Compliance Procedure: Convention Concerning the Protection of the World Cultural and Natural Heritage
- Indigenous peoples — Compliance monitoring in international organizations
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 The Convention concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) was adopted on 23 November 1972. With 193 State Parties—the United Nations Educational, Scientific and Cultural Organization (UNESCO) has 195 Member States—the World Heritage Convention ranks among the most ratified legal instruments and is ‘perhaps the most well-known international treaty’ (Schorlemer, 2009, 322). Its main goal is to safeguard the cultural and natural properties of outstanding universal value, notably through their inscription on the World Heritage List. Over time, this list has gained so much notoriety that it has become far better renowned than the Convention itself.
2 Unlike other international treaties, there is no single, comprehensive mechanism to promote and ensure compliance with the provisions of the World Heritage Convention. These functions are fulfilled through a set of different procedures—including the submission of periodic reports—conducted by several entities (such as the World Heritage Committee (‘WHC’) or the World Heritage Centre). However, the World Heritage Convention provides very few details about the features of this fragmented compliance procedure. Indeed, many of the elements designed to facilitate the implementation and the follow-up of this instrument have been laid out in the Operational Guidelines (‘OGs’). This is particularly the case with regard to the inscription and monitoring for the protection and conservation of properties on the World Heritage List and the List of World Heritage in Danger (OGs, 2017, para 1).
3 The compliance system of the World Heritage Convention has other distinctive aspects. One of them is that its development was a gradual process, which started several years after the adoption of this treaty. While the first OGs adopted in 1977 contained 28 paragraphs and were totally silent on compliance, successive modifications and additions over the last decades led to a complex set of guidelines described in 290 paragraphs, last amended in 2017 and detailing the compliance procedure. The OGs are complemented by the publication of several documents by the Secretariat to guide States Parties in the implementation of the World Heritage Convention and to explain the compliance procedure that involves not only States Parties, but also some advisory bodies who play a crucial role in the protection of the World Heritage.
4 Another feature of the compliance procedure is that non-compliance with the World Heritage Convention can lead to a tangible outcome, since the loss of a World Heritage property’s outstanding universal value may result in its deletion from the World Heritage List. Although this decision is not generally considered as a ‘direct punishment’, the political, economic, and reputational costs of this deletion should not be underestimated (Guzman, 2002, 1845). Because of the prestige associated with properties inscribed on the World Heritage List, as well as the attention given to the List by the public, the media, and the tourism industry, actions—or inactions—that may jeopardize the outstanding universal value of a property are often subject to rigorous scrutiny. In that sense, it can be said that over time, the World Heritage Convention helped to raise public awareness of the fate of the cultural and natural heritage, which contributed to the creation of a system of ‘name and shame’. Public pressure can thus be an important driver of compliance (Howse and Teitel, 2010, 128), which helps to strengthen the formal compliance system set forth by the treaty and its OGs.
B. Main Obligations Subject to the Compliance Procedure
6 The World Heritage Convention is particularly original. First, the same rules protect both cultural heritage and natural heritage (World Natural Heritage) and, with very few exceptions, the compliance procedure is the same for all World Heritage properties. Cultural heritage encompasses ‘monuments’, ‘groups of buildings’, and ‘cultural sites’ (Art 1 World Heritage Convention), such as temples, palaces, historic city centres, old villages, ports, and archaeological sites, whereas natural heritage includes ‘natural features’, ‘geological and physiographical formations’, and ‘natural sites or precisely delineated natural areas’ (Art 2 World Heritage Convention), for instance national parks, glaciers, lakes, mountains, reefs, caves, forests, or fjords. This common protection offered to ‘the most significant manifestations of what is man-made and what is the most extraordinary work of nature’ is unique and unprecedented in international law (Francioni, 2008, 5).
7 Second, the OGs recognize other categories of properties that are not identified in the World Heritage Convention, but are receiving the protection offered by this legal instrument. One category created in 1992 is ‘cultural landscapes’ (Rössler, 2002, 10), which represent the ‘combined works of nature and of man’ and ‘are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces’ (OGs, 2017, para 47). The Cultural Landscape and Archaeological Remains of the Bamiyan Valley (Afghanistan) are a good example of such cultural landscape. Six years later, ‘the integration of cultural and natural heritage in the implementation of the World Heritage Convention was taken further’ (Blake, 2015, 132), with the introduction of the ‘mixed cultural and natural heritage’ in the Guidelines (OGs, 2017, para 46), which are properties that ‘satisfy a part or the whole of the definitions of both cultural and natural heritage’ (OGs, 2017, para 46). The Ancient Maya City and Protected Tropical Forests of Calakmul (Mexico) or the Tongariro National Parks (New Zealand) are among the mixed sites of the World Heritage List. This recognition of the interdependence of nature and culture is unusual and has influenced the evolution of the compliance procedure, as will be described below.
8 The first set of obligations subject to the compliance procedure relates to the conservation of the cultural and natural sites of outstanding universal value. The ‘basic first step’ for States Parties, but also the ‘most central obligation’ of the World Heritage Convention (Boer, 2008a, 86–7), is to identify and delineate such properties situated on its own territory (Art 3 World Heritage Convention). This inventory will define the scope of its commitments at the national level. One of these commitments is to ensure the ‘protection, conservation, presentation and transmission to future generations’ of this heritage, ‘to the utmost of its own resources and, where appropriate, with any international assistance and co-operation’ (Art 4 World Heritage Convention). To achieve these goals, States Parties ‘shall endeavour, in so far as possible, and as appropriate for each country’ (Art 5 World Heritage Convention) to take different measures, such as adopting a general policy to integrate the protection of their cultural and natural heritage into comprehensive planning programmes (Art 5.1 World Heritage Convention), or implementing ‘the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage’ (Art 5.4 World Heritage Convention). The idea is to ensure the safeguarding of all properties of outstanding universal value situated in its territory through the establishment of long-term protection and management (OGs, 2017, para 97). Failure to identify a property, whether for economic, political, cultural, spiritual, or other reasons, ‘could be seen as contrary to the aims of the Convention’ (Boer, 2008a, 92).
9 Another set of obligations under scrutiny relates to the creation of a World Heritage list. Each State Party shall submit to the WHC an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the World Heritage List on the basis of its outstanding universal value (Art 11.1 and 11.2 World Heritage Convention). Considering not only the honour but also the economic impact associated with each nomination of a property on this list, the main ambition of the States Parties is to fulfil this commitment. In fact, ‘the opportunity to have their properties represented on the World Heritage List’ is the most important reward for their compliance with the World Heritage Convention (UNESCO, 2016, 19). It is worth noting that there is no definition of outstanding universal value in the treaty, but according to the OGs, it ‘means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’ (OGs, 2017, para 49). As such, this heritage ‘need[s] to be preserved as part of the world heritage of mankind as a whole’ (Preamble, sub-para 7 World Heritage Convention).
10 In concrete terms, each State Party is encouraged to prepare and submit to the Secretariat a Tentative List, that is, an inventory of the cultural and natural heritage located in its territory which it considers suitable for nomination to the World Heritage List (OGs, 2017, para 62). However, in order ‘to maintain a reasonable balance between cultural and natural heritage on the World Heritage List’ (OGs, 2017, para 57), the WHC may decide to limit the number of nominations examined each year, accept a limited number of nominations per State Party, or apply specific criteria to prioritize an under-represented category of sites. This happened several times in the past (Scovazzi, 2008, 167).
11 Far from being the end of a process, the inscription of a property on the World Heritage List is rather the beginning of an ongoing process of reviewing a State’s compliance with its commitments. For each of the sites appearing on this list, the State Party must ensure, through the implementation of appropriate measures of protection and management of the site, that its ‘[outstanding universal value], including the conditions of integrity and/or authenticity at the time of inscription, are sustained or enhanced over time’ (OGs, 2017, para 96). Thus, and as explained below (section C), one of the main objectives of the compliance procedure is to assess the preservation of the outstanding universal value of properties inscribed on the World Heritage List and to evaluate the actions taken by States Parties to preserve this value.
12 Another important part of the World Heritage Convention is the international assistance mechanism, which plays a crucial role in the protection of World Heritage. In this regard, the most tangible commitment of States Parties is to contribute to the Fund for the Protection of the World Cultural and Natural Heritage of Outstanding Universal Value (‘Fund’) established by the World Heritage Convention (Art 15.3 (a) World Heritage Convention). Through this Fund, Parties can obtain assistance in a variety of forms, including studies on issues raised by the protection of the cultural and natural heritage, provisions of experts or skilled labour, training of staff and specialists, supply of equipment, low-interest or interest-free loans, or even non-repayable subsidies (Art 22 World Heritage Convention). Any State Party may request international assistance for property forming part of the cultural or natural heritage of outstanding universal value situated within its territory (Art 19 World Heritage Convention). In many cases, such international assistance may be crucial for the preservation of the outstanding universal value of a property and thus plays an important role in the compliance of some States Parties with their commitments (Raustiala, 2000, 420). This assistance mechanism is completed by general commitments by States Parties to cooperate in order to protect the World Heritage (Art 6.1 World Heritage Convention), and more specifically ‘to give their help in the identification, protection, conservation and presentation’ of this heritage if a State requests it (Art 6.2 World Heritage Convention). Moreover, each State Party must refrain from taking any deliberate measures which might damage the cultural and natural heritage situated on the territory of other States Parties (Art 6.3 World Heritage Convention).
C. Entities Involved in the Compliance Procedure
13 The compliance procedure relies essentially on the action of three entities identified in the World Heritage Convention: the WHC (section C.1), the World Heritage Centre (section C.2) acting as the Secretariat, and the Advisory Bodies (section C.3). However, individuals and other stakeholders may also have an important role to play (section C.4).
1. World Heritage Committee
14 The WHC, designated in the World Heritage Convention as the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (Art 8 (1) World Heritage Convention), is composed of 21 States Parties equitably representing the different regions and cultures of the world (Art 8 (2) World Heritage Convention). As such, the WHC ‘can be considered as representing the common interest of States Parties in the “cultural and natural heritage of outstanding interest” and its preservation “as part of the world heritage of mankind as a whole” (to recall the Preamble of the Convention)’ (Scovazzi, 2008, 149). In operation since 1976 (OGs, 2017, para 5), the WHC deals with the most important matters related to the implementation of the World Heritage Convention, in close cooperation with the Secretariat and States Parties. Its main functions are: to select the cultural and natural properties of outstanding universal value to be inscribed on the World Heritage List; to examine the state of conservation of properties inscribed on the World Heritage List; to decide which properties inscribed on the World Heritage List are to be inscribed on or removed from the List of World Heritage in Danger; to decide whether a property should be deleted from the World Heritage List, and; to determine how the resources of the World Heritage Fund can be most advantageously used to assist States Parties in the protection of their properties of outstanding universal value (Arts 11.2, 11.4, 11.6, 11.7, 13.1 World Heritage Convention; OGs, 2017, para 24). Another important task of the WHC is to define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included on the World Heritage List and on the List of World Heritage in Danger (Art 11.5 World Heritage Convention). The WHC considers a property as having outstanding universal value if the property meets one or more of the ten criteria defined in the Guidelines (OGs, 2017, para 77), if it respects the conditions of integrity and/or authenticity (OGs, 2017, para 79–95), and if it has an adequate protection and management system to ensure its safeguarding (OGs, 2017, para 78). When deciding to inscribe a property on the World Heritage List, the WHC adopts a Statement of Outstanding Universal Value for the property (OGs, 2017, para 154). From this moment, the State Party has the responsibility to preserve and enhance this value. Finally, it is worth noting that the establishment of a representative, balanced, and credible World Heritage List has been, and remains, a major challenge for the WHC. To reach this objective, different strategies have been elaborated over time, including the Global Strategy for a Representative, Balanced and Credible World Heritage (1995) and the Budapest Declaration on World Heritage (2002) (OGs, 2017, paras 54–5). As of 7 July 2019, 1121 properties located on the territories of 167 States Parties were inscribed on the World Heritage list, and 53 properties located in 32 States Parties were also inscribed on the List of World Heritage in Danger (World Heritage List (2019)). As natural heritage represents less than 20 per cent of the listed properties, the vast majority of properties on the World Heritage List are cultural heritage properties.
2. World Heritage Centre
15 Established in 1992, the World Heritage Centre acts as the Secretariat of the World Heritage Convention and assists the WHC (Art 14.1 World Heritage Convention; OGs, 2017 para 27)). It also assists and collaborates with States Parties. Its main tasks are: the implementation of decisions of the WHC and resolutions of the General Assembly; the transmission to the relevant Advisory Bodies of nominations to the World Heritage List; the administration of monitoring mechanisms; and the coordination of International Assistance (OGs, 2017, para 28). Beyond this very formal description of its mandate, the Secretariat is in fact the body that carries out daily monitoring of the implementation of the World Heritage Convention and takes all the administrative decisions necessary to fulfil this mission. This is the role of the Secretariat for several other international legal instruments, such as 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.
3. Advisory Bodies
16 More original is the implication of some Advisory Bodies in the monitoring and implementation of this treaty. This involvement is primarily based on the text of the World Heritage Convention, which provides that ‘a representative of the International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre) [‘ICCROM’], a representative of the International Council of Monuments and Sites [‘ICOMOS’] and a representative of the International Union for Conservation of Nature and Natural Resources [‘IUCN’] … may attend the meetings of the [WHC] in an advisory capacity’ (Art 8.3 World Heritage Convention). The World Heritage Convention also provides that the WHC may call on such organizations for the implementation of its programmes and projects (Art 13.7 World Heritage Convention; OGs, 2017, para 30) and that the Director-General of UNESCO may utilize their services in the preparation of the WHC’s documentation and the agenda of its meetings (Art 14.2 World Heritage Convention). In practice, however, the involvement of the Advisory Bodies is much more important, as the WHC and the World Heritage Centre are in constant interaction with these entities to monitor several aspects of the implementation of the World Heritage Convention and to inform its decisions. As described in the Guidelines, the roles of the Advisory Bodies are, inter alia, to ‘advise on the implementation of the World Heritage Convention in the field of their expertise’; to ‘assist with the development and implementation of the Global Strategy for a Representative, Balanced and Credible World Heritage List, … Periodic Reporting, and the strengthening of the effective use of the World Heritage Fund’; to ‘monitor the state of conservation of World Heritage properties (including through reactive monitoring missions at the request of the [WHC] and Advisory missions at the invitation of the States Parties)’; to ‘review requests for International Assistance’; and ‘in the case of ICOMOS and IUCN [to] evaluate properties nominated for inscription on the World Heritage List, in consultation and dialogue with nominating States Parties, and present evaluation reports to the [WHC]’ (OGs, 2017, para 31). On this last specific point, the involvement of the various Advisory Bodies is not exactly the same: evaluation of cultural heritage nominations is carried out by ICOMOS, evaluation of natural heritage nominations is conducted by IUCN, and evaluation of properties in the category of ‘cultural landscapes’ and ‘mixed properties’ involves both ICOMOS and IUCN (OGs, 2017, paras 144–6).
4. Individuals and Other Stakeholders
17 Finally, the potential involvement of individuals and other stakeholders in the implementation of the WHC’s programmes and projects must be underlined. While the text of the World Heritage Convention already provided for such involvement at the time of its adoption (Art 13.7 World Heritage Convention), the Guidelines have remained relatively vague on this issue. According to these Guidelines, ‘States Parties … are encouraged 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’ (OGs, 2017, para 12), in particular when they prepare their Tentative Lists (OGs, 2017, para 64; Guidelines on the inscription of specific types of properties on the World Heritage List, OGs, 2017, Annex 3, para 12). Despite such limited acknowledgement of the involvement of individuals and other stakeholders, it is generally admitted that civil society plays a crucial role in the protection of World Heritage properties at the local level. The essential contribution of sites’ management authorities to compliance with the decisions adopted by the WHC is also widely recognized (Cameron and Rössler, 2017, 263–4).
18 However, it is worth noting that the World Heritage Convention does not mention the interest and potential contribution of Indigenous Peoples in the management of some cultural and natural sites, and it took several decades for real attention to be paid to these groups. Hence, it was only in 2015 that the WHC decided to amend the OGs in order to include ‘paragraphs which address issues related to indigenous peoples and World Heritage’ (World Heritage Convention (2015), Decision 39 COM 11, para 10). This modification to the OGs followed the adoption of the Declaration on the Rights of Indigenous Peoples in 2007 and several recommendations made by different international bodies. Among the most important ones are the Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site adopted by the African Commission on Human and Peoples’ Rights (2011, para 2), as well as the resolution adopted by the IUCN to support ‘the adoption and implementation of a rights-based approach to conservation by the World Heritage Committee and to promote the principles and goals of the UN Declaration on the Rights of Indigenous Peoples’ (2012, para 1(b)). The guidelines of the World Heritage Convention now recognize that ‘partners in the protection and conservation of World Heritage can be those individuals and other stakeholders, especially local communities, indigenous peoples, governmental, nongovernmental and private organizations and owners who have an interest and involvement in the conservation and management of a World Heritage property’ (OGs, 2017, para 40, referring to World Heritage Convention, 2015, Decision 39 COM 11). Moreover, it is now explicitly admitted that the ‘participation in the nomination process of local communities, indigenous peoples, governmental, non-governmental and private organizations and other stakeholders is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property’ (OGs, 2017, para 123, referring to World Heritage Convention (2015) Decision 39 COM 11). To that end, ‘States Parties are encouraged to prepare nominations with the widest possible participation of stakeholders and to demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been obtained’ (OGs, 2017, para 123, referring to World Heritage Convention (2015) Decision 39 COM 11). Although such progress has to be acclaimed, the real involvement of these groups in the implementation of the World Heritage Convention has yet to be demonstrated.
D. Compliance Mechanisms
19 Like many other treaties adopted under the auspices of UNESCO (the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions being one of the very few exceptions), the World Heritage Convention does not provide for a dispute settlement mechanism. Nor does the treaty provide for sanctions for non-compliance by States Parties, although some decisions of the WHC may have negative consequences for a defaulting party. This is certainly the case when a property is deleted from the World Heritage List. Finally, probably because of the absence of reciprocal commitments under the World Heritage Convention, the behaviour of a State Party with respect to World Heritage sites located on its territory does not appear to affect the behaviour of other States Parties concerning the protection of their own sites or the respect of their other commitments.
20 Therefore, beyond the influence of exogenous factors already mentioned (such as public attention, media pressure, tourist attractiveness, and economic impacts of a nomination on the World Heritage List), it appears that compliance by States Parties with their commitments could be directly influenced by the joint action of the entities described earlier and involved in the monitoring of the domestic implementation of the World Heritage Convention (Raustiala, 2000, 415). In that sense, the reporting and monitoring system established by this treaty is much more than a tool designed to ensure transparency and stimulate the circulation of information. But if this system can be qualified as the main compliance procedure for States Parties (see section D.1 below), the impact on compliance of the List of World Heritage in Danger must also be underlined (see section D.2 below).
1. The Reporting and Monitoring System
21 An overview of the evolution of the reporting and monitoring system (section D.1(a)) is a useful preliminary step to better understand the specific role played by each of its components, namely the periodic reporting (section D.1(b)), the reactive monitoring (section D.1(c)), and the reinforced monitoring (section D.1(d)).
22 The only compliance procedure described in the World Heritage Convention—periodic reporting—was not implemented until 25 years after the adoption of this treaty, while the main monitoring system, called reactive monitoring, is not mentioned in this treaty but has been in place for decades. The non-implementation of the only Article of the World Heritage Convention dealing with compliance has therefore been replaced by an alternative and continuous procedure developed by the Secretariat and the WHC over the years. Today, both mechanisms, periodic reporting and reactive monitoring, are conducted in parallel in accordance with a schedule and procedure specific to each of them. Another aspect to emphasize is that over time, the World Heritage Convention and more specifically its OGs have developed a complex structure of reporting mechanisms, involving in a very active way and in different manners the WHC, the World Heritage Centre, the Advisory Bodies, and some expert panels and reviewers (Boer, 2008b, 336). In addition to the reports already mentioned above, this includes the WHC Reports to the General Assembly of States Parties to the Convention and the General Conference of UNESCO, the Reports by the World Heritage Centre, the Reports of WHC Meeting Decisions to States Parties, the Reports from the Advisory Bodies to the WHC (these reports are the Advice on Implementation of the Convention; the Reports on the Global Strategy for a Representative, Balanced and Credible World Heritage List; the periodic reporting by the States Parties; the Reports on reactive monitoring; and the Evaluation Reports), and the Reports of Expert Meetings and Studies (Boer, 2008b, 339–43).
23 The main objective of this complex system of reporting is therefore to ensure compliance by States Parties with one of the most crucial obligations of the World Heritage Convention, referred to as the ‘raison d’être’ of this treaty, namely the conservation of the outstanding universal value of their World Heritage properties (Cameron and Rössler, 2017, 133). The monitoring of the World Heritage sites, the list of World Heritage in Danger, and International Assistance are three aspects of the compliance procedure designed to orientate the actions of States Parties to respect their commitments. It should be noted, however, that since not all States Parties to the World Heritage Convention have properties on the World Heritage List (there are 1121 properties, located on the territory of 167 States Parties), the compliance procedure described below does not have the same relevance for each country. In fact, ‘due to complex inscription procedures and the lack of solid legal and documentary capacities’ (Schorlemer, 2009, 329), several developing countries have never presented a property and are not represented on the List.
(b) Periodic Reporting
24 Article 29 World Heritage Convention lays out a specific reporting procedure for States Parties to ‘give information on the legislative and administrative provisions which they have adopted and other action which they have taken for the application of this Convention, together with details of the experience acquired in this field’. However, as mentioned earlier, this procedure was activated only in 1997 and to date, only two full cycles of periodic reporting have been completed globally (first cycle: 2000–6; second cycle: 2008–15; the third cycle started in 2017 after a two-year revision process of the questionnaire used by States Parties to write their report). In accordance with this procedure conducted every six years (OGs, 2017, para 203), each State Party must report and assess the extent to which it meets the requirements of the World Heritage Convention (OGs, 2017, para 199). Taking the form of a self-assessment exercise, which necessarily carries some risks of subjectivity (UNESCO, 2016, 15), such a report is divided into two sections. Section I informs about the implementation of the World Heritage Convention at the national level: it ‘refers to the legislative and administrative provisions which the State Party has adopted and other actions which it has taken for the application of the Convention, together with details of the experience acquired in this field’ [emphasis added]. Section II focuses on the state of conservation of each World Heritage property located on the territory of the State Party (OGs, 2017, para 204). In addition to the information provided by the National Focal Points, the report contains the evaluation of the state of conservation by site managers (OGs, 2017, para 206).
25 Considered in isolation, this single procedure does not seem to specifically encourage compliance by States Parties. However, it needs to be analysed in the light of the various steps that follow the production of the periodic reports, as well as other mechanisms for monitoring the state of conservation of World Heritage sites.
26 As for the follow-up of periodical reports, the World Heritage Centre and the Advisory Bodies ‘facilitate the States Parties to consolidate national reports into Regional State of the World Heritage reports’ (OGs, 2017, para 208). More importantly, ‘the [WHC] carefully reviews issues raised in Periodic Reports and advises the States Parties of the regions concerned on matters arising from them’ (Art 29.2 World Heritage Convention; OGs, 2017, para 209). Finally, ‘States Parties, working in partnership with the Secretariat and the Advisory Bodies, develop long-term regional follow-up programmes structured according to the Committee’s Strategic Objectives and submit them for examination. These Programmes are adopted as follow up to Periodic Reports and regularly reviewed by the Committee based on the needs of States Parties identified in Periodic Reports’ (OGs, 2017, para 210). Of course, this remains a procedure to which the State Party voluntarily agrees to submit. Nevertheless, the prospect of one of its properties being transferred to the List of World Heritage in Danger, or even worse, being removed from the World Heritage List, can have the effect of transforming this voluntary approach into a ‘quasi-binding obligation’.
(c) Reactive Monitoring
27 Another important procedure to monitor the state of conservation of World Heritage properties is reactive monitoring, which dates back to 1982. Without foundation in the actual text of the World Heritage Convention, this mechanism has emerged very gradually, thanks to the monitoring practice developed by the Advisory Bodies, first by the IUCN (focusing on natural sites), then years later by the ICOMOS (for the monitoring of cultural sites). Hence, the presentation before the WHC of a first monitoring report on a natural site in 1983 marked the beginning of the first World Heritage monitoring process that was formalized in the 1990s (Cameron and Rössler, 2017, 140–6). The OGs now define reactive monitoring as ‘the reporting by the Secretariat, other sectors of UNESCO and the Advisory Bodies to the [WHC] on the state of conservation of specific World Heritage properties that are under threat’ (OGs, 2017, para 169; World Heritage Convention (2015) Decision 39 COM 11). This type of report may be submitted in a variety of circumstances. For instance, a State Party ‘shall submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the [outstanding universal value] of the property or its state of conservation’ (OGs, 2017, para 169), and so, ‘before making any decisions that would be difficult to reverse’ (OGs, 2017, para 172). The reactive monitoring process may also be foreseen for the properties inscribed—or to be inscribed—on the List of World Heritage in Danger (OGs, 2017, paras 177–91) or in the context of procedures for the eventual deletion of properties from the World Heritage List (OGs, 2017, paras 192–8). As reflected in these Guidelines, the conditions to be met to activate this procedure are not clearly defined. Nor are the follow-up of reports produced by the State Party in accordance with the reactive monitoring.
28 The OGs clearly indicate that ‘the information received, together with the comments of the State Party and the Advisory Bodies, will be brought to the attention of the WHC in the form of a state of conservation report for each property’, however the next steps may vary (OGs, 2017, para 176). In some cases, the WHC ‘may decide that the property has not seriously deteriorated and that no further action should be taken’ (OGs, 2017, para 176(a)). If the WHC considers that ‘the property has seriously deteriorated, but not to the extent that its restoration is impossible’, more than one scenario may occur: the WHC ‘may decide that the property be maintained on the List, provided that the State Party takes the necessary measures to restore the property within a reasonable period of time’ (OGs, 2017, para 176(b)) or it ‘may decide to inscribe the property on the List of World Heritage in Danger’ (OGs, 2017, paras 176(c), 183–9). Another possible scenario can occur ‘when there is evidence that the property has deteriorated to the point where it has irretrievably lost those characteristics which determined its inscription on the List’; in that case, the WHC may decide to delete the property from the World Heritage List (OGs, 2017, paras 9, 24(d), 176(d)), 192; World Heritage Convention (2015) Decision 39 COM 11). Again, the pressure exerted by this mechanism can be quite strong, leading the Parties to take the necessary means to preserve the outstanding universal value of their properties.
(d) Reinforced Monitoring
29 Finally, another mechanism was put in place in 2007 ‘to improve States Parties compliance with the Convention’ (Schorlemer, 2009, 337). The initial intention was to activate it ‘in exceptional and specific cases either by the [WHC] or the Director-General’ (Schorlemer, 2009, 337). Without replacing the existing mechanisms, the objective was to put in place a ‘more “robust” monitoring and reporting activity beyond the standard requirement or conservation reports usually required by the [WHC]’ (Schorlemer, 2009, 338). Despite the fact the Guidelines do not refer to it, this ‘reinforced monitoring mechanism proposed by the Director-General to ensure the proper implementation of the [WHC's] decisions’ (World Heritage Convention (2007) Decision 31 COM 5.2) has been used several times. In the year of its adoption, it was immediately activated to monitor properties already inscribed on the List of World Heritage in Danger (Jerusalem, sites in Republic Democratic of Congo and Dresden) (World Heritage Convention (2007) Decision 31 COM 7A.18 and 7A.27). It was also used in 2008 and 2009 to monitor six other properties, including some that were not yet part of the List of World Heritage in Danger. In 2011, an evaluation report highlighted some shortcomings of this mechanism and questioned its link with the monitoring system for properties inscribed on this List of World Heritage in Danger. On this basis, the WHC decided that it would be activated only ‘in exceptional situations when the normal mechanisms of the Convention are not sufficient, urgent action is required that cannot wait for a decision by the [WHC], and there is a critical danger of the property losing its [outstanding universal value] between sessions’ (World Heritage Convention (2011) Decision 35 COM 7.2). In 2018, eight decisions adopted by the WHC were still referring to this reinforced monitoring mechanism (World Heritage Convention (2018) Decision 42 COM 7A.14-15-45-47-48-50-51).
2. The Impact on Compliance of the List of World Heritage in Danger
30 While the World Heritage List is often regarded as the jewel of the World Heritage Convention, another list, less known to the general public, is a powerful tool to influence the action of States Parties in favour of the preservation of the outstanding universal value of their properties: the List of World Heritage in Danger. According to the World Heritage Convention, it is the responsibility of the WHC to ‘keep up to date and publish, whenever circumstances shall so require … a list of the properties appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention’ (Art 11.4 World Heritage Convention). Such properties may be inscribed on the List of World Heritage in Danger when the property under consideration is on the World Heritage List, this property is threatened by serious and specific danger, and major operations are necessary for its conservation (OGs, 2017, para 177). In some exceptional circumstances, the property can be inscribed on both lists—World Heritage List and List of World Heritage in Danger—at the same time.
31 It did not take much time to inscribe a first site on the List of World Heritage in Danger—the city of Kotor in Yugoslavia, now Montenegro, seriously damaged after a major earthquake in 1979. However, the inscriptions evolved slowly and incoherently over the decades (Droste, 2009, 437). The development of this list also raised important issues over time, in particular when a site under threat was considered for inscription against the agreement of the State Party. According to the OGs, ‘when considering the inscription of a property on the List of World Heritage in Danger, the [WHC] shall develop, and adopt, as far as possible, in consultation with the State Party concerned, a Desired state of conservation for the removal of the property from the List of World Heritage in Danger, and a programme for corrective measures’ (OGs, 2017, para 183). Neither the World Heritage Convention nor the OGs request the consent of the State Party, but it goes without saying that the consultations suggested by the OGs are more efficient when the State Party does not oppose the inscription of its property on the list. Indeed, when the State Party and the organs of the World Heritage Convention agree on the need for a site to be inscribed on the List of World Heritage in Danger, consultations provide an opportunity for an exchange of views on how best to safeguard the outstanding universal value of the property under threat. When the State Party is more recalcitrant, consultations may also aim to induce a change in the State’s behaviour with respect to the property. In such a case, an inscription on the List of World Heritage in Danger becomes a real instrument of compliance. It opens the door to a strict procedure of follow-up and recommendations aimed at inducing the State Party to adopt necessary measures to preserve the outstanding universal value of its property.
32 One cannot deny the fact that the List of World Heritage in Danger is not always perceived as a positive tool, but rather as a ‘black list’ (Cameron and Rössler, 2017, 177) to ‘punish’ States Parties that own a threatened property. However, practice shows on the contrary that the List of World Heritage in Danger is a crucial tool for safeguarding the outstanding universal value of a property and several examples support such conclusion. Over the years, several properties have been deleted from this list, thanks to the effort of States Parties, and in some cases International Assistance, that allow the adoption of an appropriate management plan and/or the elimination of the threat. The Old City of Dubrovnik, bombed during the conflict in the former Yugoslavia (1992); the Temples of Angkor threatened by looting (1992); the Galapagos Island at risk due to invasive species, increased tourism, demographic growth, and illegal fishing (2007); and the Belize Barrier Reef impacted by mangrove cutting and excessive development (2009) are among the numerous ‘success stories’ of this list, now removed from it and still on the World Heritage List. Several tools and procedures—such as expert missions and annual review of the state of conservation (OGs, 2017, para 190)—have contributed to preserving the outstanding universal value of these properties now considered to be safe, although some remain vulnerable.
33 However, less successful outcomes are also possible. On the basis of these regular reviews of the properties inscribed on the List of World Heritage in Danger, the WHC shall decide to keep a property on this list when additional measures are required, or even ‘to consider the deletion of the property from both the List of World Heritage in Danger and the World Heritage List if the property has deteriorated to the extent that it has lost those characteristics which determined its inscription on the World Heritage List’ (OGs, 2017, para 191). Practice shows that both scenarios are plausible.
34 Some properties have been on the List of World Heritage in Danger for decades. This is the case of Jerusalem (1982), Potosi (1987), Mount Nimba Strict Nature Reserve (1992), and five national parks on the territory of the Democratic Republic of Congo (1994, 1996, 1997, 1997, 1999). The cases are so diverse that it is difficult to draw general conclusions about the reasons for keeping certain properties on this list for such a long period. Nonetheless, it does show the limitations of the list in getting States Parties to live up to their commitments. The positive side, however, should not be ignored: as long as a property is on the World Heritage List in Danger, it is subject to rigorous monitoring. The State Party should remain vigilant against the threat, continue its discussions with the World Heritage Convention bodies and undertake positive action to improve the condition of its property.
35 Finally, a passive or refractory attitude of the State Party can lead to the other scenario foreseen in the OGs, namely the loss of the outstanding universal value of the property and removal from the World Heritage List. This happened twice since the entry into force of the World Heritage Convention: in 2007 with the Arabian Oryx Sanctuary (Oman) and in 2009 with the Dresde Elbe Valley (Germany). In the first case, the WHC regretted that ‘the State Party failed to fulfil its obligations defined in the Convention’ [emphasis in original], that it ‘has proceeded to significantly reduce the size of the Arabian Oryx Sanctuary … thus destroying the property’s [outstanding universal value] and integrity’ and that it was ‘seeking to pursue hydrocarbon exploration activities within the original boundaries of the property’ (World Heritage Convention (2007) Decision 31 COM 7B.11, paras 8–9, 11). On this basis, the WHC decided to delete the property from the World Heritage List. Former decisions showed the lack of cooperation from the State Party, despite some very clear indications given by the WHC, using a vocabulary such as ‘requests the State Party to clarify the progress under the management plan’ (World Heritage Convention (2005) Decision 29 COM 7B.6) or ‘urges the State Party to invite a joint monitoring mission of the World Heritage Centre and IUCN to assess the state of conservation of the property’. The State Party’s refusal to comply with its commitments, and in particular its choice not to preserve the outstanding universal value of the property and to prioritize other interests was clearly the basis on which the WHC had decided to withdraw the property.
36 In the case of the Dresden Elbe Valley, the issue was about a project of local authorities to build a bridge across the property, offering a good example of the important role that domestic politics can play in determining compliance (Trachtman, 2010, 129; Schoch, 2014, 199). This ‘demand for modernization’ not only ‘raised the question of compliance with important treaty provisions’ (Schorlemer, 2009, 322), but it also showed ‘a lack of political desire’ to find a positive solution (Schorlemer, 2009, 324). The situation was all the more complicated as there were clear signs of disagreement between the State Party’s stakeholders as to the desirability of carrying out this project, in particular with regard to the alternative solution of a tunnel (Schorlemer, 2009, 325). In any event, the WHC’s decision was based on the same conclusion as in the previous case, namely that ‘that the authorities have not halted the project, detrimental to the [outstanding universal value] of the property and that the damage already caused has not been reversed’ (World Heritage Convention (2009) Decision 33 COM 7A.26). Consequently, the WHC decided to delete the property from the World Heritage List.
37 This outcome is certainly not desirable and the List of World Heritage in Danger leads more often to other results. In other words, ‘delisting can be a measure used by the WHC to persuade a State Party to comply with is recommendations’ (Scovazzi, 2008, 170) and several cases testify to this important power conferred by the list.
38 As part of the world heritage of mankind, the cultural and natural heritage of outstanding universal value has to be preserved, promoted, and celebrated. However, as in the case of many other international instruments, ‘the dialectic between sovereignty on the one hand, and world community interest on the other’ has represented, and still remains, a major challenge for the implementation of the World Heritage Convention (Francioni, 2008, 5–6). The compliance procedure, described in rather vague terms in the treaty, has been constantly clarified and enhanced. The information and transparency mechanism it originally established has gradually become a more prescriptive tool, which has proved its effectiveness in guiding States towards preserving the outstanding universal value of hundreds of properties. But this mechanism also has its limits. In the case of the Dresden Valley, ‘the behaviour of the communities affected and the supervising authorities generally reflect a huge uncertainty with regard to the status and relevance of the 1972 World Heritage Convention’ (Schorlemer, 2009, 328). As regards the Arabian Oryx Sanctuary, the mechanism has demonstrated the ease with which a State can totally ignore the recommendations of the committee to prioritize its own economic interests. Thus, beyond the rules, compliance will always depend on the value that is given by a State Party to the World Heritage properties located on its territory, a hierarchy of values over which, for better or worse, international law and procedure still have very little control.
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