjected to the two definitions to assess whether it actually falls within both. The definition under the 1954 Convention also applies to the ‘special protection’ regime under its Chapter II even if this protection applies, under some conditions, only to properties (refuges) of ‘very great importance’.25 In the case of armed conflicts not of an international character, States Parties are to apply the 1954 Convention, rather than in its entirety, only (though as a ‘minimum’) with regard to the provisions ‘which relate to respect for cultural property’.26

B.  The ‘First’ Protocol (1954) International restitution of cultural property raises complex ethical and legal issues. Considering briefly only restitution on a legal basis, private international law27 raises in principle fewer uncertainties than public (customary) international law applicable to international claims for restitution of cultural material of illicit provenance and/​or

  See Art. 1:

22

Definition of cultural property: For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-​paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-​paragraph (a); (c) centers containing a large amount of cultural property as defined in sub-​paragraphs (a) and (b), to be known as ‘centers containing monuments’.   See Art. 1:

23

For the purposes of this Convention, the following shall be considered as ‘cultural heritage’: monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view. 25   The definition of natural heritage under Art. 2 is not considered here.   Art. 8.   See Art. 19. 27   See G. Carducci, La restitution internationale des biens culturels et des objets d’art. Droit commun, Directive CEE, Conventions de l’Unesco et d’Unidroit (LGDJ, Paris, 1997) p. 493 (this book provides further bibliographic and normative references). See also: L. V. Prott, ‘Problems of Private International Law for the Protection of the Cultural Heritage’ (1989) 217 Hague Academy Collected Courses 219; K. Siehr, ‘International Art Trade and the Law’ (1993) 243 Hague Academy Collected Courses 9. 24 26

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looted in armed conflict where no specific treaty applies.28 On several occasions, the UN Security Council has requested member states to adopt suitable measures29 in order to prevent and counter trafficking of cultural property illegally appropriated and exported in the context of armed conflicts, notably by terrorist groups.30 The First Protocol to the Hague Convention is currently in force in 110 states31 and ensures a duty to return cultural property illicitly exported from an occupied territory.32 Unlike the First Protocol, the 1972 Convention covers primarily immovable heritage and, unsurprisingly, does not include provisions on the complex issue of restitution.

C.  The ‘Second’ Protocol (1999) The increasing number of conflicts of a non-​international and inter-​ethnic character, as well as some developments in international humanitarian law, led the international community of states to strengthen the protection of cultural property in the event of armed conflict through the adoption of a Second Protocol in 1999. It entered into force in March 2004 and currently has 85 States Parties.33 It represents a substantial improvement of the protection in comparison to the 1954 Convention, inter alia through the regimes of ‘general’34 and ‘enhanced’35 protections, a narrower drafting of circumstances allowing the military necessity waiver,36 and a substantive chapter (IV) on responsibility and jurisdiction. Importantly, the Second Protocol applies in its entirety to non-​international conflicts.37 As we observed earlier, the definition of cultural property adopted in the 1954 Convention is similar in substance but still differs from the definition of cultural heritage adopted in the 1972 Convention. This holds true with regard to the 1954 and 1999 Protocols. This clarification is particularly important under the Second Protocol as the ‘enhanced protection’ regime operates through a list (List of Cultural Property under Enhanced Protection), similarly to the World Heritage List under the 1972 Convention. However, while the 1972 Convention and the Second Protocol share a similar philosophy, each

28   G. Carducci, L’obligation de restitution des biens culturels et des objets d’art en cas de conflit armé: droit coutumier et droit conventionnel avant et après la Convention de La Haye de 1954. L’importance du facteur temporel dans les rapports entre les traités et la coutume (2000) 2 RGDIP 289–​357 (this article provides further bibliographic and normative references). 29  G. Carducci, ‘The Growing Complexity of International Art Law: Conflict of Laws, Uniform Law, Mandatory Rules, UNSC Resolutions and E.U. Regulations’, in B. T. Hoffman (ed.) Art and Cultural Heritage: Law, Policy and Practice (Cambridge University Press, Cambridge, 2005) pp. 68–​86. 30   Res. 2347 (2017), adopted by the Security Council at its 7907th meeting, on 24 March 2017, para. 8. 31   See the updated list at http://​erc.une​sco.org/​cp/​con​vent​ion.asp?KO=​15391&langu​age=​E. 32   In particular, see:

3. Each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations. 4. The High Contracting Party whose obligation it was to prevent the exportation of cultural property from the territory occupied by it, shall pay an indemnity to the holders in good faith of any cultural property which has to be returned in accordance with the preceding paragraph.   See the updated list at http://​erc.une​sco.org/​cp/​con​vent​ion.asp?KO=​15207&langu​age=​E. 35 36   Ch. II.   Ch. III.   Art. 6. 37   Art. 22. For a detailed commentary on the Protocol, see A. Gioia, ‘The Development of International Law Relating to the Protection of Cultural Property in the Event of Armed Conflict: The Second Protocol to the 1954 Hague Convention’ (2001) XI Italian Yearbook of International Law 25 ff. 33 34

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instrument operates in conformity with its own scope, conditions, and content. Thus, where a state is party to both instruments, a World Heritage site under the 1972 World Heritage Convention is not automatically a site benefiting from enhanced protection under the Second Protocol, unless the territorial state submitted that site to the Committee for the Protection of Cultural Property in the Event of Armed Conflict under the requirements which are specific to the 1999 Protocol.38 If these requirements are met, the enhanced protection would be granted by the Committee and its effects are those established by the Second Protocol and apply only among States Parties.39 If the site is also a World Heritage site, then it will be subject to the two regimes for the purposes, and with the effects, specific to each instrument. Whether based on international law or on domestic law in a state, whether or not party to the 1954 or 1972 Convention, a variety of useful practical measures to ensure protection of cultural property in the event of an armed conflict exist. They include: training of the military, preparing refuges and prompt removal/​transport procedures for cultural property, inventorying and locating cultural property, etc. Experience has often shown that protection in the case of armed conflict is effective only if substantial preparatory work and measures have been undertaken early enough in peacetime. Bearing in mind that the 1972 Convention protects both cultural and natural heritage (of an outstanding universal value), these practical measures are designed primarily for the former and are rather rarely suited for, or applicable to, the latter.

III.  The 1972 Convention, Illicit Trafficking (1970 UNESCO and 1995 UNIDROIT Conventions) and the 2017 Council of Europe Convention The issue of illicit trafficking in cultural property is a worldwide problem, affecting objects of various cultural significance and market value. The issue is taken up regularly within UNESCO. For instance, this was the case at the 21st session of the World Heritage Committee in terms summarizing some of the reasons which make looting in world heritage properties particularly attractive: While illicit traffic is a problem on non-​world heritage sites as well, inscription on the World Heritage List can make a site more vulnerable. Firstly, it advertises the importance of the site. Secondly, it exposes it to many more visitors, among whom it is easy for thieves to conceal themselves. Thirdly, it popularizes the culture concerned, so that objects become fashionable and therefore more easily marketable and at higher prices than ones from lesser known cultural areas, thus attracting criminal activities.40

  See Art. 10:

38

Enhanced protection: Cultural property may be placed under enhanced protection provided that it meets the following three conditions: a. it is cultural heritage of the greatest importance for humanity; b. it is protected by adequate domestic legal and administrative measures recognizing its exceptional cultural and historic value and ensuring the highest level of protection; c. it is not used for military purposes or to shield military sites and a declaration has been made by the Party which has control over the cultural property, confirming that it will not be so used.   We refer to treaty law and leave the question of customary international law, if any, aside.   World Heritage Committee, ‘World Heritage and the Prevention of Illicit Traffic of Cultural Property’, item 13 of the Provisional Agenda (21st session, Naples, Italy, 1–​6 December 1997). 39 40

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Despite its remarkable success in terms of States Parties and visibility, the 1972 Convention may ‘protect’ a smaller portion of illicitly removable cultural heritage than one might think. Its scope is broad generally, though relatively narrow and undefined as to movables. Indeed, the Convention covers only monuments, groups of buildings, and sites, which are of ‘outstanding universal value’ from the point of view of history, art, or science (monuments and groups of buildings), or from the historical, aesthetic, ethnological, or anthropological point of view (sites).41 Thus, the cultural heritage at stake under the 1972 Convention is: • limited to that having the required outstanding universal value.42 Article 12 does not extend the scope of the Convention to cultural heritage which does not have such value; • by nature more immovable than movable and therefore less likely to be illicitly removed. More precisely, monuments, groups of buildings, and sites may, and often do, include movable elements. Illicit removal may concern some of these elements. Last but definitely not least, the illicitly removed movable (or de facto man-​made movable) elements of this heritage (of the three relevant categories, i.e. monuments, buildings, sites) do not benefit from any restitution mechanism under the 1972 Convention. This explains the crucial importance of other international instruments, specific to restitution, each time that preventive measures (e.g. the revision and strengthening of legislation, securing care of World Heritage sites, especially for movable or detachable cultural material, and obviously inventorying cultural property) fail to prevent theft, other illicit acquisition, and illegal export of cultural objects that are then perhaps identified, often years later, abroad.

A.  The 1970 UNESCO Convention The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (hereinafter the 1970 Convention) promoted at treaty-​law level (i.e. provisions of a binding nature for states that decide to join the Convention) some key provisions of the Recommendation adopted to the same effect in 1964. At the time of its adoption, the 1970 Convention represented a major innovative and pioneering international instrument in the field. It entails several preventive measures (such as inventorying, drafting legislation, export certificates, etc.43) to be taken by States Parties, as well as some restitution mechanisms. The 1970 Convention ensures a duty to return inventoried stolen cultural property under some conditions and through diplomatic channels.44 Another provision may contribute to seeking and obtaining restitution abroad.45 These two restitution provisions, and especially the former, are important and were rather innovative in 1970. This is self-​explanatory if one is familiar with the difficulties and the uncertainties that international restitution claims raise worldwide,46 under private   The definition of natural heritage under Art. 2 is not considered here.   See UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC 21/​01, of 31 July 2021: also para. 52 ‘The Convention is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint. It is not to be assumed that a property of national and/​or regional importance will automatically be inscribed on the World Heritage List.’ 43 44 45   Arts 5 and 6.   Art. 7(b)(ii).   Art. 13. 46   Depending on the applicable (domestic or treaty-​based) private international law system and applicable law actually relevant in the circumstances. 41 42

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international law as applicable in a given jurisdiction where no specific uniform treaty law47 applies, depending on both jurisdictional and applicable law issues.48 While the risk of theft of (movable) world heritage properties is probably higher than for ‘ordinary’ cultural property49 for the reasons explained earlier, the 1972 Convention does not entail any direct mechanism for ensuring international restitution of stolen and/​ or illicitly removed and/​or illegally exported cultural objects. A legal restitution claim could only indirect rely on some provisions of the 1972 Convention which, depending on interpretation and implementation, may contribute to facilitating such restitution, through either the international cooperation between States Parties, or the reference to ‘such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-​operate’ (see the commentary of Art. 6, para. 1 by Carducci). A State Party to the 1972 Convention does not automatically benefit from restitution of stolen (world heritage) cultural property under the 1970 Convention. It will benefit from it only if: (a) it and the requested state (where restitution is sought50) are party to it; and (b) the heritage at stake falls within the definition adopted by the 1970 Convention,51 which differs from the definition adopted in the 1972 Convention,52 and, inter alia, is broader, at least to the extent that it does not require an ‘outstanding universal value’.

B.  The 1995 UNIDROIT Convention With a view to fighting illicit trafficking and facilitating restitution of cultural property, if they have not done so yet, States Parties to the 1972 Convention may wish to consider joining not only the 1970 Convention and the 1954 First Protocol (see Section II.B), but also the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

  As opposed to private international law treaties (i.e. providing for codified conflict of laws rules).   See Carducci (note 28). For a French law perspective and confirmation of these difficulties, see P. Lagarde, ‘La restitution internationale des biens culturels en dehors de la Convention de l’UNESCO de 1970 et de la Convention d’UNIDROIT de 1995’ (2006) Uniform Law Review—​Revue de droit uniforme 83. 49   Obviously, the applicable definition and effects of such notions need to be assessed under the applicable national legislation (more exceptionally, international law). 50   Generally, the country where the property is currently located. 51   See Art. 1: 47 48

For the purposes of this Convention, the term ‘cultural property’ means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artist and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f ) objects of ethnological interest; (g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments.   See note 16.

52

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This important instrument was negotiated within UNIDROIT following a request of UNESCO, with a view to elaborating a uniform private law instrument complementary to the 1970 Convention. The two Conventions share the same definition of cultural property although they differ in several regards. Among others, the UNIDROIT Convention: 1. considers stolen property and to be returned, when consistent with the law of the state where the excavation took place, the cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained;53 2. requires, under some conditions, restitution of stolen cultural objects as well as return of illegally exported cultural objects; 3. both return (illegal export) and restitution (theft) claims operate through state courts, although they may also be addressed to other authorities, in the country where the cultural object is situated; arbitration is also an option if parties consent to it; 4. claimant benefits from specific and favourable time limitations.54 While the UNIDROIT Convention and the 1970 UNESCO Convention are truly parallel instruments, with the former being 25 years younger and more determined to ensure return and restitution, the UNIDROIT Convention is not, even remotely, a parallel instrument to the 1972 Convention; primarily due to subject matter, as the former applies only to movable cultural objects, that may be subject to return or restitution if the claim is successful as it meets the requirements set in the Convention. Inversely, the 1972 Convention applies to immovables, with the exception of movable elements that may be part of monuments, groups of buildings, and sites. Last but not least, the UNIDROIT and the 1970 and 1972 Conventions are purely substantive law instruments and do not include rules of conflict of laws. How these rules operate as to the acquisition of title on cultural property, by operation of law, contract, and (good faith) possession, is thus a matter left to (international or domestic) conflicts of laws.55

C.  The 2017 Council of Europe Convention on Offences relating to Cultural Property This Convention was adopted in Nicosia on 19 May 2017 and has only five States Parties. It prevents and combats the destruction of, damage to, and trafficking of cultural property by requiring States Parties to criminalize several acts relating to cultural property: theft and other forms of unlawful appropriation, unlawful excavation and removal, intentional illegal importation and exportation, acquisition or placing on the market of stolen or illegally excavated, imported or exported cultural property, falsification of documents,   Art. 3.   These two Conventions are complementary in different perspectives. See G. Carducci, ‘La complémentarité entre les Conventions de l’UNESCO de 1970 et d’Unidroit de 1995 sur les biens culturels’ (2006) Uniform Law Review—​Revue de droit uniforme 93. For an insight on the negotiation of the UNIDROIT Convention, see F. Francioni, ‘Controlling Illicit Trade in Art Objects: The 1995 UNIDROIT Convention’ in F. Francioni et al. (eds) Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio comune della cultura (Giuffrè, Milan, 2000). 55   See G. Carducci, ‘Acquisition a non domino, prescription acquisitive, possession vaut titre, conflit mobile et circulation d’une res extra commercium (droit commun des biens et droit des biens culturels)’, in Travaux du Comité français de droit international privé, 2012–​2014 (Pedone, Paris, 2015) pp. 137–​182. 53 54

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intentional damage or destruction, and intentionally aiding or abetting the commission of a criminal offence relating to cultural property. Interestingly, this Convention applies to both movable cultural property, as defined by the 1970 UNESCO Convention, and to immovable cultural property, as defined by the 1970 Convention or listed as World Heritage under the 1972 UNESCO Conventions. Coexistence and interactions in strengthening the protection of cultural property by the criminalization of offences are thus possible developments in the years to come between the 1972 UNESCO and the 2017 Council of Europe Conventions.

D.  Standard-​Setting Instruments and Ad Hoc Measures While international conventions are negotiated and adopted with a view to establishing a regime applicable among States Parties for future situations,56 these efforts and results obviously do not prevent the same states, or more generally the international community of states, from adopting further ad hoc regulations for particular or extreme situations. Such international coordinated action occurred, for instance, following the looting of cultural property in Iraq and led to the adoption in 2003 of both international and European regulations to facilitate restitution of Iraqi cultural properties.57

IV.  The 1972 Convention, Underwater Cultural Heritage, and the 2001 Convention Underwater cultural heritage has suffered from increasing looting and destruction, mostly due to technological development and easier access to the seabed. The international community of states has responded with the adoption of the UNESCO 2001 Convention on the Protection of Underwater Cultural Heritage.58 This instrument is the first multilateral treaty specifically designed for this heritage. As such, it takes protection of this heritage further than the 1982 United Nations Convention on the Law of the Sea.59 The 1972 Convention applies primarily on land, although sites in the territorial sea of a State Party may qualify and be protected under the Convention.60 Even if both the 1972 and 2001 Conventions were applicable to the same underwater cultural heritage, each Convention would operate according to its scope, conditions, and content.

V.  The 1972 Convention, Intangible Cultural Heritage, and the 2003 Convention Since the inception of UNESCO, its member states have elaborated and adopted conventions on the protection of tangible cultural heritage. With the exception of a   Assuming: (a) that these situations fall within the treaty’s scope; and (b) the non-​retroactivity of the treaty.   See Carducci (note 31). 58   See G. Carducci, ‘New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage’ (2002) 96 AJIL 419–​434; and T. Scovazzi (ed.) The Protection of Underwater Cultural Heritage (Before and After the 2001 UNESCO Convention) (Nijhoff, Dordrecht, 2003). 59   See Arts 149 and 303 of the 1982 Convention on the Law of the Sea (21 ILM 1261 (1982)). 60   For the recent tendency to expand the scope of application of the World Heritage Convention to sites beyond national jurisdiction, see ‘The World Heritage Convention and the Law of the Sea’ by Vigni in this volume. 56 57

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Recommendation in 1989, the standard-​setting activity of the Organization towards the safeguarding of intangible cultural heritage was fully undertaken only in 2003, with a Convention adopted specifically for that purpose.61 There are 180 states party to the Convention, which entered into force on 20 April 2006. The 1972 Convention applies to cultural and natural heritage that is defined under its Articles 1 and 2 so as to cover tangible, not intangible, heritage. However, it should be recalled that the World Heritage Committee has in part integrated an intangible significance or dimension in some aspects of the tangible cultural and natural heritage protected by the 1972 Convention. Beyond the Nara Document on Authenticity62 and the Yamato Declaration stressing the links between tangible and intangible heritage,63 according to the current Operational Guidelines (2021): 1. one of the criteria under which the outstanding universal value of (tangible) heritage is to be assessed, though preferably in conjunction with other criteria, consists in this heritage being directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance;64 2. language, and other forms of intangible heritage, may prove relevant to meet the conditions of authenticity for heritage nominated under criteria (i) to (vi);65 3. effective management may also include related social and cultural practices, economic processes, and other intangible dimensions of heritage such as perceptions and associations;66 4. States Parties are encouraged to develop educational and capacity-​ building programmes, promoting inter alia investments and safeguarding intangible heritage associated with World Heritage properties.67

VI.  The 1972 Convention, Cultural Diversity, and the 2005 Convention The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted on 20 October 2005 and has 150 States Parties. It primarily addresses national cultural policies, promotes to hard-​law status, and further develops some principles embodied in the UNESCO Universal Declaration on Cultural Diversity adopted in 2001. 61   Reaching a suitable definition of intangible heritage required a significant effort by member states. The final definition in the UNESCO 2003 Convention on the Safeguarding of Intangible Cultural Heritage reads:

The practices, representations, expressions, knowledge, skills—​as well as the instruments, objects, artifacts and cultural spaces associated therewith—​that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. 62   Para. 7 ‘All cultures and societies are rooted in the particular forms and means of tangible and intangible expression which constitute their heritage, and these should be respected.’ 63   See, e.g., the 2004 Yamato Declaration, available at http://​por​tal.une​sco.org/​cult​ure/​en/​ev.php-​URL​_​ ID=​23863&URL​_​DO=​DO_​TO​PIC&URL_​SECT​ION=​201.html. 64 65 66   Operational Guidelines (2021), para. 77(vi).   ibid, para. 82.   ibid, para. 112. 67   ibid, para. 214bis.

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VII.  The 1972 Convention and the 1994 Council of Europe Archaeological Heritage Convention Outside UNESCO, within the Council of Europe the European Cultural Convention, adopted in Paris on 19 December 1954, focuses on culture, not on cultural property or heritage. Indeed, the Convention requests States Parties primarily to safeguard and to encourage ‘the development of its national contribution to the common cultural heritage of Europe’. Moving from culture to cultural property and heritage, which is the traditional subject matter of UNESCO’s Conventions, the European Convention on the Protection of the Archaeological Heritage (the ‘Valletta Convention’) was adopted within the Council of Europe on 16 January 1992.68 It has been in force since 25 May 1995 and has 46 States Parties. The whole focus of this instrument is on the protection of archaeological heritage from different perspectives, spanning from authorization and supervision of excavation to physical protection, integrated conservation, public financial support, and other measures. In States Parties, the protection of archaeological heritage becomes part of urban and regional planning policies. As to scope, the Convention considers to be elements of the archaeological heritage ‘all remains and objects and any other traces of mankind from past epochs’ and such heritage shall include ‘structures, constructions, groups of buildings, developed sites, moveable objects, monuments of other kinds as well as their context, whether situated on land or under water’. This scope is similar to the scope of the 1972 Convention, although the latter remains more demanding, addressing only cultural and natural heritage of an outstanding universal value.

VIII.  The 1972 Convention and EU Law The Council of Europe and the EU are distinct entities. The mandate and the related competence that member states conferred upon the EU have expanded over the years. At present, the institutional mandate of the EU in culture is mainly to ‘contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’.69 Except for this final reference, there is no institutional mandate of the EU specifically on cultural heritage. The fact that most, if not all, EU member states possess a solid tradition in national legislation on cultural heritage and have regularly applied UNESCO instruments for decades, has reduced the need for an EU-​specific competence on cultural heritage, meaning primarily immovable property. Indeed, within the existing competence most EU law-​making has focused on movable cultural property and objects, and mostly against theft, illegal export, and ensuring restitution, rather than on cultural heritage taken as immovable property. An additional limitation in scope comes from the fact that EU law focuses on cultural property which is considered to be a national treasure of a Member States.70 Indeed, only the protection of cultural goods which are considered national treasures of the Member States is covered by Council Regulation (EC) No. 116/​2009 of 18 December 2008 on 69   Replacing the London Convention of 1969.   Art. 167 TFEU, para. 1 (ex Art. 151 TEC).   Reference is to ‘national treasures possessing artistic, historic or archaeological value’ under national legislation or administrative procedures within the meaning of Art. 36 TFEU. 68 70

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the export of cultural goods and Directive 2014/​60/​EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No. 1024/​2012 (recast).71 Importantly, this Directive ensures the return of cultural objects unlawfully removed, irrespective of possible theft before export, from the territory of a Member State.72 More recently, Regulation 2019/​880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods was adopted. It governs the customs treatment of non-​Union cultural goods entering the customs territory of the Union73 and ‘for the purpose of safeguarding humanity’s cultural heritage and preventing the illicit trade in cultural goods, in particular where such illicit trade could contribute to terrorist financing’.74 Self-​evidently, this Regulation covers only movable cultural property (‘goods’ in this Regulation), follows the 1970 UNESCO Convention, then the 1995 UNIDROIT Convention, in their spirit, and some provisions and definition of cultural property not the 1972 Convention.

71   This recast covers Directive 96/​100/​EC and Council Directive 2001/​38/​EC which substantially amended Directive 93/​7/​EEC. 72   See Carducci (note 28). 73   The Regulation does not apply to cultural goods which were either created or discovered in the customs territory of the Union. 74   Art. 1, para. 1.

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The World Heritage Convention and Other Conventions Relating to the Protection of the Natural Heritage Catherine Redgwell   *

I. Introduction  335 II. Biodiversity-​Related Conventions  336 A. Modes of Cooperation  338 B. Joint Sites  340 1. Site listing 340 2. Danger listing, site visits, and emergency response 341 3. Joint funding 342 III. Relationship with Other Instruments and Bodies  345 A. Marine Protected Areas and World Heritage Marine Biodiversity  345 B. Climate Change  346 IV. Treaty Conflict and Congruence  348

I. Introduction The Convention does not explicitly address its relationship with other treaty instruments. This lacuna may be explained by the novelty of the Convention’s approach to heritage in 1972, and the relative paucity of related instruments at that time. The closest acknowledgement of existing governmental and non-​governmental organizations with similar remit is found in Article 13, paragraph 7, which requires the Committee to cooperate with such ‘organizations having objectives similar to those of the Convention’ and, in the implementation of its programmes and projects, makes express reference to the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), the International Council on Monuments and Sites (ICOMOS), and the International Union for Conservation of Nature (IUCN)—​the Advisory Bodies to the World Heritage Committee.1 However, the proliferation of environmental treaty-​ making from 1972, stimulated by the Stockholm Conference and subsequent developments, has led increasingly to the need for formal and informal modes of cooperation between the Convention and other instruments with similar or overlapping objectives for the protection of the natural heritage. This is now expressly recognized in the Operational Guidelines which call for appropriate coordination and information sharing between the World Heritage Convention and other treaties, programmes, and international

*  Chichele Professor of Public International Law Emerita, Faculty of Law, University of Oxford. 1   See also Art. 14, para. 2 (cooperation with same bodies by UNESCO Director General in preparing documents for Committee meetings and in implementing the Committee’s decisions). See further discussion in the commentary on Art. 14 by Vrdoljak.

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organizations related to the conservation of cultural and natural heritage,2 as well as for the possibility of reciprocal observer status in meetings of the intergovernmental bodies.3 ‘Cooperation with other Conventions’ is now a regular feature of the report of its activities made by the World Heritage Centre to the World Heritage Committee.4

II.  Biodiversity-​Related Conventions The Operational Guidelines thus provide for the strengthening of synergies with other agreements. Recalling the criteria for inscription of natural heritage of outstanding universal value, of particular note for the natural heritage is other biodiversity-​related Conventions, in particular the 1992 Convention on Biological Diversity (CBD), the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS), the 1974 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the 1971 Ramsar Convention on Wetlands of International Importance especially as Wildfowl Habitat (Ramsar).5 In the conservation of biological diversity none of these instruments stands on its own, a fact recognized by the 19th Special Session of the UN General Assembly in 1997 in the five-​year follow-​up to the 1992 Rio Conference on Environment and Development. The Plan of Implementation agreed at the World Summit for Sustainable Development in 2002 draws attention to the synergies between Conventions within their existing mandates and makes specific reference to the World Heritage Convention in the context of promoting ‘concrete international support and partnership for the conservation and sustainable use of biodiversity, including ecosystems, at World Heritage sites’.6 The contribution of the World Heritage Convention to 2   Operational Guidelines for the Implementation of the World Heritage Convention (UNESCO World Heritage Centre, Paris, 31 July 2021), Doc. WHC. 21/​1, para 44 provides a list of ‘selected Conventions and programmes relating to the protection of the cultural and natural heritage’. Related UNESCO programmes include Man and Biosphere (MAB), https://​www.une​sco.org/​mab and International Geoscience and Geoparks (IGGP), http://​www.une​sco.org/​new/​en/​natu​ral-​scien​ces/​envi​ronm​ent/​earth-​scien​ces/​inte​rnat​ iona​lgeo​scie​nce-​and-​geopa​rks-​progra​mme; other Conventions and bodies addressing natural heritage include the: 1946 International Whaling Commission (IWC), https://​iwc.int; 1951 International Plant Protection Convention (IPPC), https://​www.ipcc.int; 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar), https://​www.ram​sar.org; 1974 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), https://​www.cites.org; 1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS), https://​www.unep-​wcmc.org/​cms; 1982 United Nations Convention on the Law of the Sea (UNCLOS), https://​www.un.org/​Depts/​los; 1992 Convention on Biological Diversity, https://​www.bio​div.org; 1992 United Nations Framework Convention on Climate Change, https://​unfcc.int; and 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), http://​www.fao.org/​plant-​tre​aty/​en/​. Clearly this is not a closed list as new, related Conventions and programmes will emerge, such as from the outcome of negotiations for an internationally legally binding instrument on biodiversity beyond national jurisdiction: see Section II . 3   Operational Guidelines for the Implementation of the World Heritage Convention (UNESCO World Heritage Centre, Paris, 31 July 2021), Doc. WHC. 21/​1, paras 42–​43. 4   See, e.g., the Report of the World Heritage Centre on its activities and on the implementation of Decisions of the World Heritage Committee, Doc. WHC/​21/​44.COM/​5A, 4 June 2021, Part V b) Biodiversity-​related Conventions. 5   With the 1946 IWC, 1951 IPPC and 2001 ITPGRFA added to this list, there are eight biodiversity-​ related Conventions in total: see further https://​www.cbd.int/​brc/​. 6   Para. 42(f ) Plan of Implementation. There is also reference to ‘heritage preservation’ in para. 41 addressed to eco-​tourism. These are the only two references to world heritage in the Plan of Implementation: see J. Scanlon, ‘The World Heritage Convention and Outcomes from the WSSD’, Siena Workshop on ‘The Legal Tools for World Heritage Conservation’, 11–​12 November 2002. See generally E. Osipova, L. Wilson, R. Blaney, Y. Shi, M. Fancourt, M. Strubel, T. Salvaterra, C. Brown, and B. Verschuuren, The benefits of natural

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the conservation of biological diversity arises from the ‘simple fact’ of the inscription of natural heritage sites for protection under the Convention, with criteria (ix) and (x) the most significant in terms of sites most likely to contribute to biodiversity conservation.7 These biodiversity-​related Conventions operate in the same ecosystems, in consequence of which there are a number of sites enjoying designation under more than one instrument. While each Convention has its own distinctive object and purpose, there is increasing recognition of the linkages and interrelationships between them8 and that improved information exchange and support between biodiversity-​related Conventions contributes to sustainable development.9 Such exchange and support may take place on an informal basis, or a framework for cooperation may be provided in a more formal sense through, for example, the conclusion of a memorandum of understanding (see further later). Conservation, not preservation is the key: ‘[p]‌rotection of a site under the WHC can include sustainable use activities, where ecologically and culturally appropriate’.10 The biodiversity-​related Conventions share the goals of conservation and sustainable use, and employ complementary approaches for their implementation: each is site-​, species-​, and/​ or ecosystem-​based and employs complementary operational tools such as programmes of work, monitoring and reporting, and trust funds.11 The World Heritage Convention criteria for designating natural heritage sites are considered consistent with the ecosystem approach developed under the CBD, with the added benefit of integration of the approach into the management plan for the site.12 World Heritage: Identifying and assessing ecosystem services and benefits provided by the world’s most iconic natural places (IUCN, 2014).  On world heritage and biodiversity, see generally World Heritage Review No. 56, Biodiversity (June 2010) and https://​whc.une​sco.org/​en/​biodi​vers​ity/​; see also two 2013 IUCN reports: B. Bertzky, Y. Shi, A. Hughes, B. Engels, M.K. Ali, and T. Badman, Terrestrial Biodiversity and the World Heritage List: Identifying broad gaps and potential candidate sites for inclusion in the natural World Heritage network, which lists in Annex I the 156 ‘biodiversity World Heritage sites’ (natural and mixed sites), 13 of which are listed on the basis of criterion (x) alone (in situ biodiversity conservation); and A. Abdulla, D. Obura, B. Bertzky, and Y. Shi, Marine Natural Heritage and the World Heritage List: Interpretation of World Heritage criteria in marine systems, analysis of biogeographic representation of sites, and a roadmap for addressing gaps (IUCN, 2013) which identifies 45 natural World Heritage sites inscribed for their marine values and a further 25 with a ‘marine component’. The CBD regularly considers ‘cooperation with other conventions, international organizations and initiatives’, including the World Heritage Convention: for a recent summary see the Note of the Executive Secretary, CBD/​SBI/​3/​10, 9 May 2021. 8  For comparative overview see https://​www.cbd.int/​brc/​; for detailed analysis of the World Heritage Convention and its relationship with other MEAs see Doc. WHC-​09/​33.COM/​5C (31 March 2009) and see also Improving the effectiveness of and cooperation among biodiversity-​related conventions and exploring opportunities for further synergies, Doc. UNEP/​CBD/​SBI/​1/​INF/​36 and Doc. UNEP/​CBD/​SBI/​1/​INF/​37 (2016). In 2016, an informal advisory group on synergies among biodiversity-​related Conventions was established pursuant to CBD Decision XIII/​24 (2016), para. 15, with Annex II containing a ‘Road Map for Enhancing Synergies among the Biodiversity-​Related Conventions at the International Level 2017–​2020’ with suggestions for enhancing: (a) cooperation and coordination mechanisms; (b) management of and avoiding duplication related to information and knowledge, national reporting, monitoring, and indicators; and (c) the provision of capacity-​building and guidance. See further, https://​whc.une​sco.org/​en/​synerg​ies#biodi​vers​ity. 9   See in particular SDG 11.4 (Strengthen efforts to protect and safeguard the world’s cultural and natural heritage). To be consistent with the 2030 Agenda for Sustainable Development adopted by the UNGA, in 2015 the WHC parties adopted a new ‘Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’, Doc. WHC-​15/​20.GA/​INF.13, 19 November 2015, reflected in the Operational Guidelines. 10  Doc. UNEP/​ CBD/​ WG-​ RI/​ 1/​ 7/​ Add.2, 14 July 2005, Annex, para. 18; see also the Operational Guidelines, para. 119 (‘sustainable use’). 11   See joint website of the Biodiversity Related Conventions, https://​www.cbd.int/​brc/​. 12   See, e.g., Doc. UNEP/​CBD/​WG-​RI/​1/​7/​Add.2, 14 July 2005 (note 10) para. 40, and on the contribution of the biodiversity-​related Conventions to implementation of the post-​2020 global biodiversity framework, see 7

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The Ramsar Convention in particular shares much in common with the World Heritage Convention, using a site-​designation process, listing for protection, and employing a danger listing mechanism (the ‘Montreux Record’ under Ramsar). A key difference is the requirement under Ramsar for a state to have a site listed in order to participate in the Convention; but, unlike the World Heritage Convention, there is no Advisory Body comparable to IUCN empowered under the Convention to carry out independent review of the nomination.13 In contrast, the Biodiversity Convention does not employ a listing process at all, whilst requiring parties to employ in situ measures of conservation such as protected areas (with buffer zones). In this sense, although the World Heritage Convention’s concept of natural ‘heritage’ extends beyond traditional concepts of species and habitat protection, there are strong synergies between them. Increasingly, the Operational Guidelines have emphasized the need for effective domestic implementation, including the protection of property through area designation and buffer zones.14

A.  Modes of Cooperation Cooperation is well developed at the Secretariat level and there is increasing cooperation involving the scientific and technical bodies15 of the respective Conventions through mechanisms such as attendance at meetings of subsidiary bodies etc., joint programmes of work and joint missions, each buttressed by reference to cooperation in decisions of the governing bodies. For example, the Ramsar Bureau attends meetings of the Advisory Bodies of the World Heritage Convention and Ramsar’s Scientific and Technical Review Panel works closely with the Advisory Body to World Heritage on natural properties—​ IUCN—​particularly with respect to joint sites and on joint threatened sites.16 In 2002 a Biodiversity Liaison Group (BLG) comprising the executive heads of the biodiversity-​ related Conventions was established further to enhance cooperation.17 There have also

further Doc. CBD/​SBI/​3/​10, 9 May 2021 (note 7). In recent years, this has been the principal focus of the WHC in its relationship with the biodiversity-​related Conventions: see further, Doc. WHC/​21/​44.COM/​7. 13   In practice NGOs perform this function—​e.g. BirdLife International. Indeed, BirdLife International and UNESCO agreed to cooperate under Ramsar ‘to develop world heritage nominations linking networks of bird migratory sites’: see the Report of the Trieste Workshop, ‘Partnerships to Conserve Nature and Biodiversity’ in World Heritage 2002: Shared Legacy, Common Responsibility (UNESCO, 2003) p. 155. 14   Operational Guidelines, Section II.F ‘Protection and Management’. 15   See, e.g., CBD Decision VIII/​16, ‘Cooperation with other conventions and international organizations and initiatives’, at para. 7, which notes the need for cooperation not only at the Secretariat level, but also at the level of the scientific and technical subsidiary bodies. Meetings of the chairs of the scientific advisory bodies of the biodiversity-​related Conventions (CSAB) also take place: see, e.g., CBD Decision XIII/​24, Annex II, para. 11. On cooperation with other Conventions through the Secretariat, see the commentary on Art. 14 by Vrdoljak. 16   See J.-​S. Fritz, Background Profile for the Second Report on International Scientific Advisory Processes on the Environment and Sustainable Development—​Scientific and Technical Review Panel of the Ramsar Convention on Wetlands (UNEP, 2000), which sets out Ramsar’s cooperation with international organization partners. Cooperation with the Advisory Body to the World Heritage Convention on natural heritage, IUCN—​which also provides permanent secretariat services for Ramsar as provided for in that Convention—​are described as ‘particularly close and frequent . . . both on joint sites and on joint threatened sites’. 17   And subsequently enlarged in 2014: see further https://​www.cbd.int/​brc/​ and for reports of BLG meetings see https://​www.cbd.int/​blg/​.

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been trilateral meetings between the CBD, the World Heritage Convention, and Ramsar on protected areas.18 In 2005 the Secretariats of the five biodiversity-​related Conventions produced a note setting out the options for enhanced cooperation among the Conventions.19 These include adapting for use by all five Conventions the CBD framework of goals and targets to evaluate progress towards the 2010 target20 of achieving a significant reduction in the current rate of biodiversity loss (para. 25); pooling information available to the five Conventions (para. 26); harmonizing national reporting procedures to facilitate national implementation of the Conventions (para. 29); and increased collaborative funding (para. 50). Harmonized reporting presents various challenges owing to diverse guidance for reporting under each Convention, and divergent timetables and methods for reporting.21 Given the number of biodiversity-​related meetings and events each year, the BLG has adopted a practical ‘representative of the group’ approach to attending meetings.22 Sharing of other techniques is also suggested. For example, the CMS model of regional agreements ‘could inform collaborative arrangements for the management of transboundary sites established under Ramsar and the WHC’; and the NGO grassroots constituency under Ramsar could be studied for possible application to other biodiversity-​related treaties.23 Examples of cooperation, formal and informal, amongst the biodiversity-​related instruments are illustrated by Table 7:

  See, e.g., Doc. UNEP/​CBD/​WG-​RI/​1/​7/​Add.2, 14 July 2005, para. 19.   ibid. These options were agreed at the 3rd meeting of the Biodiversity Liaison Group, Gland, Switzerland, 10 May 2005, BLG-​3/​REP, 8 June 2005, and are still a point of reference: see https://​www.cbd.int/​coop​erat​ ion/​rela​ted-​conv​enti​ons/​opti​ons.shtml. 20   See CBD Decisions VI/​26 (strategic plan) and VII/​30 (framework for assessment); this target was also endorsed by the 2002 World Summit on Sustainable Development. BLG-​3, ibid, para. 5 which: 18 19

recognised that the Framework of goals and targets to evaluate progress towards the 2010 target (adopted by CBD Decision VII/​30) can be applied mutatis mutandis to all five conventions. Some of the targets are particularly relevant to the various biodiversity-​related conventions. For example, target 1.2 (‘Areas of particular importance to biodiversity protected’) is particularly relevant to . . . the WHC . . . However, more generally, most of the targets have some relevance to the broad objectives of most of the conventions. On the post-​2020 global biodiversity framework, see note 12. 21   Various practical suggestions for cooperation were made, such as: a web-​portal could be developed to facilitate access to reports and guidelines of each of the conventions (following the example of the Collaborative Portal on Forests); common reporting modules could be used for certain themes (e.g. biodiversity of inland waters as a potential common element of the Ramsar and CBD reports); and the conventions could facilitate harmony in the gathering and management of common data at national level. (Ibid, para. 19.) 22   A Liaison Group member might be nominated to represent the biodiversity-​related conventions at relevant meetings of other conventions and organizations (e.g. FCCC and CCD) . . . This would be a useful mechanism given the large number of meetings relevant to biodiversity concerns, and could allow for substantial savings in costs of travel and time. Any joint statement prepared would be circulated among BLG members prior to the meeting. (BLG-​3 (note 19) para. 22.) 23   Doc. UNEP/​CBD/​WG-​RI/​1/​7/​Add.2, 14 July 2005 (note 10) paras 36 and 48.

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Table 7  Formal cooperation agreements established or in development among the biodiversity-​ related Conventions CBD CBD CMS CITES Ramsar WHC IPPC ITPGRFA

MJ MJ MJ M* MJ M J**

CMS

CITES

Ramsar

WHC

ITPGRFA

MJ

MJ M J*

MJ MJ

M* M

M J**

M J* MJ M

M

M

M =​memoranda of cooperation/​understanding, J =​joint work programme/​plan, * =​in development, ** =​update in development Source: reproduced from https://​www.cbd.int/​coop​erat​ion/​rela​ted-​conv​enti​ons/​manda​tes.shtml.

One method for more formal cooperation is the conclusion of a memorandum of understanding. An example is the 1999 Memorandum of Understanding (MoU) between the World Heritage Convention and the Ramsar Convention, which is an agreement between Secretariats: between UNESCO, represented by the World Heritage Centre, and the Bureau of the Ramsar Convention. The final preambular reference in the MoU notes the advantage of cooperation in increased effectiveness through mutual cooperation and avoidance of duplication of effort. In particular, Article I stresses the importance of cooperation to enable the parties ‘to identify and strengthen conservation of those sites of international importance which are recognised by both Conventions’. Article II sets out a ‘statement of work’ which is, in effect, a list of the modalities for cooperation. These range from exchange and sharing of information—​particularly regarding possible sites for nomination under both Conventions and to facilitate early detection of threats to designated sites—​to mutual participation, and concurrence as appropriate, in statutory meetings, studies, and field visits, etc.24 The MoU between CMS and UNESCO (for both the World Heritage Convention and the Man and Biosphere Programme) ‘provides for the future development of joint activities, including inventories, assessments and monitoring of migratory species in biosphere reserves and natural world heritage sites, and in situ conservation and integrated ecosystem management in these sites, particularly in transboundary areas’.25

B.  Joint Sites 1.  Site listing Sites may be protected under one or more instruments—​WHC, Ramsar, and/​or MAB for example.26—​with an indication of ‘Protection by other conservation instruments’ part   Other modalities are: joint expert advisory missions to threatened sites; promotion of nomination of wetland sites under the two Conventions; contribution to both Conventions’ training efforts; and coordination of fundraising activities: Doc. UNEP/​CBD/​WG-​RI/​1/​7/​Add.2, 14 July 2005 (note 10) para. 21. 25   ibid, para. 23. 26   And clearly indicated on the World Heritage List at https://​whc.une​sco.org/​en/​list/​; see further T. Schaaf and D. Clamote Rodrigues, Managing MIDAs: Harmonising the management of Multi-​Internationally Designated Areas: Ramsar Sites, World Heritage sites, Biosphere Reserves and UNESCO Global Geoparks (IUCN, 2016). Figure 2 illustrates double designations with 109 Biosphere Reserves which overlap with 100 World Heritage 24

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of the information on the World Heritage List. Around 55% of designated natural world heritage falls within this category of multiple designation.27 There are presently 55 natural and six mixed properties listed for conservation and protection under both the Ramsar and World Heritage Conventions, with the possibility for these properties to be listed on both the World Heritage in Danger List and on Ramsar’s Montreux Record of sites where changes in ecological character are threatened or occurring.28 Dual listing is seen as a ‘useful strategy for taking advantage of the different legal, scientific, management and advocacy approaches of each’.29 Nonetheless, the 2005 report by the biodiversity-​related Conventions’ Secretariats makes a number of suggestions for harmonization of criteria, guidelines, and definitions such as ‘sustainable use’ and ‘migratory species’, where possible. It also advocates inclusion of criteria from several Conventions in deciding priorities for site-​based conservation, for example CITES appendices listing with Ramsar and World Heritage Convention listing criteria.30 An example of a multiple-​listed site is Kakadu National Park in Australia. Not only is it listed under the World Heritage Convention for both its natural and cultural value, it is also part of a flyway network of protected sites for East Asian/​Australasian migratory shorebirds under Ramsar. In addition, 21 of the species listed under the CMS are found in Kakadu. Australia is also a party to CITES and to the Convention on Conservation of Nature in the South Pacific (Apia Convention).31 Another example is Tubbataha Reefs National Park in the Philippines, which is not only a World Heritage, Ramsar, and Biosphere Reserve, but has also been designated a particularly sensitive sea area for international shipping by the International Maritime Organisation.32

2.  Danger listing, site visits, and emergency response For sites covered by both Ramsar and the World Heritage Convention, site visits may be requested and carried out jointly. For example, Ichkeul National Park in Tunisia was on both the Ramsar Montreux Record and the World Heritage in Danger List owing to the impact of dam projects on the river flowing into Ichkeul. In the early spring of 2000, a visit by the Ramsar Advisory Mission was carried out at the request of the World Heritage Centre, IUCN, and the Bureau of the Ramsar Convention.33 There are currently 68 joint designations, 97 Ramsar sites which are also designated, in whole or in part, as World Heritage sites; and 15 Global Geoparks overlap with ten World Heritage designations: ibid, pp. 4–​5. Figure 3 illustrates triple designations, with 47 for World Heritage, Ramsar and Biosphere designations: ibid, p. 5. There are some examples of quadruple designation, such as Jeju Island (Republic of Korea) and the Azores Archipelago (Portugal).   ibid, p. 6 (Table 1).   As is currently the case for the United States’ Everglades National Park and DRC’s Virunga National Park. For comparison of the World Heritage and Ramsar Conventions, see D. E. Pritchard, Review of cooperation between the Convention on Wetlands (Ramsar, Iran, 1971) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO) (IUCN, 2004); and see R. McInnes, M. Ali, and D. Pritchard, Ramsar and World Heritage Conventions: Converging Towards Success (Ramsar Convention Secretariat, 2017) (six case studies of dual Ramsar and World Heritage designations and human interactions). 29 30   Pritchard (2004), ibid.   See note 19, para. 42. 31   For fuller discussion of the multilateral, regional, and bilateral agreements for the protection of wildlife and habitat applicable to Kakadu, see https://​www.awe.gov.au/​parks-​herit​age/​natio​nal-​parks/​kak​adu-​natio​nal-​ park/​world-​herit​age-​list​ing. 32   See further, note 58. 33  See http://​www.ram​sar.org/​ram_​rpt_​41e.htm. The site is also a biosphere reserve under the MAB Programme. Other examples of joint reactive monitoring missions to sites which are covered under both Conventions include Doňana National Park in Spain, Djoudj National Park in Senegal and Virunga National Park in DRC. 27 28

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sites under Ramsar and the World Heritage Convention, 55 of which are natural (and five of which are on the List of World Heritage in Danger), seven cultural, and six mixed sites.34 In monitoring the conservation of properties on the World Heritage List and the List of World Heritage in Danger, the Committee from time to time has identified threats to listed properties which are global in nature, the solution to which may fall under the remit of other international treaty instruments. This includes poaching and the global problem of stemming illicit trade in wildlife under CITES35 and protection of seasonal sites necessary for the survival of migratory species protected under the CMS.36 Linkages with the Climate Change Convention have been increasingly explored in the light of the impact of climate change on both natural and cultural properties (see Section III.B). Cooperation with other agencies (e.g. the World Bank) to finance actions with respect to the medium and long term for properties on the List of World Heritage in Danger may also be pursued.37

3.  Joint funding Joint initiatives have proved particularly productive and are now a regular feature of the report of its activities made by the World Heritage Centre to the World Heritage Committee.38 Indeed, its report is replete with examples of external funding for a range of activities, particularly emergency response, from governments and also private partnerships. Collaborative funding is part of these emerging partnership arrangements, the possibility of which is reflected, for example, in the Ramsar/​UNESCO MoU. Joint funding for projects such as through the CMS Small Grants Programme and the World Heritage Fund may leverage matching funding from other donors.39

34   For the full list see https://​whc.une​sco.org/​en/​list/​?id_​s​earc​h_​by​_​syn​ergy​_​pro​tect​ion=​4. The sites on the danger list are Virunga National Part (DRC); Islands and Protected Areas of the Gulf of California (Mexico); Air and Tenere Natural Reserves (Niger); Selous Game Reserve (Tanzania); and Everglades National Park (United States). 35   See, e.g., World Heritage Committee Decision 40 COM 7 (2016) where the Committee expressed concern about the impacts of poaching and the illicit wildlife trade on World Heritage properties and called for strengthened cooperation with CITES. Several World Heritage properties are also monitored by CITES under its Monitoring the Illegal Killing of Elephants (MIKE) programme: see, e.g., ‘Elephant poaching situation in World Heritage sites’, CITES CoP16 Doc. 53.1 (2013), paras 35–​38. See, generally, Halting the illegal trade of CITES species from World Heritage Sites (WWF, 2017). 36  Assurances that migratory species are adequately protected through their life cycle take the form of an international agreement concluded for this purpose (one of the implementation techniques under the CMS): World Heritage Committee, Report of the 4th session (Paris, 1980) p. 9. 37   e.g. the Report of the Assessment Mission for the World Heritage site of Butrinti in Albania recommended that ‘the Committee requests the Secretariat to undertake the necessary co-​ordination with the Government of Albania, other international organizations and agencies such as the World Bank and the European Union and non-​governmental organizations, particularly the Butrint Foundation, for the implementation of the middle and long-​term actions listed . . . above’: Doc. WHC-​97/​CONF.208/​INF.15, Paris, 23 November 1997, para. 6.2. 38  See Doc. WHC/​21/​44.COM/​5A, p. 98, Annex V Tables 1 (Inventory of ongoing World Heritage Partnerships with the private sector and foundations) and 2 (under advisement). In 2002, the World Heritage Partnerships for Conservation Initiative (PACT) was established with priority for establishing such partnerships to fund protection for world heritage in danger, thematic programmes for channelling financial and technical support (e.g. forests, and the marine programme), and international assistance: see further https://​ whc.une​sco.org/​en/​partn​ersh​ips/​. The strategy is subject to regular review and revisions: see, e.g., Decision 37COM/​5D/​Revised PACT Initiative Strategy (2013). 39   For discussion of the World Heritage Fund see the commentary on Arts 17–​18 by Lenzerini.

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Indeed, the BLG has expressed the view that, ‘given the overlapping mandates of the other conventions with that of the CBD, it would be appropriate to present a more integrated image of the five conventions, and for GEF [the Global Environmental Facility] to provide support for all five conventions’.40 The GEF was established in 1991 and, in addition to being the financial mechanism for the CBD (but not the other biodiversity-​ related Conventions) and United Nations Framework Convention on Climate Change (UNFCCC), it grants support to developing countries for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, and persistent organic pollutants. Particularly pertinent for natural heritage is its Small Grant Programme (SGP) which, in partnership with the UNF, provides funding for ‘Community Management of Protected Areas for Conservation’ (COMPACT) including World Heritage sites, Ramsar sites, and biosphere reserves.41 A Memorandum of Cooperation was concluded between the Secretariat of the CBD, the World Heritage Centre, and the SGP in 2004 with the aim, inter alia, of disseminating COMPACT best practice through the World Heritage network and ensuring the World Heritage site management agencies are increasingly involved in SGP and COMPACT initiatives. It should also be noted that the World Bank—​one of the implementing agencies for the GEF, with UNDP and UNEP—​while not lending directly for natural heritage conservation, requires the environmental impact of its lending to be assessed.42 Increasingly the focus of the Convention—​ and of the other biodiversity-​ related Conventions—​is on attracting external sources of financial support. This is linked with the request by the World Heritage Committee to the Director of the World Heritage Centre to undertake a pilot project assessing the economic, social, and environmental benefits of World Heritage listing, the results of which could assist ‘to make necessary arguments to international, regional and national funding agencies as to why they should fund heritage conservation as part of the sustainable development process’.43 It is acknowledged that the implementation of the strategic objectives of the Convention44 ‘will require substantial additional resources to those currently available through the World Heritage Fund and extra-​budgetary resources’.45 The international congress organized to mark the 30th anniversary of the Convention in 2002 provided stimulus for seeking external funding through the ‘World Heritage Partnerships Initiative’.46 One initiative to

  BLG-​3 (note 19) para. 9.   See J. Brown and T. Hay-​Edie, ‘Engaging Local Communities in Stewardship of World Heritage: A methodology based on the COMPACT experience’, World Heritage Paper 40 (2014); and further http://​sgp. undp.org. 42   For the natural heritage, of particular relevance are Environmental Assessment Sourcebook Updates No. 10, March 1996 (International Agreements on Environment and Natural Resources: Relevance and Application in Environmental Assessment) and No. 20, October 1997 (Biodiversity and Environmental Assessment). See also No. 28, June 2002 (Wetlands and Environment Assessment). Full text is available at http://​www.worldb​ ank.org. 43   At its 29th session, by Decision 29COM 9. 44   Described as the ‘four Cs’: credibility, conservation, capacity building, and communication. 45   Report of the Chairperson of the World Heritage Committee on the activities of the World Heritage Committee (note 36). 46  The proceedings of the Congress were published as World Heritage 2002: Shared Legacy, Common Responsibility (UNESCO, 2003). The ‘World Heritage Partnerships Initiative’ was subsequently renamed ‘World Heritage PACT’: see further the World Heritage Centre’s report on the implementation of PACT as of June 2021: see note 4, Annex 5 ‘Inventory of World Heritage Partnerships’ and further discussion in the commentary on Arts 17–​18 by Lenzerini. 40 41

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arise from the Trieste Workshop on ‘Partnerships to Conserve Nature and Biodiversity’ is the Rapid Response Facility (RRF).47 This became operational in October 2005 with its first application on 2 February 2006 in Kahuzi-​Biega National Park (Democratic Republic of the Congo).48 One significant source of external funding is the UN Foundation (UNF)49 which has contributed financially to the protection of world heritage, in particular natural heritage located in areas of important biological diversity. This includes natural heritage threatened by armed conflict, as is the case with Virunga, Garamba, Kahuzi (the first application of the RRF mentioned above), and Salonga National Parks and Okapi Wildlife Reserve in the Democratic Republic of the Congo, all of which are inscribed on the World Heritage in Danger List. In 2000, the UNF launched a US$4.2 million ‘Project on Biodiversity Conservation in Regions of Armed Conflict: Protecting World Heritage in the Democratic Republic of the Congo’ with the participation of the UNF, the DRC authorities, UNESCO, and the United Nations Fund for International Partnerships. On the thirtieth anniversary of the Convention, a three-​year US$15 million partnership between the UN Foundation, Conservation International, and the World Heritage Convention was announced to mobilize funding to establish sustainable financing mechanisms such as trust funds for selected sites of outstanding biodiversity. Another example of UN Fund partnership is the April 2004 agreement with the World Heritage Centre providing US$5 million for the conservation of biological diversity in India through the protection of its World Heritage sites, Manas and Kaziranga, which contain endangered species such as the one-​horned rhinoceros and the pygmy hog.50 Wetlands habitat is the focus of another initiative launched in 2004, the International Corporate Wetlands Restoration Partnership, a joint initiative of the UN Foundation in conjunction with the Nature Conservancy and the Gillette Company designed to leverage private financial contributions to match existing international mechanisms under conventions such as Ramsar and the World Heritage Convention. Large-​scale projects are implemented at natural heritage sites for which the UNF provides matching resources to private investment; small-​scale projects will be filtered through partnership arrangements under Ramsar.51 The first large-​scale project is Sian Ka’an in Mexico, a Ramsar and World Heritage site, as well as a biosphere reserve.52 47   World Heritage 2002 ibid, at p. 155: at the end of the Trieste Workshop on ‘Partnerships to Conserve Nature and Biodiversity’, ‘FFI (Fauna & Flora International) pledged . . . [to] raise capital and co-​operate with UNESCO, UNF and other interested partners to build a Rapid Response mechanism to respond to threats to World Natural Heritage’. For the activities of the Rapid Response Facility, see further https://​whc.une​sco.org/​ en/​rapidr​espo​nse/​. 48   Report of the World Heritage Centre on its activities and on the implementation of Decisions of the World Heritage Committee, Doc. WHC-​06/​30.COM/​6, Vilnius, 7 July 2006, p. 4. Another example of international coordination in emergency response is the Great Apes Survival Project (GRASP), a public/​private partnership launched in 2001 and led by UNESCO and UNEP. It now involves 23 range states, several donor nations, 30 NGOs, and four of the biodiversity Conventions: the World Heritage Convention, the CBD, CMS, and CITES. 49   An independent public charity under US law founded in 1998 after Ted Turner’s gift of $1 billion to the United Nations. An MoU was concluded between the World Heritage Centre and the UNF in 2004. The UNF encourages public/​private partnerships. 50   Further details of the UNFIP–​UNESCO agreement are available at http://​whc.une​sco.org/​en/​init​iati​ ves/​24. 51  See http://​www.ram​sar.org/​wn/​w.n.icwrp_​proj​ect.htm. 52  For further details see https://​www.ram​sar.org/​news/​mexi​cos-​sian-​kaan-​rams​arwo​rld-​herit​age-​site-​beco​ mes-​first-​proj​ect-​for-​icwrp-​part​ners​hip.

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III.  Relationship with Other Instruments and Bodies A.  Marine Protected Areas and World Heritage Marine Biodiversity Since marine protected areas may be designated under three global international instruments—​the World Heritage Convention,53 Ramsar, and/​or the MAB54—​the collaborative methods described above apply mutatis mutandis to coastal and marine designated sites/​biospheres.55 Cooperation with other institutions occurs through, inter alia, the World Heritage Marine Programme.56 Where shipping occurs through or near to a marine World Heritage site, an Experts’ Meeting on world heritage and marine biodiversity recommended the designation of the area as a Particularly Sensitive Sea Area (PSSA) by the International Maritime Organization (IMO).57 The IMO is the competent international organization for the purposes of ship-​lane routing and PSSA designation under the 1982 United Nations Convention on the Law of the Sea, which provides the general jurisdictional framework for the law of the sea within which the IMO—​and the biodiversity-​related treaties considered here—​operates. The complete IMO list of PSSAs includes seven World Heritage sites containing natural heritage of outstanding universal value.58 The IMO’s revised 2005 Guidelines for the Identification and Designation of 53   There are currently 50 world heritage marine properties inscribed on the World Heritage List across 37 States, the first inscription being Australia’s Great Barrier Reef in 1981, and the Tubbataha Reefs Natural Park in the Philippines and Galápagos Islands in Ecuador. With the inscription of Papahānaumokuākea (United States) and Phoenix Islands Protected Area (Kiribati), the total surface of marine areas protected under the World Heritage Convention has more than doubled since 2010; World Heritage marine sites now cover about 10% of all marine protected areas on Earth by surface area. The most frequent selection criterion (in 23 cases) is in situ conservation of biodiversity, including threatened species of outstanding universal value: see, generally, F. Douvere, World Heritage Marine Sites: Managing effectively the world’s most iconic Marine Protected Areas (UNESCO, 2015). 54   See the table of all 70 overlapping biosphere reserves and World Heritage properties at https://​whc.une​ sco.org/​en/​act​ivit​ies/​497/​. There are 25 biosphere reserves containing tropical marine, coastal, and small island ecosystems: see http://​www.ocea​nsat​las.org/​. 55   The UNESCO World Heritage Marine Programme was established in 2005 by the WHC. See generally A. Hillary, M. Kokkonen, and L. Max (eds) Proceedings of the World Heritage Marine Biodiversity Workshop: Recommendations for establishing and/​or extending coastal World Heritage sites (UNESCO, 2003); D. Laffoley and J. Langley, Bahrain Action Plan for Marine World Heritage. Identifying Priorities and enhancing the role of the World Heritage Convention in the IUCN-​WCPA Marine Global Plan of Action for MPAs in our Oceans and Seas (IUCN, 2010), http://​whc.une​sco.org/​docum​ent/​105​357; M. Spalding, Marine World Heritage: Toward a representative, balanced and credible World Heritage List (UNESCO, 2012); A. Abdulla, B. Bertzky, D. O. Obura, and Y. Shi, Marine Natural Heritage and the World Heritage List interpretation of World Heritage criteria in marine systems, analysis of biogeographic representation of sites, and a roadmap for addressing gaps (IUCN, 2013); and D. Freestone, D. Laffoley, F. Douvere, and T. Badman, World Heritage in the High Seas: An Idea Whose Time Has Come (UNESCO, 2016). 56  See further details at https://​whc.une​sco.org/​en/​mar​ine-​progra​mme/​. E.g. the UNF/​ GCF Eastern Tropical Pacific Seascape project with local partners in Costa Rica, Panama, Colombia, and Ecuador has established a network of marine heritage World Heritage site managers across this region where five World Heritage marine properties are located: Cocos Island National Park (Costa Rica); the Galápagos National Park and Marine Reserve (Ecuador), which forms part of the UNESCO Galápagos Biosphere Reserve; the Malpelo Flora and Fauna Sanctuary (Colombia); Gorgona National Natural Park (Colombia); and Coiba National Park (Panama). This was subsequently extended to link MPAs in the Eastern Tropical Pacific Corridor which, at UNFCCC COP26 in 2021, was declared would be extended to form the largest marine transboundary biosphere reserve: https://​en.une​sco.org/​news/​colom​bia-​costa-​rica-​ecua​dor-​and-​pan​ama-​take-​first-​step-​towa​ rds-​creat​ing-​larg​est-​transb​ound​ary. 57  The Hanoi Statement by the World Heritage Marine Biodiversity Workshop: Filling Critical Gaps and Promoting Multi-​Site Approaches to New Nominations of Tropical Coastal, Marine and Small Island Ecosystems, 25 February–​1 March 2002, para. 8. 58  The Great Barrier Reef (1990; PSSA extended to Torres Strait in 2005); Malpelo Island, Colombia (2002); the sea around Florida Keys, United States (2002); the Wadden Sea, Denmark, Germany, Netherlands

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Particularly Sensitive Marine Areas specifically exhort States Parties to consider the potential for the proposed PSSA to be listed on the World Heritage list, or whether it is already so protected.59 By the same token, for the World Heritage Convention, previous designation as a PSSA is one factor to be considered under the conditions of integrity (legal status). For example, IUCN’s Technical Evaluation for the Gorgona and Malpelo Islands, Colombia, explicitly notes designation by the IMO of the Malpelo Flora and Fauna Sanctuary as a PSSA ‘making it off-​limits to commercial shipping’.60 Promotion of the implementation of the biodiversity-​related Conventions, including the World Heritage Convention, also takes place under UNEP’s Regional Seas Programmes.61

B.  Climate Change Biodiversity loss is the principal connection between the World Heritage Convention and the 1992 UNFCC in respect of the natural heritage.62 Not only is climate change now the most significant threat to natural world heritage63 but the contribution which World Heritage sites make to combatting climate change is significant.64 As a recent ‘International Co-​sponsored Meeting on Culture, Heritage and Climate Change’ observed: Forests and oceans serve as key resources for climate change mitigation, capturing the carbon that humanity increasingly produces. Forests in World Heritage sites cover 69 million hectares, roughly twice the size of the Republic of Congo. They protect and store 13 billion tons of carbon, which if released into the atmosphere as CO2, would represent almost 1.3 times the global total annual CO2 emissions from fossil fuels. UNESCO’s World Heritage marine sites comprise at least one fifth of blue carbon ecosystems and store carbon assets equivalent to about 10% of global greenhouse gas emissions. Yet these carbon sinks have limits and are fast approaching saturation.65

In 2005, an ad hoc technical expert group reported on linkages between biodiversity and adaptation to climate change, focusing on the biodiversity-​related Conventions and, (2002); the Galápagos Archipelago, Ecuador (2005); the Papahǡnaumokuǡkea Marine National Monument, United States (2007); and Tubbataha Reefs National Park, the Sulu Sea, the Philippines (2017). To date, a total of 15 PSSAs (and two extensions of the Great Barrier Reef PSSA) have been designated: see further https://​ www.imo.org/​en/​OurW​ork/​Envi​ronm​ent/​Pages/​PSSAs.aspx. 59   IMO Res. A.982(24), adopted on 1 December 2005, Doc. A24/​Res.982, 6 February 2006, para. 6.2. In order to be identified as a PSSA, the area must meet one of the criteria listed in the Guidelines which include, under ecological criteria, ‘uniqueness or rarity’ and ‘representativeness’ (paras 4.4.1 and 4.4.4). 60   IUCN Technical Evaluation for the Gorgona and Malpelo Islands, Coastal & Oceanic Parks of Colombia’s Eastern Tropical Pacific—​ID No. 1216, para. 4.1. The PSSA designation was made in 2002, with inscription on the World Heritage List in 2006. 61   Report of the Secretary-​General, Oceans and the law of the sea—​Addendum, UNGA Doc. A/​60/​63/​Add.1, 15 July 2005, para. 242. 62   With climate change one of the principal drivers of biodiversity loss, the principal focus of cooperation is between the UNFCCC and the CBD itself. Since 1999, the UNFCCC has sought closer cooperation with the ‘other Rio Conventions’, the 1992 CBD, and the 1994 United Nations Convention to Combat Desertification (UNCCD), and in 2001 a Joint Liaison Group amongst the three Secretariats was established. Biodiversity and adaptation to climate change is also one of the cross-​cutting issues being addressed under the CBD. 63   The most recent report of the World Heritage Centre notes that one of the three key challenges for the 2022–​2029 period which emerged from a recent consultation (see Doc. WHC/​21/​44.COM/​INF.5A.1) is addressing the effects of climate change on World Heritage properties: see note 4, para. 135. 64   See generally Climate Change and World Heritage, Report on predicting and managing the impacts of climate change on World Heritage and Strategy to assist States Parties to implement appropriate management responses (World Heritage Report 22, 2007). 65   See further https://​whc.une​sco.org/​en/​news/​2390 (6–​10 December 2021).

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in particular, upon the adaptation activities of the CMS, CBD, and Ramsar.66 The report was acknowledged by the 8th Conference of the Parties to the CBD ‘as an initial step in the design, implementation and monitoring of activities that interlink across biodiversity, climate change, wetland ecosystems, and land degradation and desertification, while addressing the objectives of [the CBD, the UNFCCC, the UNCCD, Ramsar] the World Heritage Convention, [the CMS] and other relevant multilateral environmental agreements’.67 The brief case studies which accompany the Report include designated World Heritage sites where the impact of climate change is through biodiversity loss. For example: South Africa: Cape floral kingdom and Succulent Karoo. The Succulent Karoo, the world’s richest arid hotspot and the diverse Fynbos Biome are strongly dependent to climate change trends. Climate change is projected to lead to extensive loss of especially rare species causing changes in species composition and their distribution. Approaches taken include: (i) modelling of vulnerable areas by assessing the impacts of climate change; (ii) development of policy frameworks and legal instruments; (iii) activities to conserve vulnerable areas including regional planning; expansion of protected areas and conservation farming; (iv) development of seed banks and DNA banks; (v) monitoring of the activities and their expected outcomes; (vi) research (e.g. possible future impacts of elevated CO2, changes in precipitation patterns); (vii) information exchange and capacity building.68

There are also linkages between the World Heritage Programme for Small Island Developing States (SIDS) and climate change, with heritage for Pacific SIDS in particular threatened by sea-​level rise as a result of climate change impacts. In 2007, the World Heritage Committee endorsed a new ‘Policy Document on the Impacts of Climate Change on World Heritage Properties’69 and called for increased cooperation between the World Heritage Centre and the organizations working on climate change, in particular the Climate Change Convention and the Intergovernmental Panel on Climate Change (IPCC). State of Conservation Reports now include a section on those properties most affected by climate change, and criteria for the inscription of properties in the List of World Heritage in Danger owing to climate change impacts have 66   Report of the Meeting of the Ad Hoc Technical Expert Group on Biodiversity and Adaptation to Climate Change, Doc. UNEP/​CBD/​SBSTTA/​11/​INF/​5, 5 October 2005. See, e.g., Table 2 at pp. 18 ff. 67   Decision VIII/​30, Biodiversity and climate change: guidance to promote synergy among activities for biodiversity conservation, mitigating or adapting to climate change and combating land degradation, Doc. UNEP/​CBD/​COP8/​31, 15 June 2006, p. 349, Preamble, first indent (emphasis added). See also operative para. 7 of the Decision (role of Rio and biodiversity-​related Conventions in adaptation activities particularly in the most vulnerable regions and ecosystems). 68   Extracted from Box 1, ‘Selected case studies illustrating the diverse ways in which different approaches and tools can be integrated for development and implementation of adaptation actions’, ibid, p. 26. Cape Floral Region Protected Areas were inscribed in 2004 under criteria (ix) and (x); the Succulent Karoo is not inscribed, but has been identified by IUCN as a high priority area for inscription on the basis of its potential outstanding universal value: IUCN, ‘The World Heritage List: Guidance and further priorities for identifying natural heritage of potential outstanding universal value’, draft paper (15 May 2006), p. 19, available at http://​ www.iucn.org. 69   Decisions adopted at the 31st session of the World Heritage Committee (Christchurch, 2007), Doc. WHC-​07/​31.COM/​24, 31 July 2007, Decision 31COM 7.1. The Policy Document was the product of a Working Group of Experts in Paris, February 2007, and is reproduced as Doc. WHC-​07/​31.COM/​7.1, 23 May 2007. It is to be read with the report on ‘Predicting and managing the impacts of Climate Change on World Heritage’ and the ‘Strategy to assist State Parties to implement appropriate management responses’ endorsed by the Committee at Vilnius in 2006, and in the light of ongoing cooperation between the BLG and the UNFCCC discussed at note 62. For the recent revisions to the policy on World Heritage and Climate Change, see Doc. WHC/​21/​44.COM/​7C.

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been developed ‘for use in prioritising vulnerability assessment, mitigation and adaptation activities’. State Parties are also urged to take a preventive approach in integrating ‘actions pertaining to climate change in risk preparedness policies and action plans’ to protect the outstanding universal value of World Heritage properties.70 An example of the growing threat posed by climate change to natural world heritage is the Great Barrier Reef, the first world heritage marine property to be designated (and the first PSSA under the IMO). In considering its state of conservation, the 44th meeting (2021) of the World Heritage Committee recalled: Decision 41 COM 7 [2017] in which the Committee ‘reiterate[d]‌the importance of States Parties undertaking the most ambitious implementation of the Paris Agreement of the United Nations Framework Convention on Climate Change (UNFCCC) by “holding the increase in the global average temperature to well below 2°C above pre-​industrial levels and by pursuing efforts to limit the global average temperature increase to 1.5°C above pre-​industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change” ’, strongly invites all States Parties to undertake actions to address Climate Change under the Paris Agreement consistent with their common but differentiated responsibilities and respective capabilities, in the light of different national circumstances, that are fully consistent with their obligations within the World Heritage Convention to protect the OUV of all World Heritage properties.71

IV.  Treaty Conflict and Congruence The analysis above suggests a relationship of harmony and mutual support between these instruments. Given their overlapping character there is, however, the theoretical potential for conflict between provisions for States Parties to two or more instruments. On a formal level, the relationship between these instruments may be provided for on their own terms. The starting point is the treaty text itself. For example, Article 22 of the 1992 Biodiversity Convention expressly addresses its relationship with other international conventions, and provides that its provisions ‘shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity’. The wording of Article XII(2) CMS is similar, but without the exception for ‘serious damage . . .’. CITES also addresses the relationship with other international conventions (Art. XIV). The effect of provisions such as that found in the CBD is to permit existing instruments to prevail in the event of conflict, save where observance of the other, earlier treaty obligation would give rise to ‘serious damage or threat to biological diversity’. It is difficult to envisage where the exercise of rights and obligations under the World Heritage Convention would give rise to serious damage or threat to biological diversity. Indeed, quite the reverse: the import of Article 22 CBD was to preserve the ‘web’ of biodiversity-​ related treaties—​World Heritage Convention, CMS, CITES, and Ramsar—​all of these instruments having been concluded before the CBD itself. In this sense the CBD is

70  Decision 31COM 7.1, ibid, para. 7. The Policy Document had further recommended that the Operational Guidelines be amended expressly to incorporate the precautionary approach: Doc. WHC-​07/​ 31.COM/​7.1, p. 9. 71   44 COM 7B.90.

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framework and supplementary, adding to but not detracting from the existing biodiversity legal framework. This further underscores the complementarities between these Conventions. In contrast, the World Heritage Convention and Ramsar are silent on the question of their relationship with other treaties. This leaves the resolution of any dispute as to the priority of the World Heritage Convention over another, equally silent, instrument to be determined by general rules of international law. The default legal rule is found in the 1969 Vienna Convention on the Law of Treaties.72 Article 30, which is generally considered to have codified customary international law on the matter, provides that where two treaties are concluded relating to the same subject matter, it is the treaty later in time which will prevail. However, ‘relating to the same subject matter’ is likely to be interpreted strictly73 so it is unlikely that this rule would furnish a conclusive outcome to the legal question of the dominant lex posterior as between, say, the World Heritage Convention and Ramsar. Nor does the application of the accepted principle that a lex specialis prevails over a lex generalis, regardless of their priority in time, furnish a clear-​cut solution in the face of ‘specialist’ instruments such as these. Practically the question may not be one of precedence at all; it is not a matter of which treaty text prevails, but rather of interpreting the existing texts. Articles 31 and 32 of the Vienna Convention again set out the test which is generally considered to be reflective of customary law. Article 31(1) provides recourse to the ordinary meaning of the words used, in their context, and in the light of the object and purpose of the treaty. While the International Court of Justice has accepted ‘the primary necessity of interpreting an instrument in accordance with the intentions of the drafters at the time of its conclusion’, it has also acknowledged that treaties are to be ‘interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.74 The crucial point in these cases was that the terms sought to be defined had an inherently evolutionary character by suggesting recourse to general international law for their interpretation; not that the Court was reinterpreting or revising the entirety of the treaty text.75 Terms in the World Heritage Convention such as ‘natural heritage’ might certainly be viewed in this ‘evolutionary’ light. In addition, Article 31(3)(c) of the Vienna Convention provides that in interpreting a treaty, account shall be taken of ‘any relevant rules of international law applicable in the relations between the parties’.76 There is scope for cross-​fertilization (or ‘systemic integration’) between the instruments under consideration here through a process of interpretation of the treaty texts. In this fashion, contemporary concerns such as the conservation 72   Referred to as ‘[a]‌particularly obscure aspect of the law of treaties’ by Sinclair (The Vienna Convention on the Law of Treaties (Manchester University Press, Manchester, 1984), p. 93); see further A. Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press, Cambridge, 2014), ch. 12; J. Mus, ‘Conflicts Between Treaties in International Law’ (1998) Netherlands International Law Review 208–​232; and E. Vierdag, ‘The Time of the Conclusion of the Multilateral Treaty: Article 30’ (1988) British Year Book of International Law 90–​111. 73   Sinclair, ibid. 74   Namibia Advisory Opinion [1971] ICJ Rep 16, at p. 31; Aegean Continental Shelf Case [1978] ICJ Rep 3, at pp. 32–​33. 75   See Judge Bedjaoui’s caution in his Separate Opinion in the Case Concerning the Gabčíkovo-​Nagymaros Dam [1997] ICJ Rep 7, at para. 12. 76   See C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279 and, generally, R. Gardiner, Treaty Interpretation (Oxford University Press, Oxford, 2nd edn, 2015), ch 7.

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of biological diversity and sustainable development77 could permeate ‘older terminology’ such as that of the World Heritage Convention, drawing on other instruments such as the CBD and rules of customary international law.78 Indeed, as has been demonstrated above, these concepts have already permeated the policy language of the Operational Guidelines through express inclusion rather than by operation of law. In sum, the web of biodiversity-​related treaties considered here does not comprise a set of self-​contained regimes, hermetically sealed from the intrusion of general international law. Rather, they should be viewed as constituting mutually reinforcing integrated regimes at the level of both law and policy, striving together comprehensively to protect the natural heritage, conserve biological diversity, combat climate change, and promote sustainable development.

77   See the Court’s reliance on the concept of sustainable development in the Gabčíkovo-​Nagymaros Case (note 75) para. 140. 78  For application in the law of the sea context, see A. E. Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’ in D. Freestone, R. Barnes, and D. Ong (eds) The Law of the Sea: Progress and Prospects (Oxford University Press, Oxford, 2006), ch. 3 and (2005) 54 ICLQ 563–​584; and J. Barrett and R. Barnes (eds) Law of the Sea UNCLOS as a Living Treaty (British Institute of International and Comparative Law, London, 2016).

Catherine Redgwell

World Heritage and Human Rights Ana Filipa Vrdoljak *

I. Introduction  II. Human Rights, UNESCO, and the World Heritage Framework  A. ‘Human rights and fundamental freedoms’  B. ‘Without distinction of race’  C. ‘Without distinction of race, language, or religion’  D. ‘Without distinction to sex’  E. ‘Further universal respect for justice, rule of law and human rights affirmed by UN Charter’  III. World Heritage Properties and Human Rights Violations   A. Armed Conflict, Belligerent Occupation, and Securitization  B. Eviction and Forced Displacement  C. Development, Extractive Industries, and Tourism  D. Environmental Degradation and Climate Change  IV. International Responsibility for Serious Human Rights Violations  A. Responsibility  B. Reparations  V. Conclusion 

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I. Introduction As a specialized agency of the United Nations, the UN Educational, Scientific and Cultural Organization (UNESCO) reinforces the objectives of its parent body.1 The UNESCO Constitution (Art. I, para. 1) provides that its purpose is to: . . . contribute to peace and security by promoting collaboration among nations through education, science and culture in order to further universal respect for justice, the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language, or religion, by the Charter of the United Nations.2

*  UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney. The author thanks Lynn Meskell and Claudia Liuzza, her collaborators on the Human Rights theme for the OurWorldHeritage initiative, for their advice and feedback; and Isabella Marriott and Josephine Lee, for their research assistance. 1   Art. 1, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. The purpose of the United Nations was reaffirmed by Secretary-​General on the occasion of its 75th anniversary: see ‘The Highest Aspiration: A Call to Action for Human Rights’ (2020), at https://​www.un.org/​en/​cont​ent/​act​ion-​for-​human-​rig​hts/​index. shtml. 2   Constitution of the UN Educational, Scientific, and Cultural Organization, adopted 16 November 1945, in force 4 November 1946, 4 UNTS 275.

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The Organization is charged with achieving this purpose by ‘maintain[ing], increas[ing], and diffus[ing] knowledge [b]‌y assuring the conservation and protection of the world’s inheritance of books, works of art, and monuments of history and science, and recommending to the nations concerned the necessary international conventions’ (Art. I para. 2(c)). Therefore, conventions adopted under the auspices of the Organization must be designed and implemented to promote this singular, stated purpose. The World Heritage Convention was prepared by UNESCO and adopted by its General Conference in 1972 pursuant to this objective and function. Consequently, the promotion of human rights and fundamental freedoms is foundational to the interpretation, implementation, and operation of the Convention. Unlike other culture conventions adopted and overseen by UNESCO,3 neither the preparatory work nor final text of the World Heritage Convention make specific reference to human rights. So, while the Preamble to the Convention replicates the means outlined in Article I, paragraph 2(c), it makes no explicit reference to the purpose contained in the same provision of the Organization’s Constitution. This absence is particularly unusual given that the World Heritage Convention was drafted during the adoption of key international human rights instruments.4 It is compounded by the fact that the Declaration of the UN Conference on the Human Environment (Stockholm Declaration) was adopted in 1972, and which informed the drafting of the Convention, explicitly links the enjoyment of human rights with the protection of the natural and built environment.5 This situation was partially addressed by the Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention (WH-​SDP) adopted by the General Assembly of States Parties in 2015.6 It indicates that States Parties ‘should commit to uphold, respect and contribute to the implementation of the full range of international human rights standards as a pre-​requisite for effectively achieving sustainable development’.7 While revisions to the Operational Guidelines in 2019 and 2021 only ‘encourage’ States Parties to adopt a ‘human rights based approach and ensure gender-​balanced participation of a wide variety of stakeholders and right-​holders’ in the identification, nomination, management, and protection of World Heritage sites.8 To date, efforts to ensure implementation of these relatively modest commitments have been limited.9 This is exacerbated by the lack of a substantive or dedicated mechanism 3   See, e.g., Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, in force 20 April 2006, 2368 UNTS 1 (ICHC). 4  Including the International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), International Covenant on the Elimination of Racial Discrimination (1965), and Declaration on the Elimination of Discrimination Against Women (1967). 5   United Nations, Report of the United Nations Conference on the Human Environment (Stockholm Declaration), Doc. A/​CONF.48/​14/​Rev.1, 1972, p. 3, para. 1, and p. 4, Principle 1. 6   WHC Decision 43 COM 11A (2019); WHC Decision 44 COM 12 (2021); and Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention, Doc. WHC-​15/​20.GA/​INF.13, 2015, p. 7, para. 20, adopted by Res. 20GA 13, Doc. WHC-​15/​20.GA/​15, p. 7 (WH-​SDP). 7   WH-​SDP, p. 7, para. 20 (emphasis added). 8   Operational Guidelines for the Implementation of the World Heritage Convention, 31 July 2021 (OG), Doc. WHC.21/​01, paras 12 and 111 (emphasis added). 9   WHC, Report on Progress made in Implementing the World Heritage Sustainable Development Policy (WH-​SDP) since 2019, Doc. WHC/​21/​44.COM/​5D, 4 June 2021; Decision 44 COM 5D (2021); and UNESCO, Thematic Indicators for Culture in the 2030 Agenda (2019), at http://​uis.une​sco.org/​sites/​defa​ult/​ files/​docume​nts/​publication​_​cul​ture​_​202​0_​in​dica​tors​_​en.pdf, p. 30.

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under the existing World Heritage framework to address serious, systematic violations of international human rights and humanitarian law related to World Heritage properties. This legacy of silence on human rights in the text of the Convention continues to this day in the operation of the World Heritage governance and oversight framework, including its Advisory Bodies and reporting mechanisms, with often devastating effects. This deficiency is becoming acute as UN and regional human rights bodies repeatedly emphasize the link between human rights and cultural heritage including world heritage.10 This thematic chapter examines the relationship between the World Heritage Convention and international human rights law. By focusing on key phrases which define the Organization’s purposes, Part I elaborates on the centrality of human rights to UNESCO’s raison d’être, and how developments in international human rights law over the last 75 years have been translated into the policies of the Organization and the World Heritage framework. By focusing on human rights violations related to World Heritage properties, Part II details the deficiencies of these policies in fulfilling UNESCO’s mandate in practice. Part III outlines the international legal responsibility of various actors in respect of gross, systematic violations of human rights related to World Heritage properties.

II.  Human Rights, UNESCO, and the World Heritage Framework Since its formation, UNESCO has participated in the formulation and promotion of key international human rights instruments.11 The Organization was actively involved in the formulation of the cultural rights provisions contained in the International Covenants on human rights in the lead-​up to their adoption in 1966.12 Its early draft provisions clearly articulated the link between human rights and cultural heritage, often replicating or expanding on the language in its Constitution. As early as 1952, UNESCO started working on a mechanism for communications of human rights violations from individuals and groups.13 Under its current human rights procedures, established in 1978, large-scale, systematic violations can be examined in public by the Executive Board and General Conference.14 However, this function has 10   HRC Res. 33/​20 of 30 September 2016, Res. 37/​17 of 22 March 2018 on cultural rights and the protection of cultural heritage, and Res. 43/​29 of 22 June 2020 on prevention of genocide; and OHCHR, Inter-​ sessional seminar on cultural rights and the protection of cultural heritage List of background documents, at https://​www.ohchr.org/​en/​iss​ues/​escr/​pages/​culturalright​spro​tect​ionc​ultu​ralh​erit​age.aspx. 11  Including the Universal Declaration on Human Rights (UDHR) in 1948, the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1965, and the International Covenant of Economic, Social and Cultural Rights (ICESCR) in 1966. See M. Glen Johnson and J. Symonides, The Universal Declaration of Human Rights: A History of its Creation and Implementation 1948-​1998 (UNESCO, 1998). 12  Draft articles on educational and cultural rights subjected by UNESCO Director-​General, 18 April 1951, Doc. E/​CN.4/​541; Study of the ‘Right to Participate in Cultural Life’: Basic Document, 2 May 1952, Doc. UNESCO/​CUA/​42, Annotations on the text of the draft International Covenant on Human Rights (Prepared by the Secretary-​General), 1 July 1955, Doc. A/​2929, pp. 115–​116 (draft Art. 16, Rights relating to culture and science). 13   A. A. Yusuf and B. Dupuy, ‘Introduction’, in L. Holmström (ed.) Cases of the UNESCO Committee on Conventions and Recommendations (2 vols, Brill/​Nijhoff, Leiden, 2019) n. p. 14   Decision 104 EX/​3.3 (1978); CR Committee, Information Document, 14 February 2020, Doc. 209 EX/​ CR/​2, p. 11; and Symonides, ‘UNESCO and the Universal Declaration of Human Rights’ in Glen Johnson and Symonides (note 11) p. 96.

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not been exercised to date. Cases of individual and specific human rights violations are examined in camera by the Committee on Conventions and Recommendations (CR Committee), which is a permanent subcommittee of the Executive Board.15 Pursuant to the Rules of the Executive Board, its proceedings and related documentation are subject to a 20-​year embargo. The mechanism’s lack of transparency makes it an anomaly among UN bodies examining human rights violations. It is also inconsistent with the Van Boven/​Bassiouni Principles, and Paris Principles (the standards set for domestic human rights bodies), formulated and adopted by the Organization’s parent body.16 The published records of the CR Committee’s caseload for the first decade of its operation reveal that while the preponderance of cases involved violations of cultural rights, none related to the World Heritage Convention.17 This can, in part, be explained by the requirement that a communication is only admissible if it concerns a violation of human rights within UNESCO’s field of competence as related to Universal Declaration of Human Rights (UDHR).18 This restriction ignores developments in human rights law in the intervening 75 years since the UDHR’s adoption, which have repeatedly reaffirmed the interrelation between human rights and cultural heritage. Consequently, as detailed later, serious human rights violations related to World Heritage properties are being brought before international and regional human rights bodies.

A.  ‘Human rights and fundamental freedoms’ Since the adoption of the UDHR in 1948, UNESCO like other UN specialized agencies has responded to subsequent human rights-​driven initiatives of its parent body. These developments, in turn, have been reflected in amendments to the Convention’s Operational Guidelines. Most States Parties to the World Heritage Convention are also States Parties to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights adopted in 1966.19 The Vienna Declaration and Programme of Action of 1993 sought to coordinate and reinforce the United Nations’ work on the realization and enjoyment of human rights.20 This work recognized that specialized agencies such as UNESCO ‘play a vital role in the formulation, promotion and implementation of human rights standards, within their

15   Decision 104 EX/​3.3 (1978). The Decision also recognizes the role of the Director-​General in ‘settlement of cases and the elimination of massive, systematic or flagrant violations of human rights and fundamental freedoms’ and ‘initiating consultations, in conditions of mutual respect, confidence and confidentiality, to help reach solutions to particular problems concerns human rights’ (para. 8). From 1978 to October 2019, the CR Committee received 609 communications of which 202 were founded to be inadmissible or where examination was either suspended or proceeding: 209 EX/​CR/​2, p. 15. 16   Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by GA Res. 60/​147 of 16 December 2005, (Van Boven/​Bassiouni Principles); and Principles relating to the Status of National Institutions, adopted by GA Res. 48/​134 of 20 December 1993 (Paris Principles). 17   Holmström (note 13). 18  Letter from Director Legal Office to National Commissions for UNESCO, 7 February 2020, with Explanatory Note, Doc. LA/​CR/​2020/​25; and UDHR, GA Res. 217A(III) of 10 December 1948. 19  International Covenant on Civil and Political Rights (ICCPR), UNGA Res. 2200A(XXI) of 16 December 1966, in force 23 March 1976; and International Covenant on Economic, Social and Cultural Rights (ICESCR), UNGA Res. 2200A(XXI) of 16 December 1966, in force 3 January 1976. 20   Adopted by the UN World Conference on Human Rights (Vienna Declaration) (25 June 1993), at https://​www.ohchr.org/​en/​profe​ssio​nali​nter​est/​pages/​vie​nna.aspx (5 March 2021), Preamble and Part I, para. 4.

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respective mandates . . .’21 The tenets of the Vienna Declaration were reinforced by the UN Millennium Declaration and mainstreaming of human rights throughout the United Nations.22 This commitment was reaffirmed and updated in the Secretary-​General’s Call to Action for Human Rights in 2021, with the guiding principle of strengthening UN leadership in ‘advancing the cause of human rights’ and ‘enhanc[ing] synergies between human rights and all pillars of the work of the United Nations’.23 In 2003, UNESCO adopted the Strategy on Human Rights,24 and signed a Memorandum of Understanding with the Office of the High Commissioner of Human Rights making coordination a priority.25 Its Medium Term Strategy (2022–​2029) reaffirms a commitment to a human rights-​based approach to its mandate.26 The WH-​SDG references the connection between Article 1 of UNESCO’s Constitution and the World Heritage Convention and elaborates upon a human rights-​based approach to the Convention’s operation.27 The Operational Guidelines encourage States Parties to adopt a ‘human rights based approach’ to the identification, nomination, management, and protection processes of World Heritage sites.28 By contrast, the Intangible Cultural Heritage Convention provides that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups, individuals, and of sustainable development’ (Art. 2, para. 1).29

B.  ‘Without distinction of race’ The majority of States Parties to the World Heritage Convention are States Parties to the Convention on the Elimination of Discrimination of Racial Discrimination,30 and the International Court of Justice has held that the prohibition against racial discrimination is an obligation erga omnes.31 Defined as UNESCO’s objective in its Constitution, the promotion of equality and prohibition of racial discrimination was elaborated in 21  Part II A, para. 2, Vienna Declaration. UNESCO’s General Conference subsequently adopted the Declaration on Principles of Tolerance (1995), Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997), and Universal Declaration on Cultural Diversity (2001) in response. 22   GA Res. 55/​2 of 18 September 2000; and Roadmap towards the Implementation of the Millennium Declaration; Report of the Secretary-​General, 6 September 2001, Doc. A/​56/​326. 23   Secretary-​General, ‘The Highest Aspiration: A Call for Action on Human Rights’ (2020) at https://​www. un.org/​sg/​sites/​www.un.org.sg/​files/​atoms/​files/​The_​Highest_​Asperation_​A_​Call_​To_​Act​ion_​For_​Huma​n_​ Ri​ght_​Engl​ish.pdf. 24   UNESCO, ‘Strategy of Human Rights’, 2003, Doc. SHS-​2007/​WS/​15, at https://​www.une​sco.pl/​filead​ min/​user​_​upl​oad/​pdf/​UNES​CO_​H​R_​St​rate​gia.pdf. 25   ibid, p. 12. 26   UNESCO, Medium-​Term Strategy for 2022–​2029 (41 C/​4), 10 March 2021, para. 18. 27 28   Doc. WHC-​15/​20.GA/​INF.13, 2015.   OG para 12; and Decision 43 COM 11A. 29   The Fund established under the Intangible Cultural Heritage Convention is prevented from accepting contributions from entities whose activities are incompatible with ‘existing human rights instruments, with the requirements of sustainable development or with the requirement of mutual respect among communities, groups and individuals’: Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Heritage, 8.GA, 2022, para. 73. 30   Convention on the Elimination of All Forms of Discrimination of Racial Discrimination, 7 March 1966, in force 4 January 1969, 660 UNTS 195. 31   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep, p. 136, at paras 88, 149, and 155; and Barcelona Traction, Light and Power Co. Ltd, Judgment [1970] ICJ Rep 3 at paras 33–​34. See also UN Report of the International Law Commission, 2019, Doc. A/​74/​10, Ch. V Peremptory Norms of General International Law (Jus Cogens), draft Conclusion 23 Annex (e) and commentary at p. 206, para. 9.

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its Declaration on Racial and Racial Prejudice of 1978.32 It was the first principle of the Stockholm Declaration of 1972, and was reaffirmed in the Vienna Declaration and Programme of Action of 1993, and Durban Declaration and Programme of Action of 2001.33 In response, UNESCO adopted an Integrated Strategy to Combat Racism, Discrimination, Xenophobia and Intolerance in 2003, which noted that the Durban Conference offered the Organization the ‘opportunity to revitalize and reinforce’ its cooperation with the Office of the High Commissioner for Human Rights and the Committee on Elimination of Racial Discrimination.34 A specific objective of this Strategy is to ‘deepen knowledge about the development of forms of discrimination inherited from the past, notably those linked to the period of slavery and colonization and those affecting Indigenous peoples and cultural and religious minorities’.35 The Strategy is not referenced in the Operational Guidelines. The Durban Declaration also emphasized the importance of cultural diversity and African cultural heritage. This is reflected in the African continent having been a global priority in UNESCO’s Mid-​Term Strategy since 1984, in its Priority Africa Operational Strategy for its Implementation,36 and in the World Heritage Committee’s Global Strategy for a Representative, Balanced and Credible World Heritage List, prioritizing nominations from States Parties in Africa and in the Pacific and Caribbean regions.37 Nonetheless, in 2021, only 12% of the World Heritage List properties were located on the African continent, compared to 41.5% of those on the List of World Heritage in Danger.38 The WH-​SDG indicates that States Parties should ensure that conservation and management of World Heritage sites is based on recognition of cultural diversity, inclusion, and equity, ‘irrespective of age, sex, disability, ethnicity, origin, religion or economic or other status’.39 The Operational Guidelines note that ‘effective’ management systems ‘could’ include ‘a respect for diversity, equity, gender equality and human rights and the use of inclusive and participatory planning and stakeholder consultation processes’.40

C.  ‘Without distinction of race, language, or religion’ In 2021, UNESCO stated that the rights of Indigenous peoples are ‘an integral part of efforts to upscale [its] work against racism and discrimination’41 (see ‘The World Heritage 32  Declaration on Racial and Racial Prejudice, adopted and proclaimed by the UNESCO General Conference on 27 November 1978. See also UNESCO Statement on Race (1950), Statement on the Nature of Race and Race Differences (1951), Statement on the Biological Aspects of Race (1964), Statement on Race and Racial Prejudice (1967) and General Conference adopted the Declaration on Race and Racial Prejudice (1978). See P. Selcer, ‘Beyond the Cephalic Index: Negotiating Politics to Produce UNESCO’s Scientific Statements on Race’ (2012) 53(S5) Current Anthropology S173–​S184. 33   Stockholm Declaration, Principle 1, p. 4; Vienna Declaration and Programme of Action, paras 15 and 16; and Durban Declaration and Programme of Action again Racism, Racial Discrimination, Xenophobia, and Related Intolerance (United Nations, 2002), at https://​www.ohchr.org/​Docume​nts/​Publi​cati​ons/​Dur​ban_​text​_​en.pdf. 34 35   32C/​13 (October 2003); and 164 EX/​Decision 3.4.2(1 September 2003).   32C/​13, p. 4. 36   Priority Africa at UNESCO, Operational Strategy for its Implementation (2014–​2021), Doc. AFR.2013/​ WS/​1 (2013); and 41 C/​4 (2022–​2029), para. 19, and Strategic Objective 3. 37   OG, para. 61(c)(ix). 38   Progress Report on Priority Africa, sustainable development and World Heritage, 30 June 2021, Doc. WHC/​21/​44.COM/​5C, para. 4. 39   Doc. WHC-​15/​20.GA/​INF.13, 2015, p. 6, para. 18. 40   OG para 111(b). Cf. ICHC OD, para. 174 includes Indigenous peoples, migrants, immigrants and refugees, people of different ages and genders, persons with disabilities, and members of vulnerable groups. 41   UNESCO, Indigenous Peoples and UNESCO 2021: Outcomes of the Questionnaire for 22nd session of UNFII (31 December 2021), at https://​www.un.org/​deve​lopm​ent/​desa/​indige​nous​peop​les/​wp-​cont​ent/​uplo​ ads/​sites/​19/​2022/​03/​UNE​SCO-​Conso​lida​ted-​Rep​ort-​UNP​FII-​22_​fi​nal.pdf.

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Convention and the Rights of Indigenous Peoples’ by Lenzerini and Sambo Dorough in this volume). It adopted the Policy on Engaging with Indigenous Peoples in 2018,42 in response to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007, which has been affirmed by all UN Member States.43 The Declaration requires the UN specialized agencies like UNESCO to ensure Indigenous peoples’ participation on issues affecting them, including through provision of financial and technical assistance.44 The Policy reaffirms the relevance of human rights and fundamental freedoms, equality and non-​discrimination, self-​determination, participation, and free, prior, and informed consent (FPIC) in its fields of operation.45 The UNESCO Strategy on Human Rights and the 2018 Policy emphasize that the Organization will coordinate its work with the UN Permanent Forum on Indigenous Issues, the Special Rapporteur on the Rights of Indigenous Peoples, and the Expert Mechanism on the Rights of Indigenous Peoples.46 These UN mechanisms have endeavoured to engage UNESCO in respect of the human rights of Indigenous peoples vis-​à-​vis the World Heritage framework, with limited success.47 The Operational Guidelines reference the Policy on Engaging with Indigenous Peoples and UNDRIP when encouraging States Parties to ensure participation of ‘right-​holders’ including Indigenous peoples in the identification, nomination, management, and protection processes of World Heritage properties.48 It indicates that States Parties ‘shall consult and cooperate in good faith’ with relevant Indigenous representative organizations to obtain their FPIC prior to inclusion of sites on the tentative list.49 The WH-​SDP recalls Article 5 of the Convention, the Strategic Objectives (the fifth ‘C’), and UNDRIP, when emphasizing the importance of inclusive governance.50 To this end, it calls on States Parties to ‘ensure adequate consultations’, FPIC, and the ‘effective participation’ of Indigenous peoples in World Heritage processes which ‘affect their territories, lands, resources and ways of life’. In addition, they should facilitate Indigenous and local efforts to realize ‘equitable governance arrangements, collaborative management systems and, when appropriate, redress mechanism’. They should support initiatives fostering ‘shared responsibility’ among Indigenous peoples and local communities and the promotion of ‘both universal and local values’ in the management of World Heritage sites.51 FPIC is not defined in the 2018 Policy. The only elaboration in the Operational Guidelines states that it includes ‘inter alia making the nominations publicly available in appropriate 42   202 EX/​50, para. 19; and 202 EX/​9; and UNESCO Policy on Engaging with Indigenous Peoples (2018) 201 EX/​6, at https://​en.une​sco.org/​ind​igen​ous-​peop​les/​pol​icy. 43   UN Declaration on the Rights of Indigenous Peoples, adopted by GA Res. 61/​295 of 13 September 2007. See also Secretary-​General (note 23) Guiding Principles, p. 3. 44   Arts 41 and 42 UNDRIP. This obligation was elaborated on by the General Assembly in GA Res. 71.321 of 21 September 2017. 45 46   UNESCO (note 42) p. 9.  ibid. 47   UNPFII Report on the 10th session, May 2011, Doc. E/​2011/​43-​E/​C.19/​2011/​14; EMRIP Advice No. 8, 2015: Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, 19 August 2015, Doc. A/​HRC/​30/​53, Annex; UN Ways and means of promoting participation at the United Nations of Indigenous peoples representatives on issues affecting them, Report of Secretary-​ General’, 2 July 2012, Sox. A/​HRC/​21/​24, pp. 9–​11; UN Rights of Indigenous Peoples, Note by the Secretary-​ General, 29 July 2016, Doc. A/​71/​229. 48   OG paras 12, 40, 117, 119, 123; Decision 43 COM 11A; and Decision 39 COM 11. 49   OG paras 64 and 211(d). 50   Doc. WHC-​15/​20.GA/​INF.13, 2015, pp. 6–​7, paras 17 and 21; and Decisions 31 COM 13B (2007) and 35 COM 12E (2011). 51   Doc. WHC-​15/​20.GA/​INF.13, 2015, pp. 7–​8, para. 22.

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languages and public consultations and hearings’.52 The nature of the participation is reflected in the Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage which commits the Committee to: In the interest of recognizing global cultural diversity and equitable representation, encourage interventions from observers including local communities’ and indigenous peoples’ representatives in items concerning such groups with the prior consent of the Chairperson, and in full respect of Article 6 of the 1972 Convention before decisions are made by the Committee . . .53

This concession should be contrasted with the Ethical Principles for Safeguarding Intangible Cultural Heritage guiding the ICHC framework and the requirement for FPIC.54 In 2021, UN Special Rapporteurs on Rights of Indigenous Peoples, Human Rights and the Environment, and human rights defenders expressed concern that the World Heritage Committee ‘has adopted commitments towards Indigenous peoples on paper but in practice does not have working methods that allow Indigenous peoples to participate effectively and have their voices heard in the nomination process’.55 The Special Rapporteur on the Rights of Indigenous Peoples has called on the World Heritage Committee to bring its practices in line with UNDRIP.56

D.  ‘Without distinction to sex’ Promotion of gender equality is contained in UNESCO’s Constitution. A significant majority of States Parties to the World Heritage Convention are States Parties to the Convention on the Elimination of Discrimination Against Women.57 The Human Rights Council has called on states to adopt a ‘gender-​sensitive and inclusive approach’ to cultural heritage protection and cultural rights.58 The Organization has made efforts in respect of UN initiatives to mainstream gender following the Beijing Declaration on Platform for Action promoting the realization of gender equality and the human rights of women and girls,59 including SDG 5 of the UN 2030 Agenda for Sustainable Development,60 and the Guiding Principle in the Secretary-​General’s 2021 Call to Action for Human Rights.61 Gender equality is one of two global priority areas of UNESCO’s

  OG para. 123.   Res. 23 GA 10, 2021, Declaration of principles to promote international solidarity and cooperation to preserve World Heritage, Doc. WHC/​21/​23.GA/​INF.10, 9 November 2021, p. 5, para. 9. 54   Ethical Principles for Safeguarding Intangible Cultural Heritage, Decision 10.COM 15.a (2015). 55  OHCHR Press Release, ‘Thailand. UN Experts warn against heritage status for Kaeng Krachan national park’ (23 July 2021), at https://​www.ohchr.org/​EN/​New​sEve​nts/​Pages/​Disp​layN​ews.aspx?New​sID=​ 27333&Lan​gID=​E; and letter to World Heritage Committee dated 30 June 2021, Doc. AL OTH 209/​2021, at https://​spcomm​repo​rts.ohchr.org/​TMResu​ltsB​ase/​Down​Load​Publ​icCo​mmun​icat​ionF​ile?gId=​26517. 56   S. Disko, ‘UNESCO’s World Heritage Convention’, in IWGIA, The Indigenous World (2022), at https://​ www.iwgia.org/​en/​resour​ces/​ind​igen​ous-​world.html. 57   Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, in force 3 September 1981, 1249 UNTS 13. 58   HRC Res. 37/​17, 22 March 2018, para 9; and HRC Res. 33/​20, 30 September 2016, para. 9. 59   Beijing Declaration and Platform for Action, adopted by the Fourth World Conference on Women, 15 September 1995, Doc. A/​CONF.177/​20; and United Nations system-​wide policy on gender equality and empowerment of women: focusing on results and impact, 15 December 2006, Doc. CEB/​2006/​2. 60   UNGA Res. 70/​1 of 25 September 2015, Transforming our world: the 2030 Agenda on Sustainable Development, Doc. A/​RES/​70/​1, p. 18, SDG 5.5: Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-​making in political, economic, and public life. 61   Secretary-​General (note 23) Guiding Principles, pp. 3, 7–​8. 52 53

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Medium-​Term Strategy, and includes promotion of the human rights of women and girls.62 The Gender Equality Action Plan (2014–​2021) (GEAP II) centres on individual and institutional capacity building with UNESCO to support member states and the governing bodies of its normative instruments in ‘establishing gender-​sensitive, gender-​ responsive and gender-​transformative policies and practices in the field of heritage . . .’63 Periodic reports by States Parties is a performance indicator under the GEAP II. Women and girls are disproportionately impacted by armed conflict and disasters, including climate change, affecting World Heritage properties.64 Recalling these developments, the WH-​SDP requires States Parties to ensure gender equality in the ‘full cycle’ of World Heritage processes, especially the nomination process, social and social opportunities, and full and effective participation in conservation and management of sites with equal opportunities for leadership and representation.65 The only instance the Policy references empowering women and girls is in its summary of the SDGs. It instead defaults to using the phase ‘women and men’ throughout when referencing gender equality. The thorny issue of ‘traditional practices’ is addressed less than clearly.66 The WHC Operational Guidelines were amended to encourage States Parties to ‘ensure gender-​balanced participation’ in the identification, nomination, management, and protection processes of the World Heritage List and tentative lists; and contribute to sustainable development objectives including ‘gender equality’ in World Heritage processes and heritage protection and management.67 Statements of Outstanding Universal Value are ‘encouraged’ to be prepared in gender-​neutral language.68 By comparison, the ICHC Operational Directives are more detailed and nuanced in their integration of gender equality in the implementation of that Convention.69 Under the Operational Directives, States Parties need to ‘pay special attention to the role of gender’ in respect of elements inscribed on the Representative List and Urgent Safeguarding List.70

E.  ‘Further universal respect for justice, rule of law and human rights affirmed by UN Charter’ The United Nations’ 2030 Agenda on Sustainable Development reaffirms human rights and environmental concerns expressed by the international community during the

62   41 C/​4, p. 16, para. 22; General Conference Res. 37C/​60 for coordination and monitoring of action to implement gender equality; UNESCO Priority Gender Equality Action Plan (2014–​2021) 37C/​4-​C/​5-​Compl (2014) (GEAP II). 63   GEAP II, p. 38: ‘encourage equal access to capacity-​building and specialized training in the fields of culture, and supporting other measures that promote the greater involvement of women in decision-​making mechanisms’. 64   See ICC-​OTP, Policy on Cultural Heritage (June 2021), at https://​www.icc-​cpi.int/​ite​msDo​cume​nts/​ 20210​614-​otp-​pol​icy-​cultu​ral-​herit​age-​eng.pdf, para. 29; Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-​01/​12-​01/​18; and CEDAW General Recommendation No. 37 (2018) on the gender-​ related dimensions of disaster risk reduction in the context of climate change, 13 March 2018, CEDAW/​C/​ GC/​37. 65   Doc. WHC-​15/​20.GA/​INF.13, 2015, p. 8, para. 23. See also UNESCO, Thematic Indicators for Culture in the 2030 Agenda (Paris, 2019), at http://​uis.une​sco.org/​sites/​defa​ult/​files/​docume​nts/​publication​_​cul​ture​_​ 202​0_​in​dica​tors​_​en.pdf, p. 30. 66 67   ibid, para. (d).   37 C/​7. OG paras 12, 15(o), 64, 111(b); and Decision 43 COM 11A. 68 69   OG para. 155.   ICHC OD, Part IV.1.4 Gender Equality, para. 181. 70   ICHC OD, paras 157 and 162.

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drafting of the World Heritage Convention over 55 years ago, and reinforces their interrelatedness.71 The Human Rights Council Resolution on the right to a clean, healthy and sustainable environment recognized that it includes the right ‘to participate in cultural life, for present and future generations’ and calls on the promotion of effective access to justice and remedies.72 SDG 16 concerning promotion of peaceful and inclusive societies for sustainable development includes promotion of the rule of law and equal assess to justice for all at the national and international levels; and ensuring ‘responsive, inclusive, participatory and representative’ decision making at every level.73 The 2021 Call to Action for Human Rights likewise reaffirms this commitment to effective participation and access to justice.74 The Universal Declaration on Cultural Diversity adopted by the UNESCO General Conference in 2001 promotes the interrelationship between cultural diversity, human rights, and sustainable development and explicitly references the World Heritage Convention.75 These initiatives informed the World Heritage Committee’s adoption of the WH-​ SDP in 2015 and are reflected in the language of the Nara Document on Authenticity prepared in cooperation with ICCROM and ICOMOS in 1994.76 The key objective of the WH-​SDP is to ensure that States Parties ‘recognize’ that World Heritage conservation strategies which promote sustainable development ‘embraces . . . the well-​ being of present and future generations’ and are based on the ‘overarching’ principles of human rights, equality, and sustainability over the long term.77 It provides that States Parties to the Convention should ensure that all World Heritage processes are ‘compatible with and supportive of human rights’ and adopt a ‘rights-​based approach’ which ‘promotes’ World Heritage properties as ‘exemplary places for the application of the highest standards for the respect and realization of human rights’.78 In addition, they should be developed with ‘equitable participation of concerned people’, standards, safeguards, guidance tools, and operational mechanisms for nomination, assessment, management, evaluation, and reporting processes consistent with an ‘effective rights-​based approach’ of nominated and inscribed properties; and promote technical cooperation and capacity building to that end.79 By contrast, the Operational Guidelines ‘encourage’ States Parties to mainstream these ‘principles’ (together with the UNESCO Policy on Engaging with Indigenous Peoples, and ‘related policies and documents, including the 2030 Agenda for Sustainable Development and international human rights standards’) in their programmes and activities concerning the World Heritage Convention.80 Despite these developments in international human rights law, and the explicit recognition of their application to the work of UNESCO and the World Heritage Convention, as well as the commitment of the Organization to cooperate with UN human rights bodies, there is no effective oversight of compliance with human rights obligations related to World Heritage properties either by UNESCO or the World Heritage framework.

72   GA Res. 70/​1 of 25 September 2015.   HRC Res. 48/​13, 8 October 2021, Preamble. 74   Doc. A/​RES/​70/​1, p. 25, SDGs 16.3 and 16.7.   Secretary-​General (note 23) pp. 8 and 9. 75   31C/​Res. 25. Adopted at the 31st General Conference of UNESCO (2001). See also Culture and sustainable development. Note by Secretary-​General, 5 August 2019, Doc. A/​74/​286. 76 77   OG Annex 4; and Doc. WHC-​94/​CONF.003/​16.   Doc. WHC-​15/​20.GA/​15, p. 7. 78 79 80   Doc. WHC-​15/​20.GA/​15 p. 7, para. 20.  ibid.   OG paras 14bis and 16(o). 71 73

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III.  World Heritage Properties and Human Rights Violations Serious violations of human rights obligations on or related to World Heritage properties have been acknowledged by international and regional courts, the UN and regional human rights bodies, and the World Heritage Committee and its Advisory Bodies. Violations can be precipitated or exacerbated by World Heritage nomination and inscription. They encompass a range of often interrelated circumstances including but not limited to armed conflict, belligerent occupation, and securitization; eviction and forced displacement; development and extractive industries; and climate change. Each led to the adoption of normative human rights instruments relevant to the operation of the World Heritage Convention. This list is neither exclusive nor exhaustive. Nor are violations confined to cultural human rights; rather, they encompass the full range of human rights and fundamental freedoms including the rights to life, housing, and self-​determination and development.

A.  Armed Conflict, Belligerent Occupation, and Securitization International courts like the International Court of Justice, International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, and international and regional human rights bodies have found that serious violations of international human rights and international humanitarian law obligations have occurred on or related to World Heritage sites because of armed conflict and belligerent occupation for several decades. These include the Temple of Preah Vihear,81 Old City of Jerusalem and its Walls,82 Timbuktu,83 and the Old City of Dubrovnik.84 Related to this are human rights violations arising from increasing securitization and militarization of territories (by state organs and private contractors, including so-​called ‘eco-​guards’) encompassing World Heritage sites, for example Diyarbakir,85 Mount Hamiguitan Range,86 Virunga

81   Request for Interpretation of the Judgment of 15 June 1962 in Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment of 11 November 2013 [2013] ICJ Rep 281 at pp. 294 and 317–​318. See Separate Opinion of Judge Cançado Trindade (p. 333). 82   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 [2004] ICJ Rep 136; and Beit Sourik Village Council v Government of Israel and Commander of the IDF Forces in the West Bank, 2 May 2004, HCJ 2056/​04. 83   Prosecutor v Ahmad Al Faqi Al Mahdi, Reparations Order, ICC-​01/​12-​01/​15, Trial Chamber VII ICC, 17 August 2017, fn 80; First Expert Report Brief by UN Special Rapporteur in the field of Cultural Rights, 27 April 2017, ICC-​01/​12-​01/​15-​214-​AnxI-​Red-​3; Prosecutor v Al Hassan Ag Adboul Aziz Ag Mohamed Ag Mahmoud, ICC-​01/​12-​01/​18, Trial ICC, July 2020; ICC-​OTP Policy Paper on Case Selection and Prioritization, 15 September 2016, at https://​www.legal-​tools.org/​doc/​182​205/​pdf/​, p. 15, para. 46; ICC-​ OTP Policy on Cultural Heritage, June 2021, at https://​www.icc-​cpi.int/​ite​msDo​cume​nts/​20210​614-​otp-​pol​ icy-​cultu​ral-​herit​age-​eng.pdf, in particular, para. 47. 84   Prosecutor v Miodrag Jokić, Trial Judgment IT-​01-​42/​1-​S, Trial Chamber I, ICTY, 18 March 2004, noting that Arts 27 and 56 of the Regulation annexed to the Convention (IV) respecting the Laws and Customs of War on Land, and Annex, 18 October 1907, in force 26 January 1910, (1907) 208 CTS 77, (1908) 2(supp) AJIL 90 (Hague IV), reflect customary international law. 85   OHCHR, Report on the human rights situation in South-​East Turkey, February 2017, paras 2, 3, 14, 19, 29, 32–​40, at para. 37; Venice Commission, Turkey, Opinion on the Legal Framework Governing Curfews, June 2016; and Council of Europe Commissioner for Human Rights, Memorandum on the Human Rights Implications of Anti-​Terrorism Operations in South-​Eastern Turkey, December 2016, paras 23, 41, and 43. 86   HRC Res. 37/​17, 22 March 2018, pp. 2–​3, Preamble, and para. 10; Special Rapporteur on the rights of Indigenous Peoples and Special Rapporteur on internally displaced peoples, 27 December 2017, at https://​www. ohchr.org/​en/​New​sEve​nts/​Pages/​Disp​layN​ews.aspx?New​sID=​22567&Lan​gID=​E; and Special Rapporteur on the Rights of Indigenous Peoples Study on attacks against and the criminalization of Indigenous human rights defenders, 10 August 2018, Doc. A/​HRC/​39/​17, para. 57.

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National Park,87 and the Ngorongoro Conservation Area.88 It is important to recall that World Heritage properties are subject to the international humanitarian law and human rights law defined as non-​derogable even during armed conflict and belligerent occupation. Indeed, international courts have repeatedly found that World Heritage listing attracts international protection for cultural and religious sites. However, it is clear that World Heritage nomination and listing has fuelled armed conflict (e.g. the Temple of Preah Vihear).89 The deliberate targeting for destruction and systematic looting of World Heritage properties by combatants has exacerbated recent armed conflicts and belligerent occupations (e.g. Aleppo, Sana’a, Timbuktu, Dubrovnik). Intentional destruction of World Heritage sites has been repeatedly condemned by the Security Council which has called for cooperation with international criminal courts to hold the perpetrators accountable.90 Related to this development is the deliberate killing and forced disappearance of heritage workers and the associated extension of protections afforded to human rights defenders.91 Under the SDGs, UNESCO has reporting responsibility for the number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention, and torture of human rights advocates.92 The destruction at Bamiyan in 2001 led to the adoption of the Declaration on Intentional Destruction of Cultural Heritage of 2003, which states that ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.93 The UN Special Rapporteur on Cultural Rights has defined a human rights-​based approach requiring actors to ‘take into account the rights of individuals and communities in relation to such object or manifestation and, in particular, to connect cultural heritage with its source of production’.94 This approach   Decision 44 COM.7A.46 (2021), para. 4.   Joint Statement by Special Rapporteur on Rights of Indigenous Peoples, Working Group on the Use of Mercenaries, and Special Rapporteur on Torture (2 April 2014), at https://​spcomm​repo​rts.ohchr.org/​TMResu​ ltsB​ase/​Down​Load​Publ​icCo​mmun​icat​ionF​ile?gId=​22743. 89   Temple of Preah Vihear (Cambodia v Thailand), Judgment of 11 November 2013 (note 81) p. 281 at p. 298. 90  SC Res. 2347, 24 March 2017, Doc. S/​RES/​2347(2017); UNESCO Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict, 2 November 2015, 38C/​49; Decision 39 COM/​7 (2015). 91   Decision 7X/​EX (17 March 2022) Impact and consequences of the current situation in Ukraine in all aspects of UNESCO’s mandate, para. 20; HRC Res. 37/​17, 22 March 2018, Preamble and para. 10; HRC 33/​20, 30 September 2016, Preambular para. and para. 10; European Parliament Res. 3 July 2018 on violation of the rights of Indigenous peoples including land grabbing (2017/​2206/​UNI); Doc. A/​HRC/​39/​ 17; Special Rapporteur on the situation of human rights defenders Report on Environmental human rights defenders, 3 August 2016, Doc. A/​71/​281; Special Rapporteur in the field of Cultural Rights, Report on Intentional Destruction of Cultural Heritage, 9 August 2016, Doc. A/​71/​317, paras 68–​75; Resolution on Human Rights Defenders in Africa ACHPR Res. 196 (L), 2011; Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res. 53/​144 of 9 December 1998. See ICC-​OTP (note 83) p. 6. 92   SDG Indicators Data Collection Information and Focal Points, 16.10.1 Number of verified cases of killings, kidnapping, enforced disappearance, arbitrary detention and torture of journalists, associated media personnel, trade unionists, and human rights advocates in the previous 12 months. See https://​unst​ats.un.org/​ sdgs/​dataC​onta​cts/​. 93   UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, adopted by the 32nd session of the General Conference on 17 October 2003, Preamble and Art. IV; and Report of the Special Rapporteur in the field of cultural rights, 3 February 2016, Doc. A/​HRC/​31/​59. 94   Doc. A/​HRC/​31/​59, para 70 and Doc. A/​HRC/​17/​38. 87 88

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informs reparations flowing from these violations of human rights and international humanitarian law obligations, with UN human rights bodies and the International Criminal Court stressing that cultural heritage and local communities must drive post-​conflict reconstruction processes.95

B.  Eviction and Forced Displacement Eviction and forced displacement of Indigenous peoples and other local populations is an ongoing characteristic of several World Heritage properties, and is often fuelled or exacerbated by armed conflict, development, tourism, or conservation. Related to these acts are increasing numbers of forced disappearances and extrajudicial killing including persons seeking accountability and reparations.96 International tribunals, regional human rights courts, and UN human rights bodies have found that Indigenous peoples and local inhabitants have been forcibly removed from nature reserves and heritage sites, including World Heritage properties, in ongoing violation of international human rights norms (e.g. Serengeti National Park,97 Central Suriname Nature Reserve,98 Chitwan National Park,99 and Kaeng Krachen National Park).100 State of conservation reporting has been implicated in promoting national initiatives (e.g. Salonga National Park101 and Ngorongoro Conservation Area).102 The UN Declaration on the Rights of Indigenous Peoples specifically affirms that Indigenous peoples and individuals have a right not to be subject to forced assimilation or destruction of their culture and, to that end, states must provide effective   HRC Res. 37/​17, 22 March 2018, para 8; and Prosecutor v Al Mahdi, Reparations Order (note 83) paras 54–​56; and First Expert Report, ICC-​01/​12-​01/​15-​214-​AnxI-​Red-​3, p. 28. 96   HRC Res. 40/​11, 2 April 2019; HRC Res. 31/​32, 20 April 2016. 97   African Commission on Human and Peoples’ Rights v Republic of Kenya, Application 006/​2012, ACHPR, Judgment of 26 May 2017; Press Statement of the African Commission on Human and Peoples’ Rights (26 May 2017), at https://​www.achpr.org/​press​rele​ase/​det​ail?id=​89; and Special Rapporteur on Rights of Indigenous Peoples, Conservation measures and their impact on Indigenous peoples’ rights, 2016, Doc. A/​ 71/​229, para. 53. 98   Kaliña and Lokono Peoples v Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs, IACHR Series C, No. 309, 25 November 2015, para. 173. 99   UN Special Rapporteurs on Enjoyment of Safe, Clean, Healthy and Sustainable Environment, Adequate Housing, Indigenous Peoples and Torture (16 October 2020), at https://​spcomm​repo​rts.ohchr.org/​TMResu​ ltsB​ase/​Down​Load​Publ​icCo​mmun​icat​ionF​ile?gId=​25642; Doc. A/​71/​229, 2016, para. 55; Doc. HRC/​12/​34/​ Add.3, 2009, para. 3; and Decision 44 COM 7B.188 (2021), para. 10. 100   Doc. A/​71/​229, 2014, para. 63; Letter from Working Group on Enforced or Involuntary Disappearances, Special Rapporteur on Safe, Clean, Healthy and Sustainable Environment, Special Rapporteur on Human Rights Defenders, and Special Rapporteur on Rights of Indigenous Peoples (28 February 2019), at https://​ spcomm​repo​rts.ohchr.org/​TMResu​ltsB​ase/​Down​Load​Publ​icCo​mmun​icat​ionF​ile?gId=​24380; EMRIP Study of Indigenous Peoples’ rights in the context of borders, migration and displacement, 18 September 2019, Doc. A/​HRC/​EMRIP/​2019/​Rev 1, para. 31 referencing the decision of the Thai Supreme Administrative Court in Red Administrative Case no. OS 4/​2561; Report of the Special Rapporteur on the Rights of Indigenous Peoples, 18 June 2020, Doc. A/​HRC/​45/​34, para. 24; Joint Statement Special Rapporteurs on the Rights of Indigenous Peoples, on Human Rights and the Environment, and on the situation of human rights defenders (23 July 2021), at https://​www.ohchr.org/​EN/​New​sEve​nts/​Pages/​Disp​layN​ews.aspx?New​sID=​27333&Lan​ gID=​E. Cf. Decision 44 COM 8B.7 (2021), para. 6. 101   Decision 44 COM 74.44 (2021), paras 7 and 8(j). 102   Ololosokwan Village Council and Ors v Attorney General of Tanzania, App. no. 15 of 2017, Ruling of 25 September 2018, First Instance, East African Court of Justice, at https://​www.eacj.org/​wp-​cont​ent/​uplo​ads/​ 2020/​11/​Appl​icat​ion-​No.-​15-​of-​2017-​inj​unct​ion-​Olol​osok​wan-​Vill​age-​Coun​cil-​3-​Oth​ers-​vs-​The-​Attort​ney-​ Gen​erl-​of-​URT.pdf; SOC Mission Report, Ngoronogoro Conservation Area (United Republic of Tanzania), 13 June 2019; and UNESCO, Ngorongoro Press Release (21 March 2022), at https://​whc.une​sco.org/​en/​ news/​2419. 95

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mechanisms for prevention and redress of ‘any action which has the aim or effect of dispossessing them of their lands, territories, or resources’ and ‘any form of forced population transfer which has the aim or effect of violating or undermining any of their rights’.103 The Special Rapporteur on the Rights of Indigenous Peoples has noted that ‘for over a century, conservation was carried out with the aim of vacating protected areas of all human presence, leading to cultural destruction and large-​scale displacement of Indigenous peoples from their ancestral lands in the name of conservation’.104 She further observed that when placed under the control of governmental authorities, these territories are exposed to ‘destructive settlement, extractive industries, illegal logging, agribusiness expansion, and large-​scale infrastructure development’.105 In 2022, in response to his participation in meetings of the World Heritage Committee and the IUCN World Conservation Congress, the Special Rapporteur on the Rights of Indigenous Peoples focused his annual thematic study on the obligations of states and international organizations in respect of Indigenous peoples’ rights and protected areas.106 Building on existing human rights and international humanitarian law instruments, UN human rights bodies prepared CESCR General Comment No. 7 on Forced Eviction (1997),107 the Guiding Principles on Internal Displacement (1998),108 and the Basic Principles and Guidelines on Development-​Based Evictions and Displacement (2007),109 in addition to regional initiatives such as the African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention, 2009),110 which detail the obligations of international organizations, states, and non-​ state actors.

  Art. 8 UNDRIP.  Conservation measures and their impact on Indigenous peoples’ rights, Special Rapporteur on the Rights of Indigenous Peoples, 2016, Doc. A/​71/​229, para. 13; UNPFII Study to examine conservation and Indigenous peoples’ human rights, 8 March 2019, Doc. E/​C.19/​2018/​9; ACHPR, Report of the African Commission’s Working Group of Experts on Indigenous Populations/​Communities (Copenhagen: ACHPR and IWGIA, 2005) pp. 22–​26; EMPRIP Study on Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, 19 August 2015, Doc. A/​HRC/​30/​53 para. 55 and Advice No. 8: Promotion and protection of the rights of Indigenous peoples with respect to their cultural heritage, 2015, Doc. A/​HRC/​30/​53, Annex, para. 27. See M. Dowie, Conservation Refugees: The Hundred-​Year Conflict between Global Conservation and Native Peoples (MIT, Cambridge MA, 2009). 105   Doc. A/​71/​229, para. 17. See also Docs. A/​HRC/​4/​32/​Add.2 and A/​HRC/​33/​42/​Add.2. 106   OHCHR Call for Submissions, ‘Protected Areas and Indigenous Peoples’ Rights: The Obligations of States and International Organisations’ (2022), at https://​www.ohchr.org/​en/​calls-​for-​input/​calls-​input/​call-​ subm​issi​ons-​protec​ted-​areas-​and-​ind​igen​ous-​peop​les-​rig​hts. 107   General Comment No. 7, The Right to Adequate Housing: Art. 11(1) ICESCR: Forced Eviction, UN Doc. E/​1998/​22, Annex IV. 108   Guiding Principles on Internal Displacement, 11 February 1998, Doc. E/​CN.4/​1998/​53/​Add.2. See also W. Kälin, Guiding Principles on Internal Displacement: Annotations (American Society of International Law, Washington DC, 2008); W. Kälin, ‘Internal Displacement’, in E. Fiddian-​Qasmiyeh et al. (eds) The Oxford Handbook of Refugee and Force Migration Studies (Oxford University Press, Oxford, 2014); D. MacGuire The Relationship between Normative Frameworks on Internal Displacement and the Reduction of Displacement (2018) 30(2) International Journal of Refugee Law 269–​286; and GP20 Plan of Action for Advancing Prevention, Protection and solution for Internally Displaced People (2018–​2020), 12 June 2019, Doc. A/​ HRC/​41/​40/​Add.1. 109   Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, 5 February 2007, Doc. A/​HRC/​4/​18, Annex. 110   Adopted 23 October 2009, in force 6 December 2012. See https://​au.int/​en/​treat​ies/​afri​can-​union-​con​ vent​ion-​pro​tect​ion-​and-​ass​ista​nce-​int​erna​lly-​displa​ced-​pers​ons-​afr​ica. 103 104

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C.  Development, Extractive Industries, and Tourism The adverse impact of development, in particular in extractive industries,111 logging,112 damming, and tourism,113 on the conservation of World Heritage properties has been examined by the World Heritage Committee and Advisory Bodies. However, these assessments and responses do not address human rights violations arising from those activities. International courts, regional human rights courts, and international human rights bodies have found serious human rights violations on World Heritage sites relating to extractive industries (e.g. Kakadu,114 and the Great Barrier Reef );115 logging (Białowieża Forest,116 Gunung Mulu National Park),117 damming (e.g. Selous Game Reserve118 and Rio Plátano Biosphere Reserve),119 and tourism (e.g. Kahuzi-​ Biega National Park,120 Lake System in the Great Rift Valley121 and Volcanoes of   Decision 37 COM 7 (Part III) (2013).   UNESCO, ‘Adapting to Change: The State of Conservation of World Heritage Forests in 2011’, World Heritage Papers No. 30 (2011); and World Heritage Forests’ Special Issue (October 2011) 61 World Heritage. 113   Decisions CONF 2008 XVII.8 (2001), 33 COM 5A (2009); 34 COM 5F.2 (2010); and 36 COM 5E (2012); Istanbul Declaration on Tourism and Cultural: For the Benefit of All (UNWTO and UNESCO, December 2018); UNWTO (2015). ‘Tourism at World Heritage International Sites: Challenges and Opportunities’ (Madrid, UNTWO), at https://​webun​wto.s3.eu-​west-​1.amazon​aws.com/​s3fs-​pub​lic/​2019-​11/​ con​fere​nce-​tour​ism-​cult​ure.pdf; ICOMOS, Heritage at Risk from Tourism (1999), at https://​www.ico​mos. org/​risk/​2001/​tour​ism.htm; ICOMOS, Charter for the Interpretation and Presentation of Cultural Heritage Sites (2008); and IUCN, Key Results of the IUCN World Heritage Outlook (2020), at https://​world​heri​tage​ outl​ook.iucn.org/​resu​lts. 114   Report on the Mission to Kakadu National Park, 29 November 1998, Doc. WHC-​98/​CONF.203/​ INF.185. 115   Report of the Special Rapporteur on the situation of human rights defenders on his mission to Australia, 28 February 2018, Doc. A/​HRC/​37/​51/​Add.3, para. 79. 116   Case C-​44-​17 Commission v Poland (Białowieża Forest), Judgment of 17 April 2018 (Grand Chamber); and Report of the Special Rapporteur in the field of Cultural Rights. Visit to Poland, 12 May 2020, Doc. A/​ HRC/​43/​50/​Add.1, paras 36, 81, and 83. 117   Report of the Special Rapporteur on Extreme Poverty and Human Rights, 6 April 2020, Doc. A/​HRC/​ 44/​40/​Add.1, paras 54 and 83; Report of the Special Rapporteur on the human right to safe drinking water and sanitation, 8 July 2019, Doc. A/​HRC/​42/​47/​Add.2, paras 26 and 39; Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, 15 August 2008, Doc. A/​ HRC/​9/​9/​Add.1, paras 270–​274; and 18 September 2009, Doc. A/​HRC/​12/​34/​Add.1, paras 242–​246. 118   See CESCR General Comment No. 15 (2002) Right to Water, 20 January 2003, Doc. E/​C.12/​2002/​ 11; Guidelines on the Right to Water in Africa, adopted by the 26th Extraordinary Session of the African Commission on Human and Peoples’ Rights held July 2019, at https://​www.achpr.org/​pres​spub​lic/​publ​icat​ ion?id=​83. 119   UN CERD, Concluding Observations on the Combined Initial and Second to Fifth Periodic Report of Honduras, 13 March 2014, Doc. CERD/​C/​HND/​CO/​1-​5; Report of the Special Rapporteur on the Rights of Indigenous Peoples on her visit to Honduras, 21 July 2016, Doc. A/​HRC/​33/​42/​Add.2, paras 22, 49, and 59; Report of the Special Rapporteur on the Rights of Indigenous Peoples, 10 August 2018, Doc. A/​HRC/​39/​17, paras 61 and 62, Inter-​American Commission on Human Rights (19 July 2013) and UN Special Rapporteur on the rights of Indigenous peoples (4 March 2016). 120   ACHPR, Admissibility of Complaint (2019); Compilation prepared by OHCHR: DRC, 14 February 2014, Doc. A/​HRC/​WG.6/​19/​COD/​2; and ACHPR Res. 65(XXXIV) 03 of 20 November 2003, Report of the African Commission’s Working Group on Indigenous Peoples/​Communities, Doc. DOC/​OS (XXXIV)/​ 345, p. 13. 121   Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Merits, Provisional Measures, Communication No. 276/​2003, African Commission on Human and Peoples’ Rights, 25 November 2009; ACHPR Res. 197(L)2011 on the Protection of the Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of the Lake Bogoria as a World Heritage Site; Report of the Independent Expert in the field of cultural rights, Access to Cultural Heritage, 21 March 2011, Doc. A/​HRC/​17/​38, para. 20; ACHPR Res. 197, 5 November 2011, ‘Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site’. 111 112

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Kamchatka).122 These activities are a reminder that human rights violations encompass non-​state actors, like transnational corporations, which are often the perpetrators of such violations. The UN Guiding Principles on Businesses and Human Rights reaffirms that states must ensure that entities operating or registered on their territory comply with human rights law, while corporations must respect applicable domestic laws including human rights law.123 Peak bodies in the mining124 and tourism sectors125 have issued guidelines on human rights and culture. The World Bank’s revised Environmental and Social Framework with guidelines for development projects references international human rights standards.126 These initiatives together with the SDGs have precipitated and informed the design and application of human rights and cultural impact assessments in applications and management of projects and sites.127 By contrast, World Heritage Committee decisions referring to impact assessments of proposed developments on World Heritage properties focus on their effect on outstanding universal value.

D.  Environmental Degradation and Climate Change The importance of international cooperation in addressing global issues concerning the environment have been defined in the Stockholm Declaration and the World Heritage

122   Decision 44 COM 7B.109 (2021); HRC WGUPR Summary of Stakeholders’ submission on Russian Federation, 9 March 2018, Doc. A/​HRC/​WG.6/​30/​RUS/​3; Report of Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, Situation of Indigenous peoples in the Russian Federation, 23 June 2010, Doc. A/​HRC/​15/​37/​Add.5; CERD Concluding observations on 23rd and 24th reports of Russian Federation, 20 September 2017, Doc. CERD/​C/​RUS/​CO/​23-​24. 123  Guiding Principles on Business and Human Rights: Implementing the UN ‘Protect, Respect and Remedy’ Framework (Ruggie Principles), 21 March 2011, Doc. A/​HRC/​17/​31; OECD, Guidelines for Multilateral Enterprises (2011), at https://​www.oecd.org/​daf/​inv/​mne/​48004​323.pdf, and General Comment No. 24, 2017, on State obligations under the ICESCR in the context of business activities, 10 August 2017, Doc. E/​C.12/​GC/​24. See African Commission on Human and Peoples’ Rights, State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment. See https://​www.achpr.org/​pres​spub​lic/​publ​icat​ion?id=​75. 124   ICMM, Mining and Protected Areas: Position Statement, at https://​www.icmm.com/​en-​gb/​memb​ers/​ mem​ber-​requi​reme​nts/​posit​ion-​sta​teme​nts/​protec​ted-​areas. These should be compared with UNEP, Principles for Responsible Investment. Human Rights and the Extractive Industry, at https://​www.unpri.org/​downl​ oad?ac=​1655, and the broader Mining Principles which include respect for human rights and cultures of ‘communities affected by [mining] activities’ (Principle 3) and covers avoiding involuntary resettlement, respect of Indigenous peoples and work to obtain free, prior and informed consent’: ICMM, Mining Principles, at http://​ www.icmm.com/​en-​gb/​memb​ers/​mem​ber-​requi​reme​nts/​min​ing-​pri​ncip​les. 125   Global Code of Ethics for Tourism adopted by UNWTO General Assembly in 1999 and GA Res. 65/​ 212 of 21 December 2001, covers protections for vulnerable populations, cultural sustainability, and promotion of fundamental human rights. 126   IBRD and World Bank, The World Bank Environmental and Social Framework (Washington DC, 2017); ESS8 Cultural Heritage. See https://​thed​ocs.worldb​ank.org/​en/​doc/​837​7215​2276​2050​108-​029​0022​ 018/​origi​nal/​ESFFr​amew​ork.pdf#page=​99&zoom=​80; and ESS7 Indigenous Peoples/​Sub-​Saharan African Historically Underserved Traditional Local Communities. See https://​thed​ocs.worldb​ank.org/​en/​doc/​837​ 7215​2276​2050​108-​029​0022​018/​origi​nal/​ESFFr​amew​ork.pdf#page=​89&zoom=​80; and World Bank and OECD, Integrating Human Rights into Development: Donor Approaches, Experiences and Challenges (3rd edn, Washington DC, 2016). 127   The Importance of Public Spaces for the Exercise of Cultural Rights. Report of Special Rapporteur in field of Cultural Rights, 30 July 2019, Doc. A/​74/​255; UCLG, Culture 21: Actions. Commitments on the Role of Culture to Sustainable Cities (2015), at https://​agen​da21​cult​ure.net/​sites/​defa​ult/​files/​files/​cultur​e21-​ acti​ons/​c21​_​015​_​en.pdf; and ESS8, ibid. See in respect of environmental impact assessments: Pulp Mills on the River Uruguay (Argentina v Uruguay), Merits, 20 April 2010 [2010] ICJ Rep 2010, para. 204; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment [2015] ICJ Rep, paras 145–​172.

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Convention.128 The Stockholm Declaration emphasized the centrality of the environment to human rights and equality.129 The principles contained in the Declaration were reaffirmed and expanded upon with the Rio Declaration on the Environment and Development and the SDGs.130 It is recognized that the global nature of climate change can only be addressed through effective international cooperation and action at the international, national, and local levels. Climate change is having a negative effect on a significant proportion of World Heritage properties including the Great Barrier Reef,131 Lake Turkana National Parks,132 and the Central Amazon Conservation Complex.133 The adverse impact of climate change on World Heritage sites is addressed by the Policy Document on the Impacts of Climate Change on World Heritage Properties adopted by the General Assembly of States Parties in 2007 and which makes no reference to human rights.134 The updated Policy Document for Climate Action for World Heritage, adopted in 2021, likewise does not reference human rights.135 UN human rights bodies and regional human rights courts have recognized that climate change is adversely impacting human rights including on protected areas.136 The deliberate targeting of environmental

  Principle 24, Stockholm Declaration; and Art. 6 WHC.   Principle 1, Stockholm Declaration. 130   Principles 1 and 2, Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, 12 August 1992, Doc, A/​CONF.151/​26, Vol. I, Annex I; and GA Res. 70/​1 of 25 September 2015, Transforming our world: the 2030 Agenda for Sustainable Development, Doc. A/​RES/​70/​1, Preamble referencing importance of ‘healthy environment’ for people, and SDGs 13, 14, 15. 131   Report of the Special Rapporteur on the situation of human rights defenders on his mission to Australia, 28 February 2018, Doc. A/​HRC/​37/​51/​Add.3; UN CESCR, Consideration of Reports submitted by States Parties under Arts 16 and 17 of the Covenant, 12 June 2019, Doc. E/​C.12/​AUS/​CO/​4, para. 27; and UN CRC, Concluding Observations on the combined fifth and sixth periodic reports of Australia, 1 November 2019, Doc. CRC/​C/​AUS/​CO/​5-​6. 132   Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 15 July 2019, Doc. A/​74/​161, para 38; Report of the Special Rapporteur on the human right to safe drinking water and sanitation, 6 July 2015, Doc. A/​HRC/​30/​ 39/​Add.2, paras 1, 27, 72–​74; Doc. CERD/​C/​KEN/​CO/​5-​7, paras 19–​20; and UNEP and European Union, Support to Sustainable Development in Lake Turkana and its River Basins: Results of Modelling of Future Scenarios. Technical Report (UNEP-​DHI Centre, 2021), at https://​www.unep​dhi.org/​wp-​cont​ent/​uplo​ads/​ sites/​2/​2021/​06/​Basin-​Modell​ing-​and-​Pri​orit​izat​ion-​of-​Reh​abil​itat​ion-​Measu​res-​report​_​Fin​al_​1​7062​021.pdf. 133   Joint Communication by UN Special Rapporteurs (9 January 2014), at https://​spcomm​repo​rts.ohchr. org/​TMResu​ltsB​ase/​Down​Load​Publ​icCo​mmun​icat​ionF​ile?gId=​13751, outlining multiple human rights violations; UPR Brazil Report of the OHCHR, 24 February 2017, Doc. A/​HRC/​WG.6/​27/​BRA/​2; A/​74/​161, para. 17; Inter-​American Commission on Human Rights, ‘Indigenous and Tribal Peoples of the Pan-​Amazon Region’, 29 September 2019, OAS/​Ser.L/​V/​II. Doc. 176. 134   UNESCO World Heritage Centre, Policy Document on the Impacts of Climate Change on World Heritage Properties, 2008, Doc. WHC-​07/​16.GA/​10. 135   Decision 44 WH 7C (2021); Res. 23 GA 11, 2021; and Updated Policy Document on the Impacts of Climate Change on World Heritage Properties, 4 June 2021, Doc. WHC/​21/​44.COM/​7C. Cf. Reports of World Heritage Centre and the Advisory Bodies, 5D, World Heritage Convention and Sustainable Development, 4 June 2021, Doc. WHC/​21/​44/​COM.5D, para. 33; and Climate Change, Culture and Cultural Rights. Report of the Special Rapporteur in the field of Cultural Rights, 10 August 2020, Doc. A/​ 75/​298, paras 31–​33. 136   Climate Change, Culture and Cultural Rights. Report of the Special Rapporteur in the field of Cultural Rights, 10 August 2020, Doc. A/​75/​298 and Annex; Human Rights depend on a Healthy Biosphere: Good Practice. Supplementary information on the report the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment, 21 September 2020, Doc. A/​75/​161 Annex; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment and Compensation Order [2018] ICJ Rep, Separate Opinion of Judge Cançado Trindade; Case of the Indigenous 128 129

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human rights defenders, including those campaigning in respect of World Heritage sites, has been condemned by the Human Rights Council. The HRC has underscored the significance of good practice policies at the international and regional levels.137 This latter issue must be placed within the broader concerns flagged by the Stockholm Declaration, repeatedly reaffirmed and elaborated in intervening years, that is, access to information, public participation, and access to justice in respect of environmental matters.138 This is a requirement extrapolated in respect of women and girls by the Committee on the Elimination of Discrimination against Women139 and in respect of Indigenous peoples by the UN Special Rapporteur.140

IV.  International Responsibility for Serious Human Rights Violations With the articulation of international human rights enjoyed by persons and groups on or near World Heritage properties becoming more detailed and pronounced in recent years, the enforcement of these norms by international, regional, and national courts and tribunals has led to defining corresponding international responsibility for their violation. Serious violations of international human rights and international humanitarian law arising from or related to the operation of the World Heritage Convention can potentially engage the international responsibility of international organizations such as UNESCO, states, and non-​state actors like corporations, NGOs, and individuals.

A. Responsibility UNESCO, as an international organization, has legal personality defined by its constitutive instrument and distinct from its member states.141 The promotion of human Communities of the Lhaka Honhat (Our Land) Association v Argentina, Judgment on Merits, Reparations and Costs, IACtHR Series C No 400, 6 February 2020; Inter-​American Court of Human Rights, Advisory Opinion on the Environment and Human Rights, State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity, Advisory Opinion OC-​23/​18, 15 November 2017. See https://​elaw.org/​sys​tem/​files/​atta​chme​nts/​pub​licr​esou​rce/​, English version of AdvOp OC-​23.pdf, https://​ www.corte​idh.or.cr/​docs/​opinio​nes/​seriea​_​23_​ing.pdf; HRC Res. 41/​ 21 on Human Rights and Climate Change, 9 July 2019, Doc. A/​HRC/​RES/​41/​21; and Resolution on Climate and Human Rights in Africa, ACHPR Res. 342(LVIII) 2016. 137   HRC Res. 40/​11, 21 March 2019, Doc. A/​HRC/​RES/​40/​11. Recognizing the contribution of human rights defenders to the enjoyment of human rights, environmental protection, and sustainable development; UNEP, Promoting Greater Protection for Environmental Defenders, Policy Paper (2018), at https://​wed​ocs. unep.org/​bitstr​eam/​han​dle/​20.500.11822/​22769/​Environment​al_​D​efen​ders​_​Pol​icy_​2018​_​EN.pdf?seque​ nce=​1&isAllo​wed=​y; and Human Rights depend on a Healthy Biosphere: Good Practices, Supplementary Information on the Report of the Special Rapporteur on the issue of human obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 21 September 2020, Doc. A/​75/​161, Annex, paras 63–​67. 138   Principles 22, Stockholm Declaration; Principles 10, 13, 19, 20 (Women), 22 (Indigenous Peoples) Rio Declaration; Convention on Access to Information, Public Participation in Decision-​Marking and Access to Justice in Environmental Matters (Aarhus Convention), adopted 25 June 1998, entered into force 30 October 2001, 2161 UNTS 447; Arts 40 and 41 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/​295 of 13 September 2007; SDG 16 (Access to Justice and Inclusive Societies); UNEP Policy (2018). 139   CEDAW General Recommendation No. 37 (2018) pp. 9–​11. See Doc. A/​75/​298, paras 7–​8. 140   Study on the Impacts of Climate Change and Climate Finance on Indigenous Peoples’ Rights, Special Rapporteur on the Rights of Indigenous Peoples, 1 November 2017, Doc. A/​HRC/​36/​46. 141  Art. 104 UN Charter; and Art. XII UNESCO Constitution. See Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep, p. 73 at pp. 89–​90, para

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rights and fundamental freedoms is the purpose of the Organization, and its parent body, the United Nations.142 In addition, normative international instruments adopted since the UDHR have defined and elaborated upon international human rights law and upon actions to be taken by the United Nations and its specialized agencies (including UNESCO). As explained earlier, the Organization has transposed these into its own instruments and policies. The Articles on Responsibility of International Organizations stipulated that when an international organization commits a wrongful act, its responsibility is entailed (Art. 3).143 The International Court of Justice has stated that the question of immunity from legal proceedings, that an international organization may enjoy, is distinct from the issue of compensation for damages incurred as a result of acts by an international organization or its agents acting in their official capacity; and that the organization may be required to bear responsibility for such damage.144 UNESCO provides support through the World Heritage Centre as the Secretariat, and financial support through its regular budget and approved by the General Conference. If the conduct aids or assists violations of human rights and international humanitarian law, it can entail its international responsibility.145 Other international organizations, such as the World Bank and regional development banks, which similarly provide logistical and financial support for development projects on World Heritage properties which trigger or exacerbate human rights violations may similarly incur international responsibility. National, regional, and international courts have held states responsible for violations of human rights and international humanitarian law obligations related to World Heritage properties (whether under treaty or customary international law), and breach of such obligations is attributable to that state.146 As noted earlier, the WH-​SDG adopted by the General Assembly of States Parties and the Operational Guidelines approved by the World Heritage Committee confirm the commitment to ‘uphold, respect and contribute to the full range of international human rights standards’.147 The responsibility of States Parties to the Convention may be engaged where approval by the General Assembly and World Heritage Committee, of a nomination, management, and international assistance aids or assists violations of human rights and international humanitarian law obligations.148

37; and ILC, Draft articles on the responsibility of international organisations, with commentaries (ARIO Commentaries), 2011, Doc. A/​66/​10, in (2011) YILC, Vol. II, Part Two, p. 50.   Art. I(1) UNESCO Constitution; and Art. 1 UN Charter.   Art. 3, Responsibility of International Organizations (ARIO), GA Res. 66/​100 of 9 December 2011. 144   Differences Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] ICJ Rep 62 at pp. 88–​89, para. 66, and ARIO Commentaries, p. 53; K. Wellens, Remedies against International Organizations, (Cambridge University Press, Cambridge, 2002) pp. 15–​16. See in respect of immunity, Convention on Privileges and Immunities of the Specialized Agencies, 21 November 1947, entered into force 2 December 1948, 33 UNTS 261; and D. Aziz and A. See, ‘Privileges and Immunities of the United Nations and Specialized Agencies’, in S. Chesterman et al. (eds) The Oxford Handbook of United Nations Treaties (Oxford University Press, Oxford, 2019) pp. 543–​563. 145   Art. 14 ARIO. See ARIO Commentaries, p. 66 citing UN Legal Council note 12 October 2009. The Advisory Bodies, ICCROM as an intergovernmental organization (and possibly the IUCN) would similarly fall within this body of law. 146   Responsibility of States for Internationally Wrongful Acts (ARSIWA), GA Res. 56/​83 of 12 December 2001, in particular Art. 33; and ILC, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries (ARSIWA Commentaries), 2001, Doc. A/​56/​10, in (2001) YILC, Vol. II, Part Two. 147   WH-​SDP, p. 7, para. 20; and OG para. 14bis. 148   Art. 16, ARSIWA. See ARSIWA Commentaries (note 146) pp. 65–​67. 142 143

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States have a duty to ensure that business enterprises on their territory, including World Heritage properties, do not engage in conduct in violation of their human rights and international humanitarian law obligations under treaty and customary international law.149 Corporations have limited legal personality in international law150 and must respect applicable human rights norms in their operations.151 Corporations have been held responsible for human rights violations including on World Heritage properties before arbitral tribunals established under international investment agreements.152 Individuals can be held individually criminally responsible in respect of serious violations of human rights and international humanitarian law related to World Heritage properties before national courts and international criminal courts.153 UNESCO and the Office of the Prosecutor for the International Criminal Court signed a letter of intent in 2017 to strengthen cooperation on protection of cultural heritage in line with their respective mandates.154

B. Reparations International responsibility of an international organization or state for violations of human rights and international humanitarian law entails an obligation to revert to compliance with those obligations,155 including cessation of the internationally wrongful conduct,156 commitment to non-​repetition,157 and reparations (restitution,158 compensation,159 satisfaction,160 and interest) for victims of those wrongful acts.161 These obligations have been elaborated on and applied in respect of serious violations of human rights and international humanitarian law included those related to World Heritage properties by regional human rights courts and international criminal tribunals.162 The jurisprudence arising from these proceedings and related reparations orders have reinforced and elaborated upon the relationship between human rights and cultural heritage, including World Heritage sites, in international law.163   Principle 1, Ruggie Principles (note 123).   Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain) [1970] ICJ Rep 3 at p. 37. 151   Ruggie Principles (note 123) Part II, p. 14. 152   V. Vadi, ‘Cultural Heritage in International Investment Law’, in F. Francioni and A. F. Vrdoljak (eds) The Oxford Handbook on International Cultural Heritage Law (Oxford University Press, Oxford, 2020) pp. 481–​506. 153   See, e.g., Jokić, Trial Judgment, ICTY (note 84); and Prosecutor v Ahmad Al Faqi Al Mahdi, Judgment and Sentencing, ICC-​01/​12-​01/​15, Trial Chamber VII ICC, 27 September 2016. 154   ICC Press Release (6 November 2019), at https://​www.icc-​cpi.int/​pages/​item.aspx?name=​171106​_​otp​_​ une​sco; and 38C/​49, para. 29. 155  See Request for Interpretation of the Judgment of 15 June 1962 (Cambodia v Thailand) (note 81) p. 317. 156  See Ololosokwan Village Council and Ors v Attorney General of Tanzania (note 102) at para. 58. 157  See Request for Interpretation of the Judgment of 15 June 1962 (Cambodia v Thailand) (note 81) p. 318; Kaliña and Lokono Peoples v Suriname (note 98) para. 300. 158  See Temple of Preah Vihear (Cambodia v Thailand) [1962] ICJ Rep 36; Kaliña and Lokono Peoples v Suriname (note 98) paras 274 ff. 159  See Centre for Minority Rights Development (Kenya) and MRG v Kenys, ACHPR (2009) (note 121); and Prosecutor v Al Mahdi, Reparations Order (note 83). 160  See Prosecutor v Al Mahdi, Reparations Order (note 83), paras 68–​71 (apology); and Kaliña and Lokono Peoples v Suriname (note 98) paras 292 ff (creation of community development fund), 307–​308 (training measures), and 310–​316 (apology and publication of judgment). 161   Arts 28–​40 ARIO; and Arts 28–​39 ARSIWA. 162   Van Boven/​Bassiouni Principles (note 16); and ICC-​OTP Policy (note 83). See A. F. Vrdoljak, ‘Cultural Heritage, Transitional Justice and the Rule of Law’, in Francioni and Vrdoljak (note 152) pp. 169–​199; E. Novic, ‘Remedies’, in ibid, pp. 642–​664; and D. Shelton, Remedies in International Human Rights Law (3rd edn, Oxford University Press, Oxford, 2015). 163   See, e.g., Prosecutor v Al Mahdi, Reparations Order (note 83). 149 150

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V. Conclusion In its first decades of operation, UNESCO was at the forefront of human rights (particularly cultural rights) law formulation and implementation. The Organization championed the inclusion of a detailed formulation of the right to participate in cultural life—​which made explicit reference to access to cultural heritage—​during the drafting of the International Covenant on Economic, Social and Cultural Rights. Its early initiative to formulate a procedure for the investigation of large-​scale human rights violations and individual communications was one of the first, if not the first, in the UN system. Similarly, as the introductory chapter in this volume observes, the World Heritage Convention was groundbreaking for its time in bringing together as it did natural and cultural heritage and championing international cooperation for its protection. However, documented serious human rights violations related to World Heritage properties reveal the shortcomings of UNESCO, and the operation of the World Heritage Convention, in fulfilling the purpose for which the Organization was established and its oft-​repeated commitment to a human rights-​based approach. This disconnect between cultural heritage and human rights is especially stark when compared to developments in other fora in the UN system in response to deliberate destruction of cultural heritage on or related to World Heritage properties. These responses recall that World Heritage sites are of universal importance and emphasize their significance to the cultural identity and human rights of local inhabitants. The Human Rights Council in its successive resolutions since 2016 notes that: ‘[D]‌estruction of or damage to cultural heritage may have detrimental and irreversible impact on the enjoyment of cultural rights, in particularly the right of everyone to take part in cultural life, including the ability to access and enjoy cultural heritage’.164 The UN Security Council in its first resolution dedicated to cultural heritage in 2017 emphasized that such acts ‘attempt to deny historical roots and cultural diversity . . . undermining . . . social, economic, and cultural development’.165 These interventions were prefigured by the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage adopted in 2003 following the deliberate destruction of the Buddhas of Bamiyan, which states that: ‘[C]ultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.166 In 2017, the International Criminal Court in its first trial on war crimes against cultural property observed that: ‘[A]ddressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community as a whole’.167 In formulating its reparations order, the Court drew on the jurisprudence and principles and guidelines developed by international human rights law. For UNESCO, the World Heritage Convention must be a convention by which the Organization fulfils its mandate ‘to further universal respect for justice, the rule of law and   HRC 37/​17, 22 March 2016, Preamble.   SC Res. 2347, 24 March 2017, Doc. S/​RES/​2347(2017), Preamble, and referencing the World Heritage Convention. 166   Adopted by the 32nd session of the UNESCO General Conference, 17 October 2003. The Declaration also proscribes obligations of states in respect of state responsibility, individual criminal responsibility, and cooperation for protection of cultural heritage in respect of intentional destruction. 167   Prosecutor v Al Mahdi, Reparations Order (note 83) para. 53. 164 165

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for the human rights and fundamental freedoms’. For States Parties to the Convention, World Heritage properties are not and cannot be a tableau rasa, devoid of human rights obligations. The human rights and international humanitarian law binding those states (whether under treaty or customary international law) applies to violations on their territory. The limitations of UNESCO and World Heritage reporting and human rights communication procedures have inhibited efforts to properly realize a human rights-​ based approach to the operation of the Convention. For victims of human rights violations on or related to World Heritage properties, it has meant that they must continue to seek justice and relief before national and regional courts and international and regional human rights bodies.

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The World Heritage Convention and the Rights of Indigenous Peoples Federico Lenzerini * and Dalee Sambo Dorough **

I. Introduction: The Affirmation of Indigenous Peoples’ Rights in International Law  II. The Complex Dynamics of Indigenous Peoples’ Cultural Heritage  III. The Protection and Safeguarding of Indigenous Peoples’ Cultural Heritage in International Law  IV. The World Heritage Convention and Indigenous Peoples  V.  The Path Is Still Uphill 

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We draw our identity as a people from our relationship to the land and to the sea and to the resources. This is a spiritual relationship, a sacred relationship. (Mary Miller1)

The World Heritage Convention does not include any specific provisions dealing with Indigenous peoples and their rights. Nevertheless, in its implementing practice, the impact of the Convention on such rights is progressively growing, especially in consideration of the special significance of cultural heritage for, and in, the lives of Indigenous peoples. In particular, the inscription of properties traditionally belonging to Indigenous peoples on the World Heritage List and their subsequent management may raise a number of interrelated problematic issues that are slowly being addressed by the World Heritage Committee, yet remain unsatisfactorily treated. Every individual is born into a culture. For Indigenous peoples, the significance of the collective cultural identity is deeply sophisticated, holistic, and complex. Culture and cultural heritage touch every aspect of Indigenous individual and collectivities, or entire peoples. The strength of Indigenous peoples’ culture and lifeways is directly tied to their lands and territories, which form the basis for their centuries of accumulated

*  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO. ** Senior Scholar and Special Adviser on Arctic Indigenous Peoples, University of Alaska Anchorage. Member of the ILA Committee on the Rights of Indigenous Peoples (2008-​2012) and Co-​Chair of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014-​2020). Former international chairperson of the Inuit Circumpolar Council (2018-​2022). The authors gratefully acknowledge Dr. Stefan Disko, Independent Research Professional, Consultant on World Heritage, International Work Group for Indigenous Affairs (IWGIA), for his extremely valuable comments concerning an early draft of this chapter. They also gratefully acknowledge Palle Jeremiassen, presently Mayor of Avannaata Kommunia, for his useful input on Ilulissat Icefjord, World Heritage site. 1  Testimony of Mary Miller, Nome, Alaska, ‘Village Journey: The Report of the Alaska Native Review’, commissioned by Thomas R. Berger (Hill and Wang, New York, 1985) p. 90.

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knowledge, values, languages, customs, practices, traditions, social controls, and much more. Indigenous peoples have a rich cultural history wherein their language, identity, lands and territories, their hunting, fishing, and harvesting, their values, protocols, social controls, and political institutions, and other cultural elements cannot be separated from who they are as distinct peoples. Every dimension of their culture and cultural heritage is interrelated, interdependent, interconnected, and indivisible. A disruption of one element will disrupt and impact all other elements, tangible and intangible. Also, as noted by Erica Irene Daes, it is: inappropriate to try to subdivide the heritage of indigenous peoples into separate legal categories such as ‘cultural’, ‘artistic’ or ‘intellectual’, or into separate elements such as songs, stories, science or sacred sites. This would imply giving different levels of protection to different elements of heritage. All elements of heritage should be managed and protected as a single, interrelated and integrated whole.2

Often, this dynamic of culture is misunderstood by those outside of the Indigenous world.

I.  Introduction: The Affirmation of Indigenous Peoples’ Rights in International Law The development and affirmation of Indigenous peoples’ rights at the international level is a story of renaissance and emancipation from a tragic past. While marginalized, brutalized, and subjected to genocide and ethnocide for centuries, Indigenous peoples have been able to keep their identity and integrity alive under the ashes of the destruction of their villages, territories, natural resources, traditions, and cultures systematically perpetrated by the European colonizers. Such ashes have never stopped burning, and Indigenous peoples were eventually able to raise their voices in the context of the international legal arena in the second half of the twentieth century. Unfortunately, the first legal instrument adopted with a view to protecting their rights—​ILO Convention No. 107 on Indigenous and Tribal Populations of 19573—​was based on inadequate premises, as it pursued the assimilation of Indigenous communities within the dominant society, such communities being considered as ‘not [being] yet integrated into the national community and whose social, economic or cultural situation hinders them from benefiting fully from the rights and advantages enjoyed by other elements of the population’.4 This approach was, however, reversed with the adoption in 1989 of ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169),5 aimed at ‘removing the assimilationist orientation of the earlier standards’,6 through ‘[r]‌ecognising the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’.7 Although the number 2   See Study on the protection of the cultural and intellectual property of Indigenous peoples, UN Doc. E/​ CN.4/​Sub.2/​1993/​28, para. 31. 3  Available at https://​www.ilo.org/​dyn/​norm​lex/​en/​f?p=​NOR​MLEX​PUB:12100:0::NO::P121​00_​I​LO_​C​ ODE:C107 (accessed 9 February 2023). 4   See Preamble, fifth recital. 5  Available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ INSTRUMENT_ID:312314:NO (accessed 19 June 2023). 6 7   See Preamble, fourth recital.   ibid, fifth sentence.

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of states ratifying this Convention has remained quite limited,8 the Indigenous movement has progressively achieved growing recognition within the international community. For instance, ad hoc institutions have been established in the context of the United Nations, including the Working Group on Indigenous Populations (WGIP) in 1982, the Voluntary Fund for Indigenous Peoples in 1985, the Permanent Forum on Indigenous Issues (UNPFII) in 2000, the Special Rapporteur on the Rights of Indigenous Peoples in 2001, and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) in 2007. This process culminated on 13 September 2007 with the adoption by the UN General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).9 While it is a non-​binding instrument, the legal effects of the UNDRIP are beyond discussion. In particular, it translates into legal terms the aspirations and needs of Indigenous communities, mainly taking the form of collective rights. In the years following its adoption, the UNDRIP has been taken very seriously by states,10 and some of the main standards enshrined in its text have evolved into rules of customary international law—​including the rights of Indigenous peoples to self-​determination, to autonomy or self-​government, to their traditional lands, territories, and resources, as well as to reparation and redress for the wrongs they have suffered.11 Indigenous peoples conceive their rights holistically, inextricably interconnected with each other in the context of the Circle of Life on which their existence is based. In this framework, ‘[c]ultural rights [and heritage] are the core of indigenous cosmology, ways of life and identity, and must therefore be safeguarded in a way that is consistent with the perspectives, needs and expectations of the specific indigenous peoples’.12

II.  The Complex Dynamics of Indigenous Peoples’ Cultural Heritage The Principles and Guidelines for the Protection of the Heritage of Indigenous People (Principles and Guidelines), first adopted in 1995 and revised in 2000,13 emphasize that ‘[r]‌ecognizing, respecting and valuing their customs, rules and practices for the transmission of their heritage to future generations is essential to indigenous peoples, their identity and dignity’.14 The aspect of transmission to future generations is central to the relationship between Indigenous peoples and their own cultural heritage, as the latter guarantees intergenerational continuity, preservation of the community’s identity across generations, and harmonic steadiness in the presence of the community in the universe. Indeed, cultural heritage is bestowed on Indigenous peoples by their ancestors and endowed to them

8   At the time of writing, the Convention had been ratified by 24 states; see https://​www.ilo.org/​dyn/​norm​ lex/​en/​f?p=​1000:11300:0::NO:11300:P1130​0_​IN​STRU​MENT​_​ID:312​314 (accessed 9 February 2023). 9   Doc. A/​RES/​61/​295. 10   Some countries have even incorporated the UNDRIP into their domestic law, as happened, e.g., in Bolivia (Law No. 3760 of 7 November 2007) and in Canada (Bill C-​15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, passed by the Senate on 16 June 2021). 11   See International Law Association (ILA) Resolution No. 5/​2012, available at https://www.ila-hq.org/ en_GB/committees/rights-of-indigenous-peoples (accessed 19 June 2023). 12   See ILA Res. No. 5/​2012, para. 6. 13   See United Nations, ‘Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples’ (adopted 19 June 2000), Doc. E/​CN.4/​Sub.2/​2000/​26, Annex 1. 14   See ibid, Annex I, Principle 4.

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by nature,15 and is at the core of the very identity and existence of Indigenous communities collectively and of their members individually. As regards the definition of Indigenous peoples’ cultural heritage, the Principles and Guidelines consider that: [t]‌he heritage of indigenous peoples has a collective character and is comprised of all objects, sites and knowledge including languages, the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory of traditional natural use. The heritage of indigenous peoples also includes objects, sites, knowledge and literary or artistic creation of that people which may be created or rediscovered in the future based upon their heritage.16

This definition uses a wording which is not perfectly consistent with the taxonomy of the different categories of cultural heritage as prevailing in the context of international cultural heritage law. In particular, it does not include the expression ‘intangible cultural heritage’, which for Indigenous peoples represents a section of cultural heritage of particular significance, in the light of the highly spiritual connotation of their own vision of life. In terms of substance, however, intangible heritage is included in the definition, thanks in particular to the use of the term ‘knowledge’. It follows that all immaterial expressions of Indigenous cultures—​including, among others, traditional medicine, knowledge about nature, religious rites, spiritual beliefs, hunting and fishing techniques, agriculture, music, dances, songs, ceremonies, poetry, storytelling, as well as customary law and practices17—​are included in the definition of Indigenous peoples’ cultural heritage. However, the elements just listed do not exhaust the multifaceted components of the concept in point, all inextricably and holistically intertwined. They also include, among others, sacred sites, human remains, ceremonial objects, intellectual property, traditional knowledge and traditional cultural expressions, language and identity, literature and oral traditions, design, visual and performing arts, philosophy and values, flora, fauna, minerals, and genetic seeds. A particularly significant aspect, in the definition provided by the Principles and Guidelines, is the reference to ‘territory’. In fact, traditional lands, territories, and natural resources undoubtedly represent one of the principal elements of Indigenous cultural heritage, or even the cradle of the complex of such a heritage, as ‘[t]‌he collective consciousness of Indigenous peoples, often expressed in creation stories or similar sacred tales of their origin, places them since time immemorial at the location of their physical existence. More importantly, their beliefs make remaining upon these lands and within a distinct territory a compelling dictate of faith’.18 This aspect is duly emphasized by the Principles and Guidelines, which clarify that ‘[t]he discovery, use and teaching of indigenous peoples’ heritage is inextricably connected with the traditional lands and 15   See Miliani B. Trask, ‘Resisting “Ethnocide”: The Indigenous Imperative to Preserve and Protect Cultural Heritage’, in The Cultural Heritage of Indigenous Peoples and its Protection: Rights and Challenges, report of the Saami Cultural Heritage Week International Expert Seminar in Rovaniemi, Finland, 27–​28 October 2008), available at https://​www.saami​coun​cil.net/​docu​ment​arch​ive/​the-​cultu​ral-​herit​age-​of-​ind​igen​ous-​peop​les-​and-​ its-​pro​tect​ion-​rig​hts-​and-​cha​llen​ges (accessed 10 February 2023), p. 1.

  See ‘Report of the Seminar on the Draft Principles and Guidelines’ (note 13), Annex I, para. 12.   ibid, Annex I, para. 13. 18  See Dalee Sambo Dorough and Siegfried Wiessner, ‘Indigenous Peoples and Cultural Heritage’, in Francesco Francioni and Ana Filipa Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (Oxford University Press, Oxford 2020) p. 407 at pp. 412–​413. 16 17

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territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples’ heritage to future generations, and its full protection.’19 This is crucial for the reason that, in considering the repercussions on Indigenous peoples deriving from a given management system of cultural heritage, one of the main aspects to be taken into account is whether the element of the heritage concerned is located in a territory traditionally belonging to an Indigenous community and whether its management would hinder the full enjoyment of Indigenous peoples’ land rights. Clearly, this consideration applies—​first and foremost—​to the management of properties inscribed on the World Heritage List and, more generally, to the implementation of the rules of the World Heritage Convention in the territories of States Parties where Indigenous peoples live. No doubts exist, in fact, that Indigenous peoples’ cultural heritage also includes ‘immoveable cultural property such as sacred sites of cultural, natural and historical significance and burials’.20 Furthermore, when considering and regulating the management of cultural heritage belonging to Indigenous peoples, it is essential to keep in mind that such heritage is an essential component of, in addition to their land rights, their right to self-​determination, ‘which includes the right of indigenous peoples to maintain and develop their own cultures and knowledge systems, and forms of social organization’.21 It follows that ‘Indigenous peoples’ ownership and custody of their heritage should be collective, permanent and inalienable, or as prescribed by the customs, rules and practices of each people’.22

III.  The Protection and Safeguarding of Indigenous Peoples’ Cultural Heritage in International Law The international legal instrument which provides for the highest standards of protection and safeguarding of Indigenous peoples’ cultural heritage is undoubtedly the UNDRIP. One may legitimately assert that—​keeping in mind the considerations developed in the previous section of this chapter—​the entire UNDRIP deals with cultural heritage, given the interrelated nature of all of the Declaration provisions and the transversal significance of such heritage in the Indigenous cosmology and vision of life. Indeed, most—​if not all—​articles of the UNDRIP are aimed at preserving values which, directly or indirectly, are interconnected with cultural heritage, as conceived by Indigenous peoples. At the same time, certain particular provisions of the Declaration address cultural heritage more specifically. This is the case, especially, of Article 31, which affirms that: 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

  See ‘Report of the Seminar on the Draft Principles and Guidelines’ (note 13) Annex I, principle 6. 21 22   ibid, Annex I, para. 13.   ibid, Annex I, principle 2.   ibid, Annex I, principle 5.

19 20

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This provision is complemented by Article 11(1), providing for the right of Indigenous peoples ‘to practise and revitalize their cultural traditions and customs’, which includes ‘the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’. The structure of Article 11 also comprises a second paragraph, requesting states to ‘provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs’. A similar structure characterizes the following Article 12, whose first paragraph proclaims the rights of Indigenous peoples ‘to maintain, protect, and have access in privacy to their religious and cultural sites’, ‘to the use and control of their ceremonial objects’, as well as ‘to the repatriation of their human remains’. Paragraph 2 of the same article establishes that states must ‘seek to enable the access and/​or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned’. Moving to treaty law, Article 5 of ILO Convention No. 169 of 1989 stresses that, when applying the provisions of the Convention, ‘the social, cultural, religious and spiritual values and practices of [Indigenous and tribal] peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals’, as well as that ‘the integrity of the values, practices and institutions of these peoples shall be respected’. The trilogy of international instruments establishing the legal standards of protection of Indigenous peoples’ rights is completed by the American Declaration on the Rights of Indigenous Peoples (ADRIP), adopted by the General Assembly of the Organization of American States (OAS) on 15 June 2016.23 The considerations previously developed with regard to the UNDRIP concerning the interrelated nature of all of its provisions, are also to be extended to this Declaration. Its most pertinent provisions are Article XIII and Article XXVIII. According to the former (entitled ‘Right to cultural identity and integrity’): 1. Indigenous peoples have the right to their own cultural identity and integrity and to their cultural heritage, whether tangible or intangible, including historic and ancestral heritage; and to the protection, preservation, maintenance, and development of that cultural heritage for their collective continuity and that of their members and so as to transmit that heritage to future generations. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious, and spiritual property taken without their free, prior, and informed consent or in violation of their laws, traditions, and customs. 3. Indigenous people have the right to recognition and respect for all their ways of life, cosmovisions, spirituality, uses, customs, norms, traditions, forms of social, economic, and political organization; forms of transmission of knowledge, institutions, practices, beliefs, values, dress, and languages, recognizing their inter-​relationship as established in this Declaration.

23   The full text of the Declaration is available at https://​www.oas.org/​en/​sare/​docume​nts/​DecAm​IND.pdf (accessed 13 March 2023).

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As regards Article XXVIII, it is entitled ‘Protection of cultural heritage and intellectual property’ and reads as follows: 1. Indigenous peoples have the right to full recognition and respect for the ownership, dominion, possession, control, development, and protection of their tangible and intangible cultural heritage and intellectual property, including its collective nature, transmitted over millennia from generation to generation. 2. The collective intellectual property of indigenous peoples includes, inter alia, traditional knowledge and traditional cultural expressions, including traditional knowledge associated with genetic resources, ancestral designs and procedures, cultural, artistic, spiritual, technological, and scientific expressions, tangible and intangible cultural heritage, as well as knowledge and developments of their own related to biodiversity and the utility and qualities of seeds, medicinal plants, flora, and fauna. 3. States, with the full and effective participation of indigenous peoples, shall adopt measures necessary to ensure that national and international agreements and regimes provide recognition and adequate protection for the cultural heritage of indigenous peoples and intellectual property associated with that heritage. In adopting such measures, consultations shall be held to obtain the free, prior and informed consent of indigenous peoples.

In substance, the ADRIP reiterates the same principles and rules expressed by the UNDRIP, although with some terminological differences. Both instruments advocate ‘effective measures’, ‘measures’, or ‘effective mechanisms’ to be taken or established by states for ensuring the effective enjoyment by Indigenous peoples of their rights related to cultural heritage, without further specifying what such measures of mechanisms should consist of. This is due to the fact that the expression ‘Indigenous peoples’ incorporates many different cultural realities which may have different concrete needs. This, in turn, implies that the above measures or mechanisms must take the most appropriate forms—​ to be defined on a case-​by-​case basis24—​to address such needs and life expectations, the extraordinary needs for Indigenous cultural-​specific contexts, as well as the role played by cultural heritage in preserving and transmitting to future generations the very identity of the relevant Indigenous peoples. In any event, the measures or mechanisms in point must always be established with the participation of the Indigenous communities concerned and/​or after obtaining their free, prior, and informed consent or, at least, following consultations aimed at obtaining such consent.

IV.  The World Heritage Convention and Indigenous Peoples The categories of properties included within the scope of application of the World Heritage Convention—​including both cultural (see the commentary on Art. 1 by Yusuf ) and natural heritage (see the commentary on Art. 2 by Redgwell)—​encompass a number of different spaces or areas located in the traditional territories of Indigenous peoples or even corresponding to such territories. Cultural heritage—​like paintings, elements or structures of an archaeological nature, inscriptions, groups of buildings, works of man, or the combined works of nature and man—​may well be the product of the cultural evolution of Indigenous communities in their ancestral lands. Additionally, natural properties 24   See International Law Association (ILA), Committee on the Rights of Indigenous Peoples, Final Report (Sofia Conference 2012), available at https://www.ila-hq.org/en_GB/committees/rights-of-indigenous-peoples (accessed 19 June 2023), p. 16.

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of all the kinds listed in Article 2 of the Convention may be located in territories traditionally belonging to Indigenous peoples. This makes it clear that the implementation of the Convention may produce a huge impact on the rights of Indigenous peoples, in consideration of the fact that traditional lands are the core of the cultural identity and distinctiveness of such peoples, and even of their very existence as distinct communities, including from an intergenerational perspective. In particular, of the 218 natural properties which at time of writing are inscribed on the World Heritage List—​not counting the 39 mixed properties—​about 100, or possibly even more, are of special significance for Indigenous peoples.25 Among the pertinent examples one can refer to the Kenya Lake System in the Great Rift Valley,26 the Kakadu National Park in Australia,27 the Laponian Area in Northern Sweden,28 the Rapa Nui National Park in Chile,29 the Shiretoko Peninsula in Japan,30 the Nahanni National Park in Canada,31 and the Kaeng Krachan Forest Complex in Thailand.32 Unless the Indigenous communities concerned are adequately involved in the whole process of inscription of properties located in—​or corresponding to—​their traditional lands on the World Heritage List, as well as in their management after inscription—​with all relevant decisions based on their free, prior, and informed consent—​their inclusion in the List may well produce serious violations of Indigenous peoples’ land rights, in addition to their rights related to their own cultural heritage. The operation of the World Heritage Convention may lead to the encroachment of Indigenous peoples’ rights in several ways. This may happen, for instance, following a decision by the territorial government to propose the inscription on the World Heritage List of a property of special significance for an Indigenous community without obtaining the free, prior, and informed consent of that community. The opposite situation may also occur, that is the refusal by the territorial government to propose for inscription on 25   See Stefan Disko, Helen Tugendhat, and Lola García-​Alix, ‘World Heritage Sites and Indigenous Peoples’ Rights: An Introduction’, in Stefan Disko and Helen Tugendhat (eds) World Heritage Sites and Indigenous Peoples’ Rights (IWGIA, 2014) p. 3. The authors refer to about 100 Indigenous World Heritage sites in general (including cultural, natural, and mixed sites); however, many new properties have been added to the World Heritage List since the time of its publication and it is not unreasonable to assume that at present, of the 218 natural sites inscribed on the List, more than 100 are of significance for Indigenous peoples. At the same time, it should be borne mind that, as emphasized by the same authors, ‘establishing an exact number of such “indigenous sites” would require careful analysis’; and, as a consequence, the number indicated in the text should not be considered exact although it undoubtedly corresponds to a reasonable number of natural sites inscribed on the World Heritage List which may be considered of special significance for Indigenous peoples. 26  See http://​whc.une​sco.org/​en/​list/​1060 (accessed 3 April 2023). See, on this site, Korir Sing’Oei Abraham, ‘Ignoring Indigenous Peoples’ Rights: The Case of Lake Bogoria’s’, in Disko and Tugendhat (note 25) p. 163. 27  See http://​whc.une​sco.org/​en/​list/​147 (accessed 3 April 2023). On this site, see Justin O’Brien, ‘No Straight Thing; Experiences of the Mirarr Traditional Owners of Kakadu National Park with the World Heritage Convention’, in Disko and Tugendhat (note 25) p. 313. 28  See http://​whc.une​sco.org/​en/​list/​774 (accessed 3 April 2023). See Carina Green, ‘The Laponian World Heritage Area: conflict and Collaboration in Swedish Sápmi’, in Disko and Tugendhat (note 25) p. 85. 29  See http://​whc.une​sco.org/​en/​list/​715 (accessed 3 April 2023). On this site, see Erity Teave and Leslie Cloud, ‘Rapa Nui National Park, Cultural World Heritage: The Struggle of the Rapa Nui People for their Ancestral Territory and Heritage, for Environment Protection, and for Cultural Integrity’, in Disko and Tugendhat (note 25) p. 403. 30  See http://​whc.une​sco.org/​en/​list/​1193 (accessed 3 April 2023). See, on this site, Ono Yugo, ‘Shiretoko Natural World Heritage Area and the Ainu People’, in Disko and Tugendhat (note 25) p. 269. 31  See http://​whc.une​sco.org/​en/​list/​24 (accessed 3 April 2023). On this site, see Laura Pitkanen and Jonas Antoine, ‘Protecting Indigenous Rights in Denendeh: The Dehcho First Nations and Nahanni National Park Reserve’, in Disko and Tugendhat (note 25) p. 423. 32  See https://​whc.une​sco.org/​en/​list/​1461 (accessed 3 April 2023).

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the List a property that the Indigenous people concerned wish to be inscribed. It is true that the choice of whether or not a given property should be proposed for inscription on the World Heritage List is an exclusive prerogative of the territorial government—​which may therefore have legitimate reasons for refusing to propose an Indigenous property for inscription on the List; nevertheless, depending on the specific circumstances of each case and on the reasons determining such refusal, the latter may actually translate into a form of discrimination against the Indigenous community(ies) concerned. In practice, however, the worst implications on Indigenous peoples’ rights are usually determined by those situations in which, following the inscription of one of their properties on the World Heritage List, the territorial government establishes a management regime of such property which does not take proper account of the rights of the community concerned, making it impossible for such a community to continue to enjoy its rights and to preserve and transmit its values to future generations. In some cases, even the very structure of the World Heritage Convention, or its ontological pillars, are inadequate to properly fit with the rights and needs of Indigenous peoples. In particular, the distinction between cultural and natural heritage has determined in practice the effect that ‘the vast majority of World Heritage sites in indigenous peoples’ territories are listed as natural sites, without any recognition of associated indigenous heritage values . . . This . . . can . . . have significant adverse effects on the livelihoods, living cultural heritage and well-​being of the indigenous peoples concerned.’33 Furthermore, the parameter defining the scope of application of the World Heritage Convention, reserved to cultural and natural heritage of outstanding universal value, may determine serious threats for Indigenous peoples’ rights as well. This requirement is defined by the Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines)34 as meaning ‘cultural and/​or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole.’35 It is a concept based on exterior values—​such as artistic, aesthetic, architectural, historical, or scientific significance—​which are presumed to be perceived by the whole of humanity, or the most part of it. It thus maximizes an objective perception of value, not including the values which typically characterize the lives of Indigenous peoples. The latter are in fact values of predominantly spiritual and cultural (in holistic terms) character, whose connection with cultural and natural heritage is mainly to be evaluated under a subjective perspective; it is, indeed, a very intimate connection that in most cases is not properly perceivable by people external to the community concerned, although every expression of Indigenous peoples’ cultural heritage undoubtedly represents a unique and unrepeatable element of the cultural variety and diversity of the world. In many cases, properties inscribed on the World Heritage List represent, for Indigenous peoples, their Motherland, the places where the spirits of the ancestors and the divinities

33  See Stefan Disko, ‘Indigenous Cultural Heritage in the Implementation of the UNESCO’s World Heritage Convention: Opportunities, Obstacles and Challenges’, in Alexandra Xanthaki et al. (eds) Indigenous Peoples’ Cultural Heritage: Rights, Debates, Challenges (Brill-​Nijhoff, Leiden, 2017) p. 44. 34   UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​01, of 31 July 2021, available at https://whc.unesco.org/en/guidelines/ (accessed 19 June 2023). 35   ibid, para 49.

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reside and accompany the members of the community in their earthly journey. These elements of connection cannot definitely be perceived through adopting a purely objective approach, and the focus on outstanding universal value may produce the practical outcome of excluding ‘communities from their own heritage, allowing States to retain their monopoly of defining what heritage is, and whether it is worth protecting’.36 This is the reason why, for instance, in 2015 the EMRIP noted that ‘[t]‌he World Heritage Committee should adopt changes to the criteria and regulations for the assessment of “outstanding universal value” so as to ensure that the values assigned to World Heritage sites by indigenous peoples are fully and consistently recognized as part of their outstanding universal value’.37 In recent decades, a growing awareness has developed about the issue just described. In 1994, the Nara Document on Authenticity was adopted, which is today attached to the Operational Guidelines, in Annex 4. This document recognizes at paragraph 8 that ‘[r]‌esponsibility for cultural heritage and the management of it belongs, in the first place, to the cultural community that has generated it, and subsequently to that which cares for it’. Certainly this is not enough to properly address the problem in discussion. In the light of contemporary developments in international law concerning Indigenous peoples’ rights, the World Heritage Convention can even be considered inconsistent with rules of customary international law of recent formation, particularly that recognizing the right of Indigenous peoples to cultural identity, which embraces the right to all elements indispensable to the preservation and transmission of such an identity, especially cultural heritage.38 This inconsistency could be prevented through an evolutive interpretation of the rules of the Convention, which would ensure coherence of the latter with the said right, as it is expressed in particular in the relevant articles of the UNDRIP, especially Articles 1939 and 31. These articles—​and, in particular, the provisions of customary international law corresponding to them—​should be considered as ‘relevant rules of international law applicable in the relations between the parties’ to the World Heritage Convention, in accordance with the rule of treaty interpretation codified by Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties40. In practical terms, this would translate into a duty of States Parties to the World Heritage Convention to obtain the consent of the Indigenous community concerned before proposing a property of special significance for 36   See Lucas Lixinski, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’ in Federico Lenzerini and Ana Filipa Vrdoljak, International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing, Oxford, 2014) p. 200 (although the author refers to intangible cultural heritage, his reflection well suits the reality of the Convention). On this issue, see also Disko (note 33) pp. 55 ff. 37   See Expert Mechanism advice No. 8 (2015), ‘Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage’, para. 29. See also the 2014 IUCN World Parks Congress, ‘The Promise of Sydney’, available at https://​whc.une​sco.org/​docum​ent/​139​839 (accessed 22 April 2023), according to which ‘[t]‌he World Heritage Convention should fully and consistently recognise Indigenous Peoples’ cultural values as universal, and develop methods for recognition and support for the interconnectedness of natural, cultural, social, and spiritual significance of World Heritage sites, including natural and cultural sites and cultural landscapes’ (p. 6). 38  See ILA, Committee on the Rights of Indigenous Peoples, Interim Report (The Hague Conference 2012), available at https://www.ila-hq.org/en_GB/committees/rights-of-indigenous-peoples (accessed 19 June 2023), p. 51; see also ILA Res. No. 5/​2012, para. 6. 39   Art. 19 UNDRIP reads: ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’ 40   1155 UNTS 331.

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such a community for inscription on the World Heritage List. Also, Indigenous peoples should be fully involved in the management of the properties of special interest for them after they have been inscribed on the List. Unfortunately, at the time of writing, in the context of the implementation of the World Heritage Convention, in many cases the level of consideration for the rights of Indigenous peoples is still far from satisfactory. For this reason, in recent years representatives of Indigenous peoples and human rights-​monitoring bodies have raised their voice advocating a shift in the said trend. For instance, in 2011, the UN Expert Mechanism on the Rights of Indigenous Peoples urged UNESCO to: enable and ensure effective representation and participation of indigenous peoples in its decision-​ making, especially with regard to the implementation and supervision of UNESCO Conventions and policies relevant to indigenous peoples, such as the 1972 World Heritage Convention. Robust procedures and mechanisms should be established to ensure indigenous peoples are adequately consulted and involved in the management and protection of World Heritage sites, and that their free, prior and informed consent is obtained when their territories are being nominated and inscribed as World Heritage sites.41

In the same year, the African Commission on Human and Peoples’ Rights (ACHPR) denounced the fact that ‘there are numerous World Heritage sites in Africa that have been inscribed without the free, prior and informed consent of the indigenous peoples in whose territories they are located and whose management frameworks are not consistent with the principles of the [UNDRIP]’.42 The ACHPR also stressed that the inscription of Lake Bogoria on the World Heritage List (as a portion of the site of the Kenya Lake System in the Great Rift Valley) ‘without involving the Endorois [Indigenous community] in the decision-​making process and without obtaining their free, prior and informed consent . . . constitutes a violation of [their human rights]’.43 It consequently called on the World Heritage Committee and UNESCO ‘to review and revise current procedures . . . in order to ensure that the implementation of the [Convention] is consistent with the UN Declaration on the Rights of Indigenous Peoples and that indigenous peoples’ rights, and human rights generally, are respected, protected and fulfilled in World Heritage areas’,44 as well as ‘to consider establishing an appropriate mechanism through which indigenous peoples can provide advice to the World Heritage Committee and effectively participate in its decision-​making processes’.45 It finally asked ‘the Government of Kenya, the World Heritage Committee and UNESCO to ensure the full and effective participation of the Endorois in the decision-​making regarding the “Kenya Lake System” World Heritage area, through their own representative institutions’.46 In taking this position, the ACHPR reiterated its own findings in the communication concerning the Endorois community, in which it found the government of Kenya responsible of the violation of Articles 1 (obligation to recognize rights, duties, and freedoms), 8 (right to freedom of conscience, profession, and free practice of religion), 14 (right to property), 17 (right to education), 41   See Human Rights Council, ‘Expert Mechanism Advice No. 2 (2011): Indigenous Peoples and the Right to Participate in Decision-​making’, available at https://​www.ohchr.org/​Docume​nts/​Iss​ues/​IPeop​les/​EMRIP/​ Advi​ce2_​Oct2​011.pdf (accessed 3 April 2023), para. 38. In a similar vein, see Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc. A/​67/​301, 12 August 2012, paras 33–​42. 42  See ACHPR, Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage Site, Doc. ACHPR/​ Res.197(L)2011, 5 November 2011, Preamble, eighth recital. 43 44 45 46   ibid, para 1.   ibid, para. 2.   ibid, para. 3.   ibid, para. 5.

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21 (right of peoples to freely dispose of their wealth and natural resources), and 22 (right of peoples to their economic, social, and cultural development) of the African Charter on Human and Peoples’ Rights,47 due to the forced eviction of such a community from Lake Bogoria.48 In the same communication, the ACHPR also ordered Kenya, inter alia, to recognize the rights of ownership to the Endorois and return their ancestral land to them, to ensure that the Endorois community ‘has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle’. It also ordered the respondent government to pay ‘adequate compensation to the community for all the loss suffered’.49 In 2012, the International Expert Workshop on the World Heritage Convention and Indigenous Peoples, organized by IWGIA, released a document entitled ‘World Heritage and Indigenous Peoples—​A Call To Action’,50 in which it expressed a number of principles. They include, among others: the request that the ‘implementation of the World Heritage Convention [is] consistent with the [UNDRIP] and relevant international and regional human rights instruments and standards’; the need that ‘Indigenous peoples [are] recognized as rights-​holders and not merely stakeholders in any decisions affecting them’; the requirement that ‘Indigenous peoples [are] fully consulted and directly involved in the identification, decision-​making and management of World Heritage sites within or affecting their lands, territories and resources’; and the prerequisite that ‘Indigenous peoples’ free, prior and informed consent [is] obtained when their territories are being identified, nominated or inscribed as World Heritage site’. In 2015, the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) denounced that when, in 2012, the Western Ghats (India)51 and the Sangha Trinational (Congo/​Cameroon/​Central African Republic)52 were inscribed on the World Heritage List, ‘in both situations, serious objections were raised about the lack of any meaningful participation of indigenous peoples living in the respective areas. In both cases, there was a blatant lack of respect for the free, prior and informed consent of the concerned communities, as the affected indigenous peoples had not even seen the submitted nomination documents, which had not been made publicly available’.53 The EMRIP also noted that: [i]‌n many nature-​protected areas, including areas inscribed on the World Heritage List, narrow restrictions are imposed on traditional practices and activities, such as hunting, gathering, farming or animal husbandry, in violation of the cultural and subsistence rights of indigenous peoples. To be included on the World Heritage List, sites must be of ‘outstanding universal value’, a concept which can lead to management frameworks that prioritize the protection of those heritage aspects at the expense of the land rights of indigenous peoples. As a result, the protection of world heritage can undermine indigenous peoples’ relationship with their traditional lands, territories and   CAB/​LEG/​67/​3 rev. 5, 21 ILM 58 (1982).  See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council)/​Kenya, Communication No. 276/​03, 25 November 2009, available at https://www.escr-net. org/sites/default/files/Endorois_Decision.pdf (accessed 20 June 2023), operative para. 49 50  ibid.   Available at https://​www.fao.org/​3/​bp9​42e/​bp9​42e.pdf (accessed 22 April 2023). 51  See https://​whc.une​sco.org/​en/​list/​1342 (accessed 3 April 2023). 52  See https://​whc.une​sco.org/​en/​list/​1380 (accessed 3 April 2023). 53   Human Rights Council, Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage: Study by the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/​ HRC/​30/​53, 19 August 2015, para. 51. 47 48

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resources, as well as their livelihoods and cultural heritage, especially in sites where the natural values are deemed to be of outstanding universal value but the cultural values of indigenous peoples are not taken into account.54

The EMRIP further added that ‘States should ensure that the benefits arising from the use of the lands, territories and resources of indigenous peoples as World Heritage sites are defined by and genuinely accrue to the indigenous peoples concerned, in a fair and equitable manner’,55 that the ‘World Heritage Committee . . . take effective measures to ensure that the protection of World Heritage does not undermine indigenous peoples’ relationship with their traditional lands, territories and resources, their livelihoods and their rights to protect, exercise and develop their cultural heritage and expressions’,56 and that the World Heritage Convention procedures were reviewed ‘with the full and effective participation of indigenous peoples, to ensure that the implementation of the World Heritage Convention is consistent with the [UNDRIP]’.57 Last but not least, in 2016, the Permanent Forum on Indigenous Issues (PFII) noted that it had: received numerous communications from indigenous organizations regarding violations of indigenous peoples’ rights in processes of the [World Heritage] Convention . . . Existing participation procedures are not in accordance with international standards related to the right of indigenous peoples to participate in decision-​making in matters that would affect their rights. There is no effective way for indigenous peoples to bring concerns regarding World Heritage sites directly to the attention of the World Heritage Committee.58

Following these and other pleas, beginning in 2015 the World Heritage Committee made a number of significant changes to the Operational Guidelines. The latter, in particular, emphasize that: [e]‌ffective and inclusive participation in the nomination process of local communities, indigenous peoples, governmental, non-​governmental and private organizations and other stakeholders is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property. States Parties are encouraged to . . . prepare nominations with the widest possible participation of stakeholders and shall demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been obtained, through, inter alia making the nominations publicly available in appropriate languages and public consultations and hearings.59

States parties are also encouraged ‘to mainstream into their programmes and activities related to the World Heritage Convention’, inter alia, ‘the UNESCO policy on engaging with indigenous peoples’.60 Indigenous peoples are considered partners of states and of   ibid, para. 55. 56 57   ibid, Annex, para. 16.   ibid, para. 27.   ibid, para. 28. 58   See United Nations Permanent Forum on Indigenous Issues, Study on how States exploit weak procedural rules in international organizations to devalue the United Nations Declaration on the Rights of Indigenous Peoples and other international human rights law, UN Doc. E/​C.19/​2016/​4, 19 February 2016, para. 32 (emphasis added). 59   See para. 123. See consistently, the explanatory note attached to s. 5.a(ii) of the Format for the Nomination of Properties for Inscription on the World Heritage List, included in the Operational Guidelines as Annex 5, entitled ‘Indigenous Peoples’. See also Operational Guidelines, para. 211(d), proclaiming the objective of increasing ‘equitable, inclusive and effective participation of local and national populations, including indigenous peoples, in the protection and presentation of heritage’. 60   Operational Guidelines, para. 14bis. 54 55

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the World Heritage Committee ‘in the protection and conservation of World Heritage’, and the UNDRIP is explicitly mentioned as the legal instrument of reference in that respect.61 Furthermore, the Operational Guidelines encourage States Parties: to prepare their Tentative Lists with the full, effective and gender-​balanced participation of a wide variety of stakeholders and rights-​holders, including . . . local communities, indigenous peoples . . . In the case of sites affecting the lands, territories or resources of indigenous peoples, States Parties shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before including the sites on their Tentative List.62

In addition, ‘States Parties are responsible for implementing effective management activities for a World Heritage property. States Parties should do so in close collaboration with . . . local communities and indigenous peoples . . . by developing, when appropriate, equitable governance arrangements, collaborative management systems and redress mechanisms’.63 In fact: [a]‌n effective management system depends on the type, characteristics and needs of the nominated property and its cultural and natural context . . . In recognizing [this] diversity . . . common elements of an effective management system could include: a) a thorough shared understanding of the property, its universal, national and local values and its socio-​ecological context by all stakeholders, including local communities and indigenous peoples.64

The Operational Guidelines also recognize that ‘no area is totally pristine and that all natural areas are in a dynamic state, and to some extent involve contact with people. Biological diversity and cultural diversity can be closely linked and interdependent and human activities, including those of traditional societies, local communities and Indigenous peoples, often occur in natural areas’.65 Consistently, it is necessary to ensure participation by Indigenous peoples in promoting sustainable use of World Heritage properties, which: may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable and . . . may enhance the quality of life and well-​being of communities concerned . . . Legislations, policies and strategies affecting World Heritage properties should . . . promote and encourage the effective, inclusive and equitable participation of the communities, indigenous peoples and other stakeholders concerned with the property as necessary conditions to its sustainable protection, conservation, management and presentation.66

As regards national capacity-​building strategies and regional cooperation, ‘States Parties are encouraged to develop educational and capacity building programmes that harness the reciprocal benefits of the Convention for heritage and society. The programmes may be . . . aimed in particular at medium/​small/​micro scale levels, to promote sustainable and inclusive economic benefits for local communities and indigenous peoples . . .’67 Indigenous peoples are also explicitly mentioned by the Operational Guidelines with 61   ibid, para. 40. See also para. 12, according to which ‘States Parties to the Convention are encouraged to adopt a human-​rights based approach, and ensure gender-​balanced participation of a wide variety of stakeholders and rights-​holders, including . . . local communities, indigenous peoples . . . in the identification, nomination and protection of World Heritage properties’. 62 63   ibid, para. 64.   ibid, para. 117. 64   ibid, paras 110–​111. See also the explanatory note attached to s. 5.a(ii) of the Format for the Nomination of Properties for Inscription on the World Heritage List. 65 66 67   Operational Guidelines, para. 90.   ibid, para. 119.   ibid, para. 214bis.

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respect to research activities68 and international assistance.69 Finally, it is worth mentioning that one of the strategic objectives (the so-​called ‘5Cs’) pursued by the World Heritage Committee consists in enhancing the role of communities—​which obviously include Indigenous communities—​in the implementation of the World Heritage Convention.70

V.  The Path Is Still Uphill The recent amendments to the Operational Guidelines certainly represent a positive development towards the effective realization of the rights of Indigenous peoples in the context of the operation of the World Heritage Convention. However, they are far from being sufficient. As noted by the PFII, ‘obtaining Indigenous peoples’ consent is still not [considered as] a mandatory requirement, and the extent to which Indigenous peoples are involved in nomination processes remains at the discretion of the relevant States . . . [t]‌he same concern applies to the management of already inscribed sites’.71 This remains substantially true despite the fact that the most recent amendments to the Operational Guidelines—​as described in the previous section—​use language which is much more mandatory than in the past, stating, for instance, that States Parties to the World Heritage Convention are ‘encouraged to prepare nominations with the widest possible participation of stakeholders and shall demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been obtained’.72 Unfortunately, recent ‘discussions within the [World Heritage Committee have] revealed strong resistance by many States against adopting real procedural safeguards for the rights of Indigenous peoples; several States even contested the very concept of “indigenous peoples” including some States that have endorsed the [UNDRIP], such as France or Senegal’.73 The recent example of the Kaeng Krachan Forest Complex (KKFC) in Thailand,74 inscribed on the World Heritage List in 2021, provides an evidence that—​despite the many provisions included in the Operational Guidelines, as described in the previous section—​ states continue to disregard the rights and interests of Indigenous peoples in implementing the World Heritage Convention, as well as that a property can be inscribed on the List even when such rights have been blatantly violated. In fact, it was reported that the nomination process of the KKFC was accompanied by blatant human rights abuses against the Karen, which were strongly denounced by multiple human rights bodies. The human rights violations included violent forced evictions of the Karen communities from their traditional lands, burning of Karen houses, unlawful arrests and prosecutions, and even murder and enforced disappearance of human rights defenders. The problems are ongoing. The Karen communities were never able to meaningfully participate in the nomination process, and no efforts were 68   See para. 215, stating that ‘States Parties are encouraged to support scientific studies and research methodologies, including traditional and indigenous knowledge held by local communities and indigenous peoples, with all necessary consent’. 69   See para. 239(j), according to which, among the considerations that should govern the decisions of the World Heritage Committee in granting international assistance, ‘the inclusive nature of the activity, in particular as concerns gender equality and the involvement of local communities and indigenous peoples’, is included. 70   See para. 26(5). 71   See Study on How States Exploit Weak Procedural Rules (note 58) paras 88 ff. 72   See Operational Guidelines, para. 123 (emphasis added). 73   ibid, para. 89 (referring to the 2015 session of the World Heritage Committee). 74  See https://​whc.une​sco.org/​en/​list/​1461 (accessed 4 April 2023).

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made to reflect and recognize their relationship with the land and their cultural values within the ‘Outstanding Universal Value’ of the site. On the contrary, some of the actions during the nomination process amounted to an intentional destruction of Karen cultural heritage . . . The Karen communities, as well as multiple UN human rights bodies, repeatedly urged the Committee not to approve the nomination until the human rights concerns had been resolved, the Karen had been able to meaningfully participate in the nomination process, their land rights had been recognized, their traditional livelihoods protected, and a truly collaborative management system established. However, the Committee chose to ignore these pleas and decided to inscribe the KKFC in spite of the ongoing human rights abuses. Only one Committee Member, Norway, spoke up against the decision during the Committee’s debate, whereas the other 20 States members of the Committee either endorsed the decision or kept silent.75

Even IUCN noted that, in spite of some ‘overall progress’, ‘however . . . concerns raised by local communities around human rights issues within the site had not been resolved’.76 However, IUCN eventually acknowledged ‘the World Heritage Committee’s decision to inscribe the Kaeng Krachan Forest Complex onto the World Heritage List, and the commitment expressed by the State Party of Thailand to continue the work in progress relating to the site’,77 despite the fact that ‘[r]‌especting the rights of indigenous peoples and local communities in conservation is a clearly stated policy of the World Heritage Convention and is central to IUCN’s mission and values’.78 It is also notable that ‘Indigenous representatives were not even allowed to take the floor and express their concerns before the Committee adopted its decision . . . [and] [t]he UN Special Rapporteur on the Rights of Indigenous Peoples, Francisco Cali, was also not given the floor to present his views before the decision was adopted’.79 In contrast, virtuous examples also exist for respectful and equitable approaches towards World Heritage properties consistent with the rights, needs, and will of the Indigenous peoples concerned. Such examples should be recognized and used as wise or best practices to guide or be understood as a model for similar and future cases, for instance, the process that spawned and established the Ilulissat Icefjord.80 Significantly, the political, legal, and distinct cultural contexts must be recognized as a crucial starting point. The Inuit of Ilulissat are organized within the political subdivision of the town of Ilulissat as well as the Avannaata Kommunia81 or the northernmost municipality of the west coast of Kalaallit Nunaat, in Greenland. Presently, Avannaata Kommunia is one of the five municipalities of Greenland, covering 522,700 km2 with a population of approximately 10,700. The current government of Greenland emerged as an Indigenous institution in the 1978 Greenland Home Rule Act,82 which was the result of negotiations between the Danes and the Inuit of Greenland, ultimately transferring power and control over education, economy, health, ‘domestic’ policy, and infrastructure among other areas of 75   See IWGIA, ‘UNESCO World Heritage Committee tramples on human rights’ (28 July 2021), available at https://​www.iwgia.org/​en/​news/​4441-​une​sco-​world-​herit​age-​commit​tee-​tramp​les-​on-​human-​rig​hts.html (accessed 4 April 2023). 76   See ‘IUCN statement on the inscription of Kaeng Krachan Forest Complex onto the World Heritage List’ (29 July 2021), available at https://​www.iucn.org/​news/​secr​etar​iat/​202​107/​iucn-​statem​ent-​insc​ript​ion-​kaeng-​ krac​han-​for​est-​comp​lex-​world-​herit​age-​list (accessed 4 April 2023). 77 78 79 80  ibid.  ibid.   See IWGIA (note 75).   See Decision 28 COM 14B.8. 81  See https://​avanna​ata.gl/​ (accessed 13 April 2023). 82   Home Rule Act of 29 November 1978 (entered into force on 1 May 1979), Act No. 577.

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jurisdiction. The only exceptions are foreign affairs, currency, and defence and security. In addition, a joint commission on the exploitation of subsurface resources was created until 1998, when the Greenland government gained full authority over mineral resource development.83 The Parliament consists of 31 members who appoint both ministerial positions and the Premier. In addition, Greenland has representation in the Danish Parliament. In 2000, Greenland Home Rule, as part of the Danish and Greenlandic implementation of the UNESCO World Heritage Convention, decided to nominate Ilulissat Icefjord for inclusion in the World Heritage List as a natural property of outstanding universal value. They did so on the basis of the area being scientifically unique as well as its extreme beauty. The decision was made with the people of Ilulissat and national authorities. To gain the nomination, dialogue and debate ensued with the people of the community and also consultation with national and international stakeholders. The result of the debate and consultations was the need to ensure principles and priorities for establishing long-​term protection of the area as well as management driven through local Inuit and their knowledge of the region. These foundational elements were at the heart of the nomination. The overall management plan84 was discussed through public meetings in Ilulissat, and attended by the local population. The municipality subsequently adopted the plan. In 2002, Ilulissat Icefjord (also officially in Greenlandic called Kangia after a hearing in 2009) entered the Danish Tentative list for UNESCO World Heritage sites. And in 2004 Kangia, as the first property in Greenland, was inscribed on the World Heritage List. At the same time, the protection of the natural property became nationally anchored through the National Conservation Order for Ilulissat Icefjord, ‘Fredningsbekendtgørelsen’, as one of six areas in Greenland specially protected under the Nature Conservation Act for Greenland. The conservation order intends to protect and regulate activities in the area consistent with a wide range of parameters concerning the land, waters, and the air. Central elements for the Inuit of the community are hunting, fishing, and harvesting, which have constantly been crucial to the people for their livelihood and cultural connection to the area. Furthermore, sustainable commercial fishing remains the most important profession in the municipality. Therefore, such harvesting, hunting, and fishing are permitted in the protected area based on provisions that are consistent with the National Conservation Order. In this way, the Indigenous peoples have maintained their long traditional, cultural economy of hunting, fishing, and other harvesting, as well as their adaptation to sustainable commercial fishing livelihoods. Both have smoothly aligned with the designation of this extraordinary and beautiful World Heritage site. The profound relationship that Inuit have to this area is thereby safeguarded in all its dimensions, from directly participating in the nomination process to determining the priorities and conservation of the region, to their food security, to their continuing economic development in a

83   An amendment to Mineral Resources Act, effective 1 July 1998, was included in the Consolidated Act No. 368 of 18 June 1998 on Mineral Resources in Greenland. 84   Executive Order on Protection, Greenland Home Rule Government Executive Order No. 10 of 15 June 2007 on protection of Ilulissat Icefiord. The first provision, entitled ‘Purpose’ states that ‘Ilulissat Icefiord and a surrounding area located in the Municipality of Ilulissat are zoned as protected area for the purpose of protecting its scenic beauty and the area’s natural history, cultural history and other natural values’ (emphasis added).

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seamless mosaic of necessary elements for the success of a UNESCO World Heritage Convention site. Another aspect that should be promoted would be emulating the admirable example of certain states making mandatory under domestic law the requirement of obtaining the free, prior, and informed consent of the Indigenous peoples concerned before inscribing a property on the World Heritage List. An example of this noteworthy approach is provided by the United States, whose National Historic Preservation Act of 1966, as amended, establishes that ‘[n]‌o non-​Federal property may be nominated by the Secretary of the Interior to the World Heritage Committee for inclusion on the World Heritage List unless the owner of the property concurs in writing to such nomination’,85 presupposing that no property belonging to Native tribes located on US territory may be proposed to the World Heritage Committee for inscription on the List without the written consent of the interested Native community (although this is limited to officially recognized ‘Tribal lands’ under domestic law).86 A similar approach is shared by other States Parties to the World Heritage Convention, including Australia, Brazil, Malaysia, Peru, the Philippines, and Venezuela.87 It is clear, however, that the fact of leaving the decision on whether and to what extent Indigenous communities should be involved in the management of World Heritage properties—​pre-​and post-​inscription on the World Heritage List—​to the discretion of states does not offer any guarantee that their rights are or will be adequately protected. The Operational Guidelines should therefore be further amended by inserting rules which are clearly and indisputably mandatory, commanding states to properly involve Indigenous peoples in the whole process of inscription of a property of their concern on the World Heritage List and in its subsequent management. These rules should include the requirement that the free, prior, and informed consent of the Indigenous community concerned is obtained as a necessary condition for inscription of a property traditionally belonging to it on the List. Also, the World Heritage Committee should have the courage to refuse inscription of properties when full respect of the rights of Indigenous peoples is not ensured by the proposing state. More generally, all possible efforts should be put in practice with a view to making the system of the World Heritage Convention consistent with international legal rules concerning the rights of Indigenous peoples, particularly those enshrined in the UNDRIP, the ADRIP, as well as in customary international law, especially with the rules relating to consultation and free, prior, and informed consent. In this regard, it should not be forgotten that UNESCO (with its bodies)—​as a specialized agency of the United Nations—​has a specific duty to ‘contribute to the full realization of the provisions of [the UNDRIP] . . . [including through the establishment of ] [w]‌ays and means of ensuring participation of indigenous peoples on issues affecting them’, as well as to ‘promote respect for and full application of the provisions . . . and follow up the effectiveness of this Declaration’, pursuant to, respectively, Articles 41 and 42 UNDRIP. For the moment, in substance, the path for Indigenous peoples remains uphill.

  16 USC 470, s. 470a-​1, available at https://​www.gsa.gov/​cdnsta​tic/​NHPA.pdf (accessed 4 April 2023).   See International Law Association, Final Report (n 24) p. 18. 87  See Susanne D. Raymond, ‘World Heritage and the movement towards Free, Prior and Informed Consent’, Poster presented at MiNaH Conference, Clermont-​Ferrand, France (2013) p. 3. 85 86

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The World Heritage Convention and the Law of the Sea Patrizia Vigni *

I. Introduction  II. The World Heritage Convention and Jurisdictional Criteria for the Protection of Marine Cultural and Natural Sites  III. The Interaction between the Substantive Obligations of the World Heritage Convention and other International Norms relating to the Protection of Marine Cultural and Natural Heritage  IV. Conclusion 

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I. Introduction No norms of the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) refer to the seas. Only Article 11, paragraph 4 of the Convention mentions ‘changes in water level’ and ‘tidal waves’ as possible threats for the World Heritage sites that may justify the inscription of these sites in the List of World Heritage in Danger. However, the definitions of ‘World Cultural Heritage’ and ‘World Natural Heritage’, which are provided for respectively in Articles 1 and 2 of the World Heritage Convention, are broad enough to encompass marine sites that may be significant for the purposes of the Convention. Some maritime areas, either of natural or cultural value, have been already inscribed on the World Heritage List according to Article 11, paragraph 2 of the Convention, for example the sites of Malpelo Sanctuary, Taputapuātea, and Papahānaumokuākea.1 In addition, the outstanding value of other zones, which have been primarily incorporated in the World Heritage List as land sites, also stems from the exceptional characteristics of the marine areas surrounding these territories. For example, some Australian sub-​Antarctic islands are considered as parts of an exceptional terrestrial and marine ecosystem due to the presence of active volcanos.2 Similarly, the historic value of the Red Bay Basque Whaling Station is also determined by the presence of some ancient whaling shipwrecks that are situated under the waters facing the coastal territory where the station is positioned.3 *  Associate Professor of International Law, University of Siena, Italy. 1   Malpelo Fauna and Flora Sanctuary, which is located off the Colombian coastline, was enlisted as a natural heritage site in 2006; Taputapuātea is a cultural heritage site, which includes both a large part of the Pacific Ocean and several French islands where mā’ohi civilization has been present for more than one thousand years; Papahānaumokuākea encompasses some islands and marine areas including some parts of the US continental shelf. It was inscribed as both a cultural and a natural site in 2010. See https://​whc.une​sco.org/​en/​list/​ (last accessed 30 January 2022). 2   Heard and McDonald Islands are the only sub-​Antarctic volcanic islands that are still active. They were listed as natural heritage sites in 1997 for their unique geomorphic and glacial formation. See ibid. 3   Red Bay Basque Whaling Station has been a cultural heritage site since 2013, which includes both the Canadian territory where the station is located and the territorial sea under which ancient shipwrecks still lie. See ibid.

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Therefore, the system of protection that the World Heritage Convention establishes is not only potentially applicable to the conservation of marine areas, but it is already effective with respect to some marine areas of outstanding universal value, either from the natural or cultural perspective. However, the jurisdictional criteria by means of which the World Heritage Convention is enforced with respect to the World Heritage that is situated at sea may not entirely coincide with the rules governing the World Heritage that is on land. In fact, the powers that states may exercise over marine areas vary according to the diverse maritime zones that are identified under the international law of the sea. The state, which is entitled to designate a marine site as a part of the World Heritage and to receive international assistance for it, must therefore be determined according to the law of the sea. Most significantly, substantive adjustments of the norms of the Convention are necessary to allow their application to the World Heritage that is situated in maritime areas that are beyond state jurisdiction, such as the international seas and the deep seabed. Moreover, while the Convention may be considered as the major legal instrument for the protection and conservation of the World Heritage on land, sites of outstanding cultural or natural value that are located at sea may also be subject to the rules of other international treaty regimes of global character. Thus, overlaps may occur between the norms of the Convention and other international treaties. A first example of these overlays involves the numerous norms of the law of the sea, whether of a customary or treaty nature, laying down the obligation of safeguarding the marine environment and species, both in a general and detailed manner. Among these norms, the provisions of the 1982 UN Law of the Sea Convention (UNCLOS)4 are worth examining. In addition, even within the UNESCO framework, the World Heritage Convention might run into overlaps with the provisions of the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage,5 which should be considered as the primary legal instrument to regulate the conservation of underwater cultural heritage. The latter Convention implements the norms of the UNCLOS concerning the conservation of cultural heritage that is located at sea6 in line with the universal approach that is also adopted in the World Heritage Convention. However, the small number of states that have ratified the 2001 Underwater Cultural Heritage Convention does not ensure its broad and effective enforcement. Thus, the application of the World Heritage Convention may also be beneficial with respect to underwater cultural heritage. Finally, some regional and special agreements may be considered crucial for the management of the marine environment in spite of their circumscribed scope by virtue of the general interests that they aim at safeguarding. For example, the Antarctic Treaty System7 4   United Nations, Convention on the Law of the Sea (adopted 10 December 1982, in force 1 November 1994) 1833 UNTS 392 (UNCLOS). 5   UNESCO, Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, in force 2 January 2009) 2562 UNTS 45694. 6   See Arts 303 and 149 dealing with the protection of cultural objects that are located in the territorial sea and Area, respectively. According to Art. 1(1) of the UNCLOS, the Area is ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. 7   Antarctic Treaty (adopted 1 December 1959, in force 23 June 1961) 402 UNTS 71. The Antarctic Treaty System includes in addition to the Treaty some annexed instruments, such as the Protocol on Environmental Protection, and coordinated agreements, like the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). See Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, in force 14 January 1998) in 2941 UNTS 9 and Convention on the Conservation of Marine Living Resources (adopted 20 May 1980, in force 7 April 1982) 1329 UNTS 47.

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regulates the management of the Antarctic area and resources, including marine living species that are copious in this area. Similarly, the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement, which is annexed to the UNCLOS, deals with the protection of these marine species.8 Thus, in order to ascertain to what extent the World Heritage Convention ensures the protection of the cultural and natural sites that are located at sea, its provisions must be scrutinized in relation to both the jurisdictional criteria and substantive obligations deriving from customary and treaty norms on the law of the sea.

II.  The World Heritage Convention and Jurisdictional Criteria for the Protection of Marine Cultural and Natural Sites Both the World Heritage Convention and law of the sea rely upon the principle of state territorial sovereignty to ensure the enforcement of their provisions. According to Articles 3, 4, and 5 of the Convention, the state in the territory of which cultural and natural sites are situated has the right and the duty to identify and propose the inscription of these sites on the World Heritage List and the duty to guarantee their protection in line with the obligations arising from the Convention. Similarly, under the law of the sea, the governance of the oceans is ensured through the recognition of the jurisdictional powers of coastal states. Most precisely, under the UNCLOS, while coastal states enjoy sovereign rights over their territorial sea and the mineral resources belonging to their continental shelf,9 they can only invoke preferential rights with respect to other maritime areas. These preferential rights entail either the policy powers that may be exercised in the contiguous zone10 or the exclusive entitlement at managing the living resources of the exclusive economic zone (EEZ).11 In addition, Article 303, paragraph 2 of the UNCLOS recognizes the right of coastal states to control and punish the illicit removal of archaeological and historic objects from their territorial sea and contiguous zone. So far, the World Heritage Committee has decided to inscribe on the World Heritage List only cultural and natural heritage sites that are simultaneously located in the territory and corresponding maritime areas of a coastal state. For example, the site of Papahānaumokuākea, which has been inscribed on the World Heritage List both as world cultural and natural heritage, includes several islands and waters belonging to either the territorial sea or the EEZ of the United States.12 No distinction seems to have been drawn between the maritime areas over which a state enjoys sovereign rights and waters in which that state may only exercise preferential rights, such as the EEZ. Thus, according to the Convention, marine cultural and natural sites appear to be only subject to the jurisdiction of the states exercising control over the marine areas in which those sites are situated, regardless of the legal ground that may justify such control. This approach of the Convention might be interpreted as the extension of the sovereign powers that coastal 8   United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 8 September 1995, in force 11 December 2001) 2167 UNTS 3. 9   Arts 2 and 77 of the UNCLOS.    10  Ibid, Art. 33.    11  Ibid, Art. 56. 12   For an in depth analysis of this issue, see David Freestone et al., ‘Place-​Based Dynamic Management of Large-​Scale Ocean Places: Papahanaumokuakea and the Sargasso Sea’ (2014) 33 Stanford Environmental Law Journal 191.

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states enjoy over their territorial sea to their contiguous zone and EEZ in contrast with the provisions of the law of the sea and, in particular, of the UNCLOS. This extension of the powers of coastal states has been also endorsed in the 2001 Underwater Cultural Heritage Convention that allows the exercise of these powers with the aim of protecting the underwater cultural heritage that is situated in the EEZ.13 Nevertheless, that Convention is more consistent with the provisions of the UNCLOS because the enforcing powers of coastal states only serve as the instruments for the application of the collective decisions resulting from the cooperation of the different states that have expressed an interest in the underwater cultural heritage.14 A major lacuna of the World Heritage Convention entails the absence of explicit norms guaranteeing the protection of the marine sites of potential outstanding universal value that are located beyond state jurisdiction, in the international seas and deep seabed.15 As already noted, World Heritage Convention obligations primarily affect territorial states exercising sovereignty jurisdiction over the sites that have been inscribed on the World Heritage List. Thus, according to the textual interpretation of the provisions of the Convention, the extension of these norms seems to be impracticable with respect to marine cultural and natural sites that are not subject to the sovereignty of a State Party. In line with this strict interpretation, the revision of the text of the Convention would be necessary. According to Article 37, the revision process entails the adoption of a new convention, which would become effective only for those states ratifying the revised convention. Most significantly, under Article 37, paragraph 2, a total or partial modification of the Convention would both prevent new accessions and ratifications of the earlier convention. This proviso makes the revision of the Convention undesirable for two reasons. First, the positive results that the Convention has so far achieved would be crystallized at the time of the entry into force of the new convention. Secondly, the newly adopted convention might be ratified by a limited number of states and, thus, lose the character of a global regime for the protection of the world heritage.16 Most recently, a meeting of legal experts working under the aegis of the World Heritage Committee was convened to assess the feasibility of the addition of marine sites that are located beyond state jurisdiction in the World Heritage List. The Expert Meeting concluded that ‘nothing in the text of the World Heritage Convention suggests that sites of potential (outstanding value) in marine areas beyond national jurisdiction are excluded

13  See Arts 9 and 10 of the 2001 Underwater Cultural Heritage Convention. For the view that the protection of underwater cultural heritage may become more effective if it is dealt with according to the same rules concerning the protection of living resources, see Francesca Varvello, ‘ “Looking for ‘Submerged Commons”: Towards a New Era for Underwater Cultural Heritage?’ (2018–​19) 5 Maritime Safety and Security Law Journal 99, at 110–​112. 14   States other than coastal states have the right to be consulted on the management of underwater cultural heritage that has been removed from the EEZ of other states. See Art. 10(3)(a) of the 2001 Underwater Cultural Heritage Convention sanctioning the rights of ‘all other States Parties which have declared an interest’. 15   E.g. the outstanding value of the Sargasso Sea arises from the presence of unique floating Sargassum seaweeds. In addition, White Shark Café is the only North Pacific area in which great white sharks live. For the identification of these and other marine sites of outstanding value that are situated in international waters, see Dan Laffoley and David Freestone, ‘A World of Difference—​Opportunities for Applying the 1972 World Heritage Convention to the High Seas’ (2017) Aquatic Conservation: Marine and Freshwater Ecosystems 78 at 82. The lacuna of an inscription procedure for sites beyond state jurisdiction within the World Heritage Convention has also been highlighted by David Haigh, ‘Marine World Heritage Sites’ (1997) Asia Pacific Journal of Environmental Law 133 at 142. 16   Laffoley and Freestone, ibid, 84.

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from its ambit’.17 In fact, the object and purpose of the Convention, which emerges from its Preamble and provisions, entails the protection of all outstanding areas of the planet regardless of where they are situated.18 However, procedural norms are needed to regulate the modalities of the submission of the requests and reports relating to the sites that are located beyond national jurisdictions. According to the Expert Meeting, new procedural rules might be included in the Operational Guidelines for the Implementation of the World Heritage Convention, which are regularly updated by the World Heritage Committee.19 In this regard, the Committee has invited States Parties to the Convention to submit requests for inscription of marine sites that may also incorporate areas situated beyond state jurisdiction.20 However, the lack of specific provisions concerning the procedure of nomination of cultural and natural sites that are not subject to state authority may be the source of potential conflicts between the parties to the Convention. In particular, overlaps and conflicts might stem from the possibility that different states enlist the same marine sites that are located beyond their national jurisdiction in their respective inventories. This problem has already emerged with respect to nomination for World Heritage of sites that have a trans-​boundary character. This issue is dealt with in the Operational Guidelines, according to which all states concerned must submit a joint request for the inscription of their shared World Heritage.21 In addition, as the abovementioned expert meeting has pointed out,22 paragraph 73 of the Operational Guidelines encourages states to seek harmonization of the tentative lists of all World Heritage sites in order to guarantee equivalent protection in respect of similar areas. This cooperative approach should also be adopted to establish the procedural rules for the nomination of sites that are located beyond state jurisdiction in order to hinder any attempts by states to extend their control over certain maritime areas under the guise of protecting cultural and natural heritage.23 As affirmed earlier, States Parties enforce the substantive obligations of the Convention through the jurisdictional powers that they possess according to domestic and   UNESCO World Heritage Centre, ‘Summary of expert workshop (Monaco, 11–​12 December 2018), Protecting sites of potential outstanding universal value in marine areas beyond national jurisdiction: The practical modalities’ (2020), at http://​whc.une​sco.org/​uplo​ads/​act​ivit​ies/​docume​nts/​activ​ity-​13-​390.pdf (last accessed 22 January 2022), p. 12. 18   ibid, p. 11. 19   UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Doc. WHC.21/​01, 31 July 2021. The revision should certainly affect para. 62 of the Operational Guidelines that only allows a State Party to submit an inventory relating to sites that are located in its territory. See UNESCO, ‘Summary of expert workshop’ (note 17) p. 8. 20   UNESCO World Heritage Committee, Decision on Establishment of The World Heritage List and of the List of World Heritage in Danger Nomination Process, Protecting Sites of Potential Outstanding Universal Value in Marine Areas beyond National Jurisdiction, 44th session (Fuzhou/​online (2021), Decision 44 COM 8, para. 15, Doc. WHC/​21/​44.COM/​18. 21   See para. 61(d) of the Operational Guidelines. This paragraph mirrors the spirit of Art. 11(3) of the World Heritage Convention requiring the consent of all states concerned when the request for inscription concerns a site over which several states claim sovereign rights. 22   UNESCO, ‘Summary of expert workshop’ (note 17) p. 8. 23   e.g. frictions have occurred in the South China Sea due to attempts by China and the Philippines to take control of the EEZ corresponding to Spratlys Islands, over which both states claim sovereign rights with the aim of safeguarding the underwater cultural heritage that is therein located. For a thorough analysis of this matter, see Zhen Lin, ‘Jurisdiction over Underwater Cultural Heritage in the EEZ and on the Continental Shelf: A Perspective from the Practice of States Bordering the South China Sea’ (2019) 50 Ocean Development and International Law 170 and Yingying Jing-​Juan Li, ‘Who Owns Underwater Cultural Heritage in the South China Sea’ (2019) 47 Coastal Management 107. 17

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international law. These powers certainly make the provisions of the Convention most effective. However, state powers should be exercised according to some concerted rules when they are addressed to manage sites that are located beyond state jurisdiction. In this respect, the World Heritage Committee is bound to face the challenge of an expansion of its supervisory powers in the event of a revision of the Operational Guidelines concerning the designation and adoption of domestic measures, and the reporting duty affecting sites situated beyond national jurisdiction. To this end, the law of the sea and, in particular, the UNCLOS may be a source of inspiration. For example, the UNCLOS recognizes jurisdictional links that ensure the same rights and duties of States Parties with respect to the protection of the marine environment and resources in the international sea. In this regard, the acknowledgement of the enforcing powers of the flag and port states24 appears to be more effective at avoiding possible conflicts that might originate from the extension of the powers that coastal states enjoy in their territorial sea and EEZ.25 Enforcing the powers of flag and port states are also envisaged in the 2001 Underwater Cultural Heritage Convention, with the aim of guaranteeing the protection of cultural heritage regardless of where it is located. In addition, that Convention also recognizes the role of the ‘coordinating State’,26 which exercises the instrumental function of facilitating consultation among and adoption of decisions by the states that have declared an interest in the cultural heritage that is situated in both the EEZ of a State Party or in the Area.27 Thus, the jurisdictional criteria recognizing the power of flag and port states might also be beneficial for the implementation of the obligations of the World Heritage Convention with respect to World Heritage that is located beyond national jurisdiction. For example, the obligation of States Parties to submit reports, to the World Heritage Committee, with regard to their activities and measures affecting the World Heritage that is under their jurisdiction28 might also be applied with respect to the activities and measures that they adopt regarding the World Heritage sites that are situated in the international seas and deep seabed. In this manner, the exercise of jurisdictional powers would not imply the recognition or extension of sovereign or preferential rights of states over the World Heritage that is located beyond national jurisdiction. Rather, these powers would only envisage the instruments by means of which the general principles and aims of the World Heritage Convention are enforced by states.

24   See Arts 217 and 218 of the UNCLOS. For the view that these jurisdictional criteria might be effective for ensuring the enforcement of the obligations that are established in the World Heritage Convention, see Laffoley and Freestone (note 15) 81. 25   The principle of freedom of the high seas that is sanctioned in Art. 87 of the UNCLOS is a milestone rule that states do not want to limit by recognizing wider powers with respect to coastal states. E.g. when Chile attempted to create a new maritime area—​the so-​called ‘mare presencial’, including the high seas situated between the Chilean mainland and Antarctic territories, over which Chile claims sovereign rights—​all other States Parties to the Antarctic Treaty were in strong opposition. The Chilean ‘mare presencial’ was established by means of national legislation. See Decree 430 of 29 September 1991, in Diario Oficial, 21 January 1992. For an analysis of this issue, see Francisco Orrego Vicuña, ‘The ‘Presential Sea’: Defining Coastal States’ Special Interests in High Seas Fisheries and Other Activities’ (1992) 35 German Yearbook of International Law 264. 26   See Art. 12(2) of the 2001 Underwater Cultural Heritage Convention. The fact that the role of the ‘coordinating state’ is not related to the exercise of sovereign powers is also demonstrated by the fact that this state was appointed by an international organ, i.e. the UNESCO Director-​General. 27   The Area is defined in Art. 1(5) of the 2001 Underwater Cultural Heritage Convention in accordance with Art. 1(1) of the UNCLOS. See note 6. 28   Art. 29 of the World Heritage Convention.

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Such an instrumental character should also be recognized with respect to the right of States Parties to the Convention to submit proposals for the inscription of cultural and natural sites on the World Heritage List. States’ requests should only serve to draw the attention of the Committee, which has the last word on the issue, to the ascertainment of the outstanding value of the sites that are located beyond national jurisdiction. An example may be provided by some regional treaty regimes encompassing the possibility of establishing marine protected areas.29 For example, under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty,30 states may submit their proposals for the designation of specially protected areas, including Antarctic marine areas,31 over which state sovereignty is never recognized.32 However, the final decision, which is made by the meeting of States Parties to the Antarctic Treaty, must be always consistent with the advice of a centralized organ, namely, the Committee on Environmental Protection. This approach, which seems to reconcile the exercise of state prerogatives with the need to safeguard interests and goods of common concern, seems to have also been embraced in the recent adoption of the Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).33 This agreement, which should be annexed to the UNCLOS, sets aside the rigid approach that is reflected in Part XI of the UNCLOS relating to the management of the Area and its mineral resources, which, as is well known, are considered as parts of the common heritage of humankind. According to these norms of the UNCLOS, an institutionalised apparatus is in charge of the enforcement of the substantive obligations of the Convention. In contrast, under Article 149 of the UNCLOS, states are allowed to manage archaeological and historic objects that are in the Area, provided that they act for the benefit of humankind as a whole. Similarly, the BBNJ agreement relies upon the cooperation between states and regional organizations for the achievement of the common goals that are envisaged in its norms.34 Therefore, the future task of the World Heritage Committee appears to be the adoption of procedural norms, in particular concerning the designation of cultural and natural sites 29  For an analysis of this issue, see Catherine Redgwell, ‘The World Heritage Convention and other Conventions relating to the Protection of the Natural Heritage’ in Francesco Francioni (ed.) The 1972 World Heritage Convention. A Commentary (Oxford University Press, Oxford, 2012) p. 377 at p. 392. 30   See note 7. 31   e.g. the Ross Sea Region Marine Protected Area was established according to both the Antarctic Treaty System and CCAMLR. See CCAMLR Commission, Conservation Measure 91-​05 (2016), at https://​cm.cca​ mlr.org/​sites/​defa​ult/​files/​91-​05_​11.pdf (last accessed 30 January 2022). 32   Art. IV of the Antarctic Treaty suspends the exercise of sovereign rights, which seven states (Argentina, Australia, Chile, France, New Zealand, Norway, and the UK) have claimed for almost one century over some sectors of the Antarctic continent, to allow the establishment of a regime, in which all States Parties have the same rights and duties for management of the Antarctic Treaty area. 33  For the most recent version of this agreement, see UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, Agreement under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, A/CONF.232/2023/4, 19 June 2023. For a comment on the evolution of the negotiations of this agreement, see Vito De Lucia, ‘A Very Quick Look at the Revised Draft Text of the new Agreement on Marine Biodiversity in Areas beyond National Jurisdiction’ (23 January 2020), at https://​www.ejilt​alk.org/​ a-​very-​quick-​look-​at-​the-​revi​sed-​draft-​text-​of-​the-​new-​agreem​ent-​on-​mar​ine-​biodi​vers​ity-​in-​areas-​bey​ond-​ natio​nal-​juris​dict​ion (last accessed 27 January 2022). 34  The duties to safeguard and cooperate with regional regimes are sanctioned in Arts 2 and 8 of the Agreement under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction. Cooperation is particularly emphasized in Part III of the Agreement regulating the establishment of marine protected areas.

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as World Heritage, which mirror the recent trends affecting other international treaty regimes. These trends seem to emphasize the need for most concerted decision-​making processes and the gradual recognition of the instrumental character of the enforcing powers of states to facilitate the ruling of matters of common concern in the interests of the international community as a whole.

III.  The Interaction between the Substantive Obligations of the World Heritage Convention and other International Norms relating to the Protection of Marine Cultural and Natural Heritage Overlaps and conflicts may also affect the substantive provisions of the World Heritage Convention and the law of the sea for several reasons. First of all, overlaps may concern the object that these instruments aim at safeguarding. In the light of its object, the World Heritage Convention appears to be the primary global instrument that is entitled to ensure the conservation of any cultural and natural site of outstanding universal value, including those located at sea.35 As a consequence, other international treaty systems should be subordinated to the Convention and apply with respect to matters that are not encompassed within it. For example, the norms of the UNCLOS relating to the protection of the marine environment should serve to guarantee the conservation of the marine areas that do not have the characteristics to be inscribed as World Heritage. Nevertheless, the UNCLOS regime also includes some special agreements, such as the previously mentioned Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement and the Agreement on the conservation of marine biodiversity. Both of these legal instruments establish obligations that are more detailed and, presumably, more effective for the protection of marine natural sites and resources than is the World Heritage Convention.36 Also within the UNESCO legal framework, the 2001 Underwater Cultural Heritage Convention regulates the protection of a circumscribed category of cultural heritage, namely cultural sites and objects that are situated at sea. In this regard, that Convention might be considered as lex specialis with respect to the World Heritage Convention.37 However, in spite of the fact that these Conventions have been adopted within the same institutional framework, no provisions of coordination exist between them. In particular, the 2001 Underwater Cultural Heritage Convention, which only mentions the World Heritage Convention in its Preamble, provides for the protection of a broader range of marine cultural sites because it does not differentiate between diverse types of cultural heritage. In that respect, the 2001 Underwater Cultural Heritage Convention, like the   See Freestone et al. (note 12) 237.   The need for coordination between the World Heritage Convention and future agreements on the conservation of marine biodiversity beyond national jurisdictions was highlighted by the meeting of experts who discussed the application of the Convention with respect to marine sites located in the international seas and deep seabed. In fact, such an instrument might be more effective for the regulation of this matter. See UNESCO, ‘Summary of expert workshop’ (note 17) p. 10. 37   For the special character of the World Heritage Convention and other UNESCO Conventions, see ‘The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions and Other Instruments on Cultural Heritage’ by Carducci in this volume. 35 36

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UNCLOS, seems to be devoted to the ‘ordinary’ protection of cultural sites at sea while the World Heritage Convention regulates the ‘special protection’ of marine cultural sites of outstanding value. Most notably, the global scope of the World Heritage Convention is potentially circumscribed by the fact that, under Article 3 of the Convention, the right to define cultural sites belongs only to states.38 In fact, the World Heritage List includes the sites that have been indicated by the states in the territory of which such sites are located. For example, governments might intentionally exclude some cultural and natural sites from their inventories to escape the duty of conservation that is sanctioned in Article 4 of the Convention.39 Indubitably, states are still bound by the general obligation to protect world heritage according to Article 12 of the Convention. Nevertheless, as has been acknowledged by legal doctrine,40 the latter article and, to a certain extent, the entire Convention, does not provide adequate tools for the effective enforcement of such a general obligation. Thus, the comparison between the objective scope of the World Heritage Convention and other international treaties concerning the safeguard of marine sites does not lead to an unambiguous solution as to whether the Convention may be considered to be the primary global instrument dealing with this matter and, thus, having priority with respect to other treaties. Secondly, the global character of the World Heritage Convention may be inferred from its subjective scope. In fact, according to Article 6 of the Convention, the obligation of conservation of World Heritage binds all States Parties regardless of where such heritage is located. Nevertheless, states other than the one in the territory of which the World Heritage site is located are only subject to the general obligation of protection, which, as observed earlier, is not particularly effective in the absence of adequate enforcement instruments. For example, the system of international assistance, which is established in Article 13 of the Convention, only defines the rights and duties of the state in the territory of which the World Heritage site is situated. Finally, the lack of clear procedures relating to the application of the World Heritage Convention to areas located beyond its national jurisdiction significantly hinders the effectiveness of the Convention. In contrast, the subjective scope of the obligations of the law of the sea and, especially, UNCLOS seems to embrace all states. On the one hand, these common obligations are enforced by coastal states that, according to the law of the sea, have jurisdiction over the sites and resources that are located in their territorial sea, contiguous zone, EEZ, and the continental shelf. On the other hand, the UNCLOS acknowledges the same duties with respect to all States Parties carrying out activities in the maritime areas that are beyond national jurisdiction. Most precisely, under Articles 117 and 94 of the UNCLOS, flag states are required to adopt measures for the protection of the marine environment and resources that are located in the international waters.41 In addition, Part XI of the   For a thorough analysis of the scope of Art. 3 of the Convention, see the commentary on Art. 3 by Boer.   For this reason, in 1994, the World Heritage Committee launched the Global Strategy for a Representative, Balanced and Credible World Heritage List. See https://​whc.une​sco.org/​arch​ive/​repco​m94.htm#glo​bal (last accessed 31 January 2022). 40   For the view that non-​listed cultural and natural sites of outstanding value cannot be effectively safeguarded due to the absence of adequate enforcing instruments within the World Heritage Convention, see the commentary on Art. 12 by Lenzerini. 41   For a thorough analysis of flag states’ rights and duties, see Richard A. Barnes, ‘Flag States’, in Donald Rothwell et al. (eds) The Oxford Handbook on the Law of the Sea (Oxford University Press, Oxford, 2015) p. 304. 38 39

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UNCLOS establishes a comprehensive regime that applies to all States Parties that intend to carry out activities in the Area. Moreover, the UNCLOS regime is destined to expand following the adoption of the Agreement on the conservation of marine biological diversity beyond national jurisdiction. Similarly, the 2001 Underwater Cultural Heritage Convention provides for a system of conservation of cultural properties, according to which measures are agreed by all States Parties regardless of whether those properties are located either in maritime areas subject to state jurisdiction or in the Area.42 The 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) provides a further example of a treaty regime that aims to preserve marine species by means of common obligations affecting all States Parties. Although that Convention also applies to the marine areas, over which state sovereignty is generally recognized, such as the waters surrounding sub-​Antarctic islands,43 the general duty to safeguard the Antarctic marine ecosystem and the specific measures imposing obligations for the protection of Antarctic species bind all States Parties in the same manner.44 Thus, the subjective scope of the provisions of the World Heritage Convention appears to be universal in abstract terms, but it is rather circumscribed with regard to the concrete possibility of enforcing those provisions vis-​à-​vis all States Parties. This lacuna is primarily due to the inadequate enforcing instruments provided for in the Convention. In that regard, other international treaties, such as the UNCLOS, seem to provide a more comprehensive set of obligations that ensure the uniform treatment of all states involved. Finally, the global scope of the World Heritage Convention may be ascertained in consideration of the range of persons to whom the obligation of conservation of world heritage is owed. In this regard, the provisions of the Convention and other treaty regimes are similar. In fact, all these legal systems guarantee the safeguarding of cultural and natural heritage in the interest of several entities, such as states, individuals, and humankind as a whole. In strictly legal terms, the obligations of the World Heritage Convention and other treaty regimes are primarily owed to other States Parties. However, from a more practical point of view, these treaty regimes also safeguard the interests of other entities. In particular, the Preambles to the World Heritage Convention, the UNCLOS, and CCAMLR recognize the interest of humankind in the conservation of cultural and natural heritage. The concern for this interest is emphasized in Part XI of the UNCLOS and in the 2001 Underwater Cultural Heritage Convention because they respectively compel states to manage the Area and preserve underwater cultural heritage for the sole benefit of humankind.45 In spite of the holistic objective underlying the norms of the World Heritage Convention and other treaty regimes concerning the conservation of marine sites, these 42   Arts 10 and 12 of the 2001 Underwater Cultural Heritage Convention recognize the competence of the ‘coordinating State’ to enforce the decisions that states concerned have collectively adopted with respect to underwater cultural heritage that is located in both the EEZ and the Area. 43   e.g. the CCAMLR regime includes some conservation measures affecting Heard and McDonald Islands, which fall in the territorial sovereignty of Australia and have been declared as part of the World Heritage. See note 2. For one of the most recent CCAMLR measures concerning Heard and McDonald Islands, see Conservation Measure 42-​02 (2019) ‘Limits on the fishery for Champsocephalus gunnari’ at https://​cm.cca​mlr. org/​sites/​defa​ult/​files/​42-​02_​58.pdf (last accessed 31 January 2022). 44   Art. II of the CCAMLR. 45   Arts 140 and 2(3) of the UNCLOS and 2001 Underwater Cultural Heritage Convention.

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norms do not establish any forms of participation of subjects other than states, such as individuals and indigenous peoples.46 Conversely, the involvement of private persons might facilitate the achievement of the universal objective of the World Heritage Convention. To this end, the World Heritage Committee has enhanced the role of indigenous people in the identification and management of World Heritage sites by sanctioning the need for their involvement in the Operational Guidelines47 and establishing the International Indigenous Peoples Forum for World Heritage.48 In short, the global character of the World Heritage Convention primarily emerges from its commitment to safeguarding the interest of entities other than states and of humankind, as a whole. The gradual adaptation of its norms to the accomplishment of this purpose will enhance that global character. In sum, overlaps and conflicts between the substantive norms of the World Heritage Convention and other international regimes dealing with the management of marine sites appears to be factual. The intricate relationships between these international legal instruments cannot be settled in clear terms owing to the concrete impossibility of determining which instrument is most appropriate for managing cultural and natural heritage that is located at sea.49 Mutual support and coordination between the World Heritage Convention and other legal instruments affecting the protection of marine sites seem to be the most effective means for achieving the holistic purpose of preserving these sites for the benefit of humankind, as a whole.

IV. Conclusion The World Heritage Convention is probably the most important global instrument for the conservation of cultural and natural heritage. That said, the international treaties concerning the law of the sea appear to be successful instruments for the governance of the oceans and their resources. In the light of the different peculiarities characterizing these diverse legal systems, it is difficult to determine which international regime provides the most effective set of rules for management of marine sites and species. The international legal order does not encompass rules establishing a hierarchy between the norms of diverse treaties to resolve the overlaps and conflicts that may affect these norms. Moreover, some clauses, such as the proviso of Article 237 of the UNCLOS, which recognizes the priority of special agreements with respect to the norms of the UNCLOS, have a too undefined content to provide effective solutions for the overlaps between the UNCLOS and other international legal systems. Most notably, the overlaps and conflicts occurring between the World Heritage Convention and treaties on the law of the sea do not affect their substantive obligations   For an analysis of the role of indigenous groups, see Ana F. Vrdoljak, ‘Indigenous Peoples, World Heritage, and Human Rights’ (2018) 25 International Journal of Cultural Property 245. 47   See paras 40 and 64 of the Operational Guidelines. 48   UNESCO World Heritage Committee (41st session) Decision 41 COM 7, State of Conservation of the Properties Inscribed on the World Heritage List (2017), at http://​whc.une​sco.org/​en/​decisi​ons/​6940/​ (last accessed 31 January 2022). 49   For an analysis of this matter, see ‘The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions and Other Instruments on Cultural Heritage’ by Carducci in this volume. 46

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and, in particular, their general goals. The aim entailing the need to safeguard cultural and natural heritage in the interests of humankind is common to the Convention and many other international regimes. In spite of this holistic purpose, the World Heritage Convention and international norms on the law of the sea are still anchored to the jurisdictional criteria that are based on the principle of state sovereignty. These jurisdictional rules that are based on a state-​ centric approach may enhance the conflicting positions of states with regard to the management of marine sites and resources. For that reason, the gradual recognition of the instrumental character of the sovereign powers that states may exercise in the maritime areas and with respect to persons under their jurisdiction and control may be a viable tool for enforcing the general goals that are established in the World Heritage Convention and treaties on the law of the sea. In line with these general goals, normative lacunae must be filled through the adoption of the most precise substantive obligations relating to the conservation of marine sites of outstanding value situated beyond national jurisdiction. In fact, the uncertainty surrounding the scope of these obligations may significantly hinder the protection of cultural and natural heritage.50 Finally, the state-​centric approach may be mitigated by way of recognizing a more significant role for individuals, groups, and indigenous peoples as active participants in the management of cultural heritage for the benefit of all humankind.

  Haigh (note 15) 151.

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The World Heritage Convention and International Investment Law Valentina Vadi *

I. Introduction  II. International Investment Law and Arbitration  III. World Heritage-​Related Investment Disputes  A. The Notion of Investment  B. Fair and Equitable Treatment  C. Expropriation  D. Remedies  IV. Treaty Conflict and Congruence  V. Conclusion 

403 404 405 406 409 410 413 415 416

I. Introduction World heritage is heritage par excellence. It holds incommensurable value for both present and future generations and thus receives strengthened protection at the international level. Given that UNESCO1 has an almost universal membership and that the World Heritage Convention (WHC)2 is one of the most successful conventions in terms of adhesion, the international community perceives the protection of world heritage as an important public interest. The almost universal ratification of the WHC also suggests that the protection of world heritage is a general principle of law—​if not already a norm of customary law—​and that adjudicators must consider cultural concerns when adjudicating world heritage-​related disputes. The WHC neither includes a dispute settlement mechanism nor explicitly addresses its relationship with other subfields of international law, such as international investment law. After all, international investment law was once considered a highly specific domain and distinct from mainstream international law. For decades, arbitral jurisprudence has been examined by experts in international investment law only. While world heritage-​ related investment disputes have increasingly gravitated towards investor–​state arbitration, such jurisprudence has remained limited and mostly went undetected or under the radar of international cultural heritage law experts—​at least until recently.3 *  Adjunct Professor (University of Florence) and Research Fellow (University of Padua). 1  UNESCO, Constitution of the United Nations Educational, Scientific and Cultural Organization, adopted in London on 16 November 1945.The Organization has 193 members and 11 associate members, (last accessed 28 April 2023). 2   Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC), Paris, 16 November 1972, in force 17 December 1975, 11 ILM 1358. The Convention has 194 States Parties as of 23 November 2022, (last accessed 28 April 2023). 3   For seminal studies, see Patrick O’Keefe, ‘Foreign Investment and the World Heritage Convention’(1994) 3 International Journal of Cultural Property 259–​266; Federico Lenzerini, ‘Property Protection and Protection of Cultural Heritage’, in Stephan Schill (ed.) International Investment Law and Comparative Public Law (Oxford

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Nevertheless, international investment law has now come to the forefront of legal debates as one of the most divisive areas of international law. Under international investment agreements (IIAs), foreign investors enjoy rights, have limited obligations, and can rely on a highly efficient dispute settlement mechanism: investor–​state arbitration. The proliferation of investment treaties in the past decades, their divisive nature, and the boom of world heritage-​related investor–​state arbitrations necessitates investigation into the interplay between the WHC, on the one hand, and international investment law and arbitration, on the other. This chapter aims to fill this gap in the current legal literature by examining recent arbitrations and proposing two principal legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration. On the one hand, de lege ferenda, this chapter proposes the adoption of legality requirements, cultural clauses, and provisions reaffirming a state’s cultural sovereignty and the obligations to protect world heritage. On the other hand, de lege lata, the study highlights that, according to customary norms of treaty interpretation, arbitral tribunals can interpret and apply IIAs in conformity with justice and international law.

II.  International Investment Law and Arbitration Once deemed to be an ‘exotic and highly specialized’ domain,4 international investment law is now becoming mainstream.5 Due to economic globalization and the rise of foreign direct investment, regulation of the field has become a key area of international law and a well-​developed field of study. As there is no single comprehensive global investment treaty, investors’ rights are defined by an array of IIAs, customary international law, and general principles of law. At the substantive level, international investment law provides extensive protection to investors’ rights in order to encourage foreign direct investment and to foster economic development. Under IIAs, States Parties agree to provide a certain degree of protection to investors who are nationals of contracting states or their investments. Such protection generally includes compensation in cases of expropriation and breaches of fair and equitable treatment (FET), non-​discrimination, and full protection and security standards, among others. At the procedural level, international investment law is characterized by sophisticated dispute settlement mechanisms. While state-​to-​state arbitration has been rare,6 investor–​ state arbitration has become the most successful mechanism for settling investment-​ related disputes.7 Nowadays, most IIAs allow investors to directly access international University Press, Oxford, 2010) pp. 541–​568; Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press, Cambridge, 2014). 4  International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group (Martti Koskenniemi), UN Doc. A/​CN.4/​L.682, 13 April 2006, para. 8. 5   Stephan W. Schill, ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’ (2011) 22 European Journal of International Law 875. 6  On state-​ to-​ state investment treaty arbitration, see A. Roberts, ‘State-​ to-​ State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55 Harvard International Law Journal1. 7   S. Franck, ‘Development and Outcomes of Investor–​State Arbitration’ (2009) 9 Harvard International Law Journal 435.

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arbitral tribunals. Arbitral tribunals are typically composed of three members: one arbitrator selected by the claimant, another selected by the respondent, and a third appointed by a method that attempts to ensure neutrality. All arbitrators are required to be independent and impartial. Under this mechanism, investors are not required to exhaust local remedies and no longer depend on diplomatic protection to defend their interests against the host state. The internationalization of investment disputes has been conceived as an important valve for guaranteeing a neutral forum and depoliticizing investment disputes.8 Investor–​state arbitration shields investment disputes from power politics and insulates them from the diplomatic relations between states.9 The depoliticization of investment disputes benefits foreign investors, the host state, and the home state.10 First, foreign investors no longer have to rely on the vagaries of diplomatic protection; rather, they can bring direct claims and make strategic choices in the conduct of the arbitral proceedings.11 In this regard, investor–​state arbitration can facilitate access to justice for foreign investors.12 Such access is perceived as necessary to render meaningful the substantive investment treaty provisions. Secondly, the depoliticization of investment disputes protects the host state by reducing the home country’s interference in the host state’s domestic affairs.13 It prevents or ‘limit[s]‌unwelcome diplomatic, economic, and perhaps military pressure from strong states whose nationals believe they have been injured’.14 Thirdly, the depoliticization of investment disputes also protects the home state in that it no longer has to become involved in investor–​state disputes.15 Arbitral tribunals have reviewed host state conduct in key sectors in a number of world heritage-​related disputes. Many of the recent arbitral awards have consequently determined the boundary between two conflicting values: on the one hand, the legitimate need for state regulation in the cultural sector and, on the other hand, the protection of private interests from state interference.

III.  World Heritage-​Related Investment Disputes Given the structural imbalance between the vague and non-​binding dispute settlement mechanisms provided by the international instruments adopted by UNESCO and the highly effective and sophisticated dispute settlement mechanisms available under

8  I.F.I. Shihata, ‘Toward a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA’ (1986) 1 ICSID Review—​FILJ 1, 5. 9  S. Puig, ‘No Right without a Remedy: Foundations of Investor–​ State Arbitration’ (2013–​ 2014) 35University of Pennsylvania JIL829, 848–​853. 10   A. Roberts, ‘Triangular Treaties: The Extent and Limits of Investment Treaty Rights’ (2015) 56 Harvard International Law Journal 353, 390. 11   Puig (note 9) 844. 12   Francesco Francioni, ‘Access to Justice, Denial of Justice and International Investment Law’ (2009) 20 European Journal of International Law 729. 13   Roberts (note 10) 389–​390. 14   J. Pauwelyn, ‘At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System’ (2014) 29 ICSID Review 372, 404. 15   Roberts (note 10) 390.

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international investment law, a number of investment disputes related to cultural heritage have been brought before investment treaty arbitral tribunals.16 This section examines several recent arbitrations. Given the impact that arbitral awards can have on cultural governance and the growing number of investment arbitrations, scrutiny and critical assessment of this jurisprudence is particularly timely and important. Such close examination illuminates how international investment law responds to cultural concerns in its operation and thus contributes to the ongoing investigation of the role of international investment law within its broader matrix of international law. Although this jurisprudence is not homogeneous, it can be scrutinized according to jurisdictional grounds (the notion of investment) and the taxonomy of the claims brought by foreign investors, including, inter alia, FET, expropriation, and compensation. In these arbitrations, the cultural and natural heritage involved in each dispute carries outstanding value and was thus included on the World Heritage List. Therefore, an interesting aspect of such arbitrations is the relevance—​or irrelevance—​of the WHC.

A.  The Notion of Investment IIAs are instruments concluded between states for the promotion and protection of reciprocal investments. Addressing the question of whether certain economic activities relating to world heritage amount to an investment is crucial to establishing an arbitral tribunal’s subject matter jurisdiction. Individuals or companies are entitled to the substantive and procedural protections afforded by the treaty only if the treaty classifies them as ‘investors’ or their economic activities as ‘investments’. If a given economic activity constitutes a protected investment, the investor will benefit from the substantive protections of the applicable IIA. To ascertain whether world heritage-​related economic activities constitute a form of protected investment under a given IIA, one must observe the specific text of the applicable treaty, as IIAs generally provide slightly different definitions of investment. If the parties have opted to resolve their dispute at the International Center for the Settlement of Investment Disputes (ICSID), then the ICSID Convention, which extends jurisdiction ‘to any legal dispute arising directly out of an investment’,17 will also be applicable. In this situation, the adjudicators must determine whether a given economic activity constitutes an investment under both the ICSID Convention and the applicable IIA. With regard to the ICSID Convention, such an instrument does not provide a definition of investment.18 Rather, it stipulates that ICSID jurisdiction extends ‘to any legal dispute arising directly out of an investment’.19 In practice, this has meant that commentators and arbitral tribunals have elaborated on a number of criteria for defining the term.20 Most notably, the leading test was articulated by Salini v Morocco, which 16   Obviously, this does not mean that these are the only available fora for this kind of dispute. Other tribunals are available such as national courts, human rights courts, regional economic courts, and traditional state-​to-​state courts and tribunals such as the International Court of Justice or even interstate arbitration. Some of these dispute settlement mechanisms may be more suitable than investor–​state arbitration to address cultural concerns. However, given its scope, this chapter focuses on the jurisprudence of arbitral tribunals. 17   Convention on the Settlement of Investment Disputes between States and Nationals of other States, 18 March 1965, 17 UST 1270, Art. 25(1). 18   Alex Grabowski, ‘The Definition of Investment Under the ICSID Convention: A Defense of Salini’ (2014) 15Chicago Journal of International Law 287, 293. 19 20   ICSID Convention, Art. 25(1).   Grabowski (note 18) 293.

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involved a dispute arising from the construction of a highway. The Salini test includes four elements: (a) a contribution of money or other assets of economic value; (b) a certain duration; (c) an element of risk; and (d) a contribution to the host state’s development.21 These requirements embody a balance between the private interests of foreign companies and the public interest of the host state because they ensure that economic activities are protected as long as they contribute to the economic development of the host state. While the ICSID Convention does not provide any definition of the term ‘investment’,‘the definitions of investment in contemporary treaties tend to be broad and open-​ended’, resting on the assumption that ‘foreign investment tends to spur economic development’.22 Yet, the quantitative tendency towards amplifying the definition of investment in treaties has not necessarily lent more clarity to its qualitative understanding. Moreover, several investment treaties require foreign investments to be made or owned ‘in accordance with’ or ‘in conformity with’ the laws of the host state. While some treaties incorporate this ‘legality requirement’ in the definition of investment, others do not.23 Whether the legality requirement should be presumed when the applicable treaty lacks such a provision is contentious. Therefore, with regard to the notion of investment, the clarification of this concept has been left to the interpretation of arbitral tribunals. For instance, in Cortec v Kenya,24 an arbitral tribunal established under the 1999 Kenya–​UK Bilateral Investment Treaty (BIT) held that it lacked jurisdiction to hear a dispute concerning a mining project that did not comply with domestic environmental law. The tribunal found that to be protected under international investment law, the mining licence at issue had to substantially comply with domestic law. Hence, the tribunal determined that the licence was not an investment for the purposes of the applicable investment treaty and was therefore not protected as such. Cortec planned to develop a niobium and rare earths mine at Mrima Hill in Kenya from 2007.25 Mrima Hill is located approximately 70 kilometres to the south of Mombasa and is ‘home to a natural forest’ which is ‘rich in biodiversity and rare species’.26 It also contains sacred forests (kaya) revered by the local indigenous communities as the sacred abodes of their ancestors.27 Cortec was initially granted a prospecting licence for its project and was subsequently granted a mining licence for an area that included Mrima Hill. However, following a change of government, the mining licence was revoked in 2013.28 In Kenya’s view, the conditions for the mining licence had not been met, and Kenyan law prohibited mining in Mrima Hill. Cortec advanced its claim on the basis that this revocation of the mining licence contravened multiple provisions in the BIT. According to the government, ‘the license was void ab initio for illegality and did not exist as a matter of law’.29 In fact, ‘as a matter of statute law, a number of key approvals and consents were required and conditions were to be satisfied before the investors could be allowed to obtain a valid mining license, including requirements 21   Salini Costruttori S.p.A. and Italstrade S.p.A. v Kingdom of Morocco, ICSID Case No. ARB/​00/​4, Decision on Jurisdiction, 23 July 2001. 22   Barton Legum, Address at the ICSID, OECD and UNCTAD Symposium: Defining Investment and Investor, 12 December 2005, at p. 2, available at https://​www.oecd.org/​inv​estm​ent/​intern​atio​nali​nves​tmen​t agr​eeme​nts/​36370​461.pdf. 23  Michael Polkinghorne, ‘The Legality Requirement in Investment Arbitration’ (2017) 34 Journal of International Arbitration 149–​168. 24   Cortec Mining Kenya Ltd, Cortec (PTY) Ltd, and Stirling Capital Ltd v Republic of Kenya, ICSID Case No. ARB/​15/​29, Final Award, 22 October 2018. 25 26 27 28 29   ibid, para. 1.   ibid, para. 42.  ibid.   ibid, para. 2.   ibid, para. 4.

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arising out of the special protected status of Mrima Hill as a forest reserve, nature reserve, and national monument’.30 The same Kenyan Mining Act has been prohibiting all prospecting and mining at Mrima Hill since 1997.31 Even domestic courts ruled that the mining licence was ‘void ab initio on the basis . . . that the mining of Mrima Hill was by statute prohibited’ and that, in any event, the claimants had not complied with Kenyan law.32 The arbitral tribunal concluded that the applicable BIT ‘protects only lawful investments’.33 To be protected, a mining licence must be in compliance with the domestic law that establishes and governs it.34 The alleged investment—​Cortec’s mining licence—​was procured by the claimants’ successful lobbying but was void from the outset because it had been issued in violation of Kenyan laws.35 The tribunal held that such a breach of domestic law could not be waived by politicians.36 Therefore, such a ‘licence’ did not constitute a protected investment under the BIT. Since there was no mining licence, there was no basis for tribunal jurisdiction under the BIT. The only valid licence held by Cortec was a prospecting licence, which ‘was not itself a license to make money [but] a license to spend money. Prospecting, as such, involves cost not revenue.’37 In 2019, Cortec sought an annulment of this award, arguing that regulatory compliance was not a jurisdictional issue and that there was no express legality requirement in the UK–​Kenya BIT. Therefore, according to the claimant, the reading of a legality requirement into the BIT and the resulting conclusion that their mining licence was not an investment amounted to an extrajurisdictional exercise of the tribunal’s powers. In parallel, the company also claimed that the tribunal failed to exercise jurisdiction over Cortec’s investments. The ad hoc Annulment Committee dismissed each of these arguments.38 For the Committee, reading an implicit legality requirement into the BIT is tenable; the Committee thus upheld the tribunal’s finding that the mining licence was not a protected investment on the basis that it failed to comply with Kenyan environmental law. As stated by the ad hoc Committee, ‘while international law protects property rights, the existence and scope of those rights are determined by municipal law; and in this case no such rights existed to protect’.39 In conclusion, as with other tribunals, the Cortec tribunal found that, even in the absence of a legality requirement in the text of the applicable BIT, the legality of the investment is a prerequisite for its protection under international investment law. While the jurisprudence remains divided, the Annulment Committee correctly clarified that this line of interpretation concerning the existence of implicit legality requirements is tenable. Moreover, scholars have discussed the presence of an implicit obligation that an investment must accord with host state and international legal principles for the claims related to that investment to be admissible.40 This line of reasoning can favour the interpretation and development of investment law in a manner that is compatible with domestic law 31 32 33   ibid, para. 5.   ibid, para. 43.   ibid, para. 7.   ibid, para. 9. 35 36   ibid, paras 222, 319, and 322.   ibid, paras 11, 222, 364–​365.   ibid, para. 105. 37   ibid, para 328. 38   Cortec Mining Kenya Ltd, Cortec (PTY) Ltd, and Stirling Capital Ltd v Republic of Kenya, ICSID Case No. ARB/​15/​29, Decision on Application for Annulment, 19 March 2021. 39   ibid, para. 143. 40   Rahim Moloo and Alex Khachaturian, ‘The Compliance with the Law Requirement in International Investment Law’ (2011) 34 Fordham International Law Journal 1473. 30 34

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and, albeit indirectly, international cultural heritage law. In fact, domestic law implements the WHC and reflects the general principles of international law that require the protection of cultural heritage in times of peace.

B.  Fair and Equitable Treatment The FET standard has become the most often invoked provision in investment treaty arbitration.41 Due to its deliberate vagueness, it constitutes a catch-​all provision covering situations where there is no finding of expropriation or any other breach of investment treaty standards. The FET standard is an absolute standard of treatment that is designed to provide a basic safeguard on which the investor can rely at any time, as opposed to the ‘relative’ standards embodied in both the ‘national treatment’ and ‘most favoured nation’ principles which, in contrast, define the required treatment by reference to the treatment accorded to other investments. The question of whether the FET standard protects the legitimate expectations of foreign investors has been answered in various ways.42 The concept of ‘legitimate expectations’ refers to the reasonable expectation of being treated in a certain way by administrative authorities, owing to some consistent practice or an express promise made by the concerned authority. Legitimate expectations do not constitute an independent cause of action. The question regarding whether the FET standard protects the legitimate expectations of the investor essentially concerns the level of protection that should be granted to foreign investors and their investments. While investors seek stronger investment protections, host states favour weaker restrictions concerning the exercise of their sovereign powers. In general terms, investors’ expectations cannot prevent states from regulating the use of investors’ rights in the pursuit of legitimate public policy objectives. Conversely, if a host state grants specific assurances to investors regarding the exploitation of their investment in the host state, the adoption of new regulatory measures affecting the economic value of their investment might amount to a breach of the FET standard. In Gosling v Mauritius, a group of British property developers brought a claim against Mauritius, alleging, inter alia, breach of the FET standard under the 1986 UK–​Mauritius BIT.43 Gosling and other investors planned to develop property at Le Morne.44 ‘A peninsula of outstanding beauty, and cultural and historical significance’, Le Morne ‘had been a place of refuge for escaped slaves, known as maroons’ in the nineteenth century.45 Due to its natural beauty and significance, Mauritius had pursued its inscription as a cultural landscape on UNESCO’s World Heritage List since 2003 and finally obtained it in 2008.46 To achieve this public objective, the government refused permission for the investors to build on the site. The investors, claimed that, inter alia, the government was in breach of the FET standard because it ‘frustrated their legitimate expectations by failing to honor specific assurances received from Government officials at the highest level’.47 41   See Rudolf Dolzer, ‘Fair and Equitable Treatment: Today’s Contours’ (2014) 12 Santa Clara Journal of International Law 7, 10 (pinpointing that ‘FET may be considered to be at the heart of investment arbitration’). 42   Michele Podestà, ‘Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept’(2013) 28 ICSID Review—​Foreign Investment Law Journal 88–​122. 43   Thomas Gosling, Property Partnerships Development Managers (UK), Property Partnerships Developments (Mauritius) Ltd, Property Partnerships Holdings (Mauritius) Ltd and TG Investments Ltd v Republic of Mauritius (Gosling v Mauritius), ICSID Case No. ARB/​16/​32, Award, 18 February 2020, para. 1. 44 45 46 47   ibid, para. 41.   ibid, para. 42.  ibid.   ibid, para. 168.

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The tribunal noted that ‘the level of treatment required to breach the [FET] standard has evolved’.48 While the standard ‘is a flexible one which must be adapted to the circumstances of each case, . . . flexibility does not mean that treatment will be determined by the subjective expectations of the investors. To be protected, [their expectations] must rise to the level of legitimacy and reasonableness.’49 In fact, such a standard must be interpreted ‘in a balanced manner’, considering ‘both state sovereignty and . . . the necessity to protect foreign investment’.50 In casu, the tribunal noted that the investors knew the state’s objective to inscribe Le Morne on the World Heritage List.51 The government ‘was entitled to change its policy’ and had given no assurance that it would not limit development to ensure inscription of Le Morne on the World Heritage List.52 As noted by the dissenting arbitrator, Professor Stanimir Alexandrov, ‘it is undisputed that the inscription of Le Morne as a UNESCO World Heritage Site was in the public interest of Mauritius and its people, and that it was a noble goal consistent with the objective of preserving the history of the place, honoring the dignity of the slaves who lived and died there, creating a symbol of freedom and human dignity, and—​last but not least—​preserving the physical beauty of Le Morne. In sum, [the] [r]‌espondent was fully entitled to prohibit any development at Le Morne . . . in the interests of the people of Mauritius—​and it did so.’53 The government never promised or assured the claimants that their proposed development project was compatible with the public policy objective of inscribing Le Morne as a UNESCO World Heritage site. Since there was no documented evidence of such an alleged promise, the tribunal held that the investors had no legitimate expectations of proceeding with their development project at Le Morne.54

C. Expropriation International investment treaties provide, inter alia, protection against unlawful expropriation. This raises two questions: whether a state action constitutes expropriation and, if it does, whether the expropriation is lawful. Several arbitrations have been concerned with the issue of what acts of the state amount to an expropriation. Treaty provisions lack a precise definition of expropriation, and their languages encompass a potentially wide variety of state activities that may interfere with foreign investments. IIAs usually clarify that expropriatory measures are lawful if adopted: (a) for a public purpose; (b) on a non-​ discriminatory basis; (c) in accordance with due process of law; and (d) on payment of compensation. Failure to satisfy any of these requirements will imply that the expropriation is unlawful and thus requires compensation. Expropriation includes both direct and indirect expropriation. Direct expropriation is typically done through a formal transfer of title or an outright seizure of property. Indirect expropriation indicates measures that do not establish a direct taking of the investment property but rather an interference with its use that deprives the owner of its economic benefit.55 While the concept of direct expropriation coincides with the notion of taking, 49 50 51   ibid, para. 243.   ibid, para. 244.   ibid, para. 245.   ibid, para. 249.   ibid, para. 249. 53   Gosling v Mauritius (note 43), Dissenting Opinion of Arbitrator Stanimir Alexandrov, 14 February 2020, para. 27. 54   ibid, Award, para. 286. 55  Brigitte Stern, ‘In Search of the Frontiers of Indirect Expropriation’, in Arthur W. Rovine (ed.) Contemporary Issues in International Arbitration and Mediation (Brill, Leiden, 2008) pp. 29–​52, 35. 48 52

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the precise boundaries of indirect expropriation are unclear. Under this rubric, regulation aimed at protecting world heritage may be classified as a form of indirect expropriation if it unduly affects the economic interests of foreign investors. While the difference between an illegitimate expropriation and a legitimate regulatory measure is easily distinguishable in theory, the growing number of cases concerning indirect expropriation demonstrates that the distinction is difficult to define in practice. Several investment treaty arbitrations have dealt with the question of whether state measures allegedly aimed at protecting world heritage may be deemed an indirect expropriation. For instance, in SPP v Egypt, the dispute arose after Egypt cancelled the development of a tourist residential complex near the pyramids, arguing that it had an obligation to do so under the WHC.56 SPP contended that the cancellation had resulted in an uncompensated and thus unlawful expropriation not truly based on the WHC.57 Rather, according to the claimant, Egypt used the WHC as a ‘post-​hoc rationalization’, since the pyramids had been included in the World Heritage List only after the cancellation of the project.58 The arbitral tribunal held that ‘the UNESCO Convention by itself does not justify the measures taken by the Respondent to cancel the project, nor does it exclude the Claimants’ right to compensation’.59 In fact, for the tribunal, only after the pyramids fields were nominated and inscribed on the World Heritage List, did the WHC become binding on Egypt. Furthermore, ‘a hypothetical continuation of the claimant’ activities interfering with antiquities in the area could [have] be[en] considered as unlawful from the international point of view’.60 Experts in international cultural heritage law criticized the award, indicating that, under Article 12 of the WHC,61 the protection of heritage is not contingent on the inscription of a site on any list but rather flows from ratification of the WHC as such.62 Accordingly, the outstanding and universal value would depend on the qualities of a site rather than on its formalistic evaluation. This latter line of interpretation, which is generally preferred by commentators, has been upheld by both domestic and international courts.63 The case of Glamis Gold Ltd v United States of America involved an area of the Californian desert that the Quechan Indian tribe deems a sacred place. Although the area is not on the World Heritage List, its cultural importance for the tribe is similar to the importance of Mecca or Jerusalem for other believers.64 When Glamis Gold, a Canadian mining company, planned to mine gold in the area, the tribe opposed the project because it would destroy the ‘Trail of Dreams’, a sacred path used for performing ceremonial practices.65 Although permission for the project was granted, emergency regulations required the backfilling of all open-​pit mines to recreate the approximate

56   Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt, Award on the Merits, 20 May 1992, ICSID Case No. ARB/​84/​3, paras 150–​158. 57 58 59 60   ibid, paras 150–​153.  ibid.   ibid, para. 154.  ibid. 61   Art. 12 of the WHC provides that: ‘The fact that a property belonging to the cultural and natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that in does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.’ 62   O’Keefe (note 3) 259–​261. 63   Patrick J. O’Keefe and Lyndell Prott, Cultural Heritage Conventions and Other Instruments (Institute of Art and Law, London, 2011); Vadi (note 3) pp. 121–​123. 64   Glamis Gold, Ltd v United States of America, Award, 8 June 2009, paras 103–​108, available at https://​ www.ita​law.com/​sites/​defa​ult/​files/​case-​docume​nts/​ita0​378.pdf. 65   ibid, para. 107.

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contours of the land prior to mining.66 Since the backfilling of open-​pit gold mines allegedly made the investor’s mining operation unprofitable, the latter filed an investment treaty arbitration claiming that state measures to preserve the skyline of ancient indigenous cultural landscape amounted,inter alia, to an indirect expropriation of its investment.67 In particular, backfilling would be uneconomic and arbitrary, since it would not be rationally related to its stated purpose of protecting cultural resources.68 For the claimant, ‘once you take the material out [of ] the ground, if there are cultural resources on the surface, they are destroyed. Putting the dirt back in the pit actually does not protect those resources’ but may even lead to the burial of more artifacts and cause greater environmental degradation.69 The arbitral tribunal found the claimant’s expropriation argument to be without merit.70 To distinguish a non-​compensable regulation and a compensable expropriation, the tribunal established a two-​tiered test to ascertain: (a) the extent to which the measures interfered with reasonable economic expectations and (b) the purpose and character of the governmental actions. First, the tribunal determined that the claimant’s investment remained profitable71 and that the backfilling requirements did not cause a sufficient economic impact on the investment to constitute an expropriation.72 Secondly, the tribunal deemed that the measures were rationally related to their stated purpose.73 The tribunal acknowledged that ‘some cultural artifacts w[ould] indeed be disturbed, if not buried, in the process of excavating and backfilling’ but concluded that, without such legislative measures, significant pits and waste piles in the near vicinity would harm the landscape.74 Therefore, it concluded that there was a reasonable connection between the harm and the proposed remedy. Remarkably, the tribunal also expressly referred to Article 12 of the WHC, which requires states to protect their cultural heritage even if it is not on the World Heritage List. The relevance of the WHC, irrespective of whether and, if so, when a given site has been inscribed on the World Heritage List, will likely be debated in a pending case concerning a World Heritage site that was inscribed on the World Heritage List in 2021. In 2015, Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd initiated a claim against Romania under the Romania–​Canada BIT and the Romania–​UK BIT.75 The claimants planned to develop a gold mine in Roşia Montană, which is located in the Apuseni Mountains of Transylvania, Romania. A historic mining district that has been mined intermittently since Roman times, the site includes evidence of the infrastructure and mining techniques.76 The project envisaged the development of an open-pit gold mine for exploiting gold and silver deposits at Roşia Montană with the use of cyanide in the extraction process.77 However, the state reportedly rejected the claimants’ environmental impact assessment and did not issue an environmental permit to allow exploration at the Roşia Montană gold mining site. The claimant alleged that the government had breached its treaty obligations by preventing implementation of the project without compensation and effectively depriving the investor of their investment’s value.78

67 68 69   ibid, para 183.   ibid, para 359.   ibid, para 321.   ibid, para 687. 71 72 73   ibid, para. 360.   ibid, para 366.   ibid, para 536.   ibid, para 803. 74   ibid, para 805. 75   Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No. ARB/​15/​, Request for Arbitration, 21 July 2015. 76 77 78   ibid, para. 4.   ibid, para. 24.   ibid, paras 7 and 37. 66 70

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In 2017, Romania applied to UNESCO to have the Roşia Montană site inscribed on the World Heritage List; in 2021, the Roşia Montană mining landscape was inscribed on the UNESCO World Heritage in Danger List.79 Thus, UNESCO noted that ‘the current mining proposal means that the integrity of the property is highly vulnerable’ and indicated the need for the Romanian government to enact adequate measures to prevent the extension of active mining licences on the site. As the case is still pending, it is unclear what effects, if any, the UNESCO inscription will have on the dispute. In Gosling v Mauritius, the investors contended that the denial of a building permit qualified, inter alia, as an indirect expropriation of their investment in Le Morne. They claimed that such an expropriation was unlawful, as no compensation had been paid.80 The respondent counter argued that the investors had never acquired the right to develop the area, as no permission had been granted.81 It also contended to have exercised its police powers in good faith when pursuing ‘its paramount policy objective of inscribing Le Morne as a UNESCO World Heritage Site’ and that the claimants admittedly knew this objective before making plans to build a resort at Le Morne.82 As the state clarified, ‘it was impossible for Mauritius to have both the UNESCO inscription of Le Morne and the claimants’ project’ because ‘the World Heritage Committee requested that the government not allow more development at Le Morne’.83 Finally, for the government, there was no expropriation, because the area was not deprived of its entire economic value; it retained at least a quarter of its market value. The arbitral tribunal held that the investors had never obtained the necessary permits and authorizations and thus did not have the rights to develop the area.84 On this basis, it dismissed the claim of indirect expropriation.

D. Remedies Under international law, if a state breaks an international obligation, it has the duty to repair the harm caused. Reparation ‘must, as far as possible, wipe out all the consequences of the illegal act and re-​establish the situation which would, in all probability, have existed if that act had not been committed’.85 The three principal forms of reparation are restitution, compensation, and satisfaction.86 Restitution refers to the re-​establishment of the situation that existed before the wrongful act was committed. If restitution is impossible, compensation—​ that is, ‘payment of a sum corresponding to the value which a restitution in kind would bear’—​is provided.87 Satisfaction is a residual remedy and ‘may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality’.88 It applies only insofar as restitution or compensation do not provide a remedy.89   https://​whc.une​sco.org/​en/​dan​ger/​ (last accessed 24 November 2021). 81   Gosling v Mauritius (note 43), Award, paras 167–​168.   ibid, para. 242. 82 83 84   ibid, para. 209.   ibid, para. 210.   ibid, para. 242. 85  PCIJ, Factory at Chorzów (Germany v Poland) Indemnity, Judgment, 13 September 1928, PCIJ Series A No, 17, p. 47. 86  International Law Commission (ILC), Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10, Doc. A/​56/​10, ch.IV.E.1, Art. 34. The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution adopted by the UN General Assembly, 21 March 2006, Doc. A/​RES/​60/​147, also include rehabilitation and guarantees of non-​repetition. 87  PCIJ, Factory at Chorzów (note 85) Judgment, p. 47. 88   ILC, Draft Articles (note 86) Art. 37. 89   James Crawford, State Responsibility (Cambridge University Press, Cambridge, 2013) pp. 527–​528. 79 80

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In investment arbitration, restitution in kind is rarely (if ever) granted; rather, compensation is the primary remedy in practice.90 A number of world heritage-​related arbitrations did not concern the question of whether reparation was due but centred on the amount (quantum) of compensation the host states owed to foreign investors. In particular, in these cases, the parties disagreed on the amount of compensation due to the foreign investor. The case of Compañia del Desarrollo de Santa Elena SA v Republic of Costa Rica91 involved a particularly beautiful natural area including over 30 km of Pacific coastline, as well as numerous rivers, forests, and mountains in Costa Rica. In addition to its geographical and geological features, the property was home to a dazzling variety of flora and fauna. Costa Rica directly expropriated the property of American investors to enlarge the Guanacaste Conservation Area, which was subsequently added to the World Heritage List. As the investor deemed that the compensation was not adequate, it filed a claim before the ICSID. The ICSID tribunal awarded compensation to the investors based on the property’s fair market value. In doing so, the tribunal restated that international law permits the host state to expropriate foreign-​owned property for a public purpose and against prompt, adequate, and effective compensation. However, the legitimate public purpose of the state measure does not affect either the nature or the measure of the compensation. The tribunal expressly noted that ‘the international source of the obligation does not alter the legal character of the taking for which adequate compensation must be paid’.92 Analogously, in Unglaube v Costa Rica, when events occurred in the same Guanacaste province 11 years later, the arbitral tribunal held that the creation of a national park to protect endangered leatherback turtles was a legitimate goal; however, the expropriation was indirect and unlawful due to state failure to pay compensation.93 The tribunal held that ‘while there can be no question concerning the right of the government of Costa Rica to expropriate property for a bona fide public purpose, pursuant to law, and in a manner which is neither arbitrary nor discriminatory, the expropriatory measure must be accompanied by compensation for the fair market value of the investment’.94 The tribunal added that if the state had properly provided for and paid compensation, ‘Costa Rica’s legal position would have been unassailable and this dispute might never have occurred’.95 However, the tribunal concluded that this had not been the case, and explicitly referred to the Santa Elena v Costa Rica case.96 A slightly different approach was adopted in SPP v Egypt concerning the cancellation of a construction project near the pyramids. While the tribunal awarded compensation to the investor, it reduced the amount of such compensation, stating that only the actual damage (damnum emergens) and not the loss of profit (lucrum cessans) could be compensated.97 The tribunal stated that ‘sales in the areas [inscribed on the World Heritage List] . . . would have been illegal under . . . international law’ and, therefore, ‘[t]‌he allowance 90   Christoph Schreuer, ‘Alternative Remedies in Investment Arbitration’ (2016) 3 Journal of Damages in International Arbitration 1–​30 at 4. 91   Compañia del Desarrollo de Santa Elena SA v Republic of Costa Rica, Award, 17 February 2000, ICSID Case No. ARB/​96/​1, 39 ILM 1317 (2000). 92   ibid, para. 71. 93   Marion Unglaube and Reinhard Hans Unglaube v Republic of Costa Rica, ICSID Case No. ARB/​09/​20, Award, 16 May 2012, paras 210 and 305. 94 95 96 97   ibid, para. 205.   ibid, para. 210.   ibid, paras 214–​218.   ibid, para. 157.

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of lucrum cessans may only involve those profits which are legitimate’.98 Furthermore, the fact that ‘the project was located in an area where the claimants should have known there was a risk that antiquities would be discovered’ was ‘reflected in the method used by the tribunal to value the claimants’ loss.’99 The tribunal thus displayed sensitivity to the tenets of the WHC in the determination of the quantum of compensation.

IV.  Treaty Conflict and Congruence Two principal avenues can facilitate balancing public and private interests in international investment law: (a) a ‘treaty-​driven approach’ and (b) a ‘judicially driven approach’.100 A text-​driven approach suggests reform to bring international investment law better in line with cultural concerns.101 It promotes the consideration of cultural heritage in international investment law, relying on the periodic (re)negotiation of IIAs. Treaty drafters can expressly accommodate the protection of world heritage in the text of future IIAs or renegotiate existing ones.102 For instance, reference to the protection of cultural heritage could be inserted in the preambles, exceptions, carve-​outs, and annexes of IIAs.103 Adding legality requirements in the definition of the protected investments is another legal tool that can ensure a proper balance between private and public interests. Yet, state practice remains uneven. Most existing IIAs do not contain any explicit reference to cultural heritage. Moreover, IIAs generally include ‘survival clauses that guarantee protection under the treaty . . . for a substantial period after the treaty has elapsed’.104 Therefore, ‘it is unrealistic to expect that treaty drafting can solve the conflict between [international investment law] and other community interests on its own’.105 While countries gradually rebalance their IIAs, it is crucial to consider other mechanisms to promote the consideration of cultural heritage in international investment law and arbitration.106 A judicially driven approach suggests that international investment law already possesses the tools needed to address the interplay between investors’ rights and cultural interests.107 Such an approach promotes the consideration of cultural heritage in international investment law and arbitration by arbitral tribunals. Its implicit assumption is that ‘[w]‌hile [international investment law] is a highly specialized system, it is not a self-​ contained one, but forms part of the general system of international law’.108 The WHC does not address its relationship with other treaties. Therefore, unless IIAs specifically address such an interplay, the resolution of any dispute concerning the priority of the WHC over an IIA is to be determined by general international law principles. Article 30 of the 1969 Vienna Convention on the Law of Treaties,109 which has codified customary international law on the matter, provides that where two treaties relate to the same subject matter, the later treaty will prevail. However, the WHC and IIAs do not ‘relat[e]‌to the same subject matter’; therefore, the lex posterior rule may not apply to   ibid, para. 190.    99  ibid, para. 251.   Mihail Krepchev, ‘The Problem of Accommodating Indigenous Land Rights in International Investment Law’ (2015) 6 Journal of International Dispute Settlement 42, 45. 101   Stephan W. Schill and Vladislav Djanic, ‘International Investment Law and Community Interests’, SIEL Working Paper No. 2016/​01 (2016) p. 4. 102 103 104   Vadi (note 3) pp. 277–​286.   Schill and Djanic (note 101) p. 15.   ibid, p. 16. 105 106 107 108  ibid.  ibid.   ibid, p. 4.   ibid, p. 16. 109   A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press, Cambridge, 2007) ch. 12. 98

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the WHC and IIAs. Analogously, the principle that a law governing a specific subject matter (lex specialis) prevails over a law governing only general matters (lex generalis) does not provide a clear-​cut solution, as both the WHC and IIAs belong to specialist areas of international law. In practice, as Redgwell highlights, ‘the question may not be one of precedence at all; it is not a matter of which treaty text prevails, but rather of interpreting the existing texts’.110 Under Article 31 of the Vienna Convention, which is generally deemed to reflect customary law, adjudicators should refer to the ordinary meaning of the words used in their context, and in the light of the object and purpose of the treaty. In addition, according to Article 31(3)(c) of the Vienna Convention, in interpreting a treaty, adjudicators shall consider ‘any relevant rules of international law applicable in the relations between the parties’.111 Arbitral tribunals have limited jurisdiction and cannot adjudicate on the infringement of international cultural heritage law. Yet, according to customary rules of treaty interpretation restated in the Vienna Convention, when interpreting a treaty, arbitrators can consider other international obligations of the parties.112 Therefore, arbitral tribunals can and should interpret international investment law in conformity with the system to which it belongs.113 In conclusion, there is scope for mutual supportiveness, cross-​fertilization, and dialogue between the international instruments under consideration through treaty interpretation to protect world heritage and promote sustainable development.

V. Conclusion Tension exists when a state adopts cultural policies that interfere with foreign investment because such policies may breach investment treaty provisions. As the WHC does not include a compulsory dispute resolution mechanism, investor–​state arbitration has catalysed an increasing number of world heritage-​related disputes. The adjudication of world heritage-​related disputes by arbitral tribunals has been a mixed blessing. Arbitral scrutiny can foster good cultural governance and the transparent pursuit of legitimate cultural policies. Arbitral tribunals are developing common legal principles that may contribute, albeit indirectly, to the protection of world heritage. Such principles may be usefully applied in adjudication to preserve an appropriate balance between public and private interests. While these principles are not exclusive to the protection of cultural heritage, they do aid in shaping cultural heritage law. This jurisprudence may also influence other international courts and tribunals, and even policymakers. More importantly, this jurisprudence contributes to the development of common legal principles, requiring the protection of cultural heritage and the respect of legality, fairness, and good faith in cultural governance, as well as the prohibition of arbitrary or unreasonable measures. By considering elements of cultural heritage law, arbitral tribunals may contribute to the development of general principles of law that uphold the protection of cultural heritage in times of peace. 110   See ‘The World Heritage Convention and Other Conventions Relating to the Protection of the Natural Heritage’ by Redgwell in this volume. 111   See C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279. 112 113   VCLT, Art. 31(3)(c).   Schill and Djanic (note 101) p. 16.

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Nevertheless, questions remain regarding whether investment treaty arbitration is the best forum to adjudicate world heritage-​related disputes and whether it adequately balances private and public interests, not only from an investment law perspective but also from a cultural heritage law perspective. Ultimately, arbitral tribunals have a specific function, namely to settle disputes between investors and host states; they cannot adjudicate violations of international cultural heritage law. In other words, arbitral tribunals have a mandate that differs from the mandate that a world heritage court would have if such a court existed. There is a risk that investment treaty tribunals water down or overlook noteworthy cultural aspects of a given case. Arbitrators may not have specific expertise in international cultural heritage law, as their appointment requires expertise in international investment law. At the same time, international investment law is gradually including non-​economic concerns in its operation. On the one hand, as IIAs are periodically renegotiated, cultural concerns can be included in their text in the form of exceptions, carve-​outs, legality requirements, and so on. On the other hand, the arbitrations examined in this chapter demonstrate that international investment law is not a self-​contained regime; rather, it is part of public international law and is gradually developing in conformity with it. The consideration of legality requirements as a necessary condition for protecting foreign investments enables mutual supportiveness between international investment law and (domestic law’s implementation of ) the WHC, as well as general principles of international law requiring the protection of cultural heritage in times of peace. Interpreting the WHC as a legal instrument that upholds the protection of cultural heritage because of its relevance (irrespective of its formal inscription on the World Heritage List) enables arbitrators to align their jurisprudence with that of other courts and tribunals and thus contribute to the development of general principles of law that uphold the protection of cultural heritage in times of peace. Interpreting the FET standard as covering only investors’ reasonable expectations enables arbitrators to recognize states’ obligations to protect their heritage. Finally, arbitral tribunals should consider cultural concerns in light of customary rules of treaty interpretation as restated by the Vienna Convention and should settle investment disputes ‘in conformity with principles of justice and international law’.114

114

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PA RT I V C O N C LU S I O N S

The Future of the World Heritage Convention: Problems and Prospects Francesco Francioni * and Federico Lenzerini **

I. Introduction  II. Problems and Gaps  III. The World Heritage Convention Turns 50: Which Perspectives? 

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I.  Introduction In the over 50 years since its adoption, the 1972 World Heritage Convention has proven to be a successful and effective instrument for the protection of cultural heritage and of natural environment of exceptional interest for humanity. The steady increase in the number of contracting parties (194 as of 20 June 2023)1 and of properties inscribed on the World Heritage List (1,157 after the 18th extraordinary session of the World Heritage Committee, held in Paris, 24 to 25 January 2023)2 bears witness to this success. This is certainly due in part to the great visibility of the system created by the Convention, which is well known by people all over the world, if not always in its technical legal aspects. This is a rare feature for an international convention, since only a very few multilateral treaties, for example the UN Convention on the Rights of the Child,3 the CITES Convention,4 and, to a more limited extent, the Antarctic Treaty,5 possess the capacity of projecting their effects beyond the spheres of governments or diplomatic or academic experts to become part of civil society and of the everyday lives of people. In nearly all countries of the world, people, even when they ignore the contents and details of the Convention as an international legal instrument, consider every property inscribed on the World Heritage List, and accompanied by the distinctive emblem of the Convention, as the ‘heritage of humanity’ tout court. This recognition goes beyond the ‘legal’ consideration

*  Professor Emeritus of Law, European University Institute, Florence. The author was President of the World Heritage Committee in the period 1997–​1998. **  Professor of International Law and Human Rights Law, University of Siena, Department of Political and International Sciences. Rapporteur of the ILA Committee on the Rights of Indigenous Peoples (2008–​2012) and of the ILA Committee on the Implementation of the Rights of Indigenous Peoples (2014–​2020). The author has occasionally been a Consultant to UNESCO. 1  See https://​whc.une​sco.org/​en/​states​part​ies/​ (last accessed 20 June 2023). 2  See http://​whc.une​sco.org/​en/​list (last accessed 20 January 2023). 3   UNGA Res. 44/​25 of 20 November 1989. 4   Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, available at http://​www.cites.org/​eng/​disc/​text.shtml (last accessed 30 April 2023). 5   Antarctic Treaty, 1 December 1959, available at https://​www.bas.ac.uk/​about/​ant​arct​ica/​the-​antarc​tic-​tre​ aty/​the-​antarc​tic-​tre​aty-​1959/​ (last accessed 30 April 2023).

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of the Convention as a treaty, whose effects are limited only to States Parties, and it is not diminished by the fact that each property inscribed on the List remains subject to the sovereignty of the state in whose territory it is located. Another reason for the success of the Convention is the involvement of the local population in the process of identification, presentation, and nomination of cultural and natural heritage sites for inscription on the World Heritage List. The importance of this involvement is stressed by the Operational Guidelines for the Implementation of the World Heritage Convention,6 which encourage States Parties to the Convention ‘to adopt a human-​rights based approach, and ensure gender-​balanced participation of a wide variety of stakeholders and rights-​holders, including site managers, local and regional governments, local communities, indigenous peoples, non-​governmental organizations (NGOs) and other interested parties and partners in the identification, nomination, management and protection processes of World Heritage properties’.7 In recent years, the World Heritage Committee has tried to further reinforce such a human rights approach, for instance through inserting in the Operational Guidelines a number of duties by States Parties towards Indigenous peoples, including that of obtaining their free, prior, and informed consent when appropriate (see ‘The World Heritage Convention and the Rights of Indigenous Peoples’ by Lenzerini and Sambo Dorough in this volume). The commitment of the local population in the inscription and management of World Heritage properties is also an essential condition for their sustainable use. States are eager to participate in the Convention system for the simple reason that inscription of their sites on the List provides them with high visibility and with great opportunities for their development, not least through attracting tourists. Paradoxically, an element that has contributed to the success of the Convention is its ‘soft’ character, in the sense of a clear prevalence of rights and advantages over legal obligations that States Parties derive from the Convention. On the one hand, states have only the very general duty of protection of cultural and natural heritage of outstanding universal character and of cooperation at the international level in order to improve the standards for safeguarding the heritage concerned; on the other hand, they obtain significant tangible advantages from inscription on the List of a property situated in their national territory. Also, the Operational Guidelines, although they have progressively become more and more demanding in terms of duties for States Parties (e.g. in terms of paying attention to the rights of Indigenous peoples, as just noted), do not appear to be the source of effective and ‘enforceable’ state obligations. One may reasonably argue that States Parties have effective obligations only with respect to their properties after their inscription on the List. Even in such cases, it is a ‘simple’ obligation of preserving the original outstanding universal value of the property concerned. Only in marginal cases might this obligation result in effective restraints on the freedom that national governments enjoy in seeking the maximum advantages from the inscription of the property on the List. This is demonstrated by the fact that, in the context of the implementation of the Convention, only in a very few cases (if compared to the enormous number of sites inscribed on the List)—​such as those of the Kakadu National Park, Machu Picchu,

6   The full text of the Operational Guidelines (Doc. WHC.21/​01, of 31 July 2021), as modified in 2021, is available at https://​whc.une​sco.org/​docum​ent/​190​976 (last accessed 30 April 2023). 7   See para. 12.

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the Whale Sanctuary of El Vizcaino,8 or Cologne Cathedral—​have states come under great pressure, and sometimes been forced, to abandon their plans of economic development involving or affecting World Heritage properties as an effect of their obligations arising from the inscription of such properties on the List. However, for the first time in 2007, a state faced the deletion of one of its properties from the World Heritage List as a consequence of its non-​compliance with the obligations set up by the Convention. This measure was taken by the World Heritage Committee, as its 31st session, with respect to the site of the Arabian Oryx Sanctuary (located in Oman), due to the national government’s decision to reduce the size of the protected area by 90% in view of pursuing hydrocarbon exploration activities within the original boundaries of the property. This was considered by the Committee as leading ‘the property to [deteriorate] to the extent [of losing] its Outstanding Universal Value and integrity’.9 Since then, two other cases of deletion of properties from the World Heritage List have occurred. First, in 2009, Germany’s Dresden Elbe Valley was delisted ‘due to the building of a four-​lane bridge in the heart of the cultural landscape which meant that the property failed to keep its “outstanding universal value as inscribed” ’.10 More recently, in 2021, the World Heritage Committee decided to delist the UK’s property of Liverpool—​Maritime Mercantile City ‘due to the irreversible loss of attributes conveying the outstanding universal value of the property’ caused by the realization of an extensive urban development project in the area of the property itself.11 This preoccupying trend casts some shadows on the future as regards the integrity of the system established by the World Heritage Convention.

II.  Problems and Gaps The remarkable success of the Convention cannot hide certain problems that are consequent on the ‘philosophical background’ which inspired its adoption in 1972, as well as on the textual choices made during the negotiations and the drafting of the Convention. Most of these problems, which could be considered for a future hypothetical revision of the Convention, derive from the generally shared idea of international law in the early 1970s, when it was still strongly centred on the conception of state sovereignty. When the negotiations for the conclusion of the Convention started, the international community had only recently accepted (through the adoption of the two 1966 covenants on human rights)12 that the activities performed by a state within the borders of its own national jurisdiction could be the object of scrutiny by international law in the event of unacceptable breaches of human rights and human dignity. This result had been reached with much difficulty (after nearly 20 years of negotiations), and a number of states were still reluctant to consider the possibility of ratifying the two covenants. Against this general background, it is easily imaginable how most states were unwilling to accept that the most important 8   These cases are described in detail in F. Lenzerini, ‘Lo “sfruttamento minerario sostenibile” come principio emergente nel diritto internazionale contemporaneo’ (2004) Rivista Giuridica dell’Ambiente 165 ff. 9   See Decision 31COM 7B.11, available in Doc. WHC-​07/​31.COM, of 31 July 2007, p. 50. 10   See ‘Dresden is deleted from UNESCO’s World Heritage List’ (25 June 2009), available at https://​whc. une​sco.org/​en/​news/​522/​ (last accessed 30 April 2023). 11   See ‘World Heritage Committee deletes Liverpool—​Maritime Mercantile City from UNESCO’s World Heritage List’ (21 July 2021), available at https://​whc.une​sco.org/​en/​news/​2314/​ (last accessed 30 April 2023). 12   See International Covenant on Economic, Social and Cultural Rights, UNGA Res. 2200A (XXI) of 16 December 1966, 993 UNTS 3; International Covenant on Civil and Political Rights, UNGA Res. 2200A (XXI) of 16 December 1966, 999 UNTS 171.

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items of natural and cultural heritage within their respective areas of jurisdiction could be the object of international scrutiny such as to erode their full territorial control in the name of the ‘general interest of humanity’. Yet, a number of principles had already begun to emerge in the context of international law with respect to the need to safeguard cultural property and the natural environment in the name of the general interest of the international community—​notably, with the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflicts13 and with the 1972 Stockholm Declaration on the Human Environment (see the Introduction by Francioni).14 The final text of the Convention, although largely inspired by these developments and by the fundamental idea that cultural and natural heritage of outstanding universal value must be preserved in the general interest of humanity, remains conditioned by the recognition of the supreme sovereignty of states with respect to the properties located within their respective territories. Virtually any action that may be decided and carried out by the institutional bodies created by the Convention is conditioned to preventive acceptance by the state concerned. The tension between state sovereignty and the effective safeguarding of the outstanding universal significance of the heritage protected by the Convention, which transcends national borders, was thus resolved in favour of a state-​oriented approach. This choice is still reflected in the rigid requirement of the territorial state’s consent for the inscription of a property on the World Heritage List,15 as explicitly dictated by Article 11, paragraph 3. The rigidity of this clause certainly weakens the purpose of the Convention, since, although it is clear that the territorial state’s consent is not an element determining the objective value of a cultural or natural property, the lack of such consent to nominate a property actually results in the impossibility of extending the safeguarding system set up by the Convention to properties of exceptional significance for humanity (whose outstanding universal value may be unanimously recognized by the international scientific and cultural community). This may be a problem not only in extreme situations, for example in cases of internal armed conflicts when there may no longer exist an entity that can be defined as a government (thus capable of expressing the consent in point), but even in times of peace and stability, when the government concerned is simply not willing to give its consent to the inscription of an item on the List. This may happen, for example, when a given property represents a national minority or an Indigenous community whose culture is treated with indifference or even hostility by the territorial government,16 notwithstanding the recent positive developments in this regard, as noted earlier, or when the property is located in an area whose sovereignty is disputed by two states.17 The consent of the state concerned is also required for international assistance. Article 19, in opening Chapter V of the Convention, concerning the ‘Conditions and Arrangements for International Assistance’, explicitly states that it may be requested by ‘[a]‌ny State Party . . . for property forming part of the cultural or natural heritage of 13   The full text of the Convention is available at https://​en.une​sco.org/​sites/​defa​ult/​files/​1954​_​Con​vent​ ion_​EN_​2​020.pdf (last accessed 30 April 2023). 14   The full text of the Declaration is available at https://​wed​ocs.unep.org/​bitstr​eam/​han​dle/​20.500.11822/​ 29567/​ELGP​1Sto​ckD.pdf?seque​nce=​1&isAllo​wed=​y (last accessed 30 April 2023). 15   See F. Francioni, ‘Thirty Years On: Is the World Heritage Convention Ready for the 21st Century?’ (2002) XII Italian Yearbook of International Law 13, 30. For possible reform of the convention, see P. Strasser, ‘Putting Reform into Action—​Thirty Years of the World Heritage convention: How to Reform a convention Without Changing its Regulations’ (2002) 11 International Journal of Cultural Property 215–​262. 16 17   Francioni, ibid, 30.   See note 18.

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outstanding universal value situated within its territory’. This limitation appears rather illogical in consideration of the fact that the Convention provides protection for natural and cultural heritage of outstanding universal value in the general interest of humanity and, therefore, the responsibility of the World Heritage Committee to act for preserving such interest should not be conditioned a priori by the request of the territorial state, especially in cases of urgent need. It is, in fact, quite paradoxical that due to the requirement in point, in most cases international assistance may not be given in cases when it is most necessary, particularly in emergency situations (internal strife, civil war, etc.) that put the territorial government in the practical impossibility of asking for such assistance. This is another element limiting the effectiveness of the Convention. A further problem linked to the sovereignty-​oriented approach followed by the drafters of the Convention lies in the fact that the Convention is applicable only to areas subject to national sovereignty. This prevents the consideration for World Heritage inscription of sites located in areas over which sovereignty is claimed by more than one state (unless the states concerned decide to proceed to a joint nomination)18 or in areas beyond state sovereignty, such as Antarctica and the international marine areas.19 Finally, the deference for territorial states’ sovereignty has proved to be problematic with respect to inscription of a property on the List of World Heritage in Danger. Certain states20 have maintained the view, on the basis of the text and legislative history of the Convention, that consent of the territorial state would always be necessary for such inscription. This view may be correct in ordinary circumstances, when inscription of a property on the List of World Heritage in Danger is the result of the normal process of cooperation between the territorial state and the World Heritage Committee. However, as relevant practice demonstrates, it would defeat the object and purpose of the Convention to hold the Committee hostage to a non-​cooperating state which unreasonably refuses, for prestige or other reasons, to give its consent to placing a property in the List of World Heritage in Danger, when such a danger has been recognized by the Advisory Bodies and no alternative is available to meet the ‘urgent need’ for action recognized by Article 11, paragraph 4 of the Convention (see the commentary on Art. 11 by Buzzini and Condorelli).21 18   See, e.g., the cases of the Karakorum mountains and of Mount Zion. These disputes, involving respectively India and Pakistan, and Israel and the Arab States, de facto hindered the inscription of the properties concerned in the List, despite the fact that Art. 11, para. 3, of the Convention expressly states that ‘[t]‌he inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute’. See Francioni (note 15) 32. The author notes how ‘[t]hese disputes stem from a profound misconception of the World Heritage Convention, which is not an instrument for the advancement of national goals, prestige or territorial claims, but rather a tool for promoting cooperation and for safeguarding heritage of exceptional intrinsic value, not only for the community concerned, but for humanity as a whole, independently of where it is located’. 19   See, however, the Report ‘World Heritage in the High Seas: An Idea Whose Time Has Come’, World Heritage Reports, 44, 2016, available at https://​whc.une​sco.org/​docum​ent/​143​345 (last accessed 30 April 2023), which explores the possible mechanisms by which the system of the World Heritage Convention could be modified to allow the inscription on the World Heritage List of sites in Marine Areas beyond National Jurisdiction (ABNJ). 20   Especially Australia, in connection with the vicissitudes linked to uranium mining in the enclave of Kakadu National Park. On this case, see ‘Report on the mission to Kakadu National Park, Australia, 26 October to 1 November 1998’, UNESCO Doc. WHC-​98/​CONF.203/​INF.18, of 29 November 1998; the Report was prepared by a special mission appointed by the World Heritage Committee and chaired by Prof. Francesco Francioni. See also Lenzerini (note 8) 165 ff. 21   See also Francioni (note 15) 33 f.

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The Future of the World Heritage Convention: Problems and Prospects

As for the scope of the Convention, it is to be noted that, in practical terms, its system of safeguarding and protection is extended only to properties inscribed on the World Heritage List. Although Article 12 also demands protection for properties ‘belonging to the cultural or natural heritage . . . not . . . included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 . . . for purposes other than those resulting from inclusion in these lists’, in practice that provision has proved too soft for translating into practical outcomes, although its conceptual significance remains unaltered and it may thus be invoked in blatant situations of violation of the general duties and obligations contemplated by Chapter II of the Convention with respect to non-​inscribed properties (see the commentary on Art. 12 by Lenzerini). An unresolved ambiguity of the Convention, which is especially evident under an ‘evolutionary’ perspective, is connected to the requirement that a property, in order to be entitled to protection under the system established by the Convention, must be of ‘outstanding universal value’ (see the commentaries on the Preamble by Francioni, on Art. 1 by Yusuf, and on Art. 2 by Redgwell). In the implementing practice of the World Heritage Committee, the existence of this condition is linked to the evaluation, based upon objective and stereotyped criteria, that a property, as emphasized by the Committee itself at its very first session, is considered of great importance and significance by at least ‘a large or significant segment of humanity’.22 This characterization of the Convention system may not take sufficiently into account the contemporary concern of the international community for the diversity of cultural expressions,23 as well as the different philosophies and visions of the different peoples of the world concerning the identification of (particularly) cultural heritage which is considered as exceptionally valuable for a distinct group or community, including, for instance, Indigenous peoples. Concepts such as ‘value’, ‘significance’, and ‘outstanding character’ are inherently subjective, and their objectivization may lead to the creation of a stereotyped vision of cultural and natural heritage which may not be sufficiently inclusive of its richness of pluralism and cultural diversity. In order to overcome this limit, the Committee has increasingly focused on the element of ‘representativity’ of the List and has thus engaged on the difficult task of focusing on the significance of certain properties whose intrinsic value rests in their importance for a given people or community as an essential part of its distinctive identity, even if, from an artistic or aesthetic point of view, their value may not be immediately perceived by other peoples or communities. This approach has the value of promoting the role of the Convention as a tool to facilitate the meeting of and exchange between different cultural experiences and a shared understanding of natural heritage between different peoples of the world. In practice, this can be done through the adoption of a more ‘pluralistic’ and ‘diversity-​oriented’ approach with respect to the third criterion for inscription on the List as contemplated by the Operational Guidelines,24 according to which a property is of outstanding universal value when it ‘bear[s]‌a unique or at least

22   See World Heritage Committee (1st session), Paris, 27 June–​1 July 1977, Issues arising in connection with the implementation of the World Heritage Convention, Doc. CC-​77/​CONF.001/​4, of 9 June 1977, para. 17. 23   This concern was eventually translated into the adoption of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, available at https://www.unesco.org/ creativity/en/2005-convention (last accesed 20 June 2023). 24   Operational Guidelines, para. 77 (iii).

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exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared’. It is doubtful whether this goal may be achieved by the mechanical criteria adopted by the World Heritage Committee at its 24th session, in Cairns, Australia (27 November–​2 December 2000). The so-​called ‘Cairns Decision’ limited the number of nominations that could be submitted to the Committee by a State Party each year (see the commentary on Arts 8–​11 by Scovazzi), with preferential treatment accorded to those parties which have no cultural properties on the List.25 In taking this decision, the Committee was inspired by the commendable conviction of the need to reduce the imbalance existing in the World Heritage List, on which certain States Parties (mainly developed countries) had inscribed a very large number of properties, while others still have to inscribe their first site. One of the main reasons leading to such imbalance lies in the fact that the submission of a property for inscription on the List implies a burden of work whose fulfilment requires particularly advanced technical and administrative competences, often unavailable in developing countries. At the same time, certain developed states have matured a degree of experience that allows them to comply with all required documentation and formalities more effectively than other countries submitting properties for the first time. Naturally, it is commendable that the Committee tries to establish mechanisms suitable for increasing the opportunities for developing countries to improve their effective participation in the system of the Convention. However, the limitations and ‘quotas’ introduced with the Cairns Decision are hardly consistent with the spirit and purpose of the Convention—​as is witnessed by the subsequent gradual reconsideration and amendment of that Decision (see the commentary on Arts 8–​11 by Scovazzi, Section IV.B). At the same time, the ‘quotas’ method confirms the state sovereignty-​oriented approach of the whole Convention system. The Convention aims at safeguarding cultural and natural properties of outstanding universal value (to be evaluated according to objective criteria) as the heritage of the whole of humanity, irrespective of where they are located. It is self-​evident that such heritage may not be homogeneously distributed in the different countries of the world. It is thus an inescapable consequence that certain countries may have more properties inscribed on the List than others. The system established with the Cairns Decision could have led to the paradoxical result of blocking the inscription of unique or exceptionally valuable properties for the sole reason of being located in a country which already had cultural sites inscribed on the List. The risk here is that of adulterating the mission of the Convention, in the sense of transforming it from a legal instrument designed to safeguard the outstanding manifestations of cultural and natural heritage in the interest of humanity, into a political tool aimed at defending and promoting state interests in giving visibility and prestige to their domestic heritage. The strong fiduciary spirit developed in UNESCO and the World Heritage Committee in the over 50 years of implementation of the Convention should provide the best guarantee that this risk will be averted, and that the Convention will continue to be the authoritative inventory of the exceptional examples of cultural and natural heritage and the most widely accepted instrument of international cooperation for their preservation.

 See http://​whc.une​sco.org/​en/​cai​rns/​ (last accessed 30 April 2023).

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The Future of the World Heritage Convention: Problems and Prospects

III.  The World Heritage Convention Turns 50: Which Perspectives? After two decades of the twenty-​first century, with the continuous increase of States Parties, the Convention has become the most successful and dynamic instrument within the family of UNESCO’s Conventions. Despite the gaps and inconsistencies noted previously, it is progressively creating a global network including nearly all the outstanding examples of cultural and natural heritage existing in the world, thus ensuring their correct preservation and transmission to future generations. However, it is exactly the enormous success of the World Heritage Convention that is now generating signs of institutional fatigue which may become a threat to the whole system. On the one hand, the number of sites inscribed on the List is constantly increasing, and is thus becoming too high to permit adequate and effective monitoring by the World Heritage Centre, whose resources are not correspondingly augmented. On the other hand, an abrupt blockage or shrinkage of the opportunities for new inscriptions in the List, expanding the approach already initiated with the adoption of the Cairns Decision, would undoubtedly provoke a loss of interest by those states that so far have been most active in the Convention system, leading to its inevitable decline at an economic and political level. To prevent this occurrence, action seems to be required at two distinct policy levels. On the one hand, specific measures should be taken to reinforce the institutional framework on which the system of international cooperation depends. With 194 States Parties, this should entail the availability of more governmental resources and more opportunities for partnership in support of the conservation and monitoring programmes falling within the responsibility of the World Heritage Centre and the Advisory Bodies and in furtherance of the increasing demand for the coordination of their action with other divisions of the UNESCO Secretariat and with other international institutions. On the other hand, it is essential that the very notion of World Heritage be brought home to the States Parties in the sense of making the Convention part of their domestic legal systems so as to make it applicable by administrative and also by judicial means, when necessary. This should lead to a decentralized implementation of the Convention and to the reduction of the administrative and bureaucratic burden of the World Heritage Centre, while ensuring a direct commitment of parties and the future sustainability of the Convention system. Last but not least, the process furthered by the World Heritage Committee in the last few years, with a view to increasing the consistency of the World Heritage Convention with other instruments and rules potentially (and actually) affected by its operation—​as analysed in Part III of this Commentary—​should be further advanced to enhance the role of the Convention as an instrument promoting the social and cultural advancement of all members of the human family, none excluded.

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Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages.  Tables are indicated by t following the page number Aarhus Convention 1998 296 Abu Simbel, Egypt  10, 13–​14, 16, 22–​23, 204–​5, 264, 265–​66 access to information  Convention on Access to Information, Participation in Decision-​making and Access to Justice in Environmental Matters 1998  84 information programmes  290 reports on implementation of WHC  296 accession to WHC  312, 316 additional information, requests for  international assistance  285–​87 Advisory Bodies (Article 14)  237–​47, see also ICOMOS (International Council of Monuments and Sites); Rome Centre (ICCROM International Centre for the Study and Preservation and Restoration of Cultural Property); World Conservation Union (IUCN) biodiversity conventions  338–​39 capacity building  246 consultation with  237–​38 future of the WHC  428 Global Strategy  244–​45 identification and delineation of world heritage properties  85, 93, 96 international assistance  247, 285–​87 national and international protection  117 natural heritage, treaties and conventions protecting  335–​36 nominations  242–​44 periodic reporting  245–​46 preliminary assessment  245 profiles  240–​42 reactive monitoring  245–​46 reports  295, 298, 300–​2, 303, 304 research 246 roles of  242–​47 Statements of Outstanding Universal Value  243–​44 Tentative Lists  143–​44 Upstream process  245 utilization of  222 World Heritage Centre  223–​24, 228, 229–​31, 232–​ 33, 234–​35, 237–​47 World Heritage Centre, interrelationship with  237–​39 World Heritage Committee  137–​39, 141, 204, 208, 210, 211, 213–​15, 218–​20 World Heritage List  143–​44, 148–​49, 150, 155–​56, 160 aesthetics  cultural heritage  30, 34 natural heritage  65, 70 natural properties, identification of  89, 152

Afghanistan, Buddhas of Bamiyan  118, 131–​32, 193–​ 94, 362–​63, 371 African Commission on Human and Peoples’ Rights  383–​84 African Development Bank 268 African World Heritage Fund  262–​63 Agence Française de Développement 268 Agenda for Sustainable Development 2030  93–​94 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979  145–​46 agricultural landscapes  56–​57 air pollution  3–​4 American Declaration on the Rights of Indigenous Peoples (ADRIP)  378–​79, 390, see also indigenous peoples Angkor Wat, Cambodia  116, 263–​66 Antarctic  Antarctic Specially Protected Areas  146 marine cultural and natural heritage, protection of  Antarctic Treaty System  392–​93 Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR)  400 Protocol on Environmental Protection to the Antarctic Treaty  397 Antarctica  3–​4, 146, 425 Apia Convention 341 Arabian Oryx Sanctuary, Oman  157–​58, 184, 186–​87, 422–​23 archaeological heritage  archaeological landscapes  56–​57 archaeological sites, reconstruction of  152–​53 European Convention on the Protection of the Archaeological Heritage 1994 (Valletta Convention) 333 archipelagic waters  146–​47 architecture  30, 34, 151, 153–​54 archives of reports 304 armed conflicts 23 biodiversity conservation in regions of  266–​67 cultural heritage, protection of  4 future of the WHC  424 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954  9–​10, 25–​26, 235–​36, 323–​25, 423–​24 content 324 First Protocol  325–​26 scope  324–​25 Second Protocol  326–​27 significance  323–​24 human rights  Aleppo, Syria  362 Buddhas of Bamiyan, Afghanistan  362–​63, 371

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Index

armed conflicts (cont.) Diyarbakir, Turkey  361–​62 Jerusalem  361–​62 Mount Hamiguitan Range Wildlife Sanctuary, Philippines  361–​62 Ngorongoro Conservation Area, Tanzania  361–​62 Old City of Dubrovnik, Yugoslavia  361–​62 Sana’a, Yemen  362 Temple of Preah Vihear, Cambodia  361–​62 Timbuktu, Mali  361–​62, 371 Virunga National Park, Democratic Republic of the Congo  361–​62 national and international protection  130 Project on Biodiversity Conservation in Regions of Armed Conflict  344 proposals for reinforcement of protections  318 registration of cultural property  26 risks and dangers to heritage  23 World Heritage in Danger List  323 World Heritage Convention 1972  323–​27 Artemis Accords 2020 146 Article 1 WHC see cultural heritage (Article 1); cultural landscapes (Article 1) Article 2 WHC see natural heritage, definition of (Article 2) Article 3 WHC see identification and delineation of world heritage properties (Article 3) Articles 4–​7 WHC see national and international protection of cultural and natural heritage (Articles 4–​7) Articles 8–​11 WHC see World Heritage Committee (Articles 8–​11); World Heritage List (Articles 8–​11) Article 11 WHC see World Heritage in Danger List (Article 11) Article 12 WHC see unlisted properties of outstanding universal value (Article 12) Article 13 WHC see World Heritage Committee and international assistance (Article 13) Article 14 WHC see Advisory Bodies (Article 14); World Heritage Centre (Article 14) Articles 15–​18 WHC see World Heritage Fund (Articles 15–​18) Articles 19–​26 WHC see international assistance (Articles 19–​26) Articles 27–​28 WHC see educational programmes (Articles 27–​28) Article 29 WHC see reports on implementation of WHC (Article 29) Articles 30–​33 and 35–​38 WHC see final clauses (Articles 30–​33 and 35–​38) Article 34 WHC see federal or non-​unitary constitutional systems (Article 34) artistic works  89, 152 associative cultural landscapes  48, 50, 54–​55, 56–​57, 90, 152 see also cultural landscapes, definition of Athens Charter 1933 8 Athens Conference 1931 8 Australia  Budj Bim  62 convict sites  95

federal or non-​unitary constitutional systems  308–​9 Great Barrier Reef  69, 96, 146–​47 Kakadu National Park  96, 178, 341, 422–​23 Murujuga 62 Tentative Lists, legal obligations arising from inclusion 86 Uluru Kata Tjuta National Park  54–​55 Austria, Vienna Historic Centre 180 authenticity of cultural heritage  35, 46–​48 evolutionary processes  47 groups of buildings  46–​47 Guidelines  47–​48 intangible cultural heritage  43 material, design, workmanship, and setting  47 monuments  46–​47 Nara Conference on Authenticity 1994  47 Nara Document on Authenticity 1994  46–​47 national and international protection  102 outstanding universal value  46–​47, 49 reconstructions and major interventions  47 sites  46–​47 sociocultural change  47 spirit and feeling  47 traditions and techniques  47 use and function  47 Venice Charter 1964  46–​47 World Heritage List  46–​47, 150, 152–​53 authenticity of natural heritage  72–​73 Bagan, ancient city of, Myanmar  193–​94 Bagrati Cathedral, Georgia  176–​77 Belfries of Flanders, Artois, Hainaut, and Picardy, France 145 Belfries of Flanders and Wallonia, Belgium 145 Belgium, Belfries of Flanders and Wallonia 145 beliefs  89, 152 Belize Barrier Reef System 183 belligerent occupation  361–​63, see also armed conflicts Bethlehem, Church of the Nativity and the Pilgrimage Route  159–​60 biodiversity  Apia Convention  341 Biodiversity Conservation in Regions of Armed Conflict  266–​67 biodiversity conventions  336–​44 Biodiversity Liaison Group  338–​39 Biological Diversity Convention 1992  72, 236, 336–​ 39, 348–​49 biosphere reserves  341, 344 CITES  336–​37, 340–​41, 342, 348–​49 climate change  343, 346–​48 Conservation of Migratory Species Convention 1979  336–​37, 342, 348–​49 cooperation agreements  340t cooperation, modes of  338–​40 joint sites  340–​44 danger listing  341–​42 emergency response  341–​42 joint funding  342–​44 site listing  340–​41 site visits  341–​42 Man and Biosphere Programme  340–​41

Index marine biodiversity  345–​46 marine protected areas  345–​46 Memorandum of Understanding  340, 342 natural heritage, definition of  64–​66, 69–​70, 72, 74, 75–​76 natural properties, identification of  89 Project on Biodiversity Conservation in Regions of Armed Conflict  344 Ramsar Convention 1997  336–​37, 338–​39, 340–​42, 344, 348–​49 Ramsar Scientific and Technical Review Panel  338–​39 biological criteria  69–​70 biological processes  89, 152 biomes  64–​65, 69–​70, 76 biosphere reserves  76, 341, 344 Man and Biosphere Programme  235–​36, 340–​41 boundaries  74, 93, see also transnational and transboundary properties unlisted properties of outstanding universal value  194 Brazil  federal or non-​unitary constitutional systems  305–​6 Budapest Declaration 2002  educational programmes  290 Buddhas of Bamiyan, Afghanistan  118, 131–​32, 193–​ 94, 362–​63, 371 Budj Bim, Australia 62 buffer zones  64–​65, 74–​75, 91–​93 biodiversity protection  338 CITES  336–​37, 340–​41, 342 construction within  91–​92 need for  91 Operational Guidelines  91 rationale for  91 size and characteristics  91 World Heritage in Danger List  91 World Heritage List  153 Bureau of the World Heritage Committee 136 Cairns decision  77, 155–​56, 426–​27, 428 Cambodia  Angkor Wat  116, 263–​66 Temple of Preah Vihear  160 Canada  Pimachiowin Aki (‘The Land that Gives Life’)  58–​59, 60–​61, 62 Red Bay Basque Whaling Station  391 Waterton Glacier International Peace Park  94 capacity building  Advisory Bodies  246 IUCN 246 World Heritage Centre  230–​31 World Heritage Committee  135–​36 Cape Floral Region, South Africa 347 Caux Call for Action on Rights-​based approaches in World Heritage  87–​88 cave dwellings  30, 33 celestial bodies, sites located on  145–​46 China  federal or non-​unitary constitutional systems  306 Sichuan Giant Panda Sanctuaries  77–​78 Church of the Nativity and the Pilgrimage Route, Bethlehem, Palestine  159–​60, 196

431

Cinque Terre  56–​57 Circle of Life  374–​75 CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973)  75, 236, 336–​37, 340–​41, 342, 348–​49 cities  92–​93 civilizations, testimony to  89, 151 clearly defined landscapes designed and created intentionally by humans  48, 50, 53–​54, 57 climate change 76 biodiversity loss  346–​47 Cape floral kingdom and Succulent Karoo, South Africa 347 Intergovernmental Panel on Climate Change  347–​48 Policy Document on the Impacts of Climate Change on World Heritage Properties  347–​48 State of Conservation Reports  347–​48 treaties and conventions  346–​48 United Nations Framework Convention on Climate Change 343 World Heritage Centre  347–​48 World Heritage Committee  347–​48 World Heritage Programme for Small Island Developing States  347 Code of Conduct or Statement of Ethical Principles (Working Group, 2019) 142 collective assistance 205 collective interests  105, 120–​28 common heritage of mankind  120–​23 erga omnes obligations  120–​23, 124, 126, 127–​28, 130–​31 erga omnes partes obligations  105, 124, 127–​28 existence of  105 importance of the interests test  126–​27 Operational Guidelines  129, 130 significance of  105 World Heritage List  158 Cologne Cathedral, Germany  91, 157, 175–​76, 309–​10, 422–​23 Colombia  Gorgona Island  345–​46 Malpelo Fauna and Flora Sanctuary  77–​78, 345–​46, 391 Committee of Environmental Protection  marine cultural and natural heritage, protection of  397 common concern, concept of  5–​6 common heritage of mankind  120–​23 marine cultural and natural heritage, protection of 397 common interest of humanity, concept of  5–​6 Community Management of Protected Areas for Conservation (COMPACT) 343 compensation in international investment disputes 413, 414 Comprehensive Partnership Strategy 237 conceptual development of the WHC  8–​18, 23–​24 Athens Charter  8 cultural heritage of mankind  14 cultural heritage, protection of  9–​10 Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954  9–​10 groups of buildings  14–​15

432

Index

conceptual development of the WHC (cont.) ICOMOS (International Council on Monuments and Sites)  10, 13–​14 international campaign to save the Nubian monuments in Abu Simbel and Philae  10, 13–​14, 16 international standards, development of  10 monuments  14–​15 Recommendation on International Principles applicable to Archaeological Excavations 1956  9–​10 Rome Centre  9–​10, 13–​14 sites  14–​15 UNESCO, role of  9–​10 Venice Charter  10 International Congress of Architects and Technicians of Historic Monuments  8 League of Nations  8 Man and the Biosphere programme  16 natural heritage, protection of  9 International Union for the Conservation of Nature 9 United Nations List of Protected Areas and Equivalent Reserves 1962  9, 11–​12 World Commission on Protected Areas  9 parallel initiatives by IUCN and UNESCO  12 post-​WWII  9 UNESCO  cultural heritage, protection of  9–​10 parallel initiatives by IUCN and UNESCO  12 proposed ‘Convention for the Protection of Monuments, Groups of Buildings and Sites of Universal Interest’,  12, 13–​15 World Conservation Union (IUCN)  establishment 9 parallel initiatives by IUCN and UNESCO  12 publication of national park list  9 World Heritage Trust Convention proposal  12–​13 World Heritage Trust proposal  11–​12 World Heritage Committee  17 World Heritage Convention, combining proposals to create  15–​18 final settlement, negotiation of  17 funding mechanisms, disagreements over  17 intergovernmental working group on conservation (New York)  16 recommendation for adoption  17 UNESCO’s Intergovernmental Committee of Experts 17 US intervention  16–​17 World Heritage Trust proposal  11–​12 Committee on Natural Resources Conservation and Development 11 IUCN proposed Convention  12–​13 Stockholm Conference on the Human Environment 1972  13, 15, 16, 17 White House Committee on Natural Resources Conservation and Development  11–​12 Conference on the Human Environment 1972 see Stockholm Conference on the Human Environment 1972

Conference on the Law of the Sea (1973–​1982)  64–​65 conflict of laws 100 Congo see Democratic Republic of the Congo consent  indigenous peoples  59–​61 State consent  de-​listing  185–​86 inscription to World Heritage in Danger List  163, 166, 167, 170 inscription to World Heritage List  134, 424 international assistance  424–​25 conservation and management assistance  209–​10, 211–​12, 213, 216, 271–​72, 281t Conservation International 344 continental shelf  146–​47 continuing landscapes  50, 54–​55, 56–​57 Convention for the Conservation of the World’s Heritage (draft) see World Conservation Union (IUCN) Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 see armed conflicts Convention on Access to Information, Participation in Decision-​making and Access to Justice in Environmental Matters 1998 see access to information Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 see CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973) Convention on the Conservation of Migratory Species of Wild Animals 1979 see migratory species Convention on the Law of the Sea 1982 (UNCLOS) see Law of the Sea Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 see illicit trafficking in cultural property Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 see Cultural Diversity Convention 2005 convict sites, Australia 95 cooperation agreements 161 cooperation assistance 281t Council of Europe conventions, WHC and  Convention on Offences relating to Cultural Property 2017  330–​31 European Convention on the Protection of the Archaeological Heritage 1994 (Valletta Convention) 333 European Cultural Convention 1954  333 illicit trafficking  327–​31 criminal responsibility, individual  119–​20 criteria for inclusion  World Heritage in Danger List  65–​66, 166–​83 World Heritage List  134, 151–​54, 160 cultural bias  75–​78 Cultural Conventions Liaison Group  235–​36

Index cultural diversity  Cultural Diversity Convention 2005  35, 45–​46 cultural heritage  35, 45–​46 Nara Document on Authenticity 1994  45 UNESCO treaties and conventions on cultural heritage, WHC and  332 Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005  332 Universal Declaration on Cultural Diversity 2001 332 Universal Declaration on Cultural Diversity 2003  45–​46 wellspring of creativity  45–​46 World Heritage Committee  45–​46, 140 cultural heritage (Article 1)  30–​49 aesthetic interest  30, 34 anthropological interest  30, 34, 39 architecture  30, 34 armed conflicts see armed conflicts authenticity  35, 46–​48 cave dwellings  30, 33 chronological/​regional framework  40 comparative studies  36–​37 conceptual development of WHC  9–​10 Convention on Offences relating to Cultural Property 2017  330–​31 Cultural Diversity Convention 2005  35, 45–​46 cultural property  12, 40–​43 definitional elements  33–​35 development of concept  35–​40 Director General of UNESCO report  31–​32, 33 ethnological interest  30, 34, 39 European Cultural Convention 1954  333 Global Strategy  38 groups of buildings  14–​15, 30, 31–​32, 33–​35, 46–​47 historical background  30–​33 historical interest  30, 34 homogeneity  30, 34 ICOMOS (International Council on Monuments and Sites)  10, 13–​14 Framework for Global Study 1992  37–​38 identification and delineation  81, 87 impact of other instruments and Conventions  40–​46 indigenous peoples  376, 379–​80 inscriptions  30, 33 intangible cultural heritage  4, 32–​33, 35, 40–​44 integrity  35, 46–​48 international assistance  276, 277 international campaign to save Nubian monuments in Abu Simbel and Philae  10, 13–​14, 16 international standards, development of  10 ‘monumentalist’ approach  37 monuments  14–​15, 30, 31–​32, 33–​35, 46–​47 natural heritage, and  31, 32, 35, 40–​43, 48–​49 Operational Guidelines for the Implementation of the WHC  34, 35–​36, 37, 40–​44, 47–​48 outstanding universal value  30, 33, 34, 35–​37, 40, 41t, 46–​47, 49 Paris Convention on illicit trade in movable cultural objects 1970  25–​26

433

recommendations  International Principles applicable to Archaeological Excavations 1956  9–​10 Protection, at the National Level, of the Natural and Cultural Heritage  35 Safeguarding of Traditional Culture and Folklore  35, 43–​44 reports on implementation of WHC  302 Rome Centre  9–​10, 13–​14 Safeguarding of Intangible Cultural Heritage Convention 2003  35, 43–​44 scope of  33–​35 sites  14–​15, 30, 31–​32, 33–​35, 46–​47 spatial, temporal, and social dimensions  34 Special Committee of Government Experts  31, 32, 33, 37–​40 state sovereignty, and  3 Stockholm Conference  31–​32 text of Article 1,  3–​4 underwater cultural heritage  4–​5, 35, 44–​45 Underwater World Heritage Convention 2001  44–​45 UNESCO, role of  9–​10 unlisted properties of outstanding universal value  188 value of cultural heritage  46–​48 Venice Charter  10 World Conservation Union (IUCN)  31–​32 World Heritage Centre  38 World Heritage Committee  34, 35–​38, 40, 45–​46, 48–​49 World Heritage List  34–​35, 36–​40, 44–​45, 46–​47, 49 Yamato Declaration  43 cultural heritage of mankind, concept of 14 cultural identity of communities  54–​55 cultural landscapes (Article 1)  50–​62 agricultural landscapes  56–​57 archaeological landscapes  56–​57 associative cultural landscapes  48, 50, 54–​55, 56–​57, 152 clearly defined landscapes designed and created intentionally by man  48, 50, 53–​54, 57 continuing landscapes  50, 54–​55, 56–​57 criteria  53–​54 cultural or natural heritage  52–​56 definition  51–​52 development of concept  52–​56 European Landscape Convention  59–​60 garden and parkland landscapes  50, 54–​55, 56–​57 Global Strategy  57–​58 historic memorial landscapes  56–​57 historical townscapes  56–​57 human rights, and  59–​61 ICOMOS (International Council of Monuments and Sites)  52–​53, 58–​59 identification and delineation of  90 associative cultural landscapes  90 criteria 90 definition 90 indigenous peoples  90 Operational Guidelines  90 traditional communities  90 indigenous peoples  54–​55, 58–​60, 61

434

Index

cultural landscapes (Article 1) (cont.) industrial landscapes  56–​57, 152 man-​made landscapes  152 mixed sites  52–​53, 56–​57, 59 natural or cultural heritage  52–​56 nominations  56–​58 Operational Guidelines  52–​53, 56–​60 organically evolved landscape  54, 56–​57, 152 outstanding universal value, properties of  56–​57, 58–​59 relict (or fossil) landscapes  54–​55, 56–​57 reports on implementation of WHC  302 routes  56–​57 rural landscapes  52–​56 sacred landscapes  56–​57, 61 taskforce on identification of sites  52–​53 typology and representativeness on list  56–​61 unique land-​use systems  54–​55 workshop on World Heritage  53, 55–​56 World Conservation Union (IUCN)  52–​53, 59 World Heritage Centre  59, 60–​61 World Heritage Committee  53, 57–​58 World Heritage List  50, 53, 56–​57, 60–​61 cultural properties, identification of  88–​89 artistic and literary works  89, 152 events or living traditions  89, 152 ideas or beliefs  89, 152 interchange of human values  89, 151 masterpiece of human creative genius  88, 151 nominations 89 Operational Guidelines  88 outstanding universal value  88 testimony to a cultural tradition or a civilization  89, 151 traditional human settlement, land-​use, or sea use  89, 151 type of building  89, 151 World Heritage Committee  89 cultural tradition, testimony to  89, 151 Curonian Spit National Park, Lithuania/​Russian Federation  94, 180–​81 customary international law  114, 119, 121, 122, 127, 130–31, 206, 321, 325, 350, 369, 370, 372, 375, 382, 390 customary rules of treaty interpretation  189, 314, 349, 417 international investment law  404, 415–​16 law of the sea  392, 393 unlisted properties of outstanding universal value 189 damage to cultural and natural heritage of other states  116–​20 content of duty  116–​17 nature of duty  116–​17 State responsibility  117–​18 UNESCO Declaration on the Intentional Destruction of Cultural Heritage 2003  118–​20 damming  365–​66 Rio Plátano Biosphere Reserve  365–​66 Selous Game Reserve  365–​66

declarations  American Declaration on the Rights of Indigenous Peoples (ADRIP)  378–​79, 390 Beijing Declaration on Platform for Action  358–​59 Budapest Declaration 2002  290 Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage  357–​58 Declaration on Racial and Racial Prejudice 1978  355–​56 Declaration on the Conservation of Historic Urban Landscapes 2005  92 Declaration on the Intentional Destruction of Cultural Heritage 2003  118–​20, 362, 371 Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP)  59–​60, 84, 87–​88, 93–​94, 356–​57, 358, 363–​64, 374–​75, 377–​78, 382–​84, 387, 390 Durban Declaration and Programme of Action 2001  355–​56 Millennium Declaration  354–​55 Rio Declaration on the Environment and Development  296, 366–​68 Stockholm Declaration 1972  23–​24, 63–​64, 352, 355–​56, 366–​68 Universal Declaration of Human Rights 1948  354 Universal Declaration on Cultural Diversity 2001  45–​ 46, 359–​60 Vienna Declaration and Programme of Action 1993  354–​56 World Declaration on the Environmental Rule of Law 2016  83–​84 Yamato Declaration  43, 332 deliberate acts of hostility see also armed conflicts unlisted properties of outstanding universal value  193–​94 delineation, process of  91–​93 de-​listing  future of the WHC  422–​23 Tentative Lists  144 World Heritage Centre  232 World Heritage in Danger List  162–​63 World Heritage List  135, 156–​58, 183–​87 consent of state  185–​86 consultation with state  185–​86 Operational Guidelines  185–​86 principle of parallelism of forms  185 prior inclusion in World Heritage in Danger List  186–​87 Democratic Republic of the Congo  Garamba National Park  117, 175, 266, 344 IUCN 266 Kahuzi-​Beiga National Park  117, 266–​67, 343–​44 Okapi Wildlife Reserve  117, 266–​67, 344 Protecting World Natural Heritage  266–​67 Salonga National Park  117, 266, 267, 344 Virunga National Park  117, 266–​67, 344, 361–​62 denunciation of WHC  312, 317 deserts  69–​70, 76 deterioration of properties 231 development, impact of  365–​66

Index disasters and international assistance 278 double coverage 105 Dresden Elbe Valley, Germany  158, 176, 184, 186, 422–​23 Dubrovnik, Old City of, Yugoslavia  175, 361–​62 Durbar Squares, Kathmandu, Patan, and Bhaktapur  91–​92 earmarking funds 216 earth’s history  69, 89, 152 East Rennel, Solomon Islands 179 ecological criteria  69–​70, 89, 152 economic conditions, changing  22–​23 ecosystems  64–​65, 69–​70, 76, 89, 152 education  education and promotion assistance  276, 281t World Heritage Centre  234–​35 World Heritage Committee and international assistance  209–​10, 213 educational programmes (Articles 27–​28)  289–​94 awareness raising  289–​91 Budapest Declaration 2002  290 Forum UNESCO–​University and Heritage (FUUH) Network 293 higher education  292–​94 information programmes  290 international assistance  294 materials, development of  291–​92 Operational Guidelines  289–​90, 291 promotion of world heritage sites  290 secondary-​schools level, World Heritage Education at  289–​90, 291–​92 skills-​training courses  292 teacher-​training workshops  292 UNESCO Project on Young People’s Participation in World Heritage Preservation and Promotion  292 UNITWIN/​UNESCO Chairs Programme  293 World Heritage Centre  291, 294 World Heritage Committee  291, 294 World Heritage Emblem  291 World Heritage Fund  294 World Heritage in Danger List  291 World Heritage in Young Hands Kit  292 World Heritage List  291 youth forums  292 effectiveness, principle of 168 Egypt  Abu Simbel  10, 13–​14, 16, 22–​23, 204–​5, 264, 265–​66 Philae Temple Complex  10, 13–​14, 16 elections to the World Heritage Committee  133, 136–​ 37, 139 emergency assistance  209–​10, 211–​12, 216, 271–​72 modalities and conditions for  281t priority  278–​79 English Heritage  cultural landscapes, definition of  54–​55 environmental degradation and climate change  366–​68 Central Amazon Conservation Complex  366–​68 Great Barrier Reef  366–​68 Lake Turkana National Parks  366–​68

435

Policy Document for Climate Action for World Heritage 2021  366–​68 Policy Document on the Impacts of Climate Change on World Heritage Properties 2007  366–​68 Rio Declaration on the Environment and Development  366–​68 Stockholm Declaration 1972  366–​68 sustainable development goals  366–​68 equipment supplies  271, 274, 280 erga omnes obligations  120–​23, 124, 126, 127–​28, 130–​31 race discrimination  355–​56 World Heritage Committee and international assistance 208 World Heritage in Danger List  164–​65, 168 erga omnes partes obligations  105, 124, 127–​28 Escazú Agreement 296 Ethiopia, Simien National Park 178 European Landscape Convention  59–​60 European Union  268, 333–​34 evaluation reports  301–​2 eviction and forced displacement  363–​64 African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention, 2009)  364 Basic Principles and Guidelines on Development-​ Based Evictions and Displacement 2007  364 Central Suriname Nature Reserve  363 CESCR General Comment No. 7 on Forced Eviction 1997 364 Chitwan National Park  363 Guiding Principles on Internal Displacement 1998 364 indigenous peoples  363–​64 IUCN World Conservation Congress  363–​64 Kaeng Krachen National Park  363 Ngorongoro Conservation Area  363 Salonga National Park  363 Serengeti National Park  363 UN Special Rapporteur on Cultural Rights  362–​63 exceptional universal value  unlisted properties of outstanding universal value  196–​97 exclusive economic zones  146–​47 marine cultural and natural heritage, protection of  393–​94, 396, 399–​400 Expert Mechanism on the Rights of Indigenous Peoples 2007 (EMRIP)  374–​75, 381–​82, 383, 384–​85 Expert Review 2000  78–​79 experts, technicians and skilled labour, provision of 271, 274, 280 expropriation  404, 409, 410–​13 case examples  411–​13 direct expropriation  410–​11 indirect expropriation  410–​11 extractive industries  365–​66 Great Barrier Reef  365–​66 Kakadu  365–​66 extraterritorial property  144–​45, 425, see also territoriality

436

Index

fair and equitable treatment  404, 409–​10 legitimate expectations  409 public policy objectives  409–​10 Fauna & Flora International  261, 263 federal or non-​unitary constitutional systems (Article 34)  305–​11 Australia  308–​9 Brazil  305–​6 China 306 Cologne Cathedral, Germany  309–​10 definition  305–​6 indigenous peoples  306–​7 intangible cultural heritage  307 judicial scrutiny  308–​9 South Africa  306, 307–​8 states/​countries, definition of  307 Switzerland  305–​6 United States  308 Vienna Convention on the Law of Treaties  307 World Heritage in Danger List  309–​10 final clauses (Articles 30–​33 and 35–​38)  accession  312, 316 denunciation  312, 317 entry into force  312, 317 languages  312, 313–​15 notifications by Director-​General of UNESCO  312, 317–​18 ratification  312, 315 registration of WHC  313, 318 revision of WHC  313, 318 travaux préparatoires 314 Vienna Convention on the Law of Treaties  313–​14 financial resources, management of  233–​34 ‘five C’s’,  135–​36, 212–​13 flag and port states 396 Florence, floods in 1966  22–​23, 204–​5 folklore  35, 43–​44 forced displacement see eviction and forced displacement forests  69–​70, 76 Forum UNESCO–​University and Heritage (FUUH) Network 293 fossil landscapes see relict (or fossil) landscapes France  Belfries of Flanders, Artois, Hainaut, and Picardy  145 Convention France–​UNESCO  116 French Austral Lands and Seas  146–​47 French Polynesia, Taputapuātea 391 Funds-​In-​Trust 261 World Heritage List  161 future generations, transmission of heritage to  107–​8, 375–​76 future of the WHC  421–​28 Advisory Bodies  428 armed conflicts  424 Cairns Decision  426–​27, 428 consent of State  to inscription  424 to international assistance  424–​25 deletions from Lists  422–​23 extraterritorial sites  425 human rights approach  422 indigenous peoples, consideration of  426–​27

international assistance  424–​25 nominations, limits on  426–​27 non-​inscribed properties  426 Operational Guidelines  422–​23, 426–​27 outstanding universal value, requirement for  426–​27 state sovereignty  423–​25 success of WHC to date  421–​23, 428 World Heritage Centre  428 World Heritage Committee  424–​25, 427 World Heritage in Danger List  425 World Heritage List  422–​24, 426, 428 Galapagos Islands 79 Garamba National Park, Democratic Republic of the Congo  175, 266, 344 garden and parkland landscapes  50, 54–​55, 56–​57 Gelati Monastery, Georgia  176–​77 gender equality  358–​59 General Assembly of State Parties  93–​94 reports on implementation of WHC  298, 300, 304 World Heritage Centre  223, 224–​25, 227, 228 World Heritage Committee  135, 136–​37, 140 geographical and physiographical features 63 geological processes  69, 70, 89 geomorphic or physiographic features  69, 89 Georgia, Bagrati Cathedral and Gelati Monastery  176–​77 Germany  Cologne Cathedral  91, 157, 175–​76, 309–​10, 422–​23 Dresden Elbe Valley  158, 176, 184, 186, 422–​23 German World Heritage Foundation  261, 262 Gilman International Conservation (GIC) 266 Global Environmental Facility 343 Global Strategy for a Balanced, Representative and Credible World Heritage List  Advisory Bodies  244–​45 cultural heritage, definition of  38 cultural landscapes, definition of  57–​58 human rights  356 identification and delineation of world heritage properties  96–​97 natural heritage nominations  77 reports on implementation of WHC  301, 304 Tentative Lists  144 World Heritage Centre  229, 232–​33 World Heritage List  144, 154 Gorgona and Malpelo Islands, Colombia  345–​46 Grand Canyon National Park 79 grasslands  69–​70, 76 Great Barrier Reef, Australia  69, 96, 146–​47 groups of buildings  30, 31–​32, 33–​35, 46–​47 GTZ–​Germany 266 Guidelines for the Identification and Designation of Particularly Sensitive Marine Areas  345–​46 Gulf of California, Islands and Protected Areas of the, Mexico  94–​95, 177 Gunung Mulul National Park, Malaysia 69 habitats  natural heritage, definition of  69–​70 natural properties, identification of  89, 152 serial nominations  94

Index Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 see armed conflicts Hatra, Iraq 267 Hebron/​Al-​Khalil Old Town, Palestine  159–​60, 196 heritage, scope of  3–​4 high seas 147 higher education programmes  292–​94 historic memorial landscapes  56–​57 historical townscapes  56–​57 hostility, deliberate acts of see also armed conflicts unlisted properties of outstanding universal value  193–​94 Huhud chants of the Ifugao people 44 human rights  351–​72, see also human rights violations Call to Action for Human Rights 2021  359–​60 cultural landscapes, definition of  59–​61 Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage  357–​58 Durban Declaration and Programme of Action 2001  355–​56 Ethical Principles for Safeguarding Intangible Cultural Heritage 358 fundamental freedoms  354–​55 future of the WHC  422 gender equality  358–​59 Global Strategy  356 Human Rights Council  371 identification and delineation of world heritage properties  87–​88, 93–​94 indigenous peoples  356–​57, 358, 363–​64 Intangible Cultural Heritage Convention  354–​55 Integrated Strategy to Combat Racism, Discrimination, Xenophobia and Intolerance 2003  355–​56 International Covenant on Civil and Political Rights 1966  353, 354 International Covenant on Economic, Social and Cultural Rights 1966  353, 354, 371 language  356–​58 Office of the High Commissioner for Human Rights  355–​56 Operational Guidelines  352, 357–​58, 359, 360 Paris Principles  353–​54 race discrimination  355–​58 religious discrimination  356–​58 sex discrimination  358–​59 Beijing Declaration on Platform for Action  358–​59 Convention on the Elimination of Discrimination Against Women  358–​59 Gender Equality Action Plan (2014–​2021) (GEAP II)  358–​59 state immunity  119–​20 Stockholm Declaration 1972  352, 355–​56, 366–​68 UNESCO  Committee on Conventions and Recommendations  353–​54 Constitution  351, 355–​56 Integrated Strategy to Combat Racism, Discrimination, Xenophobia and Intolerance 2003  355–​56

437

role of  351–​52, 353–​60 Strategy on Human Rights  354–​55, 356–​57 United Nations  Agenda on Sustainable Development 2030  359–​60 Charter  13–​15 Millennium Declaration  354–​55 Special Rapporteur on Cultural Rights  362–​63 Universal Declaration on Cultural Diversity 2001  359–​60 Universal Declaration of Human Rights 1948  354 Van Boven/​Bassiouni Principles  353–​54 Vienna Declaration and Programme of Action 1993  354–​56 World Heritage Convention, lack of reference in  352–​53 World Heritage framework  353–​60 World Heritage in Danger List  356 World Heritage List  356 World Heritage Sustainable Development Perspective  352, 354–​55, 356, 359, 360 human rights violations  361–​68, see also human rights armed conflicts, belligerent occupation and securitization  361–​63 Aleppo, Syria  362 Buddhas of Bamiyan, Afghanistan  362–​63, 371 Diyarbakir, Turkey  361–​62 Jerusalem  361–​62 Mount Hamiguitan Range Wildlife Sanctuary, Philippines  361–​62 Ngorongoro Conservation Area, Tanzania  361–​62 Old City of Dubrovnik, Yugoslavia  361–​62 Sana’a, Yemen  362 Temple of Preah Vihear, Cambodia  361–​62 Timbuktu, Mali  361–​62, 371 Virunga National Park, Democratic Republic of the Congo  361–​62 damming  365–​66 Rio Plátano Biosphere Reserve  365–​66 Selous Game Reserve  365–​66 development  365–​66 environmental degradation and climate change  366–​68 Central Amazon Conservation Complex  366–​68 Great Barrier Reef  366–​68 Lake Turkana National Parks  366–​68 Policy Document for Climate Action for World Heritage 2021  366–​68 Policy Document on the Impacts of Climate Change on World Heritage Properties 2007  366–​68 Rio Declaration on the Environment and Development  366–​68 Stockholm Declaration 1972  366–​68 sustainable development goals  366–​68 evictions and forced displacement  363–​64 Basic Principles and Guidelines on Development-​Based Evictions and Displacement 2007  364 Central Suriname Nature Reserve  363 CESCR General Comment No. 7 on Forced Eviction 1997  364 Chitwan National Park  363

438

Index

human rights violations (cont.) Guiding Principles on Internal Displacement 1998 364 indigenous peoples  363–​64 IUCN World Conservation Congress  363–​64 Kaeng Krachen National Park  363 Kampala Convention 2009  364 Ngorongoro Conservation Area  363 Salonga National Park  363 Serengeti National Park  363 UN Special Rapporteur on Cultural Rights  362–​63 extractive industries  365–​66 Great Barrier Reef  365–​66 Kakadu  365–​66 forced displacement  363–​64 human rights violations  361–​68 indigenous peoples  356–​57, 358, 363–​64 individual responsibility  370 international responsibility  368–​70 Articles on Responsibility of International Organizations  368–​69 logging  365–​66 Białowieża Forest  365–​66 Gunung Mulu National Park  365–​66 reparations 370 sustainable development goals  366–​68, 369 tourism  365–​66 Kahuzi-​Biega National Park  365–​66 Lake System in the Great Rift Valley  365–​66 Volcanoes of Kamchatka  365–​66 UN Guiding Principles on Businesses and Human Rights  365–​66 UNESCO Declaration on Intentional Destruction of Cultural Heritage 2003  362, 371 World Heritage Centre  368–​69 World Heritage Committee  363–​64, 366–​68, 369 Iceland, Ϸingvelli National Park 57 Ichkeul National Park, Tunisia  341–​42 ICOMOS (International Council of Monuments and Sites)  Cologne Cathedral, Germany  309–​10 conceptual origins of the WHC  10, 13–​14 cultural landscapes, definition of  52–​53, 58–​59 Declaration of Principles, and  239 delineation of physical boundaries  93 Framework for Global Study 1992  37–​38 funding 239 international assistance  202, 208, 218–​19, 247, 287 natural heritage  definition of  70 treaties and conventions protecting  335–​36 preliminary assessment  245 profile  240–​41 reactive monitoring  245–​46 reports on implementation of WHC  300–​2 Tentative Lists  143, 245 utilization of services by Secretariat  223–​24, 237–​38 World Heritage Committee  133, 138–​39 international assistance  202, 208, 218–​19 World Heritage List  143, 148–​49, 150

identification and delineation of world heritage properties (Article 3) 80–97 Advisory Bodies  85, 93, 96 Agenda for Sustainable Development 2030  93–​94 bilateral transboundary properties, examples of 94 boundaries 93 buffer zones  91–​93 cities  92–​93 commodification 81 contiguous lakes and forests  93 criteria  87, 88–​89 cultural heritage  81, 87 cultural landscapes  89, 90 cultural properties, identification of  88–​89 delineation, process of  91–​93 factors to be taken into account  87–​88 Global Strategy  96–​97 human rights  87–​88, 93–​94 indigenous peoples  80–​81, 84, 87–​88, 90, 93–​94 integrity  96–​97 international assistance  277 local and regional governments  84, 87 local communities  80–​81, 84 mixed natural and cultural properties  90 natural heritage  81, 87 natural properties, identification of  89 nominations of identified properties, preparation of  93–​94 non-​governmental organisations  84, 87 Operational Guidelines  81, 82, 83, 87, 88, 90, 91, 93, 94, 95, 96–​97 outstanding universal value  80–​81, 82–​84, 87, 88, 94, 96–​97 serial properties, nominations of  80–​81, 94–​95 sight lines, protection of  93 site managers  84, 87 states, duty of  80–​81, 82, 93 tentative lists, preparation for  84–​86 traditional communities  90 transnational and transboundary properties  80–​81, 94 UN Declaration on the Conservation of Historical Urban Landscapes 2005  92 UN Declaration on the Rights of Indigenous Peoples  93–​94 unlisted properties of outstanding universal value  191–​92, 198 urban landscapes  92–​93 Vienna Memorandum on World Heritage and Contemporary Architecture  92–​93 visual impacts  91–​93 World Heritage Centre  85–​86 World Heritage Committee  81, 83, 85, 86, 89, 93–​94, 95, 96–​97 World Heritage in Danger List  91, 95–​96 illicit trafficking in cultural property  ad hoc measures  331 Convention on Offences relating to Cultural Property 2017 (Council of Europe)  330–​31 Convention on Stolen or Illegally Exported Cultural Objects 1995 (UNIDROIT)  329–​30

Index Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970  3, 235–​36, 328–​29 mutual assistance in suppression of  5–​6 standard-​setting instruments  331 World Heritage Convention 1972  327–​31 Ilulissat Icefjord (Kangia), Greenland  388–​90 India  Kaziranga National Park  344 Manas National Park  344 indigenous peoples  373–​90 affirmation of rights in international law  374–​75 African Commission on Human and Peoples’ Rights  383–​84 American Declaration on the Rights of Indigenous Peoples (ADRIP)  378–​79, 390 Circle of Life  374–​75 collective cultural identity  373–​74 complex dynamics of cultural heritage  375–​77 conservation management, right to participate in  60–​61 cultural heritage, definition of  376, 379–​80 cultural history, indivisible nature of  374 cultural landscapes, definition of  54–​55, 58–​60, 61, 62 Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP)  59–​60, 84, 87–​88, 93–​94, 356–​57, 358, 363–​64 discrimination against  356–​57, 358 eviction and forced displacement  363–​64 Expert Mechanism on the Rights of Indigenous Peoples 2007 (EMRIP)  356–​57, 374–​75, 381–​ 82, 383, 384–​85 federal or non-​unitary constitutional systems  306–​7 free prior and informed consent  59–​61 future generations, transmission to  375–​76 future of the WHC  426–​27 identification and delineation of world heritage properties  80–​81, 84, 87–​88, 90, 93–​94 ILO Conventions  No. 107 on Indigenous and Tribal Populations of 1957  374–​75 No. 169 on Indigenous and Tribal Peoples in Independent Countries 1989  374–​75, 378 Ilulissat Icefjord (Kangia), Greenland  388–​90 intangible cultural heritage  376 International Expert Workshop on the World Heritage Convention and Indigenous Peoples 2012  384 Kaeng Krachan Forest Complex, Thailand  380, 387–​88 Kakadu National Park, Australia  380 Kenya Lake System in the Great Rift Valley  380, 383–​84 Laponian Area, Sweden  380 Motherland  381–​82 Nahanni National Park, Canada  380 Nara Document on Authenticity  382–​83 Operational Guidelines  385–​87, 390 outstanding universal value  381–​82 Permanent Forum on Indigenous Issues (UN)  356–​ 57, 374–​75, 385, 387

439

Principles and Guidelines for the Protection of the Heritage of Indigenous People 2000  375–​77 protection and safeguarding cultural heritage  377–​79 Rapa Nui National Park, Chile  380 reports on implementation of WHC  296 Sangha Trinational, Congo/​Cameroon/​Central African Republic  384 Shiretoko Peninsula, Japan  380 Special Rapporteur on the Rights of Indigenous Peoples  59, 356–​57, 358, 363–​64, 374–​75 Tentative Lists  144 territories and traditional lands  376–​77, 379–​80 UNESCO Indigenous Peoples Policy 2018  84, 356–​57 United Nations Declaration on the Rights of Indigenous Peoples  374–​75, 377–​78, 382–​84, 387, 390 Vienna Convention on the Law of Treaties  382–​83 Voluntary Fund for Indigenous Peoples 1985  374–​75 Western Ghats, India  384 Working Group on Indigenous Populations 1982  374–​75 World Heritage Committee  373, 383–​84, 385–​86, 387, 388, 390 World Heritage Convention  373, 379–​87 World Heritage List  144, 373, 376–​77, 380–​81, 382–​ 83, 387, 388, 389, 390 individual criminal responsibility 370 Indonesia  Temple of Borobodur  263–​64, 265–​66 Tropical Rainforest Heritage of Sumatra  178–​79 industrial archaeology  153–​54 industrial landscapes  56–​57 Industrial Property, Paris Convention for the Protection of 291 information  access to information  Convention on Access to Information, Participation in Decision-​making and Access to Justice in Environmental Matters 1998  84 information programmes  290 reports on implementation of WHC  296 international assistance  285–​87 nominations  referral for additional information  150, 229–​30 State of Conservation Information System  304 State Parties, periodic reporting by  299 World Heritage Centre  229 information programmes 290 inscription  World Heritage in Danger List  163–​64, 171–​72, 173–​82, 183 avoiding inscription  181 conditions  166–​83 consent  163, 166, 167, 170 opposition to inscription  167–​68 publication of inscription  168 requests for inscription  167, 170 World Heritage List  134 authenticity 47 cultural landscapes  56–​57, 60–​61

440 Institut Congolais pour la Conservation de la Nature (ICCN) 266 intangible cultural heritage  43–​44 authenticity, and  43 Convention for the Safeguarding of the Intangible Cultural Heritage  35, 43 cultural heritage, definition of  32–​33 definition 43 examples 44 federal or non-​unitary constitutional systems  307 folklore  35, 43–​44 Global Strategy  40 human rights  354–​55 increasing protection of  4 indigenous peoples  376 knowledge, practices, and processes  43 Masterpieces of the Oral and Intangible Heritage of Humanity 44 Recommendation Concerning the Protection, at the National Level, of the Natural and Cultural Heritage 35 Recommendation on the Safeguarding of Traditional Culture and Folklore  43–​44 transmission of  107–​8 treaties and conventions on cultural heritage, WHC and  322, 331–​32 Nara Document on Authenticity  332 Safeguarding of Intangible Cultural Heritage Convention 2003 (UNESCO)  322, 331–​32 Yamato Declaration  332 unlisted properties of outstanding universal value  189–​90, 200 World Heritage Committee and international assistance  219–​20 World Heritage List  153–​54 Yamato Declaration  43, 332 integrity  cultural heritage  35, 46–​48 identification and delineation of world heritage properties  96–​97 national and international protection  102 Operational Guidelines  47–​48 natural heritage  72–​74 authenticity, and  72–​73 Biodiversity Convention  73 bio-​physical processes  73 definition 73 ecological and cultural sustainability  73 identification and delineation of world heritage properties  96–​97 indigenous peoples, activities of  73 intragenerational equity  73 landform features  73 national and international protection  102 Operational Guidelines  72–​73 outstanding universal value  73–​74 protection and management of sites  74 Ramsar Convention  73 World Heritage Committee  73 World Heritage Sites in Danger Lists  72–​73 World Heritage Committee  140 World Heritage List  150, 152, 153

Index intentional destruction of cultural heritage  118–​20 Inter-​American Development Bank 268 interchange of human values  89, 151 interest-​free loans  271, 274, 280 intergenerational obligations 63 intergovernmental organizations  World Heritage Committee  139, 142 World Heritage Fund  257 Intergovernmental Panel on Climate Change  347–​48 Intergovernmental Working Group on Conservation (IWGC)  23–​24, 63–​64 international and intergovernmental perspectives, significance of 104 international assistance (Articles 19–​26)  274–​88, see also World Heritage Committee and international assistance (Article 13); World Heritage Fund (Articles 15–​18) additional information, requests for  285–​87 administrative procedure  287–​88 Advisory Bodies  247, 285–​87 amounts approved  284 beneficiaries  276–​78 collective interests  109, 111–​13, 120 conservation and management assistance  281t cooperation assistance  281t criteria  279–​80 cultural heritage  276, 277 disasters and natural calamities, priority for  278 education and promotion assistance  276, 281t educational programmes  294 emergency assistance  modalities and conditions for  281t priority  278–​79 evaluation of requests  287–​88 future of the WHC  424–​25 identification of properties  277 implementation of requests  288 information and documentation  285–​87 IUCN  247, 287 mixed property  287 natural heritage  276, 277 objectives of  276 Operational Guidelines  276, 277–​78, 279, 280, 285–​87 Preamble  275–​76 pre-​established services  277 preparatory assistance  276, 287 modalities and conditions for  281t preventative assistance  277 priorities  278–​80 Regional Programmes  279 requests for assistance  285–​87 reviews 288 supplementary, assistance as  277–​78 technical assistance  276, 281t Tentative Lists  144 training and research assistance  276, 281t transparency 288 types of assistance  equipment supplies  271, 274, 280 interest-​free loans  271, 274, 280 low-​interest loans  271, 274, 280

Index modalities and conditions  281t provisions of experts, technicians and skilled labour  271, 274, 280 studies, establishment of  271, 274, 280 subsidies  271, 274, 280 training of staff and specialists  271, 274, 277, 280 unlisted properties of outstanding universal value  191–​92, 198 World Heritage Centre  223, 229, 233, 234, 276, 285–​87 World Heritage Committee  135, 276 World Heritage Fund  250, 271–​72, 279, 280 World Heritage in Danger List  163, 166–​68, 170, 172–​73, 174–​75, 279 World Heritage List  144, 276, 277, 279, 280 International Center for the Settlement of Investment Disputes (ICSID) 406 International Congress of Architects and Technicians of Historic Monuments 8 international co-​operation  rationale for  204–​6 unlisted properties of outstanding universal value  191 World Heritage Committee and international assistance  202, 204, 218–​20 International Court of Justice, case law of  122–​23, 124, 126–​27, 128, 129, 131 International Covenant on Civil and Political Rights  93–​94 International Covenant on Economic, Social and Cultural Rights  93–​94 International Expert Workshop on the World Heritage Convention and Indigenous Peoples 2012 384 International Federation of Landscape architects (IFLA)  cultural landscapes, definition of  54–​55 International Gorilla Conservation Programme (IGCP) 266 international investment law, WHC and  403–​17 customary international law  404, 415–​16 dispute settlement mechanisms  403 expropriation  404, 409, 410–​13 case examples  411–​13 direct expropriation  410–​11 indirect expropriation  410–​11 fair and equitable treatment  404, 409–​10 legitimate expectations  409 public policy objectives  409–​10 foreign direct investment  404 International Center for the Settlement of Investment Disputes (ICSID)  406 international investment agreements  404–​5, 406, 415–​16, 417 investment disputes  405–​15 expropriation  404, 409, 410–​13 fair and equitable treatment  404, 409–​10 investment, notion of  406–​9 remedies  413–​15 investment, notion of  406–​9 case examples  407–​9 ICSID Convention 1965  406–​7 protected investments  406, 415 Salini test  406–​7 investor-​state arbitration  404–​5 arbitral tribunals, composition of  404–​5

441

depoliticization of investment disputes  405 exhaustion of local remedies  404–​5 independence and impartiality  404–​5 non-​discrimination  404 remedies  413–​15 case examples  414–​15 compensation  413, 414 restitution  413, 414 satisfaction 413 treaty conflict and congruence  405–​15 judicially driven approach  415 treaty driven approach  415 Vienna Convention on the Law of Treaties  415–​16, 417 World Heritage List  406, 412, 417 International Labour Organization Conventions  No. 107 on Indigenous and Tribal Populations of 1957  374–​75 No. 169 on Indigenous and Tribal Peoples in Independent Countries 1989  374–​75, 378 International Law Commission  Articles on Responsibility of States for Internationally Wrongful Acts 2001  117–​18, 128–​30 International Maritime Organization  345–​46 International Protection of Monuments, Groups of Buildings and Sites of Universal Value 1971 (UNECSO)  63–​64 international public goods, concept of  5–​6 International Rhino Foundation (IRF) 266 international safeguarding campaigns  263–​64, see also safeguarding International Treaty on Plant Genetic Resources for Food and Agriculture 2001 236 International Union for Conservation of Nature (IUCN) see World Conservation Union (IUCN) interpretation see also Vienna Convention on the Law of Treaties Operational Guidelines  172–​73 unlisted properties of outstanding universal value  188 World Heritage Committee and international assistance 207 World Heritage in Danger List  163, 171–​83 intragenerational equity 73 Iraq, Hatra 267 irretrievable loss of property  World Heritage Centre  231–​32 Islands and Protected Areas of the Gulf of California, Mexico  94–​95, 177 Italy, Venice and its Lagoon 181 Japan Bank for International Cooperation (JBIC) 268 Jeema El Fna Square, Morocco 44 Jerusalem  159–​60, 361–​62 joint sites  biodiversity conventions  340–​44 danger listing  341–​42 emergency response  341–​42 joint funding  342–​44 site listing  340–​41 site visits  341–​42 World Heritage in Danger List  340–​42 World Heritage List  340–​41, 342

442

Index

judicial scrutiny  federal or non-​unitary constitutional systems  308–​9 jurisdiction over marine cultural and natural heritage  393–​98 Kaeng Krachan Forestry Complex, Thailand  60–​61, 88, 380, 387–​88 Kahuzi-​Beiga National Park, Democratic Republic of Congo  266–​67, 343–​44 Kakadu National Park, Australia  96, 178, 341, 380, 422–​23 Kamchatka Volcanoes, Russian Federation 69 Kampala Convention see eviction and forced displacement Kathmandu Valley, Nepal  91–​92, 96, 178 Kaziranga National Park, India 344 Kenya Lake System in the Great Rift Valley 380, 383–​84 Khmer Rouge see Cambodia Kiribati, Phoenix Islands Protected Area  146–​47 knowledge, practices and processes, safeguarding evolving 43 Kurshskaya National Park, Russian Federation 94 land-​use, traditional  89, 151 language  human rights  356–​58 languages of WHC  312, 313–​15 Laponian area, Sweden  70–​71, 380 Law of the Sea see also customary international law; marine cultural and natural heritage Conference on the Law of the Sea (1973–​1982)  64–​65 Convention on the Law of the Sea 1982 (UNCLOS)  120–​21, 236, 345–​46, 392–​94, 396, 397, 398, 399–​400, 401 Le Corbusier, architecture of  94–​95, 145 League of Nations (1920–​1946) 8 Limes, The 95 List of World Heritage in Danger 23 literary works  89, 152 Lithuania, Curonian Spit National Park  94, 180–​81 Liverpool–​Maritime Mercantile City, UK  91–​92, 158, 177, 184, 186, 422–​23 living traditions  89, 152 local communities  80–​81, 84 logging  365–​66 Białowieża Forest  365–​66 Gunung Mulu National Park  365–​66 low-​interest loans  271, 274, 280 Machu Picchu, Peru  70–​71, 422–​23 Malaysia, Gunung Mulul National Park 69 Malpelo Fauna and Flora Sanctuary, Colombia  77–​78, 391 Man and the Biosphere Programme  16, 235–​36, 340–​41 management and protection of sites see protection and management of sites Manas National Park, India 344 marine areas  64–​65, 69–​70, 76, 146–​47, 422–​23

marine biodiversity  345–​46 marine cultural and natural heritage  391–​402 Antarctic  Antarctic Treaty System  392–​93 Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR)  400 Protocol on Environmental Protection to the Antarctic Treaty  397 archaeological and historic objects  397 Committee of Environmental Protection  397 common heritage of mankind  397 exclusive economic zones  393–​94, 396, 399–​400 flag and port states  396 jurisdictional criteria for protection of  393–​98 Malpelo Fauna and Flora Sanctuary, Colombia  391 Operational Guidelines  394–​96 Papahānaumokuākea Marine National Monument, United States  391, 393–​94 Red Bay Basque Whaling Station, Canada  391 safeguarding 398 state territorial sovereignty  393 Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement  392–​93, 398 substantive norms of WHC and other international norms  398–​401 Taputapuātea, French Polynesia  391 UN Convention on the Law of the Sea 1982 (UNCLOS)  392–​94, 396, 397, 398, 399–​400, 401 Underwater Cultural Heritage Convention 2001  392, 394, 396, 398–​99, 400 World Heritage Committee  394–​96, 397–​98, 400–​1 World Heritage in Danger List  391 World Heritage List  393–​95, 397, 399 marine environment, protection of  3–​4 marine internal waters  146–​47 marine protected areas  345–​46 Marrakech, Medina of 44 masterpieces of human creative genius  88, 151 masterpieces of the oral and intangible heritage of humanity 44 material, design, workmanship, and setting 47 Medina of Marrakech, Morocco 44 Memorandum of Understanding (MoU) between the World Heritage Convention and the Ramsar Convention 1999 340 Mexico  Islands and Protected Areas of the Gulf of California  94–​95, 177 Sian Ka’an  344 migratory species  336–​37, 342, 348–​49 Convention on the Conservation of Migratory Species of Wild Animals 1979 (CMS)  74, 236 mixed sites  cultural landscapes  52–​53, 56–​57, 59 identification and delineation of  90 criteria 90 definition 90 indigenous peoples  90 Operational Guidelines  90 traditional communities  90 international assistance  287

Index natural heritage  69–​71 reports on implementation of WHC  299, 302 World Heritage List  150, 152 Moenjodaro, Pakistan  263–​64 monitoring 74 Advisory Bodies  245–​46 IUCN  245–​46 reports on implementation of WHC  301, 303–​4 World Heritage Centre  229, 231–​32 World Heritage Committee and international assistance  213, 214–​15 Montreux Record  338, 340–​42 monuments  14–​15, see also ICOMOS (International Council of Monuments and Sites) authenticity  46–​47 cultural heritage, definition of  30, 31–​32, 33–​35 ‘monumentalist’ approach  37, 153–​54 Moon, sites located on  145–​46 Morocco  Jemaa El Fna Square  44 Medina of Marrakech  44 Mosi-​oa-​Tunya/​Victoria Falls World Heritage, Zambia and Zimbabwe  79, 94 Motherland, concept of  381–​82 Mount Nimba Strict Reserve  72–​73 mountains  69–​70, 76 Murujuga, Australia 62 Myanmar, Bagan, ancient city of  193–​94 Nablus, historic centre of, Palestine 196 Nahanni National Park, Canada 380 Nara Conference on Authenticity 1994  47, 152–​53 Nara Document on Authenticity 1994  45, 46–​47, 360, 382–​83 national and international protection of cultural and natural heritage (Articles 4–​7)  98–​132 Advisory Bodies  117 Article 4,  98, 106–​9 contents of duty  106–​8 duty bearer  108–​9 future generations, transmission of heritage to  107–​8 heritage concerned  106 identification duty of state  107 international assistance and co-​operation  109 nature of duty  109 presentation of heritage  107 protection duty of state  107 Article 5,  98, 109–​11 appropriate measures, obligation to take  98 content 110 importance  109–​10 nature of the obligation  110 open-​ended list  110–​11 policies, adoption of  98 Recommendation concerning Protection at National Level of the Cultural and Natural Heritage 1972 111 research, establishment of  98 scientific and technical studies, establishment of  98 scope 110

443 services, establishment of  98 special value heritage  111 training facilities, establishment of  98 Article 6,  98, 111–​20 damage to cultural and natural heritage of other states  116–​20 international co-​operation  111–​13, 120 State duty to assist  115–​16 Vienna Convention on the Law of Treaties  114–​15 Article 7,  99, 120 Chapter II  autonomy from Chapter III  100–​4 collective interest, existence of  105 double coverage of national and international protection 105 importance of  104–​5 international and intergovernmental perspectives, significance of  104 scope of  100–​4 structure of WHC  105 authenticity 102 collective interests  105, 120–​28 common heritage of mankind  120–​23 erga omnes obligations  120–​23, 127–​28 erga omnes partes obligations  127–​28 existence of  105 importance of the interests test  126–​27 Operational Guidelines  129, 130 significance of  105 common heritage of mankind  120–​23 conflict of laws  100 criteria  101–​2 cultural heritage, requirement for  101 damage to cultural and natural heritage of other states  116–​20 content of duty  116–​17 nature of duty  116–​17 State responsibility  117–​18 UNESCO Declaration on the Intentional Destruction of Cultural Heritage 2003  118–​20 double coverage of national and international protection 105 erga omnes obligations  120–​23, 124, 126, 127–​28, 130–​31 erga omnes partes obligations  105, 124, 127–​28 future generations, transmission of heritage to  107–​8 implementation of treaties, state obligations  100–​1 intangible heritage, transmission of  107–​8 integrity 102 intentional destruction of cultural heritage  118–​20 international and intergovernmental perspectives, significance of  104 international assistance and co-​operation  109, 111–​ 13, 120 International Court of Justice, case law of  122–​23, 124, 126–​27, 128, 129, 131 interpretation  105–​6 natural heritage, requirement for  101 nominations 104 obligations arising from listing  102 Operational Guidelines  104, 105–​6, 112, 129, 130

444

Index

national and international protection of cultural and natural heritage (Articles 4–​7) (cont.) outstanding universal value  101, 102–​3, 104, 112 private international law  100 protection and management of sites  102 public international law  100 Secretariat  100–​1, 106, 117 special value heritage  111 state, duty of  106–​9 state immunity  119–​20 state responsibility  128–​32 enforceable obligations  128–​30 ILC Articles on State Responsibility  117–​18, 122–​23, 128–​30, 131, 132 remedies  131–​32 suitability of  131–​32 state sovereignty  111–​13, 124 structure of WHC  105 territories of other states, damage in  116–​20 third states, obligations on  114–​15 training facilities, establishment of  98 UNESCO  Convention France–​UNESCO  116 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970  112 Declaration on the Intentional Destruction of Cultural Heritage 2003  118–​20 protection of cultural heritage  108 Recommendation concerning Protection at National Level of the Cultural and Natural Heritage 1972 111 Vienna Convention on the Law of Treaties  114–​15 World Heritage Committee  100–​3, 105–​6, 112, 115–​ 16, 117, 123–​24, 130, 131 World Heritage in Danger List  102–​3, 106, 107–​8, 115–​16, 123–​24 World Heritage List  102–​3, 115–​16, 123–​24 National Federation of UNESCO Associations in Japan 263 national governmental organizations, cooperation with  202, 204, 218–​20 national parks  74–​75 natural beauty  89, 152 natural calamities and international assistance 278 natural features 63 natural heritage  associative cultural landscape  48, 50 clearly defined landscapes designed and created intentionally by humans  48, 50 conceptual origins of the WHC  9 International Union for the Conservation of Nature 9 United Nations List of Protected Areas and Equivalent Reserves 1962  9, 11–​12 World Commission on Protected Areas  9 cultural heritage  31, 32, 35, 40–​43, 48–​49 identification and delineation  81, 87 international assistance  276, 277 international law, and  3 organically evolved landscape  48, 50, 152

Recommendation Concerning the Protection, at the National Level, of the Natural and Cultural Heritage 35 reports on implementation of WHC  302 treaties and conventions  335–​36 biodiversity conventions  336–​44 climate change  346–​48 marine biodiversity  345–​46 marine protected areas  345–​46 treaty conflict  348–​50 unlisted properties of outstanding universal value  188 World Heritage Committee  48–​49, 65–​66, 70–​71, 73, 76, 78 natural heritage, definition of (Article 2)  63–​79 aesthetics  65, 70 authenticity  72–​73 biodiversity  64–​66, 69–​70, 72, 74, 75–​76 biological criteria  69–​70 biomes  64–​65, 69–​70, 76 Biosphere Reserves  76 boundaries 74 buffer zones  64–​65, 74–​75 climate change  76 Conference on the Human Environment 1972 (UN)  63–​64 conservation, linkage with  65 Convention for the Conservation of the World’s Heritage (draft) (IUCN)  63–​64 Convention on the Conservation of Migratory Species of Wild Animals 1979  74 criteria  65–​75 cultural bias  75–​78 definition  63, 64 definitional elements  65–​75 deserts  69–​70, 76 earth’s history  69 ecological criteria  69–​70 ecosystems  64–​65, 69–​70, 76 forests  69–​70, 76 geographical and physiographical features  63 geological processes  69, 70 geomorphic or physiographic features  69 Global Strategy  77 grasslands  69–​70, 76 habitats  69–​70 historical background  63–​65 ICOMOS 70 integrity  66–​69, 72–​74 intergenerational obligations  63 Intergovernmental Working Group on Conservation  63–​64 International Protection of Monuments, Groups of Buildings and Sites of Universal Value 1971 (UNECSO)  63–​64 intragenerational equity  73 IUCN 70 IUCN Natural Heritage Programme  76 law enforcement  78–​79 marine areas  64–​65, 69–​70, 76 mixed sites  69–​71 monitoring 74

Index mountains  69–​70, 76 national parks  74–​75 natural features  63 natural sites  63 nominations  66–​70, 71, 75, 77–​78, 79 Operational Guidelines  64–​73, 74–​76, 77, 78–​79 outstanding universal value, properties of  64, 65–​73, 67t, 74–​75, 78–​79 patrimony, emphasis on  65 protected area designations  64–​65, 74–​75 protection and management of sites  64–​65, 66, 74–​75 Ramsar Convention  72, 73, 76 Recommendations for Action  63–​64 record of life  69 representativity  77–​78, 79 resource use  74–​75 Rio Conference on Environment and Development 1992  65–​66 science, linkage with  65, 70 staffing  78–​79 Stockholm Conference 1972  63–​64, 65–​66 superlative natural phenomena  70, 152 sustainable financing  78–​79 sustainable use  72–​74 Tentative Lists  75–​78 UNESCO  63–​64 Vanoise Experts’ Meeting 1996  70–​71 wetlands  69–​70, 76 World Heritage Committee  65–​66, 70–​71, 73, 76, 78 World Heritage List  64–​65, 69–​70, 75, 76, 78–​79 World Heritage Outlook 3 (2020)  76, 78–​79 World Heritage Sites in Danger Lists  65–​66, 72–​73, 76, 78 World Heritage Trust, proposal for  63–​64 WWF Global 200 Ecoregions  76 natural properties, identification of 89 aesthetic importance  89, 152 biodiversity  89, 152 biological processes  89, 152 criteria 89 earth’s history  89, 152 ecological processes  89, 152 ecosystems  89, 152 exceptional natural beauty  89, 152 geological processes  89, 152 geomorphic or physiographic features  89, 152 habitats  89, 152 Operational Guidelines  89 record of life  89, 152 superlative natural phenomena  89, 152 natural sites 63 Nature Conservancy 263 Nepal, Kathmandu Valley  91–​92, 96, 178 New Zealand, Tongariro National Park  54–​55 nominations  Advisory Bodies  242–​44 cultural landscapes  56–​58 future of the WHC  426–​27 national and international protection  104 natural heritage  66–​70, 71, 75, 77–​78, 79 preparation of  93–​94

445

reports on implementation of WHC  301 Tentative Lists  143, 144 World Heritage Centre  227–​28, 229–​31, 235 World Heritage Committee and international assistance 213 World Heritage List  141, 143, 144, 148, 149–​50 contents 149 cycle of  149–​50 decision to produce  149 deferral 150 emergency nominations  230 evaluation costs  230 evaluation of  150, 229–​30 list of  149–​50, 229–​30 referral for additional information  150, 229–​30 registration  229–​30 rejection 150 re-​submission  150 rights-​holder participation  144 stakeholder participation  144 withdrawal  150, 230 non-​governmental organizations (NGOs)  increased involvement of  5–​6 national and international protection  84, 87 natural heritage, conservation of  69–​70 World Heritage Centre  235 World Heritage Committee  139, 142 international assistance  202, 204, 218–​20 World Heritage Fund  268–​69 non-​unitary constitutional systems see federal or non-​ unitary constitutional systems (Article 34) Nordic World Heritage Foundation  261–​62 observer missions  139, 142 Okapi Wildlife Reserve, Democratic Republic of Congo  266–​67, 344 Old City of Dubrovnik, Yugoslavia  175, 361–​62 Oman, Arabian Oryx Sanctuary  157–​58, 184, 186–​87, 422–​23 Operational Guidelines on the Implementation of the WHC  authenticity 47 biodiversity-​related conventions  336–​37, 338 cultural heritage  34, 35–​36, 37, 40–​44, 47–​48 cultural landscapes  52–​53, 56–​60 educational programmes  289–​90, 291 future of the WHC  422–​23, 426–​27 human rights  352, 357–​58, 359, 360 identification and delineation of world heritage properties  81, 82, 83, 87, 88, 90, 91, 93, 94, 95, 96–​97 indigenous peoples  385–​87, 390 integrity  47–​48 international assistance  205–​6, 207–​10, 211–​12, 214–​15, 217, 219–​20, 276, 277–​78, 279, 280, 285–​87 marine cultural and natural heritage, protection of  394–​96 national and international protection  104, 105–​6, 112, 129, 130

446

Index

Operational Guidelines on the Implementation of the WHC (cont.) natural heritage  64–​73, 74–​76, 77, 78–​79 natural properties, identification of  89 reports on implementation of WHC  295–​98, 300–​2, 303, 304 Tentative Lists  143 unlisted properties of outstanding universal value  199–​200 updating of  6 World Conservation Union (IUCN)  27–​28 World Heritage Centre  227–​28, 229, 231, 234, 235–​36, 237 World Heritage Committee  135, 136, 138–​39, 205–​6, 207–​10, 211–​12, 214–​15, 217, 219–​20 World Heritage Fund  271–​72 World Heritage in Danger List  170, 172–​73, 182–​83 World Heritage List  143, 148, 150, 151, 152–​53, 155–​56, 158, 160, 185–​86 organically evolved landscape  48, 50, 54, 56–​57, 152 Outer Space 146 outstanding universal value, properties of see also unlisted properties of outstanding universal value authenticity  46–​47, 49 cultural heritage  30, 33, 34, 35–​37, 40, 41t cultural landscapes, definition of  56–​57, 58–​59 future of the WHC  426–​27 identification and delineation of World Heritage properties  82–​84 cultural properties, identification of  88 definition 82 factors to be taken into account  87 Global Strategy  96–​97 Operational Guidelines  82, 83 Paris Agreement on Climate Change 2015  83–​84 protection and management of sites  83 revision and enhancement of laws  83–​84 serial properties  94 State duty to identify and delineate property  80–​81 Tentative Lists  83 World Declaration on the Environmental Rule of Law 2016  83–​84 World Heritage Centre  83 World Heritage Committee  83 indigenous peoples  381–​82 international assistance  206, 207–​8 national and international protection  101, 102–​3, 104, 112 natural heritage  64, 65–​73, 67t, 74–​75, 78–​79 Preamble  26–​29 Tentative Lists  143, 144 Vienna Convention on the Law of Treaties 1969  26–​28 World Conservation Union  27–​28 World Heritage Committee  28, 135, 206, 207–​8 World Heritage in Danger List  164, 165, 170 World Heritage List  28, 29, 143, 144, 148–​49, 150, 151, 153–​54, 155–​56, 158–​59 ozone layer, protection of the  3–​4

Pakistan, Moenjodaro  263–​64 Palestine  Church of the Nativity and the Pilgrimage Route, Bethlehem  159–​60, 196 exceptional universal value, sites of  196 Hebron/​Al-​Khalil Old Town  159–​60, 196 Nablus, historic centre of  196 Papahānaumokuākea Marine National Monument, United States  146–​47, 391, 393–​94 Paris Convention for the Protection of Industrial Property 291 Paris Convention on illicit trade in movable cultural objects 1970  25–​26 Paris Principles  353–​54 Particularly Sensitive Sea Area  345–​46 Partnerships for Conservation Initiative (PACT)  217–​18, 268–​69 periodic reports  297–​300, 301, see also State Parties, periodic reporting by Advisory Bodies  245–​46 World Heritage Centre  229, 231, 235–​36 Permanent Forum on Indigenous Issues 2000  374–​75, 385, 387 Peru, Machu Picchu  70–​71, 422–​23 Philae Temple Complex, Egypt  10, 13–​14, 16 Philippines  Rice Terraces of the Cordilleras  44, 56–​57, 60–​61 Tubbataha Reefs National Park  341 Phoenix Islands Protected Area, Kiribati  146–​47 Pimachiowin Aki (‘The Land that Gives Life’), Canada  58–​59, 60–​61, 62 Ϸingvelli National Park, Iceland 57 Plant Genetic Resources for Food and Agriculture, International Treaty on, 2001 236 Policy Documents  Impacts of Climate Change on World Heritage Properties  347–​48 Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention  93–​94 Preamble to World Heritage Convention 1972  21–​29 armed conflicts  23, 323 changing social and economic conditions  22–​23 collective interests  124–​26 conceptual origins of WHC  23–​24 heritage of all nations of the world, concept of  24–​25 international assistance  205, 275–​76 international cooperation  25 outstanding interest and outstanding universal value, concept of  26–​29 risks and dangers  22–​23 terrorism, risks posed by  23 tourism, risks posed by  23 trust, concept of  25 UNESCO, role of  25–​26 United States  25 Upper Nile, man-​made flooding of Nubian monuments in  22–​23, 204–​5, 263–​64, 265–​66 Venice and Florence in 1966, floods in  22–​23, 204–​5, 263–​64

Index pre-​established services 277 preliminary assessment  Advisory Bodies  245 IUCN 245 Tentative Lists  143 World Heritage Centre  233 World Heritage List  143, 148–​49, 160 preparatory assistance  209–​10, 211–​12, 213–​14, 216, 276, 287 modalities and conditions for  281t World Heritage Fund  271–​72 preventative assistance 277 principle of effectiveness 168 Principles and Guidelines for the Protection of the Heritage of Indigenous People 2000  375–​77 priorities  international assistance  202, 204, 209, 211–​14, 278–​80 World Heritage List  155 private international law 100 privately funded foundations 263 Project on Biodiversity Conservation in Regions of Armed Conflict 344 property, terminology and 108, see also cultural property, definition of protected area designations  64–​65, 74–​75 protection and management of sites  buffer zones  74–​75 effective boundaries  74 integrity 74 monitoring 74 national and international protection  102 national parks  74–​75 natural heritage, definition of  64–​65, 66, 74–​75 Operational Guidelines  74–​75 outstanding universal value  74–​75 protected area designations  64–​65, 74–​75 resource use, and  74–​75 World Heritage List  150, 152, 153 protection and safeguarding cultural heritage  377–​79 public international law 100 public participation  reports on implementation of WHC  296 publicity  World Heritage Committee and international assistance  202, 204, 214–​15 World Heritage List  134 publicly funded foundations  261–​63 race discrimination  355–​58, see also human rights Committee on Elimination of Racial Discrimination  355–​56 Convention on the Elimination of Discrimination of Racial Discrimination 1966  355–​56 Declaration on Racial and Racial Prejudice 1978  355–​56 Ramsar Advisory Mission  341–​42 Ramsar Bureau  338–​39 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971  72, 73, 76, 236, 336–​37, 338–​39, 340–​ 42, 344, 348–​49, see also wetlands Ramsar Scientific and Technical Review Panel  338–​39

447

Rapa Nui National Park, Chile 380 Rapid Response Facility  261, 343–​44 Rapporteur see also Special Rapporteurs World Heritage Committee  136, 142 ratification of WHC  312, 315 reactive monitoring  Advisory Bodies  245–​46 IUCN  245–​46 reports on implementation of WHC  301, 303–​4 World Heritage Centre  229, 231–​32 World Heritage Committee  139 recommendations  Historic Urban Landscape  92–​93 International Principles applicable to Archaeological Excavations 1956  9–​10 Protection, at the National Level, of the Natural and Cultural Heritage  35, 111 Safeguarding of Traditional Culture and Folklore  35, 43–​44 Stockholm Declaration 1972  23–​24, 63–​64 reconstructions and major interventions, authenticity and 47 record of life  69, 89, 152 Red Bay Basque Whaling Station, Canada 391 Regional Programmes, international assistance for 279 regional reports 298 Regional Seas Programmes (UNEP) 346 registration of WHC  313, 318 relict (or fossil) landscapes  54–​55, 56–​57 religious discrimination  356–​58 reparations 370 reports (Article 29)  295–​304 Aarhus Convention  296 access to information  296 advice on implementation  301 Advisory Bodies  245–​46, 295, 298, 300–​2, 303, 304 archives 304 cultural heritage  302 cultural landscapes  302 developing countries  300 Escazú Agreement  296 evaluation reports  301–​2 expert meetings  304 General Assembly  298, 300, 304 Global Strategy  301, 304 ICOMOS  300–​2 indigenous peoples  296 international assistance  213 main reports and reporting tasks  297t mixed properties  302 natural heritage  302 nominations 301 Operational Guidelines  295–​98, 300–​2, 303, 304 periodic reports  297–​300, 301 public participation  296 reactive monitoring  301, 303–​4 regional reports  298 Rio Declaration 1992  296 Rome Centre  300–​1 State of Conservation Information System  304 State of Conservation reports  303

448 reports (Article 29) (cont.) State Parties, periodic reporting by  295, 297–​300, 301, 304 awareness building  299 education 299 factors affecting the property  299 financial resources  299 good practices in implementation of WHC  299 human resources  299 impact of world heritage status  299 information, provision of  299 monitoring 299 other conventions/​programmes affecting property 299 priority needs  299 protection and management  299 research projects  299 scientific studies  299 statement of outstanding universal value  299 summary and conclusions  299 visitor management  299 World Heritage property data  299 studies  299, 304 Tentative Lists  304 transboundary properties  298 UNESCO General Conference  State Party reports  297 World Heritage Committee reports  300 World Conservation Union (IUCN)  300–​2 World Heritage Centre  295, 298, 300, 303, 304 World Heritage Committee  135, 295, 298, 300, 304 international assistance  213 World Heritage in Danger List  303–​4 World Heritage List  303 representativity  77–​78, 79 equitable representation in the WHC (Working Group, 1999)  142 World Heritage List  142, 154–​56 requests for international assistance  285–​87 unlisted properties of outstanding universal value  193–​94 research  Advisory Bodies  246 IUCN 246 World Heritage Committee  134 World Heritage Committee and international assistance 213 World Heritage List  160–​61 resource use  74–​75 restitution in international investment disputes 413, 414 revision of WHC  313, 318 Rice Terraces of Philippine Cordilleras  44, 56–​57, 60–​61 rights-​holder participation  Tentative Lists  144 World Heritage List  144 Rio Conference on Environment and Development 1992  3–​4, 65–​66 biodiversity-​related conventions  336–​37 reports on implementation of WHC  296

Index Rome Centre (ICCROM International Centre for the Study and Preservation and Restoration of Cultural Property)  conceptual origins of the WHC  9–​10, 13–​14 Declaration of Principles, and  239 funding 239 international assistance  247, 287 natural heritage, treaties and conventions protecting  335–​36 profile  241–​42 reports on implementation of WHC  300–​1 utilization of services by Secretariat  223–​24, 237–​38 World Heritage Committee  133, 138 World Heritage Committee and international assistance  202, 218–​19 routes  56–​57 rural landscapes  52–​56 Russian Federation  Curonian Spit National Park  94, 180–​81 Kurshskaya National Park  94 Volcanoes of Kamchatka  69 sacred landscapes  56–​57, 61 safeguarding  cultural heritage  377–​79 evolving knowledge, practices and processes  43 intangible cultural heritage  35, 43–​44, 189–​90, 200, 235–​36, 322, 331–​32, 358 international safeguarding campaigns  263–​64 marine cultural and natural heritage, protection of 398 Yamato Declaration 2004  43, 332 Salonga National Park, Democratic Republic of Congo  266, 267, 344 Sangha Trinational, Congo/​Cameroon/​Central African Republic 384 satisfaction in international investment disputes 413 science, linkage of natural heritage with  65, 70 scientific and technical studies, establishment of 98 sea use, traditional  89, 151 seas see high seas; Law of the Sea; marine cultural and natural heritage; territorial seas secondary school programmes  289–​90, 291–​92 Secretariat see World Heritage Centre securitization  361–​63, see also armed conflicts serial properties  identification and delineation  80–​81, 94–​95 joint management committees  145 nominations 145 World Heritage List  145 sex discrimination  358–​59, see also human rights Beijing Declaration on Platform for Action  358–​59 Convention on the Elimination of Discrimination Against Women  358–​59 Gender Equality Action Plan (2014–​2021) (GEAP II)  358–​59 Shakhrisyabz Historic Centre, Uzbekistan 179 Shiretoko Peninsula, Japan 380 Sian Ka’an, Mexico 344 Sichuan Giant Panda Sanctuaries, China  77–​78 sight lines, protection of 93

Index Simien National Park, Ethiopia 178 site managers  identification and delineation of world heritage properties  84, 87 sites  14–​15, see also ICOMOS (International Council of Monuments and Sites); protection and management of sites authenticity  46–​47 cultural heritage, definition of  30, 31–​32, 33–​35, 46–​47 skills-​training courses 292 Small Grants Programme  342, 343 social conditions, changing  22–​23 sociocultural change 47 Solomon Islands, East Rennel 179 South Africa  Cape Floral Region  347 federal or non-​unitary constitutional systems  306, 307–​8 Succulent Karoo  347 spatial, temporal, and social dimensions 34 Special Committee of Government Experts  31, 32, 33, 37–​40 heritage, definition of  101 Special Rapporteurs  on Cultural Rights  87–​88, 362–​63 on the Rights of Indigenous Peoples  59, 356–​57, 358, 363–​64, 374–​75 special value heritage 111 species conservation  3–​4 spirit and feeling 47 staff training  271, 274, 277, 280 stakeholder participation  Tentative Lists  144 World Heritage List  144 State of Conservation Information System 304 State of Conservation reports  303, 347–​48 state immunity  119–​20 state responsibility  128–​32 enforceable obligations  128–​30 ILC Articles on State Responsibility  117–​18, 122–​23, 128–​30, 131, 132 national and international protection  106–​9 remedies  131–​32 suitability of  131–​32 state sovereignty  111–​13, 124 cultural property, and  3 future of the WHC  423–​25 marine cultural and natural heritage, protection of 393 World Heritage in Danger List  164, 165–​66, 170 World Heritage List  158–​60 Statement of Ethical Principles (Working Group, 2019) 142 Statements of Outstanding Universal Value  Advisory Bodies  243–​44 World Heritage Centre  230–​31, 243–​44 Steering Committee  World Heritage Centre  225 Stockholm Conference 1972  3–​4 conceptual origins of the WHC  13, 15, 16, 17

449

cultural heritage, definition of  31–​32 future of the WHC  423–​24 human rights  352, 355–​56, 366–​68 natural heritage  definition of  63–​64, 65–​66 treaties and conventions protecting  335–​36 recommendations for action  23–​24 Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement  392–​93, 398 strategic objectives of the World Heritage Committee  135–​36, 210–​11, 212–​13, 271–​72 Struve Geodetic Arc  94, 145 studies, establishment of  international assistance  271, 274, 280 reports on implementation of WHC  299, 304 World Heritage Committee  134, 135 World Heritage List  160–​61 subsidies  271, 274, 280 Succulent Karoo, South Africa 347 Sumatra, Tropical Rainforest Heritage of  178–​79 superlative natural phenomena  70, 89, 152 sustainable development  228–​29, 366–​68, 369 sustainable financing  78–​79 sustainable use  72–​74 Sweden, Laponian area  70–​71 Switzerland  federal or non-​unitary constitutional systems  305–​6 Taï National Park  72–​73 Taputapuātea, French Polynesia 391 Task Forces  Task Force for the implementation of the World Heritage Convention (1999)  142 Task Force of the Carabinieri  267 Task Force on identification of sites  52–​53 teacher-​training workshops 292 technical assistance  210, 276, 281t Temple of Borobodur, Indonesia  263–​64, 265–​66 Temple of Preah Vihear, Cambodia 160 Tentative Lists  75–​78 Advisory Bodies  143–​44 analyses by ICOMOS and IUCN, consultation of  143 benchmark, as  75–​76 bias towards cultural property  77–​78 biodiversity  75–​76 biome studies  76 Biosphere Reserves  76 Cairns–​Suzhou decision  77 climate change  76 compliance levels  75–​76 content, responsibility for  144 cultural bias  75–​78 cultural landscapes  57–​58 deletions 144 forests 76 format 144 Global Strategy  77, 144 harmonization  143–​44 identification and delineation of World Heritage properties  84–​86 access rights  84

450

Index

Task Forces (cont.) Advisory Bodies  85 indigenous peoples  84 legal obligations arising from inclusion  86 local and regional governments  84 local communities  84 nominations, and  85 non-​governmental organisations  84 outstanding universal value  83 planning and evaluation tool  85 preliminary assessment  85 publication 85 site managers  84 upstream process  85–​86 World Heritage Centre  85–​86 World Heritage Committee  85, 86 indigenous peoples, participation of  144 international assistance  144 IUCN Natural Heritage Programme  76 marine areas  76 nomination dossiers  143, 144 obligation to create  143 Operational Guidelines  75–​76, 77, 143 outstanding universal value  78, 143, 144 preliminary assessments  143 Ramsar Convention  76 regional studies  76 registration 144 reports on implementation of WHC  304 representativity  77–​78 rights-​holder participation  144 stakeholder participation  144 State Party nominations  75, 77–​78 submission of  143, 144 unlisted properties of outstanding universal value  197–​98 wetlands 76 World Conservation Union  245 World Heritage Centre  232–​33, 235 World Heritage Committee  76, 78, 205–​6, 213 World Heritage Outlook 3 (2020)  76 World Heritage Sites in Danger Lists  76, 78 WWF Global 200 Ecoregions  76 territorial disputes  159–​60 territorial seas  146–​47 territoriality  World Heritage List  144–​47 Antarctic continent  146 archipelagic waters  146–​47 celestial bodies  145 continental shelf  146–​47 exclusive economic zone  146–​47 extraterritorial property, exclusion of  144–​45 high seas  147 marine internal waters  146–​47 marine spaces  146–​47 Outer Space  146 serial transnational properties  145 territorial seas  146–​47 transboundary properties  145 terrorism 23 risks and dangers to heritage  23

Thailand, Kaeng Krachan Forestry Complex  60–​61, 88 third states, obligations on  114–​15 Tongariro National Park, New Zealand  54–​55 tourism  Kahuzi-​Biega National Park  365–​66 Lake System in the Great Rift Valley  365–​66 risks and dangers to heritage  23 Volcanoes of Kamchatka  365–​66 Traditional Culture and Folklore, Recommendation on the Safeguarding of  35, 43–​44 traditional human settlements  89, 90, 151 traditions and techniques 47 training and research assistance  208, 210, 276, 281t training facilities, establishment of 98 training of staff and specialists  271, 274, 277, 280 transnational and transboundary properties  identification and delineation  80–​81, 94 joint management committees  145 nominations 145 reports on implementation of WHC  298 World Heritage List  145, 160 transparency  international assistance  215, 288 World Heritage Centre  227 World Heritage Committee  140, 215 travaux préparatoires of WHC  250–​51, 252–​53, 254–​55, 314 treaty conflict  natural heritage, treaties and conventions protecting  348–​50 Tropical Rainforest Heritage of Sumatra, Indonesia  178–​79 Tubbataha Reefs National Park, Philippines 341 Tunisia, Ichkeul National Park  341–​42 Uluru Kata Tjuta National Park, Australia  54–​55 underwater cultural heritage  definition of cultural heritage  35, 44–​45 increasing protection of  4–​5 international co-​operation, promotion of  44–​45 Underwater World Heritage Convention 2001  322, 331, 392, 394, 396, 398–​99, 400 World Heritage Centre  235–​36 World Heritage Convention  331 World Heritage List  44–​45 UNDP–​GEF Small Grants Programme 268 UNESCO (United Nations Educational, Scientific and Cultural Organization)  Committee on Conventions and Recommendations  353–​54 Constitution  25–​26, 351, 355–​56 Convention France–​UNESCO  116 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970  3, 112 cultural heritage, protection of  9–​10 cultural property  32–​33 Declaration on the Intentional Destruction of Cultural Heritage 2003  118–​20, 362, 371 Director-​General  224–​26, 229, 234–​35

Index General Conference  State Party reports  297 World Heritage Committee reports  300 Governing Bodies  93–​94 Indigenous Peoples Policy 2018  84, 93–​94 Integrated Strategy to Combat Racism, Discrimination, Xenophobia and Intolerance 2003  355–​56 natural heritage, definition of  63–​64 parallel initiatives by IUCN and UNESCO  12 Project on Young People’s Participation in World Heritage Preservation and Promotion 292 proposed ‘Convention for the Protection of Monuments, Groups of Buildings and Sites of Universal Interest’,  12, 13–​15 protection of cultural heritage  108 Protection of the World Cultural and Natural Heritage 8 Recommendations  Historic Urban Landscape  92–​93 Protection, at the National Level, of the Natural and Cultural Heritage  35, 111 Safeguarding of Traditional Culture and Folklore  35, 43–​44 role of  351–​52, 353–​60 Strategy on Human Rights  354–​55, 356–​57 UNITWIN/​UNESCO Chairs Programme  293 Universal Declaration on Cultural Diversity 2003  45–​46 World Heritage Centre  autonomy  225–​26 coordination with  235–​36 World Heritage Committee  136–​37 General Conference and Executive Board  206 Internal Oversight Service Report (IOS Report)  218–​20 international cooperation  218 National Commission  208 Permanent Delegation  208 WHC organs, relationship between  206–​7 World Heritage Fund  257 UNESCO treaties and conventions on cultural heritage, WHC and  321–​34 armed conflicts  323–​27 cultural diversity  332 intangible cultural heritage  322, 331–​32 illicit trafficking  327–​31 ad hoc measures  331 standard-​setting instruments  331 UNESCO Convention 1970  328–​29 overlapping 364  terminology  321–​22 underwater cultural heritage  322, 331 universalism  321–​22 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995  112, 236, 329–​30 United Kingdom, Liverpool–​Maritime Mercantile City  91–​92, 158, 177, 184, 186, 422–​23 United Nations  Agenda for Sustainable Development 2030  93–​94

451

Convention on Access to Information, Participation in Decision-​making and Access to Justice in Environmental Matters 1998  84 Convention on the Law of the Sea 1982 (UNCLOS)  120–​21, 236, 345–​46, 392–​94, 396, 397, 398, 399–​400, 401 Declaration on the Conservation of Historic Urban Landscapes 2005  92 Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP)  59–​60, 84, 87–​88, 93–​94, 374–​75, 377–​78, 382–​84, 387, 390 Educational, Scientific and Cultural Organization see UNESCO federal or non-​unitary constitutional systems  308 Framework Convention on Climate Change 1992  236, 343 Fund for International Partnerships  344 General Assembly Resolution No. 2749  120–​21 human rights  Agenda on Sustainable Development 2030  359–​60 Charter  13–​15 Guiding Principles on Businesses and Human Rights  365–​66 Millennium Declaration  354–​55 Special Rapporteur on Cultural Rights  362–​63 Human Rights Council  87–​88 List of Protected Areas and Equivalent Reserves 1962  9, 11–​12 Regional Seas Programmes  346 Special Rapporteur in the field of cultural rights  87–​88, 362–​63 Special Rapporteur on the Rights of Indigenous Peoples  59, 356–​57, 358, 363–​64, 374–​75 United Nations Foundation  263, 269, 344 United Nations Global Compact  268 United Nations System  World Heritage Committee  142 World Heritage Fund  257 United States  Grand Canyon National Park  79 Papahānaumokuākea Marine National Monument  146–​47, 391, 393–​94 Waterton Glacier International Peace Park  94 Whale Sanctuary of El Vizcaino  422–​23 Yellowstone National Park  182 UNITWIN/​UNESCO Chairs Programme 293 Universal Declaration on Cultural Diversity 2001  45–​46, 359–​60 Universal Declaration of Human Rights 1948  87–​88, 93–​94, 354 universal value see outstanding universal value, properties of unlisted properties of outstanding universal value (Article 12)  188–​201 boundaries of property  194 cultural heritage, properties belonging to  188 customary international law  189 deliberate acts of hostility  193–​94 effectiveness of obligations arising under Article 12,  192–​94 exceptional universal value  196–​97

452

Index

unlisted properties of outstanding universal value (Article 12) (cont.) identification and delineation of natural and cultural heritage  191–​92, 198 implementation of practice of WHC, use of Article 12,  195–​98 intangible cultural heritage  189–​90, 200 international assistance  191–​92, 198 international co-​operation  191 interpretation 188 inventories, inclusion on  193 natural heritage, properties belonging to  188 necessity of inclusion of Article 12,  200–​1 Operational Guidelines  199–​200 potential for inclusion  191–​92 practical effects  198–​200 protection of  190–​93, 196–​98, 199, 200–​1 requests for assistance  193–​94 Safeguarding of Intangible Cultural Heritage Convention 2003 (UNESCO)  189–​90, 200 state parties, duties of  190–​91 Tentative Lists, inclusion on  197–​98 Vienna Convention on the Law of Treaties 1972 189 World Heritage Committee  189 World Heritage Convention  necessity of inclusion of Art 12,  200–​1 significance of inclusion of provision  189–​90 use of Art 12 in implementing practice  195–​98 Upper Nile, man-​made flooding of Nubian monuments in  10, 13–​14, 16, 22–​23, 204–​5, 263–​64, 265–​66 Upstream process  Advisory Bodies  245 World Heritage Centre  233 World Heritage List  148–​49, 160 Advisory Bodies  148–​49 feasibility of nominations  148–​49 Operational Guidelines  148 outstanding universal value  148–​49 preliminary assessments  148–​49 World Heritage Centre  148 upstreaming, facilitation of 213 urban landscapes, identification and delineation  92–​93 urgency  priorities and  212 World Heritage in Danger List  168–​69, 170–​71, 174–​75 use and function 47 Uzbekistan, Shakhrisyabz Historic Centre 179 Val d’Orcia 57 Valletta Convention see archaeological heritage value see outstanding universal value, properties of Van Boven/​Bassiouni Principles  353–​54 Venice  floods in 1966  22–​23, 204–​5, 263–​64 Venice and its Lagoon  181 Venice Charter 1964  10, 46–​47 Victoria Falls/​Mosi-​oa-​Tunya 79 Vienna Convention on the Law of Treaties 1969 

Vienna Convention on the Law of Treaties  federal or non-​unitary constitutional systems  307 final articles of WHC  313–​14 indigenous peoples  382–​83 international investment disputes  415–​16, 417 national and international protection  114–​15 outstanding natural value, definition of  26–​28 treaty conflict  349–​50 unlisted properties of outstanding universal value  189 World Heritage Fund  254–​55 World Heritage in Danger List  163, 171 Vienna Declaration and Programme of Action 1993  354–​56 Vienna Historic Centre, Austria 180 Vienna Memorandum on World Heritage and Contemporary Architecture  92–​93 Virunga National Park, Democratic Republic of Congo  266–​67, 344, 361–​62 visual impacts  91–​93 modern development  91–​92 planned development  91 Volcanoes of Kamchatka, Russian Federation 69 Voluntary Fund for Indigenous Peoples 1985  374–​75 war see armed conflicts Waterton Glacier International Peace Park, Canada and the United States 94 Western Ghats, India 384 wetlands  69–​70, 76 International Corporate Wetlands Restoration Partnership 344 joint sites, funding for  344 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971  72, 73, 76, 236 Whale Sanctuary of El Vizcaino, United States  422–​23 White House Committee on Natural Resources Conservation and Development  11–​12 Wildlife Conservation Society (WCS) 266 Working Groups  142, 374–​75 working methods of the WHC (Working Group, 2004) 142 workshop on World Heritage  cultural landscapes, definition of  53, 55–​56 World Bank 268 World Commission on Protected Areas 9 World Conservation Union (IUCN)  9, 23–​24 capacity building  246 cultural heritage, definition of  31–​32 cultural landscapes, definition of  52–​53, 59 Declaration of Principles, and  239 delineation of physical boundaries  93 draft Convention for the Conservation of the World’s Heritage  63–​64 establishment 9 funding 239 international assistance  202, 208, 218–​19, 247, 287 natural heritage  definition of  70 treaties and conventions protecting  335–​36 Natural Heritage Programme  76

Index Operational Guidelines  27–​28 outstanding natural value, definition of  27–​28 parallel initiatives by IUCN and UNESCO  12 preliminary assessment  245 profile 240 publication of national park list  9 reactive monitoring  245–​46 reports on implementation of WHC  300–​2 research 246 Tentative Lists  143, 245 utilization of services by Secretariat  223–​24, 237–​38 World Heritage Committee  133, 138–​39, 202, 208, 218–​19 World Heritage List  143, 148–​49, 150 World Heritage Trust Convention proposal  12–​13 World Heritage Trust proposal  11–​12 World Heritage and Mining (Working Group, 2002) 142 World Heritage Centre (Article 14)  223–​39, 247 Advisory Bodies  223–​24, 228, 229–​31, 232–​33, 234–​35, 237–​47 appointment  223–​25 archives 235 assistance to WHC  227 awareness raising  234–​35 boundaries of site, requests for modification of  230–​31 climate change  347–​48 collective interests  100–​1, 106, 117 Comprehensive Partnership Strategy  237 Cultural Conventions Liaison Group  235–​36 cultural heritage, definition of  38 cultural landscapes, definition of  59, 60–​61 deletion from the World Heritage Lists  232 deterioration of properties  231 dialogue with State Parties  227 Director  224–​25, 237 education  234–​35, 291, 294 financial resources, management of  233–​34 function and roles  227–​37 funding  226–​27 future of the WHC  428 General Assembly of State Parties  223, 224–​25, 227, 228 Global Strategy  229, 232–​33 human rights violations  368–​69 identification and delineation of world heritage properties  85–​86 implementation of decisions and objectives of WHC  228, 229 international assistance  223, 229, 233, 234, 276, 285–​87 international organizations, cooperation with  235 irretrievable loss of property  231–​32 joint sites, funding of  342 management of World Heritage Convention  229 meetings, documentation, and agenda of  227, 229, 235 national governments, cooperation with  235 nominations  227–​28, 229–​31, 235 non-​governmental organizations, cooperation with 235

453

Operational Guidelines  227–​28, 229, 231, 234, 235–​36, 237 periodic reporting  229, 231, 235–​36 personnel, appointment of  224 preliminary assessment  233 profile  224–​27 provision of information  229 publicity and promotion  229 reactive monitoring  229, 231–​32 reports on implementation of WHC  295, 298, 300, 303, 304 role of  222, 224, 227–​37 Statements of Outstanding Universal Value  230–​31, 243–​44 Steering Committee  225 strategic objectives of WHC  232–​33 sustainable development goals  228–​29 Tentative Lists  232–​33, 235 transparency 227 under-​resourcing  226–​27 UNESCO  autonomy from  225–​26 coordination with  235–​36 Director-​General  224–​26, 229, 234–​35 Upstream process  233 website 235 World Heritage Committee  136, 142, 223, 224–​25, 227 World Heritage Emblem  237 World Heritage Fund  223, 224–​25, 233–​34 World Heritage in Danger List  223, 232 World Heritage List  148, 154, 223, 232 World Heritage Committee (Articles 8–​11)  135–​43, see also World Heritage Committee and international assistance (Article 13) Advisory Bodies  137–​39, 141 ballots for allocated seats  136–​37 Bureau 136 capacity building, development to effective  135–​36 climate change  347–​48 communication  135–​36 communities, enhancing role of  135–​36 composition 136 conceptual origins of the WHC  17 conservation, ensuring effective  135–​36 consultation before refusal of inclusion  134, 135 consultative bodies  133, 142–​43 cultural areas, representatives of  136 cultural diversity  140 cultural heritage  34, 35–​38, 40, 45–​46, 48–​49 cultural landscapes  53, 57–​58 decision-​making  136 decisions, adoption of  141 educational programmes  291, 294 elections  133, 136–​37, 139 equitable representation  136, 139 establishment  133, 135–​36 ‘five C’s’,  135–​36 function 135 future of the WHC  424–​25, 427 General Assembly  135, 136–​37, 140

454

Index

World Heritage Committee (Articles 8–​11) (cont.) geographical areas, representatives of  136 human rights violations  363–​64, 366–​68, 369 ICOMOS (International Council of Monuments and Sites)  133, 138–​39 identification and delineation of world heritage properties  81, 83, 85, 86, 89, 93–​94, 95, 96–​97 impartiality 140 indigenous peoples  373, 383–​84, 385–​86, 387, 388, 390 integrity 140 intergovernmental organizations  139, 142 international assistance  135, 276 inventory, submission of  134 joint sites, funding of  342 marine cultural and natural heritage, protection of  394–​96, 397–​98, 400–​1 national and international protection  100–​3, 105–​6, 112, 115–​16, 117, 123–​24, 130, 131 natural heritage  definition of  65–​66, 70–​71, 73, 76, 78 treaties and conventions protecting  335–​36 non-​governmental organizations  139, 142 objectivity 140 observer missions  139, 142 Operational Guidelines  135, 136, 138–​39 outstanding natural value, definition of  28, 135 partial renewal  139 public meetings  133, 141 qualifications of representatives  139–​40 quorum  141, 202 Rapporteur  136, 142 reactive monitoring missions  139 recommendations, adoption of  141 regional groups, representatives of  136 reports  135, 295, 298, 300, 304 representatives 133 research, establishment of  134 Rome Centre  133, 138 rotation of seats  136–​37, 139 rules of procedure  133, 139, 140–​42 Secretariat  136, 142 sessions 141 states parties  136–​37 attendance of non-​members at sessions  141 consent to inclusion in World Heritage List  134 nominations for inclusion  141 number of  136 qualifications of representatives  139–​40 renewal 139 terms of office  133, 139 strategic objectives  135–​36, 271–​72 studies, establishment of  134, 135 subsidiary bodies  142–​43 summary record of interventions  142 transparency 140 UNESCO  136–​37 United Nations System  142 unlisted properties of outstanding universal value  189 voting  137, 141, 202 World Conservation Union (formerly IUCN)  133, 138–​39

World Heritage Centre  136, 142, 223, 224–​25, 227 World Heritage Fund  135, 272–​73 World Heritage in Danger List  23, 135, 163–​64, 170, 172–​73 World Heritage List  consent to inclusion in  134 credibility of, strengthen the  135–​36 criteria for inclusion  134 deletion 135 inscription on  135 maintenance of  134 nominations 141 publication of  134 World Heritage Committee and international assistance (Article 13)  202–​21 Advisory Bodies  204, 208, 210, 211, 213–​15, 218–​20 catalytic and multiplier effect  212 collective assistance  205 conservation and management assistance  209–​10, 211–​12, 213, 216 cooperation with other organizations, bodies and individuals  202, 204, 218–​20 criteria for selection  211 developing countries  212 earmarking funds  216 educational programmes  209–​10 educational value  213 emergency assistance  209–​10, 211–​12, 216 erga omnes obligations  208 evaluation of assistance  210, 214–​15, 218–​19 five C’s, furtherance of  212–​13 fundraising  204, 215–​18 grants  list of  214–​15 nature and extent of  210–​11 ICOMOS  202, 208, 218–​19 inclusivity 213 intangible cultural heritage  219–​20 international cooperation, rationale for  204–​6 international meetings and educational programmes  209–​10 international organizations, cooperation with  202, 204, 218–​20 interpretation 207 least developed countries  212, 216 maximum sums  209–​10 monitoring processes  213, 214–​15 national governmental organizations, cooperation with  202, 204, 218–​20 national meetings and educational programmes  209–​10 nomination, preparation of  213 non-​governmental organizations, cooperation with  202, 204, 218–​20 Operational Guidelines  205–​6, 207–​10, 211–​12, 214–​15, 217, 219–​20 outstanding universal value, properties of  206, 207–​8 Partnerships for Conservation Initiative (PACT)  217–​18 post-​conflict situations  212 powers 204

Index power to decide what action is to be taken  209–​10 power to determine  207, 209–​14 power to make necessary arrangements with government concerned  214 power to receive  207–​9 Preamble 205 preparatory assistance  209–​10, 211–​12, 213–​14, 216 priorities, order of  202, 204, 209, 211–​14 publicity  202, 204, 214–​15 regional meetings and educational programmes  209–​10 reporting requirements of state parties  213 requests for assistance  202 power to determine  207, 209–​11 power to receive  207–​9 refusal to consider  208 research and development  213 results-​based approach  214–​15 Rome Centre  202, 218–​19 Secretariat  210, 214–​15 strategic objectives of Committee  210–​11, 212–​13 technical assistance  210 Tentative Lists  205–​6, 213 territorial restrictions  208 training and research assistance  208, 210 transparency 215 UNESCO  General Conference and Executive Board  206 Internal Oversight Service Report (IOS Report)  218–​20 international cooperation  218 National Commission  208 Permanent Delegation  208 WHC organs, relationship between  206–​7 upstreaming, facilitation of  213 urgency, priorities and  212 website, Marketpalce  217–​18 World Conservation Union  202, 208, 218–​19 World Heritage Centre  210 World Heritage Convention, assistance in context of  204–​7 World Heritage Fund  202, 203, 204, 205–​6, 207, 209, 211, 215–​18, 220–​21 Roadmap for Sustainability of the World Heritage Fund 218 World Heritage in Danger List  206, 208–​9, 211–​12 World Heritage List  205–​6, 211 World Heritage Partnerships Initiative (WHPI)  217–​18 World Heritage Convention see also particular articles accession  312, 316 denunciation  312, 317 dynamic evolution  5–​7 entry into force  312, 317 importance of  4–​5 innovative features  4–​5 interpretation 6 languages  312, 313–​15 notifications by Director-​General of UNESCO  312, 317–​18 ratification  312, 315

455

registration  313, 318 revision  313, 318 state sovereignty  5 travaux préparatoires  250–​51, 252–​53, 254–​55, 314 World Heritage Emblem  educational programmes  291 World Heritage Centre  237 World Heritage Fund (Articles 15–​18)  248–​73 African World Heritage Fund  262–​63 Armed Conflict, Biodiversity Conservation in Regions of  266–​67 associations, funds from  259, 263 Biodiversity Conservation in Regions of Armed Conflict  266–​67 conservation and management assistance  271–​72 contributions  248–​49, 250–​56 arrears  249, 255, 270–​71 compulsory  248, 250–​51, 252, 254–​56, 257, 270, 285 declarations  249, 252–​55 non-​party states  256–​57 voluntary  250–​51, 252, 254–​55, 256, 257, 270, 285 corporate sector, collaboration with  268–​69 donations  249, 257, 269 educational programmes  294 emergency assistance  271–​72 equipment supplies  271, 274 establishment 248 experts, technicians and skilled labour, provisions of  271, 274 Fauna & Flora International  261, 263 financial period  251 Financial Regulations  233, 248, 250, 251 fundraising  249, 263–​68 Biodiversity Conservation in Regions of Armed Conflict  266–​67 International cooperation through bi-​and multilateral agreements  267–​68 International Programme for the Preservation of Angkor, Cambodia  264–​66 Protecting World Natural Heritage in the Democratic Republic of the Congo  266–​67 Unite4Heritage 267 urgency of  259 Funds-​In-​Trust  261 German World Heritage Foundation  261, 262 Gordon and Betty Moore Foundation  263 individuals, provision of funds from  257 interest on deposits, funds raised through  257 interest-​free loans  271, 274 intergovernmental organizations, provision of funds from 257 international assistance  202, 203, 204, 205–​6, 207, 209, 211, 215–​18, 250, 272, 279, 280 international safeguarding campaigns  263–​64 joint sites  342 low-​interest loans  271, 274 management of Fund  271–​73 National Federation of UNESCO Associations in Japan 263

456

Index

World Heritage Fund (Articles 15–​18) (cont.) Nature Conservancy  263 nature of Fund  250–​51 non-​governmental organizations, collaboration with  268–​69 Nordic World Heritage Foundation  261–​62 online donations  269 Operational Guidelines  271–​72 other available funds  257–​69 penalties on states in arrears  270–​71 preparatory assistance  271–​72 privately funded foundations  263 programme and budget 2018-​2019  260t public or private bodies, provision of funds from  249, 257, 259 publicly funded foundations  261–​63 purpose 250 Rapid Response Facility  261 resources  248, 250, 252–​57, 269 Roadmap for Sustainability of the World Heritage Fund 218 royalties, funds raised through  257 Special Account, managed as  250 Statement of Income and Expenditure  258t studies, establishment of  271, 274 subsidies  271, 274 training of staff and specialists  271, 274 travaux préparatoires of WHC  250–​51, 252–​53, 254–​55 trust fund, as  250 UNESCO, provision of funds from  257 United Nations Foundation  263, 269 United Nations system, provision of funds from  257 Vienna Convention on the Law of Treaties  254–​55 Working Group 2001  142 World Heritage Centre  223, 224–​25, 233–​34 World Heritage Committee  135, 202, 203, 204, 205–​ 6, 207, 209, 211, 215–​18, 220–​21, 272–​73 World Heritage in Danger List  174–​75, 264–​67 World Heritage PACT (Partnerships for Conservation)  268–​69 World Monuments Fund  263 World Heritage in Danger List (Article 11)  162–​87 application of WHC  172–​82 armed conflict  323 assistance, requests for  163, 166–​68, 170 avoiding inscription  181 cases relating to Article 11,  173–​82 conditions for inscription  166–​83 consent for inscription  163, 166, 167, 170 consultation with States  163–​64, 172 criteria for inclusion  65–​66, 166–​83 cultural heritage, definition of  34–​35, 36–​40, 44–​45, 46–​47, 49 cultural landscapes, definition of  50, 53, 56–​57, 60–​61 deletions  162–​63 educational programmes  291 erga omnes obligations  164–​65, 168 Expert Review 2000  78–​79 federal or non-​unitary constitutional systems  309–​10

future of the WHC  425 human rights  356 identification and delineation  91, 95–​96 inscription  163–​64, 171–​72, 173–​82, 183 international assistance  174–​75, 206, 208–​9, 211–​12, 279 interpretation of WHC  163, 171–​83 marine cultural and natural heritage, protection of 391 Mount Nimba Strict Reserve  72–​73 national and international protection  102–​3, 106, 107–​8, 115–​16, 123–​24 natural heritage, definition of  64–​66, 69–​70, 72–​73, 75, 76, 78–​79 Operational Guidelines  170, 172–​73, 182–​83 opposition to inscription  167–​68 outstanding universal value  28, 29, 164, 165, 170 preparatory work of WHC  171–​72 publication of inscription  168 reports on implementation of WHC  303–​4 requests for assistance  163, 166–​68, 170, 172–​73 requests for inscription  167, 170 state co-​operation  160, 165, 174 state sovereignty  164, 165–​66, 170 Tentative Lists see Tentative Lists uncooperative states  170–​71 urgent need  168–​69, 170–​71, 174–​75 Vienna Convention on the Law of Treaties  163, 171 World Heritage Centre  223, 232 World Heritage Committee  23, 135, 163–​64, 170, 172–​73, 206, 208–​9, 211–​12 World Heritage Fund  174–​75 World Heritage List  156, 163–​64, 183–​87 World Heritage in Young Hands Kit 292 World Heritage List (Articles 8–​11)  143–​61, see also Global Strategy for a Balanced, Representative, and Credible World Heritage List and Tentative Lists; nominations; unlisted properties of outstanding universal value (Article 12) Advisory Bodies  143–​44, 148–​49, 150, 155–​56, 160 Antarctic continent  146 archaeological sites, reconstruction of  152–​53 archipelagic waters  146–​47 architecture  151, 153–​54 authenticity  150, 152–​53 buffer zones  153 Cairns session 2000  155–​56 celestial bodies, sites on  145 collective interests of mankind  158 consent  to deletion  185–​86 to inclusion  134 continental shelf  146–​47 cooperation agreements  161 criteria for inclusion  134, 151–​54, 160 deletions  135, 156–​58, 183–​87 consent of state  185–​86 consultation with state  185–​86 Operational Guidelines  185–​86 principle of parallelism of forms  185

Index prior inclusion in World Heritage in Danger List  186–​87 educational programmes  291 exclusive economic zones  146–​47 extraterritorial property, exclusion of  144–​45 funds-​in-​trust agreements  161 future of the WHC  422–​24, 426, 428 Global Strategy  144, 154 high seas  147 human rights  356 ICOMOS  143, 148–​49, 150 indigenous peoples  144, 373, 376–​77, 380–​81, 382–​83, 387, 388, 389, 390 industrial archaeology  153–​54 intangibility  153–​54 integrity  150, 152, 153 international assistance  144, 276, 277, 279, 280 international investment disputes  406, 412, 417 inventories  143 maintenance of  134 marine cultural and natural heritage, protection of  393–​95, 397, 399 marine internal waters  146–​47 marine spaces  146–​47 mixed sites  150, 152 monumental concept of heritage  153–​54 Moon, sites on  145 nominations  141, 143, 144, 148, 149–​50 contents  149 cycle of  149–​50 decision to produce  149 deferral  150 emergency nominations  230 evaluation costs  230 evaluation of  150, 229–​30 list of  149–​50, 229–​30 referral for additional information  150, 229–​30 registration  229–​30 rejection  150 re-​submission  150 rights-​holder participation  144 stakeholder participation  144 withdrawal  150, 230 number of properties  154 Operational Guidelines  143, 148, 150, 151, 152–​ 53, 155–​56, 158, 160, 185–​86 Outer Space  146 outstanding universal value  143, 144, 148–​49, 150, 151, 153–​54, 155–​56, 158–​59 preliminary assessments  143, 148–​49, 160 priority system  155 protection and management of sites  150, 152, 153 publication  134 reports on implementation of WHC  303 representativity  154–​56 research, establishment of  160–​61 rights-​holder participation  144 sea-​use, traditional  151 serial transnational properties  145 stakeholder participation  144 state co-​operation  160

457

state sovereignty and  158–​60 studies, establishment of  160–​61 technological developments  153–​54 Tentative Lists see Tentative Lists territorial disputes  159–​60 territorial requirements  144–​47 Antarctic continent  146 archipelagic waters  146–​47 celestial bodies  145 continental shelf  146–​47 exclusive economic zone  146–​47 extraterritorial property, exclusion of  144–​45 high seas  147 marine internal waters  146–​47 marine spaces  146–​47 Outer Space  146 serial transnational properties  145 territorial seas  146–​47 transboundary properties  145 territorial seas  146–​47 transboundary properties  145, 160 Upstream Process  148–​49, 160 Advisory Bodies  148–​49 feasibility of nominations  148–​49 Operational Guidelines  148 outstanding universal value  148–​49 preliminary assessments  148–​49 World Heritage Centre  148 World Conservation Union (formerly IUCN)  143, 148–​49, 150 World Heritage Centre  148, 154, 223, 232 World Heritage Committee  consent to inclusion  134, 150 criteria for inclusion  134, 151–​54 deletions  135 discretion  151, 153–​54 inscriptions  135 maintenance  134 nominations  141 publication  134 strengthen credibility  135–​36 World Heritage Fund  264–​67 World Heritage Marine Programme  345–​46 World Heritage Outlook 3 (2020)  76, 78–​79 World Heritage Partnerships Initiative (WHPI)  217–​ 18, 343–​44 World Heritage Programme for Small Island Developing States  347 World Heritage Sustainable Development Perspective  352, 354–​55, 356, 359, 360 World Heritage Trust, proposal for  11–​12, 63–​64 Committee on Natural Resources Conservation and Development  11 IUCN proposed Convention  12–​13 Stockholm Conference on the Human Environment 1972  13, 15, 16, 17 White House Committee on Natural Resources Conservation and Development  11–​12 World Monuments Fund  263 World Summit for Sustainable Development 2002  biodiversity-​related conventions  336–​37

458

Index

World Wide Fund for Nature (WWF)  266 Global 200 Ecoregions  76

youth forums  292 Yugoslavia, Old City of Dubrovnik  175, 361–​62

Yamato Declaration on Integrated Approaches for Safeguarding Tangible and Intangible Cultural Heritage 2004  43, 332 Yellowstone National Park, United States  182

Zambia, Mosi-​oa-​Tunya/​ Victoria Falls World Heritage  94 Zimbabwe, Mosi-​oa-​Tunya/​ Victoria Falls World Heritage  94