World Heritage and Human Rights: Lessons from the Asia–Pacific and Global Arena 9781138224216, 9781138224223, 9781315402789

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‘In this excellent volume Peter Bille Larsen carefully argues that while rights infringements associated with World Heritage listing and management processes have been too long ignored it is important to recognize the advances being made by many practitioners on the ground towards achieving stronger social justice at World Heritage sites. Larsen’s guarded optimism is supported by an admirable set of contributors providing original case studies and legal reviews that capture the changing situation in the Asia–Pacific region.’ - Professor William Logan, Deakin University, Australia

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WORLD HERITAGE AND HUMAN RIGHTS

The World Heritage community is currently adopting policies to mainstream human rights as part of a wider sustainability agenda. This interdisciplinary book combines a state-of-the-art review of World Heritage policy and practice at the global level with ethnographic case studies from the Asia–Pacific region by leading scholars in the field. By joining legal reviews, anthropology and practitioner experience through in-depth case studies, it shows the diversity of human rights issues in both natural and cultural heritage sites. From site-designation to their conservation and management, the book explores various rights issues and analyses the diverse social, cultural and legal challenges and responses at both regional and global levels. Detailed case studies are included from Australia, Cambodia, China, Malaysia, Myanmar, Nepal, the Philippines and Vietnam. The book will appeal to both natural and cultural heritage professionals and human rights and heritage scholars, and will serve as a useful compendium for courses use, allowing students to compare, contrast and contextualise human rights and heritage in different contexts. Peter Bille Larsen lectures in Anthropology, International Governance, Heritage Studies and Development Studies at the University of Lucerne, Switzerland. He has a strong interest in the intersection between conservation and social equity, including work in the fields of indigenous rights, World Heritage policy, human rights, as well as the anthropology of international politics.

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WORLD HERITAGE AND HUMAN RIGHTS Lessons from the Asia–Pacific and Global Arena

Edited by Peter Bille Larsen

First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 selection and editorial matter, Peter Bille Larsen; individual chapters, the contributors The right of Peter Bille Larsen to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalogue record for this book has been requested ISBN: 978-1-138-22421-6 (hbk) ISBN: 978-1-138-22422-3 (pbk) ISBN: 978-1-315-40278-9 (ebk) Typeset in Bembo by Deanta Global Publishing Services, Chennai, India

To the many indigenous peoples and local communities whose lives are shaped by, but also seek to influence, form and benefit from, the future of World Heritage.

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CONTENTS

List of figures List of tables Acknowledgements List of contributors 1 Introduction: World Heritage and human rights in the Asia–Pacific and global arena Peter Bille Larsen

xii xiv xv xvii

1

PART I

Case studies

27

2 The World Heritage committee and human rights: learning from event ethnography Peter Bille Larsen and Kristal Buckley

29

3 World Heritage and human rights in Australia: from K’gari/Fraser Island to national processes Ian Lilley, Kristal Buckley and Helena Kajlich

49

4 Sambor Prei Kuk: demarcating the relationship between religion and cultural heritage as human rights in Cambodia Jonathan Liljeblad

70

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Contents

5 Empowerment and human rights: comparing two cultural heritage cases in Xi’an, China Harald Høyem 6 World Heritage and rights in Malaysia: a case study of Kinabalu Park World Heritage Site, Sabah Amran Hamzah 7 Cultural and participation rights in Bagan, Myanmar Anne Laura Kraak 8 Local rights in World Heritage sites: learning from postearthquake rehabilitation dynamics in the Kathmandu Valley Sudarshan Raj Tiwari, Pranita Shrestha and Hans Christie Bjønness 9 Vigan: World Heritage as a ‘tool for development’? Sara Dürr, Malot Ingel and Bettina Beer 10 World Heritage and ethnic minority rights in Phong Nha Ke Bang,Vietnam: cosmopolitan assemblages in neoliberal times Peter Bille Larsen

87

103 120

135 153

172

PART II

Legal reviews 11 The Inter-relationship of the World Heritage convention and International Human Rights Law: a preliminary assessment and outlook Alexander H. E. Morawa and Gabriel Zalazar

191

193

12 Legal frameworks for World Heritage and human rights in Australia Ben Boer and Stefan Gruber

217

13 The World Heritage convention and human rights in Nepal: a review of legal norms and practices Bipin Adhikari

238

14 World Heritage and human rights policy and legislation in the Philippines Lucille Karen E. Malilong and Mary Grace Ellen S.Villanueva

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Contents

15 World Heritage and human rights policy in Vietnam: a legal review Nguyen Linh Giang

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275

PART III

Conclusions

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16 (Re)structuring rights and World Heritage dynamics and looking towards the future Peter Bille Larsen

295

Annex

315

17 Caux call for action on rights-based approaches in World Heritage

317

Index

321

FIGURES

1.1 1.2 1.3 2.1 2.2 2.3 3.1 4.1 4.2 4.3 5.1 5.2 5.3 5.4 5.5 6.1 6.2 6.3 6.4

UNESCO Director General Irina Bokova speaking at World Heritage Committee meeting, Istanbul 2016 Explicit references to rights issues in nomination documents and State of Conservation reports Map of World Heritage site case studies Protestor at World Heritage Committee, Bonn 2015 World Heritage Committee meeting room, Bonn 2015 The six rights heritage linkages Map of K’gari/Fraser Island Map of Sambor Prei Kuk in Cambodia Shakti altar inside a temple at Sambor Prei Kuk Closer image of a Shakti altar inside a temple at Sambor Prei Kuk Map of Xi’an Map of Xi’an showing the location of the two cases of this chapter The project area in the Drum Tower Muslim District Han Chang’an City map. Location of Weiyang Palace site The administrative and political hierarchies – here applied to Case Study 2, Han Chang’an City Map of Kinabalu, Malaysia Kpg. Bundu Tuhan community consensus structure Six-phase process of enforcing rights-based approaches Enabling conditions for the restoration of local rights in Sabah

2 9 18 32 33 34 50 72 73 74 89 91 93 97 99 104 108 110 114

Figures

7.1 7.2 8.1 8.2 9.1 9.2 10.1

Map of Bagan, Myanmar Location of objects in the study area Map of Kathmandu Valley The three-way analytical diagram Map of Vigan The map shows Vigan’s historical town centre, located where the Govantes and Mestizo rivers meet, with the buffer zone and the World Heritage core zone Map of Phong Nha Ke Bang

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122 124 136 138 155 157 173

TABLES

8.1 Rights categories and corresponding rights as locally identified 138 15.1 Forest classifications and uses 284

ACKNOWLEDGEMENTS

Many new and old friends contributed to the making of this book. We are particularly grateful to the Swiss Network of International Studies for their generous support, which allowed for much of the research to be undertaken.The readiness of multiple colleagues from the Advisory Bodies and the UNESCO World Heritage Centre to dialogue on the topic of human rights offered a unique and precious window of opportunity to bridge the divide between academia and global heritage policy. Special thanks go to Tim Badman, Gonzalo Oviedo, Peter Shadie and Cyril Komos at the IUCN, alongside Kirsti Kovanen, Gwenaelle Bourdin, Gurmeet Rai and Ryan Rowberry in their different ICOMOS capacities. Particular thanks go to Amund Sinding-Larsen of ICOMOS Norway whose determination was instrumental in working with the IUCN, ICOMOS and ICCROM to consolidate the new rights-based agenda for the World Heritage system through the Our Common Dignity initiative. Joe King, Akiko Umezu and Gamini Wijesuriya of ICCROM contributed generously with their time on multiple occasions. At the World Heritage Centre Kishore Rao, Mechtild Rössler, Feng Jing, Edmond Moukala and Giovanni Boccardi welcomed the research and facilitated discussions. Multiple States Party representatives, advocacy organisations, community representatives and experts also readily shared their perspectives and ideas during Committee meetings and national dialogues. In Australia, the team of Ian Lilley, Kristal Buckley and Helena Kajlich together with Ben Boer and Stefan Gruber generously shared their time, building on complementary research initiatives and linking the universities of Queensland, Deakin, Sydney, Kyoto and Wuhan. ICOMOS and IUCN Australia members kindly contributed to national dialogues. In Nepal, the team of Sudarshan Tiwari, Pranita Shrestha and Hans Christie Bjönness together with Bipin Adhikari built on longstanding partnership collaboration between the Norwegian University of Science

xvi

Acknowledgements

and Technology and Nepali research networks and expertise. We are particularly grateful for support and interest offered by so many in the post-earthquake reconstruction process. In the Philippines, the research partnership benefitted from productive collaboration between Swiss and Filipino colleagues (Bettina Beer, Sara Dürr, Malot Ingel, Kay Malilong and Grace Villanueva). In addition, we are grateful for the interest and support from the UNESCO National Commission of the Philippines and Committee delegates for their interest. In Vietnam, the team included Nguyen Linh Giang, Nguyen Duy Luong and Nghiem Thi Hoa, but also enthusiastic and professional engagement from our institutional partner, the Vietnam Academy of Social Sciences, not least through the guidance of Prof. Dr. Vo Khanh Vinh and Ms. Luu Anh Tuyet. We would also like to extend our gratitude to the National UNESCO Commission, UNESCO colleagues, provincial authorities and the Vietnamese expert community. New collaboration was also initiated with colleagues from Quang Binh University and old friends in Phong Nha Ke Bang National Park. Amran Hamzah, Harald Høyem, Anne Laura Kraak and Jonathan Liljeblad generously enrichened the volume with insightful contributions on neighbouring countries in the region. Our Lucerne cooperation built on competent and friendly cooperation from Bettina Beer, Don Gardner, Alexander Morawa, Gabriel Zalazar, Sara Dürr and Eveline Voets. Sue Redgrave did a marvellous job in helping with a language check and the final process of formatting the chapters. Most maps were kindly prepared by Nguyễn Hữu Duy Viễn, with additional maps produced by Menno-Jan Kraak (Bagan), H. Schnoor (Vigan) and Harald Høyem (Xi’An). Finally, we are grateful for the many exchanges with heritage practitioners and local representatives.

LIST OF CONTRIBUTORS

Bipin Adhikari is a constitutional legal expert of Nepal. He specialises in con-

stitutional law, human rights, legal reform initiatives and democratisation processes. He is deeply involved in public policy issues in his country. His latest book is Constitutional Crisis in Nepal: Ensuring democratic governance during the transition to a new constituent assembly (2013). Currently, he is associated with Kathmandu University School of Law and teaches Constitutional Law and Federalism. Bettina Beer is Professor for Social and Cultural Anthropology at the University

of Lucerne. She is the author of Frauen in der deutschsprachigen Ethnologie (2007), Körperkonzepte, interethnische Beziehungen und Rassismustheorien (2002), and has coedited several textbooks such as Einführung in die Ethnologie (2017) and Methoden und Techniken der Feldforschung. Bettina is currently head of a research project on international capital and local inequality in Papua New Guinea and co-director of the University Research Priority Program at the University of Lucerne ‘Family Change in the Context of Migration and Globalisation’. Hans Christie Bjønness is Professor Emeritus in Development Research at the

Faculty of Architecture and Design, the Norwegian University of Science and Technology (NTNU), and Visiting Professor at Tibet University, Lhasa. Initiator of graduate programmes in urban ecological planning at NTNU, his latest research concerns the upgrading of historical villages in Tibet, and rights issues in postdisaster contexts in Bhopal, India, and Kathmandu. One result of his UNESCO involvements in Nepal is his editorship of Sundari Chowk: Nepalese Palace Architecture of the 17th Century (2014).

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List of contributors

Ben Boer is Professor in Environmental Law at Wuhan University, China and

Emeritus Professor at the University of Sydney. His current research interests are: law and sustainability; natural and cultural heritage law; the environmental rule of law; environmental law and human rights; and, environmental law of the Asia-Pacific region. He is the co-editor of the Chinese Journal of Environmental Law. Recent works concern the Mekong, sustainability governance, environmental dimensions of human rights as well as climate change and human rights in the Asia–Pacific. Kristal Buckley is a Lecturer in Cultural Heritage in the Faculty of Arts and

Education, Deakin University, Australia. She served as an International VicePresident of ICOMOS from 2005 to 2014. Her research interests include cultural landscapes, intangible cultural heritage and evolving cultural heritage practice in the Asia-Pacific region. She has published widely across these research areas in journals such as Historic Environment, International Journal of Heritage Studies and APT Bulletin – The Journal of Preservation Technology. Sara Dürr completed an MA in Social and Cultural Anthropology at the University

of Lucerne, Switzerland. During her studies, she worked as a student and project assistant at the Department of Ethnology for the research project ‘Understanding Rights Practices in the World Heritage System: Lessons from the Asia Pacific’. Her thesis is based on fieldwork in Vigan City, Philippines, where she examined the consequences of the city’s world heritage policies on an urban poor settlement. Stefan Gruber is an Associate Professor at the Hakubi Center for Advanced

Research, Kyoto University and is based at the Graduate School of Human and Environmental Studies. He was educated at the Universities of Sydney, Frankfurt, and Mainz, and Harvard Law School, and holds degrees in law, philosophy, and political science. His current research concentrates on the protection of cultural heritage, sustainable development and environmental law, art crime and the illicit trafficking of cultural property, regional security and cooperation, and human rights with a regional focus on East and Southeast Asia. Amran Hamzah is a Professor in Tourism Planning at Universiti Teknologi Malaysia

and an IUCN Councillor. His area of specialisation is the interface between tourism and biocultural conservation. Amran has also worked with local communities on projects that are related to the restoration of local rights in the decision-making process in the Southeast Asian region. Harald Høyem is Professor Emeritus in the Faculty of Architecture and Design,

Norwegian University of Science and Technology. He is co-editor of and has articles in The Horizontal Skyscraper, Tapir Akademisk Forlag, Trondheim 2002; Xi’an – an ancient city in a modern world, Éditions Recherches, Paris 2007; Permanence and Change – theory and practice in China and Europe, Tong Ji University Press, Shanghai 2014. Research projects he has worked on include: Conservation and development

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xix

in the Drum Tower Muslim District, Xi´an, 1997-2002; Involvement of local stakeholders in Han Chang´an City, Xi´an, 2012-2016; and, Energy efficient up-grading of historical villages, Hou Ji village, Ping Yao county, 2015 – 2017. Malot Ingel (M. L. I. Ingel) has served as researcher, community organiser or coor-

dinator in various development and cultural projects under local and international, government and/or non-government, organisations. Her work and interests mainly encompass socio-cultural dynamics, traditional industries, food security, environment and folklore, mostly focusing on her home province, Ilocos Sur. She holds a bachelor’s degree from the University of the Philippines and is a member of the Ugnayang Pang-Aghamtao (Anthropological Association of the Philippines). Helena Kajlich is a Research Fellow at the Aboriginal and Torres Strait Islander

Research Unit (ATSIS), University of Queensland, Australia. She forms part of the research team undertaking the project on ‘Costs and Benefits of World Heritage for Indigenous peoples’. Anne Laura Kraak did her PhD at the Alfred Deakin Institute for Citizenship

and Globalisation at Deakin University in Melbourne. Her research was about the intersections of current international debates about heritage conservation and human rights based on fieldwork on heritage conservation, development and popular religious practice at Bagan in Myanmar. She has previously published in the International Journal of Cultural Policy and is currently co-editing a Special Issue on rights-based approaches to heritage management for the International Journal on Cultural Property. Peter Bille Larsen lectures in Anthropology, International Governance, Heritage

Studies and Development at the University of Lucerne. He has a strong interest in the intersection between international governance, conservation and social equity including work in the field of indigenous rights, World Heritage policy, human rights as well as the anthropology of international organisations and NGO. He recently coordinated the international research project leading to this volume. Jonathan Liljeblad is a Senior Lecturer at Swinburne University. He holds a PhD

and JD, both from the University of Southern California. His research interests include rule of law and human rights issues posed by cultural heritage and environmental conservation. His recent publications are journal articles based on field research in Southeast Asia. Ian Lilley is an archaeologist and Professor in Aboriginal and Torres Strait Islander

Studies (ATSIS), University of Queensland, Australia. He is author of Early Human Expansion and Innovation in the Pacific (2010) and co-editor (with Elizabeth Bradshaw et al.) of Why cultural heritage matters – A resource guide for integrating cultural heritage management into Communities work at Rio Tinto (2011).

xx List of contributors

Lucille Karen E. Malilong is a lawyer with advocacies in forest and cultural heritage

preservation. She headed the National Committee on Monuments and Sites of the Philippine National Commission for Culture and the Arts from 2014 to 2016. She is a member of the ICOMOS International Scientific Committee on Legal, Administrative and Financial Issues. She also serves as legal adviser of ICOMOS Philippines and as Trustee and Vice President for Institutional Affairs of the Heritage Conservation Society. Alexander H. E. Morawa, S.J.D., is on the faculty of American University,

Washington College of Law, Washington, DC, and serves as a recurring Visiting Professor at the School of Law of Mackenzie University, Sao Paulo, Brazil. He is an international legal scholar who specialises in international human rights law, public international law, (comparative) constitutional law, and related areas. In his work, he combines teaching and advising/consulting. Nguyen Linh Giang is a Researcher at Institute of State and Law,Vietnam Academy

of Social Sciences. Her main research interests are in human rights and constitutional law. She has a PhD in Public Law from Toulouse 1 Capitole University, France. She is the author of many articles on human rights in Vietnam and currently working on a book on the limitation of rights in the Constitution and laws of Vietnam. Pranita Shrestha is an urban planner and architect. She recently completed her

PhD in architecture/urban planning from the Norwegian University of Science and Technology (NTNU),Trondheim, Norway. Her research primarily focuses on adopting a relational perspective to understanding the formation and development of three specific squatter settlements in Kathmandu, Nepal. She has presented her research findings at various international platforms (AESOP/ACSP, World Bank, etc.) and journal articles and has worked on various research projects in Europe and Asia. Sudarshan Raj Tiwari has over 38 years of teaching experience in architecture and

urban planning and has also consulted for UNDP and World Bank on project planning and supervision on education, health and environment. He has contributed several research and publications on history of Nepali architecture, urban development and culture. Mary Grace Ellen S. Villanueva is legal counsel for indigenous leaders and com-

munities and peoples’ organisations and representatives in public interest litigation concerning the protection of rights to natural resources, and also in cases defending the freedom of speech. She was executive director (2012-2015) and volunteer lawyer at the Legal Rights and Natural Resources Center, Inc., a non-government organisation that campaigns for social justice and environmental rights, and provides policy research, and legal services for marginalised indigenous peoples and other rural poor communities.

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Gabriel Zalazar, MLaw, is a Research Fellow of the University of Lucerne,

Switzerland and former participant and later Legal Coach for both the InterAmerican and the World Human Rights Moot Court Competitions. He specialises in the Inter-American Human Rights protection system and international development and cooperation.

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1 INTRODUCTION World Heritage and human rights in the Asia–Pacific and global arena Peter Bille Larsen1

How do human rights and World Heritage relate to each other? This volume brings together case studies, legal reviews and comparative analyses of the Asia–Pacific region together with a focus on global arena dynamics. A key message is that World Heritage, whether valued for its nature, culture or both, raises deep-seated rights concerns prompting the need for structured reflection and real responses on the ground. Certain heritage and rights linkages have received unprecedented attention in recent years. In 2016, the Human Rights Council adopted a resolution on ‘Cultural rights and the protection of cultural heritage’ calling, among other things, for States to respect, promote and protect the right of everyone to take part in cultural life, including the ability to access and enjoy cultural heritage (Human Rights Council 2016). The recent Security Council Resolution 2347 (2017) equally condemns heritage destruction as war crimes with a focus on acts by the Islamic State/Da’esh and Al-Qaida (Security Council 2017). While the mediatised spectacle of heritage destruction (Harmanşah 2015) is condemned internationally as rights violations and crimes against humanity, the everyday multi-faceted relationship between rights and heritage described in this book is easily overlooked. Common ‘everyday’ human rights implications of heritage designation, site management – or, for that matter, everyday destruction – take place on a vastly greater scale across the 1052 sites making up the World Heritage list, but remain largely ignored. Whereas global discourse suggests that human rights are universal, inalienable, indivisible, interdependent and interrelated, the heritage field reveals fragmented and partial recognition. Whereas the UNESCO Director General has, on a number of occasions, stressed the linkages between human rights and heritage (Figure 1.1), the systematic neglect of human rights continues on an everyday basis within the World Heritage system. Only the tip of the iceberg of rights concerns is currently being identified, let alone

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FIGURE 1.1

UNESCO Director General Irina Bokova speaking at World Heritage Committee meeting, Istanbul 2016 (Peter Bille Larsen).

addressed fairly. Heritage-driven dispossession hardly musters the same appeal as celebratory narratives of national sacrifice and global commitment to heritage of Outstanding Universal Value. It is time that adequate attention is drawn to the subtle, yet patterned, forms of material, symbolic and discursive violence and infringements of rights taking place in the name of heritage. It is also time that light is shed on the multiple efforts to build social justice around World Heritage. Time-bound research, as presented in this volume, cannot do adequate justice to such paucity of attention. However, it can subject the intersection between World Heritage and human rights to critical scrutiny, help better clarify the (in)significance of the topic and start mapping out heritage-rights geographies, building on the growing academic call to address conflicts and tension between heritage and rights (Silverman and Ruggles 2007; Ekern et al. 2012). Exploring this interface has in recent years gone from timid silence to new policy language and open debate. Indeed, many authors in this book have contributed to – and continue to take part in – both national and international policy debates in the field.2 Attention to how social grievances, justice and rights are dealt with forms part of this work. We need to learn more about not just the problems, but the multiple efforts aiming to reconcile heritage and social justice.

Why the Asia–Pacific region? The Asia–Pacific region is an obvious choice if one seeks to study ‘heritage sites outside Europe … where World Heritage unfolds its greatest effects’ (Brumann and Berliner 2016, 14). Home to half of humanity, it is not only one of the most populous and culturally diverse regions on the planet, but equally characterised by the dynamism of its economies, politics and World Heritage activities in particular

Introduction

3

(Meskell et al. 2015). The number of listed properties in the region has increased dramatically, from 140 in 2003 to roughly a quarter of all sites globally today. Its 238 sites are spread over 35 different States Parties and include 168 cultural, 59 natural and 11 mixed listings. The popularity of heritage reaches beyond the UNESCO realm through additional labels (such as ASEAN heritage parks),3 tourism promotion and the recycling of heritage in national identity narratives. While travel and trade are ancient endeavours in the region (Forshee et al. 1999), the intimate connections between World Heritage and tourism speak to regional transformations of a different kind (Jimura 2011; Hitchcock et al. 2010; Brumann and Berliner 2016). Massive investments in heritage and strong media attention are relatively recent phenomena in the Asia–Pacific region, reflecting an upsurge of interest and influence since the early 1990s (Meskell et al. 2015, 457). The growth of heritage, considered by some as a sign of a new social order and UNESCO heritage-scape (di Giovine 2009), is equally about political assertion, part of a modernist development narrative where distant pasts and remote nature become objects of pride as signs of status and global integration. Yet, as with wider development narratives, such as the spectacular economic growth and middle-income status of the region, there are ‘shadows of success’ (Rigg 2016). Heritage making, not unlike other heated development processes, comes with social effects and sometimes dramatic trade-offs. Indeed, the intensity of government intervention, forms of displacement and private investments in heritage parallel other mega-projects in terms of transformative potential and implications for rights and social equality. While only four countries in the region are still classified as low-income, it should not be forgotten that it harbours 450 million extremely poor people in socalled middle-income countries (UNDP 2016). Those left out of the Asian–Pacific ‘miracle’ range from urban informal settlers, slum-dwellers and precarious migrants to tribal communities, indigenous peoples and ethnic minorities. In the world of work, labour legislation may have expanded, but so has the precariousness of employment (Rigg 2016, 73), and while World Heritage may generate new forms of employment, many jobs remain unprotected and insecure. There are numerous such linkages between heritage and rights, of which only a fraction have currently been identified. Such linkages are not unique to the region. Heritage processes everywhere entail ‘rights’ questions about ownership, access and appropriate use. From general concerns of voice, value and representation to specific processes of planning and management, who has a right (and who has not) are recurring heritage questions. Lack of community involvement (King 2013, 13), community participation and benefit-sharing (Su and Wall 2015; Chakravartya and Iraza 2011; Sinding-Larsen 2012), alongside rights deficits (Buergin 2015), are often observed in a region, where the state traditionally plays a strong role in management. Examples range from a lack of participation in Japan (Yugo 2014) to the lack of Free Prior Informed Consent among indigenous peoples (Disko and Tugendhat 2014) and histories of relocation and evictions elsewhere (Logan 2014;Winter 2007; Ekern et al. 2012) are common across the region. Monument designation in Indonesia has been linked to

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the creation of national identity symbols as well as resulting in disenfranchisement and displacement (Wall and Black 2004). Criticism of expert voice driven nominations is frequent (Silverman 2016), and both UNESCO and its World Heritage Advisory Bodies have been charged with dishonouring indigenous rights (Trask 2014). Tourism development accompanying – and forming part of the designation nexus behind – World Heritage (di Giovine 2009) is not unlike other developments in terms of competition for scarce resources and the risk of displacement (Sims 2016). Resulting rights concerns are as such not coincidental, but signs of wider patterns. Practices of expropriation, poor or arbitrary compensation measures and lack of accountability are common for state projects, whether in the fields of infrastructure, development schemes or heritage. World Heritage designations, in effect, may attenuate as they may intensify local conflicts and dynamics.Whether in terms of inter-state conflict between Cambodia and Thailand (Hauser-Schäublin 2011), conflict-driven heritage destruction in Sri Lanka (Coningham and Lewer 1999) or sectarian violence in India (Silverman and Ruggles 2007), conflicts often reveal significant rights concerns. The polarisation potential of World Heritage listing to ignite or be drawn into, rather than to resolve, long-standing conflicts is well-known in the region. Attempts to distil an Asia–Pacific pattern of rights–heritage intersection or a shared core of rights and heritage responses would, however, be misleading in terms of over-generalisation and essentialising Asia–Pacific perspectives (Sen 1999). Differences between highly populous and powerful countries such as China, India and Indonesia, on the one hand, and small island states in the Pacific, on the other, show the futility of identifying regional commonalities. Assuming generalised patterns such as East Asian countries prioritising social and economic rights over civil and political rights (Peerenboom 2004) may offer some general context, but is of limited value to decrypt country specifics. Whereas cases of ‘culture’ being used against human rights discourse have a history in the Asia–Pacific region (Taylor 2008; Sen 1997), the either/or debate has largely been replaced by more nuanced attention to contested fields, multiple moral discourses and vernacularised human rights practice. The region covers an astonishing diversity of realities from outright denial of rights violations to affirmative action and efforts to redress rights concerns. Organisations such as Amnesty International stress regressive rights practices and human rights under threat in the region.4 Asia is the only region without regional human rights mechanisms, although efforts ‘with little bite’ have been made in the context of the ASEAN Intergovernmental Commission on Human Rights (Langlois 2012, 224). Non-ratification, reservations and non-compliance with international human rights are found in both Asia and the Pacific; the latter has the lowest number of ratifications of core human rights treaties in the world (Castellino and Keane 2009, 15). While the practice of death penalty, imprisonment of political dissidents, persecution of minorities or extra-judicial executions are raised in human rights fora for some of the countries covered in this volume, more attention is also needed to a wider set of heritage-related rights issues. As in Asia, questions

Introduction

5

about the compatibility between culture, customary law and communal practices and human rights (ibid., 19) are not uncommon in the Pacific. Although in the early 1990s, only five countries in the Asia–Pacific region – Australia, India, Indonesia, New Zealand and the Philippines – had human rights institutions considered as conforming to international good practice, the establishment of human rights institutions is today spreading and legal frameworks are evolving rapidly (Miyazawq et al. 2015). Still, in both Asia and the Pacific, the bulk of human rights claims and discourse comes from civil society organisations owing to a lack of regional, and often national, human rights institutions. Whereas both heritage and rights-gazes may trigger non-confrontational diplomacy and retraction from contentious dynamics, the region also reveals ongoing efforts by communities, progressive heritage planners and activists to engage with and develop solutions to a wide range of social justice themes framed in terms of rights. Although the expert–local divide continues to be fraught with tension, it is equally also a relationship of solidarity, commitment and collaboration. Far too often rights are reported on as deprivations and violations alone, leaving little space to discuss the myriad of less obvious, fragmented processes attempting to rework and resolve rights deficits in unexpected places. In this sense, the volume challenges conventional wisdom that resolving rights issues in heritage is isolated to a few progressive countries with a track record in human rights. This should not be read as apologetic where rights are rejected, but rather as a call for more attention to the diversity of efforts to engage communities and redress legacies of exclusion. The diversity of conditions in the Asia–Pacific region points to the importance of learning from existing experiences, not merely listing problems. World Heritage may, for example, undermine collective rights to land and control, or alternatively form part of a governance approach to strengthen self-governance institutions. As an Indigenous Australian representative of Kakadu noted, ‘World Heritage status … helps keep an international focus on our home and our relationships’ (Ngalmirama 2014, vi), just as Australian NGOs have used the international scene to challenge government heritage decisions. Equally important have been a growing number of dialogues among the Advisory Bodies, the World Heritage Centre and States Parties on rights-related matters and how to respond to them.

The silence on rights in the World Heritage Convention The World Heritage Convention is often framed as a success story characterised by widespread ratification, listing and success stories of protection. Rights, conversely, are not apparent in convention text, yet increasingly emerge in a context of civil society critique and fire-fighting. In 2011, when I was invited by the Advisory Bodies to contribute to a more systematic reflection on the rights implications of World Heritage (Larsen 2012b; Larsen 2012a; Ekern et al. 2012), the only reference to rights in the Operational Guidelines, the authoritative framework and reference for interpreting the World Heritage Convention, concerned copyright concerns. Indeed, the nomination

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format encourages States Parties to grant UNESCO rights to diffuse, exploit and license rights to images of the World Heritage sites to third parties.5 In hindsight, this seemingly insignificant reference to intellectual property rights contrasts strongly with the absence of references to human rights. ‘Terms and conditions of use’ described specific copyright concerns and steps to take, whereas the Operational Guidelines remained indirect at best on human rights concerns and steps to take. It took a while to understand that this was more than a historical coincidence. While the 2003 Convention on Intangible Heritage has explicit references to human rights, prior policy developments on folklore protection had, since 1973, explored a copyright framework to promote protection of intangible heritage (Aikawa 2004; Sherkin 2001). Background preparations for the 2003 Intangible Convention led to a paradigmatic break with this approach, stressing a range of human rights concerns, including mention of collective rights (Blake 2002). The 2003 Convention also moved from a focus on heritage for humanity to heritage for communities, groups and individuals (Blake 2015). A third shift concerned the explicit emphasis on the need for compatibility with human rights found in instruments such as the 2003 Convention and the 2005 European Council Faro Convention on the Value of Cultural Heritage for Society.This coincided with the 2003 UNESCO human rights strategy, which mentions inseparable links between heritage and human rights (UNESCO 2003). Still,World Heritage policy debates appeared to evolve independently, ignoring, or more accurately not taking up, these developments. Despite a growing understanding of the linkages between human rights and conservation, Committee decisions also revealed reticence, surprising in an organisation the very purpose of which, as defined in Article 1 of its Constitution, is: to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms. (UNESCO 1945) Yet, the invisibility of rights in the World Heritage regime was neither simply accidental or residual, nor plainly a result of diplomatic action to avoid embarrassment. Historical and institutional factors need to be seen together. The constitutional commitment of UNESCO to rights was framed in a post-war setting, arguing that peace could not rely ‘exclusively upon the political and economic arrangements’ (ibid: preamble), whereas the following silence on human rights from the writing of the 1972 Convention and later Operational Guidelines reflected a very different context of urgency, reconstruction and modernism. One of the founding narratives behind global heritage action was how the international community, under the auspices of UNESCO from 1960 onwards, pulled off a huge archaeological rescue operation in Egypt of Nubian Abu Simbel

Introduction

7

monuments under threat from construction of the Aswan High Dam. Whereas the rescue campaign is hailed a ‘complete and spectacular success’ on the UNESCO website in terms of rescuing and relocating the monuments,6 the dam project nonetheless led to the involuntary displacement of some 50,000 Nubians (Wafa 1964), with compensation arrangements only starting to come into place five decades later.7 This historical parenthesis illustrates the success narrative underlying cosmopolitan World Heritage action. The ‘revolutionary’ rescue work, pioneered by UNESCO and nurturing the idea that the ‘world hosts cultural and natural heritage of universal value, which humanity must protect together’,8 paved the way for the World Heritage Convention in 1972. The fate of the tens of thousands of displaced Nubians and the disrupted living heritage that generated untold intergenerational grievances (Janmyr 2016), however, went untold.9 Inclusion of heritage for humanity in modern world society did not exclude exclusion for others. While the displacement was not driven by heritage, the heritage gaze and success story kept the focus narrowly on materiality. Thus, we might say, the foundation stones were laid for a global salvational machine driven by urgency, international intervention and cosmopolitanism – the idea of humanity, heritage and help belonging to one big community engaged for the common good. However, the material rescue narrative ignored the rights of the local people sacrificed for the dam, while the physical monumental heritage was elevated metaphorically to represent humanity as a whole. Nubian monuments were saved, yet living cultural heritage and connection – in a broader anthropological sense – was uprooted and ignored. One might think of this as the ‘original sin’ of the World Heritage paradigm, in producing an overwhelmingly bright narrative not only highlighting islands of protection, but also prioritising salvational action on worldly heritage for the sake of humanity, while neglecting wider human dynamics. It is the same shift which is found in the Convention text aiming to give heritage a ‘function in the community’ (Article 7). It was the recognition of heritage as a part of the modern community of humanity rather than as of the legal and societal personae of actual local people and communities. This recognition allowed, indeed legitimated, statecraft sidelining local needs, rights and priorities. After all, humanity’s heritage was at stake, thereby granting the Convention the ability, or perhaps rather legitimacy, to supersede national development concerns. The original sin was not the honourable effort of global action or universalist responsibility – something desperately needed – but rather legitimating the annulment of local rights claims in the authorised heritage discourse of the World Heritage field. It is no coincidence that people are, more often than not, absent from images of World Heritage, as an ICOMOS colleague recently noted (pers. comm.).What mattered were global values. The reader could be excused for presuming such action belonged to the past of grand modernist transformation found in dam building and the like. Yet, such displacement is not only part of a troubled past, but has since routinely been applied in World Heritage processes and still presents a global challenge. The spectacle of heritage, not unlike the spectacles of sport events, caters to local imaginaries of

8

Peter Bille Larsen

modernity, worldliness and displays of national pride. Only recently have these images of beauty, pride and prestige started to be balanced by the unveiling of landscapes of exclusion and marginality. As the new winds start to blow, this volume points to the complexities entailed at both local and global levels.

Erasing the social effect from the spectacle of success: founding myths Inclusion of some in world society often means exclusion for others. In practice, the longstanding absence of human rights language in World Heritage processes has been observed by various authors, whether regarding specific sites (Kraak 2015) or the system internationally (Ekern et al. 2012). This does not mean, of course, that rights are not being addressed in some way or another. Nor are human rights exceptional in terms of not being mentioned in the Convention. Tourism, for example, is virtually absent from the Convention itself, yet today is a core nomination driver (Bourdeau et al. 2015). Although much official discourse is centred on universalist value and cosmopolitan disinterest, practice reveals a vibrant political economy of expert-driven processes, nation-state politics and profitability surrounding many World Heritage sites. Intensive heritage-making, generous nomination investments and a professionalised heritage advisory community contribute to orchestrated practice, which for far too long has drowned the dark side of marginality, counterprojects or alternative management modalities. While the implementation of the so-called 5th C, ‘enhancing the role of community’, adopted in 200710 as a strategic priority alongside conservation, capacity building, credibility and communication, has remained vague, it nonetheless represents an opportunity to raise the rights topic.11 Its justification framed community involvement in terms of needs, yet other arguments equally highlighted rights and substantive governance issues.12 Still, resistance in the Committee to formalising consultation arrangements, granting space and adopting decisions illustrated the general unwillingness to adopt further rights language. Slow uptake of rights commonly adopted elsewhere in the international system was not merely a historical coincidence, but also a question of choice. Most heritage sites require engaging with community and rights concerns. The structural silence or absence of rights cannot be explained by lack of importance, or even lack of awareness. Rather, I believe it reflects the predominance of a narrative driven by a narrow ‘universalist’ perspective. Nonetheless, there have been a growing number of references to human rights in evaluations and State of Conservation reports in recent years. The increase of the use of rights language and institutional attention is clear in the evaluation and State of Conservation reports reviewed between 2010 and 2015 (Figure 1.2; see also Larsen and Buckley, this volume).Topics covered in Asia– Pacific evaluations include customary rights in the Marshall Islands, indigenous land, resource use and property rights in Australia, Indonesia and India, traditional user rights in China and livelihood and benefit-sharing rights in Vietnam. State of Conservation reports in the same period span a wide range of issues from land

Introduction

9

Mentions of Rights in Evaluations and State of Conservation Reports 2010-2015 Number of times mentioned

30 25 20 Evaluations

15

SoC

10 5 0

FIGURE 1.2

2010

2011

2012

2013

2014

2015

Explicit references to rights issues in nomination documents and State of Conservation reports (Peter Bille Larsen).

rights in Malaysia to mining rights. Of course, such examples do not reveal the full extent or significance of rights concerns, nor how or to what effect rights were addressed effectively in the World Heritage process. Rather, it is somewhat revelatory of the contingent nature of how rights are being articulated. The references show growing attention to rights concerns, but such attention remains uneven among, and even within, countries. Rather, the examples illustrate i) the paucity of attention in the World Heritage system and ii) the silenced nature of rights issues in general as well as in the Asia–Pacific region in particular. Certain topics, such as gender rights, are virtually absent in reporting (Bastian, Gilligan and Clabots 2016), and Committee discussions remain partial in their coverage of many vulnerable groups (see Larsen and Buckley, this volume). It is no coincidence that legal advisors during Committee meetings are more solicited on procedural questions than rights concerns.

Methodological reflections: uncovering rights Literature on human rights may be described as ‘prose-rich, but data-poor’ (Kaufmann 2004, 2). Furthermore, the paucity and unevenness of efforts to address rights in the Asia–Pacific region, reinforced by perceived sensitivities by authorities, raise important epistemological and methodological questions. Contrary to the public display of heritage narratives, human rights intersections remain largely hidden despite increasing efforts by civil society to uncover them. How then to excavate the interrelationship was a real question for the researchers involved in this volume. Rights issues are very often not visible at first glance, nor necessarily voiced by interlocutors, requiring methodological precision to reveal them. Anthropologists often uncover local moral and rights discourses displaying

10 Peter Bille Larsen

how rights, duties and obligations vary in terms of their meaning and assumptions around personhood, individuality and legitimate practices. They argue for contextualising our understanding of rights and social justice language, pointing to tensions with other moralities and projects working to achieve social justice (Rice 2017). How can rights be thought and written about if some interlocutors – from heritage professionals to individuals living in heritage sites – are not familiar with, do not ‘see’ or for other reasons abstain from using human rights language? Whereas heritage practitioners may not have an opinion about ‘the right to participation’, they generally do have experiences with participation and consultation measures and how they are being regulated and implemented. Conversely, how can local perspectives on rights and social justice be approached while keeping in mind national and international human rights standards? There are no easy answers. While it is evident that not everyone employs, and some even contest, internationally (and often constitutionally) recognised human rights, such (expected) questioning cannot be assumed to nullify the relevance of human rights. On the other hand, there is a clear need to understand not only how such rights are embedded in different social, political and cultural contexts, but also how they more profoundly display the openings and tensions between multiple moral discourses and ongoing negotiations about the distribution of rights. Rights are, for example, seen together with a range of morally grounded social obligations. Finally, there is a concrete need, not least given recent policy decisions by the World Heritage Committee, to detail whether and how current heritage and human rights legislation are complementary and mutually supportive. Researchers have explored the relationship between heritage and rights through heritage rights as a sub-field of cultural rights, and in a similar vein, some have addressed the rights dimensions of international cultural heritage law. This work addresses concerns such as how access to and enjoyment of cultural heritage as a human right raises questions of ‘issues of control and power, advantage and disadvantage’ (Logan 2014, 158). In a similar but slightly different vein are debates around the rights of heritage confronted with mediatised warfare and destruction. Rights are being affected, yet are they heritage or cultural rights or so-called fundamental human rights? Heritage and cultural rights remain relatively marginal in the broader human rights arena, itself dwarfed by geopolitics and economic imperatives. Attempts to find references to culture and heritage in human rights instruments only partially reveal the intersections at stake. Not only do texts focused on cultural heritage and rights not address natural heritage and human rights intersections increasingly written about in the environmental law field (Boer 2015), they also leave behind the vast field of other rights concerns affected. As Larsen and Buckley (this volume) suggest, multiple heritage and rights framings and definitions are at work in Committee discussions, just as it is increasingly clear that the actual rights concerns and discourses encountered are multi-faceted. In such muddied waters, open-ended engagements are warranted. Responding to this complexity, the work that follows below for some of the countries includes

Introduction

11

both legal reviews and open-ended field assessments of the rights interface.Whereas human rights discourse stresses the indivisibility of rights, a methodological question is concerned with which areas of the multi-faceted human rights field should be studied in more detail. In other words, researchers had to decide where to put an emphasis within the grand categories of civil and political rights, on the one hand, and economic, social and cultural rights, on the other. For the four case studies and legislative reviews from Australia, Nepal, the Philippines and Vietnam, the teams opted for an open and flexible framework to explore four different bundles of thematic issues (described below). The case studies from Cambodia, China, Malaysia and Myanmar involved different research designs, but still share an emphasis on the use of qualitative approaches to study the heritage rights intersection. Overall, it is clear that there are common – transversal – rights fields which can be interrogated in any World Heritage project, notably in terms of procedural rights such as rights to information and participation, freedom of expression, access to justice and the right to remedy. Heritage processes may either infringe upon or realise procedural rights, not least driven by elite pressure to speed up the designation process or push for certain infrastructure developments. A growing body of experiences reveals a number of other ‘usual suspects’, i.e., forms of exclusion pertinent to particular forms of heritage. Heritage may also impinge upon or conversely support the realisation of a wide range of substantive human rights (Larsen 2014), such as development, housing, food, culture and land, in the pursuit of protecting and conserving sites of Outstanding Universal Value. It is also well known that protected area creation and World Heritage designation may have immediate negative implications for indigenous land and resource rights, yet it may also positively contribute to the realisation of certain substantive rights by, for example, clarifying local land rights. In general, however, there are multiple blind spots in the World Heritage system, both in terms of certain rights-holders and rights issues. Some are hardly ever considered in a heritage context, such as the rights to health, education, food and freedom of movement. Thus, while indigenous peoples are rightfully receiving growing, but nonetheless highly uneven, attention, World Heritage plans often remain silent on informal urban settlers, ethnic minorities and gender rights, to name a few. Nor are labour rights or rights to education touched upon systematically, despite the fact that the cancellation or intensification of education services and decent working conditions may be greatly affected by World Heritage. The interdisciplinary nature of the volume begins to address such complexity. Combining legal and anthropological analysis in an interdisciplinary endeavour is not straightforward, and raises both epistemological and methodological questions (Anders 2015). This framework encouraged the country teams of Australia, Nepal, the Philippines and Vietnam to explore rights and heritage intersections in relation to land and resources, livelihood and development, consultation and participation and indigenous and cultural rights.The framework was subsequently adapted or tailored to specific contexts, events and topics. In Nepal, for example, the catastrophic 2015

12 Peter Bille Larsen

Gorkha earthquake brought out questions of the right to safety and shelter. In general, the diverse and complex technical heritage contexts raised distinct spatial politics and rights implications. Intimate understanding of the specific local heritage field as well as the social context was fundamental to even starting to understand possible human rights implications. From karst limestone interspersed with old fallow land to colonial architecture and religious practices, many of the subtle rights implications concern new management tools, economic decisions and approaches not easily captured by the generalist eye and the positive spin associated with heritage designation. Indeed, many of the subtle insights that appear in the volume are due to the specific technical insights and social sensitivity of the researchers involved. Such understandings, we may note, are rarely achievable within common Advisory Body evaluation practice owing to the political, economic and social constraints involved. Penetrating the social dimension of temple reconstruction in Kathmandu, religious rights in Southeast Asia or the subtleties of urban development in China require long-term engagement. The point here is not to flatter the researchers, but to flag the sheer complexity involved. The research also prompted self-reflexivity around the roles, conceptual baggage and positionality of contributors in relation to the topic. Numerous contributors and partners were instrumental in debates, analyses and proposals feeding into ongoing thematic discussions and specific policy processes to address rights in the World Heritage process. This offered a privileged perspective to gain insights into the articulation of rights, but also had implications for how the ideas were approached. As a deliberative knowledge production process, dialogues involved UNESCO, Advisory Bodies, States Parties and civil society. Many of the researchers contributed to the Our Common Dignity initiative spearheaded by ICOMOS Norway through case studies and dialogues (Sinding-Larsen and Larsen 2017). This partnership not only allowed for immediate channels of exchange with the Advisory Bodies, a number of side events and policy dialogues were organised nationally and internationally during and prior to Committee meetings (see also ‘Caux Call for Action’, this volume). A number of policy briefs have been elaborated in relation to these countries and are available on the project website.13 This author was also invited to contribute to the drafting of the Sustainable Development policy, ultimately adopted in late 2015.

Rights areas and beyond Across four of the countries (Australia, Nepal, the Philippines and Vietnam), we sought to explore inter-connected bundles of rights. Other chapters raise additional specific issues such as religious rights or general human rights. While we as researchers may distinguish between such rights, they are very often inter-connected and overlapping. Rights to participation, for example, cannot be understood outside the context of whether group rights are recognised or questions of tenure

Introduction

13

security or ethnicity. Still, we sought to encourage analysis across these domains to enable discussions regarding their expression in particular heritage contexts.

Land, property and resource rights Frequent top-down designation and creation of World Heritage sites across the Asia–Pacific region have often involved reworked land rights and arbitrary tenure decision-making in a context of long-standing struggles and claims to indigenous heritage, land rights and cultural identity linked to heritage (Silverman and Ruggles 2007). As several chapters demonstrate, a bundle of land, tenure and resource rights related to resource use are potentially involved.While customary rights are referred to in certain Pacific cases (e.g., East Rennell (Solomon Islands), Chief Roi Mata’s Domain (Vanuatu) and certain Australian sites), they are far less prevalent in nomination documents for large parts of Asia. Conflicts, however, may be accentuated by heritage processes in contexts of colonial land-distribution or more recent processes of rural and urban transformation. Across the region, intense urbanisation, unequal land distribution and large-scale land acquisitions and encroachment raise common challenges (Mitchell et al. 2015). A further dimension to this concerns the intensification of land and resource disputes (Hauser-Schä̈ublin 2011, 186), land speculation, in-migration, escalating land prices and elite land concentration in heritage areas. In India, more than 3.2 million people are estimated to be affected by land conflicts, the majority of which involve common lands, often in regions where customary rights are poorly recognised (RRI and TISS 2016). Conflicts in protected areas (RRI 2015) are common in the Asia–Pacific region, where two-thirds of forest land is managed by government and customary land rights are often sidelined.14 This does not mean that a clear system of local rights and commons management always existed prior to current conservation regimes. Whereas some have argued that age-old local systems are neglected (Stevens 2013), others have stressed the historical prevalence of open-access regimes in large parts of Asia, with community management only appearing much later (Yanagisawa 2015). Complex trends of shifts from communal tenure to private landholding and changing tenure regimes, whether dealing with agricultural land, forest or urban areas, also have implications for gender equity and rights (Archambault and Zoomers 2015). Land records solely in the name of male household heads or discriminatory inheritance are just two examples. Very often, the presence of informal landholding raises immediate social vulnerabilities in the formalisation processes resulting from World Heritage procedures. The common neglect of customary indigenous forest land tenure and urban settler diversity due to informality raises complex questions. World Heritage processes often intensify a process of land classification and formalisation, which easily leads to the symbolic and material exclusion of other tenure models and practices. Risks of eviction, relocation and poor compensation measures often follow. Indeed, relocation remains authorised state policy in multiple countries such as China, India and Papua New Guinea (RRI 2015, 16), and is at times pursued with

14 Peter Bille Larsen

rigour in the World Heritage context to demonstrate resolute action (Høyem, this volume). Furthermore, state incorporation does not simply lead to a stabilisation of existing tenure arrangements, but may equally intensify speculation, new development schemes and price hikes in areas surrounding World Heritage sites. While many properties may not change hands as such, the property or certain dimensions of it may become the object of leasing arrangements. New values thus transform the rights at stake. This may also have consequences for how past rights infringements are dealt with. Even where some rights are recognised, they are often partial, poorly demarcated and remain narrow in scope (see case studies on Vietnam and Malaysia, this volume). Whereas indigenous titling in places such as Rio Platano in Honduras (Gatto 2015) or restitution experiences in South Africa and Australia (Reid et al. 2004) demonstrate that reconciliatory action, titling and territorial recognition can take place in long-established protected areas and World Heritage sites on a significant territorial scale, such restitutional action currently seems unlikely in large parts of the Asia–Pacific region.

Participation and consultation A strong human rights-based approach to the preservation/safeguard of cultural heritage, both tangible and intangible, requires the establishment of procedures ensuring the full participation of concerned individuals and communities. Farida Shaheed, (Former) UN Special Rapporteur on cultural rights 201115 There is arguably a strong consensus on the right to participation, from specific nomination documents to the rights-based principles of UNESCO (UNESCO 2003), yet the nature and intensity of such participation varies considerably. Procedural catch-all language on participation and consultation has become so commonplace that it may cover everything from nominal information sharing once decisions have been made to year-long processes to build free, prior and informed consent. Yet it is often disconnected from wider discussions about the importance of civil and political rights in achieving social and economic development rights (Kaufmann 2006). As many cases in the volume demonstrate, rights to participation and consultation in heritage matters cannot be understood outside the regional context of embedded practices, structural inequalities and discrimination (UNDP 2007, 1). Conversely, the region is equally the scene of transforming politics and democratic transition in multiple ways (Reilly 2006). Evolving governance arrangements in relation to the region’s social, cultural and ethnic diversity form part of these changes. Several of the case studies thus point to local level arrangements, democracy and experimentations in heritage even with relatively top-down structures. Conversely, a frequently cited challenge concerns the role of local voice drowned by economic capture, rent-seeking behaviour and elite control. Language on participation in such cases appears hollowed out or piecemeal in the context of limited accountability mechanisms and uneven playing fields. Far too often, consultation

Introduction

15

and participation are framed in a nomination context rather than involving a thorough response to real life conditions, opportunities and long-term implications of World Heritage designation. Women’s ability to take part may be affected by restrictions on inheritance and property rights, just as minorities may be de facto excluded from making decisions regarding their customary lands. Civil liberties, voice, contestability and rights are central to how heritage processes address socioeconomic development rights and ultimately build management responsive to local social realities. One of the most under-utilised Operational Guidelines concerns the mobilisation of other management institutions and approaches despite multiple local initiatives (see e.g., Nepali case study, this volume). Whereas the Operational Guidelines in paragraph 97 speak of ‘legislative, regulatory, institutional and/or traditional management’ to ensure protection and management, this is most often understood to imply extending state management institutions and mechanisms rather than empowering local efforts.

Livelihood and development rights ‘Development’ rights in heritage are often understood in the context of permits, restrictions and even transfer of rights to construct or otherwise introduce new ‘development’ in a given heritage context. Far less common are debates around the right to human development and its realisation in heritage. Whereas the former is the reality for most heritage managers when processing construction permits, the question of how heritage-related development is conceived and planned and its benefits distributed to achieve human development has received less attention. The human right to development is arguably not just about the everyday negotiations for and against conservation, but equally about the nature of livelihoods and the benefits of development interventions over the long term. All too often, the two are conflated in attempts to sustain or challenge mega-investments that are sometimes equally disruptive of both heritage values and local livelihoods. Given the growing development pressures and ecological footprints on natural sites in Asia (Allan et al. 2017), for example, the risk of perpetuating this conflation is ever-present. Although economic spin-offs of heritage designation may appear to be a winwin result, questions should also be asked of both the potentially detrimental effects on heritage and the distribution and concentration of development benefits. From shifting trader patterns in Tibet (Sinding-Larsen 2012) to employment opportunities to the distribution of benefits of massive tourism income, World Heritage may potentially influence and transform social inequalities in multiple ways. As the understanding of World Heritage as a tourism and development trigger grows (Tisdell and Wilson 2001; Kim et al. 2007; Prideaux and Falco-Mammone 2009), hopes for tourism-related revenues are on the increase and a motor of much designation. The city of Edinburgh recently estimated the total economic value of its World Heritage designation was in the range of £1.2bn to £1.4bn (Edinburgh World Heritage 2016). A report entitled ‘Asia’s heritage in peril’ spoke of ‘untapped economic opportunities’ from global heritage sites to ‘generate over $100 billion

16 Peter Bille Larsen

annually, while creating millions of new jobs and business opportunities’ (Global Heritage Fund 2012). Indeed, according to the World Travel and Tourism Council, tourism alone created over 107 million jobs in 2015. Funding and investments in World Heritage are considered ‘competitive’ compared to other opportunities, but are, this volume suggests, also often competed for on unequal terms. Both Phong Nha and Fraser Island (this volume) illustrate how the benefits of booming nature tourism economies require attention to benefit-sharing. Currently, global guidance on the rights to development is caught up in vague win-win language which precludes systematic attention to phenomena such as privatised heritage economies displacing traditional livelihoods in the name of heritage.The topic of development rights is, in short, one of the major challenges and opportunities in need of further debate and attention in order to render World Heritage more socially inclusive.

Minority, indigenous peoples and cultural rights The Asia–Pacific region displays a concentration of cultural diversity unparalleled by other regions in both numbers of people(s) and ethnolinguistic diversity as well as an attendant complexity in safeguarding their collective rights and heritage. From recognised indigenous peoples in countries with European settler histories (Australia and New Zealand) to multiple other labels such as Adivasi, tribal communities and ethnic minorities in post-colonial settings, the links between cultural diversity, historical processes of exclusion and challenges to collective rights remain everyday trials (UNDP 2007). Furthermore, the broader issue of cultural rights remains to be adequately articulated in the Asia–Pacific context. For one, questions of ethnic diversity and cultural rights are not limited to rural contexts. As the Kathmandu case study amply demonstrates, multiple ethnicity, caste and rights issues are integral to the urban fabric (Tiwari et al., this volume). Access to and control over religious and sacred sites is a conflictive field not just in the Middle East (Silverman and Ruggles 2007), but equally so at multiple sites in countries such as India and Thailand, with further tension between local heritage stewards and national heritage regimes in the context of local politics of recognition. While indigenous rights have been the subject of analysis and lobbying in the World Heritage context (Disko and Tugendhat 2014), major challenges remain in terms of legacy issues of displacement as well as ongoing processes of exclusion in heritage processes at both national and global levels. International organisations estimate that between 70–80% of the world’s Indigenous Peoples live in the Asia– Pacific region and face major rights issues and social exclusion (Dhir 2015). The sheer diversity of indigenous and minority policy regimes across Asia (Castellino and Redondo 2006) and the Pacific (Castellino and Keane 2009), however, make generalisation difficult. Although hard lines have, at times, been drawn between states recognising indigenous peoples and the rest, the picture soon becomes more blurred.The Philippines may recognise indigenous peoples and have instituted laws in this respect, but also

Introduction

17

faces an increase in extra-judicial killings of indigenous leaders. Australia, whilst having recognised indigenous rights and made multiple efforts to transform heritage practice, is equally under critique. Processes of reconciliation have been criticised for being underpinned by colonial assumptions, undermining indigenous rights and leading to further dispossession (Short 2008, 177). Conversely, in places like Vietnam, seemingly off the map in terms of recognising indigenous rights, considerable investments have been made in terms of affirmative action and the provision of public services and employment – at times equally manifest in heritage processes. Such efforts may not necessarily correspond to international standards, and most processes often involve unintended consequences; this level of diversity and complexity suggests the need for attention to the conditions of recognising and implementing rights (Larsen 2015). The point here is not to diminish the importance of reconciliatory efforts, nor to legitimise displacement or exclusionary identity politics, but rather to draw attention to the inherent complexity.

Overview of chapters This book offers both legal assessments of the World Heritage and rights interface as well as more exploratory and fieldwork-based interrogations of its significance. Where some books use the global policy context as a framework for exploring case details, the choice made here was to grant the space to let the case studies lead. There are epistemological and methodological reasons behind this choice, not least that our understanding of the complexity of this encounter between rights and World Heritage is still evolving. What, then, are the kinds of rights issues encountered and identified? What debates and concerns do they raise? The first section presents a series of case studies allowing the reader to appreciate the diversity of field realities. The spirit of the seven case studies is exploratory rather than evaluative. None are rights audits of specific sites, but rather reflect the wide panoply of rights issues and perspectives found in both cultural and natural sites. Based on an event-ethnography of the World Heritage Committee meeting in Bonn, 2015, Larsen and Buckley explore how human rights are articulated in and shaped by this overarching inter-governmental process. The authors suggest a six-part typology to describe and think through how human rights were made visible (or invisible) in the global arena. These are cross-cutting viewpoints, and include rights as heritage, in heritage, to heritage, of heritage, as social justice and as operational practice. While rights language is increasingly appearing in the World Heritage Committee context, it remains fragmented in terms of where, when, for whom and what rights issues are identified and how they are being addressed institutionally. The chapter by Ian Lilley, Kristal Buckley and Helena Kajlich offers an overview of indigenous rights in Australian World Heritage sites and takes us to Fraser Island or K’gari as it is known by its Traditional Owners, the Butchulla people, who recently obtained Native Title to the area. Illustrative of the diversity of reconciling indigenous rights, values and World Heritage in Australia, the case study points to

18 Peter Bille Larsen

FIGURE 1.3

Map of World Heritage site case studies (Nguyen Huu Duy Vien).

the complexity not only of recognising rights, but also of setting up and connecting management institutions, plans and decision-making responsive to indigenous rights and values. Sambor Prei Kuk, a Cambodian World Heritage site in the making, is presented by Jonathan Liljeblad in a broader discussion of religious rights. Finding that the relationship between cultural heritage and human rights remains ambivalent, not least given the prospective tourism impacts of World Heritage designation in Cambodia, he stresses the importance of giving further consideration to religion

Introduction

19

and cultural heritage as human rights.Harald Høyem offers a comparative account of two heritage processes from Xi’an, China, leading to very different outcomes for the local populations and their rights. In one case, people were able to defend their presence in the area, whereas top-down decision-making in the other led to resettlement in a short time-span. Høyem points to the diverse conditions of empowerment and state interest in shaping how rights play out. Amran Hamzah, in turn, portrays how World Heritage management practice may shift from exclusion towards practices of inclusion in Malaysia. The case study of the Kinabalu National Park illustrates the common challenges in large parts of Asia of park creation and World Heritage designation that have historically neglected customary land rights and even led to resettlement. However, the chapter equally demonstrates the room for change, remediation and possible restoration of community rights. Hamzah writes about what he calls the shifting endogenous and exogenous factors shaping rights as a dynamic process. Bagan, an ancient Buddhist site in Myanmar in the process of nomination, forms the context of Anne Laura Kraak’s discussion and problematisation of participation and cultural rights. While the latter are frequently promoted by UNESCO, their actual realisation, she argues, concern contested realities and questions and challenges which are not easily solved by the mantra of community engagement. Sudarshan Raj Tiwari, Hans Christie Bjønness and Pranita Shrestha offer an important study of the Kathmandu Valley. Their field research and focus evolved from an initial longitudinal study of evolving rights towards a more specific focus on World Heritage and rights in the situation following the Gorkha earthquake. Building on several years of research, the case study demonstrates the value of careful attention to evolving rights dynamics. The historic city of Vigan in the Northern Philippines, considered the best-preserved Spanish colonial city in Asia, also won UNESCO recognition in 2012 for its ‘best practice’ management. Sara Dürr, Malot Ingel and Bettina Beer interrogate the development narratives and realities of local people touching upon the complexity of social transformation, heritage and change of World Heritage. In Vietnam, Peter Bille Larsen describes how Phong Nha Ke Bang was nominated for its natural values with management decisions leading to the exclusion of indigenous customary rights. Yet, where international cooperation in Malaysia led to experimentation with land rights and co-management (Hamzah, this volume), technical cooperation in the Vietnamese case cemented the exclusion of ethnic minorities from customary livelihoods and resources despite objectives to support sustainable livelihoods. The author suggests careful attention to the negotiations between global frameworks and local practices to make sense of this paradox. A number of lessons emerge from the case studies. First and foremost, they confirm the fruitfulness of adopting a more processual and dynamic understanding of the rights interface. The Nepali research team, for example, emphasised evolving rights, studying their emergence, expression and realisation (Tiwari et al., this volume). Intersections may evolve owing to changing rights dynamics (such as Native

20 Peter Bille Larsen

Title described by Lilley et al., this volume) or shifting heritage politics (see e.g., Hamzah, this volume). Second, each case demonstrates the singularity of rights concerns unlikely to be captured by standard gazes. Each study involved particular takes on appropriate clusters shaped not only by specific research tools but also by the changing nature of the interface studied. Standard rights categories and connections may not always fit the specificities involved in real life situations. From gains made in terms of labour and territorial rights (Hamzah, this volume), to indigenous and livelihood rights being ignored despite international funding (Larsen, this volume), rigorous analytical attention is required to adequately capture the rights interface. Third, the case studies challenge simplistic assumptions. Whereas one might assume indigenous values, participation and recognition to be better established and systematic in Australian World Heritage policy, there are equally unexpected problems in terms of management engagement, participation and clear-cut recognition of rights. Conversely, there are important elements of social justice approach emerging from practice, even in contexts where legal frameworks have historically not been framed around recognition. Fourth, several cases point to social heterogeneity, stratification and power distribution. Cases from China, Malaysia, Myanmar, Nepal and Vietnam demonstrate the need for socially differentiated standpoints to capture evolving manifestations of rights over time. This is not surprising from a social science perspective, yet points to the risks of simplification in formal heritage processes. More attention needs to be paid to different social groupings and uneven access to heritage decisions. Fifth, both urban and rural cases reveal the difficulty of reconciling universalist values and management practices with local values of all kinds. From religious values to livelihoods, the centrality of Outstanding Universal Value, while fundamental to World Heritage designation in the first place, can easily result in the neglect of other values. Sixth, several case studies emphasise the common processes of urbanisation, gentrification and tourism as integral to heritage-making, triggering processes of privatisation and commoditisation. These are not merely contextual factors, but have become an almost naturalised part of the heritage (and rights) fabric. Such intricacies pose important challenges to existing heritage and human rights legal and policy frameworks. This can partly be explained by the very recent emergence of policy language to articulate the relationship between World Heritage and human rights. The argument, however, that arbitrary rights action is caused by the long-standing silence of the Convention on human rights issue tells only part of the story. As the following legal analyses demonstrate, heritage and human rights legal frameworks are often disconnected or poorly articulated in practical terms. Whereas a common misperception sees the singularity of World Heritage as a governance field separate from other international areas, Alexander Morawa and Gabriel Zalazar in their review of global policy underline the duty of States Parties and international organisations to ensure the free and full exercise of human rights.

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Through an analysis of the World Heritage Convention, Operational Guidelines and the recent Sustainable Development policy, they argue against redefining rights in the context of heritage protection and instead promote further interdisciplinary dialogue and mutual consultations. Current heritage regimes may be more or less conducive in that respect. For one, as Ben Boer and Stefan Gruber argue, the adoption of comprehensive World Heritage legislative frameworks remains an exception limited to a few countries. As a result, much practice remains shaped by existing sectoral regimes and site-specific arrangements. This engenders considerable diversity in terms of how rights are being addressed and reflected under existing natural and cultural heritage law. In their review of Australian legislation, Boer and Gruber trace the development and implementation of heritage and human rights law and policy since the 1970s. They demonstrate the diversity of legal frameworks for the country’s nine jurisdictions. Despite important advances in what they see as a patchwork of rights-based approaches, Boer and Gruber call for major policy action to secure consistent treatment of human rights across the different jurisdictions. A key finding of the legislative review of Nepal undertaken by Bipin Adhikari is the firm commitment to promote human rights as well as the institutional transformations between central and local authorities resulting from the 2015 Constitution. Such developments require new legislation, much of which is still in the making. Through a discussion of existing World Heritage legislation (mainly limited to Kathmandu), Adhikari calls for more comprehensive legislation attention equally relevant for the country’s three other World Heritage sites and other parts of the country, taking into account local cultural institutions, cultural practices and economic bases in developing a rights-based approach appropriate for the country. Nguyen Linh Giang emphasises how World Heritage is popular in Vietnam, with eight sites thriving, yet without legislative means to clearly address the impact of heritage on the lives of people living within and around them. How do regulations take into account the legitimate rights and interests of people, in particular vulnerable groups such as minorities, the author asks. The chapter demonstrates major gaps in current cultural and natural heritage policies and calls for the inclusion of human rights in future heritage legislation and regulatory efforts reflecting both constitutional commitments nationally and the recently adopted Sustainable Development policy internationally. In summary, this volume raises questions about tensions and disconnects between World Heritage and rights, and equally about new ways of engaging with and reconciling the relationship. While we are witnessing human rights discourse mobilised in the name of heritage destruction, war and Security Council resolutions, infringements of basic human rights in other ‘peaceful’ sites remains a routine matter. It is time to not only revisit basic assumptions about what rights issues are involved, but equally to consider how they are being structured and what can be done to restructure the relationship between World Heritage and rights.

22 Peter Bille Larsen

The final chapter of the volume seeks to do just that. It offers a critical discussion of how and why the World Heritage system has ended up silencing rights despite constitutional commitments. The chapter equally explores the role of national processes in shaping highly uneven rights outcomes. It also calls for more attention to the underlying political economy of World Heritage. Seen together, this terrain of rights outcomes as well as our growing understanding of how the interplay between global and local factors shapes them offers an important basis for immediate action and further policy deliberation.The chapter ends with a discussion about what it will take to craft a World Heritage policy framework which is less permeable to capture by economic elites, while being more accessible and inclusive at both the design and management levels.

Notes 1 I would like to thank all project partners and contributors for the rich conversations over the last few years. Particular thanks to Bettina Beer, Ian Lilley and Sue Redgrave for comments on an earlier version. 2 A key initiative in this respect has been the Our Common Dignity project led by ICOMOS Norway. In addition, the SNIS-funded project behind this volume facilitated a number of policy dialogues and policy briefs, which can be accessed here: http:// projects.snis.ch/rights-world-heritage-system/. 3 http://chm.aseanbiodiversity.org/index.php?option=com_wrapper&view=wrapper& Itemid=110¤t=110. 4 www.amnesty.org/en/countries/asia-and-the-pacific/, accessed February 25, 2017. 5 Only recently (2015) has a reference to the United Nations Declaration on the rights of indigenous peoples been added to the Operational Guidelines. 6 http://whc.unesco.org/en/activities/172/, accessed May 25, 2016. 7 http://www.theguardian.com/commentisfree/2012/apr/21/egypt-nubians-dam. 8 http://en.unesco.org/70years/abu_simbel_safeguarding_heritage. 9 http://www.thenational.ae/news/world/afr ica/people-of-the-nile-appealfor-greater-rights#full. 10 http://whc.unesco.org/archive/2007/whc07-31com-13be.pdf. 11 It was in this respect interesting, and worthy of a footnote, to find earlier formulated IUCN language to which this author had contributed on the significance of human rights in protected areas, specifically quoted by the World Heritage document in question WHC-07/31.COM/13B (p. 3). 12 http://whc.unesco.org/archive/2007/whc07-31com-13be.pdf (accessed May 5, 2017). 13 http://projects.snis.ch/rights-world-heritage-system/policy-briefs/. 14 http://rightsandresources.org/en/how-we-create-change/by-region/asia/#sthash. fnITpDCL.dpbs. 15 http://www.unesco.org/fileadmin/MULTIMEDIA/HQ/CLT/images/Report%20 of%20Farida%20Shaheed.pdf, accessed May 5, 2017.

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Allan, James R., Oscar Venter, Sean Maxwell, Bastian Bertzky, Kendall Jones,Yichuan Shi, and James E.M.Watson. 2017. “Recent Increases in Human Pressure and Forest Loss Threaten Many Natural World Heritage Sites.” Biological Conservation 206: 47–55. Anders, Gerhard. 2015.“Law at Its Limits: Interdisciplinarity between Law and Anthropology.” The Journal of Legal Pluralism and Unofficial Law 47: 411–422. Archambault, Caroline S. and Annelies Zoomers, eds. 2015. Global Trends in Land Tenure Reform: Gender Impacts. London and New York: Routledge. Bastian, Liliana, Molly Gilligan and Barbara Clabots. 2016. Exploring Gender in the Ramsar Convention and the World Heritage. Washington DC: IUCN Global Gender Office. Blake, Janet. 2002. Developing a New Standard-setting Instrument for the Safeguarding of Intangible Cultural Heritage, Elements for Consideration (revised version). Paris: UNESCO. Blake, Janet. 2015. International Cultural Heritage Law. Oxford: Oxford University Press. Boer, Ben, ed. 2015. Environmental Law Dimensions of Human Rights. Oxford: Oxford University Press. Bourdeau, Laurent, Maria Gravari-Barbas and Mike Robinson, eds. 2015. World Heritage, Tourism and Identity: Inscription and Co-production. Farnham: Ashgate. Brumann, Christoph and David Berliner. 2016. “Introduction: UNESCO World Heritage – Grounded?” In World Heritage on the Ground: Ethnographic Perspectives, edited by Christoph Brumann and David Berliner, 1–34. Oxford and New York: Berghan. Buergin, Reiner. 2015. “Contested Rights of Local Communities and Indigenous Peoples in Conflicts over Biocultural Diversity: The Case of Karen Communities in Thung Yai, a World Heritage Site in Thailand.” Modern Asian Studies 49: 2022–2062. Castellino, Joshua and David Keane. 2009. Minority Rights in the Pacific Region: A Comparative Analysis. Oxford, Oxford University Press. Castellino, Joshua and Elvira Dominguez Redondo. 2006. Minority Rights in Asia. Oxford, Oxford University Press. Chakravartya, Surajit and Clara Irazábal. 2011. “Golden Geese or White Elephants? The Paradoxes of World Heritage Sites and Community-Based Tourism Development in Agra, India.” Community Development 42 (3): 359–376. Coningham, R. (1999). “Paradise Lost: The Bombing of the Temple of the Tooth—a UNESCO World Heritage Site in Sri Lanka.” Antiquity 73(282): 857–866. Coningham, Robin and Nick Lewer. 1999. “Paradise Lost: The Bombing of the Temple of the Tooth—a UNESCO World Heritage Site in Sri Lanka.” Antiquity 73 (282): 857–866. Dhir, Rishabh Kumar. 2015. Indigenous Peoples in the World of Work in Asia and the Pacific: A Status Report. Geneva: International Labour Office. Disko, Stefan and Helen Tugendhat, eds. 2014. World Heritage Sites and Indigenous Peoples’ Rights. Copenhagen: IWGIA. Edinburgh World Heritage. 2016. The Economic Value of the Old & New Towns of Edinburgh World Heritage Site. Edinburgh: Edinburgh World Heritage. Ekern, Stener, William Logan, Birgitte Sauge and Amund Sinding-Larsen. 2012. “Human Rights and World Heritage: Preserving Our Common Dignity through Rights-Based Approaches.” International Journal of Heritage Studies 18 (3): 213–225. Forshee, Jill with Christina Fink and Sandra Cate. 1999. Converging Interests: Traders, Travelers and Tourists in Southeast Asia. Berkeley: University of California Press. del Gatto, Filippo. 2015. “Titling Ancestral Territories in the Honduran Muskitia. Exploring the Implications for the Country’s Indigenous Peoples.” Forest-Trends.org. Accessed May 5, 2017. www.forest-trends.org/publication_details.php?publicationID=4974. di Giovine, Michael A. 2009. The Heritage-scape: UNESCO, World Heritage and Tourism. Lanham: Lexington Books.

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Global Heritage Fund 2012. “Asia’s Heritage in Peril: Saving Our Vanishing Heritage.” www. globalheritagefund.org/images/uploads/docs/GHFAsiaHeritageinPeril050112_lowres. pdf. Accessed December 15, 2016. Harmanşah, Ömür. 2015. “ISIS, Heritage, and the Spectacles of Destruction in the Global Media.” Near Eastern Archaeology 78 (3): 170–177. Hauser-Schäublin, Brigitta, ed. 2011. World Heritage Angkor and Beyond: Circumstances and Implications of UNESCO Listings in Cambodia. Göttingen: Universitätsverlag Göttingen. Hitchcock, Michael, Victor T. King and Michael Parnwell. 2010. Tourism in Southeast Asia: Challenges and New Directions. Copenhagen: NIAS. Human Rights Council. 2016. Resolution 33/20 Cultural rights and the Protection of Cultural Heritage. A/HRC/33/L.21. Geneva: United Nations. Janmyr, Maja. 2016. “Nubians in Contemporary Egypt: Mobilizing Return to Ancestral Lands.” Middle East Critique 25 (2): 127–146. Jimura, Takamitsu. 2011. “The Impact of World Heritage Site Designation on Local Communities – A Case Study of Ogimachi, Shirakawa-mura, Japan.” Tourism Management 32 (2): 288–296. Kaufmann, Daniel. 2004. “Human Rights and Governance: The Empirical Challenge.” In Ethical Globalization Initiative and the NYU Center for Human Rights and Global Justice, ed., n.p. Conference on Human Rights and Development: Towards Mutual Enforcement. New York. Kaufmann, Daniel. 2006. “Human Rights, Governance, and Development.” Development Outreach 8 (2): 15–20. Kim, Samuel Seongseop, Kevin K. F. Wong, and Min Cho. 2007. “Assessing the Economic Value of a World Heritage Site and Willingness-to-Pay Determinants: A Case of Changdeok Palace.” Tourism Management 28 (1): 317–322. King, Victor T. 2013. “UNESCO in Southeast Asia: World Heritage Sites in Comparative Perspective.” Working Paper Series No 4. Institute of Asian Studies, Universiti Brunei Darussalam. Kraak, Laura. 2015. “The Absence of Human Rights in Heritage Practice at Bagan in Myanmar.” Human Rights Defender 24 (2): 19–20. Langlois, Anthony J. 2012. “Asian Regionalism and Human Rights: the case of ASEAN Intergovernmental Commission on Human Rights.” In Routledge Handbook of Asian Regionalism, edited by Mark Beeson and Richard Stubbs, 216–225. London and New York: Routledge. Larsen, Peter Bille. 2012a. “Advisory Body Evaluations of World Heritage Nominations in Relation to Community and Rights Concerns. Independent Assessment.” Discussion Paper. IUCN, ICOMOS Norway and ICCROM. June. Larsen, Peter Bille. 2012b. “IUCN, World Heritage and Evaluation Processes Related to Communities and Rights: An Independent Review.” Gland, Switzerland: IUCN World Heritage Programme. Larsen, Peter Bille. 2014. “Moving towards Effective Rights Based Approaches and Good Practice in the World Heritage System.” Discussion paper presented in Oslo, April 1–3. Larsen, Peter Bille. 2015. Post-Frontier Resource Governance: Indigenous Rights, Extraction and Conservation in the Peruvian Amazon. London: Palgrave MacMillan. Logan, William. 2014. “Heritage Rights—Avoidance and Reinforcement.” Heritage & Society 7 (2): 156–169. Meskell, Lynn, Claudia Liuzza and Nicholas Brown. 2015. “World Heritage Regionalism: UNESCO from Europe to Asia.” International Journal of Cultural Property 22 (4): 437–470.

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Mitchell, David P., Danilo Antonio, Donovan Storey, Teo CheeHai and Lowie RosalesKawasaki. 2015. “Land Tenure in Asia and the Pacific: Challenges, Opportunities and Way Forward.” United Nations Human Settlements Programme (UN-Habitat). Miyazawq, Setsuo,Weidong Ji, Hiroshi Fukurai, Kay-Wah Chan and Matthias Vanhullebusch, eds. 2015. East-Asia’s Renewed Respect for the Rule of Law in the 21st Century. Leiden and Boston: Brill Publishers. Ngalmirama, Annie. 2014. “Preface.” In World Heritage Sites and Indigenous Peoples’ Rights, edited by Stefan Disko and Helen Tugendhat, xv–xvi. Copenhagen: IWGIA. Peerenboom, Randall P. 2004. “Show Me the Money – The Dominance of Wealth in Determining Rights Performance in Asia.” bepress Legal Series. Working Paper 324. law. bepress.com/expresso/eps/324. Prideaux, Bruce and Fay Falco-Mammone. 2009. Economic Values of Tourism in the Wet Tropics World Heritage Area. Cairns: Cooperative Research Centre for Tropical Rainforest Ecology and Management. Reid, Hannah, David Fig, Hector Magome and Nigel Leader-Williams. 2004. “Co-management of Contractual National Parks in South Africa: Lessons from Australia.” Conservation and Society 2 (2): 377–409. Reilly, Benjamin. 2006. Democracy and Diversity: Political Engineering in the Asia–Pacific. Oxford: Oxford University Press. Rice, Kathleen. 2017. “Rights and Responsibilities in Rural South Africa: Implications for Gender, Generation, and Personhood.” Journal of the Royal Anthropological Institute 23 (1): 28–41. Rigg, J. 2016. Challenging Southeast Asian Development: The Shadows of Success. London: Routledge. RRI (Rights and Resources Initiative). 2015. Protected Areas and the Land Rights of Indigenous Peoples: Current Issues and Future Agenda.Washington DC: Rights and Resources Initiative. RRI and TISS (Rights and Resources Initiative and the Tata Institute of Social Sciences). 2016. Land Conflicts in India: An Interim Analysis. Tata Institute of Social Sciences and The Rights and Resources Initiative. Security Council 2017. Resolution 2347 (2017). New York: United Nations. Sen, Amartya. 1997.“Human Rights and Asian Values.” 16th Morgenthau Memorial Lecture on Ethics and Foreign Policy. Carnegie Council on Ethics and International Affairs. May 25. Sen, Amartya. 1999. Development as Freedom, New York: Anchor Books. Sherkin,Samantha.2001.“A Historical Study on the Preparation of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore.” Accessed December 12, 2016. www.folklife.si.edu/resources/Unesco/sherkin.htm. Paris: UNESCO. Short, Damien. 2008. Reconciliation and Colonial Power: Indigenous Rights in Australia. Aldershot: Ashgate. Silverman, Helaine. 2016. “The Ruinscape: UNESCO, the State, and the Construction of Identity and Heritage in Phimai, Thailand.” In Finding Solutions for Protecting and Sharing Archaeological Heritage Resources, edited by Anne P. Underhill and Lucy C. Salazar, 33–53. New York: Springer. Silverman, Helaine and D. Fairchild Ruggles. 2007. “Cultural Heritage and Human Rights.” In Cultural Heritage and Human Rights, edited by Helaine Silverman and D. Fairchild Ruggles, 3–29. New York: Springer. Sims, Kearrin. 2016.“Uneven geographies of transnational capitalism in Laos.” In Globalization and Transnational Capitalism in Asia and Oceania, edited by Jeb Sprague, 199–213. London and New York: Routledge.

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Sinding-Larsen, Amund and Peter Bille Larsen, eds. 2017. The Advisory Body “Our Common Dignity Initiative” on Rights-Based Approaches in World Heritage: Taking Stock and Looking Forward. Oslo: ICOMOS Norway. Sinding-Larsen, Amund. 2012. “Lhasa Community, World Heritage and Human Rights.” International Journal of Heritage Studies 18 (3): 297–306. Stevens, Stan. 2013. “National Parks and ICCAs in the High Himalayan Region of Nepal: Challenges and Opportunities.” Conservation and Society 11 (1): 29–45. Su, Ming Ming and Geoffrey Wall. 2015. “Community Involvement at Great Wall World Heritage Sites, Beijing, China.” Current Issues in Tourism 18 (2): 137–157. Taylor, John P. 2008. “The Social Life of Rights: ‘Gender Antagonism’, Modernity and Raet in Vanuatu.” The Australian Journal of Anthropology 19 (2): 165–178. Tisdell, Clement A. and Clevo Wilson. 2001. “World Heritage Listing of Australian Natural Sites: Tourism Stimulus and its Economic Value.” Economics, Ecology and Environment Working Paper 48382. Brisbane: Economics, Ecology and the Environment, School of Economics, University of Queensland. Trask, Mililani. 2014. “UNESCO: (Dis)honoring Indigenous Rights.” Cultural Survival Quarterly 38 (1): 18. www.culturalsurvival.org/publications/cultural-survival-quarterly/ unesco-dishonoring-indigenous-rights. UNDP. 2007. Towards Inclusive Governance: Promoting the Participation of Disadvantaged Groups in Asia–Pacific. Bangkok: United Nations Development Programme. UNDP. 2016. Asia–Pacific human development report. Shaping the future: how changing demographics can power human development. New York: UNDP. UNESCO. 1945. Constitution of UNESCO. http://www.unesco.org/education/ information/nfsunesco/pdf/UNESCO_E.PDF. UNESCO. 2003. UNESCO Strategy on Human Rights. Paris: UNESCO. Wafa, Taher Abu. 1964. “The Social and Economic Consequences of the High Aswan Dam.” IMPACT of science on society XIII (4): 253–272. Wall, Geoffrey and Heather Black. 2004. “Global Heritage and Local Problems: Some Examples from Indonesia.” Current Issues in Tourism 7 (4–5): 436–439. Winter, Tim. 2007. Post-Conflict Heritage, Postcolonial Tourism. Culture, Politics and Development at Angkor. London and New York: Routledge. Yanagisawa, Haruka, ed. 2015. Community, Commons and Natural Resource Management in Asia. Singapore: National University of Singapore. Yugo, Ono. 2014. “Shiretoko Natural World Heritage Area and the Ainu People.” In World Heritage Sites and Indigenous Peoples’ Rights, edited by Stefan Disko and Helen Tugendhat, 269–286. Copenhagen: IWGIA.

PART I

Case studies

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2 THE WORLD HERITAGE COMMITTEE AND HUMAN RIGHTS Learning from event ethnography Peter Bille Larsen and Kristal Buckley

Introduction How are human rights articulated in and shaped by inter-governmental heritage processes? This chapter complements the legal reviews and global policy dialogues that are described throughout this book with a qualitative assessment of how rights were articulated in an inter-governmental meeting, namely the yearly World Heritage Committee session.1 Research exploring how and under what conditions human rights are addressed in the World Heritage system involved participant observation and targeted interviews with key actors in the World Heritage system as part of a collaborative event ethnography (Brosius and Campbell 2010; Brumann 2012) of the 2015 World Heritage Committee session held in Bonn, Germany. Social scientists have studied the operation of multilateral institutions (Müller 2013) and have been drawn to the World Heritage Committee as a significant arena of heritage politics (Meskell and Brumann 2015; Brumann and Berliner 2016). Recent analyses, for example, stress the risk-averse and conservative orientation of decisions taken, often depicting the Committee as an arena of nation-state politics, cultural diplomacy and alliance building (Bertacchini et al. 2015, 2016; James and Winter 2017; Meskell 2012; Meskell et al. 2014; Meskell and Brumann 2015; Brumann 2012, 2014). Our work on rights issues both builds on and departs from this dynamic body of research. Diplomatic references to human rights and heritage are common today, from civil society critique to high-level declarations.Tracing how different actors address rights concerns, we suggest a six-part typology to describe and think through how human rights were made visible (or invisible). These are cross-cutting viewpoints, and include: rights as heritage, rights in heritage, rights to heritage, rights of heritage, rights as social justice and rights as operational practice.

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The World Heritage Committee sessions are complex opportunities to observe patterns and processes, including decision making on specific cases and standardsetting outcomes. It is important to consider both formal and informal processes as entry points to capture the discourses and practices influencing the articulation of rights at the international level. We argue that ethnography reveals multi-layered ways of articulating human rights which are easily overlooked by other methodological gazes. The chapter describes and qualifies such articulations and their implications.What specific rights issues are being brought up in the World Heritage system, and by whom? Which issues are left out or forgotten? We stress the importance of recognising human rights practice as an embedded field of social practice. Theoretical discussions of this topic, we suggest, need to be joined by grounded and open-ended approaches to capture change. Understanding how rights issues emerge requires consideration of the different contexts and conditions in which the World Heritage system operates – from the nomination processes to monitoring of World Heritage properties, and the day-today management of World Heritage properties ‘on the ground’. Since the adoption of the ‘5th C’ (community) as one of the World Heritage Committee’s strategic objectives in 2007,2 references to ‘community’ have become commonplace.Yet, as is the case with heritage practice generally, there is no clarity about the definition of ‘community’ (Waterton and Smith 2010), or the weight to be given to community interests and rights in particular. States Parties are generally more willing to employ ‘softer’ language about communities compared to ‘harder’ language about rights. One obvious consequence of this preference is that rights issues and other community interests are easily blurred and remain ill-defined. Nonetheless, in the past five years, side events, Committee discussions and interviews have revealed a growing interest amongst key actors from the Advisory Bodies, UNESCO and States Parties in responding to rights issues, raising questions about whether and how World Heritage Committee processes are being transformed.The 2015 adoption of a Sustainable Development policy is widely perceived as setting a new precedent in terms of rights practice in World Heritage, a projection and assumption in need of further testing in the years to come.

World Heritage and human rights UNESCO’s 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) established the World Heritage List, the World Heritage Fund and the World Heritage Committee, comprised of 21 elected member states that oversee the system and make the decisions. The work of the World Heritage Committee is most visible at its annual session, which is held in different locations year-to-year and supported by the UNESCO World Heritage Centre, which acts as the Secretariat. The World Heritage Convention was adopted without explicit reference to human rights, although its ties to the post–World War II peace-making mission of UNESCO are easily seen. In the 40 years of the Convention’s implementation,

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various pivotal cases have highlighted the possibilities for the World Heritage Committee to work in ways that recognise and support human rights, or ways that compound conflicts. Without seeking to catalogue these, issues range from the eviction of local communities, protected area creation without adequate consultation or consent, valorisation of the histories of some cultural groups at the expense of others and so on. As part of the UN system, UNESCO is required to adopt policies in support of human rights, such as those related to gender, religion and the rights of Indigenous peoples. The World Heritage Committee has not been immune to these processes, but progress has been uneven and, as a body that makes its own procedures and decisions, has not moved as promptly to implement them as external observers expected (Disko and Tugendhat 2014). At Bonn, a Committee member underscored this in a discussion on consent, saying, ‘We are here at a prestigious committee of culture and heritage; we are not in Geneva on the Human Rights Council’.3 Reluctance to address human rights has possibly been reinforced by the muchrecalled consideration and dismissal of a proposal in 2000–2001 to establish a World Heritage Indigenous People’s Committee of Experts (WHIPCOE) (Meskell 2013; Cameron and Rössler 2012). In 2012, an expert meeting on World Heritage and Indigenous Peoples held in Copenhagen produced a ‘Call for Action’ specifying procedural and operational changes that would bring the World Heritage Committee’s work into line with the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (Disko and Tugendhat 2013). Despite the opportunity to adopt these changes at the World Heritage Committee session in 2013 (Phnom Penh, Cambodia), initial changes did not occur until 2015. To explain the slow responses, and understand how future strategies for improving rights practices and outcomes might be forged, it is essential to understand how the World Heritage Committee works, and how possibilities for change materialise (or disappear). Our experiences at the 2015 Committee session reveal a complex picture – with varying State Party positionalities, increased visibility of rights and fragmented and inconclusive considerations.

The 39th session of the World Heritage Committee Ethnographic studies of the World Heritage Committee have described the space, actors and activities as they are constructed and rolled out in a new location each year (cf. Brumann 2012).The 2015 session was held in Bonn (Germany), and chaired by Maria Böhmer, Minister of State at the German Federal Foreign Office and member of the Bundestag. Through unusually warm days in June, the Committee met in the space designed for the former Bundestag of Western Germany. Although there are six official languages, in practice the documents and important discussions occur in English or French; in Bonn, translation also allowed interventions to be made in German and Spanish. The building where the session was held was protected by security checking and screening. Outside, several groups protested about matters open for decision

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FIGURE 2.1

Protestor at World Heritage Committee, Bonn 2015 (Kristal Buckley).

– pushing for greater protection of the Great Barrier Reef (Australia) and opposing the nomination by Japan of sites of its Meiji Industrialisation period (see Figure 2.1). The plenary space provided seating for the active participants – the member states elected to form the World Heritage Committee, the Secretariat (UNESCO’s World Heritage Centre), representatives of the technical Advisory Bodies and the alphabetically arrayed seating for the remaining member states. This building also provided the spaces for side events, working groups and social events. The 39th Committee session occurred over 11 days and included plenary sessions throughout each day, working group meetings for the revision of the Operational Guidelines and the budget and numerous side events held at lunchtimes and in the evenings. Additional pre-session meetings, a training session for newcomers; and a two-day civil society meeting of the NGO World Heritage Watch expanded the number of exchanges of potential relevance for our ethnography.4 Tours and a

World Heritage Committee and human rights

FIGURE 2.2

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World Heritage Committee meeting room, Bonn 2015 (Kristal Buckley).

packed programme of receptions, launches, exhibitions and cultural performances added to the complexity. As a team of two, we had some advantages over our colleagues working alone, but it was nevertheless an intensive immersion and not all moments relevant to our interests could be observed. Approximately 1700 people were registered to attend the 39th session.5 In addition to the different actors already described, many national delegations included people related to specific cases, such as mayors, local community representatives and heritage experts. As ‘Other’ Observers, we were accredited to attend, yet not officially permitted to enter the plenary seating space. We had an excellent vantage point from the upstairs seating in the company of other assorted members of civil society, NGO representatives, Indigenous groups with interests in specific cases, academic researchers and journalists (see Figure 2.2).

Making sense of diversity Multiple rights-oriented discussions at the World Heritage Committee can be perplexing due to their references to different and fragmentary pieces of larger debates and events. In addition, it is also clear that people think of and frame rights issues differently (Dembour 2010). In order to capture parts of this complexity we have, for heuristic purposes, prepared a typology of significant ways in which we experienced rights surfacing during the session. These are: rights as heritage, rights to heritage, rights of heritage, rights in heritage, rights as operational practice and rights as social justice. We have identified these to organise our observations and interactions, but stress that they are neither mutually exclusive, nor exhaustive. A particular issue might crop up under several of the six types, yet the typology enables discussion about their implications for World Heritage processes. There are obviously multiple other

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Rights as heritage

Rights to heritage

Rights in heritage

Rights of heritage

Rights as social justice

Rights as operational practice

FIGURE 2.3

The six rights heritage linkages (authors).

ways of conceptualising and distinguishing between different rights – for example, according to procedural vs. substantive rights, rights according to generational types or individual vs. collective rights. While equally relevant for furthering the debate, we have, for the remainder of the chapter, established this more grounded approach in order to render explicit how rights appear in the World Heritage Committee session.

Rights in heritage The first dimension concerns questions about how and which human rights are identified and incorporated into heritagisation processes. Our idea of ‘rights in heritage’ concerns the ways in which rights issues historically have (dis)appeared and been framed in the World Heritage decision making, mechanisms and assessments. Long considered something between irrelevance and a sensitive topic, it is only within the last couple of years that more explicit treatment has taken place. A number of nomination and monitoring processes have thus started to raise particular rights issues. Nonetheless, there is little systematic discussion of the intersections between World Heritage and human rights, and very little apparent willingness to openly ask whether and how to apply human rights standards within the context of World Heritage. There is a tendency towards silence, convoluted language or, when rights issues appear unavoidable, interventions expressing ‘confusion’, contradictory positions and a lack of awareness. Diplomatic actors seem able to compartmentalise what they know and understand, and to separate ‘heritage’ from other multi-lateral concerns in all but the most contentious geo-political situations (such as the case of the Old City of Jerusalem and its Walls).6 Considering the scale and range of rights concerns, what is identified is only the tip of the iceberg. Indigenous organisations have had some modest successes in raising awareness about their concerns, but other rights-holders and their advocates remain absent from the arena. Accordingly, Indigenous rights concerns have been predominant, but other human rights concerns remain poorly identified, marginal and invisible in Committee processes.7 The rights of local communities, ethnic minorities, gender, children or religion remain elephants in the room, still to be addressed consistently.

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Another emerging complication concerns the rising number of cases affecting displaced peoples, refugees and people living in trans-boundary settings. The Karen people living in Thailand’s borderlands are one example from 2015. The decision concerning the nomination of the natural heritage property of Kaeng Krachan Forest Complex (Thailand) involved uncertainties about their citizenship, which led to questions about their rights in relation to land, settlement and heritage. The Committee accepted the need to delay its decision on inscription even though the merits of the heritage assessment were not questioned. The advice of IUCN coupled with recommendations of the Office of the High Commissioner on Human Rights (OHCHR) allowed the human rights issues to be recognised and given priority. Although cross-agency engagement at the international level prior to the Committee session facilitated an easier recognition of rights concerns in this case, the draft text requesting the State Party to ensure the free, prior and informed consent of the affected Karen communities was deleted during the debate (Joint Statement 2015). Consistent treatment is far from a given and outcomes remain unpredictable.

Rights as operational practice Our second type of rights articulation concerns how rights are incorporated into World Heritage operational processes. The Convention text and the raft of documents produced for operational guidance and principles have, until recently, remained silent on the topic of rights. Stimulated by internal and external critiques, the Advisory Bodies and World Heritage Centre have begun to explore the implications of rights-based approaches to their work, and both authors have been active in in these processes. Since 2008, ICOMOS Norway has led the programme ‘Our Common Dignity’, involving the Advisory Bodies and the World Heritage Centre (Sinding-Larsen 2012); and the Advisory Bodies commissioned advice on the implications of rights-based approaches to their World Heritage activities (Larsen 2012a, 2012b). IUCN has developed explicit guidance on rights issues for its evaluation missions in line with wider organisational policies that advocate for rights-based approaches to nature conservation (Oviedo and Puschkarsky 2012). To open the dialogue, the ‘Our Common Dignity’ initiative hosted side events at World Heritage Committee sessions and facilitated the collection of case studies and country-based discussions. Over time, this has played a key role in improving internal processes and shifting Advisory Body attention from specific cases and firefighting, to recognising the piecemeal and ad hoc treatment of rights in the formal system (Sinding-Larsen and Larsen 2017). At the same time, the Special Rapporteur on Cultural Rights developed a programme of work on heritage and cultural rights. Amongst a suite of wide-ranging recommendations in 2011, Shaheed (2011, 20) recommended that ‘[n]o inscription on UNESCO lists relating to cultural heritage or national lists or registers should be requested or granted without the free, prior and informed consent of the concerned communities’.

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Persuasion and reflection has therefore occurred on several fronts. Given the centrality of state actors in both World Heritage and human rights, it might seem relatively straightforward to ensure that rights are incorporated into heritage processes. Furthermore, State Party representation is dominated by diplomats who are knowledgeable about human rights standards (James and Winter 2017). Avoiding discussion of these matters, and use of the rhetoric of ‘confusion’, has therefore been somewhat bewildering (or even exasperating) for non-government observers. Nevertheless, these tactics have been largely effective in displacing controversy and sustaining the status quo (a lack of explicit recognition of rights issues and consequences). The 2015 World Heritage Committee session was therefore notable for transcending this inaction. Robust exchanges over several days in the Working Group on the Operational Guidelines resulted in the adoption of new wording to recognise the relevance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP 2007). By making direct reference to the Declaration, the Working Group avoided the need to negotiate new text specifically for the World Heritage arena. This was a fortuitous mechanism for the NGOs that had advocated for these changes for some time, and it resulted in some simple but potentially powerful changes to paragraphs 40 and 123 (UNESCO 2015b), even though the processes that will flow from these changes have yet to be devised. The second important breakthrough was the agreement on the draft text of the policy on Sustainable Development, which was later adopted by the General Assembly of States Parties. The policy text contains an unprecedented emphasis on human rights, alongside gender, peace and security and inclusive development.8 Yet, there was little public discussion of the human rights dimension in Bonn, or at the General Assembly in Paris later that year. As with the sustainable development concept in general, policy openings may be used to contain a status quo, or they may provide opportunities for change. Future rights-related activities in relation to different mechanisms of the World Heritage system will reveal how such policy imperatives are being received and acted upon. The imprecise language about ‘community’ is a case in point and a cautionary tale. While there were clear rights motivations behind the decision to adopt a ‘5th C’ in 2007, implementation has remained flexible and inconsistent. A number of decisions in 2015 use ‘community’ in ways that implicitly suggest the recognition of rights issues, although the absence of substantive treatment has generally been the norm. A common specific mention of ‘community’ is the ‘international community’, underscoring the wide variability in the way that ‘community’ is applied.

Rights to heritage Our third dimension – ‘rights to heritage’ – reflects and responds to the growing discourse reframing cultural heritage as a component of cultural rights. From 2011, the UN’s Independent Expert in the Field of Cultural Rights has engaged directly in questions about the ways in which international human rights agreements and

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legal frameworks incorporate cultural heritage issues within collective and cultural rights (Shaheed 2011; Logan 2012). Aside from the importance of the provisions of UNDRIP discussed above, the International Covenant on Economic, Social and Cultural Rights includes the right to take part in cultural life; and the International Covenant on Civil and Political Rights (ICCPR) provides for the right to enjoy one’s own culture. Discussions with the Advisory Bodies and the World Heritage Centre concerning the application of cultural rights in World Heritage processes have focused on the tools needed to promote rights-based approaches, acknowledging that heritage practitioners are poorly informed about cultural rights and their implications (Sinding-Larsen 2012; Sinding-Larsen and Larsen 2017). As Logan (2012) has argued, there are many human rights potentially affected by World Heritage decisions, and different – or even clashing – perspectives and requirements.Whose heritage is at stake in World Heritage decisions, and whose voices are heard and acknowledged? The direct engagement of NGOs and rights advocates in the World Heritage system remains limited, despite their importance in alerting decision makers to rights issues. With some notable exceptions, NGOs have only just started to attend and speak during formal sessions.9 However, this remains highly constrained. In Bonn, the seating arrangements prevented easy access to the plenary room by Observers and the sequencing of interventions places statements from Observers after those of Committee Members and Members States, severely reducing their impact. For example, a short speech made by Indigenous Endoroi representatives was permitted only after the decision was adopted on the specific case concerning their rights to land (Decision 39COM 7B.5), whereas more efforts were made to ensure that each of the two States Parties concerned were heard. Yet in other ways, non-government Observers have reasonably free access to the event as a whole, including side events and working group meetings. This has allowed for informal follow-up discussions on the side-lines and lobbying outside the formal process. In our observations, the pre-meeting of World Heritage Watch was useful in helping to organise and rehearse civil society and rights-holders’ interventions.

Rights as heritage The category of ‘rights as heritage’ reflects the singularity of human rights as a particular historical, social and cultural project of heritage value itself, through people, politics or places. Rights are the subject of museum exhibitions and development (e.g., Canadian Museum for Human Rights) and are given specific attention as intangible cultural heritage. Rights also feature in the designation of heritage places (e.g., the recent action by former President Obama to designate a series of sites in Birmingham significant in the civil rights history of the United States).10 In the politics of heritage in post-apartheid South Africa, the emergence of rights as a heritage project reveals intimate ties to changing nation-state politics – and the global role of human rights. Since its transition to democracy, the South

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African heritage agency has been required to redress imbalances, leading to shifts from ‘old buildings’ to monuments associated with post-apartheid political transformations (Hart and Winter 2001; Meskell 2012). At the World Heritage Committee session in Bonn, South Africa hosted a side event in order to announce its work on the theme of liberation and reconciliation, focusing on the life of Nelson Mandela, seen as having the possibility to demonstrate Outstanding Universal Value (OUV) because of the triumph of humanity and human rights. The 13 ‘Human Rights, Liberation Struggle and Reconciliation: Nelson Mandela Legacy Sites’ were included on South Africa’s tentative list in 2015.11 Their OUV is proposed according to four World Heritage criteria, including criterion (iv):12 The serial site has tangible locations directly associated with extraordinary fights for freedom and human rights, ideas and works for universal justice, struggle for freedom and the new culture of political tolerance and reconciliation.13 In another example, the Jamaican delegation in Bonn celebrated the World Heritage inscription of the Blue and John Crow Mountains, a mixed property, which ‘offered refuge to Maroons (former enslaved peoples) and therefore preserves the tangible cultural heritage associated with the Maroon story’.14 A Maroon representative was present during the discussion of the nomination and its management plan, which aims ‘to establish and protect the Intellectual Property Rights of the Maroon people’ (Jamaica 2014). The plan, however, does not otherwise explicitly address complex questions of community, autonomy and rights.15 There is arguably a fine line between recognition of heritage places that can convey rights and social justice struggles in order to focus on the underlying inequalities and use the lessons of history to spark conscience16 and, conversely, the uses of such places to valorise national narratives within the international arena.Without judging the specifics here, ‘rights as heritage’ offers room for heritage politics from below as well as the hollowing out and legitimation from above through heritagisation of politics of the ‘winning side’.When do ‘rights as heritage’ serve as a reminder to challenge, or conversely legitimate, the status quo? When are both heritage and rights collapsed into mainstream politics? How are contested politics of culture, rights and representation (Cowan, Dembour and Wilson 2001) retained or erased under identity-based and state-driven heritage politics using rights language? From post-apartheid rights practice, the roles of the ANC and chieftainships (Meskell 2010) to questions of Maroon rights and autonomy in post-colonial Jamaica, there is considerable complexity involved in the implications of ‘rights as heritage’. These entail a different gaze, or at least a complementary gaze to the value narratives alone. Even where rights are at the centre of the World Heritage narratives, this does not rule out the relevance and importance of a transversal rights-gaze. On the contrary, it would arguably justify a rigorous examination and pro-active response to the possible rights and social justice implications involved.

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Showcasing struggle and rights, significant from a national and global perspective, may in this sense also connect to contemporary everyday rights issues.

Rights as social justice The fifth category concerns the use of rights language to voice social justice issues. Indeed, throughout history social justice has been framed in multiple ways, from redistribution to recognition (Fraser 1995). In the World Heritage context, social justice– driven rights language appears in relation to nominations, management systems, reviews of the state of conservation of existing World Heritage properties and the legacies arising from past processes that failed to sufficiently consider the rights of affected groups and individuals.17 The inter-mingling of rights and social justice is not new or specific to World Heritage; however, rights language has increasingly gained prominence in both global and national discourses (Cowan, Dembour and Wilson 2001). Similarly, there are those that propose a preference for the constructs and language of social justice (or ethics) to that of rights in working through heritage practices (cf. Meskell 2010). In our observations, ‘rights as social justice’ is the most common way in which rights concerns are raised in documents and discussions by the World Heritage Committee. These framings aim to raise specific social concerns through rights language. One of the most contentious matters considered during the 39th session concerned Japan’s nomination of Meiji period industrial heritage places from the midnineteenth to the early twentieth century, which was opposed by the Republic of Korea and China on the grounds of unresolved human rights claims.18 ICOMOS presented its recommendation to ‘inscribe’ the sites, and media reports describe an intensive period of inconclusive ‘shuttle diplomacy’ in the weeks prior to Bonn. Both Japan and the Republic of Korea were members of the World Heritage Committee in 2015.19 Once in Bonn, the Chairperson was actively involved in the continuing discussions behind the scenes. Despite a lack of discussion in the plenary room, advocacy by various countries was evident. Outside the building, there was a daily Korean protest with various slogans invoking rights claims and injustices.20 Rights claims were clearly expressed, along with the view that UNESCO should not allow the valorisation of places where human rights matters were unresolved or allow the avoidance of uncomfortable truths in the histories of these places. A side event on ‘World Heritage Sites of Conscience and their Value for the Future’ was hosted by the Korean Center for Historical Truth and Justice. The decision on Japan’s nomination was pushed further down the meeting agenda in order to allow diplomatic discussions to continue; eventually the sites were inscribed, with a recommendation (proposed by ICOMOS) that an interpretive strategy be developed which ‘allows an understanding of the full history of each site’ (UNESCO 2015d, 4 (g)). In our conversations with various participants, rights issues appeared ‘safer’ to discuss when cloaked in other language, as noted already. Indigenous peoples’ organisations, NGOs and the UN Permanent Forum on Indigenous Issues have nonetheless persisted with calls for the Committee to redress World Heritage– related injustices framed as rights violations.

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While the incorporation of ‘free prior and informed consent’ wording in the Operational Guidelines was a specific NGO priority in Bonn, its non-binding nature was criticised (Joint Statement 2015), and other Indigenous rights concerns that remain were highlighted. From a social justice perspective, rights involve more than formal listing. During a side event, Ovide Mercredi, former Chief of the Cree in Northern Manitoba (Canada), invoked the provisions of UNDRIP to challenge the weak incorporation of Indigenous worldviews in World Heritage processes, particularly in relation to the dominant Western notions of the divide between culture and nature. The recent nomination of Pimachiowin Aki (Canada) has particularly highlighted this issue, and has stimulated further work by the Advisory Bodies on mixed properties where these issues are particularly significant.21 It is therefore relevant that there are emerging discussions of ‘biocultural rights’ to recognise the rights of communities to use and care for the resources of lands and waters according to customary practices (cf. Bavikatte and Bennett 2015). In our discussions with participants, rights issues were generally recognised as important. However, these are generally discussed using less specific and more generic terms, such as via the ‘5th C’ – community – as discussed earlier. However, this has not necessarily led to a greater willingness to acknowledge rights issues, which are not always the same as generic ‘community’ interests. There are fewer regulatory imperatives around ‘community’ and ‘stakeholder’ language than there are for human rights; therefore it is not surprising that States Parties are often more willing to employ these more elastic forms of rhetoric than a more specific focused discussion of ‘rights’.

Rights of heritage We conclude our framework with a highly mediatised rights articulation: ‘rights of heritage’ is the right of humanity as a whole to heritage. In recent years, the destruction of cultural heritage has been framed as a human rights violation. From Security Council resolutions to International Criminal Court rulings, a range of recent decisions reveal unprecedented mobilisation of international institutions reacting to instances where cultural heritage (but especially World Heritage properties) have been deliberately destroyed. In Bonn, the Director-General of UNESCO relaunched a social media campaign, #Unite4Heritage, against the ‘deliberate damage of World Heritage’, and the World Heritage Committee adopted the ‘Bonn Declaration’. In #Unite4Heritage, the use of social media mechanisms to ‘stand up’ for the world’s cultural heritage was a counter response to the use of social media by the ‘Islamic State’ to publicise its actions: We see the intentional destruction of irreplaceable landmarks, the systematic persecution of people on the basis of their ethnic and religious identities, the looting of cultural objects to finance extremist groups, and shocking violations of human rights, including cultural rights.22

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First launched in Baghdad a few months earlier, the campaign had a clear Arab region focus, and was not about the rampant everyday heritage damage caused by ‘normal’ development (see Lilley 2016).While such destruction is arguably far more common and extensive, the campaign emphasised and condemned extremism and attacks against humanity. The Bonn Declaration also acknowledged this. ‘Deeply shocked by repeated attacks, destructions and violence perpetrated by ISIL/Daesh and other extremist groups’, the Declaration called for ‘countering the propaganda of hatred’ and ‘rallying the international community and actors from the cultural, humanitarian, security and other relevant sectors’.23 We see this as a significant shift of scale – from a heritage issue, to one that aligns it with global peace and security concerns. ‘An attack on cultural heritage in one part of the world is an attack on us all, on all humanity,’ said Ban Ki-Moon at Harvard.24 The Special Rapporteur on Cultural Rights has specifically stated that: ‘The destruction of cultural heritage is a violation of human rights’ and, among other things, has called for the protection of cultural heritage defenders in language similar to calls for the protection of human rights defenders.25 These statements convey a sense of universality, just as when in 2012 the UN Secretary General spoke in front of the Security Council of the ‘part of the indivisible heritage of humanity’ being destroyed (ICC 2013). Protection and prohibition of damage are linked to the heritage of humanity as such, rather than referring to the rights of a specific rights-holder or community. This cosmopolitan notion of humanity, of a common heritage being destroyed, was equally present in cases such as the tomb destruction in Timbuktu to mobilise international attention (Bevan 2016). From Security Council Resolution 2199 to the International Court of Justice, certain forms of heritage destruction are considered war crimes, human rights violations and cultural warfare (Bennoune 2016). The desire and determination of UNESCO to respond to the destruction of World Heritage properties was expected and unsurprising, as was the rhetoric that invokes universalising notions of the heritage of humankind. However, the connection of these ideas to human rights is notable, as is the distinction drawn between these acts of heritage destruction from others at the local level where cultural rights might be more easily discerned. Indeed, many such ‘destructions’ are routinely initiated, even sanctioned, by States Parties, in order to allow space for infrastructure, urban renewal or mineral extraction – all made possible through the approvals mechanisms in formal legal systems for heritage protection. The attention to rights to heritage within these heritage and development processes varies considerably, and does not invoke international concern to a comparable degree.

Analysis: what shapes World Heritage Committee framing on rights? World Heritage Committee decisions relate to rights in different ways, prompting questions about how nominations and state of conservation reports are framed.The decision on the Air and Teneré Natural Reserves (Niger) speaks of reinvigorating

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land commissions to clarify ‘rights of land use and access to resources’;26 for the Belize Barrier Reef Reserve System, the decision requested the State Party to establish ‘a legal instrument that would guarantee permanent cessation of the sale and lease of lands throughout the property and a clear definition and strict control of development rights on existing private and leased lands’.27 For the Lakes of Ounianga (Chad), the World Heritage Committee congratulated the State Party for ensuring participation, respect of local knowledge and rights to maintain sustainable traditional use of resources (Decision 39 COM 7B.3); and for the Kenya Lake System in the Great Rift Valley, the State Party was strongly urged to ‘fully implement the African Commission on Human and Peoples’ Rights (ACHPR) Endorois decision and Resolution 197 without delay to ensure the full and effective participation of the Endorois in the management and decision-making of Lake Bogoria’ (Decision 39 COM 7B.5). This decision was a response to a resolution by the ACHPR on Endoroi rights issues which had been ignored when listing the site in 2011 (Disko and Tugendhat 2014, 29). As noted earlier, in the case of the Kaeng Krachan Forest Complex (Thailand), the State Party was requested to implement ‘a participatory process to resolve rights and livelihoods concerns and to reach the widest possible support of local communities, governmental, non-governmental and private organisations and other stakeholders for the nomination’;28 and in approving the boundary modification to the Lena Pillars Park (Russian Federation), the State Party was requested to ensure ‘continued recognition and respect of traditional rights’.29 Commenting on a proposed hydropower project, the Committee urged Panama to ensure that ‘Free, Prior and Informed Consent with Indigenous communities’ was achieved;30 and the Australian Government was encouraged to undertake further study and consultation with the Tasmanian Aboriginal community in future management planning for the Tasmanian Wilderness.31 Many other decisions urged, required or encouraged community engagement,32 and a number of adopted or provisional Statements of Outstanding Universal Value explicitly recognise community associations and contributions to the systems of protection and management.33 These examples illustrate how approaches and recommendations differ, reflecting varying site needs and opportunities, but also a standards framework in the making. However, it is also evident that statements that directly refer to rights issues occur in only a minority of cases. In examples such as the ruling by the African Commission on Human and Peoples’ Rights on the Endorois, NGOs played an important role in conveying such information to the World Heritage Committee, the World Heritage Centre and the Advisory Bodies. The importance of civil society in general found its way into the discussions in various ways. For example, in the lengthy set of interventions about the state of conservation of the Great Barrier Reef (Australia), several delegations mentioned the importance of civil society in helping the government to properly recognise the issues and to contribute to the improved circumstances.The essential point is that unless civil society or Indigenous representatives can raise rights concerns, they are unlikely to be spotted and identified by the World Heritage system.

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Unpacking the diverse, inconsistent and uneven treatment of rights issues in the World Heritage Committee raises several questions regarding processes of identifying rights issues and, equally so, the consistency of standards. Thus in the Thai case described above, we saw how the attention of civil society organisations and UN bodies supported IUCN, and ultimately the Committee, to call for rights issues to be addressed before World Heritage inscription could be finalised. However, in contrast, the case of Phong Nha Ke Bang National Park (Vietnam), while sharing similar rights issues in relation to its ethnic minorities (see Chapter 10, this volume), passed unnoticed by the World Heritage Committee.34 Where (i.e., for which sites and countries) and how human rights were raised and articulated in the World Heritage Committee meeting was largely dependent on the inputs of the Advisory Bodies and civil society organisations rather than State Party and Committee initiatives. Paradoxically, as a result, countries doing the most and having longer traditions of dealing with rights may receive more World Heritage Committee attention than countries with no common practice and no written or official rights track record. There are currently few formal requirements or guidance materials for systematic rights-based approaches, despite the huge implications at stake. While recent uses of rights language offer some hope, these stand in contrast to the systemic practice characterised by piecemeal and ad hoc treatment. Given the lack of explicit formal requirements, benchmarks and performance criteria, the lack of systematic State Party action is unsurprising. One NGO observer noted that although human rights is a founding principle for the UN system as a whole, it is often overridden by questions of state sovereignty. Furthermore, the World Heritage Committee may be reluctant to criticise State Party performance in relation to policy standards on rights. To what extent such concerns will impede comprehensive approaches to rights in World Heritage will have to be carefully addressed.What is clear is that rights are not merely shaped by timid inter-governmental decision making, but equally by multiple other framings and discourses. Some are pushed for by civil servants, others by civil society or specific States Parties. Each framing has different implications and requires expert attention. Current efforts to incorporate consideration of rights in guidance materials for the preparation of nominations and conducting evaluations are yet to be formally consolidated, contributing to the uneven ways that rights issues are dealt with. In the medium term, crafting complementary institutional measures that reflect the new normative framework is likely to receive priority. The growing enthusiasm for the ‘upstream’ approaches might also enable rights issues to be identified jointly by the Advisory Bodies and States Parties at early (and less diplomatically sensitive) points in the processes of nominating properties to the World Heritage List. The effort needed to access, let alone influence, decisions taken by the World Heritage Committee is enormous and particularly difficult for actors in the global South. Some community representatives have the necessary institutional backing to do this, including those whose direct participation is supported by national authorities (e.g., the First Nations representatives associated with the Canadian nomination

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of Pimachiowin Aki). However, this is not possible for many others. Access to World Heritage Committee procedures has improved since 2011 through the live streaming of Committee sessions and open internet access to Committee documents. However, the seemingly straightforward request in the 2012 ‘Call to Action’ for nomination dossiers to be made available on the World Heritage Centre’s website as soon as they are accepted for evaluation so that Indigenous communities and other rights-holders can be alerted to proposals in their traditional territories continues to be resisted; it was not adopted in 2015 (Joint Statement 2015). The UNESCO funding crisis limits the capacities of the Secretariat (UNESCO’s World Heritage Centre). At Bonn, IUCN and several States Parties remarked on the lack of natural heritage specialists in the World Heritage Centre due to the budget constraints. Such cuts in core capacity fields raise fundamental questions about the ability to incorporate cultural diversity and rights into the work of the World Heritage system, or to strongly lead the development of new materials and processes. At the same time, this situation also opens the possibility for the Advisory Bodies, individual States Parties and civil society organisations to take new leadership roles.

Concluding remarks Understanding rights practices in World Heritage needs to be examined on different scales – including individual locations, national institutions and international exchanges. This chapter demonstrates the importance of including the World Heritage Committee itself in these studies, and the benefits of ethnography to deepen contextual understandings. We have proposed a typology to discuss how rights concerns are currently being perceived, articulated and institutionally addressed based on our involvement, observation and interactions with various actors in the World Heritage Committee. This offers, we hope, a complementary perspective to standard policy language on mainstreaming human rights. Rights language is increasingly appearing in the World Heritage Committee context, yet overall is fragmented in terms of where, when, for whom and what rights issues are identified and how they are being addressed institutionally. There is a growing body of national experiences and approaches spearheading work on rights in the World Heritage context.We argue that these cover terrains of both conflict and resolution, but that there is not currently enough space and attention in the World Heritage Committee’s deliberations. While mentions of rights are slowly increasing, formal constraints and reticence to fully embark on a human rights-based approach to both new nominations and significant legacy issues should not be underestimated. More policy attention is needed, not least in terms of rendering the World Heritage Committee space and decision making process more inclusive. Because tensions may run deep, and singlesite cases can shape and undermine the processes, careful attention to implementation mechanisms and procedures is needed. It is abundantly clear that the international mechanisms for World Heritage – from evaluation of nominations to World Heritage Committee programmes – are

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and will remain under-funded, imperfect and ultimately incapable of fully capturing the complexity of rights issues that can arise. From this perspective, there is a clear need to design mechanisms that ensure State Party action and facilitate civil society engagement. We are now at a unique moment, where these different building blocks have come together under the banner of implementing the Sustainable Development policy framework for World Heritage. Building on our growing understanding of multiple rights articulations, an implementation approach that mobilises systematic State Party attention and Committee review of past, present and future rights responses is now an urgent priority.

Notes 1 Fieldwork formed part of the wider research project ‘Understanding Rights Practices in the World Heritage System: Lessons from the Asia Pacific and the global arena’ and was generously financed by the Swiss Network for International Studies. 2 The ‘5th C’ was proposed by New Zealand, the host country, in 2007 (Decision WHC07/31.COM/13B). 3 Discussion of the Kaeng Krachan Forest Complex, http://whc.unesco.org/en/ sessions/39com/records/ (3 July 2015 – 09:30). 4 http://www.world-heritage-watch.org/index.php/en/. 5 According to the List of Participants dated 7 July, 2015 (WHC-15/39.COM.INF.2). 6 In 2015, see Decision 39COM.7A.27; to access the long list of annual decisions taken, see http://whc.unesco.org/en/list/148/documents/. 7 There is a common conflation of rights-based approaches generally, and Indigenous rights. This can be explained in part by the fact that Indigenous constituencies have been the main actors voicing social justice issues in the World Heritage context. Paradoxically, while collective Indigenous rights such as the right to FPIC remain contested in the international field, they are further advanced in the World Heritage operational guidance compared to the recognition of general human rights. 8 WHC-15/20.GA/INF.13 (draft policy). 9 World Heritage Watch, established in St Petersburg by environmental NGOs in 2012, met for the second time in Bonn, but with an impressive expansion of the range of issues and voices represented. Numerous rights issues were raised and debated. We attended the World Heritage Watch sessions that occurred prior to the commencement of the Committee session, and it was clear that many NGOs lack experience of the Committee’s working methods and Operational Guidelines to know how best to influence the outcomes. Having the opportunity to meet before the session and to ‘rehearse’ the interventions that would be made later seemed to be very beneficial, even though the speeches did not always have an immediate observable reaction from the meeting’s floor. 10 www.npca.org/articles/1442-birmingham-civil-rights-national-monument-will-preserve-pivotal-civil?utm_source=facebook&utm_campaign=pressrelease&utm_mediu m=socialmedia#sm.000165jcqu79ueqs1070l02oew9cd. 11 South Africa’s Tentative List is available at: http://whc.unesco.org/en/statesparties/za. 12 Criteria for the World Heritage List are available at: http://whc.unesco.org/en/ criteria/. 13 http://whc.unesco.org/en/tentativelists/6051/. 14 http://whc.unesco.org/en/list/1356. 15 www.culturalsurvival.org/publications/cultural-survival-quarterly/jamaica/ maroon-autonomy-jamaica. 16 http://www.sitesofconscience.org/approach/.

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17 18 19 20

21 22 23 24 25 26 27 28 29 30 31 32 33

While it might be assumed that these legacies relate to older cases, even very recent decisions have caused issues to arise through insufficient participation and consent processes. Sites of Japan’s Meiji Industrial Revolution: Iron and Steel, Shipbuilding and Coal Mining: http://whc.unesco.org/en/list/1484. China was an Observer State at the meeting. Observer States can also take the floor during discussions. Printed materials were also distributed, titled: ‘Stolen Country, Abducted People: The History of Japan’s Annexation of Korea and Korea’s Compulsory Mobilization’; ‘We Want to Know the Full History of Sites of Japan’s Meiji Industrial Revolution: Kyushu-Yamaguchi and Related Areas’; ‘Historical Truth in Danger! We Want Full History to be Reflected’; ‘Is it Right to Inscribe Sites of Japan’s Meiji Industrial Revolution on UNESCO World Heritage List?’; ‘Wake Up! UNESCO; Wake Up! World; Wake up! Mankind’; ‘We Oppose Japan’s Bid for World Heritage Status for Its Forced Labor Sites’. Although this nomination was supported for inscription by both IUCN and ICOMOS in 2016, this has not yet occurred because of the need for additional time for decision making by First Nations. http://www.unesco.org/new/en/cairo/culture/unite4heritage/ (accessed January 6, 2016). The Bonn Declaration and the #unite4heritage launch text can be found at http:// whc.unesco.org/en/news/1303 (accessed 10 January 2017). http://news.yale.edu/2016/04/13/protect-cultural-heritage-and-environment-andrespect-differences-urges-un-secretary-gene. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17151& LangID=E#sthash.E65O31ZP.dpuf. Decision 39 COM 7A.12. Decision 39 COM 7A.18. Decision 39 COM 8B.5. Decision 39 COM 8B.40. Decision 39 COM 7B.28. Decision 39 COM 7B.35. For example: 39 COM 7B.17 (Dong Phayayen-Khao Yai Forest Complex,Thailand); 39 COM 7B.40 (Lamu Old Town, Kenya); 39 COM 7B.59 and 60 (Sana’a and Shibam in Yemen); 39 COM 7B.68 (Vat Phou Cultural Landscape, Lao PDR). For example: Rock Art in the Hail Region, Saudi Arabia (39 COM 8B.11); Baekje Historic Areas, Republic of Korea (39 COM 8B.16); Cultural Landscape of Maymand, Iran (39 COM 8B.18); Christiansfeld Moravian Church Settlement, Denmark (39 COM 8B.20); Climats, Terroirs of Burgundy, France (39 COM 8B.23); Forth Bridge, United Kingdom (39 COM 8B.33); Fray Bentos Industrial Landscape, Uruguay (39 COM 8B.39).

References and further reading Bavikatte, Kabir Sanjay and Tom Bennett. 2015. “Community Stewardship: The Foundation of Biocultural Rights.” Journal of Human Rights and the Environment 6 (1): 7–29. Bennoune, Karima. 2016. Report of the Special Rapporteur in the Field of Cultural Rights, A/HRC/31/59. Human Rights Council,Thirty-first Session, Agenda Item 3, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Bertacchini, Enrico, Claudia Liuzza and Lynn Meskell. 2015. “Shifting the Balance of Power in the UNESCO World Heritage Committee: An Empirical Assessment.” International Journal of Cultural Policy 23 (3): 1–21.

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Bertacchini, Ernesto, Claudia Liuzza, Lynn Meskell and Donatella Saccone. 2016. “The Politicization of UNESCO World Heritage Decision Making.” Public Choice 167 (1): 95–129. Bevan, Robert. 2016. “Attacks on Culture Can Be Crimes against Humanity,” The Art Newspaper, October: 59. Brosius, Peter and Lisa Campbell. 2010. “Collaborative Event Ethnography: Conservation and Development Trade-offs at the Fourth World Conservation Congress.” Conservation and Society 8 (4): 245–255. Brumann, Christoph. 2012. “Multilateral Ethnography: Entering the World Heritage Arena.” Max Planck Institute for Social Anthropology Working Papers (No. 136). www.eth.mpg. de/pubs/wps/pdf/mpi-eth-working-paper-0136. Brumann, Christoph. 2014. “Heritage Agnosticism: A Third Path for the Study of Cultural Heritage.” Social Anthropology 22 (2): 173–188. Brumann, Christoph and David Berliner, eds. 2016. World Heritage on the Ground: Ethnographic Perspectives. New York: Berghahn Books. Cameron, Christina and Mechtild Rössler. 2012. “World Heritage and Indigenous Peoples: Evolution of an Important Relationship.” World Heritage Review 62: 46–51. Coombe, Rosemary J. 2010. “Honing a Critical Cultural Study of Human Rights.” Communication and Critical/Cultural Studies 7 (3): 230–246. Cowan, Jane K., Marie Benedict Dembour and Richard Wilson, eds. 2001. Culture and Rights. Cambridge: Cambridge University Press. Dembour, Marie Benedict. 2010. “What are Human Rights? Four Schools of Thought.” Human Rights Quarterly 32 (1):1–20. Disko, Stefan and Helen Tugendhat. 2013. “Report on the International Expert Workshop on the World Heritage Convention and Indigenous Peoples, 20–21 September 2012 – Copenhagen, Denmark.” Copenhagen: IWGIA. Disko, Stefan and Helen Tugendhat. 2014. World Heritage Sites and Indigenous Peoples’ Rights. Copenhagen: IWGIA. Endorois Welfare Council, Saami Council & International Work Group for Indigenous Affairs (IWGIA). 2015. “Joint Statement on the Continued Lack of Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage in the Context of UNESCO’s World Heritage Convention.” Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples, 8th session, 20–24 July 2015. Fraser, Nancy. 1995. “From Redistribution to Recognition? Dilemmas of Justice in a ‘PostSocialist’ Age.” New Left Review 1 (212): 68–93. Hart, David and Sarah Winter. 2001. “The Politics of Remembrance in the New South Africa.” In Archaeologies of the Contemporary Past, edited by Victor von Buchli and Gavin Lucas, 84–93. London: Routledge. ICC (International Criminal Court). 2013. Situation in Mali: Article 53(1) Report. The Office of the Prosecutor. Jamaica. 2014. “Jamaica’s Nomination of the Cultural and Natural Heritage of the Blue and John Crow Mountains for Inscription on the World Heritage List.” http://whc.unesco. org/uploads/nominations/1356rev.pdf. James, Luke and Tim Winter. 2017. “Expertise and the Making of World Heritage Policy”. International Journal of Cultural Policy 23 (1): 36–51. Larsen, Peter Bille. 2012a. “Advisory Body Evaluations of World Heritage Nominations in Relation to Community and Rights Concerns. Independent Assessment.” Discussion Paper. IUCN, ICOMOS Norway and ICCROM. Larsen, Peter Bille. 2012b. “IUCN, World Heritage and Evaluation Processes Related to Communities and Rights: An Independent Review.” Gland, Switzerland: IUCN World Heritage Programme.

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Lilley, Ian. 2016. “Friday Essay:War Crimes and the Many Threats to Cultural Heritage.” The Conversation (Australia). https://theconversation.com/friday-essay-war-crimes-and-themany-threats-to-cultural-heritage-65957. Logan, William. 2012. “Cultural Diversity, Cultural Heritage and Human Rights: Towards Heritage Management as Human Rights-Based Cultural Practice.” International Journal of Heritage Studies 18 (3): 231–244. Meskell, Lynn. 2010. “Human Rights and Heritage Ethics.” Anthropological Quarterly 83 (4): 839–859. Meskell, Lynn. 2012. The Nature of Heritage:The New South Africa. Oxford: Wiley-Blackwell. Meskell, Lynn. 2013. “UNESCO and the Fate of the World Heritage Indigenous Peoples Council of Experts (WHIPCOE).” International Journal of Cultural Property 20 (2): 155–74. Meskell, Lynn and Christoph Brumann. 2015. “UNESCO and New World Orders.” In Global Heritage: A Reader edited by Lynn Meskell, 22–42. Chichester, West Sussex: Wiley Blackwell. Meskell, Lynn, Claudia Liuzza, Ernesto Bertacchini and Donatella Saccone. 2014. “Multilateralism and UNESCO World Heritage: Decision-Making, States Parties and Political Processes.” International Journal of Heritage Studies 21 (5): 423–40. Müller, Birgit. ed. 2013. Gloss of Harmony: The Politics of Policy-Making in Multilateral Organisations. London: Pluto Press. Oviedo, Gonzalo and Tatjana Puschkarsky. 2012. “World Heritage and Rights-Based Approaches to Nature Conservation, IUCN.” International Journal of Heritage Studies 18 (3): 285–296. Sinding-Larsen, Amund. 2012. “Our Common Dignity: Rights-Based Approaches to Heritage Management.” World Heritage Review 62: 58–60. Sinding-Larsen, Amund and Peter Bille Larsen, eds. 2017. Taking Stock and Looking Forward (Advisory Body Activities between 2011 and 2016), An Advisory Body Report. Edited by IUCN, ICOMOS and ICCROM. Oslo: ICOMOS Norway. Shaheed, F. (2011). “Report of the Independent Expert in the Field of Cultural Rights.” S. S. Human Rights Council, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/17/38. Geneva. UNDRIP. 2007. “The United Nations Declaration on the Rights of Indigenous Peoples.” UNESCO 2015a. World Heritage Committee Thirty-ninth Session, Bonn, Germany. Item 19: Decisions Adopted by the World Heritage Committee at Its 39th session (Bonn, 2015). WHC-15/39.COM/19. http://whc.unesco.org/archive/2015/whc15-39com19-en.pdf. UNESCO 2015b. World Heritage Committee Thirty-ninth Session, Bonn, Germany. Item 19: Annex 1. Annex to Decision WHC-15/39.COM/11 Revision of the Operational Guidelines (showing marked up changes adopted). http://whc.unesco.org/ archive/2015/39com-11-Annex1-20150707-opguide15-en.pdf. UNESCO 2015c. World Heritage Committee Thirty-ninth Session, Bonn, Germany. Item 5D of the Provisional Agenda: World Heritage and Sustainable Development. WHC15/39.COM/5D. http://whc.unesco.org/archive/2015/whc15-39com-5D-en.pdf. UNESCO 2015d. World Heritage Committee Thirty-ninth Session, Bonn, Germany. Decision 39.COM.8B.14 Sites of Japan’s Meiji Industrial Revolution: Iron and Steel, Shipbuilding and Coal Mining (Japan). http://whc.unesco.org/en/decisions/6364. Waterton, Emma and Laurajane Smith. 2010. “The Recognition and Misrecognition of Community Heritage.” International Journal of Heritage Studies, 16 (1–2): 4–15.

3 WORLD HERITAGE AND HUMAN RIGHTS IN AUSTRALIA From K’gari/Fraser Island to national processes1 Ian Lilley, Kristal Buckley and Helena Kajlich

Introduction Australia ratified the World Heritage Convention in 1974 and has been an active participant ever since, including four terms of service on the World Heritage Committee. Within the World Heritage system, Australia is known for its relatively high number of natural properties (12), and for its four ‘mixed’ properties that have successfully demonstrated both cultural and natural heritage values that meet the requirements of ‘Outstanding Universal Value’. Each of these ‘mixed’ properties recognises the co-existence and inter-relationships between natural values and the long human history of the continent and its living Indigenous cultures. Outside of these four ‘mixed’ sites, the majority of World Heritage sites in Australia are listed exclusively for their natural values and do not specifically recognise Indigenous cultural values. There are also three cultural properties dating from the colonial and later historical periods, including the Sydney Opera House, which dates to the 1970s. Against that backdrop, this chapter reviews Australian intersections of human rights and World Heritage as a contribution to understanding the diversity of contexts, issues and possibilities within the Asia–Pacific region. To do that, we briefly describe the national context, and then focus on the case of Fraser Island, or K’gari as it is known to its Aboriginal Traditional Owners, the Butchulla people (Figure 3.1).2 The interests of Indigenous people are taken into account in the island’s management system, even though the 1992 World Heritage listing of the property recognises its natural values only.3 The cultural heritage of the Butchulla people on K’gari was recognised by the Queensland and Federal Governments at the time of nomination, but was not considered significant enough to be recognised under the cultural criteria for listing under the World Heritage Convention (IUCN 1992).

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FIGURE 3.1

Map of K’gari/Fraser Island (Nguyen Huu Duy Vien).

The IUCN evaluation of the nomination of K’gari as a World Heritage site also noted that the Butchulla people’s position on the nomination was unclear and that they had expressed concern about the consultation process (IUCN 1992, 21). Until 2015, the Operational Guidelines for the Implementation of the World Heritage Convention did not require States Parties to obtain Indigenous peoples’ consent or require that Indigenous peoples be consulted in the nomination process. K’gari is being considered as one of the case studies in this Asia–Pacific research programme funded by the Swiss Network for International Studies (SNIS), but it is also a case study for a larger ongoing Australian research project on the costs and benefits of World Heritage to Indigenous peoples, funded by the Australian Research Council (ARC).4

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In 2014, the Butchulla people had Native Title recognised over their traditional lands through a consent determination (Butchulla People #2 v State of Queensland [2014] QUD287/2009). A consent determination is a negotiated outcome finalised by the courts, as opposed to a litigated matter. This decision recognised for the first time that the Butchulla people have unique rights in relation to K’gari that derive from their traditional laws and customs. Qualitative research has been undertaken to reflect on the perspectives of members of the Indigenous and non-Indigenous communities, practitioners and policymakers, NGOs, and site managers associated with K’gari. Results clearly demonstrate that while Aboriginal people are closely connected with the island, and play minor roles in its day-to-day management as a national park, they are nevertheless disconnected from the World Heritage dimensions of the place. This is despite there being until recently a formal World Heritage Indigenous Advisory Committee as part of the management system.5 This condition of disconnection from World Heritage is linked with feelings of disenfranchisement with respect to the park’s management among those local Indigenous people who are aware of World Heritage issues. The park’s managers are conscious of this situation and are sincerely concerned that it impedes effective consideration of Indigenous values and rights in the World Heritage property.With the recent determination of Native Title over the World Heritage area, Traditional Owners, non-Indigenous managers and Queensland Parks and Wildlife Services staff have begun to redefine their post– Native Title relationship to better understand how the Butchulla people’s rights coexist with World Heritage values. This offers an opportunity to critically examine the policies surrounding the management of K’gari and their intersection with the Butchulla people’s rights.

Australia and K’gari/Fraser Island Within the Asia–Pacific regional focus of this book, Australia provides a case study which can both challenge and complement the others when examining questions of human rights in World Heritage. In many ways, Australian heritage policy and practice – especially regarding Indigenous heritage and World Heritage – is regarded as leading edge. Along with Tongariro (New Zealand), the mixed World Heritage property of Uluṟu-Kata Tjuṯa, for example, has been described as a ‘groundbreaking case’ which was ‘an interesting precedent for the recognition of the rights of local communities’ (Jokilehto 2012, 228). Initially inscribed under natural criteria, in 1994 Uluṟu-Kata Tjuṯa was re-inscribed according to cultural criteria, to take advantage of the then newly devised associative cultural landscape category, ‘recognizing the belief system of one of the oldest human societies in the world, the traditional owners of Uluṟu-Kata Tjuṯa, the Aṉangu Aboriginal people’ (UNESCO 2016a). Australia provides an opportunity to choose a case study from a range of different management models enacted within a single national jurisdiction K’gari/Fraser Island is the Australian World Heritage area described here because there is a strong

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human rights dimension to continuing questions about how Indigenous values can be managed on the island. Like the majority of Australia’s World Heritage properties, Fraser Island was nominated as a natural property, and so cultural values and rights were not recognised in the World Heritage inscription itself. However, the management system presents a more complex and interesting picture. The governance structures included a separate Indigenous Advisory Committee (IAC) until very recently, as well as a Scientific Advisory Committee (SAC) and a Community Advisory Committee (CAC). Though now combined with the CAC, the IAC is augmented by a new body (Prescribed Body Corporate or PBC), described below. Indigenous involvement of this sort implicitly recognises the rights of Aboriginal Traditional Owners to be involved in site management. Yet while there is a longstanding proposal to extend the boundaries of the property (UNESCO 2010), there are no moves to seek explicit recognition of the cultural values by nominating them, or to work towards a model of joint management, as has occurred for UluṟuKata Tjuṯa. This makes Fraser Island an ideal location to study the factors that may be preventing or enhancing the implementation of rights-based approaches in the World Heritage system.

Heritage protection in Australia The Australian continent is the same size as greater Europe, including the United Kingdom and Scandinavia, or the Lower 48 United States, but has a population of only 24 million people. Some 2–3% of Australians identify as Indigenous – that is, Aboriginal or Torres Strait Islander people. Although most Indigenous Australians live in towns and cities on the east coast, they make up a significant proportion of the sparse population spread through rural and remote regions, especially across the north of the continent. In many ways, Australia is very similar socially, economically and politically to other major Anglophone settler nations such as the USA, Canada and New Zealand, although there are differences amongst these countries that affect approaches to heritage management as well as Indigenous rights (Lilley 2000). Elsewhere in this volume, Boer and Gruber discuss the legal framework for heritage management across the country. Suffice to note here that under the Australian Constitution, the federal Commonwealth government retains certain powers, such as defence and foreign affairs, but in addition to matters such as health and education, the states are responsible for land use and planning. State responsibilities therefore typically include heritage management, except on Commonwealth land or where other constitutional powers are relevant, such as those that apply to Indigenous peoples, and external treaties, including the World Heritage Convention (see also Boer and Wiffen 2006). Influenced in part by the Australia ICOMOS Burra Charter from the late 1970s6 and more recently by the historic ‘Mabo Decision’ of the Australian High Court in 1992, most Australian jurisdictions have developed policies and procedures that prioritise community engagement and the valorisation of social value in

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heritage decisions, especially for Indigenous heritage (Byrne et al. 2003).The ‘Mabo Decision’ recognised that traditional or customary Indigenous title to land was not nullified with British colonisation but could, under certain circumstances, remain valid (Kirby 1994). Recognition of Native Title gives Indigenous rights-holders a say in land-use decisions, including the management of heritage. In Queensland, the state in which K’gari is located, this has resulted in the state giving significant decision-making powers to Indigenous communities. The Greater Sandy Region Management Plan (GSRMP) is the policy framework currently informing the management of K’gari and the surrounding region. The GSRMP is currently under review as part of the Queensland Government’s proposal to extend the K’gari World Heritage area to include Cooloola, Great Sandy Strait, Wide Bay Military Reserve and Breaksea Spit (Queensland Government Department of Environment and Heritage Protection 2016). Within the policy, there are strong statements recognising the rights of Traditional Owners in relation to their cultural heritage. For example, the GSRMP recognises the right of Traditional Owners to ‘control information and interpretation relating to their heritage’ and also sets out the Queensland Government’s commitment to develop ‘a detailed inventory of known Indigenous heritage sites, both traditional and contemporary … prepared in consultation with Traditional Owners in the Region’ (Queensland Government Department of National Parks, Recreation, Sport and Racing 2005, 40). Until very recently, the Butchulla have been involved through the IAC in developing signage around K’gari, particularly at high-use sites of cultural significance to Traditional Owners. There is also work underway to compile a more complete cultural heritage database on K’gari. For the Butchulla, there are both tangible and intangible features throughout the landscape, including middens, stone tools, scarred trees, fish traps, birthing, initiation, meeting, storytelling and death (Brown et al. 2015, 163). Some of the Butchulla interviewed expressed concern that cultural sites continue to be threatened by the significant number of tourists visiting K’gari each year.7 The risk of harm to cultural sites is particularly critical as there are specific legal obligations in Queensland that arise in relation to Indigenous cultural heritage under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). This law creates a duty of care, requiring those conducting activities to take all reasonable and practicable measures to avoid harming Indigenous cultural heritage (s23 ACHA). Of concern, however, is that cultural heritage in Queensland is not characterised in terms of broader Indigenous cultural rights. While the GSRMP explicitly recognises the Butchulla’s ‘custodial obligations’ to promote and practice cultural heritage, and cultural heritage legislation focuses on avoidance of harm to sites and objects of significance, it seems that the broader ‘rights’ discussions in Australia centre mostly on Indigenous land rights and Native Title. This focus may shift, as some Australian states have already adopted human rights legislation. The Queensland State Government has recently committed to introducing a Human Rights Act in 2017 modelled on the Victorian Government’s Charter of Human Rights and

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Responsibilities Act 2006 (Vic) (Elks 2016). The Victorian Charter explicitly recognises Aboriginal people’s ‘cultural rights’, including their right to ‘enjoy their identity and culture’ (s19(2) Victorian Charter). In addition to the foregoing, the Burra Charter (Australia ICOMOS 2013a) and a recently formulated set of Burra Charter Practice Notes provide heritage practitioners with globally oriented best-practice standards for managing Indigenous and non-Indigenous cultural heritage places across the nation.The Practice Notes provide advice on various issues to help clarify how practitioners might best proceed in an increasingly complex field, and they cover general methodological points such as the assessment of cultural significance and development of conservation policies. There is also one Practice Note specifically developed on the topic of ‘Indigenous Cultural Heritage Management’ (Australia ICOMOS 2013b). Earlier, specific cases where conflicting heritage values had been difficult to resolve led to the development by Australia ICOMOS of its Code on the Ethics of Co-Existing Cultural Perspectives (Australia ICOMOS 1998); and in 2001, the ‘Australia ICOMOS Statement on Indigenous Cultural Heritage’ was adopted to explicitly acknowledge the cultural rights of Indigenous peoples.

World Heritage in Australia In late 2016, National Geographic calculated that Australia had by far the world’s largest extent of territorial lands and waters classified as protected areas, including its 19 World Heritage properties (Nowakowski 2016). Twelve of these World Heritage properties are natural sites (including K’gari), and four are mixed sites that are inscribed for their Indigenous cultural heritage values in addition to their natural heritage attributes. Despite this, only one case – Uluṟu-Kata Tjuṯa – explicitly recognises the living Indigenous cultural heritage values. As noted earlier, Boer and Gruber detail the legal dimensions of Australia’s World Heritage framework elsewhere in this volume. In summary, the Federal Government’s Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) underpins the implementation of the World Heritage Convention in Australia. The EPBC Act recognises the role of Indigenous peoples in the management of Australia’s biodiversity and the importance of their cultural knowledge of biodiversity and, to this end, there is an Indigenous Advisory Committee supporting its implementation. In addition, there is an Australian World Heritage Indigenous Network (AWHIN), although its history has been dogged by inconsistent government support and it has only functioned on an intermittent basis. The Australian Heritage Council (AHC) was established in 2003 as the national government’s independent expert advisory body on heritage issues. As well as a chair with a heritage background, there are two members qualified in natural heritage, two in historic heritage and two who must be Indigenous people with expertise in Indigenous heritage, at least one of whom must represent the concerns and interests of Aboriginal and Torres Strait Islander people (AHC 2016).

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The relationship between the Commonwealth and the state and territory governments regarding World Heritage is articulated in the Australia World Heritage Intergovernmental Agreement (2009).The Commonwealth and state and territory governments are advised by an expert forum known as the Australian World Heritage Advisory Committee (AWHAC), established in 2008. It is composed of a representative from each Australian World Heritage property and two Indigenous Australians who are also co-chairs of AWHIN (see Australian Government Department of the Environment and Energy 2016). The 2011 Australian State of the Environment Report found that while Australia’s heritage management continues to be recognised internationally, nevertheless ‘Indigenous heritage in Australia is inadequately documented and protected, and incremental destruction continues’, and that, in general, the ‘outlook for Australia’s heritage will depend on government leadership’ (Australian State of the Environment Committee 2011, 78).8 In response, the Commonwealth government released the national Australian Heritage Strategy in late 2015. It pledges to ‘continue to support Australia’s iconic World Heritage properties’ as well as acknowledging that ‘[Indigenous] traditional owner engagement is … critical to the [World Heritage] listing process’ (Commonwealth of Australia 2015, 19). It also points out that ‘the [Australian] Productivity Commission found that reinforcement and preservation of living culture has helped to develop identity, sense of place, and build self-esteem within Indigenous communities’ (Commonwealth of Australia 2015, 70); and that ‘through the efforts of traditional owners, community awareness of Aboriginal and Torres Strait Islander cultures continues to increase, with greater appreciation of Indigenous heritage values embodied in the sacred sites of Indigenous traditions and in archaeological and historical sites’ (Commonwealth of Australia 2015, 9). It is perhaps notable that these commitments – and heritage policy language generally – emphasise engagement with Indigenous peoples about the values of their heritage, rather than explicitly discussing the rights of Indigenous peoples.

K’gari – World Heritage and rights K’gari is situated in subtropical north-eastern Australia. It is some 300 km north of Brisbane, the state capital of Queensland, and lies very close to the mainland coast. The island is about 125 km north–south and covers approximately 1800 km2 in area. It was inscribed as a World Heritage property in 1992 after a long struggle by environmental activists to end commercial logging and sand-mining. The property is summarised by UNESCO as follows: The property covers 181,851 hectares and includes all of Fraser Island and several small islands off the island’s west coast. It is the world’s largest sand island, offering an outstanding example of ongoing biological, hydrological and geomorphological processes. The development of rainforest vegetation

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on coastal dune systems at the scale found on Fraser Island is unique, plus the island boasts the world’s largest unconfined aquifer on a sand island. (UNESCO 2016b) Fraser Island’s World Heritage status is managed by the Queensland Parks and Wildlife Service (QPWS) through its inclusion within the (larger) Great Sandy National Park. The National Park (but not yet the World Heritage area) also includes an area called Cooloola on the Australian mainland immediately south of Fraser Island (UNESCO 2010). From 2014 to 2016, our research team was able to observe meetings of the thenthree Fraser Island World Heritage advisory committees which separately covered Indigenous (IAC), community (CAC) and scientific (SAC) matters. In addition to observing the operation of the management system, the team conducted semistructured interviews with some members of the IAC and other actors regarding their connections and involvement in the protection and management of the World Heritage area. The team was particularly interested in issues of land, resources and property rights; livelihood and development rights; rights to participation, consultation and consent; and Indigenous and other cultural rights.9 The legal determination of Native Title that occurred on 24 October 2014 recognised the Native Title of the Butchulla people to Fraser Island after a consent determination (an alternative to litigated determinations about Native Title) was made by the Federal Court of Australia. The Butchulla’s Native Title rights were determined to include the right to access and move about K’gari, to camp and reside temporarily on the island and build temporary shelters, to hunt, fish and gather for non-commercial purposes, to conduct and participate in rituals and ceremonies (including burials), hold meetings, and light fires for personal and domestic use, such as for cooking (Butchulla People #2 v State of Queensland [2014] QUD287/2009). Native Title is not an exclusive right or designation, but throughout Australia such determinations substantially strengthen the recognition of Indigenous rights in World Heritage areas (Lilley 2000; Boer and Gruber, this volume). This enables local Aboriginal people to be more confident in asserting their right to be involved in the management of World Heritage properties in meaningful ways, based on new legal contexts. On a formal level, such involvement occurs through the establishment of new representative bodies for Native Title holders – the Prescribed Body Corporate (PBC). All Native Title determinations entail the formation of a PBC, which represents the interests of Native Title holders in relation to specific Native Title decisions (National Native Title Tribunal 2016). As a consequence, the former tri-partite advisory committee system for Fraser Island has now been restructured to reduce the number of committees and take into account changes to management procedures prompted by the Native Title arrangements. The Queensland Government has encouraged the negotiation of Indigenous Land Use Agreements (ILUAs) as part of the process of recognising Native Title, and the court’s consent determinations may come into effect upon the registration

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of an ILUA (Bartlett 2015, 748). The negotiation of an ILUA provides flexibility, allowing both parties to address their needs and interests, as well as providing certainty by clearly defining the rights recognised and how they are to co-exist with other interests and rights (Bartlett 2015, 737). These agreements are usually subject to confidentiality clauses, and only a brief extract of an ILUA is publicly available through the National Native Title Tribunal. In the case of K’gari, the ILUA sets out the Butchulla’s Native Title rights within the context of the management of the National Park and World Heritage area. In negotiating the ILUA with the Butchulla people, the-then conservative Liberal Queensland Government excluded the possibility of joint management, frustrating many of the Butchulla.The refusal is somewhat surprising as the government is supposedly committed to realising joint management as a broad policy objective. In the Queensland Government’s Master Plan for Queensland’s Parks and Forests to 2025 it is noted that strong partnerships should be developed and ‘reflected in joint management agreements, collaborative management agreements, cultural awareness training and a significant number of Traditional Owner initiatives’ (Queensland Government Department of National Parks, Recreation, Sport and Racing 2014, 11).The ILUA was registered and commenced on 21 November 2014 and is due to expire on 21 November 2019. After its expiration, the terms can be renegotiated. In 2015, the research team conducted additional interviews with Traditional Owners and management/policy staff, and observed discussions at the IAC concerning the role of the PBC in the management of the Fraser Island National Park/ World Heritage area. There was extensive discussion about the PBC and how the rights of local Indigenous people outside the PBC might continue to be recognised in the management of the World Heritage area. Continuing analysis of the interviews10 highlights how Traditional Owners and other organisations perceive matters such as human rights in relation to World Heritage, and how the effectiveness of management approaches to questions of human rights can be enhanced and measured. An important finding is that Aboriginal people (and indeed many other people in the communities living on or close to K’gari) are largely disconnected from the World Heritage status of the island. This is not to say local Aboriginal people feel disconnected from K’gari itself – on the contrary, links are very strong. The status of Fraser Island/Great Sandy as a state-managed national park is more clearly understood and recognised, and there is a sense that World Heritage is meaningless. This is somewhat ironic, because in a reversal of the usual sequence, the island was declared a World Heritage site before it was made a state-managed national park. Today, though, the Queensland National Parks management system is both more relevant and more problematic for local Indigenous people insofar as it is a statebased framework and less clearly linked to the international recognition and obligations arising from World Heritage. These perspectives are mirrored in interviews with people working in government management roles, who stated that they did not have the time or resources to think much about World Heritage issues and that much of their management of

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the island is limited to dealing with it as a National Park. Much the same applies to local business people and other community members in the wider Fraser Island region. In fact, our research has found that it is not uncommon for people in the wider Fraser area to not know that the island is a World Heritage property. When asked about the World Heritage status of K’gari, Aboriginal people interviewed almost universally indicated that they feel excluded from the World Heritage management framework, despite the Indigenous Advisory Committee having operated until very recently within the formal National Park management system. In terms of our interests in rights-based approaches, this means that questions of Indigenous people’s rights in World Heritage are not being addressed in a manner that effectively connects with Aboriginal people, despite the measures taken to recognise their legitimate role in World Heritage management on the island. Aboriginal informants often said that one reason they felt alienated from the management structures (World Heritage or otherwise) was because the current advisory framework does not accommodate Indigenous ways of knowing or community processes of communication or decision-making. Rather, the current framework imposes a ‘White’ approach despite the clearly demonstrated intentions of park managers to be inclusive and to collaborate in meaningful ways with Indigenous peoples. Some Butchulla expressed frustration that engagement under these conditions was focused on a pre-determined agenda and that government representatives were still seen to be very much ‘holding the reins’. Traditional Owners said that these were not deliberative processes, but instead satisfied a perceived requirement of the Queensland Government to merely consult rather than collaborate with Traditional Owners. Butchulla respondents stated that this was particularly apparent in relation to ongoing management practices, such as dingo management. A threatened species on the island, dingoes are a semi-domesticated species of dog first brought to Australia by ancestral Aboriginal people over 4,000 years ago. They have an ancient association with the Butchulla and special meaning in their cosmology (Ross 2014, 82). Dingo management has focused on concerns of habituation to humans that might cause aggressive behaviour towards tourists (Allen et al. 2015, 198–199) and significant revenue has been directed to keeping dingoes separate from people by the construction of fences and signage around the island (Queensland Government Department of Environment and Heritage Protection 2013). These physical barriers are at odds with the Butchulla’s close traditional associations with the animals. During interviews with Traditional Owners, there was frustration that dingoes could be harmed by QPWS staff through culling programmes and that their special status among the Butchulla is not respected. While the current system attempts to reflect the rights and interests of Indigenous people, it is nevertheless seen by Indigenous community members as a barrier to participation in park management on their own (i.e., culturally appropriate) terms. Clearly, it is only when they can engage on their own terms that their rights in World Heritage will be properly recognised. Furthermore, there is a list of other emerging issues regarding benefit-sharing, tourism and employment opportunities.

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While World Heritage is often assumed to bring economic opportunities for Indigenous peoples (for example, through increased tourism, employment and business opportunities), the Butchulla’s experiences at K’gari present a different reality. There are very limited economic opportunities for them on the island. From time to time, community members have been employed at the island’s major resort or as cultural guides on tours, but there have not been any consistent employment opportunities. It has been estimated that income from the recreational activities of Australians visiting K’gari (not including revenue generated from international visitors or from individuals on organised tours) amounts to around $200 million annually (Fleming and Cook 2008, 1203), yet there is currently no benefit-sharing arrangement where, for example, any of the revenue raised from the permit system allowing vehicle entry to the National Park is directed to Traditional Owners, many of whom have expressed frustration at this arrangement and are actively seeking to change it. Most Traditional Owners interviewed agree, however, that World Heritage recognition was of value as it helped provide funding for the operation of the IAC. There has been a recent movement within UNESCO to advance the goals of sustainable development through heritage protection. It has been noted that ‘in addition to its intrinsic value for present and future generations, World Heritage – and heritage in general – can make also an important instrumental contribution to sustainable development across its various dimensions’ (UNESCO 2016c). As part of this process, World Heritage could play a critical role in sustainable economic development for local communities and Traditional Owners. A concept of sustainable development invites re-imagining of the economic opportunities that could exist for the Butchulla on K’gari. Working as park rangers is one vital role that could be expanded. There are also Indigenous businesses that could expand in the eco-tourism industry. Even more innovative is perhaps the concept of a sustainable economy that relies on opportunities beyond tourism (UNESCO 2016c). This last concept points to an economy in which Indigenous people are able to practice their culture on the island while at the same time being engaged in employment, or growing businesses that are aligned with the implicit cultural and explicit natural values of K’gari as a World Heritage site. The benefit of this approach is that it would move away from dependence on a single industry.

Native Title and human rights at K’gari Another striking result of the analysis has been the lack of information available to the Butchulla community about the application of their Native Title rights, that is, what those rights might mean in practice ‘on the ground’. This is particularly evident in relation to issues of Butchulla access to the National Park, and the means of asserting their cultural rights on the island. An example of this uncertainty is the suggestion made by both Indigenous and non-Indigenous respondents that the Butchulla need permits to exercise some of their Native Title rights (such as to light fires for personal use or to camp on the island). This issue arises because the ILUA may contain terms that limit the scope of the Butchulla’s rights and that

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may require them to apply for permits to exercise their rights. Broadly, however, section 211(2) of the Native Title Act 1993 (Cth) operates to ‘remove the requirement of a “licence, permit or other instrument” referred to in s211(1)(b) as a legal condition upon the exercise of native title rights’ (Western Australia v Commonwealth (1995)).11 On nature reserves where there is a total prohibition on certain activities, such as World Heritage areas, the situation is less clear (Bartlett 2015, 922–923). At other Australian World Heritage properties, however, the approach taken is to recognise the rights of Traditional Owners to exercise their rights to hunt, fish and gather, but to negotiate agreements that set out clearly how these rights will co-exist with broader conservation objectives. At the Great Barrier Reef Marine Park, for instance, these agreements are called ‘Traditional Use of Marine Resources Agreements’ (TUMRA). These agreements create mechanisms for recognising Indigenous people’s traditional rights, while simultaneously working towards shared goals of conservation management of World Heritage sites (for example, Nursey-Bray and Rist 2009). Those community members who had been heavily involved in negotiating the Native Title case do not appear to have pushed for the recognition of these rights through joint management arrangements partly because of government resistance at the time to joint management on K’gari. However, the situation is new and seems fluid in political terms. Although the current centre-left state government, which was unexpectedly elected just before the Native Title case was finalised, is committed in principle to co-management, the research team was informed that senior officials in the previous conservative government had insisted that co- or joint management of K’gari could not be considered as an option when the Native Title case was being negotiated. It remains to be seen how this situation develops. Lack of information about the practical implications of Native Title recognition is compounded by uncertainties surrounding the roles and relationships between the structures established to manage Native Title (PBC) and World Heritage (now CAC). In discussions with the research team, some Traditional Owners were unsure why the PBC should be required to deal with matters of World Heritage when it is properly an organisation for managing Native Title. Some Traditional Owners refuse to be involved in the PBC, but are willing to recognise its legitimacy in making decisions provided it adheres to cultural protocols for consultation and representation. Despite this somewhat confused and confusing scenario, there is optimism amongst Traditional Owners that the recognition of Native Title will enable the Butchulla to more frequently visit the island and build businesses and community sites where people can reassert their cultural traditions. As mentioned above, the management plan for K’gari is currently under review as part of the shared intention by the Commonwealth and Queensland governments’ proposal to extend the K’gari World Heritage area (Queensland Government Department of Environment and Heritage Protection 2016). There is scope, therefore, as part of this review to draw upon experiences at other World Heritage sites, such as the Great Barrier Reef, to identify mechanisms that could be incorporated at K’gari that would give greater clarity to the relationship between Native Title

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rights and conservation obligations, by ensuring the sustainable use of resources within the World Heritage area.

Australian practitioner perspectives on World Heritage and human rights Among the Indigenous and non-Indigenous people interviewed by the research team, there is minimal knowledge of the existence or relevance of international human rights frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP; United Nations 2007). There is also little knowledge of current efforts within the World Heritage system to better engage with Indigenous communities in the management of World Heritage properties (Disko and Tugendhat 2013; UNESCO 2015), or how World Heritage mechanisms might be strategically used to gain better outcomes for the Butchulla people. Given this gap in awareness, the perspectives and knowledge of practitioners are of interest as an additional dimension to the Australian case study. A practitioner Round Table was held in 2015 with interested researchers/ scholars and representatives of Australia ICOMOS and the Australian Committee for IUCN. Both of these World Heritage Advisory Bodies have well-established national entities that are active in the implementation of the World Heritage Convention in Australia and in the wider Asia–Pacific region, as well as other programmes for natural and cultural heritage. The Round Table offered practitioner perspectives concerning the issues and enabling factors relating to the practical implementation of rights-based approaches.12 Natural and cultural heritage practitioners working in various contexts – consulting, development, national and local governments and NGOs – contributed to the discussions and reflected on experiences in many locations in Australia, the Pacific Islands and the wider region. The Round Table model is intended to be compact, allowing robust and relatively open-ended discussion to capture key issues and ideas in ways that can contribute to a continuing dialogue, both locally and globally. The discussions revealed a high level of awareness of the implementation of the UNDRIP framework for the rights of Indigenous peoples, and an interest in improved guidance in the establishment of FPIC (free prior and informed consent) and rights-based approaches to governance and management systems. There was particular interest in the emerging dialogue about cultural rights (e.g., Shaheed 2011) and the implications for the roles of heritage experts within rights-based practices. Including FPIC in heritage processes is clearly an important priority (e.g., Hales et al. 2013). Despite the near-universal adoption of the Universal Declaration of Human Rights, not all rights are recognised equally. They can conflict with each other and in such contexts, some are seen as more important than others. Round Table discussion centred on questions of how competing rights might be addressed, the differences in the recognition of individual and collective rights in heritage work and the

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possibilities for rights-oriented work to complicate existing inter-group tensions and social justice claims (see Kraak 2015, this volume; Meskell 2010). There is a tendency to recognise the rights of groups that are relatively well organised to make rights claims but a relatively poor awareness of other rights issues. There could be others whose rights might be impacted or overlooked by heritage decisions (such as LGBTQI13 people, homeless people, cultural and religious minorities and so on). Recognising rights broadly challenges notions and methods of heritage (see Ireland and Schofield 2015). Cultural rights can be individual or collective, but are not straightforward or uncontentious in the human rights sphere (Silverman and Ruggles 2007). While it is often asserted that cultural rights include cultural heritage (Logan 2007, 2012), this is not explicit. It is inevitable that recognising a wider range of rights claims will make heritage work more complex. For example, how will the ‘right to develop’ be regarded within the context of heritage protection? What about the right to live in a safe and healthy environment? Or the rights of children? Should the rights of non-human living things be considered within this framework as well? Practitioners recognise that managing and minimising risk is a strong focus for many actors, especially government officials and the private development sector. This is generally more explicit than consideration of rights, and could be a key driver for change. For example, the global mining company Rio Tinto has published a guide on human rights in order to demonstrate its commitments to the centrality of human rights in its work, complementing its other publications on cultural heritage and gender issues (Rio Tinto 2013). For governments, this means that there are political sensitivities for World Heritage, a fact which could either support or hinder the adoption of rights-based approaches. In relation to Australian heritage practices, Round Table participants concluded that rights issues were often conflated with considerations of ‘social value’, and the need for participatory mechanisms. Because rights can be politically sensitive, practitioners and communities might find the use of less provocative vocabulary centring on community involvement and stakeholders more appealing. However, this ‘softly softly’ approach can contribute to a poor awareness of the specific perspectives needed for rights-based progress, which might or might not be addressed via good management of the social significance of heritage places and practices. Consideration of ‘community interests’ rather than rights can result in treating all ‘stakeholders’ in the same way, yet rights claims need to be more explicitly recognised. Addressing the discomfort and political avoidance of rights issues and rights language is therefore a component of advancing rights-based approaches within Australian heritage practices. The Round Table demonstrated that practitioners are motivated to learn more about rights impacts and issues. Various examples were given of nominations to the World Heritage List that had occurred without appropriate consultation and consent. International consensus about raising the standards will enable better outcomes in many countries, particularly if there are clear policies or guidelines that States Parties are expected to use. In general, there was a sense that site managers,

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communities and governments need more guidance about how to address rights issues and develop consent processes. However, there was also some wariness about seeing guidelines as the solution, since it will be important to ensure that any guidelines that are developed do not inadvertently encourage a static or formulaic approach. As an example of the critical role of consent, the Australian and Queensland governments are committed to a thorough consultation process with Traditional Owners concerning the proposal to extend the Fraser Island World Heritage property. As a starting premise, exploring and advancing a ‘do no harm’ orientation seems practicable, and it is important to acknowledge that World Heritage processes have had unintended consequences for rights. Practitioners – including actors with diverse roles in the World Heritage Committee, Advisory Bodies, communities and States Parties – should be supported to better respond to these issues.

Implications for World Heritage policy-making in Australia As noted above, the work on K’gari/Fraser Island found that there is a pervasive lack of awareness of World Heritage issues, both among communities connected with the case study, and also more broadly across Australia. The case study also points to a range of rights issues, notably the confusion surrounding Indigenous people exercising their rights ‘on the ground’ and the interplay of these rights with World Heritage values. This means that World Heritage management frameworks need to be configured to include local communities and especially Indigenous peoples if the heritage interests of these communities are to be recognised and their rights respected. Connections should be fostered between Indigenous peoples and administrative/ management bodies in ways that encourage such links to develop organically from the bottom up, in accordance with local custom and practice, not imposed from the top down. Such connections need to be managed in an accommodating manner to allow for resilient culturally appropriate approaches to World Heritage issues as they impact on local community life and vice-versa.The long-term effectiveness of such connections needs to be monitored and evaluated and sustainable capacities strengthened in terms that make sense to and work for local communities. The Round Table participants made suggestions regarding implications for policy and practice. As an immediate priority, work at the national level is essential to examine in more depth how rights-based approaches could be more widely applied in practice. This will directly help to improve outcomes, but also will help to shape the international dialogue. Global standards are very useful, but it is also necessary to tailor them to specific situations. In this context, the need to develop clear guidance about applying FPIC in both the global and Australian contexts is pressing.This guidance is needed for each of the World Heritage processes: what does it mean for Tentative Listing, submitting nominations, considering extensions and establishing management systems or reworking existing mechanisms?

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Overcoming the conceptual divide between nature/culture in heritage practices will also be an important component of developing rights-based approaches in Australia (Buckley et al. 2015). IUCN’s management effectiveness toolkit – Enhancing our Heritage (EoH) – is being reviewed in light of these issues, to enable its use for cultural heritage (UNESCO 2008). In Australia, there are efforts to reverse the EoH focus on manager perspectives toward Indigenous concerns to assist with the practical delivery of rights-based benefits to Indigenous people. In addition, the Protected Area Benefits Assessment Tool (PA-BAT) developed by the World Wildlife Fund (2009) will be refined in response to information concerning Indigenous rights gathered in this study and related research.

Conclusion In 2008, ICOMOS identified human rights as one of several ‘new and complex global pressures’ to which it had to respond (Logan 2012, 232); and IUCN has substantial long-term policies concerning conservation and human rights (IUCN 2016; Oviedo and Puschkarsky 2012; Worboys et al. 2015). The Resource Manual on Preparing World Heritage Nominations (UNESCO 2011, 58) emphasises that ‘understanding local values means consulting local people, especially indigenous peoples where they are present’. Despite this increased attention, in 2011 the UN Permanent Forum on Indigenous Issues (UNPFII) rebuked the World Heritage Committee for ‘continuous violations’ of Indigenous rights (UNPFII 2011). It was in this context that an International Expert Workshop on the World Heritage Convention and Indigenous People was held in Denmark in 2012 (Disko and Tugendhat 2013). Despite the diversity of experiences, all participants contributed to the ‘Call for Action’ that was presented to an event in Kyoto (Japan) held at the end of 2012 to celebrate the 40th anniversary of the adoption of the World Heritage Convention by UNESCO (IWGIA 2012). Yet when the current project commenced in 2014, the World Heritage Operational Guidelines were still silent on the subject of Indigenous rights. Small but significant changes were made to the Operational Guidelines in mid-2015 to change this (UNESCO 2015; Larsen and Buckley, this volume), but much remains to be done to implement them. The present study is part of the global effort to move forward. Australia’s World Heritage properties have pressing rights issues, in part owing to the legacy of insufficient attention to rights in the processes of inscription and management over the past 40 years. Regarding K’gari, the issue of rights has emerged almost exclusively in the context of the recent Native Title determination. There remains little awareness or broader state or federal government consideration of Indigenous rights as they relate to World Heritage. These are challenges for communities, site managers, practitioners and governments to address. Our research has demonstrated that Australia can benefit from the development of international standards and approaches as well as contributing to such matters through their application to specific cases.

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Notes 1 Financial support for this research was provided by the Swiss Network for International Studies (SNIS), the Australian Research Council and Deakin University. The Australian team thanks Peter Bille Larsen for inviting us into the SNIS project. The team is also grateful to the Indigenous and non-Indigenous people who contributed their time and thoughts to the project.Your input was invaluable and we hope we have done you justice! The authors thank other team members for their contributions to the project and to this chapter: Marc Hockings, Celmara Pocock and Lee Sheppard. We also acknowledge the support of Australia ICOMOS, the Australian Committee for IUCN and Deakin University for convening the Round Table; and to Tim Winter for chairing the session and Laura Kraak for providing a framing presentation. Feedback from the SNIS research partners and country teams at a workshop held at Caux (Switzerland) by the University of Lucerne (January 2015) contributed to our thinking about this project, as have the participants in World Heritage Committee side events on ‘Rights-based Approaches’ held in Doha (2014), Bonn (2015) and Istanbul (2016). 2 In April 2017, after decades of lobbying by the Butchulla people, the Queensland government officially renamed the section of the Great Sandy Region National Park that covers Fraser Island ‘K’gari’. The name ‘Great Sandy Region National Park’ will be retained and refer to the remaining section of the national park located on the mainland, to the south of the island.The Butchulla people continue to lobby the Queensland government for the entire island to be returned to its traditional name ‘K’gari’ (Lodge 2017). This chapter adopts the term ‘K’gari’ as referring to the entire island. 3 K’gari is currently listed under criteria (vii), (viii) and (ix), but was originally listed under earlier versions of these criteria. 4 Through detailed field studies, the ARC project examines three properties in addition to K’gari/Fraser Island: the Tasmanian Wilderness, Purnululu and one that has very recently been placed on the Australian World Heritage tentative list, Budj Bim. A formal nomination is currently being prepared for Budj Bim by both the Traditional Owners, the Gunditjmara, and the Victorian Government with the support of the Federal Government. If placed on the World Heritage List, it will be the first site in Australia listed exclusively for Indigenous cultural values (Department of Environment and Energy 2017). 5 The Indigenous Advisory Committee was recently folded into the Community Advisory Committee following the successful Native Title case mentioned above and described later in this chapter. 6 The first version of the Burra Charter was adopted in 1979, but it is periodically revised to reflect developing understanding of theory and practice in cultural heritage management. The current version, from 2013, is very different from the original. 7 It is estimated that K’gari receives about 500,000 tourists each year (Stringer 2012). 8 After this chapter was finalised, the Australian Government released the 2016 State of the Environment report in March 2017. The findings are consistent with the 2011 conclusions reported here (see: http://www.environment.gov.au/science/soe). 9 The project received formal ethical clearance through the University of Queensland as a variation on the approval granted to the ARC project mentioned earlier. Ethical clearance for projects concerning Aboriginal or Torres Strait Islander people requires explicit support from the Indigenous communities in question. 10 All of the interviews undertaken for the project are being analysed with the aid of NVivo, a text-analysis package that enables researchers to identify and track key patterns in qualitative data. 11 Western Australia v Commonwealth (1995) 183 CLR 373 at 474. 12 A ‘Policy Brief ’ is available which outlines the process and outcomes in more detail – see http://projects.snis.ch/rights-world-heritage-system/policy-briefs/. 13 Lesbian, gay, bisexual, transgender, queer and intersex.

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Nursey-Bray, Melissa and Phillip Rist. 2009. “Co-management and Protected Area Management: Achieving Effective Management of a Contested Site, Lessons from the Great Barrier Reef World Heritage Area (GBRWHA).” Marine Policy 33(1):118–127. Oviedo, Gonzalo and Tatjana Puschkarsky. 2012. “World Heritage and Rights-based Approaches to Nature Conservation.” International Journal of Heritage Studies 18(3): 285–296. Queensland Government. 2005. “Great Sandy Region Management Plan 1994 – 2005.” Department of National Parks, Recreation, Sport and Racing. Accessed January 10, 2017. www.npsr.qld.gov.au/managing/plans-strategies/great_sandy_region.html. Queensland Government. 2013. “Fraser Island Dingo Conservation and Risk Management Strategy.” Ecosystem Services, Department of Environment and Heritage Protection. Accessed October 27, 2016. www.ehp.qld.gov.au/wildlife/livingwith/dingoes/pdf/dingomanagement-strategy.pdf. Queensland Government. 2014. “A Master Plan for Queensland’s Parks and Forests to 2025.” Department of National Parks, Recreation, Sport and Racing. Accessed November 11, 2016. www.nprsr.qld.gov.au/managing/plans-strategies/pdf/master-plan-qld-parks-forests-to2015.pdf. Queensland Government. 2016. “World Heritage: Proposal to Extend the Fraser Island World Heritage Area – Invitation to Be Involved.” Department of Environment and Heritage Protection. Accessed January 20, 2017. http://www.ehp.qld.gov.au/management/ world-heritage-areas/#proposal_to_extend_the_fraser. Rio Tinto. 2013. “Why Human Rights Matter. A Resource Guide for Integrating Human Rights into Communities and Social Performance Work of Rio Tinto.” RioTinto.Accessed October 14, 2016. http://www.riotinto.com/documents/ReportsPublications/Rio_ Tinto_human_rights_guide_-_English_version.pdf. Ross, Anne. 2014. “Managing Values Other than Outstanding Universal Value – A Case Study from K’gari (Fraser Island World Heritage Area), Queensland Australia.” Historic Environment 26(2): 80–84. Shaheed, Farida. 2011, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed. United Nations General Assembly, Human Rights Council 17th session. A/HRC/17/38. Silverman, Helaine and D. Fairchild Ruggles. 2007. “Cultural Heritage and Human Rights.” In Cultural Heritage and Human Rights, edited by Helaine Silverman and D. Fairchild Ruggles, 3–29. New York: Springer. Stringer, Angie. 2012. “Managing Fraser Island World Heritage Area.” In Keeping the Outstanding Exceptional:The Future of World Heritage in Australia, edited by Penelope Figgis, Andrea Leverington, Richard Mackay, Andrew Maclean and Peter Valentine, 82–86. Thebarton, South Australia: Australian Committee for IUCN. UNESCO. 2008. “Enhancing Our Heritage Toolkit: Assessing Management Effectiveness of Natural World Heritage Sites.” World Heritage Papers 23. Accessed October 14, 2016. http://whc.unesco.org/en/series/23/. UNESCO. 2010. “Tentative List, Australia. ‘Great Sandy World Heritage Area’, (Extension to Fraser Island). Submitted 04/01/2010.” UNESCO/World Heritage Convention. Accessed October 14, 2016. http://whc.unesco.org/en/tentativelists/5480/. UNESCO. 2011. Resource Manual: Preparing World Heritage Nominations. 2nd ed. http://whc. unesco.org/en/preparing-world-heritage-nominations/. UNESCO. 2015. “World Heritage Committee 39th session, Bonn Germany. Item 5D:World Heritage and Sustainable Development. WHC-15/39.COM/5D.” UNESCO/World Heritage Convention. http://whc.unesco.org/en/documents/135650.

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UNESCO. 2016a. “Uluṟu-Kata Tjuṯa National Park.” UNESCO/World Heritage Convention. Accessed October 14, 2016. http://whc.unesco.org/en/list/447. UNESCO. 2016b. “Fraser Island.” UNESCO/World Heritage Convention. Accessed October 14, 2016. http://whc.unesco.org/en/list/630. UNESCO. 2016c. “World Heritage and Sustainable Development.” UNESCO/ World Heritage Convention. Accessed October 28, 2016. http://whc.unesco.org/en/ sustainabledevelopment/. United Nations. 2007. “United Nations Declaration on the Rights of Indigenous Peoples.” (UNDRIP). UN61/295. Adopted 13 September 2007. New York. Published version (March 2008) United Nations. Accessed October 14, 2016. www.un.org/esa/socdev/ unpfii/documents/DRIPS_en.pdf. UNPFII (UN Permanent Forum on Indigenous Issues). 2011. “10th session, Agenda Item 3(c): Follow-up to the Recommendation of the Permanent Forum: Free, Prior and Informed Consent. Joint Statement on Continuous Violations of the Principle of Free, Prior and Informed Consent in the Context of UNESCO’s World Heritage Convention. 17 May 2011.” Forest Peoples Programme. Accessed October 24, 2016. www.forestpeoples. org/sites/fpp/files/publication/2012/04/joint-statement-indigenous-organizationsunesco-2.pdf. Worboys, Graeme L., Michael Lockwood, Ashish Kothari, Sue Feary and Ian Pulsford, eds. 2015. Protected Area Governance and Management. Gland: IUCN. World Wildlife Fund. 2009. “Protected Areas Benefits Assessment Tool.” WWF Global. Accessed October 24, 2016. wwf.panda.org/ wwf_news/?174401/PABAT.

4 SAMBOR PREI KUK Demarcating the relationship between religion and cultural heritage as human rights in Cambodia Jonathan Liljeblad

Introduction The World Heritage system is experiencing a movement towards rights-based approaches supported by the concurrent efforts of the International Council on Monuments and Sites (ICOMOS), the International Union for the Conservation of Nature (IUCN), and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) (Albert et al. 2012; ICOMOS 2014; Larsen, Oviedo, and Sinding-Larsen 2014). Their collective work has led to a growing literature on World Heritage, cultural heritage, and human rights (see for example Ekern et al. 2015; Gillespie 2013a; Kapchan 2014;Vrdoljak 2013). The motivation behind this collective impetus is a desire to more closely integrate heritage, both cultural and natural, with the international system of human rights. Among such efforts was an ICOMOS-sponsored workshop conducted in January 2016 in Caux, Switzerland that called for rights-based approaches with respect to cultural heritage (Larsen 2016). In conjunction with a research project, the workshop associated its call with a request for analyses tied to cases from the Asia–Pacific region, reasoning that the region constituted a space with pressing issues in human rights that was under-represented within the larger global heritage discourse. The hope was that cases from the Asia–Pacific region could provide a basis for generating more general lessons applicable to the rest of the world regarding the connections between human rights and cultural heritage. This study responds to this call by addressing the specific subject of religion and cultural heritage using the site of Sambor Prei Kuk in Cambodia as a case study. Sambor Prei Kuk is the subject of an application for World Heritage listing by the Cambodian government. The temples at Sambor Prei Kuk, originally Hindu, are currently used as places of Buddhist worship by local communities. As a result, Sambor Prei Kuk is a site where religion and cultural heritage currently coincide

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and thus offers a potential exemplar from the Asia–Pacific region of the ways in which the two inter-relate with each other. The goal is to explore a rights-based framework for Sambor Prei Kuk that focuses on the right to religion and its place relative to cultural heritage in general and World Heritage in particular. In locating the right to religion, the intent is to identify the nature of its relationship with cultural heritage in ways that clarify the issues between them and provide a starting point for further studies to resolve them.

Background In 1992, Sambor Prei Kuk was submitted for inclusion on the Tentative List of World Heritage properties (UNESCO 2016), and as of 2016 was under consideration for formal World Heritage status (Sambor Prei Kuk Request for Inscription 2016). Alternatively known by its former name of Ishanapura, Sambor Prei Kuk was the capital of the ancient Chenla Empire from the 6th–7th centuries AD, and thus predates the Khmer civilization responsible for Cambodia’s other World Heritage sites of Angkor Wat and Preah Vihear. Sambor Prei Kuk is a complex of ancient temples and surrounding structures, with archaeologists currently recognizing 291 features in various states of restoration or excavation and a further indeterminate number subject to ongoing exploration (Sambor Prei Kuk Management Plan 2016; Sambor Prei Kuk Request for Inscription 2016). The complex covers more than 3,300 hectares, with the area nominated for World Heritage listing occupying over 1,300 hectares bordered by a buffer zone encompassing approximately 2,000 hectares. The complex is located in the commune of Sambor and the district of Prasat Sambor roughly 30 kilometres north of the provincial capital of Kampong Thom in north-eastern Kampong Thom Province. Relative to other Cambodian cities, it is approximately 180 kilometres east of the city of Siem Reap and its adjoining World Heritage site of Angkor Wat and 196 kilometres north of Cambodia’s capital, Phnom Penh (see Figure 4.1).The site lies in rural isolation, situated amongst forest and farming communities with access to the nominated World Heritage zone via predominantly dirt roads that are gradually being paved to accommodate greater traffic (Sambor Prei Kuk Management Plan 2016; Sambor Prei Kuk Request for Inscription 2016). The dossier submitted for Sambor Prei Kuk’s application to World Heritage status asserts the site holds World Heritage significance based on three criteria: 1) it exhibits an important interchange of human values on developments in architecture, technology, arts, town planning, or landscape design; 2) it bears exceptional testimony to a cultural tradition or civilization; and 3) it is associated with events or living traditions, ideas, beliefs, or artistic and literary works of outstanding universal significance (Sambor Prei Kuk Request for Inscription 2016). With respect to the first criterion, Sambor Prei Kuk represents architecture, town planning, and landscapes unique in place and time in terms of aesthetic appearance and scale of engineering. In relation to the second, it is a prominent example of the Chenla Empire and its existence as a centralised state hosting a syncretism of Hindu and

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FIGURE 4.1

Map of Sambor Prei Kuk in Cambodia (Nguyen Huu Duy Vien).

Buddhist religions that influenced subsequent Southeast Asian history. In regard to the third, Sambor Prei Kuk provides evidence of the introduction of a centralised form of political power, the co-existence of writing in both the Khmer and Sanskrit languages, the transmission of Hindu and Buddhist values of universal tolerance and peace, and the use of musical instruments within orchestras (Sambor Prei Kuk Request for Inscription 2016). Hence, Sambor Prei Kuk provides universal significance across archaeological, architectural, environmental, cultural, and religious dimensions. Such significance is not entirely historical, with the Request for Inscription and the Management Plan for Sambor Prei Kuk both noting the value of the ancient city not only in the past but also in the present. In particular, both documents note that the nominated zone hosts continuing human habitation by local communities, who use the land for farming, draw upon the historical canals and dykes for their water supply, and use the ruins as places of worship (Sambor Prei Kuk Management Plan 2016; Sambor Prei Kuk Request for Inscription 2016). This is

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consistent with literature documenting the nature of heritage sites as holding ongoing relationships with local communities, such that the importance of heritage sites goes beyond static conceptions tied to the past but also includes dynamic meanings tied to evolving environmental and cultural contexts (see for example Liljeblad 2016; Weerasinghe 2011; Wijesuriya 2000).

Religious practice at Sambor Prei Kuk The nature of such relationships is illustrated by an empirical study conducted in March 2016 at Sambor Prei Kuk. The study involved qualitative methods centred around an ethnographic approach based on observations supplemented with interviews of local farmers engaged in acts of worship at the temples at Sambor Prei Kuk.These methods are supported by secondary source materials in the form of the Sambor Pre Kuk Request for Inscription to World Heritage status, the Management Plan, and relevant Cambodian legal documents. This discussion does not view the individuals who participated in the case study as a representative sample of the communities associated with Sambor Prei Kuk, but interprets them as provoking questions facilitating a discussion of the relationship between human rights and religion and cultural heritage. Located within various temples at Sambor Prei Kuk are stone objects conforming to altars of Hindu Shiva worship. As shown in Figures 4.2 and 4.3 below, such

FIGURE 4.2

Shakti altar inside a temple at Sambor Prei Kuk. The centre of the square stone pindi hosts a cone (here broken at its base and missing) representing the lingam and on the left side is a spout that represents the yoni (authors).

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FIGURE 4.3

Closer image of a Shakti altar inside a temple at Sambor Prei Kuk (authors).

structures involve a lingam, which is a standing protrusion representing the phallus of the god Shiva, positioned at the centre of a pindi, or flat base, that leads to a yoni, which is a receptacle spout representing the womb of Shiva’s consort Shakti (Doniger 2011). The author witnessed local farmers who came to the temples and engaged in practices involving burning incense, offering prayer, pouring water over the lingam, and then collecting the runoff as the water ran across the pindi and off the yoni. Such activities seem to follow the general elements of puja, a practice of Tantric worship of Shakti in which the faithful produce arghya, or holy water, by pouring water over the lingam while reciting prayers to Shakti and then collecting the water from the yoni (Shimkhada 2015). Despite such correlation with Hindu practices, the farmers did not identify their activities as being Hindu. Rather, they described their actions as being Buddhist. They were not able to cite sources of religious authority to support such an assertion, but instead defended it by stating that the practices for the lingam and yoni had existed since the arrival of Buddhism in the area. Such conceptions point to a manifestation of religious syncretism, with local religion involving an amalgamation of Hinduism and Buddhism. This is consistent with the histories of both, with each one exhibiting various mergers and adaptations to other religions in the context of diverse locales and cultures (see for example Dumoulin and Maraldo 1976; Swearer 2010). The farmers indicated their practices at Sambor Prei Kuk had been interrupted by the repressive climate of the Khmer Rouge and the condition of the site as a conflict zone, both of which had contributed to the destruction of the Buddhist clergy and lay populations and the push of local religious traditions into the shelter of secrecy. With the end of the Khmer Rouge and attendant conflict, however, Sambor Prei Kuk ceased to be a conflict zone, and subsequent UN-supported de-mining operations had enabled local communities to return to lingam and yoni rituals.

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Such a narrative conforms in rough substance with the findings of Pierre Bordeau and Matthew O’Lemmon, who argue that the affliction of the Khmer Rouge acted as a cultural disruption, and that people dealt with such societal instability by holding to older traditions as a way of maintaining cultural continuity during a time of repression (O’Lemmon 2014, 31; Throop and Murphy 2002). The communities around Sambor Prei Kuk followed this observation, but seemed to do so without recognition that their practices related to a Hindu past predating the arrival of Buddhism. Bordeau’s position, however, can be somewhat discounted in the sense that the apparent lack of awareness among farmers of the Hindu bases of their worship practices can be alternatively construed as a result of the extermination of educated or informed worshippers and clergy under the Khmer Rouge. J. Randall Groves, for example, observes that Cambodian identity was heavily influenced by Indic civilization, which brought with it Vedic, Hindu, and Buddhist worldviews and practices (Groves 2014). Groves sees the present state of Cambodia as a consequence of the Khmer Rouge’s efforts to transform the country’s culture by eviscerating public awareness of the historical origins of their own identity (Groves 2014). Both the Request for Inscription and the Management Plan for Sambor Prei Kuk recognise the worship practices of the farmers as constituting continued religious activity at the site (Sambor Prei Kuk Request for Inscription 2016, 59, 99, 104). The Management Plan appears to provide accommodation for such practices, with religion included among the list of management responsibilities alongside conservation and restoration of the ancient complex, encouragement and management of tourism, and sustainable local development (Sambor Prei Kuk Management Plan 2016, 26). In addressing these diverse interests, the Management Plan offers a decision-making scheme that seeks to identify and incorporate stakeholders from the local community and tourism industry to inform the work of the Ministry of Culture and Fine Arts (Sambor Prei Kuk Request for Inscription 2016, 103–104; Sambor Prei Kuk Management Plan 2016, 26, 36, 74) which, under Article 5 of the 1996 Law on the Protection of Cultural Heritage and the 2003 Royal Decree on the Sambor Prei Kuk Group, holds responsibility for implementing policies over the site (Royal Decree on the Sambor Prei Kuk Group 2003; Law on the Protection of Cultural Heritage 1996).The nature of decision-making is to be adaptive, with both the Request for Inscription and the Management Plan recognizing that Sambor Prei Kuk is a dynamic site (Sambor Request for Inscription 2016, 110; Sambor Prei Kuk Management Plan 2016, 45, 49) requiring periodic review and adjustment of the site work plan (Sambor Prei Kuk Request for Inscription 2016, 111; Sambor Prei Kuk Management Plan 2016, 94–95). The status of religion relative to other management priorities within this decision-making scheme is not entirely clear. As much as the Request for Inscription and the Management Plan include religion among the various concerns for Sambor Prei Kuk, neither is explicit in delineating the extent of protection it will have within the management scheme. Both documents recognise that Cambodians have rights to religious practice (Sambor Prei Kuk Request for Inscription 2016, 99; Sambor Prei Kuk Management Plan 2016, 50), and this is something affirmed by

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the Cambodian Constitution’s Article 43, which asserts a state guarantee of religious belief and worship (Constitution of Cambodia 1993). The Request for Inscription, however, also describes religious activities as a potential tourist attraction offering an educational opportunity in intangible cultural heritage. Such a perspective is bolstered by the focus of attention in both the Request for Inscription and the Management Plan, which direct the bulk of their contents to conservation, tourism, and development. Out of the 131 pages in the Request for Inscription, approximately 84 are used to justify World Heritage status and roughly 12 discuss site management (Sambor Prei Kuk Request for Inscription 2016). Of the 108 pages in the Management Plan, approximately three deal with World Heritage criteria, 18 discuss issues in conservation and revitalization, 13 assert management principles for balancing protection versus socio-economic needs and visitor experiences, and 33 set forth the management process and its implementation (Sambor Prei Kuk Management Plan 2016). In contrast, the topic of current religious activity, or the nature of larger community relationships with the site, occupies three pages within the Request for Inscription and (Sambor Prei Kuk Request for Inscription 2016, 59, 99, 104) and four pages within the Management Plan (Sambor Prei Kuk Management Plan 2016, 7, 26, 50, 60). In the Request for Inscription, page 59 describes religious practices at Sambor Prei Kuk as involving an ancestral spirit called Neak Ta that is worshipped in various locations around the site, page 99 notes that religious practices are non-intrusive but well attended by locals and that religious activities are likely to become tourist attractions, and page 104 comments that religious requirements will be part of a management plan. In the Management Plan, page 7 observes that Sambor Prei Kuk is considered the home of ancestral spirits and is still used for prayers, page 26 says the Management Plan will address the use of Sambor Prei Kuk for religious activities, page 50 states that the Management Plan must work with the local community to ensure religious freedom, and page 60 asserts that a community council will be responsible for giving approval for any celebrations at Sambor Prei Kuk. The brief number of pages given to religion relative to the other aspects of Sambor Prei Kuk is further indicated by the qualification placed on local activities at the site. Specifically, the Management Plan references the 2004 Statutes of the Sambor Prei Kuk Conservation and Development Community, which require that communities comply with government laws on heritage by restricting their celebrations to harmonise with the technical requirements of the site’s conservation (Sambor Prei Kuk Management Plan 2016, 60). Such language is broad enough to encompass religious practices at Sambor Prei Kuk, and its restrictive tenor is consistent with Cambodia’s legal approach to religion—the country’s Constitution qualifies religious freedom with the condition that religious belief and worship should not affect public order and security (Constitution of Cambodia 1993, 43(2)). As a result, while the religious practices at Sambor Prei Kuk may be recognised as an integral component of the site and a necessary element of its management as a World Heritage site, the level of protection provided to religious practices against other management priorities is not clear. This leaves them vulnerable to

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marginalisation in terms of being subordinated to concurrent goals for conservation, tourism, and development.

Identifying a human rights framework for religion and cultural heritage Despite the recognition of the right to religion in the Request for Inscription, the Management Plan, and the Cambodian Constitution, the preceding discussion demonstrates that there is an ongoing uncertainty regarding the extent to which such a right will be observed relative to the concurrent national government aspirations for conservation, socio-economic development, and tourism. Concerns over a right to religion in Cambodia’s plans for Sambor Prei Kuk provide a spur for additional ways to support the protection of religious practices at the site. One potential way is through reference to the international human rights system. In the international human rights system, the right to religion is inscribed within Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). It is also detailed by United Nations documents that include General Assembly Resolutions 36/55 and 65/211, Human Rights Committee General Comment 22, Human Rights Council Resolution 6/37, and the Commission on Human Rights Resolution 2005/40 (CHR 2005; HRC 2007; Human Rights Committee 1993; UNGA 2010; UNGA 1981). As a human right, the right to religion encompasses private belief, or forum internum, as well as public expression of such belief (Parker 2006). This encompasses freedom of thought or conscience and the freedom to choose or renounce a religion (ICCPR Article 18). It also encompasses the freedom to observe and practice religion either individually or in community and in private or public (ICCPR Article 18). In addition, it includes the freedom to worship, the freedom to locate spaces to worship, the right to have religious symbols, and the right to conduct religious rituals (Nowak 1993). In reference to the definition of religion within the ICCPR, the Human Rights Committee states that ‘The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions’ (HRC 1993, 1). This implies an expansive intent amenable to the objects and activities of worship exhibited by the local communities surrounding Sambor Prei Kuk. To the degree that their objects and activities conform to the characteristics of Hindu Shiva worship, the farmers could be construed as falling within the HRC’s notion of a traditional religion. Even if, however, their subjective interpretation of the objects and activities in their worship as non-Hindu local forms of Buddhism are taken as indicative of a unique form of spirituality, the farmers would still find shelter within the broad reach of the definition for religion described by General Comment 22. Thus, it would still be possible to attach the human right of religion to the forms of worship held by the farmers at Sambor Prei Kuk, both in terms of their individual subjective perspectives as forms of private belief and their

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acts in relation to the altars comprised of lingam and yoni objects as forms of public manifestation of their beliefs. This locates human rights within a physical space of cultural heritage being proposed for World Heritage status, and hence raises questions regarding the relationship between the issues of human rights and cultural heritage at Sambor Prei Kuk. The connection between human rights and cultural heritage can be described according to two divergent approaches: a hierarchical perspective versus an equitable one. The hierarchical approach is advanced by scholars such as Peter James who, in a presentation before a 2007 Australia ICOMOS conference, asserted that human rights hold legal primacy over world heritage under reasoning he ties to the organizational hierarchy of the United Nations (UN) (James 2007). Specifically, he argues that the international system of human rights embodied by the Universal Declaration of Human Rights (UDHR) makes it a product of the United Nations General Assembly (UNGA), while the World Heritage system is under the purview of the United Nations Education Scientific and Cultural Organization (UNESCO). James observes that UNESCO is subordinate to the UNGA within the UN, and takes this as a hierarchical ordering of the UDHR that places human rights superior to natural or cultural heritage such that in cases of conflict the former has primacy over the latter. In contrast to the hierarchical approach is a more equitable perspective exemplified by scholars such as William Logan, who sees human rights as the core of heritage conservation, with cultural rights—and hence cultural heritage—a subset of a larger umbrella of human rights (Logan 2014). This indicates a conception of religion and cultural heritage as elements of a common whole. Given the choice between hierarchical versus equitable approaches, the preference of the World Heritage system seems to be for the latter. Specifically, the position of ICOMOS in its 1998 Stockholm Declaration interprets cultural heritage as falling under the UDHR’s recognition of a right to participate in the cultural life of a community and states that “the right to cultural heritage is an integral part of human rights” (ICOMOS 1998). The text of the Stockholm Declaration reflects a phrasing of cultural heritage as a cultural right within the UN system of human rights. In locating cultural heritage within the corpus of international human rights, the Stockholm Declaration places cultural heritage alongside the right to religion in terms of both sharing the common authority of the UDHR. An interpretation of cultural heritage as falling under the right to cultural life carries implications for the relationship between the right to religion and cultural heritage beyond the UDHR. The UDHR is an aspirational document, but under the UN system of human rights it is accompanied by the ICCPR and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), both of which allow states to accept human rights as legally binding. With respect to religion and cultural life, elements of the UDHR correlate to similar components of the ICCPR and ICESCR. In particular, the right to religion expressed by Article 18 of the UDHR correlates to Article 18 of the ICCPR; similarly, the right to cultural life announced by Article 27 of the UDHR correlates to Article 15 of the ICESCR (UDHR 1948; ICCPR 1966; ICESCR 1966). As a result, states that ratify

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the ICCPR and ICESCR accept the right to religion and the right to cultural life as having the force of law.This means that for countries that ratify both the ICCPR and ICESCR—such as Cambodia, which ratified both in 1983—the right to religion and the right to cultural life are both legally binding. Under the reasoning of ICOMOS in its Stockholm Declaration, this obligates countries like Cambodia to treat the right to religion with the same level of legal protection as cultural heritage. As rights, the relationship between religion and cultural heritage is not predetermined, and in varying degrees can be complementary or conflictual. They can be complementary to the extent that they encompass the same phenomena.The extent of overlap is potentially large: as much as the Human Rights Committee asserted in General Comment 22 that the definition of religion in the ICCPR should be “broadly construed” (Human Rights Committee 1993), it also indicated in General Comment 23 that culture should also be given wide reach under the convention since culture “manifests itself in many forms” (Human Rights Committee 1994). Similarly, the Committee on Economic, Social, and Cultural Rights (CESCR) asserted that the ICESCR exercises a broad conception of culture encompassing not just products but also ways of life (CESCR 2009). For its part, UNESCO has followed both the ICCPR and ICESCR in interpreting the concept of culture (Yupsanis 2012). This suggests that for cases like Sambor Prei Kuk, the objects and practices of worship maintained by local farmers within the temples can be construed not only as being within a right to religion but also a right to cultural heritage, at least to the extent that they can be construed as integral components describing a way of life held by the local community. In which case, the ongoing presence of lingam and yoni worship is eligible for protection under more than one human right, with the practitioners able to claim both the right to religion and the right to cultural heritage.

Issues in a human rights framework for religion and cultural heritage Such complementary co-existence, however, is threatened by a risk of conflict between religion and cultural heritage, since there are grounds for the rights to religion and cultural life to intrude upon each other. In particular, the right to religion is not absolute, with the ICCPR recognizing that it is possible to have laws restricting religious freedom “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (ICCPR 1966, Article 18; Parker 2006). This means that for places like Sambor Prei Kuk, the state has the authority to proscribe the objects and practices of worship if it is able to associate its impact on cultural heritage as a threat to a larger public. General Comment 22 narrows this somewhat by stating that restrictions must 1) only apply to the manifestation of religion, as the rights to freedom of thought or conscience are non-derogable, and 2) be proportional to the need justifying their imposition (Human Rights Committee 1993; Parker 2006). Despite this, the allowance is clear for States Parties under the ICCPR to delimit public expressions of religion.

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In the case of Sambor Prei Kuk, the remote rural location and small local community population affords it a measure of isolation with infrequent visitors, and so it is possible to argue that the nature of lingam and yoni Shakti worship at the temples are unlikely to rise to the level of a threat to public safety, order, health, or rights and freedoms of others. In addition, it is further possible to argue that the spiritual focus of the practitioners at Sambor Prei Kuk actually supports the continued existence of a form of public morals, at least within a public comprised of the local communities. Hence, in these respects it might appear that the risk of conflict between religion and cultural heritage is low and unlikely to call for restrictions upon worship at the site. Unfortunately, it is inadvisable to entirely discount the risk of conflict in a case like Sambor Prei Kuk. This is because the relationship between religion and cultural life becomes more tenuous when cultural heritage becomes elevated to World Heritage. World Heritage status identifies cultural heritage as the patrimony of all humanity, and hence functions as a brand of prestige that elevates cultural sites to global scales in terms of the actors involved, rules of an international World Heritage system (Gillespie 2013a, 2013b; Winter 2004, 2014), and the attention and demands of an international audience (Marcotte and Bourdeau 2012; Ryan and Silvanto 2009).This exposes cultural heritage sites identified as World Heritage to an expanded array of competing demands that reaches across a World Heritage programme intent on conservation, tourism operators and tourists seeking new destinations, governments pursuing commercial exploitation of World Heritage sites as a revenue source for development, and local communities struggling to cope with the influx of outside actors into their space and activities (Gillespie 2013a; Landorf 2009; Morgan et al. 2003; Ryan and Silvanto 2009; Winter 2003). The contest between diverse demands incurs processes of politicization that for World Heritage sites are invariably dominated by state interests (Bui and Lee 2015). For developing countries, the priority for the state is often commercial, with the prestige of World Heritage listings providing a lure of commercial income from foreign tourists which is frequently needed to address pressing social and economic issues (Landorf 2009). Under such circumstances, the commercial interests tied to heritage tourism may lead states to discount religion in favour of cultural heritage, with the promotion of mass tourism incurring state attention to issues of public safety and public order that may over-ride concerns for the religious rights of local populations. Cambodia is no exception to these scenarios.The government has made tourism a priority in its development efforts, with the country’s World Heritage sites central in its promotion of the tourism industry (Kaynak and Kara 2012). This has led to a burgeoning tourism sector that annually receives more than 4.7 million international visitors and generates over $3 billion in revenue, of which approximately 43% is associated with the Siem Reap region and its proximity to Cambodia’s two World Heritage sites of Angkor Wat and Preah Vihear (Ministry of Tourism 2016). Attendant with the government’s emphasis on tourism has been a commitment to improving hospitality and security to accommodate visitors (Kaynak and Kara

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2012), marking a government concern for public safety and public order amidst its push to promote tourism. Such developments have not always been in concert with local communities. For Angkor Wat, in particular, the Cambodian government utilised notions of cultural heritage and the World Heritage system as part of a state agenda incorporating tourism and development within politics of nationalist identity and foreign policy that resulted in the disconnection of local farming populations from the site (Gillespie 2013b; Mao et al. 2014; Winter 2003, 2004, 2014). If the issues at Angkor Wat serve as indicators for the outcomes of World Heritage status, they provide cause for caution in regard to the present World Heritage application for Sambor Prei Kuk in that they demonstrate how the promotion of World Heritage tourism can result in disjunctures with local populations—not only in terms of the disconnect of local communities from the tourism industry but also in terms of the disconnect between local communities and their own heritage. In terms of recent history, Sambor Prei Kuk has not suffered the above problems afflicting Angkor Wat. This is perhaps due to the combination of its remote rural location (approximately 150–160 kilometres from Siem Reap) devoid of tourist hotels and its relative lack of publicity as a tourist destination, which places it at a lower level of consciousness among tourists largely focused on the environs of Siem Reap containing Angkor Wat. Such obscurity, however, is due to change, with the Request for Inscription and Management Plan for Sambor Prei Kuk supporting the extension of paved roads, expanded tourist facilities, and increased marketing as a tourism destination in anticipation of a positive outcome for the World Heritage application for the site (Sambor Prei Kuk Management Plan 2016; Sambor Prei Kuk Request for Inscription 2016). If these expectations are realised, they will increase the likelihood that Sambor Prei Kuk will follow a development pattern similar to Angkor Wat in terms of government policies concerned with fostering commercial mass tourism. This would create pressures for policies regarding public safety and order necessary to manage increased visitor traffic, in which case the government would gain a pretext to exercise the provisions under ICCPR Article 18 and the Cambodian Constitution’s Article 32(2) that allow restrictions on the manifestation of religion for the sake of public safety and order. The issue of public safety and order would, in essence, enable a legal means by which the government could curtail the use of the temples at Sambor Prei Kuk as places of worship for local farmers. Compounding such a scenario is the language of Article 15 of the ICESCR, which calls upon states to advance the right to cultural life by taking any steps necessary to conserve culture (ICESCR 1966, Article 15). Hence, as much as the ICCPR provides a way for states to restrict the right to religion in the interests of cultural heritage, the ICESCR serves to encourage them to do so. The net result is that there is a legal loophole within international human rights law that potentially allows the Cambodian state to subordinate the right to religion beneath the right and duty to protect cultural heritage and to justify laws like the 2004 Statutes of the Conservation and Development Community that require religious practice to comply with the technical components of conservation.

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Further directions for analysis The potential subordination of the right to religion beneath the interests of cultural heritage is problematic because it raises two normative issues which pose a challenge for cultural heritage in general and the World Heritage system in particular. First, it is contrary to the intent of the 1998 Stockholm Declaration to place cultural heritage in parity with other human rights and also contrary to alternative aspirations to make cultural heritage secondary to human rights. While the issues raised above do not categorically eliminate either case as a rule, they do potentially provide an avenue to legally justify the suppression of a right to religion in the cause of cultural heritage. This raises a need for cultural heritage discourse to extend theoretical discussions of religion and cultural heritage into practical application so as to provide further clarity of the implications of a rights-based framework for implementation into public policy.This points to a need for an integration of public policy discourses on religion (Twiss et al. 2015) into cultural heritage discourse to identify potential approaches for the practice of engagement between religion and cultural heritage. Second, extension from theory into implementation leads to a question of justice in terms of who participates in the decision-making regarding policies on religion at cultural heritage sites. With respect to Cambodia’s World Heritage sites, the marginalisation of local farming communities from Angkor Wat in the present suggests the risk of a comparable marginalisation for local farming communities at Sambor Prei Kuk in the future. This presents an issue with respect to whether it is appropriate for the tensions between the right to religion and cultural heritage to be addressed without the engagement of the people directly associated with both as well as looking into a broader set of rights potentially affected. The Request for Inscription and Management Plan both assert the involvement of local communities as stakeholders in decision-making, but they do not assure that religious concerns will be treated with a weight comparable to concurrent priorities of conservation, tourism, or development. This suggests that in advancing cultural heritage discourse from theory into practice it is relevant to include social justice approaches (Baird 2014) to address the potential normative issues in policy implementation. Both of these problems call for further analysis to find potential solutions. Specifically, they highlight a need to identify guidelines that can direct consideration of the relationship between religion and cultural heritage, not only in terms of a rights-based framework involving the position of the right to religion in relation to the right to cultural life but also in terms of what a rights-based approach means for the treatment of religion and cultural heritage. Development of these kinds of guidelines is relevant not just for Sambor Prei Kuk, but would also serve to address other cases involving cultural heritage sites holding religious significance that include entries on the World Heritage list. Moreover, in focusing on the complexities of the right to religion in the context of cultural heritage sites, such efforts would also address the concerns of scholars like Josephine Gillespie

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who argue that the application of human rights approaches to heritage conservation requires greater understanding of the rights embodied within human rights (Gillespie 2013a).

Conclusion The discussion in this chapter follows an ongoing movement to adopt a rightsbased approach in the World Heritage system, and responds to a call for development of a rights-based approach towards cultural heritage.This chapter contributed towards this objective by focusing on the right to religion in relation to the management and protection of cultural heritage. By employing a human rights framework, this paper found an ambivalent relationship between the two, in that while it is possible to construe religion and cultural heritage as complementary elements of an international human rights system, it is also possible to interpret them as conflicting. Specifically, the foundation elements of the international human rights system comprised of the UDHR, ICCPR, and ICESCR contain language that allows the restriction of the right to religion in the interests of public safety and public order; both interests have become concerns for cultural heritage sites promoted as tourist destinations—particularly World Heritage sites that have become central elements of tourism industries driving the development efforts of developing countries. Cambodia falls within these conditions, which suggests that the World Heritage application for Sambor Prei Kuk may involve a pursuit of mass tourism incurring concerns for public safety and public order that justify the restriction of the religious activities by local farmers at the site. If the future management of Sambor Prei Kuk is to be consistent with assertions from cultural heritage discourse that human rights are to be paramount or at minimum be integrated with cultural heritage, then further consideration must be given regarding the location of religion and cultural heritage as human rights. In particular, additional analysis in terms of public policy and social justice to address how the rights of religion and cultural heritage are to be implemented in the specific case as well as within the World Heritage system beyond the language of the UDHR, ICCPR, or ICESCR are needed.

References Albert, Marie-Theres, Marielle Richton, Marie Jose Vinals, and Andrea Witcomb. 2012. Community Development through World Heritage. UNESCO. Accessed January 1, 2017. http://whc.unesco.org/documents/publi_wh_papers_31_en.pdf. Baird, Melissa. 2014. “Heritage, Human Rights, and Social Justice.” Heritage & Society 7 (2): 139–155. Bui, Huong and Timothy Lee. 2015. “Commodification and Politicization of Heritage: Implications for Heritage Tourism at the Imperial Citadel of Thang Long, Hanoi (Vietnam).” Austrian Journal of South-East Asian Studies 8 (2): 187–202. Cambodia. 1996. Law on the Protection of Cultural Heritage, NS/RK/0196/26. Accessed December 30, 2016. http://www.wipo.int/wipolex/en/details.jsp?id=6396.

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Cambodia. 2003. Royal Decree on the Sambor Prei Kuk Group, NS/RKM/0303/116. 2003. Available from the World Heritage Centre/UNESCO on request. Commission on Human Rights (CHR). 2005. Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief E/CN.4/RES/2005/40. Accessed December 10, 2016. http://www2.ohchr.org/english/bodies/subcom/57/aevdoc.htm. Committee on Economic, Social, and Cultural Rights. 2009. General Comment No. 21 Right of Everyone to Take Part in Cultural Life (Art. 15, Para.1(a), of the International Covenant on Economic, Social, and Cultural Rights) E/C.12/GC/21. Accessed December 10, 2016. http://www2.ohchr.org/english/bodies/cescr/docs/gc/E-C-12-GC-21.doc. Constitution of Cambodia. 1993. Accessed December 22, 2016. http://faolex.fao.org/docs/ pdf/cam117198.pdf. Donger, Wendy. 2011. “God’s Body, or, The Lingam Made Flesh: Conflicts over the Representation of the Sexual Body of the Hindu God Shiva.” Social Research 78 (2): 485–508. Dumoulin, Heinrich and John Maraldo. 1976. Buddhism in the Modern World. Mission Hills, CA: Benziger Publishing. Ekern, Stener, William Logan, Birgitte Sauge, and Amund Sinding-Larsen, eds. 2015. World Heritage Management and Human Rights. London: Routledge. Gillespie, Josephine. 2013a. “World Heritage Protection and the Human Right to Development: Reconciling Competing or Complimentary Narratives Using a Human Rights-Based Approach (HRBA)?” Sustainability 5: 3159–3171. Gillespie, Josephine. 2013b. “World Heritage Management: Boundary-making at Angkor Archaeological Park, Cambodia.” Journal of Environmental Planning and Management 56 (2): 286–304. Groves, J. Randall. 2014. “Southeast Asian Identities: the Case of Cambodia.” Comparative Civilizations Review 70: 9–25. Human Rights Committee. 1993. General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights CCPR/C/21/Rev.1/Add.4, General Comment 22. Accessed October 31, 2016. http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID= 8&DocTypeID=11. Human Rights Committee. 1994. General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights CCPR/C/21/Rev.1/Add.5, General Comment 23. Accessed October 31, 2016. http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?lang=en&treatyid=8 &doctypeid=11. Human Rights Council (HRC). 2007. Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief A/HRC/RES/6/37. Accessed October 31, 2016. http://ap.ohchr.org/Documents/E/HRC/resolutions/A_HRC_RES_6_37.pdf. International Council on Monuments and Sites (ICOMOS). 1998. Declaration of ICOMOS Marking the 50th Anniversary of the Universal Declaration of Human Rights. Accessed November 25, 2016. http://www.icomos.org/charters/Stockholm-e.pdf. International Council on Monuments and Sites (ICOMOS). 2014. World Heritage and RightsBased Approaches. Accessed November 25, 2016. http://www.icomos.no/whrba/. International Covenant on Civil and Political Rights (ICCPR). 1966. International Covenant on Civil and Political Rights. Accessed October 31, 2016. http://www.ohchr.org/EN/ ProfessionalInterest/Pages/CCPR.aspx. International Covenant on Economic, Social, and Cultural Rights (ICESCR). 1966. International Covenant on Economic, Social, and Cultural Rights. Accessed October 31, 2016. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.

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James, Peter. 2007. Heritage, Identity, Cultural Heritage, Cultural Diversity, and Human Rights: Professional Challenges. Australia ICOMOS. Accessed December 22, 2016. http://www. aicomos.com/wp-content/uploads/petercjames.pdf. Kapchan, Deborah, ed. 2014. Cultural Heritage in Transit: Intangible Rights as Human Rights. Philadelphia, PA: University of Pennsylvania Press. Kaynak, Erdener and Ali Kara. 2012. “Assessing Tourism Market Potential in a Dynamic Emerging Economy.” Asia Pacific Journal of Marketing and Logistics 24(2): 199–221. Landorf, Christine. 2009. “Managing for Sustainable Tourism: A Review of Six Cultural World Heritage Sites.” Journal of Sustainable Tourism 17 (1): 53. Larsen, Peter Bille. 2016. Understanding Rights Practices in the World Heritage System: Lessons from the Asia-Pacific and the Global Arena. UNESCO. Accessed January 20, 2017. http:// whc.unesco.org/document/139985. Larsen, Peter Bille, Gonzalo Oviedo, and Amund Sinding-Larsen. 2014. World Heritage and Rights-Based Approaches. Norge ICOMOS. Accessed January 20, 2017. http://cmsdata.iucn. org/downloads/world_heritage_and_rights_based_approaches_2014_oslo_report.pdf. Liljeblad, Jonathan. 2016. “The Pa’Oh’s Governance System and Kakku.” In Asian Sacred Natural Sites, edited by Bas Verschuuren and Naoya Furuta, 133–141. London and New York: Routledge. Logan, William. 2014. “Heritage Rights—Avoidance and Reinforcement.” Heritage & Society 7 (2): 156–169. Mao, Nara, Helena Grunfeld, Terry DeLacy, and David Chandler. 2014. “Agriculture and Tourism Linkage Constraints in the Siem Reap-Angkor Region of Cambodia.” Tourism Geographies 16 (4): 669–686. Marcotte, Pascale and Laurent Bourdeau. 2012. “Is the World Heritage Label Used as a Promotional Argument for Sustainable Tourism?” Journal of Cultural Heritage Management and Sustainable Development 2 (1): 80–91. Ministry of Tourism (Cambodia). 2016. Tourism Statistics Report April 2016 Executive Summary. Accessed January 10, 2017. http://www.tourismcambodia.org/images/mot/ statistic_reports/tourism_statistics_april_2016.pdf. Morgan, Nigel J., Annette Pritchard, and Rachel Piggott. 2003. “Destination Branding and the Role of the Stakeholders: The Case of New Zealand.” Journal of Vacation Marketing 9 (3): 285. Nowak, Manfred. 1993. U.N. Covenant on Civil and Political Rights: CCPR Commentary. Kehl am Rhein: NP Engel Publishers. O’Lemmon, Matthew. 2014.“Spirit Cults and Buddhist Practice in Kep Province, Cambodia.” Journal of Southeast Asian Studies 45(1): 25–49. Parker, M. Todd. 2006. “The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR.” Duke Journal of Comparative and International Law. 17: 91–129. Ryan, Jason and Sari Silvanto. 2009.“The World Heritage List:The Making and Management of a Brand.” Place Branding and Public Diplomacy 5: 290–300. Sambor Prei Kuk Management Plan. 2016. United Nations Educational Scientific and Cultural Organization. Available from the World Heritage Centre/UNESCO on request. Sambor Prei Kuk Request for Inscription. 2016. United Nations Educational Scientific and Cultural Organization. Available from the World Heritage Centre/UNESCO on request. Shimkhada, Deepak and Michael Reading. 2015. “Return to the Womb: Feminine Creative Imagery of arghya in a Tantric Ritual.” International Journal of Dharma Studies 3: 12–19. Swearer, Donald 2010. The Buddhist World of Southeast Asia, 2nd ed. Albany, NY: State University of New York.

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Throop, C. Jason and Keith Murphy. 2002. “Bourdieu and Phenomenology.” Anthropological Theory 2 (2): 185–188. Twiss, Sumner, Marian Gh. Simion, and Rodney Petersen, eds. 2015. Religion and Public Policy. Cambridge: Cambridge University Press. United Nations Educational Scientific and Cultural Organization (UNESCO). 2016. Tentative Lists, Groupe de Sambor Prei Kuk. Accessed January 20, 2017. http://whc.unesco. org/en/tentativelists/61/. United Nations General Assembly (UNGA). 1981. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief A/RES/36/55. Accessed October 20, 2016. http://www.un.org/documents/ga/res/36/a36r055.htm. United Nations General Assembly (UNGA). 2010. Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief A/RES/65/211. Accessed October 10, 2016. http://www.un.org/en/ga/65/resolutions.shtml. Universal Declaration of Human Rights (UDHR). 1948. Universal Declaration of Human Rights. Accessed October 10, 2016. http://www.ohchr.org/EN/UDHR/Pages/ UDHRIndex.aspx. Vrdoljak, Ana. 2013. The Cultural Dimension of Human Rights. Oxford: Oxford University Press. Weerasinghe, Jagath. 2011. “Living Sacred Heritage and ‘Authenticity’ in South Asia.” In Heritage, Memory & Identity, edited by Helmut Anheier and Yudhishthir Raj Isar, 139–147. Thousand Oaks, CA: Sage. Wijesuriya, Gamini. 2000. “Conserving the Temple of the Tooth Relic, Sri Lanka.” Public Archaeology 1: 99–108. Winter, Tim. 2003. “Tomb Raiding Angkor: A Clash of Cultures.” Indonesia and the Malay World 31 (89): 58–68. Winter, Tim. 2004. “Cultural Heritage and Tourism at Angkor, Cambodia: Developing a Theoretical Dialogue.” Historical Environment 17 (3): 3–8. Winter, Tim. 2014. “Heritage Conservation in an Age of Shifting Global Power.” Journal of Social Archaeology 14 (3): 319–339. Yupsanis, Athanasios. 2012. “The Meaning of ‘Culture’ in Article 15(1)(a) of the ICESCRPositive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures.” German Yearbook of International Law 55: 345–383.

5 EMPOWERMENT AND HUMAN RIGHTS Comparing two cultural heritage cases in Xi’an, China Harald Høyem

Background The swift urbanisation of China has often resulted in inhabited historic areas being replaced by modern urban landscapes.This chapter discusses whether human rights are respected during the designation, protection and development of cultural heritage initiatives in such historic dwelling areas. The involvement of local stakeholders, split into “right-holders” and “duty-bearers”, is used as an analytical tool to compare and contrast the degree of empowerment of residents in two different heritage processes in Xi’an, China. The conclusion is that further empowerment of common people is essential if we are to take human rights as a premise for the development and conservation of cultural heritage represented by inhabited historic urban districts. The Universal Declaration of Human Rights was adopted and signed in 1948 by 48 nations, among them China, one year before Mao Tse-Tung announced the birth of the People’s Republic of China, governed by the Communist Party. During the years of evolving human rights texts, China has expressed various reservations, stressing and maintaining that, when in conflict with human rights, their national laws should take precedence (United Nations 1966). The rapid urbanisation of the three last decades has also challenged and expanded this discrepancy in relation to China’s cultural heritage, particularly so when dealing with historic housing districts in big cities, often located in central areas where the pressure to replace inhabited, traditional structures with modern urban landscapes is high. The fundamental rights, expressed in the Universal Declaration of Human Rights (United Nations 1948), of particular relevance to the cases analysed here are: no-one should be arbitrarily deprived of his/her own property (Article 17.2); the right to religious belief and practice (Article 18); the right to freedom of

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expression (Article 19); the right to a decent living standard (Article 25); and, the right freely to participate in the cultural life of the community (and cultural heritage) (Article 27.1). A basic factor when studying the practice of human rights in China can be found in the documents of the ratification of the International Covenant on Economic, Social and Cultural Rights, in 1997, where Mr Qin Huasun, on behalf of the People’s Republic of China, declared: ‘The application of Article 8.1 (a) of the Covenant to the People’s Republic of China shall be consistent with the relevant provisions of the Constitution of the People’s Republic of China, Trade Union Law of the People’s Republic of China and Labor Law of the People’s Republic of China’ (United Nations, 1966), a reservation which is fundamental to understanding the conflicts and discrepancies between local practice and international human rights standards.

Xi’an City Located on the loess plateau of the Guanzhong Plain in the north-east of China (see Figure 5.1), Xi’an has been the capital of 13 different dynasties at different locations along the Wei River, a tributary of the Yellow River. The first known capital site dates back to the Zhou Dynasty (1046–256 BC), when a kind of prototype pattern of an imperial capital was developed. Being the terminal of the Silk Road, Xi’an (then named Chang’an) had its peak periods during the Western Han Dynasty (206 BC–5 AD), the Sui Dynasty (581–618 AD), and finally during the Tang Dynasty (618–907 AD). The population at that point was more than 1 million people. It is easy to understand why this historic past contributes to making Xi’an the second most popular tourist destination in China after Beijing. It is particularly known for the tomb of Emperor Qin Shi Huangdi and the Terracotta Warriors. Today, Xi’an is the thriving capital of Shaanxi Province; a city with 8 million inhabitants, it is expected to grow to 10 million before 2020. The physical, urban structure has a core area of approximately 36 square kilometres bounded by the 14th century Ming dynasty city walls. Inside the city walls are two historical areas, identified as Protection Areas on the Xi’an Masterplans. One is the Bei Lin district, surrounding what was the Kon Futse (Confucian) temple, now the Museum of Steles. The other, which is the first case study of this chapter, is the Drum Tower Muslim District. Outside the walls, urban development has taken place with three concentric ring roads, high-rise housing/skyscrapers and commercial districts and some parks. The city is home to two important historic sites, the Da Ming Gong Palace area of the Tang dynasty, with an area of 3.6 square kilometres, and the Chang’an City Palace area of the Han dynasty, covering 36.5 square kilometres, the subject of the second case study.

Case studies Two cases are dealt with in this article, both in Xi’an. One is the development and conservation process of the Drum Tower Muslim District, where people of the

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Map of Xi’an (Nguyen Huu Duy Vien).

Muslim Hui nationality are dominant. The other is the development of the Han Chang’an City as the terminus of the Silk Road, in the nomination process to be enrolled on UNESCO’s World Heritage List (WHL). The two cases are similar in that both are framed by the Chinese centralised governance system (see Figure 5.5), but there are dissimilarities in scale, history and political pressure. By splitting the notion of stakeholder, (which is the notion prevailing in international doctrinal heritage texts), into right-holder (emphasising the rights) and dutybearer (emphasising the obligations), an analytical tool is created. Most actors will have dual roles in the process, in some contexts being a right-holder, in others a duty-bearer. The perspective allows us to throw light on how power relationships between authorities and local people feature in the handling of cultural heritage sites. This, consequently, provides a basis for a discussion about how human rights are respected or disrespected during the processes.

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Case 1 background: Drum Tower Muslim District In 1997, the Norwegian government signed a state-to-state agreement with the Chinese government on funding an aid programme for environment projects, financed by the Norwegian Agency for Development Cooperation (NORAD). The conservation and development of the Drum Tower Muslim District was one of the funded projects. The Norwegian University of Science and Technology (NTNU) became the unit in charge of implementation on the Norwegian side. The appointed counterpart on the Chinese side was Xi’an Urban and Rural Construction Commission. Colleagues at Xi’an University of Architecture and Technology (XAUAT) joined the project later. The project objectives, initiated by NTNU and confirmed by China and Norway, were manifold – and ambitious: they included area conservation planning, conservation of four historic courtyards, new housing projects in heavily dilapidated courtyards, urban up-grading, improvement of infrastructure, staff training and establishing communication systems vis-à-vis the local population. A cross-disciplinary team was set up, with professionals from planning, architectural design, architectural conservation, anthropology, water supply and sewage techniques as well as computer technology – especially the use of GIS (geographic information systems). A project office was established in one of the historic courtyards with a staff of six members, mainly planners and architects from Xi’an City Planning Bureau, appointed by the Xi’an Urban and Rural Construction Commission. The work lasted from late 1997 through to 2002.

Case 2 background: Han Chang’an City China has 50 World Heritage sites to date, ranking second in the world in terms of the total number of sites. Of these, 35 are cultural heritage sites, 11 are natural heritage sites and four are mixed cultural and natural sites. The ‘Silk Roads: the Routes Network of Chang'an-Tianshan Corridor’ inscribed in 2014 connects routes, sites and components in China (among them Han Chang´an City), with sites in Central Asia (Kazakhstan and Kyrgyzstan). Between 2011 and 2016 the development of the Han Chang’an City was studied by a team from NTNU and XAUAT. The project, “Involvement of Local Stakeholders – development and conservation of Han Chang’an City historic site”, was initiated by the two departments, funded through their normal budgets with contributions from the Royal Norwegian Embassy in Beijing. The studies focused on how local people were involved in the processes leading up to the World Heritage inscription. Work methods mainly involved interviews of villagers, local businesspeople, planners and politicians engaged in the project on different levels over a four-year period. In parallel, media such as newspapers, TV, radio and internet were studied. In addition, data were collected by personal observations through regular site visits combined with further interviews in the field. The project also involved a reference group, consisting of representatives of the cultural relics units, universities and planners at the highest level.

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Map of Xi’an showing the location of the two cases of this chapter (Nguyen Huu Duy Vien).

The notion of “involvement of local stakeholders” refers to several doctrinal texts which have to be respected when applying for inscription on the World Heritage List (see, for example, ICOMOS 1987, 1990, 2008, 2011; UNESCO 2012). This aspect has been more and more explicitly underlined in newer charters and conventions, and it was explored how this was tackled in the Chinese context, known for its typical top-down governance practices.

Case 1: the Drum Tower Muslim District Let us now return to Case 1, the Drum Tower Muslim District, and the heritage processes observed during our work there. All of the human rights listed in the introduction above were arguably at stake in the development and conservation of the project area in the period between 1997 and 2002. The whole district covers 54 hectares and is inhabited by approximately 60,000 persons; although a considerable number of Han Chinese inhabitants also live there, the Hui people are dominant enough (roughly a third of the population) for the area to be known as a Muslim district. The project area described here covers 11.8 hectares and has 5000 inhabitants, 93% of them Hui.1 This site is located in the very centre of the city, with the Ming Dynasty Drum Tower as its south-east cornerstone, and the main east to west urban axis, Big West Street (Xi Dajie), as the southern border.

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The Drum Tower Muslim District was one of two areas within the city walls of Xi’an to be designated a “protection area” in the Master Plans of 1980–2000 and 1995–2010. What “protection area” meant, however, was open to interpretation. Due to mutual distrust, conflicting interests and cultural politics, rights had a long history of being challenged. There were attempts to relocate the residents, for example, by offering sites for mosques and land for new housing outside the city centre, but these were firmly refused by the Huis. Our survey showed that the majority of the families wanted to stay and live on in the area.Yet, lessons from the turbulent past are not easily forgotten.2 Staying together allowed people to feel safe and secure, explaining why the present Hui residents in the area are reluctant to leave to be settled elsewhere. Another reason for staying is the favourable location in the very centre of the city where tourists, pilgrims and Xi’an citizens search for restaurants and souvenirs in the exotic atmosphere after visiting the beautiful Great Mosque, second only to the Terracotta Warriors in popularity among tourist spots in Xi’an; many Hui families make a good income running small tourist shops and restaurants. The government had for a while – as unspoken policy – considered relocating inhabitants out of the area and dividing the community into smaller units. This, for example, led to the rejection of conservation plans in 2002, which would have recognised Hui rights in the area. A government leader later explained: “By approving this plan we had to admit the Huis had the right to stay there: basically the political system was opposing that” (personal interview). The government was, however, reluctant to cause unnecessary conflicts with the Huis, preferring to intervene as little as possible and let them take care of their own business. This “non-intervention” approach initially led to lower sanitary and infrastructure systems and housing standards compared to surrounding urban areas. The residents, however, were empowered and kept fighting for their rights. Resisting pressure from the authorities and real estate developers, the local residents managed to develop their environment step by step in response to changing social and economic conditions.

Site and history The Huis are Sunni Muslims divided into three sects (Gedimu, Xinjiao and Yihenwahi) and live in so-called Jiao-Fang, mosque-centred neighbourhoods (Dong Wei, 1995, 66), which are patterned very differently from the usual street and neighbourhood committees organised by the government. Physically, this religious demarcation has no visual boundaries, unlike the street committees, and for an outsider it is impossible to know which courtyards belong to which mosques. Although there are quite substantial differences between the sects, facing outwards they form one entity, represented by the Imam of the Great Mosque, and vis-à-vis the government this is the only Hui representative body. At the time of the study, the parcels of the courtyards were owned by families who were clinging to their housing property, resisting attempts by real estate agents

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The project area in the Drum Tower Muslim District (XAUAT 2002).

to buy and combine several properties to form sites for bigger housing volumes. Other than on Bei Yuan Men Street, north of the Drum Tower, and the main northsouth axis along the eastern border of the Muslim district, there were very few attempts to find architectural solutions relating or referring to the original building style. The only rule introduced by the government was height regulations, which were not strictly controlled. The exception, Bei Yuan Men Street, was in the 1990s declared by the Mayor to be a so-called historic street in Ming and Qing dynasty style. In contrast, a “new vernacular housing”3 style emerged, erasing the traditional courtyards, built in relation to available space, economic means and contemporary needs of the families. As few families moved out, the result was very compact housing compounds with buildings lower than four stories (although still higher than allowed under the height regulation, which specified a two storey maximum). The escalating tourism since the 1990s increasingly influenced the character and use of the main streets and the buildings.

Some experiences from consultancy work in the district Project experience in the area was not merely technical, but also revelatory about the complex power relations in the area. Prior to starting the project, authorities even recommended choosing another site: “It is impossible to perform anything here. There are too many contradictions: Between the Huis and the government,

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between the sects, between families, within families, between neighbours. Our advice is: Find another area for the project” (personal communication). Later, we were told by one of our Chinese counterparts, “the situation is sensitive. We have to move carefully not to upset the Huis”. While our project was small compared to other urban development schemes in Xi´an city, it appeared to raise certain political sensitivities. Counterparts from the government carefully sought not to defy local families in their daily work. The project office was supposed to partly be the operative unit of the project and partly serve as an information centre for people to bring their problems on construction and repair matters. The operative role was by and large taken care of.The office never worked as an information centre as such. If someone showed up, it was solely to complain or to ask for money. Attempts to prepare an information letter for households were undermined and transparency was not high on the agenda. The governmental representatives were both right-holders and duty-bearers. They were right-holders vis-à-vis the central state level, with freedom to express their opinions, participate in decision-making and have access to information. This freedom, however, was limited by the perpetual search for balance in the relationship with the Hui people, who were not afraid to hold open demonstrations when conflicts occurred. As duty-bearers, the authorities did not open up opportunities for substantive participation of local residents in decision-making processes. Still, the government was careful not to get trapped in contradictions with the Huis, which resulted in a local population more empowered than is usually seen in China. The Imam of the Great Mosque was informed now and then and the practice of non-interference de facto allowed for certain rights being passively recognised. Also, the right of not being haphazardly deprived of private property or moved out against their will was maintained as an overarching principle for the project and was respected. The special political situation vis-à-vis the Huis in Xi’an in practice enabled them as right-holders to maintain their property, their religious freedom (the most orthodox believers attended mosque five times a day) and the right to a decent living standard. The latter, however, was affected by delays in developing infrastructure and variations in family incomes. Regarding the possibilities for taking part in planning and decision-making regarding cultural heritage, only families of the four historic courtyards, which were included in the conservation plan, took part in the discussions. One courtyard’s residents withdrew from the project completely because of internal disagreements. While this withdrawal was unfortunate for the overall conservation of the area, it demonstrates some influence by the affected residents. Other than this, though, this right was subdued. At a more general level, information was given to the public by the Street Committee and during the Friday prayers in some mosques. Even if further systematic information sharing did not materialise, Hui residents appeared well informed about the overall conservation and development process.

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Case 2: Han Chang’an City In contrast to the Hui experience, the rights situation in the Han Chang’an City revealed a different scenario resulting in part from the nomination of the area as a World Heritage site. First of all, villagers lived through years of uncertainty regarding the future of their villages. Would the villages survive, or would they be demolished? How do we explain such differences compared to the first case study? Located just outside the Second Ring Road (see Figure 5.2), the archaeological field site has a relatively central location in the urban landscape of Xi’an. The size and location of this archaeological field indicates a high pressure on the land where different interests compete for precedence: not only was the land needed for urban growth, the area was already inhabited by some 60–70,000 people in 54 villages. Archaeological excavations have taken place since 1959, yet when our research started in 2011, only fragments of city walls and some ruins of building foundations, all of rammed earth, were visible above ground. Today’s Chang’an City, covering 36.5 square kilometres, was the palace area of the whole Han dynasty city. Han Chang’an had its peak period during the Western Han dynasty when it was the cultural and administrative centre, the capital and the residence for the Han emperors’ court. It lost importance when the capital was moved to Louyang during the Eastern Han dynasty (25–220 AD). The site was then more or less abandoned until the Tang dynasty (618–907). Existing villages can be traced back to the Ming dynasty (1368–1644); in the middle of this dynasty there were 24 troop villages in the area. Later, farming was the dominant occupation for the villagers (Wang Daiyun, NTNU/XAUAT 2014, 36). The Han dynasty is a main reference for the Han people, the majority group among the Chinese nationalities, and thus of great national interest. The city government also pays attention to the Han dynasty, but also for more pragmatic causes: it, along with the Tang dynasty, is a good trademark for the city, emphasised whenever possible to strengthen self-esteem and to attract tourists and investors, in competition with other Chinese cities.

Process and local stakeholders Regulations set up by government and state archaeologists since the 1950s have increasingly curbed development possibilities for the local villagers, most of whom were originally farmers. In order to protect the underground cultural relics and ruins, deep digging was forbidden, resulting in limited possibilities for improving infrastructure systems such as water supply and sewage. Regulations have also reduced farming activities that could threaten archaeological remains close to the surface. Building restrictions designed to prevent the crushing of or damage to archaeological remains have also reduced people’s possibilities of improving personal housing standards or adding rooms to be rented out to migrant workers. Not surprisingly, many have tried to bypass these regulations. For a long time, the Xi’an government hesitated to invest in the area, postponing

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the difficult decisions that would result in terms of how to handle the complicated situation. As a result, the living standards and income levels of people in the Han Chang’an City district lagged behind the overall development of Xi’an. In 2003, the per capita annual net income of the residents within the site area of Han Chang’an City was 3068 yuan, 1260 yuan lower than that of residents in the outer areas around the site (Su Jing, NTNU/XAUAT 2014, 45). Villagers lived through years of uncertainty regarding the future of their villages. As a consequence, farmers started to sell or rent out their rights to use the land so that they could migrate elsewhere for work. Some farmland was confiscated for other uses like industry and storage facilities, but not always in transparent processes. The World Heritage nomination process would add yet another pressure on the district. The Silk Road had been on the tentative list for World Heritage Listing for more than ten years when our research started. The nomination dossier was prepared as a collaborative effort between the governments of China, Kyrgyzstan and Kazakhstan.The first section of the Silk Road proposal was the so-called Chang’an– Tian Shan corridor, which covers 33 different sites including Han Chang’an City, the terminus. When the nomination process was underway, there was already a prevailing feeling of resignation among villagers.This was caused partly by the long process before the nomination process took off without much concrete information about future developments, and partly by the understanding, expressed by interviewees, that “the leaders” would decide themselves anyhow. Among residents, there appeared to be no will to fight for their rights – at least not during the period while our field research was carried out. We conducted interviews every second month for four years with local residents and businesspeople, yet no public discussion on plans and procedure took place in this period. It was only when a decision was taken to relocate residents and relocation dates got closer that information sharing started. Then, detailed information was given on practicalities such as deadlines for moving out and compensation rules. By then, an international perspective was added to the already tricky situation: introducing international doctrinal rules for how to handle the process. Both in the nomination documents and management plans, the question was how international standards on stakeholder involvement fed into the process. How to deal with the contradictory interests had been a headache for politicians and planners of the city for a long time. The World Heritage process accelerated the process and served as a push towards making final decisions. After consulting UNESCO and ICOMOS,4 the Weiyang Palace area was designated to represent the whole of Han Chang’an City in the Silk Road Project in 2007. The Weiyang Palace (see Figure 5.4) is the core palace of the site, situated on an artificial hill, which dominates the otherwise flat landscape. The overall master-planning was carried out by the China Institute of Historical Architectural Design, Beijing. Public information given by the government was the only information really trusted by the residents. Public notices were scarce, there were no open meetings

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and the information provided was too general to allow the villagers to plan for how to approach the future. Otherwise more or less trustworthy rumours dominated the information landscape. Even in August 2012, only four months before relocation was scheduled to start, only leaders and some of the main media of Xi’an were invited to the opening ceremony of the Administrative Committee of Han Chang’an City in front of the Front Hall Ruin of the Weiyang Palace. It was only just before relocation that “solid” information was given to inhabitants, concentrated on compensation, practical measures for moving, future housing for relocation, removal of ancestors’ tombs, etc. The implementation of these plans, not least demolishing buildings and the relocation of residents, also started before the plans were formally approved by the political system. While the Chang’an Tian Shan Corridor was listed as World Heritage in June 2014 (UNESCO 2014), nine villages inside the Weiyang site were

FIGURE 5.4

Han Chang’an City map. Location of Weiyang Palace site (NTNU/XAUA 2014, 9).

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demolished and approximately 15,000 villagers had already been relocated between December 2012 and February 2013. Was it an attempt to save time and get the site ready as soon as possible? Soon after, during the spring of 2013, 3000 workers/archaeologists worked on clearing the 6.7 square kilometre site completely and creating a new archaeological park with streets, archaeological excavation areas as well as grass, trees and bushes.Within 45 days, by July 2013, the whole transformation had been finalised. “Why such a hurry?” one might ask. It is likely that the accelerated process was based on a misunderstanding that the authorities needed to have completed everything by the time ICOMOS undertook its field evaluation (the ICOMOS inspection took place in October 2013).5 Possible discussions on rights aspects during this process were sensitive information and were not accessible to the research team. Still, it appears that the villagers were given a reasonably “proper” compensation or at least more than what was common for similar expropriation cases. This was mainly because the Han Chang’an City project was given top national priority6. Residents could choose between being “cashed out” or receiving a modern apartment in a high-rise housing district outside the 3rd Ring Road. The construction project had not yet started at that time, but was promised to be ready after 13 months. In the meantime, the villagers had to find their own temporary housing, either in neighbouring villages, with relatives or by renting flats somewhere in Xi’an.7

Analysis The main actors involved were politicians and planners from all levels of the hierarchies as well as local villagers and businesspeople. The political and professional apparatus can be thought of as two parallel hierarchies (see Figure 5.5). In both hierarchies, a lower level is instructed by a higher one. The political hierarchy instructs the professional hierarchy at each respective level; national, provincial, municipal and local village. Information flows work accordingly. In our findings, the lowest level, the village council, was the last one to be informed about subsequent steps of the processes. Village leaders only received the necessary information just in time to prepare for the implementation of the plans, i.e. the demolition of the villages and the relocation of the residents. While professional experts and politicians were heavily and continuously involved in the process, the situation was different for the villagers and local businesspeople whose involvement was limited to dealing with regulations and decisions by obeying them, or risking fines if circumventing them. They had no influence on the procedures or the elaboration of the plans, but became heavily involved when they were told to relocate, choose compensation measures and ultimately move out. For the politicians and planners, in their role as right-holders, the rights to free expression, participate in decision-making and access and disclose information, are of interest. In the top-down hierarchical structure in which they operate, possibilities for free expression, access to and disclosure of information is partly present and

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State Council

Department of Conservation

Ministry of Culture

Department of Heritage

State Administration of Cultural Heritage

National Level

Shaanxi Provincial Government

Renowned Scholars

Shaanxi Provincial Administration of Cultural Heritage

Xi’an Municipal Administration of Cultural Heritage

Xi’an Municipal Government

Provincial Level

Municipal Level

WeiyangDistrict Government

Han Cheng Conservation Office Village Council

FIGURE 5.5

The administrative and political hierarchies – here applied to Case Study 2, Han Chang’an City (NTNU/XAUAT 2014, 69).

partly limited by instructions received vertically from higher levels or horizontally by the political and professional hierarchy pyramids (see Figure 5.5). As duty-bearers, they nonetheless have the obligation to protect the rights of the villagers. Were the villagers deprived of their property rights or not? Where the public interest requires relocation, residents have no other choice than to accept it with the proposed compensation arrangements, given that no other solutions are available. This is a common, if much debatable, practice in many parts of the world, and may appear implemented in a tough manner in a rule-by-law-state such as China. Yet, was this total relocation really necessary? Could other solutions not have been considered? One could certainly argue so. Planning and design could, as a premise, have been based on curbing relocation to a minimum. A more considerate and careful model of presenting the history of the site could have been implemented by upgrading and integrating existing settlements, rather than the chosen solution of creating an archaeological park on a site where all traces of the present villages were to be removed. Alternatives could have been sought with the residents. As far as we experienced, people we interviewed were not afraid of expressing their opinions. The problem was rather a lack of proper information for such a long time, which resulted in apathy or resignation. Today, the right of former residents to a decent living standard has partly been addressed. In terms of material standards, most villagers probably have better conditions in the new high-rise buildings compared to their previous dwellings. What

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they have lost, however, is the direct contact with the courtyards and the streets, where important social networks are formed and maintained. Some of the interviewees in our research welcomed this change, whilst others would have preferred to stay where they felt they had their roots and social life. An 11-year-old girl from the village, Da Liu Zhai, said: My mother told me that the mounds around the village are all part of Han Chang’an City. Though they are ruins now, they are still a treasure. So amazing! Several of our good friends at once went to see the protected mounds. It looks beautiful; we were lying on the wood [a plateau at the top of the Weiyang palace site] and felt very good. I hope all the ruins here can be protected. And then our village will be more beautiful – ah! (personal communication) Yet, there was no participation space in the processes to express such diverging opinions. Rather, residents’ personal involvement was limited to taking part in the implementation of plans, namely to accept and take part in the planned relocation and demolition of buildings. As to communication, the scarce public information available made rumours the prevailing medium, causing frustration and passivity rather than active involvement. In some essential respects, it may be concluded that the villagers’ human rights were not particularly respected, and the duty-bearers made little effort to improve the situation.

Conclusion In heritage conservation, two diametrically opposed approaches prevail. The first aims to return the object for conservation to a state which is considered representative of a special period of time with the intent of erasing later footprints. In the second approach, footprints from all historical periods are considered to be valuable elements of the object’s history and are treated accordingly in terms of conservation planning. In the Han Chang’an City case, the first method was practiced by giving supreme priority to the material relics and history of the Han dynasty, wiping out whatever had happened later on the site over a period of 2000 years. This raises important questions about what cultural heritage fundamentally is. Firstly, were the existing villages not also part of the cultural heritage, even if built mainly in the twentieth century, yet nonetheless on and in continuation with the former village structures of the Ming and Qing dynasties? Secondly, the selected approach for the conservation and development of the site resulted in a tabula rasa process, which ignored fundamental human rights of the villagers. A critical reflection on the effects of World Heritage listing, triggered by the Han Chang’an City case but probably pointing towards a more general conclusion for a range of other sites, concerns the power dimension. World Heritage listing is prestigious for a state, enhancing the powers granted to the top of the pyramid to undertake change (see Figure 5.5). A “rule of law” governance state may use World

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Heritage listing as a tool to improve conditions for common people, acting as dutybearer in a good sense. A less democratic (“rule by law”) state will, on the other hand, be empowered by central authorities to disregard human rights of the people in the name of cultural heritage protection. Let us now return to the comparison of the two cases presented in the chapter. Comparing the two cases from a human rights perspective reveals similarities and distinct differences. Both are important cultural heritage sites. Both are, in principle, under governmental control in a hierarchical structure. In both cases the disclosure of information by the government was very limited. However, in the Drum Tower Muslim District, the population was better informed, due to the slow speed of development, allowing residents to study the on-going work and information given by the imams at the Friday prayers. Participation in the planning was also absent here, except for the conservation of four traditional courtyards where the families actively took part in discussions and negotiations. In both cases the right to a decent living standard was more or less secured. However, when it comes to the question of evictions and displacement,8 the two cases were totally different. In the Drum Tower Muslim District case, there were no evictions. In contrast, some 15,000 residents in nine villages were relocated in the Han Chang’an City. To summarise, it is evident that local stakeholders in Han Chang’an City were deprived of their rights to a much larger degree than was the case in the Drum Tower Muslim District. We suggest that one main reason for this difference concerned the way in which people had become passive in the former, while locals in the latter were empowered to fight for their rights, thus reducing the dominance of the hierarchical governance structure.

Notes 1 2

3 4 5

The Hui nationality is one of ten Muslim minority groups; China has 55 ethnic minorities. The Mongol rulers defined the Hui as a particular nationality during the Yuan dynasty (1271–1368). Through history they have endured alternating conditions vis-à-vis the governing authorities: showed confidence by the Yuan Mongol rulers, integrated by force in the Ming dynasty, and joined rebellion groups, attacked the Qing armies when this dynasty faced great difficulties.The Huis suffered great losses, then were slaughtered and banished from their homes and villages – not least in Xi’an and its vicinity (Dillon 1999, 63). In the post-dynastic period, the Huis were identified as a separate nation by Sun Yat Sen, but not by the later Kuo Ming-tang leader Chiang Kai-shek (Dillon, 1999: 81–82). While facing suppression as a minority during the Cultural Revolution, they were also given certain privileges by the communist regime (as is the situation today). An evolution described by Dong Wei (1995). ICOMOS: International Council on Monuments and Sites, an advisory body to UNESCO on World Heritage matters. This was, of course unnecessary, not to mention unwanted. Another possible reason may also be considered. Each country can only propose a limited number of sites for inscription annually. In a country like China, with numerous possible candidates, there is keen competition to be selected by the national authorities. By showing this kind of efficiency, the Xi’an government might have hoped to prove itself a ‘worthy’ candidate.

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6

7 8

The compensation offered for leaving land was 100,000 yuan. Compensation for leaving a house was a new dwelling with a floor area similar to the ground floor of the original house, plus 25% of the first floor area. In the new high-rise housing area where this was offered, the residents were promised a share of shop areas in the buildings – but without any further details. Because there were no written documents confirming this, we have to rely upon what was said in interviews. There is no documentation on how this problem was solved; the 15,000 residents were left to their own devices. Some interviewees indicated that it was not very difficult to find a place to live while waiting for the new housing to be finished. Benchmarks can be found in the UN document Basic Principles and Guidelines on Development-Based Evictions and Displacement, dealing with timely and appropriate information (#35 and 37), avoiding unnecessary evictions (#32), exploring alternatives (#38, 40 and 41), and not being evicted before compensation dwellings are ready for use (#44) (United Nations 2013, 8–10).

References Dillon, Michael. 1999. China’s Muslim Hui Community. Migration, Settlements and Sects. London: Curzon Press. Dong Wei. 1995. An Ethnic Housing in Transition. Chinese Muslim Housing Architecture in the Framework of Resource Management and Identity of Place. (PhD thesis.) Trondheim: NTH, Faculty of Architecture. ICOMOS. 1987. Charter for the Conservation of Historic Towns and Urban Areas (The Washington Charter). Accessed September 15, 2016. http://www.icomos.org/en/what-we-do/ focus/179-articles-en-francais/ressources/charters-and-standards/159-charter-for-theconservation-of-historic-towns-and-urban-areas. ICOMOS. 1990. Charter for the Protection and Management of the Archaeological Heritage. Accessed May 10, 2016. http://www.icomos.org/charters/arch_e.pdf. ICOMOS. 2008. Charter on the Interpretation and Presentation of Cultural Heritage Sites. Accessed September 15, 2016. http://icip.icomos.org/downloads/ICOMOS_Interpretation_ Charter_ENG_04_10_08.pdf. ICOMOS. 2011. The Valletta Principles for the Safeguarding and Management of Historic Cities, Towns and Urban Areas. Accessed September 15, 2016. http://www.icomos.org/ Paris2011/GA2011_CIVVIH_text_EN_FR_final_20120110.pdf. NTNU/XAUAT (Norwegian University of Science and Technology and Xi’an University of Architecture and Technology). 2014. Involvement of Local Stakeholders. Development and Conservation of Han Chang’an City Historic Site, Final Report. Xi’an/ Trondheim: Xi’an University of Architecture and Technology/Norwegian University of Science and Technology. UNESCO. 2012. The World Heritage Convention Operational Guidelines. Accessed September 15, 2016. http://www.icomos.org/charters/arch_e.pdf. UNESCO. 2014. Silk Roads: The Routes Network of Chang’an-Tianshan. Accessed May 10, 2016. http://whc.unesco.org/en/list/1442. United Nations. 1948. The Universal Declaration of Human Rights. Accessed 10 May 2016. http://www.un.org/en/universal-declaration-human-rights/. United Nations. 1966. International Covenant on Economic, Social and Cultural Rights. – United Nations, 1966. Accessed August 5, 2016. https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&clang=_en#EndDec. United Nations. 2013. Basic Principles and Guidelines on Development-Based Evictions and Displacement. Accessed September 15, 2016. http://www.ohchr.org/Documents/Issues/ Housing/Guidelines_en.pdf.

6 WORLD HERITAGE AND RIGHTS IN MALAYSIA A case study of Kinabalu Park World Heritage Site, Sabah Amran Hamzah

Introduction Malaysia is home to four World Heritage sites (WHS), two of which are recognised for their cultural values, and two – Kinabalu Park and Gunung Mulu National Park – for their natural ones. Both natural sites were inscribed onto the World Heritage List in the year 2000. Despite the success of Kinabalu Park as a WHS in preserving its Outstanding Universal Value (OUV) and at the same time enjoying the spinoffs from ecotourism, the inscription of Kinabalu Park has also led to the loss of local rights among the indigenous community living within or around the Park’s boundary. This chapter examines the historical antagonism between the Kampung Bundu Tuhan indigenous community and the related authorities over rights issues in the context of the World Heritage inscription process. It then offers lessons to be learned from the remediation process that took place in the effort to restore local rights that could have wider implications for the region, where the inherited colonial model of governance of protected areas and World Heritage is increasingly being contested. It follows up a paper presented by the author during the World Heritage and Rights-Based Approaches Workshop held in Oslo, Norway from 1–3 April 2014. Mount Kinabalu stands 4,095m above sea level on the island of Borneo in Sabah, Malaysia, making it the highest mountain in South-East Asia (see Figure 6.1). In 1964, the pristine areas surrounding the mountain were gazetted as Kinabalu National Park, subsequently renamed Kinabalu Park in 1984. The Park is administered by the Board of Trustees of Sabah Parks (Sabah Parks), a statutory body under the Ministry of Tourism, Culture and Environment Sabah. In 2000, Kinabalu Park was the second natural area in Malaysia to be inscribed as a World Heritage Site on the basis of its Outstanding Universal Value for its exceptional levels of biological diversity and number of endemic species. The Park is surrounded by 45

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FIGURE 6.1

Map of Kinabalu, Malaysia (Nguyen Huu Duy Vien).

communities of the Kadazandusun ethnic group with a total population of roughly 15,000, who regard the mountain as sacred and the perpetual resting place of the spirits of their ancestors (Keith 1939). Despite being the largest indigenous community in Sabah and having Bumiputra (son of the soil) status,1 the Kadazandusuns’ land tenure rights, since the Park’s gazettement and subsequent inscription as World Heritage, have been at the centre of serious contestations, especially in terms of access to what is locally referred to as kawasan rayau (literally meaning ‘wandering area’, to hunt for small game, extract forest resources for house construction and use as a burial ground and scared sites for spiritual activities). Despite the deep spiritual relationship between the local communities and the sacred mountain, the Kinabalu Park nomination dossier regarded the local communities as a ‘threat’ to the biodiversity of the area and recommended the resettlement

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of families living within the Park. It ignored the fact that the local community’s reverence for Mount Kinabalu was one of the reasons why the slopes of the mountain had been spared from uncontrolled physical exploitation (van der Ent 2013). Historically the local communities were given a say in neither the gazettement of Kinabalu Park nor the subsequent nomination process of the Park as a World Heritage Site. Prior to the establishment of Kinabalu National Park in 1964, the Kadazandusun communities living at the foot of the mountain were free to enter the forest to hunt and gather forest resources for sustainable uses, as the forest was considered as their kawasan rayau. Upon being gazetted as a National Park, and subsequently as World Heritage, such activities were deemed illegal by the park authority, Sabah Parks.

The rights issues saga in Sabah One of the major issues related to indigenous rights in Sabah is the difficulty in having claims to customary and native land rights recognised by the state government. Conflict between the state government and the rights of the indigenous communities has been a long-standing issue in Sabah, often associated with the loss of source of sustainable livelihoods, degradation or destruction of natural ecosystems and the acquisition of customary land for public projects (Yong 2003). Furthermore, there have been many forced resettlements considered ‘necessary’ for physical development and even conservation efforts, such as the resettlement of Kadazandusun families, including their farms and orchards, due to the inscription of Kinabalu Park onto UNESCO’s World Heritage List (Vaz 2012). Prior to World Heritage listing, a total of 2,000 ha. of land within the Park boundary were claimed by the adjacent villagers as native customary land based on the State Land Ordinance. Most of the land was used for fruit tree cultivation and burial grounds. These claims had been made since 1988, but had been ignored by the Park management and state government, together with another claim for the use of 1,800 ha. of land for agricultural purposes. To add to the resentment of the local communities, inhabitants who were living within the Park boundary prior to listing were resettled outside the park despite having lived there for at least five generations (Vaz 2012). In essence, the roots of these conflicts were mainly attributed to the colonial model of protected area management inherited by the related agencies in which local communities were excluded from the Park upon its gazettement as a National Park in 1964 and subsequently as a WH site in 2000 (Hamzah et al. 2013).

Case study of Kampung Bundu Tuhan Kampung (Kpg.) Bundu Tuhan, one of the many villages located adjacent to Kinabalu Park, offers an interesting case study to examine local rights issues in relation to the inscription of Kinabalu Park as a World Heritage Site. Historically, Kpg. Bundu Tuhan had developed strong opposition to the authorities in response to their mandatory exclusion from the Park, which they regarded as infringing

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their rights of access to their ancestral land and kawasan rayau. Kpg. Bundu Tuhan is located in a Native Reserve covering 1,299 ha., of which 60 percent has been set aside by the community itself as a protected forest. Right from the gazettement of Kinabalu Park as a National Park, the Kadazandusun community at Kpg. Bundu Tuhan was adamant about preserving their rights of access and use of their kawasan rayau, which is located within the Park itself. While the other surrounding villages accepted the relocation directive without much resistance, Kpg. Bundu Tuhan decided to challenge Sabah Parks and the Sabah Forestry Department by managing its own forested area as a community forestry initiative but devoid of official recognition from the relevant authorities. Interestingly, many of the villagers at Kpg. Bundu Tuhan became employed by Sabah Parks as guides, rangers and porters as ecotourism became a major activity with the establishment of Kinabalu Park and the World Heritage listing. In fact, the Kadazandusun porters, who are mainly from Kpg. Bundu Tuhan, have become synonymous with the Park and have been recognised as part of the overall tourist experience as they exhibit extraordinary strength and spirit in carrying heavy loads up and down the mountain each day. In recognition of their contribution, the state government awarded them the Minister’s Special Award, stating that ‘they represent the strength and courage of the human spirit to do what is necessary to bring pride, honour and respect for the mountain’ (Borneo Post 21 November 2011). During the tragic earthquake in 2015, several of the 16 lives that perished were guides from the village.These same guides were among those consequently celebrated and awarded for saving the lives of tourists (New Straits Times 5 June 2016). Over the years, a form of ‘love–hate’ relationship had developed between Sabah Parks and the Kpg. Bundu Tuhan community in terms of local rights issues, specifically their right to make an annual pilgrimage up Mount Kinabalu; this had been denied since the gazettement of Kinabalu Park in 1964 until 2010, when they were allowed to resume their annual pilgrimage. The spiritual dimension of local rights was engulfed in a controversy during the Mount Kinabalu earthquake in 2015. Only a few weeks before the earthquake, a group of Western tourists were caught stripping and posing naked at its peak.When the earthquake occurred, many locals believed that it was due to this disrespect for the sacred mountain, which had angered the mountain spirits (the Star 5 June 2015) – a view that was mocked as being backward and superstitious by a small section of the Western media (Daily Mail 8 June 2015; Daily Mirror 8 June 2015; the Sun UK 10 June 2015). In hindsight, the tragedy triggered a realisation among the Park management as to how little attention had been paid towards preserving the spiritual values of Mount Kinabalu given that the code of conduct and ‘dos and don’ts’ for tourists did not adequately cover responsible behaviour and respect for the rights of local values and beliefs. More importantly, the State Minister for Tourism ‘discovered’ from the tragedy how poorly paid the guides and porters were, and yet that they were so devoted to their role as joint custodians of the sacred mountain that they were willing to risk their own lives to save the climber. Moreover, they believed that the loss of human life on the mountain would invite bad luck and incur the wrath of the mountain gods.

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Changing approach of government agencies toward local rights As mentioned earlier, the approach used in the management of Kinabalu Park as a National Park and WHS had historically excluded the local community, especially from the decision-making process. The way Kinabalu Park is managed is also different from the management structures of other World Heritage sites in Malaysia, especially the cultural properties. In the case of George Town (Penang) and Melaka (serial cultural sites inscribed in 2008), there are independent, dedicated World Heritage Offices at each site. For Kinabalu Park, however, the WHS management duties are carried out by a unit in Sabah Parks. As a consequence, the management of Kinabalu Park as a WHS is almost totally dependent on the management strategies and enactments of Sabah Parks, which uses the Parks Enactment 1984 as the basis for its management. As a result, the WHS dimensions and processes of Kinabalu Park have been relatively subdued by this form of governance framework. In addition, the opportunity to include human and spiritual dimensions in the OUV and cultural values of Kinabalu Park was not realised during the nomination process because rights-based approaches had yet to gain traction within the decision-making processes of the relevant agencies. While it is true that NGOs and activists had been actively championing the rights of the indigenous communities since the 1980s, their efforts were largely regarded as political and ‘anti-government’ in nature (Vaz 2012). However, this attitude has since changed and Sabah Parks and the related agencies have begun to embrace a more inclusive approach in their management. Despite this, the local communities were given preference in personnel recruitment by Sabah Parks, becoming guides, rangers, porters and resort workers, etc. In addition, a cooperative for the local guides/porters (Koperasi Serbaguna Taman Sabah Berhad or KOKTAS) was set up to take care of the welfare of the local guides. Sabah Parks also started to enforce strict rules such as making it mandatory for climbers to engage the services of local guides with a fixed guide fee. In doing so, the economic dimension of local rights, the right to be gainfully employed, was enjoyed by the local communities through the creation of an alternative source of livelihood to compensate for the loss of income due to no longer being able to exploit forest resources or convert them into agricultural uses and orchards. Furthermore, their traditional ecological knowledge and deep spiritual relationship with the mountain make the youths from Kpg. Bundu Tuhan ideally suited for the job. Through their jobs as guides and rangers, the locals were also trained to be responsible for protecting the forest within and surrounding Kinabalu Park. These values, inculcated through their job and training, reinforced their reverence for Mount Kinabalu and the need to protect the Park. Gradually the local community at Kpg. Bundu Tuhan accepted their relocation from their original kawasan rayau (wandering area) after being impressed with the way the Park had been managed since World Heritage listing, but they remained steadfast in their desire to look after the forested area surrounding their village as a community forest and on their right to enter their kawasan rayau in the Park (dialogue with Village Committee 2014).

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In response to the initiative by Kpg. Bundu Tuhan of managing their own forest, Sabah Parks and the Sabah Forestry Department began to take a ‘softer approach’ (Vaz 2012), tolerating the local community’s efforts, such as formulating and enforcing their own set of regulations on the use and penalty for misuse of their community forest (Peraturan-Peraturan Perkampungan Bundu Tuhan Ranau). The village organisation formulated these rules mainly to guard against their forested area and village from being bought by outsiders. During a dialogue session with the Kpg. Bundu Tuhan Village Committee in December 2013, the villagers revealed that their main worry was the potential threat from outsiders whom, they alleged, have bought more than 60 percent of the land around Kundasang (also at the foot of Mount Kinabalu) to build tourism facilities in an uncontrolled manner. Nonetheless, the local community’s attitude towards tourism development was welcoming and positive, but they reiterated that any future tourism development allowed in the village should be on their terms and should obtain the blessing of their Mesyuarat Permuafakatan (Consensus Council). The elders also stressed their strong sense of responsibility for protecting their village and community forest area as an obligation that had been passed down through generations (dialogue with Village Committee 2013). In carrying out its role as rights holder, the Village Committee of Kpg. Bundu Tuhan conducts regular meetings involving all community members from its three associated villages, Sokid, Sibah and Gondohan. These village sub-committees were also elected as trustees and, together with the leaders from Kpg. Bundu Tuhan, form the Mesyuarat Permuafakatan (Consensus Council). All decisions regarding the use of communal land in the four villages, applications from outsiders to develop jointventure projects and requests from researchers and NGOs to conduct research have to be approved by the Consensus Council. In addition, it is also the platform which decides on the amount of the penalty for anyone caught breaking their own rules, such as illegal hunting. Finally, the Consensus Council is also the avenue for any decision on the community’s working arrangement with Sabah Parks (see Figure 6.2). The Sabah Forestry Department (SFD) manages the Forest Reserves as well as Kinabalu Park. The Forest Enactment 1968 is the principal forestry law in the state that provides for the gazettement of forest reserves and their use, management and limits on felling and removing of forest products. The Enactment does not, Bundu Tuhan

Board of Trustees

Elects

Sokid

Village Committee

Undertake

Mesyuarat Permuafakatan (Consensus Council)

+ Link up

Sibah Village Leaders Gondohan

FIGURE 6.2

Sabah Parks

Kpg. Bundu Tuhan community consensus structure (author).

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however, contain any provisions that allow for the recognition of areas managed by local communities living in or near the reserves. Instead, these communities are regarded as illegal squatters or illegal settlers, reflecting the colonial model of protected area management inherited by the Sabah Forestry Department (Hamzah et al. 2013). In 1984, the Enactment was amended, resulting in the consolidation of existing Forest Reserves and the creation of new ones.This caused more uncertainties about the geographical boundaries and status of the local communities, as the connectivity between the existing villages was severed as they became fragmented. As a result, there are more than 20,000 people estimated to be living within Forest Reserves in Sabah without clear tenure rights (UNDP 2008). In the late 1990s, however, the Sabah government undertook several initiatives in response to growing international pressure about the state’s extensive logging programme. In 1998, the Sabah Forestry Department adopted the Sustainable Forest Management Licensing Agreement (SFMLA) system which facilitated the shift towards larger consolidated Forest Management Units (FMUs). More importantly, the larger FMUs required the cooperation of the local communities, whose potential role as viable partners was subsequently recognised through the creation of community forestry projects. The Sabah Forestry Department’s resulting community forestry projects symbolised a radical change from a ‘confrontational’ to a ‘collaborative’ or joint-management approach. In this respect, the basis for legal recognition of the joint-management approach was found in Rule 20A of the Forest Rules 1969, which allows occupation of Forest Reserves via an Occupational Permit and the payment of an annual fee upon the issuance of Form IX by the Director of Forestry (Vaz 2012). Suffice it to say, the SFMLA is one of the main enabling factors for the introduction of the rights-based approach as it provides the legal framework to include local communities in the planning and management of Forest Reserves.

Remediation process and the restoration of local rights Despite the displacement of the local communities from within the Park since the 1960s, the Kinabalu Park case study is gradually emerging as a success story in the incorporation of local rights, albeit as a work in progress. Essentially, the rightsbased approach that is gradually evolving in the management of Kinabalu Park as a WHS is mostly in the form of remediation measures such as the restoration of rights. Based on the six major windows of opportunity to incorporate rightsbased approaches in World Heritage identified by Larsen (2012), only the last two steps are relevant to Kinabalu Park, namely monitoring and implementation and enforced rights (Figure. 6.3). Credit should therefore be given to Sabah Parks for reviewing its management approach even though a remediation intervention could be interpreted merely as a reactive action that might not lead to a more inclusive planning and management process. Essentially the land rights of the local Kadazandusun communities who had been living within the Park boundary for centuries were ignored and the area

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Phase One: SITUATIONAL ANALYSIS

Phase Two: INFORMATION

Phase Three: PARTICIPATION

Phase Four: REASONED DECISIONS

Phase Five: MONITORING AND IMPLEMENTATION

Phase Six: ENFORCED RIGHTS

FIGURE 6.3

Six-phase process of enforcing rights-based approaches (Larsen 2012).

demarcation exercise (based on the National Park boundary) did not consider their presence in the Park, which led to the resettlement of inhabitants outside the Park boundary. In addition, the spiritual relationship between the local communities and Mount Kinabalu, which had significantly contributed to the protection of the mountain, had been factored in as neither one of the OUVs nor a cultural significance. Instead of recognising the role of the local communities as joint custodians, based on their reverence for the sacred mountain, the nomination dossier considered them as a potential threat to the protection of Kinabalu Park. Furthermore, the potential impact of the nomination on local rights was also not considered, which perpetuated the conflict between Sabah Parks and the local communities and led to the subsequent decision by Kpg. Bundu Tuhan to manage their own forest without the official approval of the authorities. While dissemination of information regarding the nomination of Kinabalu Park was carried out by Sabah Parks, it was only in the form of a one-off session with the chairmen of the Village Committees of the affected villages held at the Park Headquarters. According to the Chairman of Kpg. Bundu Tuhan, there was a lot of discontent among the village leaders present in response to the prohibitions that would be enforced with WHS inscription, notably their total exclusion from the Park. Native land rights and claims were not entertained and requests for their exemption from paying the climbing fee for spiritual activities

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were also turned down (interview with Kpg. Bundu Tuhan Village Committee Chairman 2014). Furthermore, the participation process was nominal and consisted only of the briefing session by Sabah Parks to the chairmen of the Village Committees mentioned earlier. Sabah Parks did not seek prior and free informed consent and the local villages were not engaged in participatory activities such as focus group discussions, forums or workshops. Although the village heads voiced their disapproval of the exclusion of the local communities from the Park, there was no attempt by Sabah Parks to apply conflict resolution mechanisms such as realigning the Park boundary to take into consideration customary land uses and rights (interview with Kpg. Bundu Tuhan Village Committee Chairman 2014). In this light, the opportunity to modify the nomination to reflect key community concerns by modifying the Park boundary was not taken by Sabah Parks. With the benefit of hindsight, it could be said that the adoption of the ‘game changing’ SFMLA in 1998 could have provided Sabah Parks with the driver for adopting a joint-management approach to be incorporated in the nomination dossier. However, the rights-based approach in the late 1990s in Sabah (and Malaysia) was still in its infancy, and this opportunity was lost, which worsened the conflict between Sabah Parks and the local communities. To its credit, Sabah Parks took a radical approach in reviewing its management processes and strategies in dealing with local communities, which is rare in other protected areas in Malaysia, given that most protected area managers prefer to remain in their comfort zone, following existing rules and protocols (Ministry of Tourism and Culture Malaysia 2016). A gradual change towards a less confrontational approach could be seen from 2007 onwards, mainly to appease negative coverage in the local media, which was championing the cause of the Kpg. Bundu Tuhan community (pers. comm. Justine Vaz 2016). Findings from the fieldwork, however, revealed three main factors that triggered this radical change in approach: i) changes in the State Forestry Department’s management approach; ii) recommendations in technical cooperation studies; and iii) personal intervention by thenDeputy Director of Sabah Parks.

Changes in the State Forestry Department’s management approach As highlighted earlier, the adoption of the SRMLA by the Sabah Forestry Department in 1998 and the introduction of larger Forest Management Units had indirectly empowered the local communities as joint custodians through community forestry projects. As opposed to its previous top-down approach, the Sabah Forestry Department began to embrace co-management and community forestry by allowing and officially recognising the role of local communities as the joint custodians of forest reserves, as evident in the Lower Kinabatangan Wildlife Sanctuary, also in Sabah (Hamid 2016). This changing attitude was instrumental in shaping a more accommodating approach towards what used to

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be regarded as ‘anti-government’ initiatives such as the community forest in Kpg. Bundu Tuhan.

Recommendations in technical cooperation studies In support of the Green Economy, a biodiversity conservation programme funded by the European Union (EU) was launched in 2010, through which Sabah Parks commissioned a local consultant to undertake a ‘Study on the Establishment of Ecological Linkages Connecting the Kinabalu Park and Crocker Range Park’ (ECOLINC) in 2010. The study was aimed at facilitating ecological connectivity between the two most important protected highland areas in Sabah. It also highlighted the rights of the 11,000 strong Kadazandusun ethnic community living in between these two areas who have a strong connection with the land, and the need to get their ‘buy in’ in order to create a continuous wildlife and seed corridor linking the two protected areas (ERE Consulting Group 2011). As an integral part of this ecological corridor project, Kpg. Bundu Tuhan is recognised in the ECOLINC study as a compelling example of the desire of a community to maintain its rights over the ownership and use of their communal land and the protection of its forest as well as their determination to sustain its wise use in perpetuity despite pressures and obstacles. In this light, Kpg. Bundu Tuhan Native Reserve is the most important link between the Kinabalu and Crocker Range Parks and has been identified as a core ECOLINC area (Toh and Vaz 2012). Although the Native Reserve is located outside the WHS boundary, the kawasan rayau that is integral to the local community’s traditional way of life is located within it. Its community forestry, initially barely tolerated by Sabah Parks, has gradually been accepted by the agency as a ‘model for other local communities to replicate’ (pers. comm. Director of Sabah Parks 2014).This is based on the local community’s good track record in managing its forested area in a sustainable manner as rights-holder, but without official recognition as a Community Conserved Area (CCA). In addition to the ECOLINC project, the Bornean Biodiversity and Ecosystem Conservation (BBEC) project is a technical cooperation between the government of Japan (through JICA) and the Malaysian government (represented by Sabah). Among its main recommendations is the innovative Community Use Zone (CUZ) concept as a management option to address the issues concerning indigenous communities living and utilising resources within protected areas. On 1 March 2014, without much fanfare, Sabah Parks officially recognised Ulu Senegang and Mongool Baru, two villages located near the Crocker Range National Park in Sabah, as the first Community Conserved Areas in Malaysia. This official designation allowed the communities in both villages to continue living in the protected area that has been their home for 40 years as well as providing official protection over the bio-cultural resources in the buffer zone surrounding Mount Kinabalu World Heritage Site. The CUZ also permits the villagers to grow crops, hunt and gather forest products within the Crocker Range Park for their own sustainable use. However, they are still prohibited from the use of their traditional kawasan rayau,

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which remains a contentious issue. More importantly, they have been educated to be responsible duty-bearers in terms of protecting their community forests from being bought by outsiders through the strict enforcement of their native laws. Following the designation of Ulu Senegang and Mongool Baru as CCAs, Kpg. Bundu Tuhan signed a Memorandum of Understanding with Sabah Parks in 2015 to gazette it and the three associated villages as another CCA along the ECOLINC ecological corridor.

Personal intervention by then-Deputy Director of Sabah Parks During a visit to Kpg. Bundu Tuhan in 2010, then-Deputy Director of Sabah Parks (now Director) asked the opinion of an elderly local lady regarding the implications of the World Heritage listing. The lady stated that initially, they were proud of the listing, but ten years later they were sad because they were no longer allowed to make their annual pilgrimage up Mount Kinabalu even though the community believed that it was their right to do so. Moved by her answer, the Deputy Director decided to introduce the Kakakapan id Gayo Ngaran (Pilgrimage to the Mountain) or Hari Komuniti (Community Day) in 2010 (interview, Deputy Director of Sabah Parks 2014). Hari Komuniti (Community Day) sets aside one day a year for the local communities to climb Mount Kinabalu and perform their religious rites; the communities are given free access into the Park area to revive their deep spiritual connection with the mountain. On 3 December 2010, the Kadazandusun people of Kpg. Bundu Tuhan and Kpg. Kiau made their first pilgrimage to Mount Kinabalu in 50 years. The importance of this occasion is best expressed by this comment by a local villager in Kpg. Bundu Tuhan: We are grateful that Dr Jamili Nais suggested that the community be given the opportunity to climb [Mount Kinabalu] … this is because our connection to the mountain has been severed since the 1960s but now we are able to follow old traditions once again. In terms of the ‘buy-in’ to the introduction of Community Day from the surrounding villages, the number of participating villages grew from only two during the inaugural event in 2010 to 13 villages in 2012. Even the Chairman of the Kpg. Bundu Tuhan Village Committee admitted that, while they were still unhappy about being excluded from the Park, Community Day ‘totally changed our previously negative perception of Sabah Parks’ (interview 2013). A village elder added, ‘now we know that Sabah Parks is sensitive to our needs and aspirations’. Suffice it to say that Community Day is indeed a masterstroke by Sabah Parks in getting ‘buy-in’ from the local communities. Essentially, it could be regarded as a success story that has restored the community’s right to continue their spiritual relationship with their sacred mountain. However, this is a reactive and populist initiative that, while it may appease the local community in the short term, has not actually

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introduced any aspect of ‘good governance’ or the restoration of the more substantive dimensions of local rights. In this respect, the person- or leader-driven model of management currently being applied by Sabah Parks has yet to be able to resolve claims to ancestral land, compensation issues and access to/use of the kawasan rayau.

Enabling conditions for the restoration of local rights In the bigger picture, the Sabah state government’s gradual incorporation of a more inclusive approach in relation to rights has been shaped by three enabling conditions, namely the state government’s commitment to Green Economy, the role of non-governmental organisations (NGOs) and increasing awareness by local communities. Underlying the Sabah government’s commitment towards a Green Economy (Mannan 2011) are regional and global conservation programmes that are being implemented in the state, such as the Coral Triangle Initiative, the Heart of Borneo programme and the UNESCO Man and the Biosphere programme. The BBEC programme BBEC has contributed significantly to developing an integrated and durable system for biodiversity and conservation in Sabah as well as focusing on bicultural diversity. Sabah was the first state in Malaysia to document indigenous and community-conserved areas and to wrestle with the potentials and challenges of involving local participation in biodiversity conservation through the Sabah Indigenous and Community Conserved Areas (ICCA) Review in 2011 (Majid Cooke and Vaz 2011). BBEC has also supported the state government’s preparation of the Sabah Biodiversity Strategy 2012–2022, which integrates multiple studies regarding the coverage, adequacy and resilience of the protected area system. These policy changes in support of the Green Economy have provided a framework through which local communities can obtain some of the recognition and security that they have sought through resource management contributions (Vaz 2012). However, the implementation of donor-funded projects to develop ecological corridors based on the Green Economy has been problematic in Sabah because

Sabah State Government

Green Economy policies that empower local communities

NGOs

Educating local communities and raising awareness

Local Communities

Adamant attitude and desire to revitalise cultural identity

Enabling Conditions

FIGURE 6.4

Enabling conditions for the restoration of local rights in Sabah (author).

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the existing governance regime is still essentially top-down in nature. Furthermore, the lack of clear channels of communication to bridge the gap between the formal decision-making system and native laws has undermined the acceptance of the latter as being equally effective in ensuring compliance. In essence, the national legal frameworks of many countries have yet to accord their indigenous peoples sufficient recognition of their customary lands and the stewardship of their environments (Jonas et al. 2012; Majid Cooke and Vaz 2011). Moreover, it has been argued that the Western legal order of the colonial era, which shaped the governance of Kinabalu Park both as a National Park and World Heritage Site, stripped the indigenous people of their rights and sovereignty (Berkes 2012; McRae and Nettheim 2009). In this respect, the Western concept of ‘good governance’, which is characterised by dominant defining characteristics, such as exclusivity of territorial domain and hierarchal centralised authority (Anaya 2004), contradicts the indigenous people’s perception of ‘good governance’, which emphasises kinshipbased organisation, decentralised structures and overlapping spheres of resource control (McRae and Nettheim 2009). Second, international and local NGOs have played an important role in educating and empowering communities to rediscover their own cultural identity. NGOs have been successful in helping the Kadazandusun communities around Kinabalu Park to obtain grants from donors such as the UNDP Global Environment Fund (GEF) for the purpose of cultural mapping. In this respect, Kpg. Bundu Tuhan was assisted by NGOs to secure a GEF Small Grant Scheme to involve local youths in utilising the latest technology, such as Global Positioning System (GPS), to map the sacred sites within and surrounding their village, leading to increased awareness and appreciation of their cultural heritage. Over time, and through the efforts of various NGOs, the local communities were gradually exposed to their rights as the joint custodians of Kinabalu Park through their spiritual relationship with the sacred mountain, and NGO-supported projects such as the Projek Etnobotani Kinabalu (PEK) were instrumental in increasing the awareness of local communities concerning the importance of their traditional ecological knowledge (TEK). The PEK was an ethnobotanical research and training project carried out from 1992–1998 that involved a community-based inventory of useful plants in the Kinabalu Park area. The project had four main objectives, namely ethnobotanical research, conservation of pristine areas, environmental education and community development. A total of 17 collectors from nine communities made more than 9,000 plant collections at over 500 sites around the Park. The PEK also contributed in developing the assessment abilities of the Park’s researchers as well as strengthening the connection between the Park’s research staff and local communities. More importantly, the PEK was instrumental in educating and incentivising the local communities to manage the unprotected forest areas located around Kinabalu Park on their own, as well as promoting the viability of Kadazandusun ecological knowledge (Martin et al. 2002). In the bigger picture, international and local NGOs have played a crucial role in supporting the state government’s efforts in embracing the Green Economy.

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Towards this end, the Forever Sabah initiative was launched in 2014 by a consortium of international and local NGOs: [It] is supported by NGOs, government and the private sector, and it relies upon cutting edge science and the knowledge of indigenous communities. It seeks to utilize existing knowledge and to encourage the sharing of experiences and new forms of currency – such as responsibility, participation, reciprocity, and trust – to achieve more effective, large-scale and collaborative results. (Forever Sabah 2017) In the light of the continuous presence of international and local NGOs in Sabah, local communities, including the Kadazandusun community at Kpg. Bundu Tuhan, have been exposed to alternative ideas and approaches in governance (bottom-up or participatory approaches) of natural resources, particularly the principles of good governance such as social equity, empowerment, devolution and access to justice, etc. Either directly or indirectly, local communities have begun to question their role in the decision-making process in relation to natural resource governance, and the evolving relationship between the Kpg. Bundu Tuhan community and Sabah Parks is a testimony to how local communities are becoming more well equipped during contestations over their rights as a result of being incrementally empowered by NGOs. The third factor is the increasing awareness of the local communities, due to factors such as increased exposure in social media and increasing pride in the community. Over time, an increasing pride in the community in tandem with a better understanding of local rights has led to more informed contestations with the related agencies to demand better inclusiveness. At Kpg. Bundu Tuhan, the exclusion of the local community from Kinabalu Park, especially their prohibition from climbing the mountain for spiritual activities and the kawasan rayau, provided a cause for the local community to demand change. The Kpg. Bundu Tuhan community’s struggle to protect and restore their rights frequently made headlines in both print and social media, which in turn put pressure on Sabah Parks to embark on remediation actions. More importantly, the community at Kpg. Bundu Tuhan has also developed a sophisticated protocol for researchers and NGOs entering their village, such as an Access Benefit Sharing protocol that was developed in collaboration with an NGO. While they welcome researchers and NGOs, the Consensus Council screens and filters all applications and offers from outsiders and ensures that they adhere to the native rules the community has developed. This gave credibility to their native rules which have since been integrated into the formal decision-making structure and process, thus ensuring that the CCA status granted to the village is not just a token recognition. By being more informed of their rights through their constant exposure to NGOs and their participatory approach, the representatives from the Kpg. Bundu Tuhan who now represent the village in the formal decision-making committee have been empowered to perform their duties more effectively.

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Conclusions Essentially, the Kinabalu Park WHS case study demonstrates the issues and challenges of incorporating rights-based approaches into mainstream planning. At the site level, the case study can be viewed as a breakthrough in challenging the ingrained top-down approach in protected area and WHS management. In this light, the case study identified the enabling factors that resulted in the remediation efforts by Sabah Parks. Exogenous factors such as the state government’s commitment to the Green Economy and conditions associated with donor-funded projects pressured the authorities into taking actions to reflect a more inclusive management approach. At the same time, endogenous factors, such as the local community’s awakening, also played a crucial role in the remediation process. However, it remains to be seen whether this pioneering effort will result in substantive changes in the governance of World Heritage sites in Sabah and the other sites in Malaysia towards the further incorporation of rights-based approaches. Ad hoc interventions by concerned individuals, as in the case of the introduction of Community Day, may not be sustainable unless the whole spectrum of rights-based approaches is incorporated in the WHS nomination and inscription process (beginning with free and prior informed consent). In addition, the national WHS nomination process should also incorporate the new paradigm in WHS nominations in which local wisdom, traditional ecological knowledge and the spiritual dimensions of natural areas should be regarded as being equally important as the biophysical attributes in developing and sustaining the Outstanding Universal Values. This socalled biocultural landscape approach in WH was a main theme during the World Conservation Congress held in Hawaii in September 2016. Against this backdrop, the remediation efforts by Sabah Parks should be applauded and valued as an inspiration, not only in Malaysia but wherever the colonial approach to protected area and WHS management is still deeply ingrained. The main obstacle towards a more inclusive approach is the lack of formal recognition of land tenure rights of local and indigenous communities. It could be argued that resolving this pressing land tenure issue will pave the way for the incorporation of the entire rights-based process in the mainstream planning system. Despite the commendable efforts by authorities in Sabah to address this issue, the groundbreaking success in dismantling this age-old impediment was achieved in Peninsular Malaysia where the indigenous people have fewer rights than their counterparts in Sabah and Sarawak. In what is considered a landmark decision, in 2015 the Kampung Peta Orang Asli community in the state of Johor won a three-year fight against eviction from the Endau-Rompin National Park, where the village was located. The High Court judge ruled that the village predated the formation of the National Park and thus the villagers were the customary owners of the land.The court ordered the state and federal governments to complete a survey and de-gazette areas previously gazetted as forest or wildlife reserves but falling within the customary lands of the Orang Asli of Kampung Peta. The court also declared that it was the fiduciary duty of the state

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and federal governments to protect the customary land of the Orang Asli and not interfere with or impair their rights over the land (The Malaysian Insider 2015). The ruling sets a precedent for the formal recognition of indigenous tenure rights and represents a significant step towards the mainstreaming of the rights-based approach in the WHS process in Malaysia.

Note 1

Bumiputra is the term used to describe the Malay race and other indigenous peoples in Malaysia. This status is recognised in the Federal Constitution of Malaysia, in particular Article 153. The Government of Malaysia has implemented a number of affirmative action policies which benefit only the Bumiputra.

References Anaya, J. 2004. Indigenous Peoples in International Law, 2nd ed. Oxford: Oxford University Press. BBEC (Bornean Biodiversity & Ecosystems Conservation Programme). “Addressing land use issues with community participation in Crocker Range Park: Participatory Protected Area Management.” Accessed January 26, 2013. www.bbec.sabah.gov.my/phase2/ipam.php. Berkes, Fikret. 2012. Sacred Ecology. New York: Taylor & Francis. van der Ent, Antony. 2013. Kinabalu. Borneo: National History Publications. ERE Consulting Group (2011). Study on the Establishment of Ecological Linkages Connecting the Kinabalu Park and Crocker Range Park. Final Report (Volume II: Main Report). Forever Sabah. 2017. “Home.” Forever Sabah. Accessed February 8, 2017. foreversabah.org. Hamzah, Amra, Dylan Jefri Ong and Dario Pampanga. 2013. Asian Philosophy of Protected Areas. Bangkok: Centre for Innovative Planning and Development, Universiti Teknologi Malaysia/IUCN Asia Regional Office, Bangkok. Hasim,Abdul Hamid. 2016.“Synergy Between Community Based Tourism and Conservation: Case Study of Miso Walai Homestay.” Paper presented at World Ecotourism Conference, Mulu National Park, Malaysia, January 27–30, 2016. Jonas, Harry, Ashish Kothari and Holly Shrumm. 2012. “Legal and Institutional Aspects of Recognizing and Supporting Conservation by Indigenous Peoples and Local Communities. An Analysis of International Law, National Legislation, Judgements, and Institutions as They Interrelate with Territories and Areas Conserved by Indigenous Peoples and Local Communities.” Natural Justice. Accessed November 30, 2016. http://naturaljustice.org/ wp-content/uploads/2015/09/International-Law-and-Jurisprudence-English.pdf. Keith, Agnes Newton. 1939. Land Below the Wind. London: M. Joseph. Larsen, Peter Bille. 2012. “IUCN, World Heritage and Evaluation Processes Related to Communities and Rights: An Independent Review.” IUCN. Accessed April 13, 2017. http://cmsdata.iucn.org/downloads/review___world_heritage__communities_and_ rights_larsen_2012.pdf. Majid Cooke, Fadzilah and Justine Vaz. 2011. “The Sabah ICCA Review: A Review of Indigenous Peoples and Community Conserved Areas in Sabah.” Report submitted to the Japan International Cooperation Agency (JICA) as part of the project Traditional Ecological Knowledge in Sabah, under the Bornean Biodiversity and Ecosystems Conservation Phase II Programme. Kota Kinabalu: Global Diversity Foundation.

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Mannan, S. (2011). Welcome Address by the Director of Sabah Forestry Department in International Conference on ‘Sabah Heart of Borneo (HoB) Green Economy & Development: Engaging Business for Environment’. Sabah Forestry Department. Sandakan, Sabah. Martin, G. J., A. Lee Agama, J. H. Beaman and J. Nais. 2002. Projek Etnobotani Kinabalu. The Making of a Dusun Ethnoflora (Sabah, Malaysia). People and Plants Working Paper 9. UNESCO, Paris. Available at unesdoc.unesco.org/images/0012/001271/127104e. pdf#xml=http://unesdoc.unesco.org/Ulis/cgi-bin/ulis.pl?database=&set=0058ED04D 1_1_361&hits_rec=6&hits_lng=eng. McRae, Heather and Garth Nettheim. 2009. Indigenous Legal Issues: Commentary and Materials. 4th ed. Australia: Thomson Reuters. Ministry of Tourism and Culture Malaysia. (2016). National Ecotourism Plan 2016–2025. Putrajaya, Malaysia: Government of Malaysia. The Malaysian Insider (2015). “High Court grants Kampung Peta Orang Asli Customary Title, Strikes Out Eviction Order”. Accessed January 2016. www.themalaysianinsider. com/citynews/johor-baru/article/high-court-grants-kampung-peta-orang-aslicustomary-title-strikes-out-evict. Toh, Sumei and Justine Vaz. 2012. The Development of Community Forestry in Malaysia. Bangkok: The Center for People and Forests. United Nations Development Programme. 2008. Malaysia Sustainable Community Forest Management in Sabah. Kuala Lumpur: UNDP Malaysia. Vaz, Justine. 2012. An Analysis of International Law, National Legislation, Judgements, and Institutions as They Interrelate with Territories and Areas Conserved by Indigenous Peoples and Local Communities. Report No. 15. Malaysia. Bangalore: Natural Justice; Pune and Delhi: Kalpavrish. Yong, Carol Ooi Lin. 2003. Flowed Over:The Babagon Dam and the Resettlement of Kadazandusuns in Sabah. Subang Jaya. Malaysia: Center for Orang Asli Concerns.

7 CULTURAL AND PARTICIPATION RIGHTS IN BAGAN, MYANMAR Anne Laura Kraak

Introduction Following a call from United Nations Secretary-General Kofi Annan in 2003, all entities of the United Nations Development Group adopted the Statement of Common Understanding on Human Rights-Based Approaches to Development Cooperation and Programming (UN 2003). The United Nations Educational Scientific and Cultural Organization (UNESCO) also adopted the Common Understanding, and its strategy on human rights prioitises the integration of a human rights-based approach in all its programmes. This suggests implicitly that the integration of the human rights-based approach also applies to the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention). In 2015, the World Heritage Committee started to explicitly engage with human rights language in its sustainable development policy (UNESCO 2015). Despite the gradual move towards the institutionalisation of human rights-based approaches to World Heritage protection, the link between heritage and rights faces significant challenges. Stener Ekern et al. pointed out that heritage ‘tends to be collective in character and cultural in content; that is, it involves the construction of both identity and community, which are precisely two areas where human rights have fundamental difficulties, conceptually as well as in practice’ (2012, 220). In this chapter, I will argue how these difficulties become apparent when considering the potential of human rights-based approaches to address certain aspects of the World Heritage nomination of the ancient Buddhist site of Bagan in Myanmar. Myanmar is at a historically important moment. In 2011, a change of government signalled the start of a series of reforms that led to the country’s emergence from decades of isolation and military rule. Besides the release of political prisoners, new foreign investment laws, and the easing of censorship, a national human rights

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commission was established and Myanmar re-engaged with the World Heritage Convention. In 2014, the Pyu Ancient Cities were designated as Myanmar’s first World Heritage site. This successful nomination motivated the government to proceed with the nomination of Bagan. UNESCO provides support for the preparation of World Heritage nominations through the invitation of leading international and national experts to consult on the process, the facilitation of capacity building activities, technical assistance, and training (Unakul and Rellensmann 2013). The Country Programming Document for Myanmar guides UNESCO’s work and outlines its strategy in Myanmar from 2013 to 2015. Besides a situational analysis, an outline of past and present cooperation, and an overview of partnerships, the document includes a proposed cooperation framework. The very first section in this framework (3.1.1) is concerned with the human rights-based approach, stating that ‘[a]ll UNESCO programmes, activities and projects in Myanmar are planned, implemented, monitored and evaluated in accordance with human rights-based principles’ (UNESCO Bangkok 2013, 12). A later section (3.1.4) is concerned with culturally appropriate programming and emphasises the ‘promotion of cultural diversity and cultural rights as critical dimensions of sustainable development’ (ibid.). Thus, human rights-based approaches and cultural rights formally take priority in UNESCO’s work in Myanmar, which arguably includes the preparation of Bagan’s World Heritage nomination. This chapter is based on my doctoral fieldwork in Bagan and Myanmar between June 2014 and February 2015, during which I conducted interviews and had informal conversations with foreign and Burmese experts involved in the nomination as well as with several residents of the area (Figure 7.1). The World Heritage nomination of Bagan remains a work in progress, as it is Myanmar’s intention to submit the nomination in 2018. At the time of my fieldwork, most details were still being negotiated, including which category the site will be nominated under (‘monuments’, ‘groups of buildings’, or ‘sites’), which criteria reflect its Outstanding Universal Value, and what the boundaries and buffer zones will be. As a result, no formal documentation was publicly available. It is important to note that despite UNESCO’s Country Document, the language of human rights or rights-based approaches was not actively used by the people involved in the World Heritage nomination that I spoke with during my fieldwork. A number of them were not even sure about how human rights related to their work. I have discussed potential reasons for this absence of human rights language elsewhere (Kraak 2017). In this chapter, I consider what the increasingly popular rights discourse could bring to the World Heritage nomination of Bagan. I argue that in the case of Bagan, the use of human rights-based approaches raises several challenging questions that need to be addressed. These questions are related to wide-ranging issues such as enforcement, accountability, and politics, and it is impossible to address them all in one chapter. Here, I will focus on two key issues: the ambiguity of cultural rights and the challenges of ensuring participation rights. In the first part of this chapter, I will introduce Bagan, provide a brief historical background, and explain the rights that are at stake in the context of the ongoing

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FIGURE 7.1

Map of Bagan, Myanmar (Menno-Jan Kraak).

preparation of the World Heritage nomination. In the second part, I will elaborate on the diverging aims of international conservation standards and popular religious practices which need to be addressed in the World Heritage nomination of Bagan. Both supporters of international conservation standards and those of popular religious practices could employ the language of cultural rights to support their cause. In the second part, I will argue that the heterogeneity of communities, internal contestation, and power imbalances make it difficult to identify rights-holders, their particular rights, and appropriate means to guarantee equal participation.

Heritage conservation in Bagan Between the eleventh and the thirteenth centuries, the kings of Bagan, in what is today Myanmar, built over 4,000 Buddhist pagodas. The incentive behind this patronage of religious buildings lies in the Buddhist concept of merit-making. In Theravada Buddhism, the collection of merit can increase one’s chance of reaching nirvana, a fortunate rebirth, or even good luck in the present life, and the construction or renovation of Buddhist buildings is one of the most effective ways to make merit (Spiro 1982, 109). In the fourteenth century, the capital of the kingdom moved to Ava (near what is today Mandalay) and the majority of the pagodas

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in Bagan slowly deteriorated as a result of earthquakes and general weathering. However, as a result of the absence of tropical rain in this dry zone, over 2,000 monuments survive today and many of them have continuous or restored religious significance. Compared to other monumental sites around the world, such as Angkor in Cambodia, conservation work in Bagan has remained modest. Over the centuries several pagodas have been refurbished as acts of Buddhist merit-making, led by kings, individuals, or groups of temple trustees. In the early twentieth century, the Archaeological Survey of India initiated some small-scale conservation work which was continued by the Burmese Department of Archaeology following independence from Britain in 1948 (Chapman 2013). After an earthquake caused significant damage in 1975, UNESCO and the United Nations Development Programme (UNDP) started to collaborate with the Burmese government on some more extensive repairs and inventorying of the site. However, comprehensive conservation or management remained absent. This changed during the period between 1988 and 2011, when a new military regime actively used heritage for nationbuilding around a Bamar1 and Buddhist identity, and Bagan played a central role (Houtman 1999; Philp 2010). The approaches taken by the junta led to much controversy. In 1990, the government ordered the population – over 5,000 people – living at the centre of the site in a village known as Old Bagan to move to New Bagan, four kilometres to the south. International experts and the government’s own tourism authorities had not recommended this, but rather ‘proposed integration of the “Old Bagan” villagers, some of whom were traditional caretakers of religious buildings, into the heritage site’ (Hudson 2008, 557).The government, however, deemed the eviction necessary to prevent the damaging consequences of treasure hunting.Villagers were told their move was needed to protect the monuments and for Bagan to become a World Heritage site. However, the World Heritage recognition did not come2 and shortly after the relocation several large luxury hotels, as well as a museum and reconstructed palace, were built among the monuments of Old Bagan, raising questions about the government’s real motivation. A second controversial development was the large-scale renovation and reconstruction campaign that was initiated by the generals. Between 1995 and 2008, 1,299 monuments were completely rebuilt and 688 partially rebuilt (Hudson 2008, 553). The work included the complete ‘reconstruction of marginally identifiable ruins’ and ‘the excavation and speculative reconstruction of structures beneath brick mounds’ (Hudson 2008, 558; see also Pichard 2013). Stupas were regilded, new bricks replaced old, and pagodas received new finials and fresh coats of paint, sometimes obscuring ancient murals. Internationally accepted standards of architectural conservation were not taken into account and reliable archaeological evidence for some of the reconstructions was lacking. However, the work was supported by many Buddhists, for whom the reconstructions and renovations are an important merit-making practice. With the change of government in 2011, and with the aim of World Heritage listing once again in mind, a new approach came to Bagan which involved several

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new measures.The reconstruction and renovation of monuments without archaeological evidence of the original state is no longer allowed. There is a temporary suspension on further hotel development, and in March 2016 it was announced that some properties deemed too close to the ancient monuments will have to move to a special hotel zone within ten years, although whether ‘move’ refers to demolishment and rebuilding or merely a different use of the properties remains unclear (Thu 2016). Today, what is officially called the ‘Bagan Archaeological Area and Monuments’ is an area of 104 square kilometres in the Nyaung U Township, which has around 198,000 inhabitants according to the 2014 census (Department of Population 2014, 58). The zone consists of thousands of monuments, as well as villages and farmland.

FIGURE 7.2

Location of objects in the study area (Menno-Jan Kraak).

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It is a poor rural area characterised by unsealed roads and daily electricity cuts. This is likely to change dramatically in the coming years as the region continues to develop and a significant increase in tourism will need to be accommodated. It is anticipated that tourist arrivals will continue to rise sharply with a 20% increase per year (Ministry of Hotels and Tourism 2013, 19), which makes measures with regard to hotel developments contentious. In this context, development, land, and economic rights are at stake when a new regime of spatial governance, such as heritage designation, restricts where and what people can build and where and how they can run their businesses. In an area where, according to UNDP, more than half the population lives in poverty,3 these are important concerns and sensitive issues. Development restrictions and relocations may be necessary to protect the archaeological, architectural, and spiritual heritage of Bagan, but unfortunately they have a bigger impact on already vulnerable people than on large businesses, which are more resilient. Local people who put all their savings in the extension of their guesthouse, for example, are the ones who end up disadvantaged by such policies. The ambiguity of land ownership makes the situation even more precarious. Technically, all land is government owned and divided into urban, agricultural, and religious zones. However, the zones on the official records only loosely reflect the situation on the ground. For example, many locals have informal agreements with pagoda trustees or local government officials to have their dwellings and businesses on religious land. These people are usually poor and live in precarious and uncertain situations, particularly in this time of transformation. Furthermore, religious and cultural rights are at stake in Bagan when the conservation and protection of monuments excludes people from their cultural heritage and spiritual practices. Bagan is a pilgrimage site and thriving with popular religious practices. These practices range from paying obeisance to Buddha images, to regilding ancient monuments and attending pagoda festivals. Although some of the practices may be considered benign, others can form a risk to or have an impact on the material of the ancient monuments. The reconstructions and renovation campaign of the previous decades is an example of such impact. In the next section, I will elaborate on this example and argue that the notion of cultural rights does not provide easy answers to one of the key dilemmas facing Bagan’s World Heritage nomination.

Popular religious practice, conservation, and cultural rights The reconstructions and renovations that were undertaken in the 1990s and 2000s were heavily criticised internationally, as well as by Burmese archaeologists and historians.The potential of archaeological research was compromised by the reconstruction of monuments on earth mounds. Gustaaf Houtman argued that the regime was ‘destroying the very culture it proclaims to preserve for by all accounts Pagan has been systematically archaeologically ruined’ (1999, 92). Beatrice Messeri (2007) specifically pointed out how the work was contrary to certain sections of

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the Venice Charter (1964), the international code of professional standards for the conservation and restoration of monuments and sites. By extension, the question has been raised whether Bagan will still meet the requirements for World Heritage listing. Janette Philp suggests that ‘reconstruction and renovation work … would fail to meet the “test of authenticity in design, material of workmanship” as defined in the Operational Guidelines for the Implementation of the World Heritage Convention’ (2010, 92). In Myanmar, however, the reconstructions and renovations of the pagodas were widely supported as important acts of Buddhist merit-making. Donors who contributed to the work came from all walks of life: private companies, military and police officers, government departments, international religious groups (particularly Buddhist associations in Korea, Japan, Taiwan, China, and Singapore), service organisations, and Burmese expatriates, but also local individuals and families (see Chapman 2013, 184). Besides the merit collected, several people said that they consider the reconstructed and renovated pagodas more beautiful. Standards of heritage conservation are changing and starting to acknowledge alternative values and approaches. Under the influence of the idea of cultural diversity supported by UNESCO and the increasing popularisation of heritage conservation, the universal applicability of the principles of the Venice Charter have started to be questioned. It has become apparent that the diversity of building techniques, materials, climatic conditions, religious beliefs, and social values across the world has implications for what can be considered appropriate conservation practice. The Nara Document on Authenticity (1994) is a landmark document that recognises conception of authenticity as culturally relative and paved the way for a proliferation of charters, declarations, and conventions addressing in particular themes such as ‘community, spirituality, intangibility and authenticity’ (Fong et al. 2012, 40). However, Anna Karlström has warned that even if ‘intangible heritage is taken into consideration and conservation strategies are formulated in consultation with indigenous groups, the fundamental aim and necessity of preservation is still unquestioned’ (2005, 353). Diversity and alternative approaches are only accepted when they fit into the existing paradigm. This proved to be the case elsewhere in the region. For example, during a recent research project in Phnom Rung Historical Park in Thailand, Alexandra Denes (2012, 202) found that the Historical Park staff would state that local communities have the right to ‘use and access the site according to their beliefs and traditions’, but when those beliefs and traditions (for instance, touching artefacts and using paraphernalia such as candles, incense, and other offerings) could harm the physical fabric, they would not be allowed.The staff of the Department of Archaeology in Bagan have expressed similar concerns. For the World Heritage nomination of Bagan, agreements have to be made about the degree to which popular religious practices that have an impact on the monuments will be permitted in the future. Can cultural rights provide guidance in this area of negotiation? Despite recent interest in and attention to the longneglected category of cultural rights, its meaning remains ambiguous and contested

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because the meaning of culture itself is. In the context of Bagan, do people have cultural rights to the conservation of the monuments as forms of cultural capital of ‘universal value to humanity’? Do they have cultural rights to engage with pagodas as sites of merit-making and popular religious practices, even if this may have an adverse impact on the archaeological, architectural, or even ‘universal’ values of the site? Both supporters of conventional conservation standards and those of popular religious practices could employ the language of cultural rights to support their cause. This can be illustrated by the three different conceptions of culture with different implications for the meaning of cultural rights that were identified by Rodolfo Stavenhagen (1998). Firstly, culture can be seen as capital: material heritage, monuments, artefacts, art. This understanding suggests ‘the right to culture would mean the equal right of access by individuals to this accumulated cultural capital’ (Stavenhagen 1998, 4). Reflecting on the lifestyle of the principal drafter of the Universal Declaration of Human Rights, Canadian law professor John Humphrey, Mark Goodale has suggested that the codification of ‘culture’ in the Universal Declaration of Human Rights (‘the right to participate in the cultural life of community’, Article 27.1) was informed by such an understanding of ‘high culture’ (2009, 77). A conception of culture ‘as the canon of the greatest arts’ (Nielsen 2011, 276) also informed the inception of UNESCO and the World Heritage Convention, although it has subsequently developed and evolved. For Bagan, an understanding of culture as capital brings focus to the monuments themselves. It suggests cultural rights refer to the right to access the monuments as forms of material heritage and they should be conserved and protected accordingly. If religious or cultural practices harm the fabric or prevent the conservation of the monuments, arguably this has implications for such cultural rights. Stavenhagen’s second conception of culture expands the first. According to this view, culture is creativity: ‘the process of artistic and scientific creation’ (1998, 4). The right to culture refers to ‘the right of individuals to freely create their cultural oeuvres with no restriction, and the right of all persons to enjoy free access to these creations in museums, concerts, theatre, libraries and so on’ (ibid.). Culture is no longer a product but a process; but the types of processes that count are still suggestive of high culture, particularly if they are to be accessed in museums, concerts, theatres, or libraries. For Bagan, this suggests there is more space for the appreciation of the process of merit-making – such as the renovation and reconstruction of Buddhist buildings – if the product can be considered a ‘cultural oeuvre’. However, those who criticised the reconstructions and renovations as destructive presumably would not regard the result as ‘cultural oeuvres’. In the 1970s and 1980s, UNESCO adopted a more ‘anthropological’4 view of culture which reflects Stavenhagen’s third conception: culture as a way of life. Cultural rights under this conception refer to ‘the right to maintain and develop its own specific culture, no matter how it is inserted or how it relates to other cultures in the wider context’ (Stavenhagen 1998, 7). Bjarke Nielsen (2011) and Neil Silberman (2012) suggest this understanding represents a second stage in

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UNESCO’s definition of culture and is reflected in the Universal Declaration on Cultural Diversity (UNESCO 2001) and the Intangible Heritage Convention (UNESCO 2003). If merit-making is part of the Buddhist way of life and includes the reconstruction and renovation of the monuments of Bagan, this more recent understanding of cultural rights suggests people have the right to engage with the site in this manner, regardless of any harm to the fabric of the monuments. However, the question can be raised whether the practice of architectural and archaeological conservation can also be considered a way of life, to which people have cultural rights. Different ways of life can involve conflicting ideas about what are appropriate practice and behaviour. In other words, cultural rights can be in conflict with each other. It can be tempting to argue that since their ancestors built the monuments, and since it is their ‘culture’, the interests of the local community of Bagan should take priority. This argument simplifies the situation for two main reasons. First, as Ian Hodder has elaborated on, cultural heritage rights based on descent cannot be supported by anthropological and historical evidence. He explains how ‘the notion that groups … have an inherent right to the culture from which they are descended rests on ground that archaeologists and anthropologists have rejected’ (2010, 870). There is no evidence for fixed boundaries. Rather, ‘culture is passed down through complex and fluid channels, heritage is continually being reproduced and reinterpreted, human groups and cultures are in the long term open and in flux’ (ibid.). Second, the local community and Burmese people in general are divided about the appropriate means of engagement with the pagodas of Bagan. I have spoken with people who disapproved of the reconstructions and renovations as well as with people who supported them. This makes it impossible to pinpoint the interests of the ‘local community’. In the next section, I will further elaborate on challenges related to community participation and the difficulty of guaranteeing participation rights.

Participation rights Community participation is considered a critical aspect of human rights-based approaches (see UN OHCHR 2006, 26) because communities are key rightsholders. Moreover, the right to participate in decision-making is a key procedural right which can ensure access to substantive rights, such as rights to culture and livelihoods. In the last decade, the importance of community participation has also been formally recognised in the realm of World Heritage. In 2007, a fifth objective was added to the key Strategic Objectives (credibility, conservation, capacitybuilding, communication) to support World Heritage. This objective is ‘to enhance the role of communities in the implementation of the World Heritage Convention’ (UNESCO 2013, 7). More recently, the policy on sustainable development, adopted by the twentieth General Assembly of the World Heritage Convention in November 2015, emphasises the importance of community participation and human rights. The role of World Heritage properties in three dimensions of sustainable development are outlined: environmental sustainability, inclusive social development, and

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inclusive economic development. Under inclusive social development fall the aims of ‘respecting, protecting and promoting human rights’ and ‘respecting, consulting and involving indigenous peoples and local communities’ (UNESCO 2015, 6). Community participation and human rights are tied together when it is stated that States Parties should ‘[d]evelop, through equitable participation of concerned people, relevant standards and safeguards, guidance tools and operational mechanisms for assessment, nomination, management, evaluation and reporting processes compatible with an effective rights-based approach for both existing and potential new properties’ (UNESCO 2015, 7). These are significant developments, but ensuring participation and respect for the rights of all community members can be challenging in practice. It is important to avoid regarding communities as homogenous and harmonious units. Community has the tendency ‘to speak of something convivial, gentle and idealised’ (Waterton 2015, 54). Emma Waterton and Laurajane Smith have pointed out that a more realistic account of communities would demonstrate that they ‘are run through with divergent interests, anger, boredom, fear, happiness, loneliness, frustration, envy, wonder and a range of either motivating or disruptive energies. Added to this are thick seams of power that structure any given collection of people’ (2010, 16).They argue that Nancy Fraser’s work on the politics of recognition, and specifically the concept of ‘parity of participation’, is helpful to understand the role of communities in heritage practice. Parity of participation ‘requires social arrangements that permit all (adult) members of society to interact with one another as peers’ (Fraser 2003, 36, cited in Waterton and Smith 2010, 10). Maldistribution, misrecognition, and injustices of representation present economic, cultural, and political obstacles to such equal interaction. Waterton and Smith’s account reflects the ‘community’ I encountered in Bagan. First, there is the question of who counts as members of Bagan’s community. Many people – rich and poor, Burmese and foreigners – have recently been moving to Bagan to profit from the increase in tourism.This raises the question of whether all of them are part of the community and have the same participation rights in the World Heritage nomination. Age, gender, religious background, class, and level of education are all factors that influence a person’s interests and opinions. Accordingly, my informants had divided views on the reconstructions and renovations, and they told me stories of their own conflicts of interest with other members of Bagan’s community. For example, one informant told me about an argument he had with a temple trustee about the construction of a car park next to a pagoda. In his opinion, this was an inappropriate development. However, the temple trustee – who is also a member of Bagan’s community – apparently had a different view. For the temple trustee, the car park would accommodate access to his pagoda for visitors arriving by car. My informant was not opposed to cars in Bagan, but was of the opinion that this parking lot was too close to the pagoda. Differing ideas about the role of cars in the Archaeological Zone are reflected by another informant, who suggested a gate should be constructed around Bagan and only horse carts, pedestrians, and (motor)cyclists should be allowed to enter. The future of Bagan faces many

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more questions about which I have heard opposing views – from whether tourists should be allowed to climb the pagodas to which types of shrines are appropriate in Buddhist temples. The divisiveness of the community means that their participation in decisionmaking will not necessarily make the challenges to Bagan’s World Heritage nomination any easier to address. However, it also begs the question of who speaks for the community and how they can be heard.Two different civil society organisations in Bagan that aim to contribute to the protection of the site in their own ways illustrate how challenging this question is. The first organisation, Bagan Lovers Organisation, is a loosely organised group of volunteers that monitor the site and have organised various demonstrations against what they consider inappropriate developments. In particular, they have protested corruption and the construction of hotels that incorporate monuments. I interviewed Kyaw,5 a member of this organisation, who had been invited to community participation workshops organised by UNESCO and the Department of Archaeology. Unfortunately, Kyaw did not have a positive experience at these workshops. He felt he was invited to the meetings only to listen to what others said. In particular, he was worried about the discussion of possible relocations of villages. When Kyaw did get an opportunity to speak, he said that his organisation welcomed UNESCO’s help with the conservation of the pagodas, but would not accept any forced relocations. He received the reply that they would think about this and get back to him at the next meeting. However, when during the next workshop – a few months later – nobody had done anything with his request, he felt UNESCO and the Department of Archaeology did not keep their promises and decided not to attend any future workshops. Preparations for the nomination of a World Heritage site can take years and decisions about the relocation of villages are not made in a few months. Kyaw was presumably insufficiently informed on how such processes work and he felt ignored. Moreover, there are power and status differences between him and the government officials, foreign experts, and possibly other community representatives present during the meeting. Importantly, such community participation workshops take place in locations such as meeting rooms in government buildings where Kyaw did not feel comfortable. He suggested that if UNESCO and the government really wanted to know the views of the people of Bagan, they should visit a local tea shop and listen to what people talk about. A tea shop is an environment where Kyaw – and presumably other members of his organisation – may feel comfortable enough to express their views.The formality of community participation workshops creates a barrier. As a result, his organisation felt that the only way to get their views heard was by holding demonstrations. A second organisation, Bagan Heritage Trust, was forming while I was doing fieldwork. Unlike Bagan Lovers Organisation, Bagan Heritage Trust consists of a select number of Bagan residents with a certain prestige or expertise, who consider themselves a more professional organisation to protect what they consider the interests of Bagan. The members of the second organisation have an English

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language website, demonstrate a degree of familiarity with the World Heritage nomination process, and collaborate with the Department of Archaeology and foreign experts. Although only established very recently, the members of the second organisation appear more articulate in having their voices heard in a context and language understood by UNESCO and the government. By interacting with this second organisation, UNESCO also follows its policy of community involvement. But there is no ‘parity of participation’ (Fraser 2003) or ‘equitable participation’, to use UNESCO’s own term.The Bagan Lovers Organisation does not have the same resources, particularly in the form of language, status, and access to information, to interact equally with UNESCO, the government, and the Bagan Heritage Trust as peers. My fieldwork in Bagan took place in the very early stages of the preparation of the World Heritage nomination. UNESCO and the Burmese government were still in the process of identifying community representatives and some community members were still in the process of organising themselves. Since the nomination is an ongoing process, presumably ongoing attempts are being made to respect participation rights and involve a range of community representatives. However, this example serves to demonstrate how challenging this can be. Heterogeneity, divisiveness, and power imbalances between and within communities make it a risky area. Such divisions within communities are inevitable and it is impossible to protect every individual’s interests or rights without compromising another’s. A human rights-based approach cannot solve this, but it does require us to be vigilant of internal power structures. Uncritical understanding of or approaches to communities risk being oppressive, exclusive, and may even violate participation rights.

Conclusion Depending on its implementation, a World Heritage designation can have a direct impact on the livelihoods of many. The development of approaches and policies that take note of this impact and aim to mitigate potential social harm is crucial. Human rights-based approaches are one way to think through social justice in the realm of World Heritage conservation. However, is it important to remain aware that the cultural and collective character of heritage makes its link with human rights uneasy. I have explained this by considering the potential of rights to address some of the key challenges facing the preparation of the World Heritage nomination of Bagan. In this case, cultural rights are unable to offer clear guidance to negotiations around the extent to which popular religious practices that impact the fabric the monuments of Bagan should be allowed. This is a result of its ambiguous meaning and the various ways in which this category of rights can be interpreted. Moreover, conflicting interests of community members and internal power imbalances raise questions about who speaks for the community, what genuine participation is, and how participation rights can be guaranteed as part of human rights-based approaches.

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As is the case for every World Heritage property, Bagan’s situation will change over time, and perhaps in the future having human rights-based approaches to World Heritage conservation solidified in policy or legislation may improve or even save lives and livelihoods. However, more research is necessary on if and how the contested human rights discourse, with its various interpretations, can work effectively in the equally contested realm of cultural heritage conservation. Such research may involve following a World Heritage nomination of a place like Bagan over several years to investigate how human rights language is used. Particular attention could be paid to the identification of situations in which the use of human rights language leads to desirable changes in policy and attitudes, or when and why human rights language is avoided. Moreover, I contend it is important to research the potential use of alternative conceptions of social justice or ways to make claims that emerge on the ground and compare their relative effectiveness to that of the universalistic human rights discourse.

Notes 1 2 3 4 5

The Bamar are the dominant ethnic group in Myanmar. Myanmar submitted a World Heritage nomination for Bagan in 1996, but it was referred back by the World Heritage Committee because additional information was required. Myanmar never provided this. See http://www.mm.undp.org/content/myanmar/en/home/countryinfo/. Although it is often referred to as an ‘anthropological’ understanding of culture, it is, in fact, much less nuanced (Nielsen 2011, 277; Silberman 2012, 248). To protect anonymity, this name has been changed.

References Chapman, William R. 2013. A Heritage of Ruins. Honolulu: University of Hawaii Press. Denes, Alexandra. 2012. “Mapping Living Heritage at the Phnom Rung Historical Park: Identifying and Safeguarding the Local Meanings of a National Heritage Site.” Journal of the Siam Society 100: 183–215. Department of Population. 2014. The 2014 Myanmar Population and Housing Census: The Union Report. Nay Pyi Taw: Department of Population, Ministry of Immigration and Population. Ekern, Stener, William Logan, Birgitte Sauge and Amund Sinding-Larsen. 2012. “Human Rights and World Heritage: Preserving our Common Dignity through Rights-based Approaches to Site Management.” International Journal of Heritage Studies 18 (3): 213–25. Fong, Kecia L., Tim Winter, Hae Un Rii, Pinraj Khanjanusthiti and Aparna Tandon. 2012. “‘Same, Same but Different?’: A Roundtable Discussion on the Philosophies, Methodologies and Practicalities of Conserving Cultural Heritage in Asia.” In Routledge Handbook for Heritage in Asia, edited by Patrick Daly and Tim Winter, 39–54. London: Routledge. Fraser, Nancy. 2003.“Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation.” In Redistribution or Recognition? A Political-Philosophical Exchange, edited by Nancy Fraser and Axel Honneth, 7–109. Translated by Joel Golb, James Ingram and Christiane Wilke. London:Verso.

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Goodale, Mark. 2009. Surrendering to Utopia: An Anthropology of Human Rights. Stanford, CA: Stanford University Press. Hodder, Ian. 2010. “Cultural Heritage Rights: From Ownership and Descent to Justice and Well- being.” Anthropological Quarterly 83 (4): 861–82. Houtman, Gustaff. 1999. Mental Culture in Burmese Crisis Politics: Aung San Suu Kyi and the National League for Democracy. Tokyo: Tokyo University of Foreign Studies, Institute for the Study of Languages and Cultures of Asia and Africa. Hudson, Bob. 2008. “Restoration and Reconstruction of Monuments at Bagan (Pagan), Myanmar (Burma), 1995–2008.” World Archaeology 40 (4): 553–71. Karlström, Anna. 2005. “Spiritual Materiality: Heritage Preservation in a Buddhist World?” Journal of Social Archaeology 5 (3): 338–55. Kraak, Anne Laura. 2017. “Impediments to a Human Rights-based Approach to Heritage Conservation: The Case of Bagan, Myanmar.” International Journal of Cultural Policy 23 (4): 433–45. Messeri, Beatrice. 2007. Myanmar: A Comparison between Past and Present. Paper presented at XII International CIPA Symposium, 1–6 October, Athens, Greece. Available at: http:// www.isprs.org/proceedings/XXXVI/5-C53/papers/FP098.pdf. Ministry of Hotels and Tourism, Nepal. 2013. Myanmar:Tourism Master Plan 2013–2020. Nay Pyi Taw: Ministry of Hotels and Tourism. Nielsen, Bjarke. 2011. “UNESCO and the Right Kind of Culture: Bureaucratic Production and Articulation.” Critique of Anthropology 31 (4): 273–92. Philp, Janette. 2010. “The Political Appropriation of Burma’s Cultural Heritage and Its Implications for Human Rights.” In Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice, edited by Michele Langfield,William Logan and Máiréad Nic Craith, 83–100. London: Routledge. Pichard, Pierre. 2013.“Today’s Pagan: Conservation Under the Generals.” In “Archaeologizing” Heritage? Transcultural Entanglements between Local Social Practices and Global Virtual Realities, edited by Michael Falser and Monica Juneja, 235–249. Berlin: Springer-Verlag. Silberman, Neil A. 2012. “Heritage Interpretation and Human Rights: Documenting Diversity, Expressing Identity, or Establishing Universal Principles?” International Journal of Heritage Studies 18 (3): 245–56. Spiro, Melford E. 1982. Buddhism and Society: A Great Tradition and its Burmese Vicissitudes, 2nd ed. Berkeley and Los Angeles: University of California Press. Stavenhagen, Rodolfo. 1998. “Cultural Rights: A Social Science Perspective.” In Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights, edited by Halina Nieć, 1–20. Paris: UNESCO Pub., and London: Institute of Art and Law. Thu, E.E., 2016. “Bagan Hoteliers Fight Back.” Myanmar Times, May 18. http://www. mmtimes.com/index.php/lifestyle/travel/20367-bagan-hoteliers-fight-back.html. UN. 2003. Common Understanding on Human Rights-based Approaches to Development Cooperation and Programming. New York: United Nations Development Group. UN OHCHR. 2006. Frequently Asked Questions on a Human Rights-based Approach to Development Cooperation. New York: United Nations Publications. Unakul, Montira and Clara Rellensmann. 2013. Capacity Building for Safeguarding Cultural Heritage in Myanmar. Bangkok: UNESCO Bangkok. UNESCO Bangkok. 2001. Universal Declaration on Cultural Diversity. Available at: http:// unesdoc.unesco.org/images/0012/001271/127162e.pdf. UNESCO Bangkok. 2003. Convention for Safeguarding Intangible Cultural Heritage. Available at: https://ich.unesco.org/en/convention.

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UNESCO Bangkok. 2013. Myanmar: UNESCO Country Programming Document 2013–2015. Bangkok: UNESCO. UNESCO Bangkok. 2013. World Heritage Committee 37th Session, Item 13 of the Provisional Agenda, Draft Policy Guidelines, WHC-13/37.COM/13. UNESCO Bangkok. 2015. Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention. Document WHC-15/20.GA/INF.13. Waterton, Emma and Laurajane Smith. 2010. “The Recognition and Misrecognition of Community Heritage.” International Journal of Heritage Studies 16 (1–2): 4–15. Waterton, Emma. 2015. “Heritage and Community Engagement.” In The Ethics of Cultural Heritage, edited by Tracy Ireland and John Schofield, 53–67. New York: Springer.

8 LOCAL RIGHTS IN WORLD HERITAGE SITES Learning from post-earthquake rehabilitation dynamics in the Kathmandu Valley Sudarshan Raj Tiwari, Pranita Shrestha and Hans Christie Bjønness

Introduction The huge devastation caused by the 2015 Gorkha Earthquake to the Kathmandu Valley World Heritage Site severely threatened its integrity while substantially reducing the density of its attributes.The subsequent dangers to the property led the World Heritage Committee to consider putting it on the list of Sites in Danger, but ultimately decide not to (Thapa 2015). For Nepal, the disaster did not only cause loss of nationally important heritage; it also had serious negative consequences for tourism-dependent livelihoods and the wider economy. However, despite the complex situation of the emergency, local communities made impressive contributions to salvage wooden building elements and claimed rights to rebuild their heritage structures. This vitality towards cultural continuity was a positive and unexpected sign in the post-earthquake situation. It also helps shed light on the important role of local communities in shaping how rights are expressed and claimed in the context of heritage. This chapter is based on grounded and inductive research1 addressing the actions, value basis and emerging rights from the perspective of local communities as well as institutional responses in the post-earthquake context. The Kathmandu Valley World Heritage Site (KVWHS) comprises seven groups of monuments and their urban or natural contexts, which include the Durbar (palace) Squares of Kathmandu (Hanuman Doka), Patan and Bhaktapur; the Buddhist stupas of Swayambhunath and Boudhanath; and the Hindu temples of Pashupati and Changu Narayan (Figure 8.1). The three sites selected for this study were Patan Monument Zone (PMZ), Kathmandu Monument Zone (KMZ) and Swayambunath. Understanding the impacts of the earthquake requires a historical understanding of dynamics preceding the earthquake, as well as interrogating recent events.

136 Sudarshan Raj Tiwari, Pranita Shrestha and Hans Christie Bjønness

FIGURE 8.1

Map of Kathmandu Valley (Nguyen Huu Duy Vien).

To the latter end, a neighbourhood study was conducted to build an understanding of the changes that had occurred. The identification of positive and negative trends was facilitated by baseline studies done before the disaster. These were available in the form of academic reports of three earlier studies as part of the MSc course in Urban Ecological Planning (UEP/NTNU MSc students 1994, 1998, 2005). Without this earlier documentation of processes of change especially related to properties, the current study would not have been able to correctly interpret the results as post-earthquake within the case study area of Patan. Rights, in other words, need to be understood in their specific cultural and historical context.While the initial expression of local rights mainly concerned the question of access to emergency shelter, this was quickly followed by a process of recovery focused on

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re-establishing rights and linkages to place, livelihoods and intangible attributes of faith-related rituals and festivals. The managing institutions were less effective in contributing to remedial postearthquake action compared with citizens and communities. The post-earthquake recovery thus revealed the World Heritage Monument Zones (WHMZs) more as a field of local values and rights managed by networks of community groups than as a field of heritage based on Outstanding Universal Value managed by the state and local government institutions. The citizens and communities, exposed within the urban context of development, conservation and rehabilitation of World Heritage Monument Zones, posed the main question: ‘For whom is monument reconstruction undertaken?’ Thus, while much literature points to the risks of powerful actors taking over in post-disaster situations, they may equally lead to further community mobilisation. The dynamics of community action, rights and responsibilities were different in the three sites studied, relative to the strength or weakness of community relations to heritage monuments and surrounding areas. This in turn was contingent on, among other things, the strength of traditional religious and other institutions. Responses also differed in terms of agency, leadership and initiatives undertaken by NGOs.

An analytical framework Although our field of research was adapted to particularly concern the period of rescue, recovery and preparation for restoration, it also addresses the context and long-term consequences in terms of the continuation of, and impacts on, livelihoods, evolving rights of ethnicity and accelerating change of property relations and the urban living environmental context. We suggest that rights dynamics are studied through three interdependent dimensions (Figure 8.2). The first concerns evolving rights in terms of their emergence, expression and realisation. The second concerns different categories of rights such as civil, ethnic, place and safety and livelihood rights. The third dimension involves supporting actions from policies and implementation strategies. The main kinds of rights, and sub-areas to be studied, were drafted prior to field research in dialogue with other researchers, but were made more specific through the findings of cases. This involved responding to a global research framework (Larsen 2014) seeking to illuminate the diversity of contexts. Four broad areas of relations of rights were adapted (Tiwari 2015) and refined by grounded research by the Nepal research team: (i) place, resource and property rights; (ii) civic engagement, community consultation and participation; (iii) indigenous, ethnic and cultural rights, including continuity, diversity and transformation; and (iv) safety, livelihood and development rights. We kept an equally strong focus on the practice of rights, and their emergence or neglect, in the critical post-earthquake emergency and recovery.

HT

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T& EN HTS M & E G IC OR AG N RI N G G H EN IO & ET TS TE IC IPAT S, IGH ES TS CA V U I C R O C TIC R H L & U IG R EN A DS S PA SO T R IG TUR E O D T L N R O IN CU IH GH E, ME EL T RI AC LOP V L I P VE L EN Y, DE ET OPM F SA VEL DE

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FIGURE 8.2

N

IO SS

ENABLING SET-UP

IMPLEMENTATION MECHANISM

POLICIES AND STRATEGIES

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SUPPORTING ACTIONS

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The three-way analytical diagram (original drawing by Professor S.R. Tiwari. Redrawn by Dr Pranita Shrestha).

TABLE 8.1 Rights categories and corresponding rights as locally identified

Rights categories

Corresponding rights as locally identified

Place, resources and property

· · · · · ·

Civic engagement, community consultation and participation

Right to place Right to resources and property Right to shelter and housing Civic engagement Community consultation rights Participation rights

Indigenous, ethnic and cultural rights · Right to cultural diversity · Right to cultural continuity · Ethnic rights Safety, livelihood and development

The research team.

· Right to safety · Livelihood rights · Development rights

Local rights in World Heritage Sites 139

Findings Rights to place, resources and property Our study mainly addresses the Patan Monument Zone (PMZ), Patan Durbar Square and a socially diverse neighbourhood (tole) next to the square. Traditional Newari towns of the Kathmandu Valley have a morphology consisting of wellplanned neighbourhoods with a diversity of private and public spaces.They are traditionally caste-based and involve a network of public places with open access for religious practice, meeting places and trade. The urban space is sacred, concentric and socially stratified, with the main temple and palace square at the centre and the lower castes mainly at the periphery. This morphology appeared under threat as a result of the earthquake, which also triggered rights transformations. In relation to ownership issues, there was a strong call from local Community Based Organisations (CBOs) that all national heritage monuments should belong to the local community rather than to the state. They argue that access to monuments as temples, not just as monuments, is essential to their religious practices and that they ensure surveillance and security at all times. Evidently there is a great lack of trust between traditional social groups, CBOs and the state and its local government institutions and officers. The fact that many of the customary rights to a heritage place are challenged by modern legal ownership arrangements came to the forefront in the aftermath of the earthquake. Threats to the customary right to place of weaker social groups emerged first when more than one user group was associated with rituals and maintenance of monuments. This was evident in the conflict of entitlement rights brewing among three customary user groups – the Kapali, the Jyapu and the Joshi2 – following the earthquake damage to spaces of the Bhimsen Sattal in the PMZ. From a utilitarian justice point of view, they all claimed legitimate use rights. Prior to the earthquake, the socially weakest group had mainly used the space on a day-to-day basis, but after it stronger social groups attempted to assert exclusive ownership. There were also cases of asserting ownership to facilitate public use, which contrasted with a growing trend towards private ownership. A good example involved the Tamrakar community in Patan.3 They recaptured and secured public space to create emergency shelters where pre-earthquake interventions had involved individuals’ actions towards converting public space to private ownership. The number of unstable homes post-earthquake also led to an increase in vacant properties and absentee landlords/owners. Since then, owners and the government have started discussing in earnest land and ‘house-pooling’4 in historic areas of Patan to allow for road-widening, commercial exploitation of properties through new construction and horizontal subdivision of properties for housing. The key issues of right to place and property in Patan thus appear in the postearthquake period to stem from: (i) community-based property claims based on customary property rights to religious monuments and spaces within the Patan World Heritage Monument Zone; (ii) caste-based conflicts for rights to use religious space; and (iii) changes in user-rights to space after residing there for generations.

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These issues, together with increasing population pressure, result in (iv) opening up for further fragmentation of residential properties and rental housing. There were also (v) unexpressed, but practiced rights of donors or external international organisations – as locally perceived for Patan Museum. The overall question is how these complex issues of ownership and local changes can be addressed and monitored in a constructive manner to strengthen local territorial relations. A key issue is the conflict between local and state organisations arising from claims over the same heritage resource. Securing ownership of public space and monitoring of local land development and fragmentation can be done through local negotiations, a cadastral mapping process and local area conservation plans in contrast to ad hoc mapping. Area-based studies considering disaster vulnerability of the built fabric as well as heritage value should also be carried out (Tiwari 2012). Additionally, while assessing local development, it is important also to address issues of communities’ own strengths and changing territorial relations with their own organisation(s), communal and private land resources, skills and work and external links (Bjønness 2008).

Rights to civic engagement, community participation and consultation Policies and means for building rehabilitation and resilience are tested when human settlements are hit by disaster.5 Key concerns include the preparedness, readiness and robustness of participation and local involvement when faced with post-disaster efforts. The third of the Principles of Human Settlement Development is focus on civic engagement and empowerment through democracy and local governance (UN Habitat 1995). This principle is intrinsically linked with the potential for securing lasting post-disaster rehabilitation and positive change. Our research sought to address these concerns in the context of the ethnic diversity and strong traditions of communal responsibility for common assets in Nepal. Existing collective assets, forms of civic engagement and organisational strengths were arguably already being challenged prior to the earthquake by uncontrolled urbanisation and societal change.While the country is now a multiparty democracy, much remains to be done in terms of building local democracy with local elected representatives. This raises specific heritage-related questions: ·

·

·

What were the rights claimed by and role of communal involvement in the critical post-earthquake emergency and recovery phases within the World Heritage Monument Zones? What was the attitude of the duty-holder, the State Party, in terms of community participation and consultation policies and in implementation on the ground? Did the local government have a role in supporting rights of civic engagement and community participation?

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Our task was not an assessment of the State Party’s and UNESCO’s achievements, but rather to address the evolving rights and attitudes towards civic and community participation. Community involvement in the rescue and recovery efforts was extensive in all three monument zones studied. People were typically engaged in retrieving wooden and metal art and crafts, architectural elements and traditional bricks and removing debris. Such recovery action demonstrated a sense of responsibility towards the heritage and highlighted the conscious participation of the community and their strong relation to their heritage. In Patan, the Kathmandu Valley Preservation Trust (KVPT), an independent organisation mainly involved with restoration in Patan, took a welcomed lead role and managed the inventory of the broken elements of monuments. The initial enthusiasm soon transformed into demands for rights of participation and consultation in the reconstruction work. In Kasthamandap and the Kathmandu Monument Zone particularly, a serious public relations problem appeared for political leaders and local authorities charged with lack of coordination and mobilisation. The monument of Kasthamandap in KMZ generated a great deal of socio-cultural emotions and discussions related to its reconstruction. The emergence and expression of such rights were, however, seen as a hindrance by the management authority. In Hanuman Dhoka, the palace of KMZ, managers felt that the demands for engagement by all sections of society could not be fulfilled: they judged community involvement detrimental to the process of conservation of heritage itself. The chief officer, however, agreed that public representation in restoration work could be made in the case of monuments with which the community was linked through clear intangible cultural and religious practices. However, this is, according to his view, ‘provided that the representatives follow the basic principles of heritage management as per the regulations of the World Heritage Site’ (personal communication). In Patan, where local representative groups existed prior to the earthquake, some neighbourhood organisations like the Mangal Tol Sudhar Samiti6 remained unsatisfied with the local consultation processes of renovation work undertaken by authorities. These local organisations and NGOs claimed that their advice and participation contributed in many ways to the government’s Department of Archaeology (DOA) sponsored post-earthquake stabilisation and repair works, yet often were side-lined in official decision-making. Although quite a few local organisations claimed lack of consultation, it should be noted that they did not, however, necessarily pursue restoration practice and work according to international standards and regulations. Still, an overriding concern was that rights to participation were important considering that communities were bearers and practitioners of the faith-based intangible heritage values. Although Nepal introduced representative local government and multiparty democracy in the early 1990s, actual policies of local governance have remained curtailed. Local elections have been discontinued and a representative local government replaced by state-appointed leadership limiting real civic engagement. However, in Patan, a vibrant civil society contributed to heritage rebuilding

142 Sudarshan Raj Tiwari, Pranita Shrestha and Hans Christie Bjønness

through informal civic engagement and mobilisation in the critical post-earthquake period. In contrast, the formal local municipal government (nagar palika), according to our key informants, played a marginal role which was mainly limited to damage assessment. In summary, it can be concluded that citizens and communities claimed their right to civic engagement in the immediate action during the emergency to save historic building parts. However, real participation and consultation rights in the government-led rehabilitation and reconstruction of heritage have not been easy in a context of formal state control and World Heritage duties. There are a lack of representative, and accountable, local government institutions, which limits the responsiveness of local government action in rehabilitation. This also creates tension around the question of community involvement. In the rebuilding of the Kasthamandap temple, for example, authorities judged community involvement as detrimental to the process of conservation and reconstruction. Furthermore, there are culturally determined practices which could be in conflict with international human rights, for example on gender equality and women’s rights to engagement and participation in decision-making (Sen 1999). In traditional religious and cultural Newari organisations active in the heritage area, women have only a limited say. One of the key gender inequality issues identified in our research was women’s lack of access to take part in the management activities of intangible heritage carried out by the traditional socio-cultural trust of the guthi in the Newari ethnic community. Membership of the guthi is limited to male elders of the family or clan (with the exception of the increasing participation of younger female members in musical troupes at cultural events). However, the role of the guthi as the ‘glue’ in society is on the decline: an increasing amount of guthi land and property is being nationalised and the modern urban network society is opening a different local and informal institutional base to the younger population. The emergence and expression of the above community and local rights have also exposed the latent and longstanding conflict between local, national and international heritage institutions. For example, during the recovery of the structure and painting of an interior wall of Shantipur, a monument in the Swayambunath Monument Zone, local community members sought to limit foreign experts’ access to the lobby of the severely damaged temple for religious reasons. This example illustrates the complexity of sensitive religious sites being nationalised, and internationalised, through becoming a World Heritage site. It should be recognised in the Nepalese context that it is not only technical and physical aspects that make heritage monuments within a Hindu and Buddhist society stand out, and also determine ownership, access and rights of community engagement and participation.The role of mystical and Tantric practices also should not be underestimated and the need, indeed right, to preserve them can also not be denied.This brings us to the question of important intangible heritage, questions of cultural ethos, ethnic diversity and the complexity of cultural rights and their significance in roles in post-earthquake rehabilitation and revival of cultural continuity.

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Indigenous, ethnic and cultural rights Disasters may accelerate change, physically and economically as well as socioculturally. Indigenous ethnic groups are particularly vulnerable and exposed to change when livelihood and their territorial resources alter drastically. Ethnodevelopment – based on the principle of cultural pluralism – becomes paramount to support cultural diversity and continuity (Stavenhagen 1990). However, the conscious struggle against cultural homogenisation and Eurocentric conservation practice is quite recent. The Nara Document on Authenticity (UNESCO/ ICOMOS/ICCROM 1994), for example, departs from a Eurocentric definition of authenticity, suggesting that cultural heritage must be ‘considered and judged within the cultural context to which it belongs’ (ibid. xxii). This resonates with the World Commission on Culture and Development (UNESCO 1995) with its call for cultural diversity in cultural continuity. Such a call is relevant for Nepal with its culturally diverse and multi-ethnic composition. This, as argued by Bista (1991), is one of the main strengths of Nepal with its unique human and ecological diversity and richness. Rodolfo Stavenhagen (1990) introduced the term ethnodevelopment in conjunction with efforts to recognise ethnic and cultural rights in our increasingly pluralistic society. This raises important questions about what indigenous, ethnic and cultural rights mean in the difficult phases of emergency and recovery towards building of resilience. Furthermore, larger national level questions may be posed. How does the nation state address ethnic and cultural rights in a post-earthquake context? And what are the national conservation policy implications of addressing cultural continuity and rights of indigenous peoples and ethnic groups in urban contexts? In our findings, local claims to indigenous, ethnic and cultural rights emerged strongly through efforts to hold festivals and conduct ritual worship and other sociocultural functions at the monuments. Cultural rights also re-emerged through the activities and functions of the traditional trust organisations of the guthi.The first set of rights issues emerged in connection with festivals following the lunar calendar. The Matsyendranath chariot festival, Mataya and Krishna Janmastami celebrations in Patan, Gaijatra in Bhaktapur and Indrajatra in Kathmandu were key annual Newari festivals, which generated the most initial indigenous and cultural concerns. This was also important for other ethnic groups and opens opportunity for both the PMZ and the other monument zones of KVWHS to embrace a wider ‘heritage community’ with the potential to contribute to multi-ethnic solidarity. In her report on cultural rights to the UN Human Rights Council, Farida Shaheed (2011) recommends that a community dimension should be introduced when it comes to Cultural Rights and rights to access to cultural heritage. She refers to the notion of heritage community with a role beyond the site itself. The Kathmandu Valley World Heritage Site ‘project’ is, for Nepalese authorities, part of their efforts to build a national culture and integrity. As such, cultural sites and intangible practices have the potential to either unite or alienate people, depending on how cultural rights are addressed.

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BOX 8.1 THE CHARIOT FESTIVALS: ‘CARRIERS OF INCLUSION’ The main township-wide rituals of Patan are practiced during the so-called Matsyendranath festivals. Two chariots are pulled along a set route through town. Offerings are made to solicit rain and a good harvest, but also to bless the township as an urban sacred space. The festivals in 2015 started, as always, in Baisak (April), just before the earthquake. After the earthquake hit, the chariot of Minnath was observed stranded in the middle of the main market street of Patan, where it remained until September. However, in October, both the Rato Matsyendranath and the Minnath chariot festivals were also arranged. Males of all Newari caste communities paraded in front of Patan Durbar on their way to Sundhara, where the chariots met before moving through the narrow lanes. Fieldwork revealed the significant role of the Maharjan (farmer) community in doing the preparatory work for the ritual activities. This was also the case for Maharjan male youth in the PMZ area; for example, Nirmal (age 25), a plumber, took leave from his job to organise youth in his neighbourhood.

The festivals were well-attended and a uniting, cross-caste occasion in the postearthquake period. This period was not only about saving material remains of cultural importance in the debris of temples, but equally revelatory about religious significance and a sense of belonging. The question of ownership of temples alongside other cultural and religious rights emerged strongly in Patan at specific reconstruction moments, such as when soil testing was done, which was seen by local stewards as an infringement of the holy ground. This also raised potential areas of conflict between communities and the state-run technical conservation interventions, the latter affecting and in conflict with religious and cultural rights. World Heritage and national policies and actions face the challenge of addressing conservation and development challenges, of which ethnic and cultural rights are an integral part, to ensure cultural continuity. Such continuity is of wider significance for the overall urban context, not least in relation to the urban sacred space reaching beyond monument zone boundaries.

Safety, livelihood and development rights Rights to livelihood, development and safety concerns is our last, but definitely not least, category of rights. In earlier research in Patan (UEP/NTNU MSc students 2005), livelihood concerns were identified as important, together with health and educational services, but safety concerns were not regarded as urgent or critical. However, the ravages of the earthquake brought out both safety and livelihood questions as important.

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First, the damaged public heritage structures, in particular the temples, raised the threat of potential collapse posing an immediate safety risk in the public space. How could remaining temples and public structures be strengthened? Secondly, how could the safety of dwellings and workshops made of traditional materials be made resistant enough to stand through future earthquakes? Third, the realities of the post-earthquake situation brought questions of rights and access to places of safety to the forefront along with questions about a future public agenda on safety. Fourth, findings revealed the differential safety and livelihood and future development concerns of the most vulnerable and the low castes. The safety concerns for the damaged public heritage structures put pressure on the government agencies to pull down so-called unsafe structures and monuments rather than stabilise them. By-laws requiring the use of traditional materials and methods in preservation were imposed by the DOA, creating a major bone of contention between clients, architects and authorities. Most owners prefer modern materials. Conservationists have concluded that unless stringent measures to save the remaining heritage value of residential buildings damaged by the earthquake are taken, and enforced with appropriate incentives and public funding, the loss will be irreplaceable and permanent. However, the owners mainly sought to construct new buildings, claiming the right to live in safety. There were also commercial interests behind efforts to conserve traditional buildings and make adaptive reuse of them as restaurants, hotel and lodges. Communities, in turn, were struggling to collect funds for religious activities making up the majority of the intangible heritage. Local people and community organisations aimed at getting an increased share of tourism revenue. The rise in the cultural tourism industry has opened up new avenues of income for heritage property owners in the traditional city centres. Heritage-sensitive ways of renovating traditional buildings with compatible modern facilities for hotels and restaurants can contribute to local income and employment. This could save conservation-worthy buildings and traditional environments, but could also lead to gentrification and conflict with housing needs. Most house owners, indeed, have not been able to benefit from being in a heritage zone as they cannot afford traditional building materials such as wood. Today, local restoration efforts are insufficiently funded by the government, local government and entrance fees. Social solidarity, both in terms of the horizontal and vertical social networks and capital, was observed during rescue operations. However, in some cases, the sharing and access to semi-public and public spaces was shaped by the power play of traditional caste and social hierarchies. In Patan, for example, some low-caste female-headed households were unable to find emergency shelter in their own neighbourhood. One case of this was a dongol (farmer) caste family living next to Patan Durbar Square within the World Heritage area, who had to run more than a kilometre to the Bagmati River and the Shankhamul temples to find shelter when the aftershocks created a feeling of insecurity.While this gives an impression of local exclusion, it may also indicate some sort of ‘reaching out to ones’ relatives’ shelter’ as suggested by some of the higher caste participants in our round table discussion.

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While houses of Patan were physically surveyed after the earthquake by the local government, to our knowledge, there were no surveys of critical livelihood conditions or the needs of poor families for improved shelter safety.This raises the issue of whether to use targeted or community rights-based approaches (RBA). It involves questioning what and who are targeted for what reasons, and recognising the possibilities and limitations of communities, local government and state agencies and NGOs to make integrated approaches to include the underprivileged in their efforts. It seems that with the persistence of the caste system within the Newari ethnic group a targeted RBA is necessary for marginalised groups to be actively involved. Efforts to reach the poor and marginalised (such as female-headed households) depending on cross-caste contributions and community responsibility alone has not brought the necessary positive changes. However, joining in cross-caste efforts as an attempt to lower caste barriers should be encouraged and together with improved access to education will certainly go a long way to making a more inclusive society. For livelihoods issues, earlier studies in the same neighbourhoods within PMZ in 1998 and 2005 gave us baseline information on economically weaker sections and local change. A comparison with the post-earthquake situation revealed the complexities of poverty, assets and action to overcome poverty. Femaleheaded households of low castes, a focus of our research, shared insight into their economic shortcomings, poor housing and failing educational and health services conditions. Their vulnerabilities made them suffer disproportionally in the post-earthquake situation. As renters, they lacked emergency access to safe houses, had to find new shelter, their children’s education was often disrupted and they were deprived of living in an opportune location within the heritage area. While they also brought forward positive conscious priorities of children’s education and social mobility, long-term neighbours, and also conservation professionals, were generally unaware of their particular needs, housing conditions and vulnerabilities. Action has been taken to limit access to unstable, unsafe parts of the central areas of Kathmandu and Patan. A major challenge is to improve safety so that residents can return to evacuated dwellings and workshops. Most acute are the safety and repair concerns for poor families living in damaged houses. We might conclude that ‘disaster discriminates’: poorer and lower caste people suffered disproportionate effects on their livelihoods, while others were untouched.The equal right to safety for all was not achieved – and the situation calls for inclusive neighbourhood measures for improvement. A targeted approach in terms of addressing the most vulnerable is required to build livelihoods which can contribute to a resilient future.

Discussion Findings revealed how vulnerable citizens were worst hit by the earthquake. In particular, the situation of the poor female-headed households calls for both targeted

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and community-based policies and measures. Their situation confirmed the marginalisation and worsening livelihood conditions of vulnerable, urban poor individuals and households also within the World Heritage area. Yet, there is more to the story. Customary rights to heritage places are also challenged by modern legal ownership and the nationalisation of heritage management. Furthermore, the introduction of commercial housing during rehabilitation challenges the dwelling/workplace co-location by gentrifying the social fabric and alienating traditional ethnic environments, threatening the historical urban courtyard and public space structure. Pranita Shrestha touches on such realities of caste and community: caste still defines and determines one’s status and role in society. Individuals are not equal and cannot exert their rights in society in the same manner. A deeper understanding of this socio-cultural determinant of rights is significant for a holistic understanding of a rights-based approach to World Heritage in the context of Nepal. (2017, 7) The local challenge now is not so much about the principles and norms of Human Rights in international law but more about the way in which the latter are implemented both nationally and internationally’ (Forum Mondial des Droits des Hommes 2014). Overall, post-earthquake dynamics, as this case demonstrates, involve a potential for long-term positive implications if social complexity is taken into account. The revival of customary rights to heritage places poses an opportunity for cooperation and for the State Party to secure cultural rights, thereby contributing to the larger ‘heritage community’, tolerance and long-term resilience building. Internationally, there are efforts towards ‘the passing of a world-leading Disaster Management Act that prioritises equity, inclusion and gender equality’ (Sanderson et al. 2015, 10, emphasis added).These perspectives are all part of a humanitarian agenda, and also a call for a paradigm of resilience, addressing the most vulnerable in disaster situations.

Conclusion Our research focused on the post-disaster situation, in particular in relation to the emergence and expression of local rights in the initial emergency phase. This phase was followed by the process of recovery addressing the re-establishment of and continuity in people’s lives and place connections. In our conclusion, we want to review some of our findings in a tradition of dialectics with the belief that they are not mutually exclusive opposites, but rather offer diversity enabling both positive change as well as the potential for neglect.7 We have here mainly concentrated on rights issues and rightsholder opportunities.

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The relationship to internationally promoted human rights objectives and the rights of the poor were also in focus. Local community action did not disappear with the earthquake, but was to become the major force in the reconstruction process. Locally emerging community rights, their expression and realisation, have played a major role in heritage rehabilitation efforts and also in terms of creating a structure of resilience in the post-earthquake period.This also created fields of tension, which, in a caste context, left vulnerable groups behind – as well as producing tensions with authorities. Legitimate needs to address livelihoods and safety issues of the poor, for example, were not adequately addressed. Cultural heritage as institutionalised through World Heritage activities in Kathmandu is largely monument-focused, and an impressive effort has been initiated in working towards reconstruction of lost key monuments. However, in the neighbourhoods of Patan WHMZ, many courtyards which traditionally were both for living and working are today abandoned. Traditional arts and crafts have been discontinued. The government, furthermore, supports ‘house pooling’. As a consequence, the very conservation of the urban structure itself is at stake. The call for real civic engagement in heritage reconstruction was not just a slogan; it was a real call for a say in the restoration and reconstruction efforts. Without elected local government representatives and officers, the distance between the citizens and the state has been an important challenge in bridging the divide. In the last part of the conclusion, we will briefly review the rights-holders’ demands to establish representative and responsive institutions, in a context of cultural rights and its challenges. A range of dialectics shape current dynamics. One concerns contradictory processes between evolving rights to protection of the ‘commons’ (Hardin 1968)8 and private property rights. There is increased consciousness of the importance and protection of community and common public spaces in the post-earthquake situation. In opposition are claims to the right to private property and steps towards privatisation and limitation in access to private and semi-private courtyards and lanes. There are also possible contradictions between the emergence of embracing cultural rights and the protection of ethnic rights of groups. On the one side is the extension of cross-caste, class and ethnic group cooperation to a larger ‘heritage community’ and the strength of joining efforts for the sake of cultural continuity. On the other side is the fear of ethnic Newari identity under threat from the destruction of dwellings and workplaces and traditional stewards being replaced by outsiders. The last issue concerns the co-existence of both exclusion and inclusion (Bjønness 2009). The emergency phase showed numerous acts of caste- and class-based practices of solidarity and inclusion in the search for and construction of emergency shelters.The cultural values, the socio-cultural glue of society, were critical to emergency and recovery responses and later in the building of resilience under difficult post-earthquake conditions. However, children, men and women, families, castes and classes revealed different levels of vulnerability to a disaster situation. There were also practices of cross-caste and class exclusion and discrimination of livelihood and rights to safety. Dramatic livelihood impacts were not surveyed

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by the municipality despite many of the poor losing shelter and facing the drama of evacuation, especially low-caste female-headed households. Many of the socially and economically most vulnerable families had to continue to live in their damaged and unsafe houses and many lost their jobs. Let us turn from the concentration on rights issues and rights-holders to dutybearers. Further discussion is needed on what rights, duties and responsibilities they (the duty-bearers) have and should have in the future. This research suggests that the right of community engagement and participation needs to be strengthened in order to save the ‘livingness’ of heritage because the community is the bearer and practitioner of faith-based intangible cultural practices. Where the World Heritage mission has historically centralised the dutybearing role with state agencies, this has created mistrust. The Nepal case deserves further attention. Communities, their ownership rights and duties of WHMZs need to be respected. Where this was in place, communities took charge, claimed their rights and did their duties in the demanding postearthquake situation. Society as a whole was involved in reviving cultural practices, working together towards sustained ownership of their cultural richness and diversity. The World Heritage mission, and national authorities, should rethink their restrictive management approach to Nepal’s World Heritage sites.

Summary of policy message There is a call for the State Party as duty-holder for the Kathmandu World Heritage Site, and for UNESCO as a prestigious UN organisation, to increase monetary and professional support to respond to rights concerns. Today, the Department of Archaeology faces major challenges in terms of addressing livelihood and safety issues within the monument zones. From Sen’s perspective of coherence critique, between the call for human rights and institutions empowered to implement them, there are significant issues in creating operational and representative institutions addressing central rights issues necessary for cultural continuity and life (Sen 1999, 228).9 Responding to the above complexity, there is a need in Nepal i) to start repositioning World Heritage as a field of local rights and responsibilities, (ii) to consider decentralisation of authority and responsibility for implementation of rights perspectives within the management system; and (iii) for duty-holders to take targeted steps towards inclusiveness and improved livelihood opportunities for vulnerable groups. The future of a community participatory site management programme led by a modern day avatar of the traditional guthi with a focus on the intangible assets and attributes of the people and place will depend on efforts iv) to prioritise financial support to the local community in their celebration of faith-based intangible practices and to deliberately promote cultural continuity and ethnic diversities. It is also important v) to put in place ways of equitable sharing of income from heritage with the local community and to augment their involvement in heritage industries;

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and (vi) to make World Heritage sites creative places of the present generation of local people, allowing their cultural advances to accrue as heritage in the future as rightful as the heritage from the past. Necessary work towards more sustainable communities include efforts (vii) to address the urban poor, in particular the marginalised female-headed households, through measures to reduce vulnerability and work towards sustainable livelihood and cultural rights. Essential for livelihoods is also the need (viii) to respond to the critical need for secure housing for poor citizens and earthquake victims; and address conservation and development challenges of the historic urban fabric; and (ix) to secure diversity of ethnic rights and duties to maintain their integrity within World Heritage areas and the pluralistic Nepalese nation as a whole. Further evaluation of locally, site-specific evolving responses to rights and their results have to be assessed in terms of their contribution to sustainable societal conditions and cultural continuity. The recent Policy for the Integration of a Sustainable Development Perspective into the Processes of World Heritage Conventions (UNESCO 2015) brings to the forefront the challenge ‘to act with social responsibility’, including language on human rights, equality and sustainability, through a long-term perspective. Our research demonstrates how culture is an addition to the triangle of sustainability issues in terms of social equity, environmental considerations and economic development (UNESCO 2013). From this perspective, too, it is necessary to move from post-earthquake emergency to resilience and sustainable livelihoods.

Notes 1 2 3 4

5

6 7

This research was undertaken as part of the international project on ‘Understanding rights practices in the World Heritage System: Lessons from the Asia–Pacific and Global Arena’ with support from the Swiss Network of International Studies (SNIS). The three user groups are all castes of the Newar ethnic group. Traditionally the Kapali are musicians, the Jyaou farmers and the Joshi administrators. The caste name Tamrakar is from the Sanskrit words tamra, meaning copper, and aakar, meaning to give shape. They are skilled craftsmen, mainly making household utensils contributing to the distinct Newari culture. ‘House-pooling’ is where, rather than people re-building or developing their plots of land/buildings individually, a group undertakes this communally.Various groups are pro and anti this. Some see it as a logical way to rebuild damaged areas using modern designs, methods and materials, while others point to the loss of traditional heritage, both tangible and intangible. The International Federation of the Red Cross and Red Crescent Societies (2016), in its last annual report, focused on the implications of policies of building resilience. The Sustainable Development Goals (SDGs) globally agreed on Goal 11, ‘make cities (human settlements) inclusive, safe, resilient and sustainable’ UN (2016).These goals are the international aspirations to be targeted. Mangal Tol Sudhar Samiti is the Mangal Neighbourhood Improvement Committee. Mangal Bazaar is the main market street in Patan leading from Pulchowk to Patan Durbar Square. On the role of dialectic thinking in relation to development, Lenin wrote ‘The two basic, or two historically observable, conceptions of development (evolution) are: development

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8

9

as decrease and increase, as repetition, and development as a unity of opposites (the division of a unity into mutually exclusive opposites and their reciprocal relation)’ (as cited in Mao Tse-tung 1937, n.p.). The integrity of place is at risk through overuse through tourism encouraged as a result of Patan Durbar Square becoming a World Heritage Monument Zone. The Tragedy of Commons could be said to exist through the state’s formal ownership, but also because a larger majority of citizens and tourists, who increasingly exploit a locally, limited and originally shared resource, with the risk of an end result that ‘the resource becomes unavailable to some or all’ (Hardin 1968). We do not address here the legal aspects, for which see Adhikari, this volume. Furthermore, the policy message builds on Bjønness (2016) and Tiwari and Shrestha (2016).

References and further reading Bista, Dor Bahadur. 1991. Fatalism and Development: Nepal’s Struggle for Modernization. Calcutta: Orient Longman. Bjønness, Hans Christie. 2008. “Changing Territorial Values in Urban Conservation. From Patan, Nepal to Gyantse, Tibet Autonomous Region.” In Values and Criteria in Heritage Conservation, edited by Andrzej Tomaszewski, 133–144. ICOMOS Int. Committee of the Theory and the Philosophy of Conservation and Restoration. Florence: Edizioni Polistampa. Bjønness, Hans Christie. 2009. “The Struggle towards Inclusiveness. Societal Development, Research and Field-Based Education in Human Settlements Development. From Squatters in Kathmandu to Urban Farmers in Gyantse.” In Proceedings of International Conference on Traditional Settlements and Housing in Tibet Autonomous Region, China and Nepal, edited by Sudarshan Raj Tiwari, Hongwei Guo and Hans Christie Bjønness. Kathmandu: Institute of Engineering, Pulchowk, Patan, Nepal. Bjønness, Hans Christie. 2016. Draft National Policy Recommendations for Nepal. Part II. Presented at SNIS meeting, Caux, Switzerland, January 2016. Global Forum for Human Rights/Forum Mondial des Droits. 2014. Human Rights: Emerging Issues and Challenges. Accessed May 22, 2016. http://fmdh-2014.org/en/ les-droits-de-lhomme-nouvelles-questions-et-defis/. Hardin, Garret. 1968. “The Tragedy of the Commons.” Science 162 (3859): 1243–1248. International Federation of Red Cross and Red Crescent Societies. 2016. World Disasters Report. Resilience: Saving Lives Today, Investing for Tomorrow. Geneva: IFRC. Larsen, Peter Bille. 2014. Understanding ‘Rights Practices’ in the World Heritage System. Research project proposal forwarded to SNIS for funding. Larsen, Peter Bille. 2016. Understanding Rights Practices in the World Heritage System: Lessons from the Asia–Pacific and the Global Arena. Global Science Policy Dialogue held in Caux, Switzerland January 2016. Workshop Report and Call for Action. Larsen, Peter Bille, Nicole Franaschini and Susanna Kari. 2016. Scaling Up Partnerships and Right Based Equitable World Heritage Conservation. IUCN World Congress in Hawaii. Report of the session held on September 4, 2016. Accessed December 12, 2016. www. google.no/?client=safari&channel=mac_bm&gws_rd=cr&ei=GCFIWKyMBsuPsgGQ 5ImABA#channel=mac_bm&q=Right+based+approaches+to+World+Heritage+site +management. Mao Tse-tung. 1937. On Contradictions. Policy Paper. Accessed December 30, 2016. www. marxists.org/reference/archive/mao/selected-works/volume-1/mswv1_17.htm#BM3. Sanderson, David, Andrea Rodericks, Nabina Shresta and Ben Ramalingam. 2015 DEC/HC Nepal Earthquake Appeal Response Review. Accessed December 30, 2016. http://www.dec. org.uk/sites/default/files/PDFS/dec_hc_nepal_response_review.pdf. Sen, Amartya. 1999. Development as Freedom. Oxford: Oxford University Press.

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Shaheed, Farida. 2011. Report of an Independent Expert in the Field of Cultural Rights. In Human Rights Council, 2011, Promotion of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Rights to Development. Seventeenth Session. Geneva: UN General Assembly. Shrestha, Pranita. 2017. Literature Review on World Heritage Sites of Nepal. Memo. Last updated 27.4.2017. Stavenhagen, Rodolfo. 1990. The Ethnic Question. Conflicts, Development and Human Rights. Tokyo: United Nations University Press. Thapa, Gaurav. 2015. “Unesco: Kathmandu’s monuments not in danger.” Kathmandu Post, July 4. http://kathmandupost.ekantipur.com/news/2015-07-04/unesco-kathmandusmonuments-not-in-danger.html. Tiwari, Sudarshan Raj. 2009. “Material Authenticity in Tradition of Conservation in Nepal.” In Proceedings of International Conference on Traditional Settlements and Housing in Tibet Autonomous Region, China and Nepal, edited by Sudarshan Raj Tiwari, Hongwei Guo and Hans Christie Bjønness. Kathmandu: Institute of Engineering, Pulchowk, Patan, Nepal. Tiwari, Sudarshan Raj. 2012. “Reading Heritage Values of the Historic City of Patan in Kathmandu Valley.” In Disaster Risk Management of the Historic City of Patan, Nepal, edited by Rohit Jigyasu and Naoko Itaua, 147–154. Kyoto, Japan: Ritsumeikan University. Tiwari, Sudarshan Raj and Pranita Shrestha. 2016. Draft National Policy Recommendations. Part I. Presented at SNIS meeting, Caux, Switzerland, January 2016. UEP/NTNU M.Sc. students. 1994, 1998, 2005. Reports on Fieldwork in Patan. Urban Ecological Planning, Department of Urban Design and Planning, the Norwegian University of Science and Technology. Trondheim: NTNU. UNESCO. 1995. Our Creative Diversity. The report of the World Commission on Culture and Development. Paris: UNESCO. UNESCO. 2013. The Hangzhou Declaration. Placing Culture at the Heart of Sustainable Development Policies. Hangzhou International Congress 15–17 May 2013. http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/images/ FinalHangzhouDeclaration20130517.pdf. UNESCO. 2015. Policy for the Integration of a Sustainable Development Perspective into the Processes of World Heritage Conventions. Policy document adopted by the General Assembly of the States Parties to the Convention at its 20th Session (Paris, 2015), by its Resolution 20 GA 13. Paris: UNESCO WHC-15/20.GA/INF.13. UNESCO/ICCOMOS/ICCROM (1994) The Nara Document on Authenticity The Nara Conference on Authenticity in Relation to the World Heritage Convention, held at Nara, Japan, from 1–6 November 1994, at the invitation of the Agency for Cultural Affairs, Government of Japan and the Nara Prefecture. The Agency organised the Nara Conference in cooperation with UNESCO, ICCROM and ICOMOS. United Nations. 1995. Draft Statement of Principles of Global Plan of Action. Preparatory Committee for the United Nations Conference on Human Settlements (Habitat II), Nairobi, March 13, 1995. Nairobi: UN Habitat. United Nations. 2016. Sustainable Development Goals. Goal 11. New York: UN. http://www. un.org/sustainabledevelopment/cities/.

9 VIGAN World Heritage as a ‘tool for development’?1 Sara Dürr, Malot Ingel and Bettina Beer

Sites are inscribed on the World Heritage list because they meet at least one of the ten selection criteria and are of Outstanding Universal Value.Vigan’s 1999 inscription emphasised the town’s visual, aesthetic and architectural uniqueness, diverse cultural influences over the centuries and well-conserved urban centre. An increasing number of sites today also aim and claim to contribute to development. Vigan’s government adopted a policy to use heritage as a ‘tool for development’. This policy, focused on conservation, inclusive development and economic wellbeing, has four guiding objectives: (1) to strengthen the local community’s sense of identity and pride; (2) to institutionalise local protective measures and development plans; (3) to forge links with local and international organisations; and (4) to develop Vigan as a tourist destination (Vigan City Heritage Conservation Program 2009). The heritage policy thus focuses on ‘development’, broadly understood as economic thriving, increasing visitor numbers and the inclusion of the ‘local community’. Heritage policies in Vigan, then, go beyond the conservation of ancestral houses and streets: they include livelihood and housing projects, anti-poverty programmes and tourism schemes; they likewise encourage participation by various stakeholders. Along lines similar to Sengupta’s proposed ‘right to development’ (2013, 69), Vigan’s heritage policy envisioned an inclusive development process in which everybody benefits and has access to resources and participation. However, Vigan’s policies affect specific individuals and socio-economic groups differently, which we contextualise in the city’s complex history. Drawing on ethnographic fieldwork,2 we examine Vigan’s inhabitants’ perceptions and experiences of the changes that have taken place since the World Heritage designation and ask what effects its heritage policy has had on the city’s different socio-economic groups. Within the broader context of our research project, we are particularly interested in the effects the heritage policy has had on people’s access

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to land, livelihood and resources (especially housing and property) and their rights to participation and consultation. The concerns of the marginalised sectors of Vigan can be understood as ‘rights and development’ issues from a human rights perspective. However, the term ‘rights’ was never used in local discourses – whether we conversed in Ilocano, Tagalog or English. And while people sometimes spoke of what ‘should be’ or was ‘only appropriate’, there was a striking contrast between the terms of the overall research project, which spoke of human rights and how local dynamics shape, facilitate and/or impede their realisation, and the terms in which local stakeholders discussed local heritage and development. Bigueños3 expressed their concerns about the challenges and constraints they face without invoking notions of rights, their violation or compromise, or illegality. This divergence suggests that the United Nations’ language of human rights and rights-based development is either currently unknown or too abstract to be relevant to local sociality.

Vigan’s ‘success story’: from a warlord-riven town to a World Heritage and New7Wonders City Vigan is a city in the northwest of the Philippines, in the coastal lowlands of Luzon. It is the capital of the Province of Ilocos Sur, one of four provinces comprising the Ilocos region. Most of Vigan’s inhabitants are of the Ilocano ethno-linguistic group (Cano 2012, 34). The city’s population and cultural life nonetheless reflect a mix of influences because the colonial history of the Philippines included Chinese, Spanish, American and Japanese migrants. Vigan is politically subdivided into 39 barangays, the smallest political, administrative and geographical unit in the Philippines (Alicar-Cadorna 2008, 1174) (Figure 9.1). According to the 2015 national census, Vigan has about 54,000 inhabitants (Philippine Statistics Authority 2016). Long before Spanish colonisation, Vigan was an economically vibrant town trading with the Cordillera region as well as with Chinese seafarers and merchants. After the Spanish conquistador Juan de Salcedo arrived in Vigan in 1572, the town became the centre of colonial government in north Luzon.Vigan prospered between the sixteenth and eighteenth centuries as an important link in the trade between China and Mexico (Ingel 2006, 3–5; Villalon et al. 1997, 15), and stately houses that reflected the merging of Chinese, Spanish and local architectural styles and cultural influences were built by Spanish colonisers and Chinese merchants and traders. Unlike many other towns in the Philippines, Vigan has kept most of these centuries-old houses (Akpedonu 2016, 113). This built heritage has survived the armed resistance of Spanish and American colonialism, WWII and the 1960–70s warlord politics that tarnished Vigan’s image and hampered its political and economic growth until the 1990s, and resulted in members of wealthy families seeking safety and prosperity elsewhere.The unrest also caused the neglect of the eighteenth and nineteenth century ancestral houses, which typically had commercial spaces on the ground floor and residences above; on the other hand, the adverse economic consequences of this violent era may have prevented the

Vigan

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Map of Vigan (Nguyen Huu Duy Vien).

houses from being altered or replaced by more functional and profitable structures (ibid., 123). After their violence-instigated abandonment, many of Vigan’s ancestral houses stood in varying states of decay until the 1990s. Several homeowners had by that time sold their ancestral houses to the political and economic elite in order to settle inheritance or management issues, or in order to fund moves elsewhere. In some cases, houses were sold because multiple heirs could not find any other way to develop or divide their inheritance. The value of Vigan’s built heritage first came to national attention in the 1970s as the national government enacted legislation to protect the country’s cultural properties. Presidential Decree 756 in 1975 listed Vigan’s Mestizo Section (the ancestral houses district) and the houses of two of Vigan’s most celebrated citizens4 among

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properties committed to the protection of the National Museum (NM). Although the ‘Vigan house’ came to symbolise the Spanish colonial era and its wealth, the town’s remoteness from the Manila-based National Museum and a largely indifferent local government meant that a few houses were demolished. This prompted a loose association of ancestral homeowners to take their own conservation initiatives to get Vigan’s Spanish era buildings listed as World Heritage, in conjunction with the NM, in the 1980s. Significant headway with conservation efforts eventually occurred in the 1990s, as ancestral homeowners formally organised; a concerned local politician became the mayor of the then–second-class municipality of Vigan in 1995, the national government aggressively pursued programmes to capitalise on tourism as an engine of development and it also created the Vigan Heritage Village Commission in 1996. This partnership of the private and government sectors, and its linkages with heritage conservation advocates and pertinent national and international organisations, foremost of which was the United Nations Education, Scientific and Cultural Organization (UNESCO), proved effective in increasing awareness of, and organising support for,Vigan’s heritage. In 1999, UNESCO listed Vigan as a World Cultural Heritage Site. The inscription of Vigan was based on two criteria: first, that ‘Vigan represents a unique fusion of Asian building design and construction with European colonial architecture and planning’, and, second, that Vigan ‘is an exceptionally intact and well-preserved example of a European trading town in East and South-East Asia’ (UNESCO 2016). With a simultaneous, intensive government campaign, the town also regained recognition of its cityhood in 2001.5 Since then, the local government has become ever more determined to promote heritage conservation and development. Mostly as a result of government policy, heritage conservation, which was initially limited to the social and political elite and specific organisations, has increasingly engaged the city’s general population, whose members have come to regard themselves as stakeholders in the conservation and development process. Almost all people, locals and visitors alike, perceive the Spanish colonial structures as the sole element of the World Heritage site. The branding of the historic core zone (see Figure 9.2), which covers the ancestral houses district, as ‘Vigan Heritage Village’ further reinforces this perception. However, the grand houses of the economic and political elite could not have existed without the wider area of the ‘Historic Town of Vigan’, which includes the surrounding communities that provided the materials for the buildings and produced items for local consumption and trade: farmers and fisherfolk, artisans, the people engaged in abel-Iloko weaving, and the production of damili earthenware and the Chinese-introduced burnay stoneware pottery.6 All of these, along with those who defined the regionally specific cuisine, are now indispensable to Vigan’s identity as a heritage town. As part of its conservation and development efforts, the Vigan city government, with five other agencies,7 devised the Vigan Masterplan Project, or the Master Development Plan for the Revitalization of the Historic Center of Vigan over the period 1999–2002. The government intended to implement a Vigan Masterplan Project

Vigan

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The map shows Vigan’s historical town centre, located where the Govantes and Mestizo rivers (dark grey) meet, with the buffer zone (medium grey) and the World Heritage core zone (light grey) (H. Schnoor).

with or without World Heritage designation, in order to further development and heritage protection/conservation that would ‘contribute to the enhancement of the quality of life’ of the town’s inhabitants (Vigan Masterplan Project 2000, 3). In line with the ‘bottom-up’ approach that was then actively promoted nationwide by both government and non-government institutions, the Vigan Masterplan Project aimed to produce a consultative and participatory atmosphere. Community-based consultations and projects helped the government involve groups well beyond the owners of the Heritage Village’s ancestral houses as stakeholders in its development and conservation efforts. Such broad engagement was previously unknown in the town, which earlier political violence had divided to a point that effectively eroded democratic processes.

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In 2012, UNESCO also bestowed on Vigan an award for Best Practice in World Heritage Site Management for its multi-faceted, sustainable conservation and management approach to the protection of the property, despite ‘relatively limited resources’, that also involved the participation of the local community (UNESCO 2012). Moreover, Vigan was declared a New7Wonders City in December 2014. The latter designation does not involve international negotiations and the support of state powers and local elites, as UNESCO listing often does, but rather mass participation through social media and telephone voting. Vigan’s success in this arena led to a spike in tourist numbers with attendant traffic jams, booked-up hotels, a big demand in catering and a strain on the food supply. The expression ‘Wonder City’ is, as a consequence, more familiar than ‘UNESCO World Heritage City’ to many people in Vigan. Indeed, the term ‘heritage’ is barely used by local people except in reference to the district where the ancestral houses are located. But people can relate to Vigan’s being a Wonder City as most had participated in the voting process or attended one of the festivities on the occasions of Vigan’s nomination and inauguration. These awards and designations, and the city’s popularity with tourists, suggest a success story, especially given Vigan’s past. The local government and ancestral homeowners certainly see the city’s rich cultural heritage as its greatest asset in the pursuit of development and an improved quality of life for its population, and the UNESCO listing bolstered heritage and development efforts. The local government is confident that the heritage as a ‘tool for development’ programme will, with the participation of the people, produce further development and contribute to the goal towards ‘zero poverty’ (E.M.S. Medina interview, 12 August 2015). The drop in Vigan’s poverty incidence figures from about 45–50% in the 1990s and 13.6% in 2003, to 7.1% in 2012 (Vigan Masterplan Project 1999; E.M.S. Medina interview, 12 August 2015; National Statistical Coordination Board 2009; Philippine Statistics Authority 2014) reinforces that confidence.8 Although the difference in the 1990s and 2000s figures is partly due to modified national poverty measures, the gap between the 2003 and 2012 poverty incidence suggests improvement in the city’s affluence.

Changes and challenges affecting Vigan’s inhabitants Residents from various socio-economic contexts said that over the 16 years since it was inscribed, Vigan has changed a lot – in a way that they further perceive as progreso iti ili (the town’s progress). For locals, the physical development of the cityscape, the increase in business activities and the improved level of social services are the most solid indicators of this. The gradual growth in the population and the arrival of migrants drawn by the economic opportunities in the city are not surprising to locals. However, Bigueños expressed their astonishment at the unprecedented numbers of visitors during the campaign for and declaration of Vigan as one of the New7Wonders Cities of the World from September 2014 to May 2015.

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Developments in public infrastructure and social services Improvements in Vigan’s public infrastructure began with projects initiated through the Vigan Masterplan, for example the restoration of an old local government-owned building for use as theVigan Culture and Trade Center (VCTC), in 2001.The needs of more marginalised sectors were also addressed through the Vigan Masterplan Project: the city government commenced a resettlement programme for informal settlers and landless or homeless families with the so-called Shelterville housing project in 2001. Its first phase ended in 2003 with the completion of individual housing units for over a hundred families: it now (2017) has 175 units. The city government, in partnership with a private donor and the Rotary Club, completed another housing project a few years later, and it is currently preparing for the next resettlement plan. We discuss further the resettlement programme for informal settlers in the next section. Programmes addressing the unemployment that beset 40% of the population and poverty that afflicted 50% of Vigan’s families in 1999 have seen these figures drop over the years: several projects benefitting specific marginalised sectors were implemented through the intervention of the Vigan Masterplan. The food-security oriented Vigan Fisheries Project was carried out by the international humanitarian NGO Fundación Acción Contra el Hambre with the coastal and inland fishing communities between 2001 and 2005.The potable water supply project that now serves the barangays outside of the centre was undertaken by the Philippine Business for Social Progress and Fundación Canovas del Castillo around the same time. While administered by NGOs, both projects were done in coordination with local government agencies. Efforts to better people’s livelihoods continue, with a range of skills development and capacity-building initiatives having been undertaken since the Vigan Masterplan Project’s conclusion. Enhancement of public infrastructure, especially in Vigan’s peripheral barangays, is evident in the gradual paving of roads and the rise of new or improved multipurpose halls, daycare and health units and sports grounds. The upgrading of the abattoir in the buffer zone (see Figure 9.2) of the Vigan Heritage Village and construction of a solid-waste management and materials recovery facility in the city’s eastern outskirts, along with ‘clean-and-green’ policies, aim to address environment issues arising with the city’s growth. While these developments in public infrastructure are common in urbanising towns, the more prominent government-sponsored additions to Vigan’s cityscape clearly reflect the goal of maximising the city’s potential as a heritage site. After establishing the VCTC as a ‘venue for cultural and tourism activities’ (City of Vigan 2011, 21), the government built a seaside hotel in 2003. Separate ‘villages’ focusing on kankanen (native rice delicacies), damili and abel-Iloko were set up in three different barangays in 2004 ‘to promote rural tourism and decongest the heavy traffic of tourists within the city proper’, and thereby contribute to the economy of these barangays (City of Vigan 2011, 28). Similar collaborative efforts have resulted in bridges over the Govantes River that improved access to the heritage city, and addressed the needs of specific tourism

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projects. The provincial government also constructed the ‘dancing fountain’, which nightly lights up the Plaza Salcedo in Vigan’s city centre, to attract more visitors.

The ancestral houses, business environment and local economy With built heritage as its focus, the 1999 World Heritage inscription marked the victory of the advocates of conservation and protection who had campaigned for two decades. More people came to appreciate the ancestral houses’ economic value, especially as tourism increased. The esteem that owners were now accorded meant that some of those who had sold their homes came to regret their decision. Yet, even after inscription, some homeowners found it necessary to sell houses because they lacked the resources to invest in and/or build businesses out of their properties.9 It also became even more difficult to buy off co-heirs’ shares with the tenfold increase in real estate values since 1999. Now, more than ever, only the top politicians or their kin have sufficient resources to buy heritage properties, and ownership has become increasingly concentrated. The government has been beautifying the ancestral houses district since the 1970s. However, these efforts accelerated following the surge in interest in Vigan after its New7Wonders City listing. While some houses have been retained as residences, a few of the bigger structures have been transformed by wealthier owners into hotels, adding to the nine that Vigan had in 1999. The whole town’s business environment has generally expanded, mainly due to tourism. Outside of the ancestral houses, a construction boom has been happening since 2014, opening opportunities for speculation and offering work in a variety of areas. New hotels and hostels have been built across the city, with some a few kilometres outside the centre; some neighbouring towns have also invested in accommodation to service Vigan during the peak tourist periods. On former vacant spaces and grasslands, the establishment of nationwide fast-food chains, big supermarkets and department stores is also conspicuous. Many enterprises requiring smaller investments have also cropped up, indicating that lower-income groups are also engaging in the heritage business. The numbers of the Vigan horse-drawn carriages, the kalesa, have also increased dramatically, after having almost disappeared in the 1980s. Now, many kalesas carry tourists around the city, although locals hardly ever use them. Food businesses of varying sizes are also flourishing with the tourist market. One, a progressive home-grown garden restaurant in a pottery community which began modestly as a landscaping venture, is described by its owner as ‘not really having any lean season’, while producers of the numerous traditional culinary specialties have multiplied. Many mobile vendors make a living serving inexpensive snacks to the locals who congregate during festivities and the dancing fountain shows at the public plaza. Potters and abel-Iloko weavers have seen a higher demand for new items on one hand, and a threat to the sustainability of older products and designs on the other. With plastic wares replacing stoneware jars as grain containers and fermenting

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vessels, burnay pottery now largely survives by selling miniature and decorative pots and a variety of other souvenir items.10 Because the use of clay cooking pots and stoves has waned, the damili pottery at present mainly persists through the production of tiles (Vigan Masterplan Project 2000, 44-45) and plant pots for the growing bonsai market in the Ilocos provinces. However, sustaining damili production is today challenged by a clay source problem. Given the increased value of real estate, former quarry sites had been sold and converted into residential areas, and potters do not have the financial capacity to permanently secure the remaining quarries for themselves. In the peripheral barangays, a large proportion of the population still engages in farming and fishing, supplying food for the city’s inhabitants, but they face similar production and marketing problems. A semblance of ‘progress’ in these agricultural barangays nevertheless still exists, marked not by agricultural prosperity, but by the conversion of farmlands into residential areas and the rise of modern houses, many of which exude the newly acquired wealth of their owners.

Vigan’s ‘progress’ and the role of local government and private sector Vigan’s ‘progress’ – its economic growth – is linked to the city’s rapid urbanisation and affects various sectors in different ways. Locals associate the changes with Vigan’s reclaimed status as a city, rather than to its World Heritage status. The rise in business and increase in construction are thought to be merely coincidental with the inscription. The surge in tourism during the last two years, on the other hand, is often attributed to the New7Wonders City label. Many people also point to fortunes acquired through overseas employment, which have swollen the ranks of Vigan’s middle class and enabled some to make big investments. As an ancestral homeowner put it, ‘You cannot really say that progress is just about Vigan’s becoming World Heritage [because there are] these people who are coming [i.e. returning] from [working] abroad’ building big houses and establishing businesses like hotels. It is nevertheless probable that several factors, with the World Heritage designation as driving force, together account for the changes. Undoubtedly, World Heritage listing has been crucial to investment in Vigan over the past 15 years. The local government’s shift in policy initiatives evidently contributed to the town’s listing success, and it has maintained this line. Designation has empowered local government to promote conservation as a means to socioeconomic advancement. According to its slogan, heritage tourism generates business and livelihood opportunities, and thus fosters an inclusive type of development – one that benefits a greater number of people and therefore contributes to an improved quality of life in the city. In the following section, we discuss the different ways in which people in Vigan are affected by the government’s heritage policies. We particularly focus on stakeholders who experience marginalisation in Vigan’s heritage-and-development context.

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Differences and differentiation in local ways of life The local government has utilised social services ‘to make people happy’ and instil ‘pride of place’, thus enlisting citizens’ participation in conservation efforts (Vigan City Heritage Conservation Program 2009). There is general agreement that much has improved in terms of social services and public infrastructure, with many resources now being channelled to help the poor. Rather than relating this to heritage, some farmers, for example, see this as a sign that all levels of government have become richer due to more revenues. Others interpret the increased assistance extended to them as simply the return of taxes and fees they had previously paid to the government. The local government’s success in inculcating ‘pride of place’ is clearly reflected in the frequently expressed view of the inhabitants that their city is ‘beautiful’, ‘clean’ and ‘organised’, given its ‘old houses’, ‘places to visit’ and many other aesthetic enhancements. Amazed at the swarming Calle Crisologo during the Holy Week before Vigan’s inauguration as a New7Wonders City, an old resident, who has mainly depended on river fishing to support his family, suggested that many people visit Vigan because of its physical attributes and because it is ‘peaceful’, for ‘there are no abductions’ unlike in some other parts of the country. Pride in Vigan’s situation, and thus in being a Vigan resident, is evident across the different communities and socio-economic groups. The statement that ‘the city centre is already progressive; we are included because after all, our address is still Vigan, even if we are only eating horseradish’ made during a discussion with some farmers living on the eastern edge of the town suggests pride along with a lingering challenge for the city’s ‘development’. Expressed with a humour that indicates the contradictions and ambivalences of local perspectives, the statement suggests that while many people are enthusiastic about being part of ‘the city’s progress’, inclusion is not always at levels that suffice to counter feelings of exclusion. The following discussion on the situations of vulnerable groups also suggests limitations.

Urban poor, informal settlers and their resettlement The settlement for the urban poor referred to by the locals as ‘Hollywood’ is situated at the northern edge of the city district. On the outer end of Hollywood is a river which almost dries up in the dry season and swampland. The river becomes deep and raging during typhoons and heavy rain, making the area prone to flooding. When the rain’s intensity and duration reach certain levels, Hollywood poses many difficulties and dangers for its inhabitants: people’s mobility is greatly restricted, so that it is challenging to get to the market to buy food and other necessities; access to work is limited; possibilities for additional income such as doing laundry and butchering chickens cannot be done; worst, some homes can be flooded, threatening life and property. In 2001, the total population of Hollywood was about 600. Hollywood was very densely built and populated and inhabitants, neighbours and

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other Vigan residents described Hollywood as a ‘trouble spot’ as it was considered congested, chaotic and noisy. In the wake of the Vigan Masterplan, the city government decided to start building the relocation settlement named Shelterville, situated a 15-minute walk from the city centre. Many Hollywood inhabitants moved to Shelterville because they could secure ownership of a lot and housing unit at very low cost, and it was thought to be safe from flooding. Some, but not all, abandoned their houses in Hollywood, some of which were demolished and others rented out to migrants. During our fieldwork, we counted 27 houses in Hollywood that were still inhabited by a mix of original inhabitants and renters. The families that remained argue that Shelterville gets flooded as well and Hollywood is their home: they were born and raised there. They also pointed out Shelterville’s various disadvantages: it is not as close to the city or their workplaces as Hollywood and there is no space for workshops. Moreover, people from both Hollywood and Shelterville described the latter as crowded and noisy. In contrast, some families living in Hollywood today see their neighbourhood as transformed; it is now peaceful, quiet and safe. The resettlement programme that began with Shelterville had two objectives: the first was to provide low-cost housing that would offer the opportunity for the ‘less privileged, landless, homeless residents and informal settlers’ to own ‘more comfortable and decent shelters’ (City of Vigan 2011, 23). The risk to life and property that Hollywood residents faced during the seasonal floods and typhoons was an important consideration for the administration. The second objective was the clearing of an area adjacent to the city’s main entrance [i.e. Hollywood] that would pave the way for the gradual development of the riverbank for tourism purposes. As most settlers were to benefit from the housing project, the resettlement into Shelterville went smoothly, despite its distance from the city centre and some remaining resentment about being uprooted from the old settlement to which people were emotionally attached. The foremost issue in Shelterville became most evident only a year after the housing project was opened for occupancy when a strong typhoon with heavy rains brought unexpected flooding to the lower-lying part of the area. Although the problem is seasonal, bringing the same risks and distress from which many residents suffered in the former settlement (like Hollywood, Shelterville is situated along the margins of the city and beside a river), many residents point to the fact that they have improved their status from informal settlers to formal owners.11 Despite its much-improved financial state, the government cannot easily acquire land for relocation areas. In a city of only some 27 square kilometres, surrounded on all sides by rivers, waterways or the coast, private landowners hold on to their land for as long as possible. Only the less valuable properties, like those located along the city’s edges, tend to become available for purchase. Moreover, the government budget for relocation projects is limited, and with some 200 families on the waiting list for future housing projects, neither the government nor the needy have many options.

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Mobile food vendors and restrictions The local government has regulated business activities in pursuit of a ‘beautiful’ city and a pleasant experience for tourists. New restrictions on when and where vendors were allowed to sell their products were enforced during the surge in tourist numbers between the end of the successful campaign to make Vigan a New7Wonders City and its inauguration in order to control the heavy traffic of vehicles and people during the many celebrations and other events. This move affected mobile food vendors, mostly from Hollywood or Shelterville, who sell snacks from baskets or carts. The vendors quietly accepted the restrictions and waited for the government to provide them with alternatives, notwithstanding their anxieties about their livelihoods. A number had to stop conducting their trade completely and look for other means to cope; others continued to eke out a living by avoiding routes or areas where strict enforcement of the restrictions was expected. By the end of 2015, and long after tourist numbers had come to more normal levels, mobile snack vendors were allowed back into the centre of the city, but under conditions that restricted their mobility. Licensed vendors are now permitted to sell at the plaza, but only in the space in front of a Church property behind the dancing fountain, and only for three hours (6–9 pm), although some vendors stretch this to begin selling a little earlier. Also, because the fees are set at levels that are expensive for the poorer vendors in the different parts of the city, a few decided not to return and others put off buying their licence for as long as possible.

Damili potters and the clay source problem The quarries supplying clay for damili potters lie on private properties, use of which is controlled by their owners. The largest quarry, for example, was situated near the main road leading to the airport and beach; its value increased along with the city’s success and renown and it was sold.The new owner stopped all quarrying and built a mansion-like residence on the land. Potters fear that the few remaining quarries will go the same way as demand for land grows and real estate values increase. A retired potter who now makes a living by buying and selling damili products bemoaned the loss of quarries and the general indifference to the difficulties that potters face. A mother whose family had shifted to the manufacture of bonsai pots lamented that although her children have yet to complete their formal education they will soon have no clay to mould. Another old potter whose family depends on making various kinds of pots expressed the same fear: ‘Even if there are many clients, we won’t have anything to sell if we don’t have anything to mould’. Yet, potters are hesitant to air their concerns in a concerted manner and rely on their barangay leaders to explain their predicament to higher government authorities.The retired potter expressed fear of possible consequences at the suggestion that they should bring up the issue of access to clay sources with the new landowner

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or top city or provincial officials, adding that ‘You can only lay claim [to] the land where your house stands’. Those in the industry nevertheless await government intervention while hoping that the last quarry owners will continue to allow them to buy and dig up clay. Despite its intermittent action, the local government has begun negotiations to buy a prospective clay source in another municipality.

Farmers, fisherfolk and unfavourable market economics The growing market for agricultural and fisheries products that Vigan’s success entails should have brought greater opportunities for the region’s farmers and fisherfolk. The general feeling, however, is one of disappointment: ‘We are the only ones left out’, a group of farmers told us. Despite a farmer-leader’s admission that farm products like surplus vegetables which used to go to waste are now marketable, the food-producing communities cannot take full advantage of the growing market because of limitations in production resources, i.e., land and inland waters, as well as the increasing vulnerability of farm and fishery investments due to more frequent environmental disasters. The city has a small land area relative to its population size and compared to other towns in the province; farmlands are gradually being converted into other uses and a typhoon or drought can easily deprive the already struggling farmers and fishers of their financial and labour inputs. A woman who sells her husband’s fish catch summed up the situation: ‘Even if there are a lot of buyers, if you don’t have anything to sell, then it amounts to nothing’. Natural calamities that result in agricultural losses are givens for communities who depend on farming and fishing. In fact, pride in surviving and overcoming such situations is obvious in the farmers’ and fishers’ narratives. Conversely, there is much disenchantment with the state’s chronic failure to control market forces and install other safeguards: prices of products, such as yellow corn that is later processed into animal feed, and onions, two crops that Vigan farmers plant widely through the dry season, can suffer from almost freefalls as traders take the upper hand in pricing with or without the oversupply factor; meanwhile the cost of farm inputs such as seeds, fertilisers, pesticides and feed for fish12 and livestock continues to rise. A farmer-leader questioned this failure, pointing out that some countries protect their agricultural sectors from unfair market conditions, and the Philippine government should be able to do the same. A woman explained why farmers feel left out in the progress equation in a question: ‘How can we [farmers] become progressive when the prices of our products are so low’?

Unfair employment and labour practices Poor urban families and households depending on agriculture and crafts have, in the past, augmented their low incomes by various means.Vigan’s enlarged business environment and construction boom have offered these groups additional opportunities for employment, yet there is a widespread feeling that these opportunities

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cannot contribute all that is needed to the households of the marginalised. A farmer’s son aptly described the employee’s situation from his experience: not all business establishments pay the minimum wage for all employees, but applicants feel they must accept what is offered for lack of other prospects. Given the growing costs of living in or near Vigan, little, if any, disposable income remains from wages after necessary expenditures have been made. Moreover, employees today usually work on a casual basis, which means that they cannot enjoy the protections of the laws regular employees do.That labour rights are violated is neither unique to Vigan nor connected to its World Heritage status; rather, it is an aspect of ‘development’ under capitalism in a neoliberal context. The great importance of ‘connections’ is likewise not specific to Vigan or World Heritage sites. In direct and indirect ways, informants voiced a common perception of the distribution of employment opportunities in both private and government contexts: chances are not the same for all applicants, and credentials do not account for the differences. Politics and kinship do.

‘Pakairamanan’ for tourism-oriented enterprises Small entrepreneurs, especially in tourism-related enterprises, tend to have higher and more regular incomes than those in agriculture, the crafts and ordinary employment. Kalesa drivers, who often own their units, those preparing traditional dishes (such as the empanada [a savoury snack] or longaniza [a sausage]), as well as operators of souvenir shops offering a wide range of trinkets, woven products, shirts and so on, all do comparatively well. The explanation of the differences here has to do with the requirements of production. For example, the manufacture of traditional culinary specialties is largely a family business that needs little capital for equipment and materials, but immense amounts of labour. Such enterprises mostly engage immediate family members and relatives in production and marketing tasks. A longaniza-maker described how the huge tourist crowds benefited his family as ‘Adda pakairamanan’ (‘There is something in which we can be included’). Some entrepreneurs, however, are confronted with critical sustainability issues, given their need to rent spaces in or near the Heritage Village when the costs of doing so are continuously increasing, as owners pursue the best returns on their properties. A number of entrepreneurs have already lost their business premises in this way. This problem is akin to that faced by potters who lose access to their raw materials as owners turn their attention to other purposes.

Big business and uneven opportunities Investors with access to larger amounts of capital are best placed to profit from heritage tourism, yet, there are still differences between enterprises. A hotel owner explained that although there are more visitor arrivals, her family’s enterprise still experiences challenging periods of low occupancy: ‘There is no constant flow of

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guests’, yet hotels owned by those ‘who have connections … always have visitors’, implying that hoteliers compete on an uneven playing field. She added, ‘How can we compete with the government, business-wise?’ The biggest hotel in Vigan is owned by a politician in one of the province’s districts, two others by the governor and one of his relatives. Connections, as well as hotel size, matter. Large groups of visitors, for example government people coming for seminars, cannot be accommodated in smaller hotels; therefore, big hotels have a clear advantage.

Ancestral homeowners and the challenge of keeping family patrimony Ancestral homes are at the centre of the city’s heritage-based development orientation. The city government’s Heritage Homeowner’s Preservation Manual (2010) provides a guide for appropriate conservation work. However, maintaining and conserving the houses is expensive, as the state of some of them reveals. A local conservationist and a scion of an old family both explained that some families are not financially able to undertake proper conservation measures. The World Heritage label has brought business opportunities that, if tapped, could bring income that could then fund conservation costs. But our informants implied that it takes more resources than some owners can find to embark on the repairs and restoration that would make the houses sustainably profitable over the long term. As an example, one pointed to a house that is still very poorly kept while members of the owning family operate souvenir shops on the ground floor. Our informants were worried that while the ancestral houses are now part of World Heritage, there is no institutional mechanism to assist the less wealthy homeowners to deal with maintenance issues so they might profit optimally from their houses, and contribute to the maintenance of Vigan’s overall reputation in the longer term. One conservationist further indicated that there is a need to reconsider the conservation council’s clearance process, as he suspects that to avoid the long procedure some homeowners might clandestinely undertake repairs, which may be inappropriate for conservation.

Constraints and challenges to ‘inclusive development’ in the Vigan World Heritage context Vigan’s heritage conservation as a ‘tool for development’ model aims to include a great proportion of its citizens and eventually to eradicate poverty in the area. ‘Inclusion’, however, is in important ways a matter of degree, and Vigan’s development process shows how it varies across different socio-economic groups and depends on various local social conditions. Undeniably, most people of Vigan affirm their pride in living in Vigan, primarily because of its physical transformation and the economic progress that it has made in recent years, as reflected in the city’s business climate and improvements in public infrastructure and delivery of social services.The international recognition of Vigan

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has also reinforced the local people’s sense of pride in their place and its heritage. Nevertheless, feelings of inclusion in the economic dimensions of the city’s progress greatly depend on people’s capacities to participate in income-generating activities as well as in the consumption of products and services that the developments have brought. Enterprises oriented to heritage tourism, regardless of the levels of investment they depend upon, are evidently most enthusiastic about the city’s ‘progress’. Notably, many of the owners of these businesses, especially the largest ones, are among the wealthier segments of the Vigan scene. The already marginalised residents of Vigan find it harder to muster the same levels of enthusiasm for the current state of affairs.Various factors prevent particular segments from full inclusion in the city’s development process: resettlement areas are located along the geographic margins of the city, and settlers occupying the lowerlying units suffer from seasonal flooding. Restrictions that work to enhance the tourist experience have disproportionate impacts on the less wealthy sectors of the business world. Farm and fishery production is increasingly vulnerable to resource limitations and environmental disasters, and farmers feel ‘left out’ of the city’s ‘progress’, mostly because of their unfavourable market position. The decline in sources of clay caused by rising property values endangers the damili pottery industry and thus the livelihood of those who depend on it. Culture-identifying abel-Iloko designs are on the verge of extinction in Vigan, as appreciation of the craft and income derived from it have been insufficient to keep pace with the prospects offered by easier incomeearning activities. While tourism and urban businesses are expanding employment opportunities, unfair hiring and labour practices that perpetuate poverty persist. Even ancestral homeowners are not necessarily well-placed to maintain and expand their assets, because of what are perceived as ‘political’ inequalities, which give some greater opportunities in business. Some owners, indeed, lack the resources to restore and maintain their houses, so that, in the absence of mechanisms to support them, they risk losing their patrimony. Views expressed by some farmers and urban poor about the distribution of the benefits produced by the city’s ‘progress’ suggest that there are critical limits to heritage-based development under conditions of deregulated capitalism. We often heard statements such as: ‘The rich, those who have capital, become richer. Those who have money are the ones who can buy’ and ‘Life was better back then, because even if money comes easier now, it also goes easier’. Thus, while local development processes were sped up by Vigan’s World Heritage status, and most citizens view them as a success story, many regard the changes in values and the reconfiguration of interests that have resulted from the city’s listing as having still further marginalised those in the poorer sectors of society.

Conclusion Clearly, a range of local conditions shape and sometimes restrict the articulation of ‘rights’ in Vigan. The local government leadership enjoys considerable political power partly as a result of the credit it is accorded for Vigan’s success. Community

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organisations mostly engage in heritage initiatives through their participation in festival performances; and although a consultative atmosphere has been introduced, many individuals and groups find silence about their difficulties as culturally more appropriate than frank critique. This, in turn, is connected to the basic self-reliance of the Ilocano people, and the pride they take in this, so questions about equity and what ‘should be’ (the closest that local discourses get to the language of ‘rights’) count for less than the values associated with conflict avoidance. Furthermore, local values obligate the socio-economically better-off to consider the needs of the lessprivileged, thereby compensating for deficiencies in legal provisions that speak about the observance of rights; such values are paired with the expectation that those who receive consideration are obligated to reciprocate, mostly by treating the givers as patrons to whom naimbag a nakem (goodwill) is owed, thus reinforcing the status quo.

Notes 1 The phrase ‘Tool for Development’ in this paper is adapted from the Vigan city government’s label for its heritage and development policy, which is articulated as ‘The Vigan City Heritage Conservation Program: A Tool for Development’. 2 Ethnographic fieldwork, participant observation, interviews, informal conversations and focus group discussions were undertaken with key actors in the Vigan and Philippine heritage scenes as part of the wider SNIS-financed project ‘Understanding Rights Practices in the World Heritage System: Lessons from the Asia Pacific’. Work began in February 2015, with follow-ups until October 2016. At the local level, we interviewed several ancestral homeowners, heritage conservation specialists, a heritage consultant, an academic and Vigan’s mayor. Fieldwork around Vigan covered agricultural communities and food producers; traditional craftspeople such as weavers and potters; heritage-based business entrepreneurs; and informal settlers, who are among the city’s urban poor. Three focus group discussions were undertaken with communities of farmers, river/ inland fish farmers and coastal fisherfolk. 3 Vigan residents are locally referred to as Bigueños. Cano (2012, 59–60) discusses the term, pointing out that within the heritage tourism context, a local identity has been heavily promoted in Vigan. 4 The Catholic priest, Father Jose Burgos, who was garrotted along with two other priests in 1872 on the suspicion that they were involved in the Cavite Mutiny against the Spanish colonialists, and the poetess and feminist Leona Florentino (1849–1884), who is recognised as the mother of Philippine women’s literature. 5 After the local government’s years of work to regain its cityhood, the bid finally succeeded with the approval of Republic Act No. 8988, which is ‘An Act Validating and Recognizing the Creation of the City of Vigan by the Royal Decree of September 7, 1757 Issued by Fernando VI, King of Spain’, on December 27, 2000. The support of almost 93% of locals who participated in the plebiscite in January 2001 led to the ratification of said Act.This paper’s varied references to Vigan, as town (or municipality), or as city, depend on the time of the situations described. It must be noted that Vigan was inscribed as World Heritage in December 1999, while it fully regained its cityhood in January 2001. The ‘town’ or ‘municipality’ references are thus used for events that transpired before January 2001, while the ‘city’ reference is mainly used for events thereafter. 6 Damili is the older pottery tradition in Vigan; Chinese artisans brought the non-porous burnay and its technology to the city centuries ago. While within the Philippines, earthenware pottery exists in a few other towns, burnay pottery is only found in Vigan. The damili and burnay differ in terms of technology, function, economic valuation and so on.

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7 The Vigan Masterplan Project’s spearheading agencies were the Agencia Española de Cooperación Internacional (representing the Government of Spain), the Department of Tourism (representing the Government of the Republic of the Philippines), the Vigan Heritage Village Commission, the Provincial Government of Ilocos Sur, the Municipal/ City Government of Vigan and the administering Philippine non-government organisation, Fundación Santiago. 8 The national government has varied how it measures poverty levels through time. Changes in national standards included, among others, the use of more non-cash income-based measures in the 2000s compared to those used until the 1990s. Thus, the 2003 and 2012 Vigan poverty incidence figures are more comparable to each other than the 1990s and 2000s figures. 9 Exact figures on how many houses have been sold and improved are not available. 10 Of the five factories running in the early 1970s, only two have remained in business over the last 15 years. 11 On the logic of the resettlement programme, besides (or more important than) tourism development, which has yet to truly materialise, the Vigan Masterplan lead anthropologist Prof. Ponciano Bennagen paraphrased and quoted the 2000 Vigan Masterplan Project Spanish team leader Archt. Fernando Pulin during the 2016 UGAT (Anthropological Association of the Philippines) Conference: ‘We are not about to develop a heritage site which is an island of wealth amidst a sea of poverty’. Also, fishing communities downstream from Hollywood will benefit from cleaner waters. 12 Most fisherfolk are inland fish farmers who raise fish in river cages or fishponds.

References and further reading Akpedonu, Erik. 2016. “Lessons from Vigan.” In UNESCO in Southeast Asia. World Heritage Sites in Comparative Perspective, edited by Victor King, 108–139. Copenhagen: NIAS Press. Alicar-Cadorna, Edelyn. 2008. “Productivity and Performance of Barangays:The Case of the Heritage City of Vigan, Philippines.” World Academy of Science, Engineering and Technology 2: 1174–1186. Cano, Jenny Ruth. 2012. “Crafting Community, Reconstructing Identities, and Performing Traditions: Ethnoarchaeology of Burnay Pottery Tradition and Community Integration in Vigan Ilocos Sur, Philippines.” (PhD diss.) University of Arizona: Arizona Open Repository http://hdl.handle.net/10150/265816). City of Vigan. 2000. “Vigan Masterplan Project: Vigan Ethnographic Studies.” Vigan: City Government of Vigan. City of Vigan. 2011. Vigan Fact Book.Vigan: City Government of Vigan. Ingel, Maria Lourdes I. 2006. The Iloko. Katutubo Series: Profiles of Philippine Cultural Communities. Manila: National Commission for Culture and the Arts. Medina, Eva Marie. 2009. “The Vigan City Heritage Conservation Program: A Tool for Development.” Speech at the Penang International Conference on Sustainable Cultural Development, “The Economics of Heritage Revitalization,” 8–9 October 2009, George Town World Heritage Site. Accessed December 23, 2016. lestariheritage.net/picscd/ support/speech_mayor_of_vigan.pdf. National Statistical Coordination Board. 2009. “2003 Municipal and City Level Poverty Estimates.” Accessed March 12, 2017. psa.gov.ph/sites/default/files/2003%20SAE%20 of%20poverty%20(Full%20Report)_0.pdf. Philippine Statistics Authority. 2014. “2012 Municipal and City Level Poverty Estimates.” Accessed March 12, 2017. psa.gov.ph/content/psa-releases-2012-municipal-andcity-level-poverty-estimates.

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Philippine Statistics Authority. 2016. “2015 Census of Population.” Accessed December 12, 2016. psa.gov.ph/content/highlights-philippine-population-2015-census-population. Sengupta, Arjun K. 2013. “Conceptualizing the Right to Development for the Twenty-First Century.” In Realizing the Right to Development, edited by United Nations, 67–87. New York: United Nations. UNESCO and City Government of Vigan. 2010. Heritage Homeowner’s Preservation Manual. Bangkok: World Heritage City of Vigan, Philippines and UNESCO. UNESCO. 2012. “Vigan, Philippines Recognized for Best Practice in World Heritage Site Management.” Accessed December 8, 2015. whc.unesco.org/en/news/948/. UNESCO. 2016. “The List, Historic City of Vigan.” Accessed December 12, 2016. whc. unesco.org/en/list/502. Vigan Masterplan Project Team. 1999. “Vigan Masterplan Project: Preliminary Sociological Study.”Vigan: City Government of Vigan. Villalon, Augusto F. et al. 1997. “The Historic Town of Vigan, Philippines Nomination Dossier.” Accessed March 12, 2017. whc.unesco.org/uploads/nominations/502rev.pdf.

10 WORLD HERITAGE AND ETHNIC MINORITY RIGHTS IN PHONG NHA KE BANG, VIETNAM Cosmopolitan assemblages in neoliberal times Peter Bille Larsen

Introduction How do human rights and World Heritage relate to each other in Vietnam? Whereas both international human rights and World Heritage processes up to the early 1990s were largely absent and even rejected by official discourse, the picture today is very different. Ancient buildings alongside nature are no longer signs of a threatening feudal past, colonial power or neglected backwaters to be replaced by socialist development. Nor are human rights merely the threatening politics of the diplomatic other. The language of diversity and heritage, whether in political, cultural or historical terms – or through its material or immaterial manifestations – is a firm part of contemporary politics. World Heritage processes in Vietnam have been embraced and gained high visibility through multiple nominations and outward-looking diplomatic activity, alongside soaring tourism figures. Even the more contentious human rights field is, even if timidly, recognised, not least in the 2013 Constitution. Furthermore, in 2016, Vietnam was a member of both the World Heritage Committee and the Human Rights Council. The Asian values debate, which reduced human rights to a Western construct, seems bypassed, despite occasional eruptions. While Confucian values of virtue and duty may be in conflict with the literal translation of the Vietnamese term for rights (quyền lợi), ‘power and interest/benefit’ (Ta 1988), historical analysis also reveals common grounds, such as those between the legal regimes of the Lê and Nguyen dynasties and contemporary human rights standards (ibid., 233). There are, in short, good grounds for reconsidering how rights and heritage practices intersect in Vietnam. Even more important are the immediate implications of intensive heritage-making for local communities. Heritagisation in Vietnam, it has been suggested, can provoke local disconnection and disenfranchised communities which are ‘written off ’ by external players such as experts, state agencies and tourist companies (Salemink 2016).

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Phong Nha Ke Bang in Quang Binh Province, abutting the border with Laos, is Vietnam’s largest protected area and known across the globe for its spectacular landscapes, biodiversity values and cave structures (Figure 10.1). What is less wellknown are the lives and rights of the ethnic minorities and other local communities living there. Tourism rates have jumped and boosted the provincial economy, this chapter argues, without resolving the rights of people living in the heart of the area. This chapter seeks to understand such injustices by combining historical and ethnographic perspectives based on field visits to the Phong Nha Ke Bang area in 2015 and 2016.1 The field research forms part of a larger research initiative conducted in collaboration with Nghiem Thi Kim Hoa, Nguyen Duy Luong and Nguyen Linh Giang. The chapter explores, in particular, how World Heritage designation affected land, resource and property rights as well as livelihood and development

FIGURE 10.1

Map of Phong Nha Ke Bang (Nguyen Huu Duyi Vien).

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rights. It also addresses the theme of indigenous, ethnic minority and cultural rights as well as implications in terms of rights to consultation, participation and consent. Findings have been presented to provincial and national authorities, and this chapter seeks to analyse implications.

The ontology of rights in cosmopolitan heritage assemblages Between World Heritage ‘as a source of identity and dignity for local communities’2 on the one hand, and the critique of heritage-driven dispossession and marginalisation on the other (Disko and Tugendhat 2014), neither heritage nor rights are social categories with stable properties. Both, anthropology teaches us, are firmly embedded in the dynamics of politics and economy (Bendix 2009; Goodale 2007), prompting the need for contextually informed analysis when decrypting their significance. The concept of assemblage is increasingly employed in the context of heritage processes (Bille 2012; Harrison 2013; Macdonald 2009). World Heritage may be considered a global or cosmopolitan assemblage par excellence given that its features are at once sourced from and adaptable to a range of countries involving a global epistemic community and framework. This does not, however, presuppose a single self-contained global assemblage. The World Heritage system, evidently, is not a transnational jurisdiction per se, yet it does involve a (distinctively loose) global framework, which can be studied ‘on the ground’ between standardisation and local dynamics (Brumann and Berliner 2016). Ethnographies of patrimonialisation point to the significance of concrete manifestations rather than generic descriptions.They emphasise negotiations and the translation of global criteria into local dispositifs, tools and needs (Berliner and Bortolotto 2013, 5). This helps us to understand why World Heritage, whether as implicit or explicit-rights assemblage, may lead to anything between empowerment and marginalisation. Specific outcomes depend not only on heritage policy, but also multiple institutional orders and normative frameworks which may potentially collide with, deepen or restructure the nature and distribution of rights (Sassen 2008). The pursuits of justice, profit and state order may compete, coincide or co-exist in various ways through what Sassen calls partial assemblages (ibid.). Rather than entailing one specific UNESCO rights dynamic, such as local rights being overruled by state and global policy, specific site dynamics feature both national and international dimensions. This prompts attention to the ontological nature of assembled rights and global– local articulations in specific World Heritage sites. What ultimately constitutes the world-making properties of heritage? Ontological politics of heritage need not merely be an exercise by political philosophers in terms of what heritage could or should be, but entail solid decryption of heritage practices as they are. Such ideas are equally relevant for human rights. As Baxi notes: ‘A certain kind of “ontology” has always been at work in the work or labour of “defining” that which we call “human”’ (Baxi 2012, 269). Beneath the consensual allure of World Heritage

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and human rights assemblages lay complex, historically embedded and contested ontological politics. In contrast with the blurry consequences of a relativist posture, the concepts of assemblage and ontology allow empirical attention to what, ultimately, shapes how rights are not only conceived but also respected or, for that matter, violated in World Heritage processes. This may, for example, explore the extent to which actual assemblages reflect ideologies and concepts of civil servants (Nielsen 2011), international heritage norms and doctrines (Wells 2007) or, vice versa, whether ontological politics are locally driven. The chapter ultimately seeks to unpack not only the assembling or heritagemaking of experts involved in crafting universal value in Phong Nha Ke Bang, but also includes a discussion of multiple other processes (Macdonald 2009) which in written or silent ways make up World Heritage rights assemblages. There is, arguably, no stable terrain of rights in the seemingly cosmopolitan World Heritage assemblage. This might appear paradoxical for a United Nations instrument. Yet, how rights are manifest or absent cannot be reduced to a question of tensions between a global UNESCO dispositif and the ubiquitous, yet elusive, localities. Rights manifestations entail negotiations between global form and local context, where global actors (only) play a mediating role. This raises a number of critical questions.To what extent is there conflict or resonance between the global heritage regime and local rights regimes? How are global community imperatives translated, contextualised and ultimately grounded? To what extent does the transition to a global arena translate into different rights practices and, vice versa, to what extent do local practices shape global regimes? Phong Nha Ke Bang offers an interesting case study to start answering such questions.

Recontextualisation Well before World Heritage was on the provincial agenda, Phong Nha was a site of war-time sacrifice and suffering. In 1967, the Russell War Crime Tribunal received numerous testimonials about the repeated bombing of hospitals, agricultural cooperatives and villages in Quang Binh Province (Coates, Limqueco and Weiss 1971). As an entry-point to the Ho Chi Minh Trail system during the war, significant parts of the current national park area were bombed, leading to displacement and suffering. Although the Phong Nha Cave itself had been a tourist attraction since colonial times, several national heritage sites would later serve to remember the suffering and resistance that took place during the war. ‘The destruction was mutual’, President Carter noted following the war in 1977, stressing his commitment to human rights, while declining obligations to take part in reconstruction.3 Just as Herman and Chomsky and others would lament the role of power, propaganda and instrumentalised use of human rights in erasing the atrocities of war (Herman and Chomsky 2002 (1988)), attention is needed to the re-articulations of rights during times of peace and authorised heritage discourse. In 1997, two decades later, the Prime Minister asked the province to develop a World Heritage nomination for ‘the beauty of Phong Nha Cave’. Vietnamese

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scholars involved in the initial proposal observed how this soon led to a shift from local values of beauty to international criteria. Mediated by international experts, Phong Nha was recontextualised as globally significant by retrofitting local realities into universalist value categories. Its outstanding ‘values’ were defined as its geology, ecosystems and ‘one of the largest remaining areas of relatively intact moist forest on karst in Indochina, with a forest cover estimated to reach 94%, of which 84% is thought to be primary forest’, the UNESCO website noted.4 Determining Outstanding Universal Value (OUV) is, today, a sine qua non requirement to qualify for World Heritage. As a narrative assemblage, it defines ‘significance’ and, indirectly, insignificance from a global perspective. Some parts fit and form part of the new ontological whole, while others are deemed unfit in both descriptive and prescriptive terms.5 Hunter-gatherers and shifting cultivators have inhabited the Phong Nha Ke Bang area for centuries, with customary livelihoods and deep biocultural ties to the karst and surrounding forest landscape.6 This cultural history shaped by the area’s ethnic diversity made up of Vietic (Việt–Mường-Nguôn), Bru-Vân Kiều (Vân Kiều,Trì, Ma Coong and Khùa communities) and Chứt people (Sách, Mày, Rục and Arem),7 became insignificant, even superfluous, in geological temporal World Heritage terms. The global heritage-scape externalised them as a generic ‘buffer-zone population’ totalling some 65,000 people.The narrative omission of people rendered the cultural landscapes invisible and reduced the heritage space to a natural place in need of care. The heritage assemblage therefore not only privileged so-called universal values, but also required new forms of action. Heritage practices both enact different realities as well as involve assembling futures (Harrison 2015). Phong Nha Ke Bang’s status as a national park corresponded to a managerial requirement that needed reinforcement to demonstrate action, boundaries and future intentionalities required by international recommendations. The UNESCO website describes it: The property comprises an area of 123,326 ha and contains terrestrial and aquatic habitats, primary and secondary forest, sites of natural regeneration, tropical dense forests and savanna and is rich in large, often spectacular and scientifically significant caves.8 From the size of the area to immediate physical threats such as road upgrading and cable cars, decontextualised conservation discourse reduced the social complexity to positions for and against nature. Local histories gave way to cave exploration by British speleologists, tales of discovery and tourist admiration. Narratives of pristine forest, including questionable estimations of 84% cover in official documents, ignored longstanding usage and deprived people of rights to their customary areas. Such World Heritage making involved a dual reduction-cum-production narrative process, where a complex of values was reduced to selected substrata, subsequently magnified and recontextualised as a new whole. Such processes were enhanced by calls for park expansion in the new value gaze.9 The effects were immediate in terms of closed access, no local influence over use and the control of tourism by outside agencies. The following sections explore this rights transformation in more detail.

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Land and resource rights At first glance, customary land and resource rights were largely extinguished by protected area expansion and World Heritage designation. The park had its roots in a small protected area,10 whose expansion and reclassification as a national park was requested by the World Heritage community. This deepened the extinguishment of customary rights. In particular, hunter-gatherer communities such as the Arem, one of Vietnam’s smallest ethno-linguistic communities in numerical terms (Ferlus 2013), were affected. Left without land, cultivation or resource use rights, they have only recently been granted limited land rights in a resettlement area. Deprived of the right to return to earlier settlements, they are forced to remain in resettlement areas without clean water access and largely dependent upon rice subsidies for their survival. While park regulations de jure established the forest department as the rights-holder, staff for many years de facto offered leeway by tolerating low-scale withdrawal rights and customary uses. As one official noted: As for non-timber forest product use, of course, according to regulations these are violations … but, in the process of enforcement, we don’t enforce much – just mention it to them … the impact of their forest use is not major so it is accepted. (personal interview, 2015) The recent emphasis on law enforcement triggered by World Heritage status has reduced the space for informal acceptance. Parallel processes to formalise local rights, in turn, have been uneven, deficient and slow for ethnic minority lands. Starting in 2006, international project funding nominally sought to revert some of these trends through community forestry and forest land allocation (Larsen 2008), yet loss of customary land and resource rights in the core zones remains unresolved. The only formal attempt to recognise land rights within the park is a socalled internal buffer zone11 which recognises the current (re)settlement area of the Arem. Land allocation, however, is limited to residential land (41 ha) and 186 ha of land under cultivation (PNKB Management Board 2015). Most karst forest and old fallow lands now ‘belong to the park’, as a villager put it. While the original delineation supposedly was undertaken with ‘high consensus of local people’ (ibid.), final boundaries were redrawn by consultants and forest officials. The inner buffer zone only covers some 0.16% of the whole park, and a small fraction of the yet to be mapped out customary use and historical settlement areas of the Arem.12 Furthermore, the inner buffer zone only recognises the Arem, while ignoring the customary rights areas of other ethnic minorities that overlap with the park, such as those of the Ma Coong, Sách and Rục considered ‘outside’. Customary areas important for gathering forest products, cultural values, fallow cycles and other purposes remained unrecognised.13 Ban Doong, a small Vân Kiều settlement in the heart of the park, was under particular threat during fieldwork.14 Internationally funded ‘community forest’ allocation represented another attempt to address the

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tenure deficit, yet, in practice, allocation mainly concerned forest land outside of the park itself, corresponding to less than roughly 10% of the park area. Furthermore, our research revealed how these so-called community forests largely focused on extending restrictions within community lands, rather than creating a forest space for sustainable extraction.

Consultation, participation and decision-making While centralised heritage decision-making (Shaheed 2015) predominated in the heritage field, some form of consultation was common particularly in internationally-funded activities. The consultations prior to national park expansion as described by the lead consultant are illustrative: In meetings, we invited the national park staff, commune staff, local authorities, village head – the meeting was good. Local people supported extending the national park … but, you know, very common questions about their lives, their income, their economic development … They asked what kinds of products can be traded in terms of natural resources … because they earn money from illegal hunting, illegal NTFP collection. What kind can replace local resources? Very common questions. (personal interview 2015) These concerns, however, did not translate into different expansion plans. Rather, consultations amounted to organised information sessions about the decision to expand driven from above. Consultation was not considered a right, but an administrative requirement most often linked to international funding. While there were experiments with implementing Free Prior and Informed Consent (FPIC) in the context of REDD+ activities in the province, actual implementation resulted in something different. While called FPIC, local consultants used it as a planning instrument for already allocated community forestry land rather than reflecting a rights-based approach. In Thuong Trach commune, for example, villagers were surprisingly opposed to further community forestry activities. Interviews soon revealed that community forestry regulations were based on ‘disinformed’ consent to close off forest areas for local use rather than allowing sustainable use of their customary areas. Similar to many other efforts on grassroots democracy, rights and local participation, concepts were re-embedded in the Vietnamese legal, political and management context. Participation did not fundamentally challenge the dominant position of conservation agencies and expert voices. Co-management, furthermore, appeared regularly, yet was largely understood as cooperative management between government agencies. Actual community participation in park management was limited to temporary forest protection contracts confirming a contractual rather than rights-based relationship together with the overall call for people to take part in forest protection as part of performing their duties as responsible citizens.

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Indigenous, ethnic minority and cultural rights Although indigenous ethnic minority rights in the area are not framed as in international law, the minority rights discourse expressed by officials largely stressed equality and integration rights. The distinct rights ontology underlined the relative deprivation of right to development and modernity. In international fora, government reports spoke of ‘enabling conditions for ethnic minorities to enjoy equality’ (Human Rights Council 2014). Communities in the park qualified for national development and hunger eradication programmes ‘because they have lost access to natural resources’, as one official noted (personal communication 2016). Official development discourse evolved around socialist values of solidarity, neo-Confucian paternalist virtues and ethnic minority development as a transformative project, which could be summarised as the right to ‘exit (backwards) culture’. In contrast to scholarship which is pessimistic about the relevance of indigenous rights frameworks in the Vietnamese context (Salemink 2006, 43),Vietnamese scholars have long called for special attention to ethnic minorities in Quang Binh. The local intersection between ethnic minorities, heritage and human rights (see also Logan 2010) revealed a strong local concept of indigenousness stressing: i) ancestral presence in the area; ii) distinct cultures, ways of life and livelihood practices; and iii) entitlements to particular protective regimes (see, for example, PPC Quang Binh 2002). In contrast to the perceived sensitivity in the Central Highlands15 (Salemink 2006; Evans 1992; CERD 2012), the recognition of indigeneity and the role of the Quang Binh minorities in securing national unity during troubled war times was undisputed. National and provincial authorities recognised the distinct indigenous cultures at stake, while Vietnamese ethnographers emphasised the need to protect their ways of life (Vo 1998). Official visions portrayed hunter-gatherers as adding diversity value to Vietnam’s natural heritage. The 2002 World Heritage dossier noted how the groups ‘still live in rocky caves and gather forest products’, suggesting that they were ‘an attractive subject for ethnological study’ and even listed them as a value to justify biodiversity inscription (PPC Quang Binh 2002, 12). Later files also emphasised the added value of nature conservation for cultural diversity (PPC Quang Binh 2014). It was even argued that park expansion would contribute to the cultural protection of the Rục, Khùa, Sách and Mày minorities. Still, rather than conservation policy supporting cultural diversity and the resilience of ethnic minority communities, the effect has been the opposite. Although the provincial position confirmed constitutional commitments to non-discrimination, cultural rights and equality, it faced limitations in terms of dealing equitably with the complexity of customary land and resource rights, traditional livelihoods and collective voice in heritage deliberations. While large parts of the park overlap with customary lands, the rights of traditional stewards to take part in the decision-making process were continuously ignored. One official noted: ‘All agreed to the park expansion because it didn’t involve taking people’s land at all! Nor were there any impacts on their needs at all…the park only involves land far from settlements’ (personal interview 2015).

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Rather than recognising customary land rights and the voice of traditional stewards in decision-making, a paternalist development discourse tended to locate indigeneity and cultural difference as a development deficit to be overcome.16 Furthermore, a new discourse seeking to capitalise on and transform local culture into a commodity to be exploited by public and private tourism operators is also in the making.17 Activities to transform settlements, housing and ceremonies are, however, increasingly challenged by Vietnamese scholars seeking alternatives to promote cultural diversity and resilience. A rights-based approach to culture is now critical to secure long-term sustainable solutions that build on indigenous knowledge systems and practices.

Rights to development and livelihoods; customary use and equitable benefit-sharing In 2014, almost three million tourists came to Quang Binh Province, double the number in 2013 and leading to revenues in the range of VND 2.750 billion, which have grown further since then. Still, poverty levels among the ethnic minorities living closest to or within the World Heritage site are more than twice that of the province as a whole (Gebert 2012). While such poverty cannot directly be attributed to World Heritage designation alone, park expansion, indiscriminate restrictions and the intensified enforcement of indiscriminate bans have contributed towards undermining livelihood security. World Heritage processes, I argue, have reinforced this process. While IUCN evaluations (2011) have recognised livelihood loss, the general pattern is one of conflating all local use and categorising forest dependency as a poverty-driven ‘external’ pressure gradually to be left behind on the path of modernisation (and heritagisation).18 Following the designation of the national park and World Heritage property, more visible controls on forest use were put in place. As a consequence, traditionally practiced community forest use is now mainly illegal in the park, resulting in livelihood loss for local communities who used to access the forests. Some alternative livelihoods and community subsidies are provided in the forest communities inside the park and near the border but not yet in the buffer zone. Alternative livelihood schemes have to be fast tracked and targeted to forest dependent family members. (IUCN 2011, emphasis added) The official take on customary livelihoods of minorities involves an evolutionary gaze suggesting the right to exit from backwards ‘dependency’ on forest use. This gaze is often reproduced by major international project activities: ‘Ethnic minorities, living in the park core zone are practising non-sustainable shifting cultivation, which leads to further habitat loss for endangered species and loss of primary forest areas’ (KfW 2014).19

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Intensive lowland wet-rice production and off-farm employment were seen as the ultimate signs of development. As such, the right to development was considered as a way out of – rather than a right to – customary practices (Nguyen 2001). The paternal state and park authorities thus ‘provide’ communities with ‘food, cattle and seedlings’ (PPC Quang Binh 2014)20 alongside housing and road access supported by both national and provincial level funding mechanisms. The Arem village is a case in point in terms of resettlement sites designed to be ‘near the road’.While the village had received millions in terms of infrastructure investments, resettlement had in practice left the Arem people without adequate access to water and customary livelihood security. Whereas customary livelihoods have proven far more resilient and crucial for ethnic minority survival compared to quickly vanishing ‘alternatives’,21 authorities often prefer to ‘hide’ local forest use or report in more general terms.22 For years this has served to keep the ethnic minorities in a de facto survival mode, deepening their dependency through a long flow of subsidy schemes, while forest policy, on the other hand, prohibited customary livelihoods and neglected ancestral ties to the land.

Neoliberal economies and benefit-concentration: opening up for business rights The expansion of a state-run national park would, at first sight, appear to indicate a retreat from an otherwise liberalised Vietnamese economy.Yet, the central role of tourism economy in driving the World Heritage boost of recent years shows something different in terms of a broader shift taking place towards state incorporation and neoliberal provision of rights to third parties. In contrast to public narratives of World Heritage stressing the public good and local benefits through local employment and income opportunities, our research documented very limited benefits reaching local ethnic minority communities living in or having customary relationships with the land, caves and water resources used for tourism development. A key aspect of this new rights assemblage concerns the historical context of economic liberalisation and the emergence of the individual entrepreneur as a legitimate rights-holder in the Vietnamese economy. Heritage values were centrally defined and ‘above’ local practices, yet at the same time open and permeable to value-attribution and entrepreneurial action. World Heritage designation has led to an explosion of both state-run and private tourism initiatives which have made use of or been granted new tourism access rights, not least within the very areas increasingly closed off for customary use rights. A mix of publicly managed, leasing and contractual arrangements characterised the tourism bonanza with attractions such as the so-called Paradise Cave and tours to the Hang En, Hang Va and Son Doong caves, which are all found in the customary lands of ethnic minorities. It was striking how much readiness there was to transfer rights to third parties for business, while the allocation of community rights for survival had slowed down in the same period. Similar transfers of social and economic rights to third parties is also seen in other sites, where tourism companies, developers and

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others are engaging with provincial authorities through management and tourism concessions (e.g., Trang An). Rights arrangements were clearly not set in stone. One park official explained how previously tourism had only been dealt with by the state, but had now opened up rights to private businesses. ‘Those who can do a lot, get a lot of profit: now it’s a process of socialising (xã hội hóa), where individuals engage in tourism activities.’ Socialisation here meant privatisation, but also greater societal responsibility, for example in the management of tourism resources. One manager described it as the ‘right to conduct business’. It was about ‘giving rights to those who are willing’, he told me, reflecting a particular Vietnamese blend of market socialism with an emancipatory discourse departing from economic planning and collective constraints. Yet, flexibility has been uneven, appearing more in favour of companies and investors. Cave tourism and cable car plans were both manifestations of a shift towards business rights sought for, and the making of value from, heritage. Popular tourism sites illustrated the public-private partnership economy at stake. Certain tours, such as those to the Son Doong cave area, were particularly lucrative, both for the operator and the park. The fee for individual visitors in 2017 is set at 3000 USD, of which some 500 USD is allocated to park authorities to use as ‘additional resources’ for improved services and salaries for officials. Competing interests were negotiated between private interests and public gatekeepers with very limited voice given to local communities. In some ways, this signalled how centralised planning was replaced by a state apparatus catering effectively to the market through public–private partnerships, whilst at the same time further marginalising local rights. The economic rights paradigm had in practice shifted from socialist prerogatives to a particular state-embedded neoliberal credo of private entrepreneurship and business rights (Gammeltoft and Herno 2000). This hollowed out and redefined the public good as a matter of entrepreneurial rights to access and benefit from heritage. Public centralism and private rights created through public permissions and informal arrangements accompanied timid privatisation of certain services. This entailed a distinct process of bureaucratic capture, value creation and entrepreneurialism, but also clearly reinforced a private–public nexus to the detriment of local benefit-sharing arrangements. This conflation between legal rights and human rights resonates with what Baxi describes as a market-friendly human rights paradigm (2012), a neoliberal trend affording important rights and powers to corporate interests. While considerable income is being generated for provincial authorities and management through specific agreements, leasing arrangements and environmental services from the very areas and cave systems that local communities depend on, benefit-sharing mechanisms are currently limited to intra-institutional arrangements. Our research found a systematic neglect in hiring local ethnic minorities in tourism operations and a lack of respect for their role as custodians. While ethnic minorities are being asked to take further part in protecting such sites and facilitating tourism access, they mainly remain attractions on the trail rather than actual rights-holders.23 Community contracts, based on conservation performance

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and obligations, stand in contrast to eco-tourism contracts and leasing arrangements based on rights and benefits. This raises fundamental questions about how social equity is considered under flexible arrangements. Given the strong provincial emphasis on securing equitable development, the case here clearly calls for a comprehensive response to access to, control and benefit distribution of World Heritage costs and benefits (PNKB Management Board 2015; Larsen and Nguyen 2012).24

Revisiting heritage hegemony What appears to structure this particular articulation of rights? Are international designations as World Heritage sites dominant and hegemonic globalising forces and devices dis(en)abling localities? Conversely, how are local rights framed and expressed under different conditions? Horowitz has sought to theorise this relationship as a competitive dynamic between rhizomic and arborescent forms of assemblages – where the World Heritage system illustrates hierarchical arborescent structure trumping rhizomic localities – through a case-study of local activism being co-opted by blindly trusting ‘UNESCO’s ability, benevolence, integrity, and power’ (Horowitz 2016, 171). Horowitz implies that universalist prescriptions and good practice, such as co-management in New Caledonia, end up disempowering25 local actors. Is a similar dynamic at stake in Vietnam? The bigger question concerns the relative significance of global process in heritage assemblages, how World Heritage at once shapes (a common aspiration) and/ or is shaped by the wider dynamics in which it is enmeshed (a common reality). Whereas cosmopolitan assemblages, as World Heritage designations, may suggest standardisation, UNESCOfication and comparability (Eriksen 2014), the dominant characteristics of cosmopolitan assemblages, cannot be taken for granted. I argue that rights dilemmas apparent in Phong Nha Ke Bang cannot be reduced to a question of tensions between the global and local forces because their manifestations entail negotiations between global form and local context. Instead of assuming a set of global effects of heritagisation, such as the frequently highlighted marginalisation of local communities, a focus on assemblage allows for fine-grained attention to the relative weighting of different actions, techniques and material aspects (Harrison 2013, 35). There is no doubt that the continuous rehearsal of the World Heritage spectacle in national arenas entails both descriptive and prescriptive effects. Phong Nha Ke Bang demonstrates the consequences of a naturalised heritage space deepened through World Heritage processes.The purification and performance of Outstanding Universal Value contributed towards reducing people to matters out of place in a neoliberal heritage-scape. Despite the centrality of global processes neglecting rights, it would be inaccurate to designate the problem as internationally driven alone.Whereas World Heritage listing nominally involves leaving some national sovereignty behind for the sake of cosmopolitan universalism, this case demonstrates how it intensified state incorporation and, simultaneously, a shift from public to private within a state and provincial administration-centred model of control.

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World Heritage designation did not appear on a tabula rasa. Rather than a social vacuum, it was mediated in a specific historical context and institutional setting. Theories of state incorporation, bureaucratisation and control reinforced by World Heritage designation may go a long way in explaining the entangled dismantling of customary rights. The ever-increasing numbers of offices and managerial domains were not merely about abstract classification, order and governmentality vs. patrimonial management in a Weberian sense, but involved a particular bureaucratic state-centred order. Ethnic minorities, in turn, represented the historically unruly subjects of disorder to be reined in by effective management accountable to a global heritage gaze. World Heritage both shapes and is shaped indirectly by planning moves, gentrification, economic speculation and political rivalry, creating real effects (Berliner and Bortolotto 2013). While the increasingly bureaucratised heritage space cemented the role of the state institutions, and lost opportunities to apply other tenure approaches, there was more at stake than sheer state hegemony. The new space, albeit increasingly anthrophobic, was not without people. While the purified staging of primary forests and high levels of biodiversity left little room for customary presence, which was increasingly dismissed as intrusion, a new heritage space opened up for occupation by private entrepreneurs, tourists and a management bureaucracy. Even potentially empowering modalities such as community tenure and consent measures were confined or reduced to business as usual, reflecting existing means of bureaucratic control. Although internationalised as World Heritage, what mattered were localised practices and hierarchies of influence. In that sense, heritage-making not only needs to be dialogical as an alternative project (Harrison 2015), it is fundamentally dialogical in its very nature. While community hardship and claims have been raised throughout the years, they were generally treated as non-rights issues, individual claims and administrative requests. Unlike public protests and rights claims in urban settings when faced with dispossession or heritage destruction26 (Schwenkel 2015; Jeffries 2011; HRW 2011), local claims or wishes to return to earlier settlements or worries about livelihood restrictions were expressed using everyday language and dealt with administratively or even just informally in encounters with park staff. World Heritage processes did not transform this asymmetrical relationship of voice and order. The material effects of World Heritage are not limited to the signposting of UNESCO symbols, but involve the underlying materiality and value attribution in the political economy. It is in the entanglement of different systems of valuation that heritage may be a mixed blessing for its bearers (Salemink 2016). World Heritage ontologies, I argue, are flexible, open and unstructured, allowing rights outcomes to result from diversity (Berliner and Bortolotto 2013). Yet the latter does not correspond to a UNESCOish ‘united colours of cultural diversity’, but is rather constituted by elite capture, entrepreneuralism and investment opportunities. Whereas in the Horowitz model UNESCO appears as arborescent structures (2016, 181), in practice, it would actually appear to have a more rhizomic structure. Despite arborescent calls for community empowerment, authorised heritage discourse, as critical heritage studies note, tends to privilege expert voice and national

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elite notions of natural and cultural values which, whether directly or indirectly, lead to the exclusion of other voices and their concerns (Smith 2006).

Concluding remarks What fundamentally characterises and structures how community rights are addressed in the World Heritage field? Do World Heritage assemblages empower or deepen conditions of marginality where rights are infringed? The Phong Nha Ke Bang World Heritage Site offers important insights. Contrary to ideas of an imposed global heritage-scape, I argue that heritagisation from above needs to be seen together with vernacularisation from below. Specific rights articulations are neither simply locally embedded, nor internationally imposed. World Heritage is neither global nor local alone, but involves an ontological assemblage. Rights, this chapter suggests, were not absent in the Vietnamese context, but grounded in a distinct discursive field intertwined with themes of social justice informed by socialist, Confucian and lowland-driven tropes, yet increasingly also under the influence of private sector capture. Certain rights in this constellation of heritage-rights assemblage were increasingly normalised (such as business rights), while others (such as customary rights of ethnic minorities) appear ever more shelved and reduced to an administrative matter. Ethnic minorities, particularly those indigenous to the Phong Nha Ke Bang area, have borne the costs of stricter conservation measures without reaping any significant benefits emerging from its World Heritage designation. Whereas many rights issues predate World Heritage designation, it is clear that World Heritage processes have contributed towards deepening the social deficit. This is particularly true for small ethnic minority groups like the Rục, Sách and Arem, whose very cultural survival is severely threatened. World Heritage designation intensified processes of restrictions, while conversely allowing for the further lease-out of significant new ‘heritage’ resource rights to third parties. Such transformations point to the seriousness of heritage and rights transformations in Vietnam. They also point to the need for epistemological rupture with a narrow value gaze founded upon expert criteria alone. Although the sensitivity and contested nature of human rights in Vietnam is widely noted (Gammeltoft and Herno 2000), a national workshop on world heritage and rights resulted in a strong call from heritage professionals for remedial action which was echoed in Nhân Dân (the main Party organ) and other national media. Whereas Asian values are, at times, highlighted as a line of defence against human rights critiques, Vietnamese values and moral discourse arguably demonstrated the need to ensure that World Heritage sites protect the rights of the people living within them in times of deepening neoliberalism. There is no rigid cultural divide per se, but rather shifting cultural perceptions and political boundaries of what is deemed acceptable and identified as a human rights concern. While current commitments to human rights are debated, the space is there and much more attention should be paid to the dynamic discourse of human rights in Vietnam

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(Thiem 2014). It is now important that concrete steps are taken towards implementing a rights-based approach to planning, management and remedial measures at the site to contribute towards poverty reduction and equitable governance. Specific measures to mitigate the rights deficit ranging from land, resource and livelihood rights issues towards more equitable participation, benefit-sharing and governance mechanisms are key aspects in this respect.

Notes 1 The research builds on many years of engagement with park authorities, with whom we have always had important and frank discussions about protected area management, community engagement and trans-boundary conservation. Particular thanks go to team members Nguyen Duy Luong, Nghiem Thi Kim Hoa and Nguyen Linh Giang, as well as the Quang Binh authorities, Quang Binh University and the Phong Nha Ke Bang Management Board for their constant cooperation. The research was financed by the Swiss Network for International Studies. I would also like to thank Hans Bjönness for comments on a first draft. 2 Irina Bokova, ‘Celebrating 40 Years of World Heritage’, http://www.unesco.org/new/ en/unesco/about-us/who-we-are/director-general/singleviewdg/news/celebrating_40_years_of_world_heritage/#.V_IBEj9kbdc, accessed December 15, 2016. 3 ‘You know, we went to Vietnam without any desire to capture territory or to impose American will on other people. We went there to defend the freedom of the South Vietnamese. And I don’t feel that we ought to apologize or to castigate ourselves or to assume the status of culpability.’ http://www.presidency.ucsb.edu/ws/?pid=729, accessed August 19, 2016. 4 http://whc.unesco.org/en/list/951, accessed December 15, 2016. 5 OUV prescribes what ought to be there in terms of attributes, and indirectly what should not. We might even, playing with words, suggest that World Heritage results in neo-ontological properties (reality as it is and should be constituted), as opposed to gerontological (reality as lived out and aged). Its neo-ontological status is, in this sense, different from and even in opposition to context-rich ontologies. Gone are time-horizons, as well as horizontal spatial connections replaced by value creation around a single global hierarchy. 6 In addition, the far more numerous Nguồn, another Vietic speaking subgroup, while not officially recognised as an ethnic minority, make up large parts of the adjacent population in Minh Hoa district. 7 I do not further discuss the contested categories of ethnic classification. 8 http://whc.unesco.org/en/list/951, accessed August 19, 2016. 9 A manager noted:There were two missions from IUCN. A few years ago, they came and recommended two things. First, the park should be expanded. Secondly, law enforcement needed to be improved; planning and management as well. This also concerned the improvements of Road 20. They also recommended adding Criterion 9, the biodiversity criterion. After that, the province invited foreign advisors to help craft the dossier. During the evaluation process, they mainly asked about the cable car, not so much about other issues. 10 The 1993 decision stated that the provincial forest department should ‘decide the rights, duties, organization and number of staff of Phong Nha Nature Reserve’ (Decision 941 QD/UB). 11 Whereas the inner buffer zone may have ‘clarified’ local tenure in a very limited sense, it did not adequately reflect the rights-based practice adequate for the specific community, their ancestral practices and vulnerabilities. Design had been undertaken by expert consultants, further modified by park authorities, through project activities according to protected area regulations. The vice director raised it as a protective strategy ‘to

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determine where they can cultivate land according to the village regulations, according to their rights’. Pilot mapping efforts have been initiated with Quang Binh University. Such work also needs to be undertaken in relation to other ethnic minority groups in the area. For example, the Vân Kiều in the Ban Doong community live within the core zone and the same commune as the Arem, yet their rights remain unsettled and they face possible eviction despite residing in the area prior to its protection. Further attention also needs to be paid to the customary use practices of the Ma Coong in Thuong Trach commune, as well as the customary relationships of the Máy, Khúa, Rục and Sách in Minh Hoa district.This research has taken initial steps in collaboration with the University of Quang Binh to show the value of cultural mapping, yet these need to be scaled up to adequately reflect customary use areas and their recognition. Not considered part of the inner buffer zone, the families were left in a legal limbo in a zone of non-rights on purpose. Authorities appeared divided between those promoting relocation and those ready to adjust management to accommodate their presence. Recognising land rights did not fit park ideals. Salemink’s claim that recognition of ancestral rights would imply ‘ethnic cleansing’ and the violation of individual rights (2006, 43) is, however, problematic. It is not uncommon to find attempts to change, develop and ‘modernise’ ethnic minority culture based on an underlying assumption that such culture, grouped as one, is backwards (lac hau) and knowledge is limited (dan tri thap). A dramatic variant of this value creation can be found in ministerial construction plans seeking to transform ethnic minority villages into tourism facilities, as a state-corporate investment domain. The evaluation recommended fast-tracking alternative livelihood schemes, not protecting customary livelihoods. As no research has been undertaken on the nature and effects of shifting cultivation, such conclusions are not only at risk of being fundamentally flawed, but furthermore have, in practice, hindered making use of funding support for a more culturally sensitive, and even ecologically relevant, approach to livelihoods and conservation. Through the government programme 134, for example, nearly VND60 billion was spent on building 2,700 houses, reclaiming land and other construction projects in the province, many benefiting particularly poor ethnic minority communes. This is not meant to idealise the sustainability of customary livelihoods. This was particularly clear in interviews about the expansion process of the national park, where district authorities and the planning team appeared to neglect or downplay the customary livelihood significance of the area in Minh Hoa, notably for the Rục and Sách people. Where local benefits are in constant negotiation for cave tourism outside the park (e.g., Tu Lan caves), benefit-sharing arrangements grounded in rights linked to cave tourism within the World Heritage site for world-famous places like Hang En and Son Doong cave overlapping with customary lands of ethnic minorities are virtually absent. In terms of tourism and benefit-sharing, the World Heritage Committee has since 2011 encouraged:The State Party, Quang Binh Provincial People’s Committee, Park management, and all partners of the Park to continue their efforts to strengthen conservation and management of the Park and its buffer zone, in order to ensure that tourism development and the use of natural resources by local communities is environmentally sustainable and benefits equitably shared (35 Com, emphasis added). UNESCO’s attempts to make resource management more decentralised, hence rhizomic, actually disempowered local communities by ignoring local specificities (Horowitz 2016, 174). In other cases, bloggers as well as Christian and Buddhist organisations have mobilised and linked heritage and rights, even mobilising UN mechanisms in a context of heritage destruction or forced evictions.

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References Baxi, Upendra. 2012. “Epilogue: Changing Paradigms of Human Rights.” In Law Against the State: Ethnographic Forays into Law’s Transformations, edited by Julia Eckert, Brian Donahoe, Christian Strümpell and Zerrin Özlem Binner, 266–285. Cambridge: Cambridge University Press. Bendix, Regina. 2009. “Heritage between Economy and Politics: An Assessment from the Perspective of Cultural Anthropology.” In Intangible Heritage, edited by Laurajane Smith and Natsuko Akagawa, 253–269. London and New York: Routledge. Berliner, David and Chiara Bortolotto. 2013. “Introduction. Le monde selon l’Unesco.” Grandhiva 18: 4–21. Bille, Mikkel. 2012. “Assembling Heritage: Investigating the UNESCO proclamation of Bedouin intangible heritage in Jordan.” International Journal of Heritage Studies 18 (2): 107–123. Brumann, Christoph and David Berliner. 2016. “Introduction: UNESCO World Heritage – Grounded?” In World Heritage on the Ground: Ethnographic Perspectives, edited by Christoph Brumann and David Berliner, 1–34. Oxford and New York: Berghan. CERD. 2012. Consideration of Reports Submitted by States Parties under Article 9 of the Convention. Concluding Observations of the Committee on the Elimination of Racial Discrimination. Viet Nam. Accessed December 15, 2016. http://www2.ohchr.org/english/bodies/cerd/docs/ CERD.C.VNM.CO.10-14.pdf. Coates, Ken, Peter Limqueco and Peter Weiss, eds. 1971. Prevent the Crime of Silence: Reports from the Sessions of the International War Crimes Tribunal Founded by Bertrand Russell. London: Allen Lane. Disko, Stefan and Helen Tugendhat, eds. 2014. World Heritage Sites and Indigenous Peoples’ Rights. Copenhagen: IWGIA. Eriksen, Thomas Hylland. 2014. Globalization. London: Bloomsbury. Evans, Grant. 1992. “Internal Colonialism in the Central Highlands of Vietnam.” Sojourn: Journal of Social Issues in Southeast Asia 7 (2): 274–304. Ferlus, Michel. 2013. “Arem, a Vietic Language”. Mon Khmer Studies 43: 1–15. Gammeltoft, Tine and Rolf Herno. 2000. “Human Rights in Vietnam.” In Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia, edited by Michael Jacobsen and Ole Bruun, 159–177. London: Curzon Press. Goodale, Mark. 2007. Surrendering to Utopia: An Anthropology of Human Rights. Stanford, CA: Stanford University Press. Harrison, Rodney. 2013. Heritage: Critical Approaches. London and New York: Routledge. Harrison, Rodney. 2015. “Beyond ‘Natural’ and ‘Cultural’ Heritage: Toward an Ontological Politics of Heritage in the Age of Anthropocene.” Heritage & Society 8 (1): 24–42. Herman, Edward S. and Noam Chomsky. 2002 (1988). Manufacturing Consent: The Political Economy of the Mass Media. New York: Pantheon Books. Horowitz, Leah S. 2016. “Rhizomic Resistance Meets Arborescent Assemblage: UNESCO World Heritage and the Disempowerment of Indigenous Activism in New Caledonia.” Annals of the American Association of Geographers 106 (1): 167–185. Human Rights Council. 2014. Report of the Working Group on the Universal Periodic Review:Viet Nam, A HRC/26/6. United Nations. Accessed December 15, 2016. http:// lib.ohchr.org/HRBodies/UPR/_layouts/15/WopiFrame.aspx?sourcedoc=/HRBodies/ UPR/Documents/Session18/VN/A_HRC_26_6_Viet%20Nam_E_iDrits.doc&action =default&DefaultItemOpen=1. Human Rights Watch. 2011. Vietnam: The Party vs. Legal Activist Cu Huy Ha Vu. New York: Human Rights Watch.

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IUCN. 2011. IUCN Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List (WHC-11/35.COM/INF.8B2). Accessed December 15, 2016. http://whc. unesco.org/en/documents/106509. Jeffries, Ian. 2011. Contemporary Vietnam: A Guide to Economic and Political Developments. London and New York, Routledge. KfW. 2014.Terms of Reference for the Project: Nature Conservation and Sustainable Natural Resource Management in Phong Nha Ke Bang National Park Region, Part IV. Accessed December 15, 2016. http://www.ngocentre.org.vn/webfm_send/2489. Larsen, Peter Bille and Nguyen Manh Ha. 2012. Rapid Appraisal of Community Participation and Benefit-Sharing in Biodiversity Conservation and Non Relevant Lessons to Be Learned from the Phong Nha – Ke Bang National Park Region. Dong Hoi: GIZ. Larsen, Peter Bille. 2008. “Linking Livelihoods and Protected Area Conservation in Vietnam: Phong Nha Kẻ Bàng World Heritage, Local Futures?” In People, Protected Areas and Global Change: Participatory Conservation in Latin America, Africa, Asia and Europe, edited by Marc Galvin and Tobias Haller, 431–470. Bern: NCCR North-South, Swiss Centre of Competence in Research North-South, University of Bern. Logan, William. 2010. “Protecting the Tay Nguyen Gongs: Conflicting Rights in Vietnam’s Central Plateau.” In Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice, edited by Michele Langfield, William Logan and Máiréad Nic Craith, 189–207. London: Routledge. Macdonald, Sharon. 2009. “Reassembling Nuremberg, Reassembling Heritage.” Journal of Cultural Economy 2 (1–2): 117–134. Nguyen, Ngoc Thanh. 2001. “The Ruc People’s Cry for Help.” In Viet Nam’s Cultural Diversity: Approaches to Preservation, edited by Oscar Salemink, 187–197. Paris: UNESCO. Nielsen, Bjarke. 2011. “UNESCO and the ‘Right’ Kind of Culture: Bureaucratic Production and Articulation.” Critique of Anthropology 31 (4): 273–292. PNKB Management Board 2015. Delineation of the Internal Buffer Zone of Phong Nha – Ke Bang National Park around Arem Village, Tan Trach Commune, Bo Trach District, Quang Binh Province. Dong Hoi: Quang Binh Province. PPC Quang Binh. 2002. World Heritage Nomination Form: Phong Nha Ke Bang. Quang Binh. PPC Quang Binh. 2014. Renomination, Expanding Criterion (VIII), and Inscription in Criteria IX and X, Phong Nha Ke Bang. Salemink, Oscar. 2006. “Changing Rights and Wrongs: The Transnational Construction of Indigenous and Human Rights among Vietnam’s Central Highlanders.” Focaal 47: 32–47. Salemink, Oscar. 2016. “Described, Inscribed, Written Off: Heritagisation as (Dis) connection.” In Connected and Disconnected in Viet Nam: Remaking Social Relations in a Post-socialist Nation, edited by Philip Taylor, 311–345. Canberra: ANU Press. Sassen, Saskia. 2008.“Neither Global nor National: Novel Assemblages of Territory, Authority and Rights.” Ethics & Global Politics, 1 (1–2): 61–79. Schwenkel, Christina. 2015. “Reclaiming Rights to the Socialist City: Bureaucratic Artefacts and the Affective Appeal of Petitions.” South East Asia Research 23 (2): 205–225. Shaheed, Farida. 2015. Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, Addendum, Visit to Viet Nam (18–29 November 2013), A/HRC/28/57/Add.1. Geneva: Human Rights Council,Twenty-eighth Session, Agenda item 3, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Accessed December 15, 2016. http://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session28/Pages/ListReports.aspx. Smith, Laurajane. 2006. Uses of Heritage. London and New York: Routledge.

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Ta, Van Tai. 1988. The Vietnamese Tradition of Human Rights. Berkeley, CA: University of California. Thiem, Hai Bui. 2014.“Deconstructing the ‘Socialist’ Rule of Law in Vietnam:The Changing Discourse on Human Rights in Vietnam’s Constitutional Reform Process.” Contemporary Southeast Asia 36 (1): 77–100. Vo Xuan Trang. 1998. Nguoi Ruc o Viet Nam. Hanoi: Nha Xuat Ban Van Hoa Dan Toc. Wells, Jeremy C. 2007. “The Plurality of Truth in Culture, Context, and Heritage: A (Mostly) Post-Structuralist Analysis of Urban Conservation Charters.” City & Time 3 (2): 1–14.

PART II

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11 THE INTER-RELATIONSHIP OF THE WORLD HERITAGE CONVENTION AND INTERNATIONAL HUMAN RIGHTS LAW A preliminary assessment and outlook Alexander H. E. Morawa and Gabriel Zalazar Introductory comments There is currently a ‘new momentum’ (Larsen 2016, 2) in the discussion and, more importantly, realisation of a ‘rights based’ approach to both sustainability and human rights protection throughout the various processes of the World Heritage conservation movement. The recently adopted 2015 Sustainable Development Policy asks States Parties to ‘[e]nsure that the full cycle of World Heritage processes from nomination to management is compatible with and supportive of human rights’ (UNESCO 2015f, para 20 (i)). This expectation addresses states but potentially overlooks the need for human rights adherence by other actors in the process. Consequently, the January 2016 Caux Call for Action went further by emphasising that: ‘Our meeting confirmed the need for, and feasibility of, strengthening the World Heritage system by ensuring its full compatibility and compliance with human rights obligations’ (Larsen 2016, 3; emphasis added). Here, the circle of duty-bearers is properly expanded to all actors involved in the World Heritage processes, not merely the States Parties, which would – as we will see later – be bound by at least certain human rights obligations, anyway, be it by treaty law or customary international law. The purpose of the present chapter is, first, to provide a brief description of the ‘relationship’ between the World Heritage Convention (WHC) regime and the international human rights regime, primarily the UN Charter and treaties (the ‘bill of rights’), with due regard to specialised and regional regimes.1 Second, in light of the preliminary discussions amongst the researchers of the SNIS project on ‘Understanding Rights Practices in the World Heritage System: Lessons from the Asia Pacific’, an outlook and proposal for future action is presented. First, some general observations on human rights within the World Heritage Convention and the texts adopted pertaining to its implementation will be made. As

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well as looking at human rights–relevant parameters defined or developed in World Heritage law or practice, human rights law itself will be scrutinised to assess which rights and entitlements are, or should be, governing or instructing World Heritage practice. This will be done on the basis of four clusters of rights: (a) fair hearing and participation; (b) resources and property rights; (c) right to development, livelihood, and cultural/group identity, and (d) rights of indigenous, tribal, and ethnic minorities, as defined in the context of the SNIS project. Suggested future research and action is based, in particular, on the research of the country legal teams and the deliberations at the Caux workshop as well as the ongoing dialogue amongst the project participants.

General parameters The Convention Concerning the Protection of the World Cultural and Natural Heritage was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1972. Its adoption came long after the birth of the foundational documents protecting human rights, especially the Universal Declaration on Human Rights followed by the two United Nations Covenants in the 1960s.2 The Preamble explains that: [I]n 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. (UNESCO 1972, 1) Thus, heritage protection enshrines several core legal elements that mirror human rights protection, namely (a) that it emanates from threats to the very existence of heritage,3 much like human rights protection emanated primarily from ethnic or cultural threats, but also from humanity as a governing concept in peace and war, during World War II (Lauren 2011); (b) the international community’s right and duty to take steps to protect and preserve values that are ‘outstanding’ and constitute ‘a world heritage’ (ibid. Art. 6, 1) or, as human rights law would call it, ‘inalienable’ or ‘non-derogable’4; and (c) the principle of subsidiarity5 and complementarity, requiring the establishment of ‘an effective system of collective protection of the cultural and natural heritage’ (ibid., 1) based on a duty of co-operation (ibid. Art. 6, 1) and a spirit of support (ibid. Art. 7) on the international plane, while leaving it in the first place in the hands of the state to act by doing ‘all it can to this end’ (ibid. Art. 4), subject to the unifying force of supervision and enforcement under international law.

How rights became human Defined as rights inherent to all human beings,6 whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other

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status, human rights have become part and parcel of today’s legal discourse (Weston 1984, 257–258). We are told that we are all equally entitled to them, without discrimination, and that they are all interrelated and yet interdependent and indivisible (OHCHR n.d.). Although many scholars agree that human rights have their philosophical roots in what has been called ‘natural law’,7 the events after World War I show a different picture: one marked by realpolitik and the struggle of those without a voice for recognition and independence (Weston 1984).8 It was only after Europe was ravaged by war that it became evident to all the Great Powers that if peace was to last, minorities in Eastern Europe had to be protected. It was at this moment that the concept of ‘self-determination’ (Mohney 2014, 832–834) hit the headlines of the world’s press. What came to be known as ‘minority clauses’, within the framework of the League of Nations, was an unprecedented abandonment by states of limited but central elements of their previously absolute sovereignty. Through these clauses, national minorities in the newly-born Eastern European states were promised full and complete protection of life and liberty without distinction of birth, nationality, language, race, or religion, the League being responsible for enforcement (ibid., 834). Although the language of the minority clauses may sound comparable to that found in Art. 2 of the Universal Declaration of Human Rights (UDHR), which states that ‘[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’, the war’s winners were not ready to grant the same level of protection to their own national minorities within their own jurisdictions (Arat 2006, 418–419; Mohney 2014, 835). In other words, the internal understanding of the Great Powers was that Eastern European states had to protect their minorities in order to keep peace and stability in the continent. They themselves, who still practiced racial segregation and controlled vast colonies, did not feel bound by the same standards. At this point, what would become one of the greatest issues within the human rights legal framework had already become evident: their enforcement vis-à-vis states’ sovereign prerogative.9 The Universal Declaration of Human Rights initially failed to provide the international community with a fully effective tool to implement human rights in practice (Mohney 2014, 844). Nevertheless, it accomplished something previously unthinkable: (a) states became aware that they, too, had to act vis-à-vis their own citizens and residents in compliance with a new legal framework, and (b) it made human rights violations in other states at the hands of national governments in times of peace a serious concern.10 The next generation of human rights was to become more sophisticated in both legal framing and enforcement mechanisms. Still subject to states’ explicit approval, several instruments include provisions providing for independent expert committees, which have the capacity to (a) consider state reports on compliance and make pertinent recommendations on legal and policy changes, and (b) receive and consider complaints of individuals or groups thereof against specific HR violations.11

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By becoming parties, states pledge to change their laws and practice and take positive action in order to fulfil their international obligations.12 Regional human rights treaties since the 1950s have added a crucial feature, namely judicial implementation.Today, individuals and states meet eye-to-eye in front of human rights tribunals in Europe, the Americas, Africa, and increasingly beyond. The ensuing jurisprudence has advanced the standards and thus the level of protection further than probably even the most optimistic drafters of human rights treaties in the 1940s might have hoped. This is an interesting formal parallel between human rights and heritage protection: as much as it depends on whether a victim of a human rights violation is ‘under the jurisdiction’ of Switzerland or Sudan, Sweden, or Syria, it also depends on whether a heritage site is located in a state that (a) fulfils its international legal obligations to protect and preserve it and (b) is bound by international treaties and a corresponding national constitutional and legal order that gives effect to these obligations.

Subsidiarity and heritage protection Subsidiarity is ‘fundamentally concerned with the distribution of competences among different levels of governance’ (Carozza 2003, 57) and allows for a level of discretion and variation (or, in technical terms, a ‘margin of appreciation’13) of and among states when dealing with the internal, domestic realisation of international legal obligations.Thus, international law ensures ‘legitimate cultural diversity’ (Wiater 2010, 23),14 even in matters of fundamental importance, such as human rights and World Heritage. Subsidiarity also encourages states ‘to go beyond the minimum standards arising out of [international law and practice]’,15 thus contributing actively to the progressive development of human rights protection envisioned by the drafters of the Universal Declaration. Villiger accordingly interprets subsidiarity as ‘not exclud[ing], … rather enabl[ing] further developments under the [European] Convention [on Human Rights]’ (2007, 623, 636). The same holds true for the World Heritage Convention and the safeguarding mechanism of all properties under its protection. As such, the Convention defines a minimum protection standard upon which national legislation is to be built and its effective implementation secured.16 Furthermore, it should not be seen as one single legal instrument separated from the rest of public international law, but as purposefully interrelated with public international law and human rights law and the first step in a triad of UNESCO conventions, i.e. the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, as well as further pertinent treaties aiming to protect mankind’s legacy.17 In sum, speaking from a purely socio-historical and formal–legal comparative perspective, human rights and heritage preservation share a number of relevant guiding principles, both in purpose and methodology. The reporting procedure provided for in Chapter VII, Art. 29 of the World Heritage Convention mirrors

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to a certain extent the state reporting procedure under the UN human rights treaty regime,18 minus any formal, adjudicative individual or collective complaint procedure. This also provides a useful formal linkage with respect to the methods of enforcement. Indeed, the operational and procedural aspects of ‘realising’ the goals of both human rights and world heritage protection are at the forefront of the World Heritage/human rights discourse at the moment, and also at the heart of the present research venture. The linkage between substance (rights) and form (implementation) was discussed in detail at the global science policy dialogue held in Caux in January 2016, which also identified the two dimensions of cultural and natural heritage protection as truly inseparable (Larsen 2016). In particular, the question of how and in what form individual and collective human rights should be ‘mainstreamed’ into the various stages of the WHC process are being explored, with human rights procedures serving as relevant practice examples.

The duty to ‘ensure’ The Inter-American Court of Human Rights has, in its seminal judgment Velasquez Rodriguez v. Honduras, eloquently described the obligation of states to ensure the free and full exercise of human rights: This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation – it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.19 The World Heritage Convention as applied requires states to ‘ensure the identification, nomination, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage found within their territory’ (UNESCO 2015b, para. 15a).This duty, just as its human rights counterpart, extends state obligations to positive measures of pro-active prevention and safeguards20 and includes measures aimed at protecting actual and potential victims of actions of private individuals and other non-state actors,21 as stated in the UN Human Rights Committee’s decision on the right to non-discrimination in Nahlik v. Austria:22 [T]he State party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and

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consequently the courts of States parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment. In the World Heritage context, the duty to ensure encompasses mainstreaming, namely to ‘integrate heritage protection into comprehensive planning programmes’ (UNESCO 2015b, para. 15c); the establishment of national institutions tasked with at least semi-independent implementation, or the duty to ‘establish services for the protection, conservation and presentation of the heritage’ (ibid., para. 15d); education and awareness-raising (ibid., para. 15m); particularly through communication (ibid., para. 26 (4)); and, very pertinently, the ‘domestication’ of its heritage preservation obligations by ‘tak[ing] appropriate legal, scientific, technical, administrative and financial measures to protect the heritage’ (ibid., para. 15f). Thus, both the World Heritage and the human rights regimes are not (merely) reactive systems aiming to restore a status quo ante, or to dish out reparations for violations or destructions committed, but rather enshrine a core element of prevention and pro-active protection as well as future compliance in light of both (a) advantages of compliance seen and, (b) fear of concrete consequences in case of non-compliance. The Caux seminar brought to the forefront the need for a dialogue on the balancing act of protection interests, and aims and purposes of safeguarding heritage. The ‘universal’ and the ‘local’ outstanding value of a site or other ‘object’ of heritage protection are emerging as complementary, if sometimes contradictory aspects of the very same process.

Formal linkages with UN and regional human rights treaties The best starting point for identifying relevant aspects of a (legal) relationship between the World Heritage Convention and the human rights systems would be legislative cross-references. The latter can only happen when the drafters of binding legal norms in both areas realise that there is an interrelationship as well as a negotiated need to address that interrelationship at the normative level. Unfortunately, until very recently there has been remarkably little in terms of such direct cross-referencing at the international law-making level, unless one counts the understandable, but emergency-related response to gross breaches of standards of human conduct, such as the deliberate destruction of outstanding examples of human culture and development, for instance by the Taliban or IS(IS) (UNESCO 2015c; Rashid 2001). Although para. 42 of the Operational Guidelines states that the ‘World Heritage Committee … will ensure appropriate co-ordination and information-sharing between the World Heritage Convention and other Conventions, programmes and international organizations related to the conservation of cultural and natural heritage’ (UNESCO 2015b), para. 44 fails to list any pertinent UN treaty that deals with human rights.This omission is regrettable and lacks any prima facie explanation. Considering the explicit statements within the United Nations23

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and UNESCO24 that human rights shall be mainstreamed into all of their affairs, the World Heritage process did not, until 2015, enable its agents to refer to human rights treaties as relevant sources of inspiration, in line with good practice of both human rights courts and domestic high courts engaging in comparative constitutional law. The year 2015, as will be discussed below, constitutes a major turning point.Thus, as the Caux Call for Action rightly underlines, it is both high time, and the right time, to find ‘a common language and conceptual framework aimed at fully implementing human rights’ (Larsen 2016, 3) within the work implementing the WHC. All this absence of consideration, however, is in itself also a relevant finding, but it should be made clear, this is not an indication of an absence of an interrelationship, much like the ‘absence’ of explicit cross-referencing in international law generally does not indicate that there is no actual relevant parallel or complementary normative content. Moreover, especially with the July 2015 revision of the Operational Guidelines, the WHC has explicitly stated ‘aligning the World Heritage Convention and its implementation with other international instruments’ (UNESCO 2015e, para. 30) as one driving purpose. The 2015 World Heritage Policy on Sustainable Development adopts a distinctly rights-based approach, by emphasising the ‘four core dimensions of sustainable development, namely: Environmental Sustainability; Inclusive Social Development; Inclusive Economic Development; and Peace and Security’ (UNESCO 2015d, para. 5). The Policy links the World Heritage Convention purpose to also contributing ‘significantly to sustainable development and the wellbeing of people’ (UNESCO 2015a, para. 3). The work should be done so that ‘no harm is done to sustainable development objectives through activities for the conservation and management of World Heritage properties’ (ibid., para. 4). This acknowledges the possibility that World Heritage efforts could interfere with and adversely affect the rights to develop of the communities concerned. More precisely, and pertinently, the policy turns to human rights as one of several ‘overarching principles’: The human rights embedded in the UN Charter and the range of broadly ratified human rights instruments reflect fundamental values that underpin the very possibility for dignity, peace and sustainable development. In implementing the World Heritage Convention, it is therefore essential to respect, protect and promote these social, economic and cultural rights. (ibid., para. 7 (i)) This relates directly to the other two such principles, namely ‘the reduction of inequalities in all societies’, which is viewed as ‘essential to a vision of inclusive sustainable development’.The conservation and management of World Heritage properties should therefore contribute to reducing inequalities, as well as its structural causes, including discrimination and exclusion’ (ibid., para. 7 (ii)). Sustainability as a long-term perspective is done ‘with a view to fostering intergenerational equity, justice, and a world fit for future generations’ (ibid., para. 7 (iii)), also taking into

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account biological diversity (ibid., para. 8) – these being, again, core obligations under human rights law and related normative systems. The respective obligations do not, however, find their basis solely in economic, social, or cultural rights, but very much also in first generation civil and political rights, such as equality, dignity, personal integrity, property, and participation, to name but a few. The 2015 Policy on Sustainable Development also provides for a more detailed approach to implementation of its general normative parameters, reiterating the rights-based approach. For instance, it is said that full inclusion, respect and equity of all stakeholders, including local and concerned communities and indigenous peoples, together with a commitment to gender equality, are a fundamental premise for inclusive social development. … Inclusive social development must be underpinned by inclusive governance. (ibid., para. 17) While some of the prescribed courses of action seem to be mere reiterations of general non-discrimination and equal protection clauses, some go further and are more meaningful; for instance, States Parties are strongly admonished to ‘recognize, respect, and include the values as well as cultural and environmental place-knowledge of local communities’ (ibid., para. 18 (iii)) in their policies and practices. Quite interesting is the specific policy recommendation on human rights; referring to the UNESCO constitution and the commitment to human rights mainstreaming, it states: To ensure policy coherence in conserving and managing World Heritage properties, 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. (ibid., para. 20, emphasis added) While the international human rights regime is, of course, not intended to serve the purpose of policy coherence, and that part of the recommendation is clearly misplaced, coherence itself is certainly a beneficial factor aiding in human rights protection. Thus, the specific recommendations correctly emphasise that it must be ensured ‘that the full cycle of World Heritage processes from nomination to management is compatible with and supportive of human rights’ (ibid., para. 20 (i)). It is States Parties that bear that responsibility. This seems to reflect the common understanding (and self-reflection) of the World Heritage bodies that heritage protection is inherently benevolent, thus placing the WH bodies as the Committee in the role of guarantors of human rights protection in the process, rather than responsible agents and potential violators as well. The ‘definition’ of human rights attached to the Policy is taken from a 2014 OHCHR document, which may indicate that, at the very least, an incomplete understanding of human rights obligations as those

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of ‘governments’ (ibid., 15) only. Benevolence, as well as the status of an organ as an international body that is called upon to act in its international or supranational capacity, is not a guarantee that human rights are not violated. This has been recognised judicially, for instance by the European Court of Human Rights (ECHR) in Nada v. Switzerland, where the ‘national implementation of United Nations Security Council resolutions’25 gave rise to violations of the ECHR. Also, in the Kadi case26 before the European Court of Justice and in Sayadi and Vinck v. Belgium27 before the United Nations Human Rights Committee, European Union as well as national action in furtherance of United Nations Security Council anti-terrorism measures were scrutinised under both EU and international human rights law.28 International organisations themselves, not just their constituent member states, are bearers of rights and duties, as the International Court of Justice stipulated as early as 1949.29 This has been acknowledged in both breadth and depth by other such bodies, not the least within the UN family, but also by inter- (and supra-) national organisations seeking to subject themselves to human rights scrutiny by an external tribunal, e.g. the European Union.30 The United Nations website on peacekeeping operations, for instance, emphasises at the very top of its relevant sub-page that ‘All staff in peace operations have the responsibility to ensure the protection and promotion of human rights through their work’.31 As early as 2004, the International Law Association’s Final Report on the Accountability of International Organisations concluded that ‘[International Organisations] should comply with basic human rights obligations’ (International Law Association 2004, 22; emphasis in original). The report added: Human rights obligations, which are increasingly becoming an expression of the common constitutional traditions of States, can become binding upon IO-s [International Organisations] in different ways: through the terms of their constituent instruments; as customary international law; or as general principles of law or if an IO is authorised to become a party to a human rights treaty. The consistent practice of IO-s points to a recognition of this. Moreover, certain human rights obligations may have attained the status of peremptory norms. (ibid., 22) Reflecting the current state of the discussion of the matter – questions regarding standards and implementation notwithstanding32 – the Parliamentary Assembly of the Council of Europe (PACE) issued its Resolution 1979 (2014) on accountability of international organisations for human rights violations on January 31, 2014, stating: The Parliamentary Assembly recognises that international organisations are subject to human rights obligations under international law and highlights the importance of ensuring that they refrain from violating the human rights of individuals and of the need to hold them accountable for any such violations. (PACE 2014, para. 1)

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The demand in the 2015 Sustainability Policy that states ‘adopt a rights-based approach, which promotes World Heritage properties as exemplary places for the application of the highest standards for the respect and realisation of human rights’ (UNESCO 2015a, para. 20 (ii)) is laudable. This needs to be complemented by a demand, similar for instance to UN peacekeeping, that the World Heritage system processes are to ‘enable State and other national institutions to implement their human rights obligations and uphold the rule of law’33. Only with a joint accountability approach, binding on both the States Parties and the Committee and Advisory Bodies, bolstered with an obligation to enable states to comply with, amongst others, human rights standards, can a coherent realisation of fundamental rights throughout all stages of the World Heritage process be achieved.

The ‘clusters of rights’ This chapter, in line with the research project, proceeds on the basis of four clusters of rights that show particular relevance for World Heritage assessments and designations. What are the main human rights principles in these four areas and what are the legal implications for World Heritage policy and practice? It is important to remember – something that non-lawyers sometimes do not fully appreciate – that it is not the role of international law to assess in abstracto whether a general normative provision, operational guideline, or policy, conforms to human rights requirements. The only exception is if they prima facie do not. As practically all human rights tribunals have stated, they ‘must not undertake an abstract review of rules but must, as far as possible, confine [their] examination to the manner in which the … law has been applied in the particular circumstances’.34 Human rights law does not envisage the bringing of an actio popularis35 for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene [a human rights treaty].36 Very much in line with these jurisprudential principles, a purposeful and credible assessment of the World Heritage processes cannot seek to comment on whether the new stipulations of human rights and sustainability foci in the policies are in abstracto sufficient or adequate. Rather, it will depend entirely on the practical application of these stipulations in World Heritage practice – or the ‘application of the law in practice’ – whether the World Heritage processes fulfil their obligations, or not. The stipulations have normative value, and as such have been praised or criticised elsewhere in this chapter, but only their realisation, or lack thereof, in the daily workings of the states and bodies involved in World Heritage protection can be made the subject of a full and true assessment of compliance. The clusters explored in the present context are: i) fair hearing, consultation, participation, and consent; ii) resources and property; iii) the right to development,

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livelihood, and cultural/group identity; iv) indigenous and tribal peoples, ethnic minority, and cultural rights.

I. Fair hearing, consultation, participation, and consent This cluster, as interpreted here, links two distinct but relevantly related aspects of fairness, namely procedural fairness in disputes (civil, criminal, or administrative) and participatory fairness (political as well as regulatory decision-making in the broadest sense). Included are the rights to an impartial and independent tribunal, to fairness and speediness of hearings, to appeal, and to procedural and substantive equality before the law, as well as rights to petition and political participation in matters that pertain to a person or group of persons such as the collective right to free prior and informed consent (FPIC). In the World Heritage context, this extends in particular to the designation, planning, and management of sites, but also to the overarching political process of identifying and expressing cultural identity (to which the preservation of natural and cultural heritage very much belongs) by rendering particular sites worthy of internationalised protection, and others not.

II. Resources and property How does the law protect material i.e. tangible property such as land, resources, and property and intellectual property, both personal and collective/communal, against interferences of any kind by the state or other actors? How are citizens protected against interferences, and how does the state protect against interferences by nonstate actors? How are private and public interests balanced in property and resource disputes (both use and disposition)? Are there specific procedural guarantees against interferences with property and resource rights? What is the relationship between private and communal property? How are the ‘values’ of private property rights and communal or public interests in (the same) property valued and balanced? How is the access to and use of resources regulated? How are customary property rights protected, and how is access to such property guaranteed in parallel with developing sites under WH preservation standards?

III. The right to development, livelihood, and cultural/group identity Heritage processes may relate to livelihoods and development in multiple ways.The questions asked here are: how are individuals and groups recognised with respect to their livelihood and development rights and decisions? How are these rights balanced against state and other public interests, including national security and national identity? Is diversity valued as an independent value or right? What are the procedural safeguards for these rights? This cluster includes rights to religion, to cultural/communal integrity (for all minorities other than ethnic or indigenous ones), etc.

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IV. Indigenous and tribal peoples, ethnic minority, and cultural rights The human rights of indigenous and tribal peoples along with ethnic minorities (ITE groups) involve a distinct set of both individual and group rights. How are the rights of ITE groups protected and addressed in heritage policy and law? While there is increasing mentioning of indigenous peoples in the World Heritage Convention, how are other group rights, such as those of ethnic minorities, dealt with? What is the history of the ethnic make-up, and how is that history reflected in the law? Is ethnic diversity valued as an independent value or right? What are the procedural safeguards for these rights?

Cluster I: Fair hearing, consultation, participation, and consent The Operational Guidelines 2015 encourage States Parties to the Convention … to ensure the participation of a wide variety of stakeholders, including site managers, local and regional governments, local communities, non-governmental organizations (NGOs) and other interested parties and partners in the identification, nomination and protection of World Heritage properties. (UNESCO 2015b, para. 12) The fifth ‘C’ of the Strategic Objectives pursuant to the 2002 Budapest Declaration and Decision 31 COM 13B requires States Parties to ‘enhance the role of Communities in the implementation of the World Heritage Convention’ (ibid., para. 26 (5)). The relevant legal texts thus recognise the high relevance of ‘diversity’ (ibid., para. 111). When setting up site management plans and activities, ‘State Parties should do so in close collaboration with property managers, the agency with management authority and other partners, and stakeholders in property management’ (ibid,. para. 117). This is particularly important in the context of ‘uses’ of protected properties that are ‘ecologically and culturally sustainable’, where states are tasked with ‘promot[ing] and encourag[ing] the active participation of the communities and stakeholders concerned with the property as necessary conditions to its sustainable protection, conservation, management and presentation’ (ibid., para. 119). ‘Partners, in the protection and conservation of World Heritage’, according to the Operational Guidelines, ‘can be those individuals and other stakeholders, especially local communities, indigenous peoples,37 governmental, non-governmental and private organizations and owners who have an interest and involvement in the conservation and management of a World Heritage property’ (UNESCO 2015b, para. 40). This expands the direct participatory role explicitly to a variety of stakeholders, including property holders who have a vested interest in both, or either, the conservation and the management aspects of heritage preservation, thus prima facie also commercial enterprises that want to partake in the for-profit use of sites.

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From a legal point of view, the terms of reference for sites’ management systems in para. 111 of the 2013 Operational Guidelines left much to be desired, as they limited themselves to rather shallow slogans of co-operation instead of practical tools for interest- and possibly conflict-mediation. The need to be project-specific in setting up a ‘cycle of short, medium and long-term actions to protect, conserve and present the nominated property’ (UNESCO 2013, para. 112) was of course acknowledged. The significantly amended para. 111 in the 2015 Operational Guidelines is promising. Not only was subpara. (a) expanded to aim at a ‘thorough shared understanding of the property by all stakeholders, including the use of participatory planning and stakeholder consultation process’, the new subpara. (d) now contemplates the ‘development of mechanisms for the involvement and coordination of the various activities between different partners and stakeholders’ instead of merely an involvement of these groups. Last but not least, new subpara. (c) introduces impact assessments: namely ‘an assessment of the vulnerabilities of the property to social, economic, and other pressures and changes’ (UNESCO 2015b). Para. 123 of the 2015 Operational Guidelines on ‘participation in the nomination process’ offers a significantly enriched avenue, with corresponding state obligations, for meaningful participation. Its beneficiaries are now not only ‘local people’, as in the 2013 Guidelines, but – mirroring para. 40 – ‘local communities, indigenous peoples, governmental, non-governmental and private organizations and other stakeholders’. These actors in the process have, as was known before 2015, a ‘shared responsibility with the State Party in the maintenance of the property’; consequently, states are ‘encouraged to prepare nominations with the widest possible participation’, and more, states are nudged to demonstrate that their ‘free, prior and informed consent [FPIC] has been obtained, through, inter alia making the nominations publicly available in appropriate languages and public consultations and hearings’ (ibid., para. 123). FPIC is a far-reaching concept in international law,38 founded on ‘self-determination and … related principles of democracy and popular sovereignty’ (Anaya 2011, para. 79). It is premised on both indigenous peoples’ ‘historic exclusion from decision-making processes and consequent lack of trust in State institutions’ (ibid., para. 87) and the ‘widespread acknowledgment … of indigenous peoples’ distinctive characteristics and specific rights and on the need for special measures to address their disadvantaged conditions’ (ibid., para. 80).39 This is stipulated most precisely in the UN (2007) Declaration on the Rights of Indigenous Peoples, Article 19: 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. FPIC has been advanced but hotly contested, especially as to its scope and possible ultimate consequence, namely a veto-power, in the human rights law discussion

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of indigenous populations.40 The then-UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, said that: The character of the consultation procedure and its object are … shaped by the nature of the right or interest at stake for the indigenous peoples concerned and the anticipated impact of the proposed measure. Necessarily, the strength of the objective of achieving consent varies according to the circumstances, the indigenous peoples’ rights and the interests involved. A significant, direct impact on indigenous peoples’ lives establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent. In certain contexts, that presumption may harden into a prohibition of the measure or project in the absence of indigenous consent. (ibid., para. 83) He added that, while ‘obtaining their consent should, to some degree, be an objective of the consultation’ (ibid., para. 85): [A]ffected indigenous peoples could be justified in withholding their consent in relation to a proposed initiative, and the proposed initiative should indeed not move forward without such consent, if the State has not demonstrated that the rights of affected indigenous peoples will be adequately protected under the proposed project or if the State has not adopted adequate measures to mitigate any adverse impacts of the proposed project. (ibid., para. 86) As regards economic and other development, including resource exploitation, international human rights bodies as well as national courts have at a minimum demanded meaningful consultations41 as well as decisions that are ‘determined through a process of informed and mutual consent on the part of the [indigenous] people as a whole’.42 The Inter-American Court of Human Rights in Saramaka People v. Suriname43 articulated the following requirements in the context of FPIC: an ‘effective participation of the members of the … people, in conformity with their customs and traditions’ (para. 129); ‘[t]his duty requires the State to both accept and disseminate information, and entails constant communication between the parties. These consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement’ (para. 133). And, equally importantly, the consultation must be timely and ‘ensure that members of the … people are aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily’ (ibid.).The scope of the duties is currently evolving.44 In any event, the World Heritage Committee has taken a significant step in 2015 by incorporating FPIC as a legal requirement for an Operational Guideline-conforming domestic designation process. Nevertheless, questions remain in terms of implementation and coverage.

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At the UNESCO level itself, the participation of the Advisory Bodies to the World Heritage Committee – ICCROM (the International Centre for the Study of the Preservation and Restoration of Cultural Property), ICOMOS (the International Council on Monuments and Sites), and IUCN, (the International Union for Conservation of Nature) – bears witness to the embeddedness of the process in formal interaction with some non-governmental actors. The Advisory Bodies play an important role in assisting ‘with the development and implementation of the Global Strategy for a representative, balanced and credible World Heritage List’ (UNESCO 2015b, para. 31 (c)). As well as the monitoring (ibid., para. 31 (d)) and ‘evaluation of properties nominated for inscription on the World Heritage List’ (ibid., para. 31 (e)), as well as the administration of the financial tool under the WHC, the World Heritage Fund.

Cluster II: Protection of property, resources, and related tenure rights The World Heritage Convention and the Operational Guidelines appear to view protection measures as a means to protect the physical property primarily (UNESCO 2013, para. 97) even if the ‘owners’ of sites and other affected material property are acknowledged as partners in the process (UNESCO 2015b, para. 40). ‘Legislative and regulatory measures at national and local levels should assure the survival of the property and its protection against development and change that might negatively impact the Outstanding Universal Value, or the integrity and/or authenticity of the property’ (ibid., para. 98). The traditional human rights perception of property, in contrast, is private property, although the notion has a turbulent history of codification in international treaties. This is due, first and foremost, to its clash with collective property concepts of socialist societies at the drafting time.The paradigm of private property starts from the idea of every owner’s right to make use and dispose of property freely. This includes acts and omissions that damage or destroy such property. Here, a clash between the two concepts (private and collective) is obvious. This is particularly relevant since designation tends to create an increase in the value of the surrounding real estate as there is an enhanced incentive for development. Other collective property and resource rights conceptions, such as the case of traditional indigenous rights, pose another layer of complexity given the very uneven recognition of collective land and resource rights in many parts of the world. State measures in furtherance of Convention obligations might in the first place interfere with the peaceful enjoyment of property by means of land-use plans and other restrictive regulations. This constitutes a control of the use of property and resources. In some cases, such restrictions are far-reaching enough to constitute what is known as ‘regulatory takings’, i.e. expropriation without the actual taking of title.45 Ultimately, even outright expropriation is conceivable, and often undertaken, as a means to safeguard a heritage site. Human rights laws require that any such interference be lawful, legitimate, and proportionate and that, if an expropriation

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occurs, due compensation is paid to the owner.46 In the European context, the jurisprudence of the Strasbourg court makes clear that it will defer rather greatly to the national bodies’ margin of appreciation in this particular context: The Court … considers that the protection of a country’s cultural heritage is a legitimate aim capable of justifying the expropriation by the State of a building listed as ‘cultural property’. It reiterates that the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court will respect the legislature’s judgment as to what is‘in the public interest’ unless that judgment is manifestly without reasonable foundation This is equally true, mutatis mutandis, for the protection of the environment or of a country’s historical or cultural heritage. (Kozacıoğlu v.Turkey, para. 53) Thus, while the formal lawfulness and prima facie legitimacy of regulatory interferences with individual property rights appear to have been met in case of World Heritage protection in Europe, but probably not elsewhere, another question remains open: is the interference as such proportionate?47 The proportionality issue is important for two different reasons: with respect to the degree of the limitations of use of private property, and the transfer of benefits of future use in light of the newly acquired status of a site. Ultimately, the question of who benefits economically from listing, and who loses rights and thus opportunities previously held, is of crucial importance. If a state enacts a valuation system that is ‘unfair, in that it places the State at a distinct advantage’ (ibid., para. 70), property and resource rights will probably be infringed. The one in place in Kozacıoğlu v.Turkey, for instance, enable[d] the depreciation resulting from a property’s listed status to be taken into account during expropriation, while any eventual appreciation [was] considered irrelevant in determining the compensation for expropriation. Thus, not only is such a system likely to penalise those owners of listed buildings who assume burdensome maintenance costs, it deprives them of any value that might arise from the specific features of their property. (ibid.) If and when a special group of people is concerned, such as an indigenous community, either as beneficiaries or as ‘victims’ of a property-reallocation, additional human rights questions need to be answered. The World Heritage system seems to be rather blunt when it comes to the scope and reach of protection measures, for instance, boundaries, which ‘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

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human encroachments and impacts of resource use outside of the nominated area’ (UNESCO 2013, para. 101). Also, buffer zones are foreseen constituting 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’. Such – from the perspective of human rights law, pre-emptive – measures appear at first sight to potentially entail substantial limitations and restrictions on property and its free use and would have to be justified by a rather high standard of concrete necessity and proportionality under human rights law.

Cluster III: The right to development and livelihood rights Development and the intact preservation of mankind’s heritage seem, at first glance at least, to be at odds with each other.Yet, in many cases, the inclusion of any cultural or natural site in the World Heritage List is of immense value for the local economy. As such, it could be argued that listing has a positive effect on the right to development and the population’s possibilities of improving their livelihoods through the increase of tourism and other revenues (Jha 2005, 988). Nevertheless, as the past has clearly shown, development can also of itself be the main cause behind the total or near destruction of heritage sites, and local livelihoods (BBC News, 3 July 2013). Also, heritage designation may negatively affect certain local livelihoods and development opportunities. The Operational Guidelines call upon all signatory parties to responsibly manage human development of and around their heritage sites with a view to assessing human impact upon them (UNESCO 2013, para. 110). It would appear that the question how World Heritage affects local livelihood and development rights is often overlooked. Human rights can provide a compelling argument for a more thorough inclusion of these issues. Both covenants, the ICCPR and ICESCR, indisputably establish people’s right to freely pursue their economic development and administrate their natural wealth and resources according to their own needs, prohibiting states from depriving them of their means of subsistence.48 At first glance, such rights may appear to be in conflict with the World Heritage convention and its plea for preservation and conservation. In particular, development, if understood as infrastructural improvements and thus change in the widest sense of the word, entails even more people leaving a bigger socio-environmental footprint. Departing from the assumption that societies are not static entities and that a greater number of visitors will usher in a faster pace of change, development will bring about an irreversible change in social structure and group dynamics. Does this mean that people should be ‘protected’ from losing their cultural and/or group identity? It must be stressed that neither the World Heritage Convention or, indeed, any other international legal instrument can be used as a tool to keep anyone as a ‘museum people’ or as an excuse to deny them the most basic services to live a dignified life (Ween 2012, 262).49 There can be no cultural or group identity if the group in question lives deprived of the means to sustain themselves and their

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future generations. The World Heritage Convention should be interpreted in such a way as to enable communities to continue making use of their traditional means of subsistence and, through the newly gained revenues, support those means and techniques, which are least obtrusive to the preservation of the heritage site.

Cluster IV: Indigenous/tribal/ethnic (ITE) minority rights and broader cultural rights Human rights law recognises the need to protect diversity, including particular group rights and collective rights such as self-determination. Whereas indigenous rights, notably the right to Free Prior Informed Consent, are increasingly being codified, major questions remain in terms of other indigenous rights, broader cultural rights, and the rights of other groups such as ethnic minorities. Numerous high-profile cases reveal significant legacy issues in the World Heritage field where indigenous and ethnic minority rights have been neglected (Disko and Tugendhat 2014). These cases raise important questions in terms of both procedural and substantive rights in the World Heritage process. The protection of certain cultural rights may be enhanced by World Heritage processes. The World Heritage criteria suggest that some sites may ‘bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared’ (UNESCO 2015b, para. 77 (iii)) and/or ‘exhibit an important interchange of human values, over a span of time or within a cultural area of the world’ (ibid., para. 77 (ii)). A site may also ‘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’ (ibid., para. 77 (v)). In addition, indigenous peoples have sought to mobilise natural criteria in order to value and protect their customary lands and waters. Whereas designation may lead to the side-lining of collective rights, heritage recognition can thus equally be mobilised to enhance indigenous and ethnic minority rights. The setting up of a management system is, for example, dependent on a site’s ‘cultural and natural context’, and ‘[t]hey may incorporate traditional practices, existing urban or regional planning instruments, and other planning control mechanisms, both formal and informal’ (ibid., para. 110). Such policy language offers potential openings to strengthen the integration.

Conclusion The discussion of human rights in the World Heritage context is increasing, but considering the significantly differing frameworks of methodology of heritage and human rights professions, it is not always helpful (Meskell 2010, 840). The relevant question is not only whether there is a fundamental right to one’s own heritage. Rather, it is also how the rights-based approach can, in fact, help facilitate and enhance the quality of heritage protection and realign it to ensure that the stages

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of the designation, management, and protection process comply with the rights of all entitled parties, both procedural and substantive. Human rights in the context of World Heritage protection need not be redefined, and much less re-argued with respect to their validity. It would seem that at the present stage of the interaction between the two realms, instead of a fully interdisciplinary dialogue, mutual consultations would be more purposeful. Although the World Heritage Convention text itself does not make a clear and coherent formal statement on the link to the human rights regime, it has become apparent that they are interrelated. And yet, a common language and operational framework seems to be missing, a language that would allow the already ongoing dialogue to become more purposeful and results-oriented. The Caux Call for Action (this volume) and the activities of the UNESCO and the Advisory Bodies are commendable and essential. It would be flawed to insist that the human rights movement has not, at times, done itself a disservice by displaying a type of self-righteousness that is not warranted. Of course, today’s normative framework – fought for so hard by generations of human rights activists – is legally binding and enforceable, and subject only to those limitations and reservations that contracting states legally enunciate or international judicial bodies endorse. International organisations are also bearers of duties under human rights law, within their powers and competencies, alongside states. Human rights are constituted by the law, not political or moral aspirations subject to or contingent upon the alleged or real benevolence of other regimes, be they national or international. But, that being said, human rights implementation does not benefit from harsh condemnation, but from constructive interaction, particularly with other normative systems that share common goals, namely the preservation of humanity and its heritage in all its aspects. It is inconceivable that heritage protection will not, overall, benefit greatly from adherence to and mainstreaming of human rights principles such as those gathered in this chapter. The barriers are not least a lack of mutual understanding. Thus, the dialogue must continue.

Notes 1 This research was funded by the Swiss Network for International Studies. 2 International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). 3 Para. 4, Chapter I.B of the Operational Guidelines for the Implementation of the World Heritage Convention, WHC 15/01 of July 2015 [hereinafter: ‘Operational Guidelines 2015’], stipulates: ‘The cultural and natural heritage is among the priceless and irreplaceable assets, not only of each nation, but of humanity as a whole. The loss, through deterioration or disappearance, of any of these most prized assets constitutes an impoverishment of the heritage of all the peoples of the world’. 4 HR, as most rights in general, can be limited or derogated to ‘the extent strictly required by the exigencies of the situation’ (compare Art. 15 para. I ECHR and Art. 27 IACHR). However, there are a few rights which under no circumstances are to be derogated, such as the prohibition of torture (Art. 3 ECHR), the prohibition of slavery and forced

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labour (Art. 4 ECHR), and the prohibition of punishment without a law previously and duly ratified (Art. 7 ECHR). The same and additional non-derogable rights can be found in subsequent human rights instruments. See in general Dinah Shelton (2006), ‘Subsidiarity and Human Rights Law’, Human Rights Law Journal,Vol. 27: 4–11. Jones (1999, 83) states that ‘Serious commitment to human rights is commitment to the idea that there are certain rights that human beings possess, or should possess, simply as human beings’. While Perelló (2014) argues that human rights can be traced back to an earlier and older concept, which viewed the rational nature of man as a limitation on the power of the sovereign, thus rooting modern ideas on human rights in the concept of natural law, he also concedes that the same notion has nothing to do with nature itself. In the latter, the strongest prevails and law has nothing to do with justice, but is pure brute force. For an in-depth analysis of the different approaches towards the concept of ‘natural law’, see Tiemey (2004). Weston (1984, 264), as well as many other scholars since, points out that ‘like all normative traditions, the human rights tradition is a product of its time’ and thus cannot be analysed detached from its historical and societal context. See also Mitoma (2008) and Mohney (2014). For a comprehensive overview on the topic, see Arat (2006). A common denominator according to Weston (1984) is that human rights limit state power. See also Arat (2006). Although the UN speaks of ‘communications’, the rationale behind it is one of a complaint. Compare Art. 14 International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Art. 41 ICCPR; Art. 1 OP ICCPR; Art. 21 and Art. 22 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Compare Art. 9 CERD; Art. 2 para. 3 lit. b ICCPR; Art. 2 ICESCR; Art. 2 CAT. See Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2001); Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht: Kluwer, 1996), and José Antonio Pastor Ridruejo, ‘Le principe de subsidiarité dans la Convention européenne des droits de’homme’, in Jürgen Bröhmer et al. (eds.), Internationale Gemeinschaft und Menschenrechte; Festschrift für Georg Ress 1077–83 (Köln: Carl Heymanns Verlag, 2005), amongst many others. In a similar vein, Brems (2001, 396) views the margin as ‘centrifugal, and directed towards diversity’. ECtHR, Interlaken Follow-up, Principle of Subsidiarity, Note by the Jurisconsult, dated July 8, 2010, at http://www.echr.coe.int/NR/rdonlyres/D932C687-6805-4C0B8828-EE7862873D0D/0/Interlaken_followup_Subsidiarity.pdf, para. 53. Cf. Stephan Breitenmoser, ‘Subsidiarität und Interessensabwägung im Rahmen der EMRKRechtsprechung’, in Stephan Breitenmoser et al. (eds.), Human Rights, Democracy and the Rule of Law; Liber amicorum Luzius Wildhaber, 119–42, 121 (Zürich, St. Gallen, Dike, 2007). Operational Guidelines 2015, para. 98. Para. 98 was substantially amended in 2015 to add to the previous Operational Guidelines, WHC 13/1, of July 2013, to require states to assure the protection of properties, not merely their ‘survival’, and to identify ‘social, economic and other pressures or changes’ rather than ‘development’ as threats. Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community v. Paraguay; Separate Opinion by Judge A.A. Cançado Trindade; para. 32. http://www. forestpeoples.org/sites/fpp/files/publication/2010/10/surinamemoiwanajudgopinionfeb06eng.pdf. Art. 1 OP ICCPR ‘A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider

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communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant’. International Law and the UN in particular have developed a myriad of systems in order to ensure the material realization and execution of HR. For an overview on the UN system, see: http://spinternet.ohchr.org/_Layouts/SpecialProcedures Internet/ ViewAllCountryMandates.aspx?Type=TM. For an overview on the Inter-American System see: http://www.oas.org/en/iachr/mandate/composition.asp#tab3. Velásquez-Rodríguez v. Honduras, judgment of July 29, 1988, Inter-AmCtHR (Ser. C) No. 4 (1988), paras. 166–7. Art. 2(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, stipulates that ‘[e]ach State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.To ‘ensure’ encompasses a duty of the state to provide substantial steps for protecting rights against encroachments by non-state actors and other positive measures. See, e.g., the judgment of the Inter-American Court of Human Rights, Ximenes Lopes v. Brazil, Merits, Inter-AmCtHR (Ser. C) No. 149, para. 125 (Jul. 4, 2006), stating in the context of the right to life: Article 4 of the Convention guarantees not only the right of every human person not to be deprived of his life arbitrarily, but also, the duty of the States to adopt such measures as may be necessary to create a legal framework which allows deterring any threat to the right to life; to establish an effective system of justice which can investigate, punish, and redress any act of deprivation of life by the State agents or private individuals; and to safeguard the right to have access to the conditions which guarantee a decent life, which includes the adoption of positive measures which prevent the violation of this right. See, e.g., Perozo v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, InterAmCtHR (ser. C) No. 195, T 298 (Jan. 28, 2009); Lenahan v. United States, Case 12.626, Inter-Am. Comm’n HR, Report No. 80/11 (2011); Maria da Penha v. Brazil, Case 12.051, Inter-Am. Comm’n HR, Report No. 54/01, OEA/Ser.L./V/II.1 11 doc. 20 rev. 27 (2001). Franz Nahlik v. Austria, Communication No. 608/1995, UN Doc. CCPR/ C/57/D/608/1995 (1996), para. 8.2. UN-Secretary General Ban Ki-moon, Human Rights Up Front Initiative, Action 1: ‘Integrating human rights into the lifeblood of the UN so all staff understand their own and the Organization’s human rights obligations’, http://www.un.org/sg/rightsupfront/doc/RuFAP-summary-General-Assembly.shtml (accessed August 28, 2015). ‘Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof ’. Art. 2, para. 1, Guiding Principles, 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. ECtHR, Nada v. Switzerland, judgment [Grand Chamber] of September 12, 2012, para. 121. ECJ, joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, judgment of September 3, 2008. Human Rights Committee, Communication No. 1472/2006, Nabil Sayadi and Patricia Vinck v. Belgium, views of October 22, 2008. This was done despite established practice that ‘in accordance with Article 103 of the Charter, the obligations of the Parties [to accept and carry out the decisions of the Security Council] prevail over their obligations under any other international agreement’; ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention

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29 30 31 32 33 34 35 36 37 38 39

40 41

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arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, order of April 14, 1992, ICJ Reports 1992, p. 15, para. 39. International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion of April 11, 1949, p. 174, pp. 179 et seq. Article 6 of the Lisbon Treaty; this commitment has been temporarily halted, but not negated, by the opinion of the ECJ No. 2/13. http://www.un.org/en/peacekeeping/issues/humanrights.shtml. See Parliamentary Assembly of the Council of Europe, Report of the Committee on Legal Affairs and Human Rights, ‘Accountability of International Organisations for Human Rights Violations’, Doc. 13370. http://www.un.org/en/peacekeeping/issues/humanrights.shtml. ECtHR, Schiesser v. Switzerland, judgment of December 4, 1979, Series A, No. 34, para. 32, with reference to Marckx v. Belgium, judgment of June 13, 1979, Series A, No. 31, para. 27. That is, an action seeking to have a law or administrative action examined ‘in abstracto’ without being personally affected by it. ECtHR, Aksu v.Turkey, judgment [GC] of March 15, 2012, Reports 2012, para. 50. Indigenous peoples were added in July 2015 with the revision of the Operational Guidelines. Cf. in general Hanna and Vanclay (2013). For the corresponding ‘special consideration’ standard under the European Convention on Human Rights, see ECtHR, Chapman v. the United Kingdom, judgment (GC) of January 18, 2001, Reports 2001-I, and Alexander H. E. Morawa, ‘The Special Consideration Standard as a Modern Tool for Advancing the Rights of Minorities’, in Timofey Agarin and Malte Brosig (eds.) (2009), Minority Integration: Debating Ethnic Diversity in Eastern Europe, 53–77, and id., (2003), ‘The European Court of Human Rights and Minority Rights: The “Special Consideration Standard” in Light of Gypsy Council’, International Journal on Minority and Group Rights 10 (2): 97–109. Cf. Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc. E/C.19/2005/3, para. 45. UN Human Rights Committee, General Comment No. 23: The rights of minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994), para. 3.2, and id., Concluding observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 19; see also CESCR, General Comment No. 21 Right of everyone to take part in cultural life, UN Doc. E/C.12/GC/21 (2009), Art. 15, para. 1 (a). Mary & Carrie Dann v. U.S., Case 11.140, Inter-Am. Comm’n HR, Report No. 75/02, OEA/Ser.L/V/II.117, doc. 5. Rev. 141 (2002). Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Cost, Inter-AmCtHR (ser. C) No. 174, 133-4 (Nov. 28, 2007). Cf. Ward (2011), Doyle (2014), and Bustamante (2015). See Appl. no. 2334/03, Kozacıoğlu v. Turkey, judgment [GC] of February 19, 2009, para. 54, and App. no. 41248/06, Bogdel v Lithuania, judgment of November 26, 2013, para. 60, where the European Court of Human Rights stated: ‘the conservation of the cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants. As such, they are an essential value, the protection and promotion of which are incumbent on the public authorities’. This does not guarantee a right to full compensation in all circumstances, however, or a reimbursement of the full market value of the expropriated property; see Lithgow and Others v. the United Kingdom, judgment of July 8, 1986, § 121, Series A no. 102; Broniowski v. Poland, judgment [GC] of June 22, 2004, § 182, Reports 2004V. This was true ‘particularly as the measure was adopted in the context of a programme for the protection of the country's cultural heritage’, in the Kozacıoğlu v. Turkey case, para. 65, for instance.

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The Court ensures that there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his or her possessions’; Pressos Compania Naviera S.A. and Others v. Belgium, judgment of November 20, 1995, § 38, Series A no. 332; The former King of Greece and Others v. Greece, judgment [GC] of November 23, 2000, Reports 2000-XII, §§ 8990. Art. 1, para. 1 and 2 ICCPR; Art. 1 para. 1 and 2 ICESCR. See also Oviedo and Puschkarsky (2012).

References Anaya, James. 2011.“Report of the Special Rapporteur on the Rights of Indigenous Peoples”. Item 66 of the Provisional Agenda, Rights of Indigenous Peoples. Document A/66/288. Arat, Zehra F. Kabasakal. 2006. “Forging a Global Culture of Human Rights: Origins and Prospects of the International Bill of Rights.” Human Rights Quarterly 28 (2): 418–419. BBC News. 2013. Developers Destroy Ancient Peru Pyramid. Accessed August 28, 2015. http:// www.bbc.com/news/world-latin-america-23173628. Brems, Eva. 2001. Human Rights: Universality and Diversity. Dordrecht: Kluwer. Bustamante, Gonzalo. 2015. “The Right to Consultation and Free, Prior and Informed Consent in Latin America:The Governmentality of the Extraction of Natural Resources.” Special Edition Rev. Quebecoise de Droit International: 179–197. Carozza, Paolo G. 2003. “Subsidiarity as a Structural Principle of International Human Rights Law.” American Journal of International Law 97 (1): 38–79. Disko, Stefan and Helen Tugendhat, eds. 2014. World Heritage Sites and Indigenous Peoples’ Rights. Copenhagen: IWGIA. Doyle, Cathal M. 2014. Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent. London and New York: Routledge. Hanna, Philippe and Frank Vanclay. 2013. “Human Rights, Indigenous Peoples and the Concept of Free, Prior and Informed Consent.” Impact Assessment and Project Appraisal 31 (2): 146–157. International Law Association. 2004. “Accountability of International Organisations.” Berlin Conference Final Report: 1–53. http://www.ila-hq.org/en/committees/index.cfm/cid/9. Jha, Sachida. 2005. “Can Natural World Heritage Sites Promote Development and Social Harmony?” Biodiversity and Conservation 14 (4): 981–991. Jones, Peter 1999. “Human Rights, Group Rights, and Peoples’ Rights.” Human Rights Quarterly 21 (1): 80–107. Kozacıoğlu v. Turkey. European Court of Human Rights. Grand Chamber Judgment of February 19, 2009. Larsen, Peter Bille. 2016. “Understanding Rights Practices in the World Heritage System: Lessons from the AsiaPacific and the Global Arena.” Global Science Policy Dialogue held in Caux, Switzerland January 1819, 2016, Workshop Report & Call for Action. Lucerne: University of Lucerne. Lauren, Paul Gordon. 2011. The Evolution of International Human Rights: Visions Seen. 3rd ed. Philadelphia, PA: University of Pennsylvania Press. 154 et seq., 165 et seq. Meskell, Lyn. 2010.“Human Rights and Heritage Ethics.” Anthropology Quarterly 83 (4): 839–859. Mitoma, Glenn Tatsuya. 2008. “Civil Society and International Human Rights: The Commission to Study the Organization of Peace and the Origins of the UN Human Rights Regime.” Human Rights Quarterly 30 (3): 607–630. Mohney, Seth. 2014. “The Great Power Origins of Human Rights.” Michigan Journal of International Law 35(4): 827–860.

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OHCHR. n.d. “What Are Human Rights?” Accessed October 10, 2015. http://www.ohchr. org/EN/Issues/Pages/WhatareHumanRights.aspx. Oviedo, Gonzalo and Tatjana Puschkarsky. 2012. “World Heritage and Rights-based Approaches to Nature Conservation.” International Journal of Heritage Studies 18 (3): 285–296. Parliamentary Assembly of the Council of Europe (PACE) (2014) Resolution 1979 http:// assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20510&lang=en. Perelló, Carlos Felipe Amunategui. 2014. “On Supernatural Law: About the Origins of Human Rights and Natural Law in Antiquity.” Fundamina 20(1): 15–26. Rashid, Ahmed. 2001. After 1,700 years, Buddhas fall to Taliban dynamite. Accessed August 28, 2015. http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/1326063/After1700-years-Buddhas-fall-to-Taliban-dynamite.html. Tiemey, Brian. 2004. “The Idea of Natural Rights-Origins and Persistence.” Northwestern Journal of International Human Rights 2 (1): 2–13. UNESCO. 1972. “Convention Concerning the Protection of the World Cultural and Natural Heritage.” http://whc.unesco.org/en/conventiontext/. UNESCO. 2013. “Operational Guidelines for the Implementation of the World Heritage Convention.” Document WHC.13/01. http://whc.unesco.org/archive/opguide13-en.pdf. UNESCO. 2015a.“Draft Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention.” (Annex to document WHC15/39.COM/5D) Document WHC-15/20.GA/INF.13. http://whc.unesco.org/ document/138856. UNESCO. 2015b. “Operational Guidelines for the Implementation of the World Heritage Convention.” Document WHC.15/01. http://whc.unesco.org/document/137843. UNESCO. 2015c. Director-General of UNESCO Irina Bokova Firmly Condemns the Destruction of Palmyra’s Ancient Temple of Baalshamin, Syria. Accessed August 28, 2015. http://whc. unesco.org/en/news/1339. UNESCO. 2015d. “World Heritage and Sustainable Development.” Document WHC15/39.COM/5D. http://whc.unesco.org/en/documents/135650. UNESCO. 2015e. “Revision of the Operational Guidelines.” Document WHC-15/39. COM/11. http://whc.unesco.org/en/decisions/6198. UNESCO. 2015f. “Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention.” Document WHC-15/20.GA/INF.13. http://whc.unesco.org/document/139146. United Nations. 2007. “United Nations Declaration on the Rights of Indigenous Peoples”. Agenda item 68. Resolution adopted by the General Assembly [without reference to a Main Committee (A/61/L.67 and Add.1)]. G.A. Res. 61/295, Document A/ RES/61/295. http://www.un-documents.net/a61r295.htm. Villiger, Mark E. 2007. “The Principle of Subsidiarity in the European Convention on Human Rights.” In Promoting Justice, Human Rights and Conflict Resolution through International Law, Liber Amicorum Lucius Caflisch, edited by Marcelo G. Kohen, 623–637. Leiden: Martinus Nijhoff Publishers. Ward, Tara. 2011. “The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law.” Northwestern Journal of International Human Rights 10 (2): 54–84. Ween, Gro B. 2012. “World Heritage and Indigenous rights: Norwegian examples.” International Journal of Heritage Studies 18 (3): 257–270. Weston, Burns H. 1984. “Human Rights.” Human Rights Quarterly 6: 257–258. Wiater, Patricia. 2010. Intercultural Dialogue in the Framework of European Human Rights Protection. Strasbourg: Council of Europe Publishing.

12 LEGAL FRAMEWORKS FOR WORLD HERITAGE AND HUMAN RIGHTS IN AUSTRALIA Ben Boer and Stefan Gruber

Introduction This chapter traces the development and implementation of heritage law and policy in Australia since the 1970s, with a dual focus on World Heritage and the emergence of the rights of Indigenous and local communities to participate in decisions relating to their heritage. In order to gain an understanding of the law and policy context in Australia, it first sets out the international frameworks in relation to heritage law and human rights law and then addresses the emergence of national legal responses at federal, state and territory levels. At international level, the links between human rights, culture and heritage have been the subject of a number of scholarly analyses in recent years (for example, Silverman and Ruggles 2007; Harrison 2015; Ekern et al. 2015). These links are now beginning to be recognised in official documents. In the United Nations Sustainable Development Goals (SDGs) concluded in 2015, Goal 11 is headed: ‘Make cities and human settlements inclusive, safe, resilient and sustainable’. In Target 11.4 under this Goal, there is a reference to heritage: ‘[s]trengthen efforts to protect and safeguard the world’s cultural and natural heritage’. There is some confusion with respect to the language of this target, as it is not clear whether it refers only to world heritage, or more generally to the heritage of the world, in its variety of forms (see further Boer 2017). In parallel, a policy document adopted in 2015 by the World Heritage Committee addressed sustainable development in a more comprehensive manner (UNESCO World Heritage Centre 2014).The policy states that conservation and management strategies incorporating a sustainable development perspective should be based on a range of overarching principles, including social, economic and cultural rights (UNESCO World Heritage Centre 2014, 6, 19). These issues are directly relevant to Australia, given the history of political debate, policy initiatives and legislative innovations in the areas of environmental

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law and heritage law since the 1970s, a more specific focus on human rights law since the mid-1980s and the introduction of sustainable development principles and practices from the late 1980s. The complex legal history of law and institutional management spread over the nine Australian jurisdictions makes a consideration of World Heritage and Indigenous cultural rights at once fascinating as well as, at times, quite difficult. The tension between conservation and development, especially since the Stockholm Conference on the Human Environment in 1972, has regularly created situations of great political and social controversy. While there are some common approaches from one jurisdiction to another, there is no particular consistency in the detail of definitions, scope of the legislation or governmental policy and administrative arrangements. The crosscutting themes found in this book are also canvassed in a variety of ways in this chapter. With respect to land, resource and property rights, the issue of Indigenous land rights has a long and tortuous history. Until at least the 1960s, Indigenous history, archaeology and cultural heritage were viewed largely from a European perspective (see Boer 1988). Australia saw the legislative enactment of land rights in several jurisdictions from 1976 onwards, and recognition of native title as a property right by the courts in the 1990s‚ reflecting ‘a relationship to land which is the very foundation of Indigenous religion, culture and well-being’ (Australian Human Rights Commission 2015). As a result, extensive legal and policy development has taken place to address dispossession of Indigenous land and natural resources, and the loss of culture and heritage. While the right to a livelihood and the right to development are not guaranteed by any constitutional or legislative provision at federal, state or territory level for any person in Australia, the overall circumstances of Indigenous people might be said to have improved since the late 1960s in many respects. However, there is still a long way to go in terms of unemployment rates, access to education and level of health (Holland 2016). Indigenous people are described in official reports as being ‘staggeringly overrepresented’ in the Australian prison system, at 27% (Commonwealth of Australia 2017, 61), while constituting just 3% of the Australian population as a whole (Australian Bureau of Statistics 2011; see also Aboriginal and Torres Strait Islander Social Justice Commissioner 2016, 10). In relation to the recognition of Indigenous cultural rights, the legislation and policy initiatives recorded in this chapter indicate some significant developments at federal, state and territory level, the latest of which is manifested in the 2016 amendments to the Aboriginal Heritage Act 2006 in the State of Victoria. Governmental commitment to these issues continues to be a variable quantity at all levels; there is still a good deal of room for improvement.

Australian legal frameworks for environment, heritage and human rights Constitutional provisions Australia is a federally organised country involving nine legal systems, comprising six states (New South Wales, South Australia, Tasmania, Queensland,Victoria and Western

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Australia), two territories (Australian Capital Territory and the Northern Territory) and the Australian Commonwealth (the federal system) as the overarching governance framework. Each jurisdiction has its own parliamentary mechanisms and legislation. The Australian Constitution does not contain any specific provisions on environment, heritage or human rights. Section 51 sets out the legislative powers of the Australian Government ‘to make laws for the peace, order, and good government of the Commonwealth’ with respect to a wide range of issues.The provisions that have been used to make laws to address environmental and heritage issues include trade and commerce, taxation, foreign corporations and trading or financial corporations, the ‘people of any race’ power and external affairs.The ‘people of any race’ power is a significant one in this context: until 1967, the federal parliament had no jurisdiction to make laws with respect to Australia’s Indigenous peoples.The exclusion was removed by means of an overwhelmingly positive constitutional referendum (see further below). These provisions have also been relied on in a range of important High Court and Federal Court cases relating to environmental and heritage matters. For example, Commonwealth v Tasmania (1983) (known as the Franklin Dam Case) related to the listing of a significant part of the State of Tasmania as World Heritage, which included an Indigenous element. Mabo v Queensland (1992) concerned the general recognition of traditional ownership of land, known as ‘native title’. Although some law-making powers are made exclusive to the Australian federal government (referred to in this chapter as the ‘Australian Government’), such as customs and excise, generally law-making power is distributed between the federal parliament and state and territory parliaments. Federal law prevails over state legislation in cases of inconsistency. With respect to human rights, the Australian Constitution does not contain a Bill of Rights. Only matters such as the guarantee of the right to vote (s.41), protection against acquisition of property on unjust terms (s.51 (xxxi)), prohibition of discrimination on the basis of state of residency (s.117), trial by jury (s.80), freedom of religion (s.116) and the right to be free of discrimination on the basis of interstate residence (s.117) can readily be identified as dealing with human rights matters. It does not include a list of human rights provisions as found in the constitutions of many other countries, such as the right to free speech, freedom of assembly, etc., or the wide range of rights addressed in this volume.To the extent that these rights are protected, rather, this is done by way of legislative enactment and decisions of the courts in interpreting the relevant legislation.

Development of Australia’s human rights law Australia has signed most of the international human rights treaties and covenants (see list in Appendix). The Australian Government enacted the Australian Human Rights Commission Act in 1986.The function of the Commission is to implement international human rights instruments and to act as the primary conduit for interaction with international human rights bodies. However, this legislation does not, in and of itself, guarantee all of the human rights of Australian citizens.

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In addition to treaties, international soft law instruments (i.e. not legally binding) can provide guidance to domestic courts, the breach of which can be politically problematic. The one most relevant to this chapter is the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Australia was one of only four countries that originally voted against it, but the government eventually endorsed it in 2009. However, the basic rights found in that instrument, such as the rights to be informed, to participate, to be consulted and to have the opportunity to consent or refuse to consent to development activities that may affect them, are by no means guaranteed in the Australian context.The matter of recognition of Australia’s Indigenous people in the Constitution continues to be raised, as does the goal of establishing a treaty or formal agreement between the Australian Government and Aboriginal and Torres Strait Islander peoples (Aboriginal and Torres Strait Islander Social Justice Commissioner 2016, 59). In 2017, some further developments took place. A meeting of Indigenous representatives at Uluru in the centre of Australia in ‘Uluru Statement from the Heart’ called for the establishment of a ‘First Nations Voice enshrined in the Constitution’ and sought a ‘Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’ (Referendum Council, 2017). Subsequent statements were made by Indigenous leaders at the Annual Garma Festival in Arnhem Land, in the Northern Territory, calling for further progress on constitutional recognition (Dias 2017). As noted above, Australia does not have a Bill of Rights, although this was a core recommendation of the 2009 Human Rights Consultation Report (Human Rights Consultation Committee 2009; see Castan and Gerber 2013, 1; Debeljak, 2013: passim). Australia’s legislative framework on human rights was referred to by the Consultation Report as a patchwork that was ‘fragmented and incomplete, and its inadequacies are most keenly felt by the marginalised and the vulnerable’ (Human Rights Consultation Committee 2009, 127; also see Debeljak 2013, 38). As the President of the Australian Human Rights Commission has stated: ‘Australia needs a legislated Charter of Rights to provide a benchmark against which Government acts and Parliamentary laws can be assessed to avoid Australia’s increasing isolation from international legal standards’ (Triggs 2015). The rights specified in the 1966 International Covenant on Economic, Social and Cultural Rights – which are of crucial importance in the World Heritage context – are not specifically adopted in Australian federal law, and the avenues for complaint concerning human rights issues are limited. As noted by Charlesworth et al. (2006, 65), ‘[t]he image that emerges is that of a Janus-faced Australia, a nation that embraces the international sphere, but is much more cautious about the application of human rights domestically’.

Australian participation in international heritage law Australia is a party to a wide range of heritage-related conventions, and has enacted legislation to give effect to a number of them. Australia has signed but not yet

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ratified the Convention for the Safeguarding of the Intangible Cultural Heritage 2003, despite the urging of various bodies. One analyst has argued that the World Heritage Convention cannot be adequately implemented without Australia also ratifying and implementing the Intangible Heritage Convention (Connolly 2007). This was backed up by the Australian Human Rights Commission, which has argued that [t]he Convention for the Safeguarding of [the] Intangible Cultural Heritage is often considered as the complementary instrument to the 1972 World Heritage Convention, which mainly focussed on immovable natural and cultural heritage. Inscriptions with focused values of both natural and cultural, as applied for example to Uluṟu-Kata Tjuṯa, consider intangible heritage values to a certain extent under the criteria dealing with cultural landscapes. (Australian Human Rights Commission 2008) On the other hand, in considering whether Australia should ratify, the Convention has been subjected to some critique (Logan 2009). Notwithstanding non-adherence at national level to the Intangible Heritage Convention, it is noted that at state level,Victoria recently amended its Aboriginal Heritage Act 2006, which now contains provisions for a ‘registered Aboriginal Party’, ‘registered native title holder, or a ‘traditional owner group’ to nominate Aboriginal intangible heritage to the state’s Aboriginal Heritage Register. Aboriginal intangible heritage is defined for the purposes of the Act as knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public. (Aboriginal Heritage Act 2006 s.79B) The term ‘Aboriginal cultural heritage’ in this provision refers to ‘Aboriginal places, Aboriginal objects and Aboriginal ancestral remains’ (ibid. s.4); in other words, all Aboriginal physical heritage, although of course the link between the physical and the intangible heritage is often strong (see Wahlquist 2016 for further comment).

The development of Australian heritage law and policy Australia has a long history of political and legal debate concerning heritage issues (see Boer and Wiffen 2006, passim). At the federal level, governmental involvement in the conservation of cultural and natural heritage in Australia essentially began in the early 1970s, with the advent of the Whitlam Labor Government, which set up its ‘Committee of Inquiry into the National Estate’. The first federal environmental legislation included the Australian Heritage Commission Act 1975 (Cth). The Commission’s function was to identify, conserve, improve and present the National

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Estate and to prepare the ‘Register of the National Estate’ (Australia 1974). The National Estate was defined as consisting of ‘those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community’ (s.1).The Act did not contain any enforcement powers, but nevertheless had a significant influence on the direction of heritage conservation in Australia, and acted as a catalyst for the enactment of heritage legislation at state and territory level from the 1970s onwards, although the scope of heritage concerns and the level of protection continue to vary considerably from one jurisdiction to another. Each government also has relatively comprehensive mechanisms for the administration of legislation. Some states also provide for the listing and protection of natural and cultural heritage items within local government areas (for example, Heritage Act 1997 New South Wales; see also Boer and Gruber 2017). Heritage legislation in each jurisdiction provides for heritage conservation decisions to be challenged in court. A number of state jurisdictions have also enacted specific legislation for the protection of the cultural heritage of Indigenous people (see Boer and Wiffen 2006, Part III ‘Commonwealth Heritage Law’ and Part IV ‘State and Territory Heritage Law’).

Development of Indigenous rights and heritage law Federal level Australia’s Indigenous peoples comprise many nations and groups. For both legal and other purposes, they are divided into Aboriginal peoples and Torres Strait Islanders. The word ‘Indigenous’ refers generally to both (see further Australian Human Rights Commission 2005, especially with regard to terminology). Of particular importance in the Australian human rights context is the past and, to an extent, continuing discriminatory treatment of Indigenous peoples and lack of guarantee of their basic human rights. Indigenous culture was regarded as ‘primitive’ for a long time by many Australians, which resulted in the shameful ‘Stolen Generations’ period (approximately 1869 to 1969). Massacres of Aboriginal people took place in many parts of Australia from the earliest days of European colonisation, with an attendant legacy of bitterness and sadness that continues to this day in Aboriginal communities around Australia (see, for example, Australian National Museum 2016). Many Indigenous children were taken by force from their families and placed in non-Aboriginal foster families and specific schools to assimilate them into broader Australian society and enable them to lead ‘meaningful’ lives. This strategy left behind countless broken families, traumatised children and resentful communities as recorded in the Bringing Them Home report (Australian Human Rights and Equal Opportunity Commission, 1997) and in the Closing the Gap Prime Minister’s Report (Commonwealth of Australia 2017, 18–19).

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For an understanding of the development of Australian heritage legislation concerning Indigenous issues it is important to realise that, until 1967, responsibility for Australia’s Indigenous peoples lay mainly with the states, a situation that prevented the development of consistent legislation. As a result of a constitutional referendum in 1967, when over 90% of the Australian population voted in favour of removing certain phrases in the Constitution that discriminated against Aboriginal people. Under the Constitution Alteration (Aboriginals) Act 1967, for the first time the Australian Parliament acquired direct power to legislate with respect to Australia’s Indigenous peoples (Constitution s.51 (xxvi)). Prior to this amendment, they were not counted as part of the Australian population, allegedly because it was too difficult in the early days of federation to do so on the basis that many were dispersed and nomadic and communications around Australia were very poor. However, some historians have disputed this interpretation, arguing that because population numbers were used to calculate the number of seats each state would have in the House of Representatives, the original provision excluding them was intended to stop those states with high Aboriginal populations from having more seats in the federal Parliament (National Archives of Australia 1976). The repealed section 127 of the Constitution had stated, ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’. Change, however, occurred only gradually in some parts of Australia. One manifestation of this was the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) through which the Federal Government had to step in to prevent discrimination in certain respects against Aboriginal and Torres Strait Islander peoples under the laws of Queensland and thus to ensure compliance by the State of Queensland with the Racial Discrimination Act 1975 (Cth). In 2016, the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act was repealed on the basis that it was no longer relevant, because Queensland legislation had been updated to conform to the Racial Discrimination Act. Inclusion of Australian Indigenous peoples in the Constitution, although perfunctory, resulted, among other things, in a movement to legally recognise Indigenous land rights in Australia. An early statutory manifestation of this was the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In addition to affirming land rights in the Northern Territory, this legislation can also be characterised as the first Indigenous heritage law in Australia, in its defining of the concepts of ‘Aboriginal tradition’ and ‘sacred site’ and making them a required part of the evidence to establish traditional land claims under the Act. This legislation was followed by a series of federal laws on various aspects of Indigenous heritage which included the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Australian Institute of Aboriginal and the Torres Strait Islander Studies Act 1989. One result of a continuing land rights struggle over many years (Reynolds, 2003), was a ground-breaking court case brought in the Federal Court of Australia by Eddie Mabo, a Torres Strait Islander who had, among other things, been an activist in the

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1967 referendum campaign referred to above. The court found that the common law of Australia ‘recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands’ (Mabo v State of Queensland (1992), 175 CLR 1 [2] (Mason CJ and McHugh, J)). The subsequent Native Title Act 1993 (Cth) put the result of the case into practical effect by establishing the concept of ‘native title’, enabling Indigenous communities and groups to hold title to lands of which they claim traditional ownership.The preamble to the Act recognised that the High Court had rejected the doctrine of terra nullius, which assumed that Australia was unsettled and belonged to no one prior to the arrival of the European settlers. The main objects of this Act are to provide for the recognition and protection of native title; to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; to establish a mechanism for determining claims to native title; and to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title (s.3).The Act also provides for a range of rights to be exercised by traditional owners, such as rights of access for traditional activities (s.44B).The Mabo Case and the Native Title Act ushered in a new era of debate concerning a wide range of questions regarding the relationship between Indigenous people and other Australians. A manifestation of this new era was the apology made by the Australian Parliament concerning past mistreatment of Aboriginal people and Torres Strait Islanders (Rudd, 2008). Another indication of the embrace of Indigenous issues in Australia was the endorsement (albeit belatedly) by the Australian Government in 2009 of the 2007 United Nations Declaration on the Rights of Indigenous People. Several of its articles have particular resonance in the Australian context with respect to cultural rights, especially in the light of the ‘Stolen Generations’ referred to above. Article 8.1 of the Declaration specifies: ‘Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture’. Article 10 states in part: ‘Indigenous peoples shall not be forcibly removed from their lands or territories’. Article 11 includes the guarantee that ‘Indigenous peoples have the right to practise and revitalize their cultural traditions and customs’. Article 12 deals with the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects…’. Article 13 focuses on the right to ‘revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures’. However, at the time of writing, none of these provisions have found their way into federal law. Also of some significance was the enactment by the Australian Parliament of the Aboriginal and Torres Strait Islander Recognition Act 2013, which provided for recognition that Australia was first occupied by Aboriginal and Torres Strait Islander peoples, an acknowledgement of their continuing relationship with their traditional lands and waters, and an acknowledgement and respect for the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples (s.3). The Act committed the federal parliament to building the national consensus

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for recognition in the Australian Constitution, and contemplated the holding of a referendum to effect this change. Despite bipartisan political support at the time, the Act lapsed in 2015. However, in 2016, a bipartisan-appointed Referendum Council commenced Indigenous-designed and led consultations to discuss a referendum proposal, as recorded in the Closing the Gap Prime Minister’s Report 2017 (Commonwealth of Australia, 18).

Indigenous rights and heritage law at state and territory level In contrast to the federal law, some jurisdictions have recently recognised specific Indigenous rights. In 2016, the State of Victoria made some very significant amendments in this respect to its Aboriginal Heritage Act 2006. The purposes of the Act (as amended), as set out in s.1 are: a) to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria; b) to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other peoples; c) to strengthen the ongoing right to maintain the distinctive spiritual, cultural, material and economic relationship of traditional owners with the land and waters and other resources with which they have a connection under traditional laws and customs; and d) to promote respect for Aboriginal cultural heritage, contributing to its protection as part of the common heritage of all peoples and to the sustainable development and management of land and of the environment. The Australian Capital Territory’s Human Rights Act 2004 (ACT) established the Territory’s Human Rights Commission. Its 2016 amendments are also quite farreaching. They specified that [a]nyone who belongs to an ethnic, religious or linguistic minority must not be denied the right, with other members of the minority, to enjoy his or her culture, to declare and practise his or her religion, or to use his or her language. (s.27(1)) It also recognises that Aboriginal and Torres Strait Islander peoples hold distinct cultural rights, and must not be denied the right to maintain, control, protect and develop their cultural heritage and distinctive spiritual practices; observances; beliefs and teaching; languages and knowledge; kinship ties; and to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued (s. 27(2)). Significantly, the Act states that the primary source of these and other listed rights is the United Nations Declaration on the Rights of Indigenous Peoples 2007 (note to s.27).

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Indigenous Protected Areas An important part of the development of protective mechanisms concerning Aboriginal and Torres Strait Islander land and heritage has been the process of establishing a system of Indigenous Protected Areas (IPAs) that began in 1997 as part of the protected areas estate in Australia (see Boer and Gruber, 2010, 16–19). There are now 74 dedicated IPAs with a total area of over 67,000 hectares, making up 44.5% of the Australian National Reserve System (Australia 2016a). IPAs are ‘voluntarily dedicated by Indigenous groups on Indigenous owned or managed land or sea country’. They are established by federal, state and territory governments and are seen as ‘an important part of the National Reserve System, protecting the nation’s biodiversity for the benefit of all Australians’ (Australia 2016b). There are a variety of agreements for joint management of IPAs by the traditional owners and government entities (Ross et al. 2009; Smyth and Jaireth 2012).

World Heritage law in Australia Federal level In 1974, Australia was one of the first countries to ratify the World Heritage Convention, and it is one of only a few national jurisdictions to have enacted specific legislation for the implementation of the Convention in some form. (The other jurisdictions are Hungary 2011, Italy 2006, Macedonia 2010, Romania 2001, South Africa 1999, Suriname 2003 and the United States 1966.) The era of World Heritage controversy in Australia began in the late 1970s with the decision of the Australian Government to list a large part of Southwest Tasmania as World Heritage (now known as the Tasmanian Wilderness World Heritage Area). The area contains cultural heritage features – significant Aboriginal archaeological sites dating from 24,000 to 8,000 years ago, as well as natural features – including Tasmania’s last major wild river, which the state had earmarked for the building of a hydro-electric dam. As a result of the refusal of the Tasmanian Government to cease the construction of the dam, the Australian Government enacted special legislation, the World Heritage Properties Conservation Act 1983, with the specific intention of halting the development.The case, Commonwealth of Australia v the State of Tasmania, (1983), confirmed the constitutional validity of the special legislation, the High Court of Australia finding in favour of the Commonwealth by a majority of four to three. This case was followed by a number of other important disputes in other Australian states concerning World Heritage, in both the High Court and the Federal Court (see further, Boer 1992; Boer and Wiffen 2006, Chapter 3). In order to address the political conflicts concerning the environment, an Intergovernmental Agreement on the Environment was concluded in 1992. It identified specific responsibilities and interests regarding environment and heritage at each of the three levels of government, and noted that in relation to World Heritage, the states recognised that the Commonwealth has an international obligation under the Convention to ensure the identification, protection, conservation,

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presentation and transmission to future generations of Australia’s natural and cultural heritage of ‘outstanding universal value’ (see Australia 1992). Australia’s World Heritage policy was also the subject of a major parliamentary inquiry in the mid1990s, which resulted in a range of policy recommendations with respect to World Heritage management (Australia 1996). In 1999, the Australian Government enacted the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It includes detailed provisions on world cultural and natural heritage, which are classified as ‘matters of national environmental significance’. Any action that has or is likely to have a significant impact on World Heritage is subject to approvals by the Federal Minister for the Environment. Partly as a result of the introduction of the EPBC Act, the Australian Heritage Commission was disbanded in 2003 and replaced with the Australian Heritage Council (Australian Heritage Council Act 2003). The EPBC Act broadly retains the definitions used in the 1975 Australian Heritage Commission Act. It defines the heritage value of a place as including ‘the place’s natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians’ (s.528, EPBC Act). It is notable that the Australian Heritage Commission Act did not refer to the heritage of Australia’s Indigenous people at all; this was probably because Indigenous heritage issues did not attract much attention in the mid-1970s, even though the issue of Indigenous land rights was being actively discussed at the time, with the Aboriginal Land Rights (Northern Territory) Act being enacted in 1976. The EPBC Act contains comprehensive provisions on a range of aspects of Indigenous heritage issues. It defines ‘Indigenous heritage value’ of a place to mean ‘a heritage value of the place that is of significance to Indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history’ (s.528).The EPBC Act does not mention anything in relation to Indigenous rights in its provisions, although it is worth noting that s.8 states that the EPBC Act does not affect the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 or the Native Title Act 1993. A further aspect of World Heritage law in Australia is the effect of the comprehensive and legally enforceable World Heritage Management Principles that are set out in Schedule 5 of the Environment Protection and Biodiversity Conservation Regulations 2000 (no other jurisdiction includes such principles, except for South Africa’s World Heritage Convention Act 1999). An important part of these principles is recognition of the need to make special provision for the involvement in managing a World Heritage property of those who have a ‘particular interest’ in the property and who may be affected by the management of the property (10.01 and Annex 5). While not explicit, this provision would clearly include the interests of Indigenous people who are associated with World Heritage properties. This is reinforced in relation to the management of ‘National Heritage’ places under the EPBC Act and its Regulations (Regulation 10.01E and Annex 5B), which are equally applicable to World Heritage areas, as the latter are also National Heritage places. The regulation recognises that ‘Indigenous people are the primary

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source of information on the value of their heritage and the active participation of Indigenous people in identification, assessment and management is integral to the effective protection of Indigenous heritage values’. In addition, in relation to exploitation of biological resources, the Regulations provide for the exercise of the ‘native title’ rights and interests in ‘Commonwealth areas’ (which can include protected areas) controlled by the Australian Government (Regulation 8A.07 and 8A.2). Further, Regulation 12.06 exempts from criminal prosecution any activities carried out by a traditional owner of the land and which are traditional uses of the land; traditional owners may use or occupy the land, ‘whether or not the entitlement is qualified as to place, time, circumstance, purpose or permission, and is a traditional use of the land’. This is an important example of a ‘negative’ right; that is, the right not to be prosecuted for activities which would otherwise be criminal offences if carried out by persons who are not traditional owners. In 2008, the Australian Government established a World Heritage Advisory Committee, comprising representatives of each of Australia’s World Heritage properties and two representatives from the Australian World Heritage Indigenous Network. The Committee advises federal, state and territory governments on all issues relating to World Heritage. Its functions include the provision of ‘an Indigenous perspective on management of World Heritage properties and advice on how best to incorporate Indigenous traditional knowledge into management’ (see Terms of Reference, Australia 2016c). The Terms of Reference also state that the representatives from the World Heritage Indigenous Network ‘will provide advice to the Committee on Indigenous perspectives of management of Australia’s World Heritage properties, including engagement in policy, planning, programs and operational procedures (regardless of whether the properties are listed for Indigenous cultural values’ (Australia 2016c). There is, however, no indication of any particular rights being conferred on the Indigenous representatives. It is noted that the aims of the Australian World Heritage Indigenous Network, an informally constituted group, are, inter alia, to provide and promote ‘recognition of Indigenous rights and interests for Australian World Heritage properties and to foster culturally appropriate engagement of Indigenous people in the management of Australian World Heritage properties’ (Halliday et al., 2015). However, neither the Committee nor the Network can be considered as representing anything more than a weak rights-based approach.

Great Barrier Reef World Heritage In 1975, the Australian Government passed the Great Barrier Reef Marine Park Act, in order to manage the Great Barrier Reef in cooperation with the Government of Queensland. The main object of the Act ‘is to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region’ (s. 2A(1)). A further object is to assist in meeting Australia’s international responsibilities in relation to the environment and protection of world heritage (especially Australia’s responsibilities under the World

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Heritage Convention) (s.2A(2)(c)). The Act facilitates partnership with traditional owners in the management of marine resources (s.2A(3)(e)) and a collaborative approach to the management of the area with the Queensland government (s.2A(3) (f)). Further, with respect to zoning plans, the objects of that part of the Act include to ‘provide for the ecologically sustainable use of marine resources by traditional owners consistent with their traditional practices’ (s. 32(1)(f)). Since the late 1990s there has been a good deal of controversy concerning the impacts of development on the Reef and how it is managed (Great Barrier Reef Marine Park Authority 2017; Australian Government and Queensland Government, 2015). In recent times, there has been significant risk of the reef being placed on the List of World Heritage in Danger by the World Heritage Committee, primarily due to the threat posed to it by the development of a coal mine and associated port facilities near Abbot Point (Milman 2015; Hasham 2015; Slezak 2016; Markham et al. 2016). Given the link between climate change, rising ocean temperatures and coral bleaching (Great Barrier Reef Marine Park Authority 2017; Mathiesen 2016), the decision on the part of the Australian Government and the Queensland Government to approve the development of what is planned to become the largest coal mine in Australia and one of the largest in the world may put the Australian Government in breach of its international obligations under the World Heritage Convention, as well as placing it in a situation of international political difficulty in terms of its implementation of the 2015 Paris Agreement on Climate Change.

World Heritage areas and Indigenous joint management The majority of Australia’s World Heritage areas have strong connections with Australia’s Indigenous peoples.These connections are recognised to varying degrees in the nomination documents and/or in subsequent management plans for those areas. However, only four World Heritage areas are listed as mixed sites, recognising both their natural and Indigenous cultural characteristics (often designated as ‘cultural landscapes’ under the World Heritage Convention’s Operational Guidelines). These are Kakadu National Park and Uluṟu-Kata Tjuṯa National Park, both in the Northern Territory, the Tasmanian Wilderness in Tasmania and the Willandra Lakes region in New South Wales (UNESCO 2016a). Several of the Australian World Heritage areas are under the traditional ownership of Aboriginal groups, with a variety of management arrangements having been forged between the traditional owners and the relevant governments. It is suggested here that all of the Australian World Heritage areas that have strong Indigenous connections should be reviewed and, where appropriate, re-nominated as mixed sites. In general, joint Indigenous management concepts are increasingly accepted both within the World Heritage realm in Australia, as well as outside it. One well-known example is the Wet Tropics of Queensland World Heritage Area in Queensland, which is jointly managed by the government and the traditional Aboriginal owners. The Aboriginal rainforest culture of the area dates to at least 40,000 years ago (IUCN 1988, 4), and was ‘a leading justification for

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designation as a World Heritage site’ (Vrdoljak 2017). It was nominated before the category of cultural landscape was inserted into the Operational Guidelines in 1994, but, despite the expressed wishes of the local Aboriginal communities, the site has not yet been reconsidered for conversion to a cultural landscape listing (Australian National Periodic Report 2002, 8–9; see further, Vrdoljak 2017). The Australian Government works closely with the Queensland Government to administer the Wet Tropics Management Authority through a special agreement from 1990, the ‘Management Scheme Intergovernmental Agreement for the Wet Tropics of Queensland World Heritage Area’, which forms a schedule to the Wet Tropics World Heritage Protection and Management Act 1993 (Queensland). The federal legislation, the Wet Tropics of Queensland World Heritage Area Conservation Act 1994 (Cth), complements the Queensland legislation. Section 3 of the federal legislation sets out the Act’s object, which is to give effect to an agreement between the Commonwealth and Queensland ‘to facilitate the implementation of Australia’s international duty for the protection, conservation, presentation, rehabilitation and transmission to future generations of the Wet Tropics of Queensland World Heritage Area’. Importantly, this preamble focuses on the Aboriginal interests in the area by setting out the considerations taken into account by the Parliament of Australia in enacting the law. It recognises that ‘Aboriginal people have occupied, used, and enjoyed land in the Area since time immemorial’ and that the World Heritage Area ‘is part of the cultural landscape of Rainforest Aboriginal peoples and is important spiritually, socially, historically and culturally to [A]boriginal people particularly concerned with the land’. It states therefore that the Parliament intends ‘to recognise a role for Aboriginal peoples particularly concerned with land and waters in the Area, and give Aboriginal peoples a role to play in its management’. In addition, the Act provides that the Federal Minister must use his or her best endeavours … to ensure that any advisory committee established by the Authority under the Queensland Act includes among its members Aboriginal representatives who have appropriate knowledge of, and experience in, the protection of cultural and natural heritage. These provisions, while laudable, do not confer any particular rights on the traditional Indigenous owners who may be associated with the area; they are merely given a ‘role to play’ (see preamble above).

Examples of Indigenous rights and heritage There are many examples around Australia that illustrate the rights of Indigenous people to interact with, maintain and control their heritage. One well-known case concerns the Aṉangu, the traditional owners of Uluṟu-Kata Tjuṯa National Park in the centre of Australia. The park is jointly managed by the Aṉangu community and the national parks authority.The traditional owners are strongly opposed to tourists

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climbing the monolithic rock at Uluṟu or undertaking other culturally insensitive actions, as the site is of continuing religious importance. The Plan of Management states that ‘[f]or visitor safety, cultural, and environmental reasons the Director and the Board will work towards closure of the climb’ (Australia 2010, 92). While the Director of National Parks has power under the EPBC Regulations to stop the practice, this power has yet to be exercised, despite the expressed wishes of the traditional owners. This situation raises questions, not only regarding the extent of the Aṉangu people’s cultural rights, but also wider concerns about the meaning and benefits of the recognition of native title (if any) once Indigenous peoples’ land becomes part of a World Heritage site. A further example concerns Fraser Island, known to the local Aboriginal people as K’gari, which lies off the coast of Queensland. It has a history of Aboriginal settlement stretching back over 5,000 years (see also chapter by Lilley, Buckley and Kajlich in this volume). The island’s World Heritage values were discussed in the case of Schneiders v Queensland (Schneiders 2001) in the Federal Court of Australia. The Queensland Government had ordered the extermination of 30 dingoes (a native dog) after a young boy was killed by a dingo and his brother was seriously mauled. The plaintiffs included an Aboriginal Elder representing two Aboriginal communities, who sought an interim injunction, pursuant to the World Heritage provisions of the EPBC Act, to stop the dingo cull on the basis that it was likely to have a significant impact on the World Heritage values of the island. While the interim injunction application was unsuccessful, it is likely that the bringing of the case nevertheless played a part in curtailing the cull and prompting the Queensland Government to carry out a review (Environmental Defender’s Office 2001; see also McGrath 2001). This case is an example of the types of complex issues involved in the exercise of Indigenous rights with regard to participation, consultation and consent concerning World Heritage areas in Australia.

State level While all Australian states and territories have enacted heritage legislation, only some of them refer to World Heritage. Victoria’s Heritage Act 1995 (Part 3A) includes specific provisions to address the conservation of World Heritage. South Australia’s Heritage Act 1993 includes World Heritage within the contents of its heritage register (see s.14). New South Wales refers to World Heritage conservation in the National Parks and Wildlife Act 1974 (NSW), stating that the functions of the Chief Executive include the desirability of protecting world heritage properties and world heritage values’ (s.7). Queensland is the only state or territory to include legislation to address a specific World Heritage site: the Wet Tropics World Heritage Protection and Management Act 1993 mirrors the federal legislation previously mentioned. The legislation establishes the Wet Tropics World Heritage Authority and includes the Management Scheme Intergovernmental Agreement referred to above. The Act specifically recognises the right of the Aboriginal people to participate in

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decision-making with respect to the World Heritage area, defining, for the purposes of the Act, ‘Aboriginal people particularly concerned with land’ as those who are members of a group that has a particular connection with the land under Aboriginal tradition or if they live on or use the land or neighbouring land (s.5). However, there is no indication of the relevant group being able to withhold consent to any particular activity.

Conclusions The overall picture that emerges from the above analysis is that Australia represents a patchwork of rights-based approaches with regard to World Heritage. There is now greater awareness of the shortcomings in law and policy, partly as a result of the growing recognition of the importance of Aboriginal and Torres Strait Islander culture and heritage. A good deal of progress has been made since the 1970s, with opportunities for participation in decision-making and management structures beginning to be embedded in several jurisdictions. Unfortunately, however, in several significant instances the Australian Government has lost some of its credibility in recent years concerning World Heritage protection. It has not always made the fulfilment of all of its international obligations under the World Heritage Convention a priority; for example, its approval in 2016 of the coal development infrastructure affecting the Great Barrier Reef, despite widespread protests from the international and Australian communities, scientists and the wider public, and in the light of reports indicating that the reef is dying as a result of coral bleaching related to rising sea temperatures as an effect of climate change (Hughes et al. 2017). As indicated also, the incorporation of human rights in Australia’s World Heritage protection regime is generally not well developed. Achieving a satisfactory level of public participation in decision-making processes regarding heritage, including World Heritage, is a major challenge. In many cases, stakeholders are not sufficiently consulted and involved in the identification and management of their heritage.The EPBC Act barely includes any reference to rights with regard to World Heritage. At state and territory level also, a rights-based approach is not evident. Inconsistent legal approaches between Australian jurisdictions concerning Indigenous heritage demands further review (Boer and Wiffen 2006, Chapter 9), as significant shortcomings remain with regard to recognition of land rights, livelihood rights and rights to participation, consultation and consent, with decision-making power continuing to lie largely with governmental authorities. The aim should be to promote increased empowerment of Indigenous communities to ensure that they are involved in any decisions concerning their land and their tangible and intangible heritage.This would desirably combine the interests of governmental authorities in protecting the land and heritage on behalf of the broader Australian community with protecting the rights of Indigenous stakeholders to practice, maintain and enhance their culture, and to embed this approach in policy and legislation consistently across the juridical landscape.

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Finally, given the developments in increased recognition of Indigenous heritage in federal, state and territory legislation, Australia’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples with its inclusion of cultural heritage concerns and with over 170 states now being members of the Convention on the Safeguarding of the Intangible Heritage (UNESCO 2016b), there now seems very little reason why the Convention should not be ratified by the Australian Government. Otherwise, the danger is that the focus will largely stay on physical sites, without adequate involvement of stakeholders in safeguarding the intangible aspects of those sites. The promotion of corresponding cultural rights connected with those sites cannot be satisfactorily achieved under such circumstances, and without Australia’s ratification of the Convention, the protection of these often-linked heritages will remain incomplete. As indicated above, one of the shortcomings of human rights legislation in Australia is the absence of a Bill of Rights. While such an instrument should cover all Australian citizens, the fact is that despite many improvements in recent decades, there is still a significant gap between Indigenous and non-Indigenous members of the Australian community in relation to education, health and other social indicators. The complex legal, political and administrative relationships between the Australian Government and the governments of the states and territories make it necessary to make much more effort to ensure that all citizens have the opportunity to enjoy the same rights and the same levels of protection. This should not just be left to the courts, although they also have an important role to play. Clearly defined rights and corresponding duties in a Bill of Rights or similarly named instrument that encompasses the whole panoply of rights of Australian citizens would constitute a significant improvement of Australia’s legal system. Enhancing the Australian human rights framework and legally guaranteeing the right to participation by all relevant stakeholders under federal, state and territory heritage and environmental legislation would considerably contribute to the conservation and protection of all of Australia’s World Heritage sites, thereby more satisfactorily meeting Australia’s duties and obligations under the World Heritage Convention. Unfortunately, with some exceptions (several of which are noted in this chapter), the political will to achieve such reforms in the short term is not readily apparent.

References Cases Commonwealth of Australia v the State of Tasmania (1983) 158 CLR 157 (the Franklin Dam Case). Mabo v State of Queensland (No 2) (1992) 175 CLR 1. Schneiders v Queensland; John Dalungdalee Jones as Eldest of the Dalungbara People and Representative of the Ngulungbara People of Fraser Island, Queensland v The State of Queensland [2001] FCA 55.

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Books, book chapters, articles, reports, agreements and websites Aboriginal and Torres Strait Islander Social Justice Commissioner. 2016. Social Justice and Native Title Report 2016. Australian Human Rights Commission. Accessed December 10, 2016. www.humanrights.gov.au/sites/default/files/document/publication/AHRC_ SJNTR_2016.pdf. Australia. 1974. Report of the Committee of Inquiry into the National Estate. Canberra: Australian Government Printing Service. Australia. 1992. Intergovernmental Agreement on the Environment. Canberra: Australian Government Printing Service. Australia. 1996. Report of the Committee of Inquiry into the National Estate. Canberra: Australian Government Publishing Service. Australia. 2002. Australian National Periodic Report. Section II. Report on the State of Conservation of the Wet Tropics of Queensland. Accessed December 10, 2016. whc.unesco.org/archive/ periodicreporting/APA/cycle01/section2/486.pdf. Australia. 2006. House of Representatives Standing Committee on Environment and Heritage. Managing Australia’s World Heritage. Canberra: Australian Government Publishing Service. Australia. 2010. Uluṟu-Kata Tjuṯa National Park Management Plan 2010–2020. Canberra: Director of National Parks. Australia. 2016a. “Indigenous Protected Areas.” Department of Prime Minister and Cabinet. Accessed December 10, 2016. www.dpmc.gov.au/indigenous-affairs/environment/ indigenous-protected-areas-ipas. Australia. 2016b.“Indigenous Protected Areas.” Department of Environment and Energy.Accessed December 10, 2016. www.environment.gov.au/land/indigenous-protected-areas. Australia. 2016c. “Australian World Heritage Advisory Committee (AWHAC) Terms of Reference.” Department of Environment and Energy. Accessed December 10, 2016. www. environment.gov.au/system/files/pages/007a2763-b620-4c6d-9a43-3437da2e142b/ files/awhac-tor.pdf. Australian Bureau of Statistics. 2011. “Estimates of Aboriginal and Torres Strait Islander Australians, June, 2011.” Accessed February 26, 2017. www.abs.gov.au/ausstats/[email protected]/ mf/3238.0.55.001. Australian Government and Queensland Government. 2015. Reef 2050 Long-Term Sustainability Plan. Accessed December 10, 2016. www.environment.gov.au/system/ files/resources/d98b3e53-146b-4b9c-a84a-2a22454b9a83/files/reef-2050-long-termsustainability-plan.pdf. Australian Human Rights Commission. 2005. “Questions and Answers about Aboriginal & Torres Strait Islander Peoples.” Accessed December 10, 2016. www.humanrights.gov.au/ publications/questions-and-answers-about-aboriginal-torres-strait-islander-peoples#q1. Australian Human Rights Commission. 2008. “Submission to the Department of Environment, Water, Heritage and the Arts. Ratification of 2003 UNESCO, Convention for the Safeguarding of Intangible Cultural Heritage.”Accessed December 10, 2016. www. humanrights.gov.au/submission-ratification-2003-unesco-convention-safeguardingintangible-cultural-heritage-2008. Australian Human Rights Commission.2015.“NativeTitle.”Accessed December 10,2016.www. humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/ projects/native-title. Australian Human Rights and Equal Opportunity Commission. 1997. Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Canberra: Australian Government Printing Service.

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Australian National Museum. 2016. “Indigenous Australia Timeline – 1500 to 1900.” Accessed February 4, 2017. https://australianmuseum.net.au/indigenous-australiatimeline-1500-to-1900. Boer, Ben. 1988. “Through European Eyes Only? Symposium on ‘Not Digging up the Past’”, The Cambridge Review, 109 (2300): 5–9. Boer, Ben. 1992. “World heritage disputes in Australia,” Journal of Environmental Law and Litigation 7: 247–279. Boer, Ben. 2017. “Culture, Rights and the Post-2015 Development Agenda.” In Heritage, Culture and Rights: Challenging Legal Discourses, edited by Andreas Durbach and Lucas Lixinski. Oxford: Hart. Boer, Ben and Graeme Wiffen. 2006. Heritage Law in Australia. Melbourne: Oxford. Boer, Ben and Stefan Gruber. 2010. Legal Framework for Protected Areas. IUCN: Bonn. Accessed February 4, 2017. https://cmsdata.iucn.org/downloads/australia_1.pdf. Boer, Ben and Stefan Gruber. 2017. Heritage Conservation Law. In Local Government Planning and Environment NSW. Sydney: LexisNexis. Charlesworth, Hilary, Madelaine Chiam, Devika Hovell and George Williams. 2006. No Country is an Island: Australia and International Law. Sydney: UNSW Press. Commonwealth of Australia. 2017. Department of the Prime Minister and Cabinet. Closing the Gap Prime Minister’s Report 2017. https://closingthegap.pmc.gov.au/sites/default/ files/ctg-report-2017.pdf. Connolly, Isabelle. 2007. “Can the World Heritage Convention be Adequately Implemented in Australia without Australia Becoming a Party to the Intangible Heritage Convention?” Environment and Planning Law Journal 24 (3): 198–209. Debeljak, Julie. 2013. “Does Australia Need a Bill of Rights?” In Contemporary Perspectives on Human Rights Law in Australia, edited by Paula Gerber and Melissa Castan, 37–70. Sydney: Lawbook Co. Dias, A. ‘Garma: Indigenous leaders call for progress on constitutional referendum at final forum’. ABC News: http://www.abc.net.au/news/2017-08-07/garma-final-forumaddresses-need-for-progress-on-constitution/8781562 accessed August 21, 2017. Ekern, Stener, William Logan, Birgitte Sauge and Armund Sinding-Larse. 2015. World Heritage Management and Human Rights. London: Routledge. Environmental Defender’s Office, Queensland. 2001. “Fraser Island Dingo Case.” Accessed February 25, 2017. www.edoqld.org.au/cases/schneiders-v-queensland-government-fraserisland-dingo-case/. Gerber, P. and M. Castan (eds). 2013. Contemporary Perspectives on Human Rights Law in Australia. Sydney: Lawbook Co. Great Barrier Reef Marine Park Authority. 2017. “Final Report: 2016 Coral Bleaching Event on the Great Barrier Reef Commonwealth of Australia 2017, accessed August 21, 2017. Great Barrier Reef Region Strategic Assessment: Program Report. Accessed December 10, 2016. elibrary.gbrmpa.gov.au/jspui/bitstream/11017/2860/1/GBR%20Region%20SA_ Program%20Report_FINAL.pdf. Halliday, Allison, Hank Horton and Alastair Birtles. 2015. “The Role and Importance of the Australian World Heritage Indigenous Network (AWHIN) in Achieving Best Practice Management of World Heritage in Australia.” In Keeping the Outstanding Exceptional: The Future of World Heritage in Australia, edited by Penelope Figgis, Andrea Leverington, Richard, Mackay, Andrew Maclean and Peter Valentine, 158–163. Sydney: Australian Committee for IUCN. Accessed December 10, 2016. aciucn.org.au/wp-content/ uploads/2015/09/28_Halliday_Horton.pdf. Harrison, Rodney. 2015. Heritage: Critical Approaches. London: Routledge.

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Hasham, Nicole. 2015. “Government Spent at Least $400,000 Lobbying against Great Barrier Reef ‘Danger’ Listing.” Sydney Morning Herald. September 17. www.smh.com. au/federal-politics/political-news/government-spent-at-least-400000-lobbying-againstgreat-barrier-reef-danger-listing-20150914-gjlwr2.html. Holland, Christopher. 2016. Close the Gap: Progress and Priorities Report 2016. The Close the Gap Campaign Steering Committee. Accessed December 10, 2016. www.humanrights. gov.au/sites/default/files/document/publication/Progress_pr ior ities_report_ CTG_2016_0.pdf. Hughes, Terry P., James T. Kerry, Mariana Álvarez-Noriega, Jorge G. Álvarez-Romero, Kristen D. Anderson, Andrew H. Baird, Russell C. Babcock et al. 2017. “Global Warming and Recurrent Mass Bleaching of Corals.” Nature 543 (7645): 373–377. Accessed March 19, 2017. doi:10.1038/nature21707. Human Rights Consultation Committee. 2009. National Human Rights Consultation Report 2009. Accessed December 10, 2016. library.bsl.org.au/jspui/bitstream/1/1320/1/ NHRC_Report.pdf. Human Rights and Equal Opportunity Commission. 1997. Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islanders Children from their Families. Accessed December 10, 2016. www.humanrights.gov.au/sites/default/files/content/ pdf/social_justice/bringing_them_home_report.pdf. IUCN. 1988. World Heritage Nomination IUCN Summary, Wet Tropical Rainforests (NorthEast Australia). Accessed August 10, 2016. whc.unesco.org/archive/advisory_body_ evaluation/486.pdf. Logan, Bill. 2009. “Playing the Devil’s Advocate: Protecting Intangible Cultural Heritage and the Infringement of Human Rights.” Historic Environment 22 (3): 14–19. Accessed December 10, 2016. http://dro.deakin.edu.au/eserv/DU:30029882/loganplayingthedevils-2009.pdf. McGrath, Chris. 2001. “The Fraser Island Dingo Case,” Environmental and Planning Law Journal: 269–272. Markham, Adam et al. 2016. “Revealed: Report for UNESCO on the Great Barrier Reef that Australia Didn’t Want World to See.” Guardian. May 27. www.theguardian. com/environment/2016/may/27/revealed-the-report-on-the-great-barrier-reef-thataustralia-didnt-want-the-world-to-see. Mathiesen, Karl. 2016. “Climate Change Warnings for Coral Reef May Have Come to Pass, Scientists Say,” The Guardian (22 March), accessed 26 February 2017. www.theguardian. com/environment/2016/mar/22/climate-change-warnings-coral-reef-great-barrierreef-experts-projections-scientists. Milman, Oliver. 2015. “Great Barrier Reef Campaign: Scientists Call for Scrapping of Coal Projects,” Guardian (22 March), accessed 10 December 2016. www. theguardian.com/environment/2015/mar/23/great-barrier-reef-campaign-scientistscall-for-scrapping-of-coal-projects. National Archives of Australia. 1967. “Case for ‘Yes’ in the 1967 Referendum: Argument in Favour of the Proposed Constitution Alteration (Aboriginals) 1967.” Accessed February 5, 2017. vrroom.naa.gov.au/print/?ID=24248. Referendum Council. 2017. “Uluru Statement from the Heart.” www.referendumcouncil. org.au/event/uluru-statement-from-the-heart. Reynolds, Henry. 2003. The Law of the Land. 3rd ed. Camberwell,Vic: Penguin. Ross, H., C. Grant, C.J. Robinson, A. Izurieta, D. Smyth and P. Rist. 2009. “Co-management and Indigenous Protected Areas in Australia: Achievements and Ways Forward.” Australasian Journal of Environmental Management 16 (4): 242–252.

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Rudd, Kevin. 2008. Apology to Australia’s Indigenous Peoples. Australian Parliament. Accessed December 10, 2016. www.australia.gov.au/about-australia/our-country/our-people/ apology-to-australias-Indigenous-peoples. Silverman, Helaine and D. Fairchild Ruggles, eds. 2007. Cultural Heritage and Human Rights. Berlin: Springer. Slezak,Michael.2016.“Australia Scrubbed from UN Climate Change Report after Government Intervention.” Guardian (May 26). www.theguardian.com/environment/2016/may/27/ australia-scrubbed-from-un-climate-change-report-after-government-intervention. Smyth, Dermot, with Hanna Jaireth. 2012. “Shared Governance of Protected Areas: Recent Developments.” National Environmental Law Review 2012 (2): 55–63. Triggs, Gillian. 2015. “The Future of Human Rights in Australia.” Australian Human Rights Commission. Accessed December 10, 2016. www.humanrights.gov.au/news/speeches/ future-human-rights-australia. UNESCO. 2016a. Australia. http://whc.unesco.org/en/list/147. UNESCO. 2016b. Convention on the Safeguarding of the Intangible Heritage. Accessed December 10, 2016. http://www.unesco.org/culture/ich/en/states-parties-00024. UNESCO World Heritage Centre. 2014. World Heritage and Sustainable Development. WHC15/39.COM/5D. Accessed December 10, 2016. http://whc.unesco.org/archive/2015/ whc15-39com-5D-en.pdf. United Nations. 2015. Transforming our World: the 2030 Agenda for Sustainable Development. Accessed December 10, 2016. http://www.un.org/ga/search/view_doc.asp?symbol=A/ RES/70/1&Lang=E. Vrdoljak, Ana Filipa. 2017. “Indigenous Peoples, Human Rights and World Heritage.” International and Comparative Law Quarterly (forthcoming). Wahlquist, Calla. 2016.“Indigenous Stories, Songs and Dance Protected under NewVictorian Law.” Guardian. Accessed February 4, 2017. www.theguardian.com/australia-news/2016/ jul/19/indigenous-stories-songs-and-dance-protected-under-new-victorian-law.

13 THE WORLD HERITAGE CONVENTION AND HUMAN RIGHTS IN NEPAL A review of legal norms and practices Bipin Adhikari1

Introduction Nepal is a small landlocked country, rich in culture, scenery, people, flora and fauna. Sandwiched between two large countries, India and China, and covering a total area of 147,181 square kilometres, Nepal is often referred to as the ‘Roof of the World’, as it contains the Himalayan range and its highest peak, Mount Everest (also known as Sagarmatha). It is also home to over one hundred ethnic groups and their lifestyles, religions and cultures. This research examines the regulatory regime related to the natural and cultural heritage of Nepal and its human rights dimensions. On the one hand, there are instances where these regulatory regimes have, to a great extent, preserved and protected sites of enormous heritage value. On the other, these very regulations have sometimes curbed and curtailed the rights of pre-existing users and local people through their strict adherence to international and regional heritage commitments. This chapter also addresses the matter in the light of the new Constitution of Nepal enacted in September 2015. This chapter examines the nexus between World Heritage conservation and development from a human rights perspective. It has become increasingly apparent that due regard must be accorded to human rights, whilst sustaining a heritage conservation regime, balancing heritage, conservation, development and rights. This study discusses whether such a balance has been achieved in the Nepalese context and explores further steps to be taken.

The international legal framework Status and ratification of the World Heritage Convention In Nepal, four places have been designated as World Heritage sites since its ratification of the convention in 1978. Two are cultural sites – the Kathmandu Valley and

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Lumbini, the birthplace of Lord Buddha; and two are natural sites – Sagarmatha National Park (SNP) and Chitwan National Park. The Kathmandu Valley was inscribed on the World Heritage List in October 1979. The inscription covers seven so-called Monument Zones (three Kathmandu Valley city centres and four religious sites, two Buddhist and two Hindu) which collectively represent the highly developed and unique architectural expression of the religious, cultural and political life of the Kathmandu Valley (see also chapter by Tiwari et al. in this volume). In 1997, Lumbini, in southern Nepal, where Gautama Buddha was born in 623 BC, was inscribed on UNESCO’s List of World Heritage. This sacred area is one of the holiest places for Buddhists around the world, and it contains crucial evidence about the nature of Buddhist pilgrimage centres from a very early period. Sagarmatha National Park, inscribed in 1979, covers an area of 124,400 hectares in the Solukhumbu district of Nepal. Originally established in 1976 under the National Parks and Wildlife Conservation Act of 1973, its management falls directly under the Department of National Parks and Wildlife Conservation with the Ministry of Forests as the overarching authority. The park contains high mountains (seven peaks over 7000m), deep valleys, and is home to several rare species. The area is also home to more than 20 villages with an aggregate population of over 6000 inhabitants known as Sherpas (Brower 1991). These indigenous groups were historically reliant on subsistence agro-pastoralism, but as tourism and climbing developed into an industry in the country they have also become involved in related activities; they are most well-known as guides and porters for the various climbing expeditions. With their specific traditional practices of culture and Buddhism, they have inhabited these lands for centuries. Furthermore, reverence of all living beings and prohibitions on excessive slaughtering of wild animals are cultural practices among the Sherpas. These practices, combined with indigenous natural resource management traditions, have been major contributing factors to the successful conservation of the park. In 1984, Chitwan National Park, another natural heritage site, was inscribed on the World Heritage List. Situated in the Central Terai region of Nepal, it was originally established as a national park in 1973. It is one of the oldest parks in the country hosting the single-horned Asiatic rhinoceros and the Bengal tiger. The site is also famous for Balmiki Ashram, a Hindu pilgrimage site and indigenous Tharu communities with their rich cultural practices. Since 1975, the Nepalese Army has been deployed in the region to protect the site and control the encroachment and poaching of endangered species. In addition, the Chitwan National Park Regulation (1974) and the Buffer Zone Management Regulation (1996) aim to ensure the protection of natural resources, people’s participation in conservation and socio-economic benefits for the people.2 Prior to the establishment of democracy in 1951, most of Nepal’s cultural and natural heritage had yet to be exposed to the outside world. The exposure, when it came, had a profound effect, not least in terms of trade flows, infrastructure and tourism. Nepalese cities began importing concrete, and rapid modernisation

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brought a boom of Western-style concrete buildings which started to replace the older, more traditional ones (Hutt 1994). Western influence continued to increase from the 1950s to the 1990s and subsequent to the movement for further democratisation through multiparty democracy in 1990, a rise in foreign imports and rapid urbanisation started changing the traditional landscape into a modern ‘concrete jungle’ (Amātya 2007). Simultaneously, Nepal has also engaged further with international human rights and heritage standards.

Status and ratification of international human rights norms According to the National Human Rights Commission (NHRC), the principal national institution in this area, the guarantee of basic human rights to every citizen of Nepal is one of the primary features of the Nepalese political system. In essence, Nepal has domesticated human rights provisions in three ways: (1) by establishing them as fundamental rights under the Constitution; (2) by incorporating them in the state’s directive principles and policies, again set forth in the Constitution for the guidance of all state functionaries; and (3) by making laws, acts and policies. Since 1955, Nepal has been a member of the United Nations, and also a number of its specialised UN agencies. In 1961, it became a member of the World Bank and International Monetary Fund. As a member of the UN, Nepal has shown a strong commitment, at least on paper, towards its obligations, both national and international, to promote and protect human rights3 (see National Human Rights Commission Report 2007). Nepal’s NHRC was established in the spirit of the ‘Paris Principles’4 as an expression of the country’s concern for the protection and promotion of human rights. It came into being in the year 2000, three years after the enactment of the Human Rights Commission Act. The Commission has essential investigative powers and the power to make recommendations to the state and its functionaries to take remedial actions where human rights violations have been established. In such cases, the Commission performs by issuing recommendations to the state actors who are responsible for taking the actions specified therein.

The domestic legal framework The Constitution of 1990 domesticated a number of international human rights provisions as fundamental rights. It also enshrined provisions such as cultural and educational rights, rights to property, to religion and against exploitation as fundamental rights, with many others as directive principles. Equal rights of women were also mentioned as a fundamental right in the 1990 constitution, albeit in the frame of non-discrimination on the grounds of sex (amongst others). The new Constitution of Nepal of 20155 and the Human Rights Commission Act 1997 mandate the NHRC to review the implementation status of Nepal’s international human rights commitments. The Constitution also lists four fundamental

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duties of Nepali citizens.6 It is notable that the fourth duty of citizens is to protect and preserve public property. This rights regime, however, does not work in isolation. To begin with, the new Constitution highlights: Protecting and promoting social and cultural solidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethnic, multi-lingual, multi-religious, multi-cultural and diverse regional characteristics, resolving to build an egalitarian society founded on the proportional inclusive and participatory principles in order to ensure economic equality, prosperity and social justice, by eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste-based untouchability. (Const. 2015, Preamble) The right to life and culture is a fundamental right in the Constitution. Article 32 provides that ‘every person and community shall have the right to use their languages’. It also states that ‘[e]very person and community shall have the right to participate in the cultural life of their communities’ and ‘[e]very Nepalese community residing in Nepal shall have the right to preserve and promote its language, script, culture, cultural civilization and heritage’. It thus stresses both an individual and collective dimension of cultural rights. Article 51, relating to the state’s policies, establishes obligations geared towards ‘carrying out studies, research works, excavation and dissemination for the protection, promotion and development of ancient, archaeological and cultural heritages’ (Const. 2015, Art. 51 (c) (2)). Moreover, the state has shown a commitment towards ‘community development through enhancement of local public participation, by promoting and mobilizing the creativity of local communities in social, cultural and service-oriented works’ and ‘to focus on the development of arts, literature and music which form national heritages’ (Const. 2015, Art. 51 (c) (3–4)). This is further supplemented by policies in the environmental field, geared to ‘conserve, promote, and make sustainable use of, forests, wildlife, birds, vegetation and biodiversity, by mitigating possible risks to environment from industrial and physical development, while raising awareness of general public about environment cleanliness’ (Const. 2015, Art. 51 (g) (5)). Under its fundamental rights, in Article 30, the Constitution provides every citizen the right to live in a clean and healthy environment and the right to be compensated if harmed by a pollutant or degradation. Further, Article 30 (3) enables the state to make ‘necessary legal provisions for a proper balance between the environment and development, in development works of the nation’. The norms on participative democracy that will facilitate heritage management under the new Constitution include commitment to good governance through access to services and community development through the promotion of local participation, protection of indigenous property and cultural diversity (Const. 2015, Art. 51). The new Constitution has different institutions and structures to achieve

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the objective of participatory democracy such as: fundamental rights and duties; affirmative actions; social justice and due process of law; and the Directive Principles, Policies and Responsibilities of the State. It also provides for an elaborate system of local self-governance and proportional participation in the state structures.

Operational aspects of the rights-based approach and the importance of cultural rights Unlike economic and social rights, the notion of a ‘cultural right’ is a bit more complex to comprehend and implement. Universally acclaimed rights such as to take part in cultural life, enjoy the benefits of scientific progress, benefit from any scientific, literary or artistic production of which the beneficiary is the author, and the freedom to undertake scientific research and creative activity are all enshrined in the Universal Declaration of Human Rights.This adds to the notion that cultural rights from a rights-based perspective are equally as important as civil and political rights. In this regard, the close links between these aforementioned rights and, for instance, the right to education that could lead to creative participation in society, further highlights the indivisible nature of human rights and cultural rights in the overall enjoyment of human rights. The underlying principle of culture as capital of the accumulated material heritage of humankind, and of creativity as justifying a total way of life (see further Stavenhagen 2001) is thus essential to achieve the spirit of economic, social and cultural rights and world heritage conservation on the whole.The recognition of a rights-based approach towards promoting and protecting cultural rights is evident in the Nepali legal tradition, and Article 32 of the 2015 Constitution further validates the approach. One important aspect of cultural rights is the rights of indigenous people scattered in different provisions in the new Constitution along with the right of minority groups to preserve their cultural identity.7 Although the term ‘group’ is a word signifying more than one, these rights can also be exercised at an individual level if that particular individual is a minority, including a cultural minority. In a country like Nepal, the question of which group is a minority is as complicated as in the constitutional governance and politics of any other modern state. Constitutionally, ‘minorities’ means ethnic, linguistic and religious groups whose population is less than the percentage specified by the Federal law, and includes groups that have their distinct ethnic, religious or linguistic characteristics, aspirations to protect such features and subjected to discrimination and oppression. (Const. 2015, Art. 306 (1) (a)) The new Constitution provides a long list of fundamental rights which includes the right to equality, personal liberties and a number of civil rights. It also includes some crucial economic, social and cultural rights which are especially relevant to the Nepalese people at this moment in time (Const. 2015, Part-3). There is provision for affirmative action for historically prejudiced or disadvantaged communities

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among others, whereby the state has been given power to create special measures for various groups including women, Dalits,8 indigenous people and Madhesis9 (Art. 18(3)). The Constitution also specifically states that the right to proportional inclusion and participation in the state structures applies to all ethnic communities in the country.The rights of women, Dalits, indigenous people and minorities have also been secured through several other provisions, and these rights can be claimed at any of the District, High or Supreme courts as part of the right to remedy. Article 32 guarantees three interrelated rights. Firstly, every person and community has the right to use their language, participate in the cultural life of their communities and preserve and promote their language, script, culture, cultural civilization and heritage.This last may be exercised by and through educational institutions, and so the right to establish and maintain institutions of their choice may be taken as a necessary appendage of this particular right. Furthermore, under this article every community (of citizens or non-citizens) has the freedom to devise ways so that the founders of the community can mould an institution as they think fit in accordance with their ideas of how the interests of the community in general and the institution in particular will be served. The state may not discriminate between communities in the matter of these rights. National legislation in Nepal regarding the protection of tangible cultural heritage is primarily found in the Ancient Monument Preservation Act (1956) as amended. This Act seeks to emphasise the protection of heritage structures that can be classified as either ‘ancient’ or ‘archaeological’.10However, the Act limits itself to the preservation and protection of only those heritage structures found in Kathmandu Valley. This is predominantly due to the previous narrow view of the state and the mindset of former rulers.Therefore, the first and foremost challenge of heritage policy in Nepal is to expand the legal provision to regions outside of the centre. The expansion of such legislation will not only require a lot of administrative coordination but also rethinking heritage concepts and what might constitute adequate law enforcement nationwide. The current federal structure envisaged by the 2015 Constitution is a genuine opportunity to diversify the scope of conservation legislation.The change in attitude in regard to the need to incorporate such an approach is evident in the new Constitution.11 In terms of the nature and wildlife sector, the Wildlife Act was introduced in 1956, subsequent to which conservation programmes and policies on wildlife and natural sectors made massive strides, culminating in the promulgation of the National Parks and Wildlife Conservation Act in 1973. This has been documented by Heinen and Kattel, who state, ‘The development of conservation law in Nepal proceeded at a very rapid pace, from a rather humble beginning in 1957 to the enactment of a very comprehensive piece of legislation in 1973’ (Heinen and Kattel 1992, 729). Current legislation contains partial provisions for the incorporation of the stakeholders, including local inhabitants, in parts of the decision-making and management process (Chapagain 2008). This partial recognition of community rights and the enactment of empowering laws have created an atmosphere conducive to the idea of community participation

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and community-based protected area management in natural heritage conservation, and this concept has become a hallmark of the nature conservation regime in Nepal. Some analysts have noted that there are still tensions between indigenous rights and nature conservation policy, arguing that indigenous peoples’ land, religion and culture, and even food habits, have been affected (Roy and Henriksen 2010; Tauli-Corpuz 2016). It is possible that these problems may be solved once participatory decision-making become a reality (as explained below). It is quite evident that the legal provisions of any state on conservation and the heritage management regimes are intrinsically linked. In this regard, it is safe to assume that the contents of the legal provisions will have either a direct or indirect impact on the protection and management of heritage sites, both cultural and natural.The impact is not limited to just the sites in question but also to the stakeholders linked with the heritage/s. In a tourism-dependent country like Nepal, tourism regulations, for example, place a high emphasis on the knock-on effect they will have on national heritage and local development. The impact of co-ordinated and coherent tourism regulation varies depending on the motives for the means of conservation sought and the coordination mechanisms to acknowledge various overlapping issues needing to be addressed. Issues include the impact of central, provincial and local acts, and infrastructural regulations on the management of heritage sites. The enactment of the Local Self Governance Act (1999) under the 1990 Constitution provided a good indication of Nepal’s efforts to institutionalise a rights-based approach which was equally relevant for the heritage management process. The Act sought to: Institutionalize the process of development by enhancing the participation of all the people including the ethnic communities, indigenous people, and down-trodden as well as socially and economically backward groups in bringing out social equality in mobilizing and allocating means for the development of their own region and in the balanced and equal distribution of the fruits of development. (Preamble, Local Self Governance Act 1999) This Act is currently in the process of being revised and this serves as a good opportunity for it to fully comply with the division of powers in the context of three-tier federalism devised by the new Constitution.12 In addition, the current move to properly federate the provinces by dividing law-making and administrative roles and duties offers important opportunities and questions in relation to both natural and cultural heritage management.

Overview of clusters of rights particularly relevant to cultural/natural heritage The Constitution guarantees, as a fundamental right, the ‘right to a dignified life’. In terms of economic, social and cultural rights, the provisions guaranteed

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within the fundamental rights categories include the right to environment and health, education and culture – including free education up to the secondary level – language and culture, employment and social security, food and property. The Constitution and laws of Nepal recognise ‘indigenous people’, yet there is no single or uncontested ‘Nepalese’ or universally accepted definition of the term. This being said, given Nepal’s ratification of the International Labor Organization’s Convention 169 (1989) in 2007, its statement of coverage is applicable. Also, in line with international thinking, they are considered to be people who have a voluntary perpetuation of cultural distinctiveness, an experience of subjugation, marginalisation and dispossession, and who self-identify as indigenous peoples. Furthermore, they form non-dominant sectors of society. In theory, the rights of indigenous peoples include not only the most basic human rights of physical survival and integrity, but also the preservation of their land, language and religion, and other elements of cultural heritage that are a part of their existence as a people. The ILO Convention 169 should be read in conjunction with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Key rights provisions relate to land ownership; equality and freedom; and autonomy for decisions affecting indigenous peoples. Nepal has already demonstrated a strong commitment to implementing these rights by ratifying the ILO convention13 and also through specific Constitutional commitments such as: • • • • • • • •

Article 24 (the right against untouchability and discrimination) Article 26 (the right to religious freedom) Article 29 (the right against exploitation) Article 31 (the right relating to education) Article 32 (the right to language and culture) Article 40 (the rights of Dalits) Article 42 (the right to social justice, to proportional inclusion) Article 43 (the right to social security)

Article 18 of the Constitution14 on the right to equality and non-discrimination also covers indigenous peoples. The proviso to Article 18(3) guarantees non-discrimination by the state among citizens, and entitlements to special measures of protection by way of affirmative action. Although the Constitution does not have a separate Article concerning the right of indigenous peoples, these are guaranteed through several fundamental rights through constitutional provisions.15 Furthermore, many members of the Constituent Assembly – II, which adopted the new Constitution, considered that the rights of indigenous peoples are related to fundamental rights to equality, equal opportunity, inclusion and non-discrimination. The Preamble thus pledges to end all forms of discrimination and oppression created by the feudal, autocratic, centralised and unitary system of governance of the past. It embraces a multi-caste and

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multi-cultural approach and strives to create an egalitarian society on the basis of the principles of proportional inclusion and participation. In terms of fair hearing and participation, the 2015 Constitution provides room for ‘affirmative action’ (Const. 2015, Art. 42) with the provision of right to social justice for a host of vulnerable communities. This includes the right to participate in the state bodies on the basis of principle of proportional inclusion for: (1) economically, socially and educationally backward or marginalised women; (2) Dalits; (3) indigenous people; (4) Madhesi; (5) Tharu;16 (6) Muslim; (7) backward class; (8) minorities; (9) marginalised; (10) people with disabilities; (11) gender and sexual minorities; (12) farmers; (13) workers; (14) deprived or citizens of backward regions; and (15) economically poor Khas Arya. The Constitution also pledges free legal aid to the poor and indigent (Article 20 (10)); rights of women, including reproductive health (Article 30); equal rights of sons and daughters to ancestral property (Article 18 (5)); rights of children, including subsistence, basic health and social security (Article 39); protection against exploitation (Article 29); special legal measures for children who are impoverished, parentless or mentally retarded, or who are victims of conflict, displaced, vulnerable, street children, and the prohibition of child labour in vulnerable sectors;17 recruitment in army, police and for armed management. Similarly, the Constitution makes a staunch commitment to develop policies to address political, economic and social transformation through social reconstruction. The Constitution provides the right to justice and fair trial, highlighting the entitlement of every individual to receive a fair hearing from an impartial, independent and competent court or judicial authority. Furthermore, it grants respect to the languages of all communities spoken in Nepal, including the right of people to choose which language in which to interact with official processes at the local level. With respect to resources and property, the Constitution provides a right to property whereby, ‘every citizen shall, subject to law, have the right to acquire, own, sell, dispose, acquire business profits from, and otherwise deal with, property’ (Const. 2015 Art. 25). Further, it defines property as all types of movable and immovable property, including intellectual property. In addition, the Constitution restricts the state, unless in the public interest, from acquiring, requisitioning or creating any encumbrance on the property of any person and provides that the state must provide compensation to the landowner(s) if the property is requisitioned. Further, the Constitution, apart from declaring the state as secular, provides the right to religious freedom whereby every individual is entitled to be free to profess, practice and protect his/her religion according to his/her faith (Const. 2015 Art, 26). It also grants every religious denomination the right to manage and protect its religious places and religious trusts in accordance with law. In terms of social policy, the Constitution guarantees indigent citizens, incapacitated and helpless citizens, helpless single women, citizens with disabilities, children, citizens who cannot take care of themselves and citizens belonging to tribes on the verge of extinction the right to social security, in accordance with the law (Const. 2015 Art. 43).

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Remedies and jurisprudence The right to receive redress upon the infringement of constitutional guarantees is provided pursuant to Articles 133 and 144 in the course of implementation of rights.18 In addition to the ability to provide remedies in cases involving the infringement of any legal right, Article 133(2) confers jurisdiction on the Supreme Court to adjudicate any dispute of ‘public interest or concern’. This clause gives effect to what is known in contemporary American constitutional jurisprudence as, first, class action litigation and, second, public law litigation. Even prior to 1990, however, the Supreme Court was not totally unresponsive to this kind of litigation.19 One of the bigger tests of the Court’s powers under Article 88(2) since 1990 came in the Arun III case,20 in which it upheld objections to a proposal to build a multi-million dollar hydro-power project in the west of Nepal on the grounds that the negative environmental and social effects outweighed any positives. In the case of Balkrishna v. Prime Minister,21 in which the petitioner sought information about the proposed building of a dam by India on a water resource shared with Nepal, the court declared that the natural resources of a country are part of the nation’s wealth and are therefore the common property of all citizens of the country. Every citizen has a ‘meaningful relation’ with the economic development of his country and its environment and it cannot be improper if a citizen shows her curiosity about how, and what type of treaty, or agreement, or understanding, has been reached with a foreign country by his government regarding the exploitation of such resources. If the government agrees to undertake responsibilities under such a treaty, agreement or understanding, they are the responsibilities of the nation, not only of the concerned officials of the government, and the country as a whole is entitled to the profits or loss accruing from its favourable or adverse impacts. Every citizen thus has a right to resort to Article 88(2) by way of petition to seek information from the government on issues which involve the nation’s rights or responsibilities, and to obtain a remedy if anything is done in contravention of the Constitution.22 Other Supreme Court cases show how it has reacted to different challenges related to heritage under its jurisdiction under public interest litigation. In the Devghat Case,23 the court nullified the government decision to lease out forest land, part of which was a pilgrimage site for Hindus, to a medical college. The court based its decision on the government’s obligation to protect archaeological, religious and natural sites (Paudel 2012).24 In the Mayadevi Temple Case25 and Machendra Lal v. Ministry of Health,26 the court instructed government to refrain from activities that degrade sites of cultural and religious importance (i.e. altering their originality) in the name of development. In the two Ranipokhari Cases,27 the litigant sought to stop the construction of a police and other buildings adjacent to Ranipokhari, the site of an artificial pond and five temples, built in the seventeenth century. The litigant contested that the constructions adversely affected its conservation. Although it stopped short of instructing the government to halt construction, the court reminded the government of

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its environmental obligations. It also issued an order that the government should introduce a policy in line with the World Heritage Convention and monitor the effectiveness of existing urban planning legislation which had been enacted to regulate expansion of the city. As a result of this case, one building that obstructed the view of the pond was demolished, and the case may be considered a victory for peoples’ rights to enjoy their heritage. In the Ringroad Case,28 the petitioner complained that the local government was failing to control environmental pollution from Kathmandu City’s ring road and also leasing the green belt for parking. Despite losing the case, the local authority decided to cancel their leasing arrangement while the case was sub judice. In another case, the court ordered the Municipality and Department of Roads to preserve the environment while constructing roads, etc. In the two UN Park cases,29 the litigant claimed that the government’s plans to commemorate the UN’s 50th anniversary by building a park bearing its name on the north bank of the Bagmati River would not only be detrimental to the old heritage of Kathmandu, but the proposal to narrow the flow of the river would also have a negative impact on the river ecology. In the second case, the litigant claimed that the valley’s maternity hospital and the municipality of Kathmandu were discharging untreated waste into the Bagmati River and polluting it. The litigant requested and the court agreed to issue a writ of mandamus (an order from a superior court) to compel the government to take concrete steps to implement the Ancient Monument Preservation Act 1956 and generally comply with its duties and obligations regarding Nepal’s heritage and environment including, but not limited to, the installation of a sewage plant to treat waste before it was discharged. More generally, the government was instructed to consider cultural heritage and the religious and cultural rights of the people in its decisions. In the Chure Range Protection Case,30 the litigant asked the court to issue a writ of certiorari (an order from a higher to a lower court, tribunal or other public authority to supply records) to all government agencies and crusher industries involved in the excavation of sand and stones from riverbeds; the size of this industry (which supplies India as well as Nepal) and lack of regulation has led to large swathes of severe environmental degradation. This may potentially lead to a food crisis as the impacted areas border Nepal’s ‘bread-basket’ and the degradation could spread to it. Highlighting the importance of maintaining a favourable ecology for sustainable environment, the court ordered that activities leading to such environmental degradation would only be allowed in rare instances where the public interest is at stake. Even then, due diligence must be taken to ensure that the changes made would not cause rapid adverse impacts. In the case of Godawari Marble Industries,31 the Supreme Court opined that as much as industry was important to the country, so was peoples’ rights to live in a clean environment. Godawari Marble Industries’ factory was found to be emitting pollutants affecting both water and atmosphere and the Court directed that the Minerals Act (1985) should be enforced and new legislation designed specifically to protect the environment be written.

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The judiciary is gradually taking a more active role in the implementation of economic, social, and cultural rights. The above cases plus others such as that of Prakash Mani Sharma (obliging the government to provide for women’s reproductive health rights)32 are a testament to the Court’s willingness to direct the state to develop the necessary approaches and create a more satisfactory and conducive environment for the exercise of rights.

Major areas of conflicts with respect to rights In Nepal, constitutional attention has long been paid to the progressive achievement of economic, social and cultural rights as well as for minimum subsistence rights for all. However, despite these proclamations, the reality and jurisprudence is somewhat different. In the case of Madhav Basnet v Cabinet Secretariat,33 the Supreme Court was reluctant to impose a positive obligation on the state to arrange a sufficient amount of food for starving citizens, claiming that the state had done its best to provide adequate amounts of food for the locals. In doing so, the Supreme Court failed to address the grim reality of people living below the poverty line, and the drought-induced famine continued to wreak havoc (Sangroula 2013). Similarly, social justice provisions in the Constitution, particularly Article 42, have yet to be judicially interpreted by the Supreme Court. Even though this right has been entitled the ‘right to social justice’, it is, in fact, limited to the right to ‘inclusion’ or ‘proportional inclusion’ in the structures of the state.34 This provision, nonetheless, is expected to cater to the needs of indigenous people and minorities, among others, who have historically been deprived of proper opportunity for representation in the structures of the state for many reasons. One of the underlying causes of the decade-long armed conflict (1996–2006) was the failures of the socioeconomic and political governance system and lack of legitimacy of a state built by feudal lords based on the exclusion and marginalisation of women, Dalits, ethnic groups and inhabitants of certain regions (von Einsiedel, Malone and Pradhan 2012). The provision, however, does not state how that proportional inclusion is to be achieved. Nonetheless, it is supposed to ensure full proportional ‘participation’ in state bodies by all given groups and communities, so that they may share or influence decision-making regarding political, economic, management or other social decisions. This is arguably relevant for decisions regarding World Heritage. The new Constitution of Nepal offers a safe place for World Heritage policy with its fundamental guarantees, judicial remedies and other means of state enforcement. This model shapes the relationship among all three branches – executive, legislative and judicial – in order to make the state respect, protect and fulfil the ‘needs’ of people, including guaranteeing their rights in World Heritage practice. To implement the model in the heritage context, a number of challenges will need to be addressed. For example, the idea that natural World Heritage sites are unique areas of wilderness, undisturbed and untouched by man, can no longer be entertained: protected areas, both around the world and in Nepal, more often than not have people living in or around them who continue to utilise the sites in

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their daily lives and have a right to be involved in their governance (Oviedo and Puschkarsky 2012). In Nepal, much like other parts of the world, this may, on the one hand, include livelihood activities as collecting wood and plants, fishing and hunting. On the other hand, it entails engaging people and communities in site planning and management. Unfortunately for the local people involved, they, and their activities, are often seen as a danger to the preservation of the site, and there is little, if any, acknowledgement these traditional activities and governance institutions may have contributed to said preservation. Often new laws are introduced to either severely limit their interactions with or exclude them from their traditional lands entirely. Traditional knowledge, handed down from generation to generation, is also often ignored. Thus, there is a direct conflict between heritage and human rights, which can be exacerbated when a heritage site achieves World Heritage listing. Human rights violations documented in protected areas span forced displacement, lack of involvement to cruel, inhuman or degrading treatment or punishment, and arbitrary detention. In the Chitwan National Park, for example, park rangers and military officials whose job it was to protect the heritage of the park have been accused of human rights abuses including general mistreatment, arbitrary detention, sexual abuse (especially of Indigenous women) and prevention of the gathering of food, herbs and firewood from the park area, with its attendant effects on the people’s subsistence economies (Anaya 2009; see also discussion in Oviedo and Puschkarsky 2012). In other cases, for example, Sagarmatha National Park, innovative approaches to engage Indigenous communities in management through community conserved areas, even if poorly recognised by the formal system, are contributing to the realisation of their human rights (Stevens 2013). Such diversity is not unique to Nepal (see other chapters in this volume) and show the importance of balancing the rights of all concerned through a clear World Heritage framework. Policies written to protect heritage must be written in such a way that management activities do not infringe on rights, but on the contrary, support their realisation. Equally, rights policies must take into account the need to preserve heritage. All too often both sets of policies are written by ‘experts’ and officials wearing ‘narrow’ technical glasses with little to no input from those directly affected. In this sense, further dialogue between the heritage and human rights communities would be welcome. Despite overall advancements, some shortcomings in Nepal’s legal framework with respect to human rights and heritage maybe highlighted here. First and foremost, human rights are inherent, universal and indivisible. The constitutional provisions for fundamental rights do not fully cover the international principles of human rights. Although there is selective incorporation of human rights in the form of so-called fundamental rights, the repeated provisos such as ‘but’, ‘however’, ‘as per the laws’ and as ‘indicated by the law’ in the texts of different fundamental rights show that much depends on how parliamentary laws are enacted. Second, fundamental rights are not issues to be bargained with or for. Within the Constitution of a country where people are sovereign there should not be

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any authority to give or take away fundamental rights. The main concern of civil society is that the concept developed for the new constitution still does not fully address the concerns of the Aadibasi Janjatis (the non-Khas indigenous people), Dalits, women, persons with disability, Madhesis, Tharus, youths and marginalised people like the people of the Karnali region. The Constitution is also unclear about the needs of both individual rights and group rights and the approach in making distinctions between them. Although there is huge scope for mobilisation of their planned implementation in due course, how it will go ahead cannot yet be predicted. Third, there is a need to clarify the linkages between heritage and human rights legislative frameworks.

Conclusion In the 2015 Constitution, not only the civil and political rights, but also the economic, social and cultural rights, continue to be guaranteed. The people of Nepal hold a valid expectation that the new Constitution and the government will ‘respect, protect and fulfil’ the economic, social and cultural rights on an equal footing with civil and political rights. However, in terms of the justiciability of such rights and their implementation in the heritage field, they require laws to be enacted for their implementation. Today, many such laws are yet to be adopted, and in their absence the question of ‘implementation in accordance with laws’ remains in a vacuum. The creation of federal structures and the delineation of powers between the centre and the provinces is a positive aspect of the current Constitution and opens up for new mechanisms for dealing with heritage. This provides opportunities for local bodies to enact new conservation laws and regulations, keeping in mind the aspirations of local stakeholders and communities. In this paradigm, the concept of heritage management and the need for reforms also holds a special significance. In order to restructure existing Nepali conservation laws and policies, conservation approaches and policy within Nepal should start with questions. Whose heritage is it? For whom is it to be conserved? How and who should be responsible for its conservation? If the answers to all of these questions primarily revolve around the people of Nepal, the attitudes and policies of conservation should evolve accordingly and address their human rights concerns. As we do not live in isolation in this present era of globalisation, this also means engaging with global World Heritage frameworks. There is a need for appropriate recognition of the diverse values, goals, rights, responsibilities and means involved in World Heritage conservation, and policies should reflect the same. Such an approach is sustainable only if it is integrated with other national and local policies, including engagement with a wide range of local stakeholders, rather than being responsive solely to international heritage norms in isolation. Responding to Nepal’s diverse geographical and cultural contexts, the conservation policy in Nepal needs to take into account local cultural institutions, cultural

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practices and economic bases in developing a rights-based approach appropriate for the country. Earlier conservation schemes were undertaken solely at the behest of the monarch with little room for the participation of the locals in either the governance or the decision-making processes. A new trend emerged with the involvement of national and international non-governmental agencies. Organisations such as UNESCO started taking initiatives to revamp conservation mechanisms inherent in the state to incorporate a broader mandate for protection mechanisms, one that included multiple layers of stakeholders including the central government, administrative authorities, local bodies and local citizens.Within this phase, initiatives at the local and private levels geared towards the restoration, preservation and protection of heritage sites started emerging. This highlighted the significance of collaborative efforts at the local level in achieving effective results in conserving heritage sites. Numerous fund-raising programmes and cultural activities geared towards the protection of heritage sites initiated by local people have reaped dividends in facilitating the state’s obligations in terms of securing protection. National policies now need to better reflect and promote such initiatives as the hallmark of Nepali cultural practices, and they also need to acknowledge the locals, their rights and their contributions to the conservation regime. As of now, the national policy for conservation lacks a clear stand on local initiatives and rights. In most cases, the major participants of a heritage and heritage practice are the people who create, care for and carry forward the legacies of these heritages. In light of this, the role and rights of the local people in heritage management cannot be understated and needs to be considered. The new 2015 Constitution offers a basis to address this in further heritage policy making in the context of state policies and directives geared towards social and cultural transformation, making ‘community development by promoting local participation through the promotion and mobilization of creativity of local communities in social, cultural and charitable works’ a reality (Const. 2015 Art. 51 (c) (3)).

Notes 1 This analysis was conducted as part, and with support, of the research project on ‘Understanding Rights Practices in the World Heritage System: Lessons from the Asia– Pacific’, financed by the Swiss Network for International Studies. 2 The site descriptions above are all based on the information available on the UNESCO website: http://whc.unesco.org/en/list/. See bibliography for further individual references. In addition to efforts to implement the WHC, and the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, the UNESCO Office in Kathmandu places emphasis on the ratification of the 1954 Convention for the Protection of Cultural Property in the Event of an Armed Conflict.The translation into Nepali of this convention, its operational guidelines, and the related information kit has contributed greatly to an increased awareness of the need to protect cultural properties in the event of armed conflict and advocated for Nepal’s accession to this convention and its protocols. 3 Nepal is a party to most major international human rights instruments, such as Convention on the Elimination of All Forms of Discrimination Against Women

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4 5 6

7

8

9 10 11 12

13

14 15 16

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(CEDAW), Convention against Torture (CAT), Convention against Racial Discrimination (CERD), Convention on the Rights of the Child (CRC), International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR). Principles relating to the Status of National Institutions (the ‘Paris Principles’) adopted by the United Nations General Assembly Resolution 48/134 of 20 December 1993. The new Constitution, i.e. the Constitution of Nepal, 2015, was completed by the Second Constituent Assembly following the failure of the First Constituent Assembly, which worked for four years to produce a constitution in its mandated period. ‘Duties of citizens: Every citizen shall have the following duties: (a) to safeguard the nationality, sovereignty and integrity of Nepal, while being loyal to the nation, (b) to abide by the Constitution and law, (c) to render compulsory service as and when the State so requires, (d) to protect and preserve public property’ (Const. 2015 Art. 48). See, for example, Article 27 of the International Covenant on Civil and Political Right (ICCPR) and Article 30 of the Convention on the Rights of the Child (CRC). The rights of minorities have further been expanded by the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by General Assembly Resolution 47/135 of 18 December 1992. In addition, cultural rights are also referred to in numerous international instruments as well as in several UNESCO Conventions and recommendations. See the Declaration of the Principles of International Cultural Co-operation, proclaimed by the General Conference of UNESCO on 4 November 1966. Dalits are people from various castes considered ‘untouchable’ by the upper castes, who perceive anything Dalits touch as polluted and which then has to be ritually cleansed. Historically, Dalits have been widely discriminated against and existed at the very bottom of the socio-economic pile. Madhesi is a geographical marker term for the various peoples who live in the Terai/ Madhesh plains of Southern Nepal who have been under-represented in the country’s legal system. Article 2 (a) and (b), Ancient Monument Preservation Act 1956. Article 51 (c) (6) acknowledges the need to preserve and develop the language, texts, culture, literature, arts, motion pictures and property of different castes and communities, on the basis of equity, while also maintaining the country’s cultural diversity. Article 57 of the new Constitution enumerates the powers of the Federation in Schedule 5, the powers of the provinces in Schedule 6, their concurrent powers in Schedule 7, the powers of the local level in Schedule 8 and the concurrent powers of the Federation, Provinces and Local levels in Schedule 9. For the sake of clarity, Article 58 deals with residual powers. It states: ‘The Federation shall have power on any matter not enumerated in the Federal list, Provincial List, List of Local Level or Concurrent List or on any matter which is not so specified in this Constitution as to be exercised by any level’. The Legislative Parliament of Nepal approved the ratification of the Convention on Indigenous and Tribal Peoples (No.169) adopted by the ILO in 1989. Nepal thus became the first country in South Asia to ratify this Convention and the only second country in all of Asia to do so. The Articles mentioned below were enshrined in the Interim Constitution of Nepal, 2007. The new Constitution contains the same provisions relating to indigenous rights, albeit in different Articles. The Constitution also has a similar framework of guarantees for minorities. Tharus are indigenous inhabitants of Southern Nepal. In 1854, under Nepal’s first legal system, Tharus were classified as ‘enslavable’. Historically isolated and protected by a high incidence of malaria in their lands, an unintended effect of the disease’s eradication by WHO in the 1950s was a significant migration inwards, which exacerbated the number of Tharus being forced into a debt-bonded labour system (known as the Kamaiya system), which was only outlawed in 2000 (Kara 2012; Giri 2010).

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17

18

19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

34

‘No child having not attained the age of 14 years shall be engaged in works as a laborer’ (Child Labor (Prohibition and Regulation) Act, 2000).Vulnerable sector refers to Risky Business or Works under Schedule 1 of the Child Labor (Prohibition and Regulation Act 2000). Under Article 133, any Nepali citizen can register a petition at the Supreme Court to revoke any unjust restrictions on the fundamental rights envisaged by the Constitution or for any other reasons any law or its section that contradicts with this constitution, or any law drafted by the Provincial Assembly that contradicts with any law drafted by the Federal Parliament, or any law or its part thereof drafted by Municipal Assembly or Village Assembly that contradicts with the law drafted by Federal Parliament or Provincial Assembly, and accordingly the Supreme Court shall have the extra-ordinary power to declare any law, found to have contradicted accordingly, invalid and nullified from the commencement of such law or from the date of its decision. Radheshyam Adhikari v. Secretariat of the Council of Ministers and others, 33 NKP 810 (1991). Gopal Sivakoti v. Ministry of Finance and others, 36 NKP 256 2051 (1994). 1:11 S.Ct.Bull. 1 2049 (1992). Ibid., at 2 (para. 1). Yogi Narahari Nath v. Prime Minister, Decision of 4 May, 1996 (2053.1.17). The next seven cases discussed hereunder are cited again from this article. KashiDahal v. Nepal Government, Decision of 1996.11.8 (2053.7.21). Machendralal Kayastha v. Ministry of Health, Decision of 2001.6.26 (2057.3.9). Prakash Mani Sharma v. Nepal Government, Decision of 1997.6.14 (2054 2. 27). Bijendra Lal Joshi v. District Development Committee Kathmandu, Decision of 1996.6.13 (2055.2.26). Prakash Mani Sharma v. The Council of Ministers and Prakash Mani Sharma v. Ministry of Culture (both cases, Decision of 18 June, 1999 (2056.2.31). Narayan Prasad Devkota v. Prime Minister’s Office, Decision of 8 August, 2010 (2067.4.21). Pro Public v. Godavari Marble Industries Pvt. Ltd and Others, Decision of 16 April, 2015. Prakash Mani Sharma and Others v. Government of Nepal (2008) 8 NLR 956. People in the far western districts of Nepal were starving and had to migrate in their quest for food. Based on information reported in the media, a public interest case was filed by a lawyer against the government alleging violation of right to food, and so right to life of the people affected. See Advocate Madhav Basnet v. Cabinet Secretariat, WB 3341/055 (1998) in Narendra Pathak et al., Supreme Court on Constitutional Disputes (2000). This article guarantees ‘proportional inclusion’ or the inclusion on the basis of the size of the given group. Inclusion at its simplest is ‘the state of being included’. It is a term generally used by people with disabilities, for example, based on the idea that all people should freely, openly and without pity accommodate any person with a disability without restrictions or limitations of any kind. The right of proportional inclusion in Article 42 is to ensure that people feel they belong to the state, are engaged with it, and are as connected as others in the mainstream. Its aim is to embrace all deprived groups, identified above, whether they are ‘economically, socially or educationally backward’. The right to proportional inclusion by the state may ward off the dangers of social exclusion (or marginalisation). While exclusion leads to social disadvantages and relegates certain groups to the fringe of society, inclusion makes it possible for them to enjoy various rights, opportunities and resources normally available to others.

References Amātya, Sāphalya. 2007. Monument Conservation in Nepal: My Experience with the World Heritage Sites of Kathmandu Valley. Kathmandu:Vajra Publications.

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Anaya, James. 2009. Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. Addendum: Report on the Situation of Indigenous Peoples in Nepal. A/HRC/12/34/Add.3. Available at: http://www2.ohchr. org/english/bodies/hrcouncil/docs/12session/A-HRC-12-34-Add3_E.pdf. Brower, Barbara. 1991. “Crisis and Conservation in Sagarmatha National Park, Nepal.” Society & Natural Resources 4 (2): 151–163. Chapagain, Neel Kamal. 2008. “Heritage Conservation in Nepal: Policies, Stakeholders and Challenges.” Paper presented at the Third Annual Himalayan Policy Research Conference, October 16, 2008: Madison, WI (USA). Available at: www.researchgate. net/profile/Neel_Kamal_Chapagain/publication/33024204_Heritage_Conservation_ in_Nepal_Policies_Stakeholders_and_Challenges/links/57a086b508ae100d3809c156. pdf?origin=publication_list. von Einsiedel, Sebastian, David M. Malone and Suman Pradhan, eds. 2012. Nepal in Transition from People’s War to Fragile Peace. Cambridge: Cambridge University Press. Giri, Birendra R. 2010. “The Bonded Labor System in Nepal: Exploring Halia and Kamaiya Children’s Life-worlds.” Himalaya, the Journal of the Association for Nepal and Himalayan Studies 29 (1&2): 29–41. Heinen, Joel T., and Bijaya Kattel. 1992. “A Review of Conservation Legislation in Nepal: Past Progress and Future Needs.” Environmental Management 16 (6): 723–733. Hutt, Michael. 1994. Nepal: A Guide to the Art and Architecture of the Kathmandu Valley. Gartmore: Kiscadale Publications. Kara, Siddharth. 2012. Bonded Labor: Tackling the System of Slavery in South Asia. New York: Columbia University Press. National Human Rights Commission – Nepal. 2007. (In Nepali only.) Nepal. 1990. Constitution of Nepal 1990. Available at: http://www.nepaldemocracy.org/ documents/national_laws/constitution1990.htm. Nepal. 1999. Local Self Governance Act. Available at http://www.undp.org/content/dam/ nepal/docs/reports/governance/UNDP_NP_Local%20Self-Governance%20Act%20 1999,%20MoLJ,HMG.pdf; http://www.muannepal.org.np/resourcecentre_detail/localself-governance-act-2055-bs-1999.html. Nepal. 2015. Constitution of Nepal 2015 (official English translation by the Ministry of Law, Justice and Parliamentary Affairs of Nepal). Available at: http://www.constitutionnet. org/vl/item/constitution-nepal-2015-official-english-translation-ministry-law-justiceand-parliamentary. Oviedo, Gonzalo, and Tatjana Puschkarsky. 2012. “World Heritage and Rights-based Approaches to Nature Conservation.” International Journal of Heritage Studies 18 (3): 285–296. Pathak, Narendra, et al. 2000. Supreme Court on Constitutional Disputes. Kathmandu: Pairavi Publications. Paudel, Shiva Prasad. 2012. “Public Interest Litigation in Mountainous Ecosystem.” Paper presented at the South Asia Conference on Environmental Justice, Bhurban 24–25 March 2012 http://ajne2.itkeep.com/wp-content/uploads/2013/07/5a-Public-Interest-Litigationin-Mountainous-Conservation-Shiva-Prasad-Paudel.pdf. Roy, Raja Devasish and John B. Henriksen. 2010. Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal. Available at: http://natlex.ilo.ch/wcmsp5/groups/ public/---ed_norm/---normes/documents/publication/wcms_123847.pdf Sangroula, Geeta Pathak. 2013. “Breaking the Generation Theory of Human Rights: Mapping the Scope of Justiciability of Economic, Social and Cultural Rights with Special Reference to the Constitutional Guarantees in Nepal.” KSL Law Journal: 1–44.

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Stavenhagen, Rodolfo. 2001. “Cultural Rights: A Social Science Perspective.” In Economic, Social and Cultural Rights: A Universal Challenge, edited by Asbjørn Eide, C Krause and Alan Rosas, 85–110. Dordrecht: Martinus Nijhoff Publishers. Stevens, Stan. 2013. “National Parks and ICCAs in the High Himalayan Region of Nepal: Challenges and Opportunities.” Conservation and Society 11 (1): 29–45. Tauli-Corpuz, Victoria. 2016. Report of the Special Rapporteur of the Human Rights Council on the Rights of Indigenous Peoples. Document A/71/229. http://unsr.vtaulicorpuz.org/site/ images/docs/annual/2016-annual-ga-a-71-229-en.pdf.

14 WORLD HERITAGE AND HUMAN RIGHTS POLICY AND LEGISLATION IN THE PHILIPPINES Lucille Karen E. Malilong and Mary Grace Ellen S. Villanueva

Legal framework When each of the six World Heritage Sites in the Philippines were inscribed in the World Heritage List, there was (and still is) no specific Philippine law or policy governing World Heritage Sites. Lacking such, matters like budgets, incentives and rights and duties are not immediately clear, identifiable or accessible. Given this situation, World Heritage activities or guidance for site or environmental protection in the World Heritage context have been sought and based on the 1972 World Heritage Convention and recommendations from the Committee, the 1987 Philippine Constitution, presidential decrees or proclamations, statutes and regulations deemed relevant and applicable (such as the National Integrated Protected Areas System Act of 1992 (hereafter NIPAS), the Indigenous Peoples’ Rights Act of 1997 (hereafter IPRA), the Local Government Code of 1991, local laws or ordinances and site-specific management plans. The Philippines ratified the World Heritage Convention in August 1985 only a few months before Marcos’ government was overthrown through the 1986 People Power Revolution. Although the ratification went smoothly, little progress was made on the process or nomination of the sites subsequently inscribed on the World Heritage List. At this point in Philippine history, the priority was human rights and compensation for the wrongs committed against victims of the Martial Law of ex-president Marcos. The Philippine Commission on Human Rights, created through the 1987 Constitution, was given power to investigate rights violations and/or abuses, and its main focus was on civil and political rights violations including killings, torture, enforced disappearances, arbitrary detention and the like (see Cariño v Commission on Human Rights 1991; Simon v Commission on Human Rights 1994). However, even in the absence of a coherent World Heritage-specific legislation or policy, and the focus on redress of civil and

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political rights violations, the Philippines was able to have six sites inscribed on the World Heritage List. Some of these World Heritage Sites are also categorised under other national frameworks, such as cultural properties protection and preservation, tourism and environmental protection and protected areas management; for example, former President Marcos had declared the four Baroque Churches of the Philippines and the Rice Terraces of the Philippine Cordilleras as important cultural or historical properties (Presidential Decrees No. 260, 1973; No. 375, 1974). In 1975, worried about ‘a trend in the modernisation of certain parts of Vigan’, he proclaimed these areas as culturally or historically significant (Presidential Decree No. 756). In 1996, the Vigan Heritage Village Commission was created (Executive Order No. 358, 1996) to be in charge of the overall policy direction, coordination, management and implementation of the Vigan Heritage Village and Tourism Complex development efforts. The Commission’s membership included national government agencies, local government units and three private sector representatives.The Philippine Congress also passed a law in 2000 (Republic Act No. 8988), which recognised Vigan’s cityhood awarded by the King of Spain in 1757. Presidential executive orders also created the Ifugao Terraces Commission, later replaced by the Banaue Rice Terraces Task Force. These bodies were tasked to formulate short- and long-term plans for the restoration and preservation of the Ifugao Banaue Rice Terraces (Executive Order Nos. 158, 1994; Nos. 77 and 89, 1999). Meanwhile, the National Integrated Protected Areas System Act (1992) (NIPAS) (Republic Act No. 7586) was enacted in recognition of: the profound impact of man’s activities on all components of the natural environment particularly the effect of increasing population, resource exploitation and industrial advancement and recognizing the critical importance of protecting and maintaining the natural biological and physical diversities of the environment … to secure for the Filipino people of present and future generations the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas within the classification of national park as provided for in the Constitution. It [was further] recognized that … effective administration … is possible only through cooperation among national government, local government and concerned private organizations; that the use and enjoyment of these protected areas must be consistent with the principles of biological diversity and sustainable development. (NIPAS, Sec. 2) Pursuant to NIPAS, subsequent legislation and presidential orders established three Protected Areas which are also World Heritage Sites – the Puerto Princesa Subterranean River National Park (protected 1971/1999, WH 1999 (an expansion and renaming of the former protected St Paul Subterranean National Park)), the Tubbataha Reefs Natural Park (protected 1988,WH 1993) and the Mt Hamiguitan

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Range Wildlife Sanctuary (protected 2004, WH 2014). Unlike the Puerto Princesa National Park, which was established through presidential declaration, the Mt Hamiguitan Wildlife Sanctuary and the Tubbataha Reefs Natural Park were established as Protected Areas through law. The NIPAS process for these three Protected Areas proceeded independently of the World Heritage inscription process. Three of the six World Heritage Sites are located in indigenous peoples’ areas, namely, the Rice Terraces of the Philippine Cordilleras, the Puerto Princesa Underground River and the Mt Hamiguitan Wildlife Sanctuary (Ingel, Dürr and Beer 2016, 1).

Human rights in the Philippines Historically, the Philippines has had a strong framework for human rights protection. Having experienced colonisation, and also the ravages and brutalities of the Second World War, the Philippines has ratified almost1 all the core international Human Rights Instruments, including the United Nations Declaration on the Right to Development. The Philippines is also one of the founding member-states of the Association of South-East Asian Nations, which promulgated the 2012 ASEAN Human Rights Declaration recognising the right to development (para. 37). The realisation of human rights is the goal of all development efforts, said the Philippine Commission on Human Rights, which supports a rights-based approach to development and governance, and it is ‘through the observance of these rights standards that expanding choices and opportunities of the poor and vulnerable sectors of Philippine society could be realized under the development process’ (Commission on Human Rights of the Philippines 2004). The Constitution, the supreme law in the Philippines, has several provisions on human rights including a Bill of Rights, as well as provisions on heritage, the National Economy and Patrimony (Art. XII), and Arts and Culture (Art. XIV). Jurisprudence by the Philippine Supreme Court has furthermore determined that the national heritage or patrimony refers to both ‘[the Philippines’] rich natural resources’ and the ‘cultural heritage of the Filipinos’, which encompasses ‘intelligence in arts, sciences, and letters’ (Manila Prince Hotel v Government Service Insurance System 1997). The Social Justice and Human Rights article is considered the heart of the 1987 Constitution administration (Muñoz-Palma 1986). This article directs the national law-making body to give highest priority to enacting laws that will protect and enhance the right to dignity. The Philippine Congress is tasked to pass laws that will reduce social, economic and political inequalities and that will ‘remove cultural inequities by equitably diffusing wealth and political power for the common good’. To these ends, the state is duty-bound to regulate the acquisition, ownership, use and disposition of property (Art. XIII, sec. 1). While a ‘right to development’ is not expressed in the 1987 Philippine Constitution, the state is obliged to promote social justice in all phases of national development (Art. II, sec. 10); prioritise arts and culture to foster patriotism and

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nationalism, accelerate social progress and promote total human liberation and development (Art. II, sec. 17); and recognise and promote the rights of indigenous cultural communities within the framework of national unity and development (Art. II, sec. 22). In the World Heritage context, a deeper analysis of such rights is of utmost importance and relevance for the Philippines where about a quarter of its current population live in poverty (Philippine Statistics Authority 2016). Recently the Philippines made a pledge to the 2030 Sustainable Development Goals – a ‘universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity’, and for the first time a chapter on culture was incorporated in the 2017–2022 Philippine Development Plan. This offers opportunities for more rational, evidence-based decision-making and implementation support in the way government spends money on cultural heritage and links it to the right to development, but targets have not been set because of the absence of baseline data. The right to a ‘balanced and healthful ecology in accord with the rhythm and harmony of nature’ which must be protected and advanced is likewise recognised in the 1987 Constitution as a state policy (Art. II, sec. 16) and enjoys the same importance as civil and political rights, ‘for it concerns nothing less than self-preservation and self-perpetuation’. These rights (including the right to health) are basic and need not be written in the Constitution, for they are ‘assumed to exist from the inception of humankind’: they are made explicit and included in the Constitution as state policies to highlight their continuing importance and to impose upon the state a ‘solemn obligation’ to preserve, protect and advance them not only for the present generation but also for future ones (Oposa et al. v Factoran 1993). The rights to life, liberty and property, and that no person may be denied these rights without due process of law, or the equal protection of the law, are recognised (Art. III, sec. 1) as is the state’s obligation to compensate property owners should it take such for public use (Art. III, sec. 9). The rights of indigenous cultural communities to their ancestral domains are recognised in the 1987 Constitution (Art. XII, sec. 5) and by the Indigenous Peoples’ Rights Act (1997) (IPRA) (Republic Act No. 8371). The constitutionality and validity of this law was upheld in 2000 (Cruz v Secretary 2000).2 IPRA is considered a landmark law that gives proper recognition to the indigenous peoples’ rights to self-governance and to their ancestral domains (Bennagen n.d.). The indigenous concept of ownership that views land as inseparable from other natural resources, that ancestral domain is ‘private but community property’, that it ‘belongs to all generations’ and ‘therefore cannot be sold, disposed or destroyed’, is expressed in section 5, but this has yet to be tested in the Supreme Court in relation to World Heritage Sites. Despite the constitutional bases and the IPRA, in practice the state may be said to recognise only limited rights or not full ownership or full sovereignty by indigenous peoples over ancestral domains which overlap with areas that the state considers its or public property. As basis for state ownership, and indirectly as limitation to indigenous peoples’ ownership, the state refers to the provision in the 1987 Constitution which says that all lands of the public domain, including national

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parks (or protected areas), forests or timberlands, mineral lands, agricultural lands and other natural resources, are owned by the state, and only agricultural lands may be transferred or alienated and owned by individuals or other entities (Art. XII, secs. 2 and 3) (see also Cruz v. Secretary 2000 and La Bugal B’Laan Tribal Association, Inc. v. Secretary 2004).3 In lieu of a specific World Heritage law or policy, Section 58 of IPRA, the Revised Guidelines on Free and Prior Informed Consent and Related Processes of 2012 (or the 2012 Free and Prior Informed Consent Guidelines) (see National Commission on Indigenous Peoples4 Administrative Order No. 3, series of 2012) may be applicable to World Heritage context, together with NIPAS and the Local Government Code of 1991. First of all, IPRA suggests an idea of indigenous peoples’ concept of ownership: Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the [indigenous peoples’] private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights. (sec. 5) Ancestral domains or parts thereof that are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, protected areas, forest cover, reforestation as determined by appropriate agencies with the full participation of the [Indigenous Cultural Communities/ Indigenous Peoples] ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The rest of Section 58 of IPRA states that: The ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of government agencies. Should the ICCs/IPs decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the ICCs/IPs should be arrived at in accordance with its customary laws without prejudice to the basic requirements of existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the ICCs/IPs in accordance with a program for technology transfer: Provided, further,That no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent. The law places the primary responsibility for maintenance, development, protection and conservation over the area upon the indigenous community, and

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government agencies’ role is that of assistance, which must be ‘full and effective’. These lands, according to Section 58, may be ‘taken’ by the government by placing a limitation or burden on the communities’ relationship with the land, and/or on their activities (‘found to be necessary … as determined by appropriate agencies’). The section seems equivocal on indigenous peoples’ right of ownership over their ancestral domains as the provision only refers to a ‘responsibility over the area’ (emphasis added). This raises multiple questions in relation to the ownership, management and ‘responsibility of the area’ of the three World Heritage Sites overlapping with ancestral territories. Official recognition or attribution of ownership is more straightforward for other World Heritage Sites in the Philippines, specifically, the Historic City of Vigan (Nomination Dossier for the Historic Town of Vigan, n.d., 19), the Baroque Churches of the Philippines (Advisory Body Evaluation (ICOMOS), n.d., 95), and the Rice Terraces of the Philippine Cordilleras (Advisory Body Evaluation (ICOMOS), n.d., 50), which have all been likewise recognised by presidential decrees as National Cultural Treasures or National Historical Monuments, Landmarks or Shrines prior to the effectivity of IPRA. The 2012 Free and Prior Informed Consent Guidelines consider ‘declaration and management of protected and environmentally critical areas, and other related undertakings’ as among ‘extractive/intrusive/large scale activities’ that would need to go through the process for Free and Prior Informed Consent determination under section 22 (sec. 19). It also includes provisions concerning the Memorandum of Agreement (MoA) required to be written and signed by the parties if the community consents to a proposed project. The MoA is a particular area of concern, especially for indigenous communities or organisations, as it is a technical instrument with which they have had less experience compared to parties like corporate entities that propose operating projects within the ancestral domains. Relevant provisions in the 2012 Free and Prior Informed Consent Guidelines are long and detailed (secs. 31–33) but untested: as yet, no appropriate petition has reached the Philippine Supreme Court for resolution of issues including the implications and consequences in case of breach. The 2012 Guidelines also requires detailed benefits-sharing terms to be stipulated in the MoA (sec. 32 (a)). Moreover, part VIII of the Guidelines covers ‘Management of Royalties & Similar Benefits’. This section states that royalties are a social justice measure whose management must recognise, promote and protect intergenerational rights (sec. 58). Royalties are differentiated from damages; they must be used for programmes and projects for the well-being and benefit of the indigenous peoples (sec. 62). NIPAS, however, does not provide for benefit-sharing arrangements between or among stakeholders or parties involved. A trust fund, the Integrated Protected Area Fund, is established, but disbursements are solely for management activities. In some protected area management plans, however, items for capacity-building, livelihood alternatives and income-generating activities, among others, may be found.

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Many protected areas overlap to a large extent with ancestral domain claims of indigenous peoples recognised under IPRA. The procedure to establish a protected area under NIPAS is independent of ancestral domain recognition and titling under IPRA. Both laws have the same goal of protection of natural ecosystems, but their approaches to governance structures and rights differ, and although the Department of Environment and Natural Resources under NIPAS and the National Commission on Indigenous Peoples under IPRA have attempted to coordinate, fundamental incompatibilities remain (La Viña, Kho and Caleda 2010, 13). The latter include possible inconsistencies and contradictions in terms of regulations and management planning in relation to traditional uses and practices and their associated access, use and management rights.

Indigenous rights and World Heritage in the Mt Hamiguitan Range Wildlife Sanctuary The Mt Hamiguitan Range Wildlife Sanctuary, established as a protected area in 2004 under NIPAS, as an area with ancestral domains claims under IPRA and as a World Heritage Site listed in 2014, is a clear example of a site with intersecting and multiple characteristics under different frameworks. At times highlighted in terms of its use of Free Prior and Informed Consent procedures, the case particularly illustrates the complexities of adequately reflecting indigenous rights in agreement building. The law that established the Hamiguitan protected area, the Mt Hamiguitan Range Wildlife Sanctuary Act (2004) or Republic Act No. 9303, specifically referred to IPRA and stated that: ‘Ancestral lands and domain within the [protected area] shall be recognized and managed pursuant to [IPRA]’ (sec. 8). The 2012 Free and Prior Informed Consent Guidelines had been promulgated and was in effect at the time that the Mt Hamiguitan Range Wildlife Sanctuary was nominated for inscription in the World Heritage List. It is therefore clear that these laws and policy should have been applied and followed, but the nomination documents do not show full compliance. Initially, during the nomination process for Hamiguitan to the World Heritage List, the records of the Department of Environment and Natural Resources did not indicate any potential overlapping of the protected area property with ancestral domain claims from indigenous groups. There was better coordination between the Department of Environment and Natural Resources and the mining company, which contributed human and financial resources for delineating the protected area and the buffer zone (NDMtH n.d., 416, 425), and also offered some measures to mitigate the impacts of its mining activities on the Wildlife Sanctuary (NDMtH n.d., 422–423).5 Subsequent consultations with the National Commission on Indigenous Peoples confirmed overlaps with ancestral domain claims, the Philippine Eagle Sanctuary, a mining area claimed by a mining permit holder and the protected area itself (Nomination Dossier for Mt Hamiguitan (hereafter NDMtH) (n.d., 436).

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To demonstrate informed consent, IPRA and the 2012 Free and Prior Informed Consent Guidelines require the language and the process to be understandable to the community and, specifically, that the Memorandum of Agreement be written in the community’s own language and translated to English and/or Filipino (sec. 3 (g), Republic Act No. 8371; sec. 31, National Commission on Indigenous Peoples Administrative Order No. 3, series of 2012).The MoA attached to the Nomination Dossier is, however, only typewritten in English (NDMtH n.d., 459–464), although other documents, such as the community endorsement of the project, were written in the local language with an English translation (NDMtH n.d., 448–457). A clause in the MoA also states that the tribes ‘waive, relinquish and abandon’ claims over areas covered by the Hamiguitan Buffer Zone and ‘thus exclude the said areas in their application for [Certificate of Ancestral Domain Title]’ (NDMtH n.d., 461). This raises questions in relation to the application of the provisions of IPRA, including whether this relinquishment violates the legal recognition of indigenous peoples’ ownership of ancestral domains and the prohibition on conveyance of the ancestral domain to an entity other than a member of the tribe. A question also arises whether such a waiver of a seeming permanent character is in violation of section 58 of IPRA, which only allows a temporary transfer of responsibility over the protected area. Another clause in the MoA also binds the tribes to relinquish other areas, as yet unprotected (NDMtH n.d., 462).This appears to abbreviate the process for Free and Prior Informed Consent, and the tribes as represented by Indigenous Peoples’ Mandatory Representatives, who affixed their signatures to the document, in effect, may have agreed to abandon or waive their rights, for something that is not yet real, or is merely speculative. The MoA does not indicate that the concerned indigenous communities’ vision of, or for, development, or their Ancestral Domain Sustainable Development and Protection Plans, if any have been completed, have been considered in the World Heritage Site process. It does state, however, that the local government is obliged ‘to provide technical assistance and support to [the indigenous communities] in the preservation of their culture and in the pursuit of sustainable livelihood in the periphery of [Hamiguitan]’ (NDMtH n.d., 462). The provincial local government is also obliged to provide guidance and technical support in the preparation of the Ancestral Domain Sustainable Development and Protection Plan ‘especially in aligning such plan to the Provincial Development and Physical Framework Plan as well as in the Protected Area Management Plan’ (NDMtH n.d., 462). There are clauses on technical assistance and other pertinent support to the community, but a more detailed benefits-sharing arrangement as prescribed in the 2012 Free and Prior Informed Guidelines (secs. 32, 58–62) is missing. Despite the waiver of their ancestral domains claims, the indigenous communities expressly committed in the MoA to cooperate in the preservation and protection of the Hamiguitan World Heritage Site (NDMtH n.d., 461–462), including: monitoring the area, reporting and discouraging poaching of flora or fauna (but without any form of payment or benefit-sharing in return); restricting their activities in the peripheral area to those that support/are compatible with conservation;

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reporting their activities to the Protected Area Management Board or Provincial Governor; and agreeing that any future successful applications for Certificates of Ancestral Domain Title should be cognizant of possible effects on already protected areas. The MoA did not, however, set out the obligations of the Protected Area Management Board. That representatives from the national government sitting on the Hamiguitan Protected Area Management Board, particularly from the Department of Environment and Natural Resources, are not present as party-signatories to the MoA,6 nor any of its roles or responsibilities indicated, lead us to conclude that its role and obligations will be the minimum provided for in NIPAS and related regulations. Provisions in the MoA clearly setting forth the authorities, responsibilities, powers and benefits, among others, of the national government, in addition to those of the local government, would have facilitated and strengthened understanding among the various stakeholders, particularly about rights and duties. As such, the 1987 Constitution (together with various relevant laws) remains the basis for the state’s responsibility to fully control and supervise the exploration, development and use of natural resources (Art. XII, sec. 2), and further, to regulate the acquisition, ownership, use and disposition of property towards social justice and/or the promotion of the right to human dignity, the reduction of inequality and removal of cultural inequities by equitably diffusing wealth and political power for the common good (Art. XIII, sec. 1). The MoA between the Provincial Local Government Unit and the indigenous communities also indicates that it is signed by Indigenous Peoples Mandatory Representatives (IPMRs). IPMRs are representatives to the local law-making bodies called sanggunian in the Local Government Unit. Some indigenous leaders have expressed the view that the IPMR is an externally created position and as such is not necessarily the commonly acknowledged traditional or customary leader. Neither are IPMRs necessarily the community representatives mandated to represent the indigenous community/communities concerned in the process to determine Free and Prior Informed Consent. In 2010, the National Commission on Indigenous Peoples issued an administrative order on the mandatory representation of Indigenous Peoples in Local Legislative Councils pursuant to Section 16 of IPRA (National Commission on Indigenous Peoples Administrative Order No. 01, 2010). Attempts to implement this have somehow led to the practice, and the belief, that the IPMR sits in the sanggunian at the pleasure of the local political chief executive, and not as a true representative directly chosen by the indigenous community concerned. In other words, some existing or incumbent IPMRs are seen as representing the interests of state or political authorities and not the rights or interests of the indigenous peoples concerned. In the Hamiguitan Nomination Dossier for the World Heritage List, however, there is no indication that such questions were raised by the indigenous communities concerned regarding the IPMRs who affixed their signatures to the MoA entered into with the Provincial Government.

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Management bodies of natural World Heritage Sites, in theory, clarify the importance of participation in development and livelihood decisions. In practice, however, much work remains to be done to harmonise community development aspirations and rights, especially those of indigenous communities, and national and local government plans in the fields of heritage and development.

Revisiting policy Considering the current absence of a coherent World Heritage policy or law, and the high probability that a site in the Philippines may have intersecting or overlaying characteristics, clear mandates, authorities and duties of state, authorities are essential in World Heritage protection and management. The latest attempt at clarification of authorities, mandates and programmes and policies was made in 2012 through an administrative order7 jointly issued by the Department of Agrarian Reform, Department of Environment and Natural Resources, the Land Registration Authority and the National Commission on Indigenous Peoples (Joint DAR-DENR-LRA-NCIP Administrative Order No. 1, 2012). This joint administrative order affirms Section 56 of IPRA, which states that property rights within the ancestral domains already existing and/or vested upon the effectivity of IPRA shall be recognised and respected (sec. 10).8 For indigenous communities, Section 56 seems incompatible with the recognition by the Constitution and the same law of their ownership or rights to ancestral domains, and the prohibition on transferring the same or portions thereof to non-members of the community. Some indigenous representatives have long expressed puzzlement over the meaning of Section 56, but an appropriate and formal challenge has not reached the Philippine Supreme Court for a definitive and clear interpretation and resolution. The joint administrative order further espouses a policy of ‘exclusion/segregation’9 – which is to be made by the National Commission on Indigenous Peoples during the delineation and titling process for ancestral domain. Areas affected would be lands covered by court-issued titles, titles administratively issued by the Department of Environment and Natural Resources and the Department of Agrarian Reform (sec. 14), and portions of state resettlement areas and reservations (sec. 15). Instead of merely marking or indicating the various overlapping claims, the joint administrative order instructs the National Commission on Indigenous Peoples to exclude or segregate these lands from ancestral domains claims areas. According to reports from indigenous community representatives, this segregation policy has been applied not only to titled properties, but, also to resource-use permits like mining and plantations, compromising their right to their ancestral domains. They have complained that instead of expediting the process to secure rights to land, this joint administrative order has contributed to the further delay of Certificate of Ancestral Domain Title processing and registration (State of Indigenous Peoples Address 2014 and 2015). Moreover, resorting to the judiciary to resolve legal questions such as which government agency has jurisdiction or authority under law, is somewhat blocked by

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the joint administrative order’s creation of a national-level joint committee tasked to resolve jurisdictional, operational and policy issues elevated to it that affect the implementation of various laws, including the Comprehensive Agrarian Reform Law, IPRA, Public Land Act and Land Registration Act/Property Registration Decree in relation to the issuance and registration of Certificates of Ancestral Domain Title/Certificates of Ancestral Land Title (sec. 19). The joint administrative order also states that titling of contentious areas or those with overlapping claims shall remain suspended unless resolved by a body called the Joint Provincial/ Regional or National Committee (sec. 21). It is uncertain, however, if such committees have been convened. The policy suggests that the state views privileges to use natural resources as on a par with property rights or property ownership, and perhaps even more important than indigenous peoples’ rights to ancestral domain. In the World Heritage context, given this exclusion/segregation policy and based on community reports and past experience, it is likely that not only would a proposed resource extractive activity be prioritised over site protection or area conservation, whether through indigenous peoples’ claims,World Heritage nomination or Protected Area establishment, it is also possible that physical boundaries of protected areas would be changed to accommodate resource-use activity. Apart from NIPAS and IPRA, the Local Government Code of 1991 is also applicable to the World Heritage Site context; it requires ‘all national agencies and offices to conduct periodic consultations with appropriate local government units, non-government organizations and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions’ (sec. 2, (c)). In relation to this, Section 27 provides: No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided that occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. In a World Heritage context, the approval of not just one but several sanggunian or local legislative councils may need to be obtained because World Heritage Sites, especially those of the natural category, may span several Local Government Units, i.e., not just one province, probably more than one city or municipality, and definitely more than one barangay.10 In terms of benefit-sharing arrangements in the World Heritage context, the Local Government Units are entities distinct from the concerned indigenous communities, and other stakeholders. The Constitution states that Local Government Units shall be entitled to an equitable share in the proceeds of the utilisation and development of the national wealth within their respective areas and that they should share the same with the area’s inhabitants by way of direct benefits (Art. X, sec. 7).

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A lost opportunity? In 2013, the United States warship USS Guardian ran aground on the Tubbataha Reefs, a Protected Area and World Heritage Site due to an out of date map. Subsequently, a petition was filed with the Supreme Court claiming among other things that the grounding, salvage and post-salvage operations caused and continued to cause environmental damage of such magnitude as to affect 12 provinces in violation of the constitutional right to a balanced and healthful ecology of the petitioners and generations to come (see Arigo v Swift 2014). The opportunity to benefit from a judicial discussion on the principles relating to rights and heritage that could then have been applied to other World Heritage Sites in lieu of any extant specific World Heritage policy or law was lost when the Philippine Supreme Court dismissed the petition on procedural grounds. The Court deferred to the powers of the President and the government on matters of compensation and rehabilitation measures through diplomatic channels. A separate opinion by a Court Justice on the issue of representation and the character of the suit filed was unconvinced that the petitioners were the proper parties, whose rights or interests were similar to, or approximate those of, the future generations they alleged to represent in the petition.

Culture, human rights and heritage While the 1987 Constitution is not explicit that culture is a human right, it expressly recognises that the prioritisation of arts and culture promotes human freedoms and development (Art. II, sec. 17) and the ‘rights of indigenous cultural communities to preserve and develop the cultures, traditions, and institutions’ (Art. XIV, sec. 17). The Law Creating the National Commission for Culture and the Arts (1992) (Republic Act No. 7356) recognises that ‘[c]ulture is a manifestation of the freedom of belief and of expression and is a human right to be accorded due respect and allowed to flourish’ (sec. 2). When the National Cultural Heritage Act of 2009 (Republic Act No. 10066) was enacted, the intention was to strengthen protection and conservation of national cultural heritage. It also sought to fortify the National Commission for Culture and the Arts and other cultural agencies like the National Museum and the National Historical Commission of the Philippines. The National Commission for Culture and the Arts is the national agency created to promote Filipino culture and arts. An independent agency accountable to the President and Congress (Republic Act No. 7356, sec 8), it is authorised to coordinate, issue rules, formulate policy, administer the Endowment Fund for Culture and the Arts, generate resources including receiving donations from both private and public sectors, award grants and citations or prizes, advise the President, undertake any and all measures as may be necessary to implement the law and even regulate activities inimical to the preservation or conservation of national cultural heritage or properties (Republic Act No. 7356, sec 13). With either the National Museum or the National Historical Commission of the Philippines, the National Commission for Culture and the Arts has the duty to closely

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collaborate with the UNESCO National Commission of the Philippines to ensure the conservation and management of cultural and mixed World Heritage Sites (Republic Act No. 10066, sec 6), and together with the other cultural agencies, to implement the agreements and conventions adopted by UNESCO, which the Philippines has ratified or is in the process of ratifying. The UNESCO National Commission of the Philippines in turn acts as liaison between the cultural agencies and UNESCO, and assists national cultural agencies (Republic Act No. 10066, sec. 32). This National Cultural Heritage Act included World Heritage as one of the categories under ‘Cultural Property’ (sec. 4)11. The scope of the cultural property categories intended to be covered by the law12 and also the span of its objectives13 are wide. Important provisions on World Heritage Sites, however, are missing. Specific categories are mentioned in some provisions of the law, but not World Heritage Sites; as such there is still confusion as to whether such provisions apply to World Heritage Sites.The 2012 implementing rules and regulations of the National Cultural Heritage Act of 2009 attempted to fill in some gaps in the law, allowing the National Commission for Culture and the Arts to visit and monitor World Heritage Sites and ensure that they have a Conservation Management Plan in place, but other areas, including the selection or nomination procedure, monitoring and evaluation, mechanisms, and budgetary concerns remain unaddressed. Meanwhile, in addition to the state’s power of eminent domain or the power to take, or to authorise the taking of, private property for public use without the owner’s consent conditional upon just compensation, it also has police power, an inherent attribute of sovereignty, whereby it may take property, even without compensation to the owner, to protect public health, public safety, public morals and the general welfare. In the case of the four Baroque Churches World Heritage Sites, which are privately owned but have been declared National Cultural Treasures and/or National Historical Landmarks by presidential decree, there is a question of whether their declaration as such Sites or Cultural Property – which comes with certain responsibilities like compliance with legal standards for conservation, or legal requirements as regards conveyance or transfer – constitutes a regulatory taking of property for which the owners should be compensated. Also under the laws and implementing rules, the potential for conflicting decisions among government bodies is high. Under the Local Government Code of 1991, cities and municipalities have the power to issue zoning ordinances. This has implications for the rights of stakeholders who might have to deal with conflicting instructions from various agencies and Local Government Units. Some cultural World Heritage Sites such as the Paoay Church and the Santa Maria Church in the province of Ilocos Sur are both National Cultural Treasures and National Historical Landmarks. This means that the National Museum and the National Historical Commission of the Philippines both have jurisdiction over them. Multiple designations create overlapping responsibilities, but also complexities and uncertainties in terms of addressing rights issues. The National Cultural Heritage Act of 2009 also gives cultural agencies regulatory powers over World Heritage Sites and authority to issue Cease and Desist

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Orders and Compulsory Repair Orders. The apparent ambiguities in the law regarding the authority of the National Commission on Culture and the Arts to issue such Cease and Desist Orders to protect cultural properties, and whether World Heritage Sites are covered by such protection measures, are clarified in the 2013 Rule of the [National Commission for Culture and the Arts] on Pleading, Practice and Procedure in Heritage Cases. Clear legal bases or rules on authorities and jurisdiction are necessary to prevent violations of the right to due process, and the rights to life and property. Processes for protecting human rights to due process are embedded in the Bill of Rights in the 1987 Constitution and these rights could be asserted should any action by the state involving World Heritage Sites affect any party adversely. In summary, there are considerable uncertainties and overlapping legal provisions, creating confusion and uneven practice in terms of securing equitable World Heritage outcomes. At the same time, the Philippines has a remarkable body of legal standards and regulatory practice, which could be mobilised in future policy development.

Conclusions and recommendations A specific World Heritage Sites policy or law, indeed, may help clarify the situation and conditions for dealing with the rights dimension as well as consolidating the standards basis for the designation and management of sites recognised for their Outstanding Universal Value. Such a policy, in line with the recently adopted Sustainable Development policy for World Heritage, could provide a framework for clearly linking heritage values, human rights and development planning at multiple levels. Development plans not are not only national, but are also created by Local Government Units, indigenous communities or groups in ancestral domains and other bodies. There is an important space for all sectors to include heritage and rights issues more systematically. The current legal and policy frameworks on heritage and human rights offer important opportunities for better integration of rights-based heritage practices. Still, the association between heritage and human rights in the management of World Heritage Sites, and of cultural heritage in general, is not obvious yet. From conservation areas overlapping with ancestral domains to questionable consultation measures, agreement building or contradictory decisions, much work remains to deal with the specific complexities of rights in the World Heritage Sites of the Philippines. There is a need to address the management and protection of the Philippines’ World Heritage Sites in terms of both natural and cultural heritage. A specific World Heritage policy or legislation is needed since performing the state obligations under the Convention could mean additional burdens for communities, and for Local Government Units. This new policy should explicitly state that rights, specifically cultural rights, are the basis for equitable management and protection. It

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could even highlight specific policy measures known to be relevant, such as IPRA, especially its consent provisions given the overlap between ancestral territories in several World Heritage Sites. To ensure genuine participation of all stakeholders in planning, implementation, monitoring and evaluation of all programmes, projects and activities, spaces that facilitate rights-based participation, whether individually or as a group, should be created. This may include reinforced consultations at the barangay level as well as work with local arts and culture councils of the Local Government Units and national level heritage processes. Strong mechanisms must be created to ensure that these voices are heard and considered at the different levels involved. Participation of all relevant stakeholders must also be ensured from the initial stages, including as part of the nomination process for World Heritage Site, through to management and monitoring. A body to oversee the World Heritage Site process and specific concerns, and to coordinate agencies and Local Government Units, is also needed. This can be created through an Executive Order issued by the President. A policy guideline could further clarify authorities, responsibilities and coordination between and among the National Commission for Cultural and the Arts, cultural agencies and the UNESCO National Commission of the Philippines, including Local Government Units. The role of each national agency and Local Government Unit must be specified for better accountability. The rights-based approach may be incorporated as a safeguard measure in the system for implementing development plans.

Notes 1 The Philippines has also ratified the Rome Statute but not the convention concerning the protection of persons from enforced disappearances. In 2012, however, it passed a law that criminalises enforced or involuntary disappearances using the Convention’s definitions. 2 This is an important case as it upholds Section 5 of IPRA (the prohibition against destroying ancestral domain – and by extension the duty to protect and conserve), a legal provision that is often forgotten, ignored or de-prioritised. 3 In this case, the Court interpreted the relevant Constitutional provisions as allowing mining operations by foreign corporations. The plaintiffs, La Bugal-B’Laan Tribal Association, argued among other grounds that allowing such is essentially akin to giving non-state entities control or ownership over mineral lands, which is prohibited by the Constitution. In 2008, a new petition was filed, again challenging the Mining Act of 1995, but this has not yet been resolved by the Supreme Court. 4 The NCIP is the primary government agency created under IPRA to carry out its policies and is responsible for the formulation and implementation of policies, plans and programmes to promote and protect the rights and well-being of IPs, recognition of their ancestral domains and rights (sec. 38, RA 8371). 5 Similar considerations and measures pertaining to the adjacent Pujada Bay Protected Seascape, however, appear to be missing from the nomination documents although the Mt Hamiguitan Range lies at the centre of the Pujada Peninsula (NDMtH n.d., 22, 117, 418). Currently, there is no law or policy requiring perfect correspondence between a protected area established under NIPAS and a proposed World Heritage Site.

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6 The signatories to the MoA are the three (3) Indigenous People (sic) Mandatory Representatives, the Provincial Governor of the Province of Davao Oriental, the Provincial Officer of the National Commission on Indigenous People–Davao Oriental, and the Provincial Planning and Development Coordinator of the Provincial Government of Davao Oriental.The Parties to the Agreement are the three Indigenous Peoples Mandatory Representatives and the Provincial Governor (NDMtH n.d., 463–464). 7 Joint DAR-DENR-LRA-NCIP Administrative Order No. 01 (JAO 1) entitled Clarifying, Restating and Interfacing the Respective Jurisdictions, Policies, Programs and Projects of the Department of Agrarian Reform (DAR), Department of Environment and Natural Resources (DENR), Land Registration Authority (LRA) and the National Commission on Indigenous Peoples (NCIP) in Order to Address Jurisdiction and Operational Issues Between and Among the Agencies. 8 Section 10, JAO 1. 9 Sections 14 and 15, JAO 1. 10 A province is the largest Local Government Unit, usually composed of several municipalities and many barangays. The barangay is the basic political unit. 11 The categories for ‘Cultural Property’ are: (a) national cultural treasures, (b) important cultural property, (c) World Heritage Sites, (d) national historical shrine, (e) national historical monument, and (f) national historical landmark (sec. 4). 12 It includes tangible and intangible and movable and immovable cultural property as well as the categories specified in Sec. 4. 13 The purposes include protection and conservation of national cultural heritage, strengthening of the NCCA and other cultural agencies, and protection and ensuring the well-being and professional development of cultural workers.

References Constitution, Laws, Issuances Constitution of the Philippines, 1987. http://www.gov.ph/constitutions/1987-constitution/. Executive Order No. 77, 1999. http://www.chanrobles.com/executiveorders/1999/executive orderno77-1999.html#.WPxCslKB29s. Executive Order No. 89, 1999. http://www.gov.ph/downloads/1999/04apr/19990405EO-0089-JEE.pdf. Executive Order No. 158, 1994. http://www.lawphil.net/executive/execord/eo1994/ eo_158_1994.html. Executive Order No. 358, 1996. http://www.lawphil.net/executive/execord/eo1996/ eo_358_1996.html. Implementing Rules and Regulations of Republic Act No. 10066, 2012. http://www. wipo.int/edocs/lexdocs/laws/en/ph/ph141en.pdf and here: http://gwhs-stg02.i.gov/ ph/~s2nccagovph/wp-content/uploads/2015/04/IRR-Heritage-Law.pdf. Joint DAR-DENR-LRC-NCIP Administrative Order No. 1, 2012. http://ncipr1.com/ wp-content/uploads/2014/11/joint-dar-denr-lra-ncip-administrative-order-no-01series-of-2012-.pdf. National Commission on Indigenous Peoples Administrative Order No. 001, 2009. https:// ncip12.files.wordpress.com/2012/07/ncip-adm-ord-no-001.pdf. National Commission on Indigenous Peoples Administrative Order No. 3, 2012. https:// ncip12.files.wordpress.com/2012/07/the-revised-guidelines-on-free-and-priorinformed-consent-fpic-and-related-processes-of-2012.pdf. Presidential Decree No. 260, 1973. http://www.gov.ph/1973/08/01presidential-decreeno-260-s-1973/.

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Presidential Decree No. 374, 1974. http://www.gov.ph/1974/01/10/presidential-decree-no374-s-1974. Presidential Decree No. 375, 1974. http://www.gov.ph/1974/01/14/presidential-decree-no375-s-1974/. Presidential Decree No. 756, 1975. http://www.chanrobles.com/presidentialdecrees/ presidentialdecreeno756.html#.WSBks5LyteO. Proclamation No. 212, 1999. http://www.gov.ph/1999/11/12/proclamation-no212-s-1999/. Proclamation No. 385, 1971. http://www/gov.ph/1971/03/26/proclamation-no-835s-1971/. Republic Act No. 386, 1949. http://www.chanrobles.com/civilcodeofthephilippines1.htm. Republic Act No. 4368, 1965. http://www.chanrobles.com/republicacts/republicactno4368. html#.WSBk95LyteN. Republic Act No. 4846, 1966. http://www.chanrobles.com/republicacts/republicactno4846. html#.WSBlF5LyteN. Republic Act No. 7160, 1991. http://www.gov.ph/1991/10/10/republic-act-no-7160/. Republic Act No. 7356, 1992. http://ncca.gov.ph/republic-act-7356/#culture_ as_human_right. Republic Act No. 7586, 1992. http://www.gov.ph/1992/06/01/republic-act-no-7586/. Republic Act No. 8371, 1997. http://www.gov.ph/1997/10/29/republic-act-no-8371/. Republic Act No. 8988, 2000. http://www.chanrobles.com/republicactno8988.html#. WQGwsoERWEf. Republic Act No. 9303, 2004. http://www.gov.ph/2004/07/30/republic-act-no-9303/. Republic Act No. 10066, 2009. http://ncca.gov.ph/republic-act-no-10066/. Republic Act No. 10067, 2010. http://www.gov.ph/2010/04/06/republic-act-no-10067/. Republic Act No. 10629, 2013. http://www.gov.ph/2013/10/01/republic-act-no-10629/. Rule of the NCCA on Pleading, Practice and Procedure in Heritage Cases. http://www.gov. ph/2013/03/07/implementing-rules-and-regulations-of-republic-act-no-10066/.

Court Decisions Arigo et al. v Swift et al., September 16, 2014, G.R. No. 206510. Accessed April 27, 2017. http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/september 2014/206510.pdf. Cariño et al. v The Commission on Human Rights et al., December 2, 1991, G.R. No. 96681. Accessed April 27, 2017. http://lawphil.net/judjuris/juri1991/dec1991/gr_96681_1991. html. Cruz et al. v Secretary of Environment and Natural Resources et al., December 6, 2000, G.R. No. 135385. Accessed April 27, 2017. http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385.htm. La Bugal B’Laan Tribal Association, Inc. v. Secretary, December 1, 2004, G.R. No. 127882.Accessed April 27, 2017. http://sc.judiciary.gov.ph/jurisprudence/2004/dec2004/127882.htm. Manila Prince Hotel v Government Service Insurance System et al., February 3, 1997, G.R. No. 122156. Accessed April 27, 2017. http://sc.judiciary.gov.ph/jurisprudence/1997/ feb1997/122156.htm. Oposa et al. v Factoran, Jr., et al., July 30, 1993, G.R. No. 101083. Accessed April 27, 2017. http://www.lawphil.net/judjuris/juri1993/jul1993/gr_101083_1993.html. Simon, Jr., et al. v Commission on Human Rights et al., January 5, 1994, G.R. No. 100150.Accessed April 27, 2017. http://www.lawphil.net/judjuris/juri1994/jan1994/gr_100150_1994.html.

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Papers Bennagen, Pia C. n.d. The Indigenous Peoples’ Rights Act. Accessed March 27, 2017. https:// webcache.googleusercontent.com/search?q=cache:R4rwwGC_cYEJ:https://www.ids. ac.uk/ids/civsoc/final/philippines/phl10.doc+&cd=5&hl=en&ct=clnk&client=safari. Commission on Human Rights of the Philippines. 2004. On Applying the Rights-Based Approach to Development and Governance, Commission on Human Rights. Accessed March 27, 2017. http://www.chr.gov.ph/MAIN%20PAGES/about%20hr/advisories/abthr036040.htm. Ingel, Malot L. I., Sara Dürr and Bettina Beer. 2016. World Heritage in Philippine Ancestral Domains: Negotiating Rights through Indigenous Heritage. Accessed March 27, 2017. http:// projects.snis.ch/rights-world-heritage-system/files/2016/06/Philippines_RoundtableBrief.pdf. La Viña, Antonio G. M., James L. Kho and Mary Jean Caleda. 2010. Legal Framework for Protected Areas: Philippines. Accessed on March 27, 2017. http://cmsdata.iucn.org/ downloads/philippines.pdf.

Media releases Philippine Statistics Authority, 2016. Accessed April 17, 2017. https://psa.gov.ph/ poverty-press-releases.

Reports, Dossier, Plans Advisory Body Evaluation (ICOMOS) re Baroque Churches of the Philippines, n.d. Accessed April 17, 2017. http://whc.unesco.org/document/154012. Advisory Body Evaluation (ICOMOS) re Rice Terraces of the Philippine Cordilleras, n.d. Accessed April 17, 2017. http://whc.unesco.org/document/154107. National Commission for Culture and the Arts. 2003 Philippine Periodic Reporting for Well Planned Heritage Preservation. Accessed April 17, 2017. http://whc.unesco.org/archive/ periodicreporting/APA/cycle01/section1/ph.pdf. Nomination Dossier for Mt Hamiguitan Range Wildlife Sanctuary, n.d. Accessed March 18, 2017. http://whc.unesco.org/en/list/1403/documents/. Nomination Dossier for Historic Town of Vigan, n.d. Accessed April 17, 2017. http://whc.unesco. org/uploads/nominations/502rev.pdf. Philippine Development Plan (2017–2022). Accessed April 17, 2017. http://nlpdl.nlp.gov. ph:81/web/20170321/01/PDPCA_NLP-Marichu_Tellano.pdf.

Speeches Muñoz-Palma, Cecillia. 1986. Closing Remarks of the President of the Constitutional Commission at the Final Session. Accessed March 27, 2017. http://www.gov.ph/1986/10/15/closingremarks-of-the-president-of-the-constitutional-commission-at-the-final-sessionoctober-15-1986/.

Statements State of the Indigenous Peoples Address 2015. Accessed April 25, 2017. www.lrcksk.org/ single-post/2015/08/09/State-of-the-Indigenous-Peoples-Address-2015. State of the Indigenous Peoples Address 2014. Accessed April 25, 2017. http://www. mindanews.com/statements/2014/07/2014-state-of-the-indigenous-peoples-address/.

15 WORLD HERITAGE AND HUMAN RIGHTS POLICY IN VIETNAM A legal review Nguyen Linh Giang

A human rights-based approach towards World Heritage has become part of the legal discussion on an international level.Vietnam has eight World Heritage properties (five cultural, two natural and one mixed) that attract many visitors and bring in significant financial resources. Nevertheless, when it comes to Vietnam and its legislation in the field, the question of human rights is a completely new topic and many questions have yet to be answered: what impact does the classification of a site as world heritage have on the lives of those people living within or around it? Which factors have/have had a positive or negative effect on their lives? Do they consider the classification of their native area as part of the world’s heritage as a good opportunity to improve their lives? In terms of legislation, of course, every country has regulations pertaining to the management of its heritage sites. However, legislation often favours ‘management’ rather than ‘human rights’ factors when considering how to best conserve heritage sites. Do national regulations take into account the legitimate rights and interests of those people living within heritage sites, and if so, how? Do these regulations create favourable conditions or make it (more) difficult for people to exercise their basic rights? In particular, how are the rights of vulnerable groups, i.e. minorities, guaranteed? In Vietnam, human rights issues have been referred to in political language since the 1980s; the country attained UN membership in 1977 and signed two international covenants on human rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, in 1982. However, until the beginning of the twenty-first century and the process of international economic integration, human rights issues were solely discussed publicly within the realm of academic research. Although recently the ‘human rights-based approach’ trend has reached a much wider audience in the country, most national legislation was written before this: for example, the legal documents

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regarding the management of heritage sites in Vietnam were issued in November 1945, only months after the country’s declaration of independence.1 Thus, they reveal certain shortcomings when assessed through the lens of the human rightsbased approach. Since joining the World Heritage Convention in 1987, the legislative framework for heritage preservation in Vietnam has developed considerably. The Vietnamese Constitution (final version adopted in 2013) emphasises the essential value of culture for the nation’s citizens, and the State of Vietnam has issued many important regulations regarding state-managed cultural heritage in recent years. The most important legal instruments in this field are the 2001 Cultural Heritage Law2 and the 2014 Construction Law. In the natural heritage field, the Law on Land, Law on Environmental Protection, Law on Biodiversity, Law on Forest Protection and Development (the Forest Law) and various guiding instruments apply. This chapter analyses the legal framework ofVietnam, including the Constitution, laws and sub-law documents, such as Decrees and Decisions, related to the management of both cultural and natural heritage through the human rights basedapproach within four specific areas: fair hearing, participation and consultation; resources, property and land; development and livelihood; and ethnic minority rights.

Fair hearing, participation and consultation In accordance with the 2013 Constitution,Vietnamese citizens have the right to be presumed innocent; to a timely, equal and public trial; to defend themselves or to seek assistance in their defence from lawyers or other people; and to be entitled to damages in the case of wrongful arrest, prosecution, bringing to trial or sending to jail.3 Also according to the Constitution,Vietnamese citizens have the right to participate in discussion with and make recommendations to the state organs on issues of community, region and country.4 Nevertheless, the people’s participation is still limited as the law has not always foreseen and stipulated adequate mechanisms for the implementation of these rights – and the area of world heritage management is no exception to this.

Fair hearing Related to the right to a timely, equal and public trial, the 2001 Law on Cultural Heritage (revised and modified in 2009) stipulates that organisations and individuals have the right to lodge complaints or initiate lawsuits against violations of legislation on cultural heritage, whether administrative decisions or administrative acts of agencies, organisations and/or individuals competent to enforce the legislation on cultural heritage (for example, the Ministry of Culture, Sport and Tourism, People’s Committees at all levels (province, district, commune) and management boards of World Heritage sites). Similarly, the Law on Environmental Protection of 2014 also provides the right for organisations and individuals to file a complaint or lawsuit

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against any breach of environmental regulation. According to the 2004 Law on Forest Protection and Development, disputes over the rights to use forests of all kinds and/or the ownership rights of planted production forests shall be settled by the courts. Moreover, disputes over forest land and/or afforestation land (as opposed to the forest itself) shall be settled in court according to the provisions of land legislation.The Land Law of 2013 also contains regulations on land users’ rights to file a complaint or lawsuit against violations of their lawful land use rights as well as other violations of the law. The most noteworthy feature related to this group of rights is the regulation in Decision 126/QD-TTg of 2 February 2012, a pilot scheme on benefit-sharing in the management, protection and sustainable development of special-use forests5 in some national parks which ran from 2012–2015.6 Based on the principle of sharing benefits through voluntary agreements between the management boards and communities, the Decision contains special provisions related to dispute settlement. When disputes arise between communities, households, individuals and/ or the management boards of special-use forests, such conflicts shall be settled by the management council – which includes representatives from the management board of the forest, the community, forest protection unit and Commune People’s Committee – through reconciliation. The Decision allows dispute resolution and violation handling to take place outside the court system using community customs such as critics in the community (the violating party confesses the transgressions before the community and promises not to repeat them) or suspending the right to exploitation and benefit-sharing (the violating party loses the right to exploitation and benefit-sharing for a set period of time stipulated by management council). Thus, both the people’s right to access to justice and the community’s right to participate are respected. Overall, then, the Vietnamese people’s right to access to a trial in general, and that of the people living in and around World Heritage sites in particular, are guaranteed by the Constitution and laws. However, these provisions only ensure the right of access to justice; they do not guarantee the right to a fair trial. In order to have a fair trial, many other factors would also need to be guaranteed, such as the independence of the judges and the state’s commitment to anti-corruption; these are currently acknowledged as weaknesses in Vietnam’s judicial system.

Participation and consultation While the right to participation and consultation is recognised in the Vietnamese Constitution, it is not specifically stipulated in each law: for example, the 2001 Law on Cultural Heritage does not contain any regulation on the right of people and communities to participate in discussions and decision-making processes related to either the tangible or intangible heritage they own or preserve. Therefore, some of the provisions and decisions made by governmental management authorities regarding heritage issues are sometimes contrary to the addressees’ interests and fiercely opposed by them.

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PARTICIPATION AND CONSULTATION IN PHU GIAY Phu Giay (Vu Ban District, Nam Dinh Province) is a famous historical and cultural relic site in northern Vietnam. In early 2015, the People’s Committee of Vu Ban District – the site management authority – issued new regulations establishing a five-year term for the position of custodian of the site, who is the person in charge of relics, offering incense, organising religious ceremonies, and receiving and managing donations. Traditionally, this person is elected by the local people based on criteria such as moral excellence and significant contributions to the conservation and restoration of the site. Historically, this has been a lifetime appointment, assuming that the trust of the people is not lost. The local people submitted a petition with over 1,500 signatures opposing the district’s policy change to the Department of Heritage, which forwarded it to the Ministry of Culture, Sport and Tourism. After a period of discussion between the People’s Committee and the people, it was agreed that although the new management regulation would retain the article on the five-year term for the custodian of relics, the people would retain their right to select the custodian and the district authority would respect and not interfere in this process. Thus, although the new regulation was kept, in practice things went on as before. The aforementioned case shows that the regulations on management of heritage sites must respect the customs and beliefs of the local people: without the local community’s consent, new provisions will not be implemented in practice.

In order to implement the Law on Cultural Heritage, Decree 70/2012/ND-CP – on the competence and procedures for, and order of, elaboration and approval of master plans and projects on maintenance, repair and restoration of historicalcultural relics and scenic places – was adopted in 2012. Although it requires that the opinions of concerned organisations and individuals be sought before action is taken, it does not clearly define who these ‘concerned organisations and individuals’ are. Are they the experts, organisations and individuals engaged in the heritage site management or those who are living in, doing business or engaging in agriculture within or near the heritage areas? Despite this uncertainty, the aforementioned provision may be temporarily considered as a legal basis for the protection of citizens’ participation rights. Related to people’s participation, the Construction Law of 2014 regulates the responsibility of the People’s Committees, agencies or project owners to collect comments from individuals and communities on construction planning tasks and plans7 and the obligation of construction planning-managing agencies to provide information on construction. The People’s Committees at different levels organise

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the receipt and processing of requests and the provision of information upon request.8 However, despite these provisions for information sharing and the people’s participation, the Construction Law has been of little practical value: although comments are collected, they are not binding and it is rare that they actually affect the implementation of any given project. At the time of writing (2017), there is no mechanism through which the people can implement their right to access to information. The recently approved Law on Access to Information will create a mechanism for people to not only request information from state agencies, but also allow complaints and lawsuits against competent state agencies which violate the access to information law, but it is not due to come into effect until 1 July 2018. In the field of relics and heritage management, the role of the management board is very important. If the management board respects and listens to the popular or local opinion, the people’s right to participation and consultation will be respected. If, however, the management board decides not to listen to the people, there is very little, if anything, that the people can do. The management board of Hoi An Ancient Town is an excellent example of how the system should work.

THE CASE OF HOI AN Hoi An Ancient Town, designated a Cultural World Heritage site in 1999, is located in the central part of Vietnam. The town comprises a well-preserved complex of 1,107 timber frame buildings, with brick or wooden walls, which include architectural monuments, commercial and domestic vernacular structures, notably an open market and a ferry quay, and religious buildings such as pagodas and family cult houses.9 Hoi An was constructed between the fifteenth and nineteenth centuries, and by the late twentieth century many buildings had deteriorated and were in need of repair. Decree 15/2013/ND-CP of 6 February 2013, on the quality management of construction works and the repair or restoration of heritage sites, states that the house owner or management organ of the relic must send the repair document (a combined condition report and work application) to the Ministry of Construction for assessment before any works can take place. However, Decree 70/212/ND-CP10 requires the house owner or management organ to also send the same document to the Ministry of Culture, Sport and Tourism for approval. In order to restore a relic, the house owner or management organ has to obtain approval from three different bodies: the Department of Culture, Sport and Tourism (the local state management agency), the Ministry of Culture, Sport and Tourism (the central state management agency) and the Ministry of Construction. Consequently, it is not unusual for one or two years, if not longer, to elapse between application and restoration.

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The Centre of Conservation and Management of Hoi An Heritage recently (2015) took steps to authorise certain repairs outside of the process outlined above when people’s houses are at risk of further deterioration due to the effects of the rainy season. It should be noted, however, that any repairs thus sanctioned are limited in that they should not materially affect the character or structure of the building.11 This decision of Management Board of Hoi An respects and ensures the rights of people living in the heritage sites. Thus, it can be seen that the decisions and activities of heritage site management boards are very important and impact directly on people’s enjoyment of their rights.

In relation to natural heritage, the 2014 Law on Environmental Protection stipulates the publication of information regarding environmental impact and the results of investigations and inspections. Representatives of residential communities also have the right to take part in the evaluation of environmental protection measures. Decree 19/2015/ND-CP of 14 February 2015 details the implementation requirements of a number of articles of this law, such as the right to ask for information regarding the project’s environmental impact on residential communities. As such, the pertinent information should be made public periodically, at least once a year. This Decree also covers the consultation of and supervision by communities on environmental issues.The right to ask for information is also recognised in the 2013 Land Law. Although this law provides for access to information on land-related administrative procedures, the land information system and the land database, in practice people rarely access such information. Thus, ideally, how information is publicly disclosed and who is responsible for such disclosure should be clarified in order for people and enterprises to be able to make best use of it. The Law on Biodiversity ensures local people’s participation in the process of formulating and implementing biodiversity conservation planning. Decree 65/2010/ND-CP12 also stipulates that households and individuals lawfully living in conservation zones have the right to receive priority in employment in and management of conservation zones. Thus, the right to participation in the decision-making process affecting people living in conservation zones is also guaranteed. Although the Law on Forest Protection and Development of 2004, Decree 23/2006/ND-CP13 and Decree 117/2010/ND-CP14 have no provisions on rights to participation or consultation of people, Decision 126/QD-TTg15 recognises the right of communities, households and individuals to participate in, implement agreements with and make recommendations to the forest management boards. However, as mentioned above, this was a ‘pilot decision’ and the Vietnamese Government has not yet indicated whether it will replicate this model throughout the country. So, although this Decision is beneficial, it is not known whether it will be applicable in the future. In recent years, the Vietnamese Government approved Decree 168/2016/ND-CP, dated 27 December 2016, the ‘Contracted forest, garden and area surface water in

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management board of special use forest, protection forest and agriculture, forestry state single-member limited liability company’, which came into effect on 15 February 2017. This Decree stipulates the right to participation of individuals, households and communities in discussions on duration, quotas and prices of contracted (i.e. leased) forests (but not the land itself), and the benefit-sharing arrangements. However, the regulation on rights to participation and benefit-sharing in this Decree is not specific, and in comparison with Decision 126/QD-TTg is less detailed; for example, the issues related to the right to participation in management activities are not mentioned. After several months of implementation, the Decree has also had social impacts and it is estimated that it has led to an increase in income for people. But the Decree still has many shortcomings. The regulation on land allocation for local residents, on the one hand, creates better conditions for local people to access forest land but the other hand creates unresolved disputes as it do not create a mechanism to compensate for those who are excluded from the Decree. These people were previously contracted in the forest area; after the Decree came into effect, they were not allowed to continue but were not compensated. This Decree hat not yet developed a capacity-building mechanism for ethnic groups and poor households. Despite their priority, these households are not sufficiently qualified to implement their rights. This situation increases the risk of forest fires and improper use of land16. Recommendations are being made by experts. Up to now, the Decree has been implemented for 6 months so it cannot be assessed comprehensively; in practice, however the recognition of people’s right to participation and benefit-sharing is an improvement in comparison to previous texts. Although Hoi An is considered by experts to be a typical example of where the participation rights of people in heritage sites in Vietnam are respected, the participation of the local population has largely been of a passive nature.They mainly participate as beneficiaries and have limited control over the decision-making process (Pham 2016, 282). Usually, the local population is invited to a meeting with government officials, where they can discuss and give their opinions of issues related to them.This means that people are consulted only when the state authorities organise these meetings. Also, their opinion is used only for reference, and is not binding in the process of decision-making. Generally speaking, all relevant laws recognise the individual’s right to file a complaint or a lawsuit. However, they do not guarantee a fair hearing. The laws recognise the people’s right to access information as well as the state’s obligation to provide information. In fact, the Vietnamese people’s right to access information is still limited because the Law on Access to Information has only recently been approved and will not come into force until 1 July 2018. Laws related to heritage management in general do not provide any participation rights.

Resources, property and land rights This is an important group of rights as they relate directly to the livelihoods of people living in and around the heritage sites. This group of rights is expressed in

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Vietnamese laws by provisions relating to property rights, land users and ownership of forests.

Cultural heritage Ownership rights over cultural heritage sites are recognised by the provisions of the Civil Code and the Law on Cultural Heritage. Overall, the state protects the lawful rights and interests of cultural heritage owners. Vietnamese law does not have separate regulations on customary property rights. but they are mentioned in the definition of multiple ownership by communities which is recognised in the Civil Codes of 200517 and 2015.18 According to these codes, multiple ownership by a community means ownership of property by a family line, hamlet, village, tribal village, mountainous hamlet, ethnic hamlet, religious community or other community. This kind of ownership is formed in accordance with customary practice, jointly contributed to and donated by the members of the community or given to the whole community. Multiple ownership of property is also recognised in other lawful sources for the purpose of satisfying the common lawful interests of the entire community. Thus, customary property rights are recognised in Vietnamese law in the form of multiple ownership by the community and, in the field of heritage, the customary property rights of the community are understood as the ownership of relics or cultural monuments (whether listed as World Heritage or not). According to the Law on Cultural Heritage, the state exercises unified management over cultural heritage, which is seen as under the entire population’s ownership; it recognises and protects forms of collective ownership, joint ownership of the community, private ownership and other forms of ownership of cultural heritage according to the provisions of law. According to the 2014 Law on Housing, the state recognises and protects the property rights of homeowners. The default position is that any houses lawfully owned by organisations, households or individuals shall not be nationalised: only in cases of vital necessity for national defence and security purposes; socio-economic development for national or public benefit, or state of war, emergency or disaster, may the state decide to purchase, commandeer or demolish housing under lawful ownership. In such cases, the state must pay compensation and relocate the affected homeowners. Thus, in theory, the property rights of people living in World Heritage sites such as Hoi An, Trang An and Hue are protected by law. However, in practice, these rights to compensation and relocation of people in heritage sites are not always guaranteed. The main reason for this issue is that state compensation for houses is usually much lower than market price. This is why the Hue Citadel conservation and repair project, begun in 2011, is still unfinished after years of implementation: because of the inadequate amounts of compensation offered, the majority of households in the strict protection area of Hue Citadel refuse to move.

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Natural heritage The Law on Forest Protection and Development classifies forests into one of three kinds: protection, special-use, or production (see Table 15.1). This Law represents the view that the state controls forests and land and distinguishes between ownership of different kinds of forests. Protection, special-use and natural production forests are under state ownership; ownership rights of households or individuals are limited to planted production forests.The law, furthermore, does not provide for communal ownership of any of the three categories of forest. However, village communities whose customs, practices and traditions of close community association with (any) forests in their ‘living production’, life, culture and beliefs have the right to use and manage the following: forests which they are managing or using efficiently; forests which hold water sources in direct service of the communities or other shared communal interests and cannot be assigned to organisations, households or individuals; forests which lie in the areas adjoining villages, communes or districts and cannot be assigned to organisations, households or individuals and must be assigned to village population communities for the sake of the communal interests. This regulation also allows minority groups in the Phong Nha Ke Bang World Heritage site the right to use and manage forests where they have lived for a long time. Forests in World Natural Heritage sites are managed under the special-use forest provision, i.e. they are under the ownership of the entire population, represented and uniformly managed by the state. The state then appoints management boards or organisations to manage and use them; in practice, the management board is considered the owner and it has full authority to manage, protect and implement activities in the forest. Special-use forests are divided into three zones: strictly protected, ecological restoration and buffer zones. The law does not allow people to live in strictly protected zones, although they may live in either of the other two. The management board is responsible for instigating projects for population relocation and resettlement from the strictly protected zones, but at least in one case of an established minority village within the core protected zone the boundaries of the zone were redrawn: the village is now officially considered an ‘inner buffer zone’ and eligible for short-term package contracts for forest protection. Ecological restoration zones are assigned to local households and individuals on the basis of package contracts for protection and development. With regard to the buffer zones, the People’s Committees at all levels may assign or lease the forest to organisations, households and individuals for use according to forest management regulation. Thus, in World Natural Heritage sites, communities, households and individuals do not have ownership of the forests associated with customs and their lives, but rather limited rights to use and exploit the forest: for example, the exploitation of dead or fallen trees and non-timber forest plants is allowed, whereas the hunting, catching and trapping of forest animals is not. Vietnamese land law differs considerably from accepted global views of property rights, i.e. it does not recognise individual ownership of land. From the perspective of

Used mainly to protect water sources and land, prevent erosion and desertification, restrict natural calamities and regulate climate, thus contributing to environmental protection. They include: headwater protection forests; wind- and sand-shielding protection forests; protection forests for tide shielding and sea encroachment prevention; and protection forests for environmental protection. Used mainly for: conservation of nature, specimens of the national forest ecosystems and forest biological gene sources; for scientific research; protection of historical and cultural relics as well as landscapes; in service of recreation and tourism in combination with protection, contributing to environmental protection, including: national parks; nature conservation zones, including nature reserves and species-habitat conservation zones; landscape protection areas, including forests of historical or cultural relics as well as scenic landscapes; scientific research and experiment forests. There are three differently regulated zones: strictly protected; ecological, restoration zone; and buffer zone. Used mainly for production and trading of timber and non-timber forest products in combination with protection, contributing to environmental protection, including: natural production forests; planted production forests; seeding forests, including the selected and recognised planted forests and natural forests.

Protection

Production

Special use forest (includes all WH sites)

Definition

Type of forest

TABLE 15.1 Forest classifications and uses

Natural forests: entire population ownership. Planted forests: entire population ownership, household and individual ownership.

Entire population ownership

Entire population ownership with the state acting as the owner’s representative

Ownership

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socialist ideologies, the Vietnamese State considers land as an important means of production that should not be under private ownership. Thus, no Vietnamese citizen has the right to own land, only to lease it from the state; the law states that ‘Land belongs to the entire people with the State acting as the owner’s representative and uniformly managing land. The State shall hand over land use rights to land users in accordance with this Law’19. Not having the right to own the land where they live and farm, people can be resettled through unilateral decisions of the government, a potential human rights violation. Related to this group of rights are various shortcomings regarding land/ forest acquisition by the state. According to the law, the state prescribes the principles to be used in land/forest valuation which are used as the basis for the provincial or district level People’s Committees to set and adjust local compensation offers. However, the biggest shortcoming in land/forest acquisition policy is that the People’s Committees do not make public the criteria they use to determine these locally adjusted prices: in other words, the basis for determining the price is not clear. In fact, state compensation rates are much lower than market rates, resulting in considerable losses to individuals, and this has led to a series of complaints in recent years.20 Hue Citadel, mentioned above, is a case in point.

The renovation of Hue Citadel planned for 2010–2015 is still uncompleted because the state and the people have yet to agree on the amount of compensation for people living in the heritage site. The market price for 1m2 of land is VND10 million, while the state is only offering VND3.9 million. Consequently, many people have refused to move and the project has stalled.21

Development and livelihood rights The rights to development and livelihood are a special group of rights related to people living within and around heritage sites. When their living area becomes a World Heritage site, do their lives and livelihoods improve or worsen? This also relates to benefit-sharing of tourism between government, enterprises and citizens. This group of rights is partly expressed through the provisions relating to the right to labour, business rights and the right to exploit resources specified in the relevant laws.

Cultural heritage Generally, the Law on Cultural Heritage and relevant Decrees set out the basic principles of activities of preservation, repair and restoration of relics. However, the main aim of these texts is to ensure the national strategy and objectives of socioeconomic development; national defence and security development planning are

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followed. There is no reference to the rights of people living in heritage sites or to the stability and development of people’s living standards within the heritage planning process.

Natural heritage According to the Law on Forest Protection and Development and its Decrees, both households and individuals have the right to use and exploit production forests and enjoy their added value.Village population communities have the right to exploit and make use of production forests and other forest yields for communal purposes and community members’ domestic use. Furthermore, they are also entitled to enjoy the fruit of their labour and investment results from their assigned forest areas and to be provided with technical guidance and capital support according to the state’s policies. Special-use forests, as mentioned above, are strictly controlled; individuals, households and communities have only very limited rights to use and exploit the forest and they are not allowed to hunt, catch or trap any forest animals. In some cases, however, when there is disjuncture between land use rights and forest ownership and disputes arise, the Land Law is also consulted by the courts. The Land Law grants land users the rights to enjoy the results of their labour and investment in land; to receive the state’s guidance and assistance on the improvement and fertilisation of agricultural land; to be protected by the state against others’ infringements of their lawful rights and benefits involving land; exercise the rights to exchange, transfer, lease, sublease, inherit, donate, mortgage land use rights and to contribute land use rights as capital. In Natural Heritage sites, which are operated under special-use forest provisions, people only have the right to use the land where they live or where they have received an assignment or lease from a state authority. In forests managed under conservation zone regulations (not necessarily special-use forests, as the state and individual provinces may designate other areas to be accorded such status), in theory, according to the Law on Biodiversity and its decrees, households and individuals have the right to lawfully exploit natural resources; to participate in and benefit from business and service activities; and to enjoy policies on incentives.With regard to governmental policies on the conservation and sustainable development of biodiversity, the Law stipulates that the state should develop ecotourism in association with hunger eradication and poverty alleviation, ensuring stable livelihoods for households and individuals lawfully living within conservation zones. Solutions for stabilising the livelihoods of households and individuals lawfully living in conservation zones is an important element of the national masterplan on biodiversity conservation. Thus, this law aims to improve livelihoods and also encompasses the right to work and to benefit from commercial and exploitation activities in conservation zones. However, in practice these regulations are not applicable in the case of special-use forests such as the World Natural Heritage site, Phong Nha Ke Bang. The strict regulations on forest protection preclude local people’s right to exploit natural resources.

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Although the previously mentioned pilot project on benefit-sharing in specialuse forests (the aim of which was to create the legal framework for benefit-sharing policies, rights and obligations of the management board of special-use forests with local communities) ended in 2015, the Vietnamese Government has not yet indicated whether it will replicate this model in other regions. If it is deemed successful, it will help to improve the livelihoods of people living in other forest areas. Decree 168/2016/ND-CP, dated 27 December 2016, on ‘contracted [i.e. leased] forest, garden and area surface water by the management boards of special use and protection forests and agriculture, forestry state single-member limited liability company, right to livelihood’ is also interesting. According to this Decree, forest management boards/companies have to make public information about contracted forests and share any benefits accrued with the local people. Individuals, households and communities have the right to compensation if the management board/company violates the contract and to receive monetary grants in the case of natural disasters. However, it should be noted that this Decree is not an extension of the pilot project Decision 126/QD-TTg. The provision related to benefit-sharing in this Decree is very sketchy, lacking such fundamental principles as a benefit-sharing agreement, public and transparency principles; and the rights and obligations of each party. Nevertheless, it is hoped that this Decree will set out the basis for subsequent legal texts on benefit-sharing in special-use forests in the future. Thus, the right to livelihood has also been expressed in one way or another in the legislation on heritage management. However, the right to benefit-sharing from the exploitation of heritage through tourism development has not been addressed, other than in the Law on Biodiversity where it appears in an unclear way.

Ethnic minority rights Decree 05/2011/ND-CP of 14 January 2011 defines ethnic minorities: ‘Ethnic minority group means an ethnic group with a population smaller than that of the ethnic majority group within the territory of the Socialist Republic of Vietnam’. Vietnamese legal documents only use the term ‘ethnic minority’; the words ‘indigenous’ or ‘tribal’ are not used. In Vietnam, there are 54 ethnic groups, of which the Kinh is the largest, accounting for roughly 86% of the population. Ethnic minority groups are considered vulnerable groups in society, and those living in heritage sites may be considered even more vulnerable as their rights are limited by legislation, yet they receive little or no benefit when their traditional living environment is designated a World Heritage site. The Vietnamese Constitution states that all ethnicities are equal and all acts of discrimination against and division of national ethnicities are prohibited. Every ethnic group has the right to use its own spoken and written language to preserve its own identity and to promote its customs, practices, traditions and culture. The state, in turn, shall implement a policy of comprehensive development and create the conditions for the ethnic minorities to fully make use of their internal resources

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and develop together with the country. These constitutional provisions are specified in the legislation implementing the policies of the state for ethnic minority groups. Such regulations can be applied to protect the rights of minority groups living in World Heritage areas.

Equality rights and non-discrimination Equal rights among ethnic groups have been affirmed and specified in many different legal documents of Vietnam.22 The provisions on equality of all ethnic groups in the Constitution and laws include civil, political, economic, social and cultural rights. However, Vietnam lacks legislation that specifically addresses discrimination; it only prohibits it. Therefore, acts of discrimination, including acts of ethnic discrimination, are rarely punished.

Right to preserve own identity The right to preserve the specific identity of minority groups has been affirmed and specified in several Vietnamese legal documents.23 Moreover, in order to preserve and promote the cultural life of ethnic minorities, the Prime Minister has issued several Directives on culture conservation and development of ethnic minorities in Vietnam.

Livelihood To protect the livelihoods of ethnic minorities, the State of Vietnam has issued special preferential policies which have been expressed in some legal documents.24 An important point in these policies to ensure the livelihoods of ethnic minorities is the dinh canh, dinh cu policy which aims to encourage sedentarisation among traditionally nomadic ethnic minorities. Many ethnic minorities practice shifting, or slash and burn, cultivation and a nomadic way of life and production. For many years, the Vietnamese State has promoted sedentarisation, perceiving traditional practices as an environmental threat, and this has resulted in some tension regarding minorities’ rights to customary livelihoods and traditional settlement areas. The first legislation on this issue was a Resolution in 1963, and the most recent are the Prime Minister’s Decision 449/ QD-TTg of 12 March 2013 on the ethnic minorities affairs strategy through 2020 and Decision 33/2013/QD-TTg of 4 June 2013 on the continuous implementation of policies to support the sedentarisation of ethnic minorities until 2015.25 Through these Decisions, the Vietnamese State offers nomadic cultivators both residential and agricultural land, subsidised house building, food for six months and relocation from their previous place of residence. Such households also enjoy special access to cheap loans and credit. Nevertheless, the implementation of such policies faces some difficulties. Some groups have a stable housing situation but not enough food, others want to keep their traditional way of life and remain in

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their customary areas. Thus, to implement this policy, it is necessary to involve the community as a whole. The consent of the people affected by the implementation and further revising of such policies to reflect their rights is vital to the policy’s success. In general, the State of Vietnam’s policies on ethnic minorities seek to be comprehensive, covering issues such as livelihoods and culture, and ensuring basic civil rights. However, ensuring the rights of minorities on the ground faces many difficulties and obstacles. How to create harmony between development and preservation of national cultural identity is a difficult problem and one for which the State of Vietnam has yet to find a sustainable solution. The right of minorities to participate in the decision-making process of issues related to their life is not adequately addressed in current legislation, and although legal aid and legal education programmes for ethnic minorities have been implemented, their results are limited.

Policy implications Vietnam’s current natural and cultural heritage legislation has major gaps.Vietnam’s legislation and World Heritage regulations should be adapted in accordance with the provisions of the recently adopted UNESCO policy on Sustainable Development in order to respect and protect the human rights of people living in World Heritage sites. An overview of Vietnamese legal texts reveals that the right to participation of people in all sectors in Vietnam remains a weakness. When it comes to heritage, there are virtually no provisions regarding the participation of the Vietnamese people; they are legally obliged to protect their heritage, while benefiting very little from it. They lack opportunities to participate in the drafting and implementation of regulations on heritage management and existing provisions on participation rights in some legal regulations are still superficial. To increase the role of those living in heritage areas, at local level, it is necessary to build a local regulation on people’s participation rights in management and protection of World Heritage sites. Moreover, there is a need to strengthen mechanisms to ensure minority rights, not only the right to customary livelihoods, but also to participation, education and health care, all of which need to be improved. Each province should have its own specific policy on local minority groups, which takes into consideration their specific characteristics.26 It is also necessary for the Vietnamese government to take human rights issues into account when drafting, amending or supplementing the laws related to heritage management. Every legislative act should consider the people’s participation rights. Furthermore, ensuring and protecting the rights of people living within heritage sites is an essential requirement in building, modifying and implementing all management policies on heritage. All future Vietnamese legislation discussions regarding World Heritage should address the following questions: Who are the ‘communities’? Are they the people

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living in, or surroundings of, heritage sites? How do we distinguish between people working in the field of heritage, including state officials, and local communities living in the area? What is the role of communities in management? How are community representatives selected and represented in the Heritage Management bodies? These questions should be answered in the Law on Cultural Heritage (modified/ revised) and/or in the Decree on Management of World Heritage sites in Vietnam. The right to access to information related to heritage and to share the benefits from the sites should also be regulated in these texts. It is also necessary to build a specific legal text on ethnic minorities living within heritage areas.The rights of ethnic minorities associated with their traditional living areas and practices should be guaranteed, and they should also have the rights to participate and to share the benefits accrued from tourism and conservation. There is equally a need for further policy development on benefit-sharing, participation and co-management, specifically regarding special-use forests, including those recognised as World Heritage sites. Participation and benefit-sharing is the key to improving minority livelihoods, and this should be seen as a mandatory issue rather than a sign of empathy with the people concerned.

Notes 1 On 23 November 1945, President Ho Chi Minh signed Decree 65/SL on the conservation of relic sites on the national scale. This is the first legal document of the independent State of Vietnam related to the protection and promotion of cultural heritage values of the nation. 2 The 2001 Cultural Heritage Act was amended and supplemented in 2009. 3 Article 31 of Constitution of 2013. 4 Article 28 of Constitution of 2013. 5 ‘Special-use forest’ (the Vietnamese term for protected area) is defined in Vietnamese regulation as a forest which has special value in terms of conservation of nature, standard of national forest ecosystems and forest gene sources; scientific research; protection of historical–cultural relics or scenic places, relaxation and tourism in combination with protection, contributing to environmental protection. 6 This pilot project, in three national parks Bach Ma, Xuan Thuy and Hoang Lien, ran from 2012 to 2015. Its aim was to create the legal framework on benefit-sharing policies and the rights and obligations of the management boards of special-use forests to local communities. If deemed successful, the model will be replicated in other national parks. 7 Article 16 of Construction Law. 8 Article 43 of Construction Law. 9 Hoi An Ancient Town, http://whc.unesco.org/en/list/948, accessed October 20, 2016. 10 Decree 70/212/ND-CP of September 18, 2012 on competence, order, procedures for making approving planning, project of preservation, repair and restoration of historical and cultural relics and famous landscapes. 11 Nguyen Thanh, Anh Song. 2015. ‘Hoi An “wriggle” the regulations to help old town people to repair their houses.’ TienPhong, July 3. http://www.tienphong.vn/xa-hoi/ hoi-an-lach-quy-dinh-de-giup-dan-pho-co-sua-nha-879183.tpo. 12 Decree 65/2010/ND-CP, dated 11 June 2010, detailing and guiding a number of articles of the Biodiversity Law. 13 Decree 23/2006/ND-CP, on the implementation of the Law on Forest Protection and Development.

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14 15 16 17 18 19 20 21 22 23 24 25 26

Decree 117/2010/ND-CP, dated 24 December 2010, on organisation and management of the special-use forest system. Decision 126/QD-TTg, on pilot shared interests in the management, protection and sustainable development of special-use forest in some national parks. Information Center for Agriculture and Rural Development, Towards a Better Land Allocation Mechanism for Sustainable and Inclusive Development, result of the reliminary impact assessment of the Decree 168/2016/ND-CP, June 14, 2017. This Civil Code had effect until 31 December 2016. This Civil Code comes into force on 1 January 2017. Article 4 of Land Law. According to the Report of Vietnamese Government General Inspector in 2015, 68.2% of people’s complaints in recent times were related to land. Son Thuy. 2015, ‘The renovation of Hue Citadel: Nearly four years, still stalls,’ Van Hoa, http://www.baovanhoa.vn/DISAN/print-71475.vho. Accessed April 7, 2017. Law on Election of the Deputies to the National Assembly and People’s Councils of 2015; Law on Vietnamese Nationality of 2008, revised in 2014; Code of Criminal Procedure of 2015, Penal Code of 2015; Civil Code of 2015; Civil Procedure Code of 2015. Civil Code of 2015, Civil Procedural Code of 2015. State Budget Law of 2002; Law on Information Technology of 2006;Youth Law of 2005 and Law on Vocational Education of 2014. Decision 33/2013/QD-TTg is still valid. Vietnam has 53 ethnic minority groups and some ethnic groups live in many different provinces. In the case of minority groups living in World Heritage sites, however, there are no cases of cross-provincial boundaries.

References Dat Thuc, Dat. 2012. “Some Thoughts on the Preservation and Promotion of the Values of Heritage Sites with the Activities of Religions and Beliefs in Vietnam Today.” Review of Cultural Heritage 4 (41): 13–17. Thi Thanh Huong, Pham. 2016. “Living Heritage, Community Participation and Sustainability: Redefining Development Strategies in the Hoi An Ancient Town World Heritage Property, Vietnam.” In Urban Heritage, Development and Sustainability: International Framework, National and Local Governance, edited by Sophia Labadi and William Logan, 274–290. London and New York: Routledge.

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PART III

Conclusions

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16 (RE)STRUCTURING RIGHTS AND WORLD HERITAGE DYNAMICS AND LOOKING TOWARDS THE FUTURE Peter Bille Larsen

Readers will undoubtedly have had a sense of déjà vu as the preceding chapters unveiled the diverse interplays between World Heritage processes and human rights. Yet, what determines whether rights articulations allow for empowerment or, on thee contrary, cement inequalities and ‘heritage as usual’? Whereas the narrative of World Heritage sites being important in their own right suggests a transcendent value gaze and hierarchy above individual and collective rights struggles, reality is more complex. Widely differing social scenarios, from forced resettlement to locally driven and managed nominations, challenge any simple generalisations about rights in World Heritage. This final chapter seeks to shed light on the processes and dynamics structuring the rights–heritage intersections and contribute towards developing a generative model (Barth 2007, 8)1. Are there general structuring dynamics, or does each case of silence or explicit treatment involve specific drivers? Assumptions are abundant, in both the World Heritage system itself as well as the proposals to reform it. Hopes for more equity are often based on new consent procedures, international cooperation, inclusive management planning instruments and capacity building. Yet, will all this matter? This chapter suggests that at least three major fields of structuring dynamics must be considered together: a) internal systems dynamics; b) specific national dynamics and forms of agency; and c) the political economy of World Heritage. Heritage-making is not always a noble crusade, but may trigger big business, shifting property rights and value transfers, sometimes with dramatic consequences for the most vulnerable and their rights.Yet, even in countries with well-established human rights records, such concerns do not automatically register in the heritage field. In 2012, the majority of countries surveyed in the Asia–Pacific region reported deficiencies in giving ‘heritage a function in the life of communities’ (UNESCO 2012, 67). Not surprisingly, the report recommended that ‘community involvement and benefit sharing should be further increased across Asia and

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the Pacific’ (ibid., 3). The scenario of heritage designation consolidating not only state intervention but also commercial rights through concessions and leasing arrangements – while leaving community claims unresolved – is, today, common. Certainly, business operators and World Heritage managers, for example, are no longer, if they ever were, odd bedfellows. Dwindling public heritage budgets, the retreat of some national governments from heritage and lowered subsidies have arguably reinforced public–private partnerships and favoured commercial rights as convenient solutions. From outright involvement in dossier development and financing to corporate influence on decision-making, boundary modifications and the capture of new development opportunities, corporate heritage action is not without rights implications. Vertical linkages between the state and market actors are common across the region (Jayasuriya 1999, 9), equally so in the heritage field, rendering it particularly urgent to address and further regulate the state–business nexus. Furthermore, the increased involvement of local governments in nomination processes has also increased pressure for rapid listing, sometimes undermining central policy making. Convenient ties between narratives of national and global significance and local elite spin-offs leave little room for alternative value attribution and re-organising rights geographies accordingly. Thus, while efforts to protect private property and investments have accompanied wider market reforms, there have been only timid measures to recognise and protect collective land and resource rights in the region. A stable rights regime is appearing, yet is simultaneously ruling out opportunities for equitable heritage systems given that it de facto favours market penetration, corporate-led leasing and infrastructure development over community consolidation. The 2003 ‘State of World Heritage’ report for the Asia–Pacific region warned of the presence of property speculation and gentrification. It concluded that it was ‘ethically unacceptable that poor inhabitants are pushed out of their ancestral homes and lands with little or no compensation in many States Parties’ and that ‘a legal framework stipulating the rights and duties of the local inhabitants must be developed and understood by the population concerned’ (UNESCO 2004, 48). Heritage-making may trigger massive transformations well beyond the narrow confines of conservation and the costs of such changes are rarely borne equally. As the volume demonstrates, some people are more affected than others, reflecting non-random and deep-running social, cultural and ethnic inequities and patterns of exclusion. While such differences are downplayed by depoliticised narratives of heritage-making (Shepherd 2013, 26), critical heritage studies point to the risks of state-centred institutions, business-dominated heritage practice and elite capture. Certainly, social scientists have long underlined the power dimension of the heritage/rights interface (Silverman and Ruggles 2007). Heritage entails ontological politics framing not only what constitutes heritage (Waterton and Watson 2015) but how it is ultimately embedded socially and relates to wider dynamics – thus equally so in terms of its rights implications (Harrison 2013). In the rights field, anthropologists have called for the interrogation of concepts as well as careful empirical study of rights claims and processes (Cowan, Dembour and Wilson 2001; Cowan

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2006). The ‘doing good’ element of neither rights, nor heritage, can be taken for granted, yet its potential, however, should not be ignored either. Heritage-making, we know, is often very caught up in multiple imbalances. Calls for World Heritage intervention in the name of universality may easily side-line local claims. It is also safe to say that the current World Heritage system does not automatically favour the powerless and local heritage stewards, rather leaning more towards the voice and authority of experts, state officials and diplomats. Such issues are neither accidental, nor exceptional. Nor is the uneven, at times even anecdotal, reporting of rights insignificant.Yet, this is not some totalising heritage hegemony at work. Rather, it is the everyday institutional enactment of silence. Scattered mentioning of human rights issues does not result from a random nature, but hints at structuring patterns of anti-politics, system inertia and narrative exclusion. The wording may appear strong, yet given the recurrent calls for action from civil society and research, the concern is hardly over-stated. This being said, we should also recognise how emerging rights language in the policy and action arenas reveal alternative heritage thinking, contested heritage politics and forces within the system grappling with change. Dominant practices are not immutable. Rather than locating rights outcomes as the result of the global system alone, we suggest how rights dynamics are fundamentally shaped by national and regional dynamics irrespective of global World Heritage policies. From colonial legacies to prior designations, this draws attention to wider social, political and economic contexts. There is wide agreement about World Heritage involving both local and global dynamics (King 2013; Brumann and Berliner 2016) and a mix of internal as well as indirect, external or contextual structuring factors. Heritage-scapes, as a global–local nexus, involve a process of co-construction (Bourdeau, GravariBarbas and Robinson 2015; Giovine 2009) in a ‘heavily scripted venue’ (Silverman 2016). Can this be considered a form of colonisation of the life-world through reorganised domains of action and influence (Habermas 1987 (1981))? Many rights transformations are not internal to heritage-making, but largely fuelled by tourism, nation-building iconography and the resulting narrative production (Peleggi 1996; King 2013; Giovine 2009). This helps to explain how heritage-making as the control of the past or creation of beautified nature may displace alternative geographies of heritage, life and rights. In this sense, concepts of UNESCOisation as a uniform process of bureaucratisation, imposed criteria and Western-centred management tell only a very partial story. It also presumes World Heritage to be an integral whole, whereas this volume demonstrates its fragmented nature. At stake is not the original sin of heritage as a supreme universalising project, but rather the everyday enactment of vernacularised practices pitched in global language. World Heritage, despite its global airs, is very much a localised, if globally interconnected, space. Despite cosmopolitan categories and global audiences (be they tourists, investors or experts), specific sites nonetheless conceal local processes of vernacularisation (Goodale 2007, 14) and highly diverse rights outcomes. This may best be conceptualised, we suggest, as a dialectical relationship where local framings are shaped to suit global imperatives, and global models, in turn, are reshaped by

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localities and agency. The first section of the chapter explores the significance of different ‘internal’ parts of the World Heritage process and system. There are key lessons to be learned about the challenges and opportunities connected to the standardised process, mechanisms and cycle in the World Heritage system.

System, silence and the rightsless As a young NGO advisor working in the Phong Nha Nature Reserve (Vietnam) in 1999, I recall the arrival of an IUCN expert to evaluate the World Heritage nomination for the area. I eagerly joined the evaluation team on a boat sailing up the Son River to share information about the area’s rich cultural diversity. After talking for a while, the expert said something along the lines of what I had to say was very interesting, but the evaluation’s main purpose was to look at the geological values. While at the time, the narrow focus struck me as odd, I would only years later understand that the case was neither unique, nor exceptional. It reflected how the system had evolved towards cementing the divide between nature and culture in a narrow gaze restricted to values considered of Outstanding Universal Value (OUV) (Larsen and Wijesuriya 2015). Until very recently, official guidance and mechanisms of the World Heritage system did not even suggest States Parties address rights concerns more systematically. ‘Real people’ concerns, to put it in simple terms, were largely relocated to the realm of threats and context, unless considered directly linked to the OUV description. The global regime elevated heritage to humanity, while reducing and externalising the normality that is heritage as lived landscape, identity and space as a potential threat.2 This narrative hierarchy de facto classified local concerns (of people) below heritage, in some ways excluding them from humanity and rights. We might even say it resulted in a particular form of statelessness (Lechte and Newman 2013). As Hannah Arendt noted: The calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law and freedom of opinion, but that they no longer belonged to any community whatsoever. (Arendt 1958, 295) Whereas the rightless for Arendt were the stateless, her point is equally relevant in the context of statehood underpinning heritage conservation, and the ensuing deprivation of rights and legal persona. The specific politics of recognition, in fact, rendered people rightless. Rights were, of course, also on the 1972 UNESCO agenda, when the World Heritage Convention was adopted,3 yet until recently had only penetrated the heritage field in occasional eruption of discontents or celebratory language of (other) universal values. Heritage colleagues and community representatives have since then pointed to numerous rights implications of narrow value designation from forced resettlement, exclusion from management to the disruption of heritage connection from

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everyday life. Numerous heritage professionals have told me how the representation of values was limited to what was considered universal, how they had been encouraged to tone down interconnections and how the practice of World Heritage was maintaining a divide between natural and cultural heritage (Larsen and Wijesuriya 2015; Buckley, Larsen and Badman 2015; Leitão and Badman 2015). If we acknowledge that World Heritage entails place-making (Giovine 2009) with real social and material effects, we need careful attention to consider dynamics well beyond the discursive field. Nomination documents and evaluations have largely evolved as technical exercises stressing universal values, management and protection, yet they also have rights implications. Nomination documents from Phong Nha Ke Bang, for example, largely misrepresented the lives and practices of customary stewards and their ancestral landscapes with dramatic consequences. People were written out of the landscapes, undermining customary tenure rights and livelihoods, while a growing heritage money-making machinery facilitated the leasing of clean environments and services to external players. In K’gari/Fraser Island, the Buchulla have expressed concern about adequate management of their cultural sites in official plans centred on natural values. In Kathmandu, traditional stewards claim voice and roles in management practices dominated by state institutions. The systematic social, even cultural, deficit is a common, yet diverse, challenge. Still, it is often suggested that rights issues are not a consequence of World Heritage designation per se, but rather shaped by prior dynamics.The position alludes to a reality of inequalities pre-existing designation, yet ignores how World Heritage designation is often far more consequential than merely being a neutral add-on. Where rights infringements pre-date World Heritage designation, further management may not only further cement and entrench, but equally result in a lost opportunity to use the heritage process for redress and reconciliation. Eroded customary land rights cemented by nationalised heritage designation, for example, are far more common across the region than remedial attempts to restore justice through heritage. World Heritage status may range from being largely invisible and unknown in the landscape to being a dominant narrative structuring economic, social and environmental matters. The transformative potential of designation and management is therefore not inherent to the system, but a potentiality.The distinct heritage spatiality may entail transformative processes through state incorporation, displacement and gentrification. Heritage may, for example, transform places from lost wastelands or urban decay and neglect into prime sites of development, investment and accelerated tenure transformation. Does this make World Heritage an imposed heritagescape, a fundamentally elite-driven project easily captured by the few, the state or business, or can it be re-oriented to become a driver of equity and inclusion? Most sites described in this volume reveal the uncertainty, lack of clear direction and recurrent questions in terms of how management addresses rights implications. They cover a wide range of deficiencies and unresolved issues, but also point to emerging good practices and opportunities for action. While many site narratives stress their contribution to poverty-reduction and growth, dealing with social complexity is often left to be sorted out by individual

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managers. More often than not, rights remain residual outcomes of other processes rather than being shaped by a clear social agenda. Management and accountability frameworks shaped around retaining the OUV alone easily result in a systematic bias. The practice of pitching heritage objectives and management around the protection and management of OUV has had the perverse effect of downplaying other values, heritage interpretations and modalities. Such reductionism has implications for how rights issues and linkages in the urban and rural landscapes are perceived and framed. This is particularly clear when OUV is framed in static terms – ‘conserve as found’ – with little space for rights to living heritage, transformative practice and trade-offs. The politics of nomination and the rush to inscribe (Meskell 2012) combined with a historical hands-off approach to management are contributing factors. Whereas the Roman maxim Inter arma silent leges concerned the silence of law in times of war, we need to recognise the silence of rights in times of heritage. Talking about rights issues has long been perceived as airing dirty laundry likely to be detrimental to rapid listing, and while there have been cautious attempts by the Advisory Bodies and the Secretariat to comment on rights issues once alerted, they remain timid and can hardly yet be considered a major structuring dynamic. There is currently too much at stake. Furthermore, the mixed track record of Committee decisions range from rights-aversive policy decisions to occasional calls for States Party redress (see Larsen and Buckley, this volume). Multiple rejections of proposals to institutionalise indigenous participation are often mentioned in this respect. Such conservatism is equally present in the self-referential authorised expert discourse (Smith 2006), tending to exclude critique and critical voices as inappropriate, unhelpful or simply too radical, and this has led to reluctance among Advisory Bodies to openly flag rights issues. This may be changing, however. Growing Advisory Body attention is beginning to be reflected in the evaluation process, further fuelled by recent policy changes. While some Committee attention has been mustered in recent years on specific rights violations, it is limited to cases flagged by civil society.The importance of diplomatic handshakes rather than technical reason still results in considerable inertia preventing the rapid take-up of new human rights commitments. Notions of community remain vague and largely subject to de-juridification (Turner 2015), that is, emptied or hollowed out in terms of legal significance. While the World Heritage constitutes a system in procedural terms, in substantive terms, it remains loose and vague in terms of specific requirements, not least in terms of social safeguards. Such dynamics are not resolved by managerial tinkering and quick fixes, but require rethinking the World Heritage system and the underlying political economy. As long as World Heritage processes amplify dynamics of exclusion rather than attenuate and redress them, they form part of the problem likely to aggravate rights infringements rather than resolving them. While this has gradually begun to change with the Advisory Body Our Common Dignity process (Sinding-Larsen and Larsen 2017), it remains to be seen whether and how the new rights framework in the Sustainable Development policy will lead to more consistent treatment.The World Heritage cycle offers multiple

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entry-points to engage and address rights, whether the site is being nominated or has existed for decades. Still, current mechanisms remain fairly opaque and inaccessible to most local organisations.Within the current system there are few incentives to describe rights issues in detail, nor are there clear support mechanisms in place to support States Parties in solution-building. While much critique is waged against a supposedly unholy alliance between the dominant system and complicit expertise, the role of experts and the global system clearly hold some of the keys to change. The Advisory Bodies and the Secretariat have been instrumental in facilitating the incorporation of human rights language in recent policy development, just as individual experts continue to support specific rights issues.Yet, clearly further action is needed in terms of both global standards and guidance (Sinding-Larsen and Larsen 2017). Rights-based approaches are in this respect an important counter-strategy to restore the legal persona of communities in heritage deliberations.

System dynamics: UNESCO, World Heritage and human rights In 1994, the year after the UN World Conference on Human Rights, the UNESCO Courier ran a special issue on the theme of ‘Human Rights: The Unfinished Task’. Federico Mayor, then Director-General of UNESCO, called for ‘securing wider acceptance of international instruments’ (1994, 8). Ten years later, UNESCO adopted a human rights strategy, including among other things, the integration of a human rights-based approach in all UNESCO programmes (UNESCO 2003). Even the current medium-term programme includes wording to apply human rights in relation to heritage (UNESCO 2014). The question is thus no longer – if it ever really was4 – whether human rights are relevant in World Heritage, but rather how they are translated into practice. Although the new Sustainable Development policy makes human rights duties in the World Heritage field explicit, this duty clearly exists already. A major paradox, indeed, was the maintenance of World Heritage as a human rights free zone within an organisational realm not only constitutionally committed to, but actually created for their defence. On the one hand, the organisation has published five editions of a ‘Q&A’ book on human rights since 1981 as well as a recent guide on human rights litigation (Formisano 2011). On the other hand, rights issues have remained absent or silenced in World Heritage work. Global commitments clearly have not ruled out the prominence of rights-averse World Heritage Committee decisions related to site recommendations or broader questions such as indigenous engagement. At least five contributing factors help explain this paradox. First, the system has historically elevated heritage to become part of the global community, not the other way around. While the Convention text itself aims to give the cultural and natural heritage a function in the life of the community, it was only after three decades that the Committee agreed upon the 5th C (community) in terms of a strategic goal. It took another decade to recognise human rights. This low ‘absorption rate’ indicates a clear hierarchy of significance between universal

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heritage and (less) universal human rights. While this has changed somewhat with recent policy developments, the field remains a de facto governance system characterised by diplomatic pressure and compromise. Public diplomacy continues among some Committee members from the Asia–Pacific ready to tone down rights language, although on other occasions members have been instrumental in adopting new community and rights language.5 Second, there exists a misconception by some key players that there is not a clear commitment – or requirement – to uphold basic civil, political, economic, social and cultural rights in the World Heritage system. As a high-ranking UNESCO official explained, there is a widely held perception that the Committee works according its own principles. ‘They have their own States Parties membership’, it was emphasised. ‘Even if UNESCO ceased to work and exist, the Convention would continue’, the official noted. It is a commonly held idea that the Convention is run according to its own rules alone, in a distinct construction of institutional sovereignty. Whether interpreted as neoliberal or anarchic trends, the consolidation of flexible or permeable frameworks is not a monopoly of the World Heritage Convention in the international governance field. Third, the actual human rights work of UNESCO has been concentrated in specific core rights areas (such as the right to education) rather than looking critically at the human rights implications of the organisation’s work in other areas. Also, UNESCO has its own complaints procedure in relation to the ‘exercise of human rights in UNESCO’s fields of competence’ (the so-called procedure of 104 EX/Decision 3.3) to establish dialogue with states in a confidential manner. However, officials interviewed in 2015 did not recall the procedure having been used in relation to heritage concerns.6 Added to this has been the uneven absorption of certain rights fields in World Heritage policy fields (see Larsen and Buckley, this volume). Fourth, it was clear from interviews that human rights mainstreaming and learning modules on human rights developed by UNESCO were driven from a different section of the organisation – that is not under the same auspices as World Heritage affairs. Interviews with former officials in charge of human rights revealed longstanding disconnections between different sectors, not to mention silo tendencies within the same sector. Thus, human rights units located in the social and human science sector would monitor and promote human rights ratifications and recent developments7 without reaching World Heritage work located in the culture sector. In addition, human rights activities had been downscaled due to the organisation’s financial crisis.8 Yet, there is more to the story than global dynamics.

National dynamics and state-centrism National discourses, politics and rights practices are arguably key factors determining how rights issues are structured. Both case studies and legal reviews reveal highly uneven treatment of different rights concerns across different jurisdictions – even within the same country. Existing heritage frameworks may, for example, recognise

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certain property rights, yet remain poorly articulated in relation to customary land and resource rights (see case studies in Malaysia and Vietnam or the legal review for Australia). This is arguably true not only of formal frameworks but also how rights are framed, debated and perceived by civil servants and experts. Furthermore, as the case studies from Vietnam, Nepal and the Philippines demonstrate, local grievances and social inequalities are often embedded within longstanding social hierarchies, adding to the complexity of how rights are being (dis)articulated. Whereas collective land and resource rights and associated management rights are significant in K’gari/Fraser Island, Kinabalu and Phong Nha Ke Bang, the nature of changing property and access rights in the urban contexts of Vigan, Kathmandu and Xi’an are different. The cases also display different aspects of livelihood and development rights ranging from customary livelihood rights to benefit-sharing and development right arrangements. How do we make sense of this diversity and the role of national level dynamics? First, path dependence is evident in the cases from Malaysia, Vietnam and Australia, where the rights issues identified were largely shaped by existing regulatory frameworks. As Hamzah argues (this volume), heritage institutions may have been shaped by colonial gazes (see also Ndoro and Wijesuriya 2015). The region hosts diverse colonial histories, yet also inter-connected models of decolonisation and alternative aspirations (Mückler 2016), which are significant for the articulation of heritage rights. Second, the Convention remains firmly centred around the state (Brumann and Berliner 2016, 9). Nominations and management are often considered a state responsibility, raising questions about the structuring role of national policy. Third, we learn about the presence of contested nature of land, resource and property rights as well as competing land and management paradigms. Government decisions and frameworks to exclude joint management from Native Title recognition and agreements for K’gari/Fraser Island illustrate such complexity. Attention to managerial decisions in Phong Nha Ke Bang equally reveals how timid attempts to title ethnic minority lands were limited to a small fraction of customary forest lands without taking into account rights to management, equitable benefit-sharing and customary forest livelihoods. Fourth, common development risks of dispossession, displacement and precarisation found in the region (Rigg 2016, 59) are equally a heritage concern. Even if countered by egalitarian-minded development and land policies, dispossession or precarity provoked by over-riding heritage implementation and infrastructure development is common. Fifth, World Heritage may enhance or intensify ongoing processes and patterns of inequality and rights infringements unless a rigorous effort is made to counter such trends with adequate safeguards. In numerous cases across the Asia–Pacific, collective land claims, rights to self-determination and other rights remain unresolved and stuck in a legal limbo. It is a recurrent concern that World Heritage processes may inadvertently negatively affect their outcomes. The potential hike in

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property values and state incorporation triggered by World Heritage designation – and third party interest – in land and heritage resources is a real concern and threat to such processes of recognising community lands, for example. Sixth, the cases also reveal how World Heritage processes are used by local authorities, civil society and experts to generate new responses, whether in the form of management planning, formalisation or other forms of strategic change. This demonstrates the potential space between ‘business as usual’ and change, which is rarely fully exploited to address the social deficit involved. In a global system with only vague attention to rights concerns, it should be no surprise that outcomes have largely been shaped by national dynamics and legal frameworks. Even if World Heritage supposedly transcends national boundaries and leaves the market behind, the nation state is never far away in terms of nationbuilding and boundaries of sovereignty, thus limiting the premises of global action. Furthermore, distinct perceptions of law and order in the Asia–Pacific may coincide with expert and Committee calls for enforcement resulting in more ordering and entrenched power (Jayasuriya 1999), rather than exploring alternative governance modalities. Heritage law and order are, in this sense, more often used as a technique of rule rather than a tool for social change, often reinforced by calls for ‘strict implementation’. Whereas regional geopolitics and contested rights may seem far away from heritage processes, the ever-lurking presence of contested claims and boundaries should not be underestimated. First, the questions of singling out natural and cultural features and flagging historical rights involve a shared epistemological terrain with territorial disputes surfacing in international arenas (such as the South China Sea disputes). Second, time and again, from war legacies in Japan and Korea to historical border disputes between Cambodia and Thailand, surrounding regional politics have crept into – or perhaps never been far away from – the arenas of heritage. This is not merely coincidental, but relates to the elephant in the room – the matter of heritage in terms of identity politics, national interests and international recognition. Complex histories of Asia–Pacific politics (McDougall 2016) are ever present, often undermining scientific arguments for trans-boundary nominations and collaboration with national décor and context.

The role of agency While much of the above illustrates major structural conditions, the volume equally documents the centrality of agency at all levels in shaping rights outcomes. Such agency may range from NGO action in specific localities to cross-scale networks of local and global experts and business partnerships. It may involve delegation action, Committee inputs and multiple engagements by Advisory Bodies and the Secretariat. At another level, multiple forms of local organisation may also play a role. The Nepali case portrays the role of community in rebuilding and taking care of heritage (Tiwari et al., this volume), whereas the cases from Xi’an show how similar situations may lead to different outcomes due to local agency (see Høyem,

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this volume). From traditional religious institutions to local level institutions, people and local voice may be organised, divided or representative in multiple ways, and the heritage consultative mechanisms and practices’ responses may be more or less equitably organised. Whether and how people are organised, networked and able to frame action and claims in terms of rights and World Heritage are thus real questions. Although rights language may offer currency and flexible arguments for social movements against the state or corporate attempts at privatisation (Herzfeld 2010), they may also offer little resonance or immediate applicability in other conversations. A major conclusion, at this stage, is how rights claims rely far too heavily on external recognition by national and international institutions in order to generate response in the World Heritage system. While there are cases of communities and indigenous peoples, not least in North America (Grand Pré, Canada) and Australia (Kakadu), using World Heritage pro-actively to defend their rights, such efforts remain the exception. Most rights issues that have managed to attract Committee attention have relied on extensive NGO lobbying or a push from national and international agencies. Key cases of the ‘reactive’ kind have involved NGOs, Special Rapporteur reports or rulings from regional human rights institutions (as in the case of the Endorois, Kenya) or national human rights institutions and UN agency communication (for the Karen, Thailand). These triggered Advisory Body and World Heritage Committee action, whereas the majority of cases from the Asia–Pacific rarely have comparable backing or support from the international human rights system. Most local rights issues in World Heritage areas remain under the radar. The current situation remains one of rights issues getting attention mainly (or only) if there is civil society action. The fire-fighting response is a natural consequence of rights being raised by outside critique, rather than through internal processes. The limits of human rights activism in terms of field access, resources and abilities to undertake research also need to be recognised. As interviews with officials revealed, there are equally major concerns about risks generated by human rights documentation posing real limits to their field assessment capacity. The current entry-level bar for sites to qualify for the World Heritage system and remain there in terms of social performance is low.The social issues have to be dramatic, visible and voiced to be heard and lead to reactions, unless otherwise pushed by raising awareness with Advisory Bodies and the Secretariat. Slogans like ‘Rights are not given, rights are taken’, raised by one professional, yet attributed to Gorky and others, raise the general point that human rights are not simply attributed, but obtained through social contestation and struggle. While contentious issues are being raised, flagging by civil society critique and specialised human rights bodies remains necessary in order to secure a response from the World Heritage Committee.This is unsatisfactory by UNESCO’s own standards. In some countries, where rights are curtailed, critique discouraged and movements controlled, the kinds of activism currently needed to raise adequate awareness of rights concerns cannot be expected.

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A key structuring dynamic – or rather enabling form of agency – concerns the growing awareness and willingness of heritage professionals to engage with a variety of local constituencies.While experts are at times described as representatives of heritage hegemonies, many also embrace change. Many of the volume’s contributors engage in a critique of the status quo and the exploration of alternative forms of narrative representation, governance arrangements and more. Thus, while some experts express reservations about rights commitments slowing down or politicising heritage conservation, others have recognised the lacunary practices and call for more pro-active engagement (Sinding-Larsen and Larsen 2017). Neither are wrong per se. Addressing rights does require time and resources, but in the long-term may secure more stable and equitable conservation arrangements. Engagement is a process, not a box to be ticked: such agency in a broader sense will inevitably form part of how both concerns and responses are shaped. Rights are at times relegated to a managerial concern, to planners and consultants in technical planning processes. This section points to the highly uneven treatment of rights concerns and the over-dependence on external NGOs and human rights organisations to secure adequate attention. The contested nature of human rights discourse and activism in many countries is equally at play here, displaying a major gap between universalist discourse and actual practice. This gap is further accentuated by rights transformation driven by the wider political economy.

Political economy of value Can the structuring role of World Heritage be understood without considering it as a distinct space of capital? Although political economy factors are now considered influential in World Heritage site nomination processes (Bertacchini and Saccone 2012), we need to take the perspective even further. Not only has heritage become a particular field of expertise, consultancy and business, it has also become a real source of (economic) value well beyond its universal heritage values per se.9 Rights are not only affected by the World Heritage gaze; their nature and contextual conditions undergo transformations in the context of the political economy at stake. Private sector partnerships are actively promoted10 by the Secretariat and States Parties, whereas rights-based policies to reign in market forces are less common. The emergence of this political economy of World Heritage is highly significant in Southeast Asia and the Pacific, not least in times of booming domestic and international tourism (Ghimire 2001; Hitchcock, King and Parnwell 2010; King 2013). Real and projected tourism numbers raise questions about property, people and profits. The transformation of public assets into private gains is a common – even celebrated – aspect of the World Heritage field, much of this triggered by the commodity value of heritage. Heritage is not only the object of conservation, but a ‘means of production for profit-making’ (Tang 2014, 286). Competition between government agencies, local authorities and business operators are common features in the heritage landscape. The convergence of private and public gazes to value, commodify and consider heritage as sources of tourism, enterprise development

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and branding may skew public decision-making in the field of rights by prioritising new spaces for public-private partnerships, outsourced rights and the privatisation of heritage resources. External events such as earthquakes (see Tiwari et al., this volume) may further accelerate processes of tenure transformation and heritage commodity production. Fast-paced entrepreneurialism has arguably largely outpaced and destabilised the long-term need to recognise customary land tenure and processes of social inclusion (Larsen, this volume). Such socio-economic transformations and the race for resources are no longer surprises. They involve calculated private investments in nominations, public-private partnerships and attempts to capture key investment opportunities. Today, privatising World Heritage resources is far more common than using heritage to empower traditional stewards. To take economic impact figures as a positive trend and opportunity is understandable, yet to disregard the implications for equity is problematic. Where development theory has long rejected trickle-down approaches, the assumption that World Heritagedriven growth and development benefits will automatically reach all rights-holders is wishful thinking at best.

Discussion While United Nations membership could be thought to result in the convergence of human rights practices, analysis reveals both pioneers with higher standards inspiring other states as well as poor performers with track records lowering the bar (Greenhill 2015, 3). Similar differences are found in the World Heritage arena, revealing complexity about what structures specific rights articulations. The Phong Nha Ke Bang case study suggests the idea of World Heritage as a specific and contingent assemblage in that respect (this volume). At stake are specific constellations of expert voice, vernacularisation and a fast-paced political economy. World Heritage rights articulations are thereby shaped differentially by both context and agency, far from the universalist cosmopolitan ideals of UNESCO. Indeed, we may argue that World Heritage realities on the ground – prima facie – cannot be assumed from the UNESCO texts, but must be interpreted in the light of national context and local practices. The Asia–Pacific region reveals a wide range of rights practices from basic violations to heritage activities supporting their realisation. Whereas international advice in technical heritage areas has shaped local narratives, the role of the global system in terms of redressing human rights issues remains marginal. Most rights issues are largely shaped by domestic mechanisms such as existing requirements or civil society action. This obviously marks the difference between countries and sites with an existing conversation on human rights vs. the majority of cases in the Asia–Pacific, where people may not (be able to) articulate local grievances and demands in human rights terminology. Indeed, as the system currently operates, rights are only identified in the World Heritage system once they have been recognised by domestic or civil society institutions. These furthermore often require work in tandem with international advocacy organisations to reach the international level.

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Turning a blind eye, or suffering from sudden amnesia when it comes to describing longstanding local challenges, the World Heritage system is partly to blame for not having created adequate space, guidance for States Parties and incentives for addressing rights within nomination and reporting. Currently, the system tends to reward States Parties choosing to remain silent about their problems rather than those actually responding to identified rights concerns. Heritage-making may, from this perspective, be perceived as further cementing, even concealing, unresolved social grievances, a politically driven elite project or, even worse, mobilised to foment war and conflict. Furthermore, the current nomination system, compounded by a severely under-funded Secretariat, rarely, despite good intentions, captures the full complexity of rights challenges on the ground, nor can a politicised diplomatic exercise of listing be expected to respond evenly under current conditions. The orchestrated destruction of heritage sites such as Palmyra and others is not random, but a reflection of the perceived nature of heritage as representative of nation-building and power. Although such action is condemned, addressing the silencing of rights and the past wrongs of World Heritage remains to be dealt with adequately. While there is no doubt that the UNESCO/World Heritage system has been weakened, there is equally little doubt about the massive investments, high-level political attention and significant returns resulting from World Heritage designation, not least in large parts of the Asia–Pacific region. More than two decades after the Vienna World Conference on Human Rights, work on human rights in the World Heritage is just about getting ready for takeoff. A shift, to which several contributors of this volume have contributed, is arguably taking place towards more explicit policy attention to human rights, yet will this trigger actual transformation on the ground or merely remain words? The relative confidence and voice of the Secretariat and the Advisory Bodies to assert the importance of human rights both in authorised discourse – by revising guidance materials – and specific advisory roles prior to, during and after nominations has grown. The idea that communities need to benefit is well-acknowledged in mainstream heritage thinking, but has also been left hanging in a normative and operational limbo without clarifying the trade-offs needed. In 2015, the adoption of the Sustainable Development policy was a landmark shift in this respect, yet is it a game-changer? Given the institutional constraints, the effects of the system taking up rights must be treated with a healthy dose of realism. Will human rights be interpreted narrowly as legal rights going hand in hand with deepening bureaucratic control, state presence and capture of heritage spaces? Social and economic rights are easily silenced and normalised by neutral, and technocratic, discourse (Farmer 2003, 10). Will local rights claims be submerged within wider processes of deepening privatisation, rent capture and privatised commodity chains of heritage? Awareness-raising, to take one common activity found across the world, is far more often directed towards local populations about Outstanding Universal Values, a universalist project to adhere to, rather than building awareness among elite decision-makers about local ecologies, living heritage dynamics and practices. Antoine Bernard (1994) flagged the danger of an ‘à la carte approach to human

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rights’. Indeed, is there a risk of a rights-gaze limited to certain instrumental and procedural rights? Is there not a danger of a double standard between recognised ‘haves’ within the accepted realm of beneficiaries and dispossessed ‘have-nots’ outside the safe haven and income opportunities offered by World Heritage? Existing States Parties and Committee attention to date, in effect, remains limited to a highly uneven treatment based on a case-by-case identification and timid policy advances. Restructuring heritage and rights linkages requires more than token recognition and reference. From South Africa to Vietnam, calls for restorative justice, social equity or human rights show how heritage sites may nonetheless co-exist with a context of persistent inequalities (Meskell 2010). References to rights may end up as boxes to be ticked or, alternatively, drive more substantive shifts in the control and authorship of heritage and its management. In the latter, there are grounds for optimism even if structural characteristics of a state-driven and business-oriented system do not make it simple to change and transform. Considering the political economy of World Heritage practice, efforts to democratise heritage practice are certainly not automatic, yet they are not impossible either. The new Sustainable Development policy does offer unprecedented language to lobby for more systematic attention to human rights. Although NGOs and the Advisory Bodies have long lacked a normative anchor to address these concerns systematically, there is a strong move among conservation practitioners to shift gear. With an existing system of checks and balances, the World Heritage is in a good position to rework this social deficit. Rights-based approaches reframe the concern in legal terms, elevating social issues from the realm of good intentions to at least partially recognise some of them as legal entitlements (Goonesekere 1998). Can human rights provisions be elevated to effectively set a corpus of limitations and progressive calls on state power and inclusive heritage practice? The challenge is not simply a technical matter of clarifying rights challenges in World Heritage, but a value debate on raising the bar of rights practice.While much work is being undertaken in terms of new standards development to build up rights-based approaches relevant to indigenous peoples (e.g., Jonas, Makagon and Roe 2016), further work is needed to address the rights of other local communities alongside a long list of rights-holders frequently overlooked in World Heritage (women and children, to name two). Given the ambiguity of existing rights commitments vernacularised between local, national and global reframing, this is not a given. In effect, the identification and recognition of rights-holders remains a contentious issue, where Committee and Advisory Body vigilance will be essential to secure even treatment. Can we move towards systematic state action and inclusive spaces for civil society responses? Far more debate is needed to have World Heritage processes become part of the solution to equity rather than remaining part of the problem.

Looking forward What will it take to craft a World Heritage policy framework which is less permeable to capture by economic elites while being more accessible and inclusive at

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both the design and management level? How, for example, to render management and conservation more binding in terms of social commitments rather than running the risk of a free-for-all listing eagerness? How can the system change from only raising the rights of some (such as initial steps to recognise indigenous peoples) to raising the rights of all in diverse urban and rural heritage settings? Certainly, the strategic objective on communities (the 5th C) has not by itself led to systematic recognition of rights-holders and the rights implications of World Heritage management. Since existing measures alone cannot transform the patterns of rights being silenced, we need clear operational guidelines and mechanisms that put social equity and human rights at the heart of heritage practice. This involves the reframing of social equity and human rights as a central objective, with clear incentives and specific evaluation criteria for the World Heritage system as a whole. While the value of rights-based approaches is at times doubted quietly by heritage professionals worried about the already challenged nature of World Heritage, the discourse has changed towards embracing the rights-based paradigm.Yet, could other people-centred approaches achieve this more quietly and with better results? Clearly, much can be, and is already being, done to secure social justice through other means. Yet, this should not per se rule out honing approaches to human rights in terms of legal clarity, entitlement and widening approaches to social equity concerns to be examined. The heritage field’s job is not to reinvent human rights, but rather to deepen its understanding of rights implications and respond to these equitably. Such responses should not rely on goodwill, but be recognised as entitlements. There is no doubt that the heritage-rights intersection requires a balancing act between conservation and development, individual and collective interests, rights and duties. Human rights offer one vehicle for a different trajectory, one that potentially triggers attention to segments of society often ignored by state-dominated processes. Rights-based approaches are, in this sense, not simply a matter of quick-fix engineering, but raise complex questions of recognition, redistribution and entitlement. Simply redefining communities as rights-holders in a multilateral space (where conflict and complexity is often replaced by diplomatic exchanges) may leave it very ‘procedural’ without taking into account local cultural complexity, structural inequalities and conditions. Whereas a critique of rights discourse may point to the risks of Western-driven narrow forms of agency and sociality, recognising rights is integral to redressing current imbalances of people silenced by heritage. First, a robust human rights approach will require clear performance criteria and new accountability measures. Such criteria could involve the Committee confirming in operational guidelines that World Heritage should not interfere (respect) and prevent third parties from interfering (protect) with the enjoyment of human rights, as well as more proactively enhance heritage as a vehicle to contribute progressively to their realisation. While this has been clearly stated in the Sustainable Development policy, it is unlikely to play out unless strongly confirmed as a

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determining criterion of adequate management alongside protection and OUV (Sinding-Larsen and Larsen 2017). Second, the champagne glasses of World Heritage celebration should be replaced with clean drinking water and access to food and health. There is a need to move from the systemic side-lining of core social and economic rights and the current ‘pick and choose’ of heritage values and rights concerns towards a systematic and certifiable package of safeguard mechanisms. Much can be done simply by informing States Parties about the operational implications of existing policy commitments. Third, where rights-based approaches are at times described in paradigmatic either/or language, the analysis revealed important insights about the multiple entry-points for change, not least in different social, cultural and political contexts. Taking into account the growing body of local articulations in a non-Eurocentric manner is fundamental. This is not only about recognising multiple moral discourses, but equally about recognising multiple forms of action to build equity and rights framed in locally meaningful ways. Fourthly, incentives and guidance are needed to encourage States Parties’ early identification and assessment of the extent to which specific rights issues are pertinent to specific processes and ensure that they are adequately addressed.Yet there is still some way to go from ‘do no harm’ in the immediate term to ‘do good’ in the long-term. Much more can be done to empower communities as heritage actors throughout the full heritage process rather than leaving their concerns behind as heritage victims. Rendering the heritage system more accountable downwards, rather than merely to other States Parties, would be an important step in this direction. This also entails levelling the playing field to establish clear performance criteria tied into international standards. We end this volume in the spirit of change and a note of optimism given the current understanding. It is true that stories of rights infringements have long been silenced by the glamour of heritage. Yet, it is also true that much is being done to move social justice issues out of the private realm to become public phenomena for debate and solution-building. Furthermore, there are examples of people using the World Heritage system to advance recognition of their rights and identity. Allowing the rightless to be rights-holders is an important part of this shift.

Notes 1 This analysis is largely inspired by the wide range of insights brought to the forefront by other chapters in the volume. Particular thanks go to Kristal Buckley for her insightful comments on an earlier version. 2 The ‘partial’ exception of this would be the category of cultural landscapes, which nonetheless also raises other issues (see discussion in Larsen and Wijesuriya 2015). 3 http://unesdoc.unesco.org/images/0011/001140/114044e.pdf#page=145. 4 As Morawa and Zalazar note, international institutions are equally bound by human rights standards whether they recognise it or not in explicit terms (this volume). 5 New Zealand sponsored the ‘5th C’, just as Australian diplomats defended the inclusion of language on the rights to Free Prior Informed Consent in the Operational Guidelines at the Committee in 2015, while Viet Nam hosted a drafting event for the

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6

7 8 9 10

recently adopted Sustainable Development policy supporting unprecedented strong language on human rights. Official reports from 1978 to 2015 indicate that the majority of the 381 cases settled concerned persecution and imprisonment, freedom of expression and other core civil and political rights. http://portal.unesco.org/en/ev.php-URL_ID=15243&URL_ DO=DO_TOPIC&URL_SECTION=201.html, accessed April 4, 2017. http://www.unesco.org/new/en/social-and-human-sciences/themes/human-rightsbased-approach/sv3/news/human_rights_major_international_instruments_status_as_ at_30_june_2011/#.Vz3ZdD80Xdc. After Palestine was recognised as a member of UNESCO in 2011, the US suspended its contribution to the organisation, reducing the overall budget by some 22%. This is admittedly written as a provocation, and certainly not to diminish just as real heritage values. However, the tendency to pitch universal values without explicitly addressing in explicit terms the expected political economy begs attention. http://whc.unesco.org/en/news/1319/.

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Annex

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CAUX CALL FOR ACTION ON RIGHTS-BASED APPROACHES IN WORLD HERITAGE CAUX, SWITZERLAND, JANUARY 19, 2016

We the participants of the international dialogue on “Understanding rights practices in the World Heritage system: lessons from the Asia-Pacific and the global arena” met in Caux, Switzerland from January 18–19, 2016.The meeting was organized by the University of Lucerne in cooperation with ICOMOS, ICCROM and IUCN, with support from the Swiss Network for International Studies, ICOMOS Norway and the Swiss National Science Foundation. We recall the outcome and statements of the two Oslo workshops, in 2011 and 2014, on rights-based approaches in the World Heritage system organized by the Common Dignity initiative. We welcome the recent changes agreed to the Operational Guidelines for the World Heritage Convention (Bonn 2015) regarding the rights of indigenous peoples, free prior and informed consent and the recognition of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and also the adoption of the Sustainable Development policy1 by the 20th General Assembly of States Parties to the World Heritage Convention (November 2015), requesting inter alia States Parties “to uphold, respect and contribute to the implementation of the full range of international human rights standards as a prerequisite for effectively achieving sustainable development”. We note that further specific changes to the Operational Guidelines are contemplated in light of the adoption of the policy to translate the principles of the policy into actual operational procedures. We note that the Sustainable Development policy requests States Parties “to ensure that the full cycle of World Heritage processes from nomination to management is compatible with and supportive of human rights” and consider this new policy framework a turning point toward building more equitable and effective sustainable conservation and good governance approaches. We further commend the Sustainable Development policy recommendation to “adopt a rights-based approach, which promotes World Heritage properties as

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exemplary places for the application of the highest standards for the respect and realization of human rights”. We acknowledge and welcome the growing interest from Special Procedures of the UN Human Rights Council, in particular the Special Rapporteurs on cultural rights, environment and human rights and the rights of indigenous peoples, in addressing World Heritage issues. We welcome the work of the Advisory Bodies (ICCROM, ICOMOS and IUCN) to the World Heritage Committee (hereafter ‘the Committee’) in the past years in jointly addressing the opportunities and challenges of developing more inclusive World Heritage approaches. Being mindful of the new momentum represented by the above, we presented and discussed case-study research, legislative reviews and the results of national dialogues on human rights and World Heritage conservation from selected countries in the Asia–Pacific region. This research is demonstrating the significance of taking into account local context, rights claims and local values as a starting point for bridging human rights and heritage protection, conservation and management. We recognize, from the lessons learned at the workshop, that challenges in respecting and supporting the rights of indigenous peoples and local communities and other groups in the World Heritage context, at the national level, include inadequate legal frameworks, under-resourced institutions, lack of awareness among government officials, communities and organizations, lack of participation and monitoring mechanisms and processes: Our meeting confirmed the need for, and feasibility of, strengthening the World Heritage system by ensuring its full compatibility and compliance with human rights obligations. In the interest of operationalizing the human rights aspects of the UNESCO Sustainable Development policy: 1. We encourage the Committee, the Advisory Bodies and States Parties to build a common language and conceptual framework aimed at fully implementing human rights, taking into consideration claims made in local contexts, and in accordance with recognized international standards. 2. We recommend States Parties adopt systematic and comprehensive legislative frameworks, approaches and policies recognizing the needs and rights of people and groups on topics such as benefit-sharing, participation, livelihoods and culture, taking into account their vulnerabilities and capacity for resilience. 3. We recommend the Committee and the World Heritage Advisory Bodies devise mechanisms to address these issues across the World Heritage cycle, including upstream processes providing early advice on nominations, periodic reporting by States Parties on implementation of the Convention and the monitoring and policy mechanisms of the Convention, learning from the best practices of the United Nations and regional human rights implementation mechanisms. 4. We recommend the Committee, the Advisory Bodies, UNESCO and the States Parties comply with international human rights standards when reviewing the

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5.

6.

7.

8.

9.

10.

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processes of nomination and states of conservation. We further recommend they advance a heritage nomination and conservation approach that is fully supportive of the rights of people and relevant communities, that empowers them as legitimate stewards of heritage, and that supports their lives and cultures as part of excellence in heritage management. We encourage the World Heritage Centre and the World Heritage Advisory Bodies to build capacity in the field of rights-based approaches to the nomination and conservation of World Heritage sites, including through the development of guidelines, training activities and educational awareness materials on key topics and mechanisms, such as Free Prior and Informed Consent. It is also necessary to develop guidance on how to deal with local contexts where the legacy of past injustices may have created suspicion and reluctance with regard to World Heritage nomination and management processes. We strongly encourage the use of a human rights-based framework in World Heritage processes involving third parties such as NGOs, the private sector and public–private partnerships. We recommend engaging with rights-holders and local authorities in devising community-driven and holistic management approaches to World Heritage properties bridging nature and culture as well as tangible and intangible heritage even in the absence of enabling legal frameworks. We underline the importance of inclusive approaches, notably with regards to indigenous peoples, ethnic minorities, women, youth and disadvantaged groups living within, in the vicinity of, or with links to World Heritage sites. We encourage civil society organizations to engage with the World Heritage system for strengthening the management of the properties and implementation of the Convention. We further encourage States Parties, Advisory Bodies, technical and research institutions, and other interested partners to continue the process of giving full effect to human rights and sustainability standards, inter alia, by actively fostering research, dialogue, cooperation, pilot projects and studies in order to further advance rights within the World Heritage processes.

Note 1

The full title is “Policy for the integration of a sustainable development perspective into the processes of the World Heritage Convention”, hereafter listed as the “Sustainable Development policy”.

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INDEX

5th C (community) 8, 30, 36, 40, 301, 310 Aboriginal and Torres Strait Islander Recognition Act 224 Aboriginal peoples (see also Indigenous peoples – Australia) 42, 51, 52, 56–8, 222 access to justice 11, 116, 277 African Commission on Human and Peoples’ Rights (ACHPR) 42 agency 304–6, 307, 310 Angkor Wat 71, 80–1, 82 Asia–Pacific region 2–5 Association of Southeast Asian Nations (ASEAN): heritage parks 3; Human Rights Declaration 259; Intergovernmental Commission on Human Rights 4 Australia 5, 12, 17, 20, 42, 49–69, 217–37, 305; no Bill of Rights 219, 220, 233 Bagan 19, 120–34 benefit–sharing 3, 16, 295–6, 303; in K’gari 59; in Malaysia 116; in Philippines 262, 264, 267; in Vietnam 180–81, 182, 277, 281, 285, 287, 290 biocultural: landscape 117; rights 40; ties 176 Buddhist merit-making 122–3, 126–8 business rights in Vietnam 181–3 Butchulla people 49–51, 53, 56–60, 61 Cambodia 18, 70–86 Canada 40, 52, 305

Caux Call for Action 31, 64, 70, 193, 194, 197, 198, 199, 211, 317–19 children 34, 62, 146, 222, 246, 309 China 4, 12, 13–14, 19, 20, 39, 87– 102; administrative and political hierarchies 99 community conserved areas 112, 114, 250 compensation (see also remedy and restitution) 4, 7, 13, 197, 208, 296; in China 96–99, 102 n6; in Malaysia 114; in Nepal 246; in Philippines 257, 268, 269; in Vietnam 282, 285, 287 constitution: Australia 52, 218–19, 220, 223; Cambodia 76, 81; China 88; Malaysia 118 n1; Nepal 240–56, Philippines 257, 260, 265, 266, 267, 268; UNESCO 6, 200;Vietnam 172, 179, 276, 277, 287, 288 consultation 8, 11, 14–15, 126, 129, 203–6; in Australia 42, 50, 58–63, 220, 232; in Nepal 137–42; in Philippines 154, 157, 169, 267, 270, 271; in Vietnam 174, 178, 276–81 Convention on Intangible Heritage 6, 128, 196, 221, 233 Convention on the Protection and Promotion of the Diversity of Cultural Expressions 196 copyright 5–6, 242 cultural heritage 1; as human right 10–1, 14, 18–19, 21, 35, 36–45; 128; 143, 203, 208; in Australia 49–69, 218, 221, 222, 225; in Cambodia 70–1, 76, 77–83; in China 87–102; in Malaysia 115; in Myanmar

322 Index

125, 132; in Nepal 148, 241, 243, 248; in Philippines 156, 158, 260, 268–70; in Vietnam 276–78, 282, 285–6, 289 cultural rights, 1, 10, 16–17, 36–7, 78; 204–7, 210, 302; in Australia 53–4, 59, 62, 217, 218, 224–5, 231 233; in China 88; in Myanmar 125–8; in Nepal 143–4, 147, 148, 241 242–4; in Philippines 125–8, 270–1; in Vietnam 179–80 customary: land/property and rights 13, 15, 19, 53, 105, 111, 115, 117–18, 176, 177–8, 179–80, 203, 210, 282, 299; law and human rights in Asia 5; livelihoods 19, 176, 180–1, 288; practices 40; rights 13, 184; in Australia 53; in India 13; in Malaysia 105, 111, 115, 117– 18; in Marshall Islands 8; in Nepal 139, 147; in Philippines 261; in Solomon Islands 13; in Vanuatu 13; in Vietnam 19, 176, 177–8, 179–81, 282, 299 development rights 14–16, 42, 203, 209–10, 303; in Nepal 144–6; in Vietnam 179 discrimination and non-discrimination 14, 195, 197–8, 199, 200; in Australia 219, 223; in Nepal 148, 241, 242, 245; in Vietnam 287, 288 dispossession (see also eviction and relocation) 2, 174, 303; in Australia 17, 218; in Egypt 6–7; in Vietnam 184 Drum Tower Muslim District 88–89, 90, 91–4, 101 duty-bearer(s) 20, 100–1, 193, 194, 197–8, 206; in Australia 53, 230; in Cambodia 81; in China 87, 89, 94, 99–100; in Malaysia 113, in Nepal 140, 149, 241; in Philippines 259, 268–9 earthquakes 307; Gorkha, Nepal 12, 19, 135–52; Kinabalu, Malaysia 106; Myanmar 123 equality 150, 200, 203; in Australia 233; in Nepal 242; in Vietnam 179 ethnic minorities (see also Indigenous peoples and rights) 3, 11, 19, 204–7, 210, 303; in China 91–4, 101 n1 & 2; in Malaysia 104; in Vietnam 287–9, 290 event ethnography 29–45 eviction (see also dispossession and relocation) 3, 13, 31; in China 101; in Malaysia 117; in Myanmar 123; in Philippines 267 Fraser Island see K’gari Free Prior (and) Informed Consent (FPIC) 3, 14, 35, 40, 42, 203, 205–6, 210; in

Australia 61, 220; in Malaysia 111, 117; in Philippines 261–5; in Vietnam 178 gender: equality 142, 147, 200, 241; rights 9, 11, 13, 31, 34, 36 gentrification 20, 145, 184, 296, 299 governance 5, 8, 14, 20, 103, 302, 304; in Australia 218–19; in China 91, 100–1; in Malaysia 107, 114–15, 116; in Myanmar 125; in Nepal 141, 241–2, 244, 249, 250, 260, 263; in Philippines 259; in Vietnam 186 Great Barrier Reef 42, 60, 228–9, 232 Green Economy 112, 114–17 group rights 12–3, 204, 210; in Nepal 251 Han Chang’an City 89, 90–1, 95–100 heritage assemblages 174–5, 183 heritage conservation: in Australia 222, in Sambor Prei Kuk 78, 83, in China 100,122–5, in Bagan 122–5; in Nepal 238, in Vigan 156 heritage damage/destruction (both tangible and intangible) 1, 7, 21, 40–1, 184 heritage designation, implications and effects of 1, 3, 5–6, 11, 15, 20, 42, 113, 172, 183, 208–9, 296, 298, 299, 307, 308 Human Rights Council 1, 77, 143, 172 human rights, history of 194–6 India 4, 5, 8, 13, 16, 247, 248 indigenous peoples and rights (see also United Nations Declaration on the Rights of Indigenous Peoples) 4, 11, 13, 31, 34, 40, 44, 204–6, 210; in Asia–Pacific 16–17; in Australia 49, 52–3, 55–8, 218, 220, 222–5, 229–31; in Malaysia 103, 105, 115, 117; in Nepal 143–4, 239, 242, 245, 246, 249; in Philippines 257–67; in Vietnam 179–80 Indigenous Peoples’ Rights Act (Philippines) (IPRA) 260, 261–2, 263, 264 Indonesia 3–4, 5, 8 intangible heritage (see also Convention on Intangible Heritage) 6, 126; in Nepal 141–2, 145; in Australia 221, 225, 232; in Vietnam 277 International Council on Monuments and Sites (ICOMOS) 12, 35, 39, 52, 54, 61, 64, 70, 78–9, 96, 98, 207 International Covenant on Civil and Political Rights (ICCPR) 37, 77, 78–9, 81, 83, 209 International Covenant on Economic, Social, and Cultural Rights (ICESCR) 78–9, 81, 83, 209

Index

Jamaica 38 Japan 3, 32, 39, 304 K’gari (see also Australia) 17, 49–69, 231, 299, 303 Kadazandusun people 104–6, 109–10, 112, 113, 115–16 Kampung Bundu Tuhan 105–6 Kathmandu (Valley) (see also Nepal) 16, 19, 135–52, 239, 243, 299, 303 Kathmandu Monument Zone (KMZ) 135, 141 Kazakhstan 90, 96 Khmer Rouge 74–5 Kinabalu Park (see also Malaysia) 19, 103–119, 303 Korea, Republic of 39, 126, 304 Kyrgyzstan 90, 96 labour rights 11; in Philippines 165–6; in Vietnam 285–6 land and resource rights 11, 13–14, 42, 203, 207–8, 209, 296, 303; in Australia 225, 228, 229; in Malaysia 105, 116; in Nepal 139–40, 247; in Philippines 163–5, 261; 265, 266–7; in Vietnam 177–8, 179, 185, 286 livelihoods and rights 15–16, 20, 42, 56, 131, 203, 209–10, 303; in Australia 218, 232; in Malaysia 105, 107; in Myanmar 125, 128; in Nepal 137, 144–6, 147, 148–50, 250; in Philippines 159, 160–1, 164–8, 264, 266; in Vietnam 176, 179, 180–1, 281–2, 285–7, 288–9 local rights 7, 13, 174, 175, 183, 305, 308; in Malaysia 103–11, 114–16; in Nepal 136–52; in Vietnam 177, 182 Mabo v Queensland (also known as Mabo Case/Decision) 52–3, 219, 223–4 Madhesi 243, 246, 251, 253 n9 Malaysia 20, 103–19, 303 management plan(s) 38, 42, 204, 295, 304; Greater Sandy Region Management Plan (Australia) 53, 60; Mt Hamiguitan Management Plan (Philippines) 264; Sambor Prei Kuk Management Plan (Cambodia) 71–3, 75–6, 81, 82; Xi’an Management Plan (China) 96; in Philippines 261; in Vietnam 178 Marshall Islands 8 minority (ethnic) rights (see also ethnic minorities and Indigenous peoples and rights) 16–17, 34, 204, 210–11; in Nepal 143–4, 148, 150, 242; in Vietnam 43, 172–90

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minority (other than ethnic) rights 15, 16–7, 195, 203; in Australia 62, 225; in Nepal 242, 243, 246, 249 Mount Hamiguitan Range Wildlife Sanctuary 258–9, 263–6 Myanmar 20, 120–34 Nara Document on Authenticity 126, 143 narratives 8, 9, 38, 295, 296, 298, 299, 307; celebratory 2, 6–7, 181; cultural 75; development 3; national identity 3, 38; omission/ exclusion 176, 297; value 38 Native Title (Australia) 51, 53, 56–7, 59–61, 218, 223–4, 231 neoliberal(ism) 166; in Vietnam 181–3 Nepal 11–12, 19, 20, 21, 135–152, 238–56, 303, 304; examples of heritage-related legal cases 247–9; indigenous people, lack of definition 245 New Zealand 5, 16, 51, 52, 311 n5 Newari people 139, 142, 146, 148 NIPAS (National Integrated Protected Areas System Act (Philippines)) 258, 262–3 Non Governmental Organisations (NGOs) 36, 37, 39–40, 42, 61, 304, 305, 309; in Malaysia 107, 108, 114-16; in Philippines 159 Office of the High Commissioner on Human Rights (OHCHR) 35, 195, 200–1 Operational Guidelines 5–6, 15, 21, 126, 198, 204, 207, 209, 229, 230, 310; revision of 32, 36, 40, 50, 64, 199, 205 Our Common Dignity initiative 12, 35, 300 Outstanding Universal Value (OUV): descriptions of sites in Australia 42, 55; in Cambodia 71–2; in Malaysia 103; in Nepal 239; in South Africa 38; in Vietnam 176; intangible heritage not included 107, 110, 117, 137, 298, 300; examples of qualifiers 117, 153, 176, 186 n5, 210 Papua New Guinea 13 participation 3, 10, 11, 12–13, 14–15, 19, 20, 42, 43–4; in K’gari 56, 58; in Xi’an 94, 100, 101; in Malaysia 111, 114; in Myanmar 122, 128–31; in Nepal 137, 140–2, 149; 239, 241–2; in Philippines 153–4, 158, 162, 169; in Vietnam 178, 186; and World Heritage 194, 200, 203–7; in Australia 228, 231, 232

324 Index

Patan (including Patan Monument Zone (PMZ)) 135, 139, 141, 143–6 Philippines 5, 11, 12, 16–17, 19, 153–171, 257–274, 303; Bill of Rights 259, 270 Phong Nha–Ke Bang (see also Vietnam) 16, 19, 43, 172–90, 283, 286, 299, 303 political economy of World Heritage 8, 184, 295, 300, 306–7, 309 politics of recognition 16, 129, 298 poverty 299; in Myanmar 125; in Nepal 146; in Philippines 158, 167, 168, 260; in Nepal 249; in Vietnam 180, 286 Preah Vihear 71, 80 procedural rights 11, 309 property rights 13–14, 203, 207–8, 303, in Australia 56, 218, in China 99, in Nepal 139–40, in Philippines 266, in Vietnam 281–2, 283 public–private partnerships 182, 296, 307 regional human rights mechanisms, lack of in Asia 4 religion/religious rights 16, 31, 34, 194–5; in Cambodia 70–86; in Australia 225; in China 94; in Malaysia 104–5, 113; in Myanmar 125–7; in Nepal 139, 142, 144, 241, 246 relocation (see also dispossession and eviction) 3, 13, 19; in China 19, 96–100; in Malaysia 104–5, 106, 107, 110; in Myanmar 123, 125, 130; in Philippines 159, 162–3, 168, 267; in Vietnam 177, 181, 282, 283, 288 remedy (see also compensation and restitution) 11, 185–6; in Malaysia 109–12; in Nepal 240, 243, 247–9; in Vietnam 185–6 resettlement see relocation resource rights see land and resource rights restitution (see also compensation and remedy) 14 right to education 11, 240, 242, 245, 302 right to life 213 n20, 241, 254 n33 right(s)-holder 11, 34, 37, 44, 53, 87, 89, 94, 98–9, 108, 112, 122, 128, 147–9, 177, 181, 182, 307, 309–11 rights as heritage 37–9; as operational practice 35–6; as social justice 39–40 (see also social justice); in heritage 33–5; of heritage 40–1; to heritage 36–7 rights: inter-connectedness of 1, 9–12, 195, 198–9, 243 Sabah see Kinabalu and Malaysia Sambor Prei Kuk (Cambodia) 18–19, 70–86

Security Council Resolutions 1, 41, 201 Shaheed, Farida 14, 35, 143 Singapore 126 social effect 3, 8–9, 247 social equity 116, 150, 183, 309, 310 social justice (see also rights as social justice) 2, 5, 10, 20, 38–40, 62, 82, 83, 131, 185, 310, 311; in Nepal 246, 249; in Philippines 259, 262, 265 social media: in Malaysia 116; in Philippines 158; World Heritage campaign 40 solidarity 145, 148, 179, 241 Solomon Islands 13 sovereignty 43, 115, 183, 195, 260, 269, 302, 304 Sri Lanka 4 State of Conservation reports 8–9 subsidiarity 194, 196–7 substantive rights 11, 34, 128, 210, 211, 300 Sustainable Development Policy 30, 36, 128, 193, 199–200, 202, 217, 289, 301, 308–9 Taiwan 126 tangible heritage 14, 38, 53 Tasmanian Wilderness World Heritage Area 42, 226, 229 tenure rights 207–9; in Malaysia 104, 109, 117; in Vietnam 299 Thailand 4, 16, 35, 42, 126, 304 Torres Strait Islanders (see also Indigenous peoples - Australia) 222–24, 225 tourism 3, 4, 8, 15–16, 58, 80, 83, 209, 297, 306; in China 93; in Bagan, Myanmar 125, 129; in Cambodia 80–1; in Malaysia 106, 108; in Nepal 135, 145, 239, 244; in Vietnam 173, 180, 181–3, 284; in Philippines 156, 159–60, 161, 163, 166, 168 Traditional Owners (see also Native Title) in Australia 49–50, 230–1; rights of 52, 57, 58, 60, 224, 225, 228, 229 Uluṟu–Kata Tjuṯa National Park 51, 52, 54, 230–1 UNESCO 4, 6–7, 30, 31, 59, 78, 79, 120, 121, 127–8, 130–1, 194, 207, 252, 301–2, 307 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 36, 61, 205, 220 Universal Declaration of Human Rights 78, 87–8, 127, 195, 242 urbanisation: in Asia–Pacific 13, 20; in China 87; in Nepal 140, 240; in Vigan (Philippines) 161

Index

Vanuatu 13 Vietnam 11, 17, 19, 21, 43, 172–86, 258, 275–90, 298, 303 Vigan (see also Philippines) 19, 153–71, 303 women 15, 142, 240, 243, 246, 249, 250, 309 World Heritage Committee: and human rights 29–48, 120, 198, 206, 301, 305; silence on rights 11, 43; violations of Indigenous rights 64

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World Heritage Convention 30–1; and human rights 193–216; implementation in Australia 54, 61, 221, 226; in Nepal 238–56; silence on rights 5–8, 298 World Heritage nomination process 50, 205; in China 96; in Malaysia 105, 107, 117; in Philippines 263; in Vietnam 298 Xi’an (China) 19, 87–102, 303, 304

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