Part IV Procedural and Institutional Aspects, Ch.31 International Cultural Heritage Law: The Institutional Aspects
Edited By: Francesco Francioni, Ana Filipa Vrdoljak
The Institutional Aspects
One of the purposes of the United Nations is to achieve international cooperation in solving international problems of a cultural character (art 1, para 3, of the UN Charter). The UN is entrusted, inter alia, with the promotion of international cultural and educational cooperation (art 55), with a view to the creation of conditions of stability and well-being necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.1 Intercultural dialogue and safeguarding of cultural diversity can only contribute to the construction of lasting peace between and within States.
On a global basis, the protection of the cultural heritage falls within the mandate of the United Nations Educational Scientific and Cultural Organization (UNESCO),2 an international organization established by a treaty called the Constitution of UNESCO (p. 738) concluded in London on 16 November 1945.3 UNESCO, which has its headquarters in Paris, France,4 is a UN specialized agency, linked to the UN by a relationship agreement concluded in 1946.5 This agreement provides for effective cooperation between the two organizations in the pursuit of their common purposes and, at the same time, recognizes UNESCO autonomy within the fields of its competence.
UNESCO has the purpose of contributing to peace and security by promoting collaboration among the nations through education, science, and culture in order to further universal respect for justice, the rule of law, human rights, and fundamental freedoms (art I, para 1, Const.). The existence of close links between culture and peace, and conversely between ignorance and war, is clearly set forth in the preamble of the Const., whereby States Parties declare:
That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed;
That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war …
That a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind.
In 2013, when approving the medium-term strategy for the period 2014–21, the UNESCO General Conference endorsed the following mission statement:
As a specialized agency of the United Nations, UNESCO—pursuant to its Constitution—contributes to the building of peace, the eradication of poverty, and sustainable development and intellectual dialogue through education, the sciences, culture, communication and information.6
(p. 739) The Const. is subject to signature and acceptance (art XV, paras 1 and 2, Const.). Membership of the UN carries with it the right to membership of UNESCO (art II, para 1, Const.).7 This implies that only States can be UNESCO members. States not members of the UN may be admitted to UNESCO membership, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference (art. II, para 2, Const.). Territories which are not responsible for the conduct of their international relations may be admitted as associate members by the General Conference, by a two-thirds majority of members present and voting, upon application made on behalf of such territories by the member having responsibility for their international relations (art II, para 3, Const.). Any member or associate member may withdraw from UNESCO by notice that takes effect on 31 December of the year following that during which the notice was given (art II, para 6, Const.).8
As at July 2019, UNESCO has 193 Member States and eleven associate members.9 Some vicissitudes, which from time to time have affected UNESCO and show the political implications of its action, do not detract from the importance of this organization and its mandate. For instance, South Africa withdrew as from 31 December 1956, claiming that some of UNESCO’s publications constituted an interference in the country’s racial problems, but rejoined UNESCO on 11 December 1994. The United States, which withdrew as of 31 December 1984, citing disagreement over management and other issues, rejoined UNESCO on 30 September 2003.10 The UNESCO decision to admit Palestine as a Member State (31 October 2011)11 determined a major financial crisis within the organization, as the United States decided to withhold its contributions. In 2017, the United States notified its decision to withdraw again from UNESCO, taking effect on 31 December 2018.12 Soon after, Israel also announced its withdrawal from UNESCO.
In recent years, cooperation between the UN and UNESCO has been strengthened to face the threats posed by the practice of targeting or looting cultural properties in situations of crisis or conflict or with the aims of exacerbating tensions and financing illegal activities.13 This can only shed further light on the link between culture and international peace and security.
Already by Resolution 1483 (2003) relating to reconstruction in Iraq, the UN Security Council stressed ‘the need for respect for the archaeological, historical, cultural, and religious heritage of Iraq, and for the continued protection of archaeological, historical, cultural, and religious sites, museums, libraries, and monuments’. Accordingly, UN Member States were bound to return all illegally removed cultural properties, and UNESCO, the International Criminal Police Organization (Interpol) and other international organizations were called upon to assist in such action:
The Security Council … decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of Resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.
Resolution 1483 was adopted within the framework of Chapter VII (Action with respect to threats to the peace, breaches of the peace, and acts of aggression) of the UN Charter.
By Resolution 2199 (2015), also adopted under Chapter VII, the Security Council condemned the destruction of cultural heritage in Iraq and Syria, particularly by the Islamic State in Iraq and the Levant (ISIL) and the Al-Nusrah Front (ANF), whether such destruction was incidental or deliberate, including targeted destruction of religious (p. 741) sites and objects. It also noted with concern that the looting and trafficking of other cultural properties was a means to finance terrorist activities:
The Security Council … notes with concern that ISIL, ANF and other individuals, groups, undertakings and entities associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks’.
(para 16; emphasis in original)
The Security Council confirmed as regards Iraq—and extended to Syria—its ban on the trade of removed cultural properties and renewed its call upon relevant international organizations:
The Security Council … reaffirms its decision in paragraph 7 of resolution 1483 (2003) and decides that all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the Iraqi and Syrian people and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.
(para 17; emphasis in original)
By Resolution 2295 (2016), the Security Council authorized a more robust mandate for the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), including assistance to ‘the Malian authorities, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO’ (para 20, c). This was the first time that a peacekeeping mission had been entrusted with functions relating to the protection of the cultural heritage.
In the same direction as the Security Council resolutions are the considerations developed by the UNESCO General Conference in a policy document prepared in 2015, which explains how attacks on cultural heritage today contribute to creating hatred and fragmentation and, consequently, instability and conflict:
The scale and systematic nature of attacks on culture, that we are witnessing today, highlight the strong connection between the cultural, humanitarian and security dimensions of conflicts. The protection of cultural heritage and diversity during conflict appears today as central not only to mitigate vulnerability; but also to break a cycle of violence whereby attacks on culture contribute to further promoting hatred, sectarianism and fragmentation within society, fuelling continuous instability and conflict. Ultimately, attacks against cultural heritage and diversity are attacks against people, their rights and their security. This has been recognized by the (p. 742) international community through numerous statements and declarations and, most significantly, in the United Nations Security Council Resolution 2199, adopted in February 2015, two United Nations Security Council Press Statements and various United Nations General Assembly resolutions.14
The need to integrate the protection of cultural heritage in peace-building processes becomes more evident:
There is today growing recognition that the protection of cultural diversity and the promotion of cultural pluralism, through the safeguarding of the tangible and intangible heritage of communities and the protection of human rights and fundamental freedoms, is more than a cultural emergency. It is a security and humanitarian imperative in conflict and transition situations, and an essential element in ensuring sustainable peace and development. Participation and access to culture and its living expressions, including intangible heritage can help strengthen people’s resilience and sustain their efforts to live through and overcome crisis. A new approach is urgently required at both international and national levels to operationalize the link between protection of cultural heritage and diversity on the one hand; and, on the other hand, humanitarian action, peace-building processes and security policies. In defining this new approach, another significant development must be considered, namely the emergence of a number of new actors, at all levels, governmental and non-governmental, international and regional.15
These kinds of contexts require strategies of close cooperation between the UN and UNESCO:
UNESCO was created in the aftermath of the Second World War to ‘build the defenses of peace in the minds of men and women’ and assure ‘the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science’. The present strategy responds to growing requests for assistance by Member States affected by conflict. It is based on and guided by UNESCO’s overall mandate in the field of culture, as well as relevant conventions and recommendations to safeguard cultural heritage and diversity, and to promote cultural pluralism. This strategy also considers UNESCO’s efforts to protect culture during conflict as an integral element of the overall United Nations response to such situations. Consequently, all initiatives proposed will be carried out in consultation with relevant United Nations partners at global and country levels, or as a comprehensive part of United Nations processes in response to conflict.16
On 17 November 2015, by Resolution 38/C 48 on reinforcement of UNESCO’s action for the protection of culture and the promotion of cultural pluralism in the event of armed conflict, the UNESCO General Conference adopted the strategy set forth in the (p. 743) above-mentioned document, with the understanding that its implementation must be carried out in full coordination and collaboration with concerned Member States and within the framework of United Nations bodies and their mandate. The General Conference also invited
the Director-General to explore, in collaboration with Member States, practical ways for effectively implementing such a mechanism for the rapid intervention and mobilization of national experts, coordinated by UNESCO and in collaboration with the United Nations and other concerned international organizations where appropriate.
The acknowledgement that the protection of cultural heritage is required not only to preserve the traces of human civilization but also to ensure international security and restore peace culminated in UN Security Council Resolution 2347 (2017), which addressed the subject in a general perspective. Welcoming the central role played by UNESCO in protecting cultural heritage and promoting culture as an instrument to bring people closer together and foster dialogue, the Security Council emphasized that
the unlawful destruction of cultural heritage, and the looting and smuggling of cultural property in the event of armed conflicts, notably by terrorist groups, and the attempt to deny historical roots and cultural diversity in this context can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States.
The Security Council affirmed that
the mandate of United Nations peacekeeping operations, when specifically mandated by the Security Council and in accordance with their rules of engagement, may encompass, as appropriate, assisting relevant authorities, upon their request, in the protection of cultural heritage from destruction, illicit excavation, looting and (p. 744) smuggling in the context of armed conflicts, in collaboration with UNESCO, and that such operations should operate carefully when in the vicinity of cultural and historical sites.
The Security Council called upon UNESCO, the United Nations Office on Drugs and Crimes (UNODC), Interpol, the World Customs Organization (WCO), and other relevant international organizations, as appropriate and within their existing mandates, to assist Member States in their efforts to prevent and counter destruction and looting of, and trafficking in, cultural property in all forms.
The main organs of UNESCO are the General Conference, the Executive Board, and the Secretariat (arts III–VI Const.).18
The General Conference is composed of all the Member States and meets in ordinary session every two years. It determines the policies and the main lines of work of the organization and takes decisions on the programmes submitted to it by the Executive Board. Each Member State has one vote, and decisions are taken by a simple majority of members present and voting, except in cases in which a two-thirds majority is required by the Const. or the General Assembly rules of procedure. In the case of decisions for the adoption of so-called ‘standard-setting instruments’ (conventions or recommendations),19 a majority vote suffices for recommendations, but a two-thirds majority is required for conventions. Member States are bound to submit recommendations or conventions to their competent authorities within a period of one year from the close of the session of the General Conference at which they were adopted.20
Under article IX, para 2, Const., the General Conference approves and gives final effect to the budget and to the apportionment of financial responsibility among the Member States. The scale of assessments for UNESCO Member States is based on that of the UN, subject to the adjustments necessitated by the difference in membership between the two organizations. In 2018 it ranged from 0.001 per cent to 22 per cent (United States). According to article IX, para 3, Const., ‘the Director-General may accept voluntary contributions, gifts, bequests and subventions directly from governments, public and private institutions, associations and private persons, subject to the conditions specified in the Financial Regulations’.
(p. 745) The Executive Board consists of fifty-eight Member States, which are elected by the General Conference having regard to the diversity of cultures and a balanced geographical distribution.21 They serve from the close of the session of the General Conference which elected them until the close of the second ordinary session of the General Conference following their election and are eligible for re-election. The Executive Board performs a number of functions that ensure the overall management of UNESCO, such as: to prepare the agenda for the General Conference; to examine the UNESCO programme of work and corresponding budget estimates submitted to it by the Director-General and to submit them to the General Conference with such recommendations as it considers desirable; to take all necessary measures to ensure the effective and rational execution of the programme by the Director-General; and to exercise the powers delegated to it by the General Conference. The Executive Board meets in regular session at least four times during a biennium.
The Secretariat consists of a Director-General and such staff as may be required. The Director-General, who is the chief administrative officer of the organization, is nominated by the Executive Board and appointed by the General Conference for a period of four years. He or she may be reappointed for a further term of four years but is not be eligible for reappointment for a subsequent term. The Director-General formulates proposals for appropriate action by the Conference and the Board, prepares for submission to the Board a draft programme of work with corresponding budget estimates, and prepares and communicates to Member States and to the Executive Board periodical reports on the activities of the organization. The Director-General appoints the staff of the Secretariat in accordance with the staff regulations approved by the General Conference. Subject to the paramount consideration of securing the highest standards of integrity, efficiency, and technical competence, appointment to the staff is on as wide a geographical basis as possible. In the discharge of their duties, the Director-General and the staff are bound not to seek or receive instructions from any government or from any authority external to UNESCO and to refrain from any action which might prejudice their positions as international officials. Each Member State undertakes to respect the international character of the responsibilities of the Director-General and the staff and not to seek to influence them in the discharge of their duties.22
UNESCO enjoys in the territory of each of its members such privileges and immunities as are necessary for the fulfilment of its purposes. Representatives of UNESCO members and UNESCO officials similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization (art XII, Const. referring to art 105, UN Charter).
To realize its purposes, UNESCO is called on, inter alia, to maintain, increase, and diffuse knowledge ‘by assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions’ (art I, para 2, c, Const.). At the World Conference on Cultural Policies, convened by UNESCO in Mexico City in 1982, States agreed to give the concept of cultural heritage a broad meaning:
The cultural heritage of a people includes the works of its artists, architects, musicians, writers and scientists and also the work of anonymous artists, expressions of the people’s spirituality, and the body of values which give meaning to life. It includes both tangible and intangible works through which the creativity of that people finds expression: languages, rites, beliefs, historic places and monuments, literature, works of art, archives and libraries.
(para 23 of the Mexico City Declaration on Cultural Policies)23
Besides its intrinsic value, the cultural heritage has also an economic dimension, as it offers important opportunities for generating sustainable development, including through creative industries and cultural tourism.
The present UNESCO normative framework includes several declarations and recommendations and six so-called ‘heritage conventions’, devoted to different kinds of cultural heritage.24 They provide a global platform for international cooperation and dialogue for ensuring the protection of the cultural heritage. This objective is today linked to some of the most pressing challenges facing humankind, such as climate change, natural disasters, migration, urbanization, social marginalization, and economic inequalities. In this regard, as stated in the UNESCO medium-term strategy for 2014–21,
the Organization’s action will strengthen national capacities to better conserve, safeguard, manage and promote heritage at the professional and institutional levels and within communities. It will also promote the educational potential of heritage, in (p. 747) particular by strengthening traditional knowledge and integrating heritage into formal and non-formal education. Moreover, it will include providing assistance in the context of the heritage Conventions.25
The UNESCO General Conference, by the already mentioned Resolution 38/C 48 of 2015, invited Member States to support the elaboration of the action plan for the implementation of the strategy for the protection of culture and the promotion of cultural pluralism in the event of armed conflict, including by defining mechanisms for the rapid mobilization, in cooperation with governments of Member States, of national experts, who can cooperate with UNESCO in the implementation of the 1954, 1970, 1972, 2003, and 2005 Conventions,26 the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and other relevant international legal instruments as agreed upon, as well as by contributing to the recently established UNESCO Heritage Emergency Fund.
The high participation of States in most of the UNESCO heritage conventions, as well as international practice in general, confirm that many of the provisions included in them have today become part of customary international law.27
A review of the bodies established within the framework of the UNESCO heritage conventions or cooperating with the latter follows. The review will show that they perform manifold, but different, functions, ranging from substantive28 to advisory responsibilities.29
The Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague, 1954) was substantially strengthened by its Second Protocol (the Hague, 1999)30 which, inter alia, established a committee to act within the framework of the Convention. It meets once a year in ordinary session and is composed of twelve States Parties elected by the Meeting of the Parties for a four-year term, ensuring in its membership an equitable representation of the different regions and cultures of the world. (p. 748) Parties are bound to choose as their representatives in the Committee persons qualified in the fields of cultural heritage, defence, or international law.
The Committee is entrusted with a number of functions, namely to: develop guidelines for the implementation of the Protocol;31 grant, suspend, or cancel enhanced protection for cultural property and establish, maintain, and promote the List of Cultural Property under Enhanced Protection;32 monitor and supervise the implementation of the Protocol and promote the identification of cultural property under enhanced protection; consider, and comment on, reports of the parties, seek clarifications as required, and prepare its own report on the implementation of the Protocol for the Meeting of the Parties; receive and consider requests for international assistance; determine the use of the fund established by the Protocol;33 and perform any other function which may be assigned to it by the Meeting of the Parties.
The Committee is assisted in its work by the UNESCO Secretariat and may invite to its meetings, in an advisory capacity, ‘eminent professional organizations’, such as the International Committee of the Blue Shield (ICBS), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), and the International Committee of the Red Cross (ICRC).
By a resolution adopted in 1978, the UNESCO General Conference established the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP).34 It is composed of twenty-two UNESCO Member States, elected by the General Conference, taking into account the need to ensure equitable geographical distribution and appropriate rotation, as well as the representative character of those States in respect of the contribution they are able to make to the restitution or return of cultural property to its countries of origin. The term of office of members of the ICPRCP extends from the end of the ordinary session of the General Conference during which they are elected until the end of the second subsequent ordinary session. The ICPRCP meets at least once every two years. Its secretariat is provided by UNESCO.
(p. 749) The ICPRCP performs a number of functions, namely: seeking ways and means of facilitating bilateral negotiations for the restitution or return to its countries of origin of cultural property that is offered or requested by a UNESCO Member State and that has a fundamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State and has been lost as a result of colonial or foreign occupation or illicit appropriation;35 promoting multilateral and bilateral cooperation with a view to the restitution and return of cultural property to its countries of origin; encouraging the necessary research and studies for the establishment of coherent programmes for the constitution of representative collections in countries whose cultural heritage has been dispersed; fostering a public information campaign on the real nature, scale, and scope of the problem of the restitution or return of cultural property to its countries of origin; guiding the planning and implementation of UNESCO’s programme of activities with regard to the restitution or return of cultural property to its countries of origin; encouraging the establishment or reinforcement of museums or other institutions for the conservation of cultural property and the training of the necessary scientific and technical personnel; promoting exchanges of cultural property; and reporting on its activities to the General Conference of UNESCO at each of its ordinary sessions.
In 2010, the ICPRCP approved the rules of procedure for mediation and conciliation for promoting the return of cultural property to its country of origin or its restitution in case of illicit appropriation.36
In 2012, the Meeting of the Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970)37 decided to establish a Subsidiary Committee, to be convened every year.
In accordance with the rules of procedure of the Meeting of the Parties, the Subsidiary Committee is composed of eighteen States Parties to the Convention, three per regional group, elected for a term of four years, according to the principles of equitable geographical representation and rotation. The functions of the Subsidiary Committee are to: promote the purposes of the Convention; review national reports presented to the General Conference by the States Parties to the Convention; exchange best practices and prepare and submit to the Meeting of the States Parties recommendations and guidelines that may contribute to the implementation of the Convention;38 identify problem areas arising from the implementation of the Convention, including issues relating to the protection and return of cultural property; initiate and maintain coordination with the (p. 750) ICPRCP in relation to capacity-building measures combating illicit traffic in cultural property; and report to the Meeting of States Parties on the activities it has carried out. The Subsidiary Committee is assisted by the UNESCO Secretariat.
The Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972)39 established the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value, also called the World Heritage Committee (WHC). It is composed of twenty-one States Parties to the Convention,40 elected by the General Assembly of States Parties meeting during the ordinary session of the UNESCO General Conference, to ensure an equitable representation of the different regions and cultures of the world. The term of office of WHC members extends from the end of the ordinary session of the General Conference during which they have been elected until the end of the third subsequent ordinary session.41
The WHC meets at least once a year. According to the WHC Rules of procedure, decisions on matters covered by the provisions of the Convention are taken by a majority of two-thirds of its members present and voting. All other decisions are taken by a majority of the members present and voting.42 The WHC’s decisions must be based on objective and scientific considerations and depend on carefully prepared documentation, thorough and consistent procedures, evaluation by qualified experts and, if necessary, the use of expert referees.
The main functions of the WHC are specified in the relevant provisions of the Convention and are listed as follows in the Operational Guidelines for the Implementation of the Convention:43
- to identify, on the basis of tentative lists and nominations submitted by States Parties, cultural and natural properties of outstanding universal value which are to be protected under the Convention and to inscribe those properties on the World Heritage List;
- to examine the state of conservation of properties inscribed on the World Heritage List through processes of reactive monitoring and periodic reporting;
(p. 751) - 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;44
- to decide whether a property should be deleted from the World Heritage List;
- to define the procedure by which requests for international assistance are to be considered and carry out studies and consultations as necessary before coming to a decision;
- to determine how the resources of the World Heritage Fund can be used most advantageously to assist States Parties in the protection of their properties of outstanding universal value;
- to seek ways to increase the World Heritage Fund;
- to submit a report on its activities every two years to the General Assembly of States Parties and to the UNESCO General Conference;
- to review and evaluate periodically the implementation of the Convention;
- to revise and adopt the Operational Guidelines.
Moreover, in order to facilitate the implementation of the Convention, the WHC develops strategic objectives that are periodically revised to ensure that new threats placed on world heritage are addressed effectively.45
As can be inferred from the importance of the functions entrusted to it, the WHC plays a crucial role within the system of international cooperation and assistance designed to support States Parties in their efforts to identify and conserve the heritage that needs to be preserved as part of the world heritage of mankind as a whole. In particular, the WHC is called to take decisions relating to the inscription on, and removal of properties from, the two lists46 and to review how the Convention is implemented by States Parties.
Due to the high number of nominations and its heavy workload, the WHC has decided, as of 2 February 2018, to examine one complete nomination to the World Heritage List per State Party, to set at thirty-five the annual limit on the number of nominations it will review,47 and to establish an order of priorities where this limit is exceeded.48
(p. 752) Every six years, States Parties are bound to submit periodic reports for examination by the WHC. Such reports refer 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, as well as to the state of conservation of specific World Heritage properties located on the territory of the State Party concerned.
The function of secretariat for the WHC is performed by the World Heritage Centre, which in 1992 has been established with UNESCO specifically for this purpose. The secretariat’s main tasks are the following:
- the organization of the meetings of the General Assembly of States Parties and the WHC;
- the implementation of decisions of the WHC and resolutions of the General Assembly and reporting to them on their execution;
- the receipt, registration, checking the completeness, archiving, and transmission to the relevant advisory bodies of nominations to the World Heritage List;
- the coordination of studies and activities as part of the global strategy for a representative, balanced, and credible World Heritage List;
- the organization of periodic reporting;
- the coordination and conduct of reactive monitoring, including reactive monitoring missions, as well coordination of and participation in advisory missions, as appropriate;
- the coordination of international assistance;
- the mobilization of extra-budgetary resources for the conservation and management of World Heritage properties;
- assistance to States Parties in the implementation of the WHC’s programmes and projects;
- the promotion of World Heritage and the Convention through the dissemination of information to States Parties, the advisory bodies, and the general public.
‘Reactive monitoring’ is described 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.49 To this end, the States Parties are (p. 753) bound to submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the outstanding universal value of the property or its state of conservation. The information received, together with the comments of the State Party and the advisory bodies, is brought to the attention of the WHC in the form of a state of conservation report for each property. On this basis, the WHC may take one or more of different steps, namely: decide that the property has not seriously deteriorated and that no further action should be taken; consider that the property has seriously deteriorated, but not to the extent that its restoration is impossible, and decide that the property be maintained on the World Heritage List, provided that the State Party takes the necessary measures to restore the property within a reasonable period of time; decide to inscribe the property on the List of World Heritage in Danger; decide to delete the property from the World Heritage List, when there is evidence that the property has deteriorated to the point where it has irretrievably lost those characteristics which determined its inscription;50 or decide, when the information available is not sufficient, that the Secretariat be authorized to take the necessary action to ascertain, in consultation with the State Party concerned, the present condition of the property, the dangers to the property, and the feasibility of adequately restoring the property.51
‘Advisory missions’ are understood as missions providing expert advice to a State Party on specific matters, such as identification of sites, nomination of sites for inscription on the World Heritage List, state of conservation of properties, assessment of possible impact of a major development project on the outstanding universal value of a property, advice on the preparation or revision of a management plan or on the progress achieved in the implementation of specific mitigation measures. The terms of reference of advisory missions are proposed by a State Party and consolidated in consultation with the WHC and the relevant advisory bodies or other organization.
The WHC and World Heritage Centre utilize to the fullest extent possible the services of the so-called advisory bodies, namely the International Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre, also called ICCROM),52 the International Council of Monuments and Sites (ICOMOS),53 and the International Union for Conservation of Nature and Natural Resources (IUCN; today, (p. 754) the World Conservation Union).54 They are entrusted with a broad range of functions, in particular to:
- advise on the implementation of the Convention in the field of their expertise;
- assist the Secretariat, in the preparation of the WHC’s documentation, the agenda of its meetings and the implementation of the WHC’s decisions;
- assist with the development and implementation of the global strategy for a representative, balanced, and credible World Heritage List, the global training strategy, periodic reporting, and the strengthening of the effective use of the World Heritage Fund;
- monitor the state of conservation of the World Heritage properties, including through reactive monitoring missions at the request of the WHC and advisory missions at the invitation of the States Parties, and review requests for international assistance;
- in the case of ICOMOS and IUCN, evaluate properties nominated for inscription on the World Heritage List, in consultation and dialogue with nominating States Parties, and present evaluation reports to the Committee;
- attend meetings of the WHC and the Bureau in an advisory capacity.
In 2009, the Meeting of States Parties to the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001)55 adopted the Statutes of a Scientific and Technical Advisory Body (STAB),56 which was established on the basis of article 23, para 4, of the Convention.57
The Advisory Body is composed of fourteen members who are bound to ‘work impartially and in compliance with the principles of the Convention’. They are requested to ‘have a scientific, professional and ethical background at the national and/or international level, in particular, in the field of underwater archaeology, international law, (p. 755) materials science (metallurgy, archaeo-biology, geology), and conservation of underwater cultural heritage sites and/or archaeological underwater artefacts’ (art 2 of the Statutes).
The functions of the Advisory Body are defined quite broadly in article 1 of the Statutes:
(i) shall appropriately assist the Meeting of States Parties to the Convention in questions of a scientific or technical nature regarding the implementation of the ‘Rules concerning activities directed at underwater cultural heritage’, as referred to in Article 33 of the Convention (hereinafter ‘the Rules’);
(ii) may be consulted for the elaboration, in consultation with the Bureau of the Meeting of States Parties, of draft Operational Guidelines directly related to the Rules;
(iii) shall give guidance in questions directly related to Rules in the framework of the practical application of the State cooperation mechanism contained in the Convention (Articles 8 to13).
(i) making technical and scientific recommendations in relation to the Rules to the Meeting of States Parties for discussion and adoption;
(ii) identifying and monitoring practical common and emerging issues in underwater cultural heritage sites protection and materials conservation;
c) Upon decision by the Meeting of States Parties, or by delegation by its Bureau, the Advisory Body may provide scientific and technical advice to States Parties on the implementation of the Rules through:
e) The Advisory Body shall consult and collaborate with non-governmental organizations (NGOs) having activities related to the scope of the Convention, namely ICUCH, as well as other competent NGOs accredited by the Meeting of States Parties.
Recommendations of the Advisory Body are adopted by consensus or, if no consensus emerges, by majority vote of the members present at a meeting (art 6 of the Statutes).
Among the various functions of the Advisory Body, particularly interesting is the provision of advice to parties through mission to their territory. Once the Meeting of States Parties or its Bureau has taken a decision on a request for advice, the Convention (p. 756) Secretariat informs the Chairperson of the Advisory Body about the decision, the details of the request, and the financing available. Under article 5 of the Statutes, ‘usually the State Party requesting the assistance shall cover its cost’. The adverb ‘usually’ leaves room for financial support for the assistance, especially if it is requested by developing States Parties. The head of mission is in charge of reporting in a timely manner and in writing on the results of the mission to the Chairperson of the Advisory Body and the Convention Secretariat. Finally, upon adoption by the Advisory Body members, the report is submitted to the requesting State Party and published on the website of the Advisory Body, unless the State Party concerned has expressly requested confidentiality.58
The Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 2003)59 provides for the establishment of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, composed of twenty-four States Parties60 elected by the General Assembly of States Parties for a term of four years. The election of members of the Committee obeys the principles of equitable geographic representation and rotation.
The functions of the Committee are to:
- promote the objectives of the Convention and encourage and monitor the implementation thereof;
- provide guidance on best practices and make recommendations on measures for the safeguarding of the intangible cultural heritage;
- prepare and submit to the General Assembly for approval a draft plan for the use of the resources of the Fund for the Safeguarding of the Intangible Cultural Heritage;
- prepare and submit to the General Assembly for approval operational directives for the implementation of the Convention;
- examine the reports submitted by States Parties on the legislative, regulatory, and other measures taken for the implementation of the Convention and summarize them for the General Assembly;
- examine requests submitted by States Parties for inscription on the Representative List of the Intangible Cultural Heritage of Humanity or the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, as well as proposals for the selection of programmes, projects, and activities for safeguarding the intangible cultural heritage which best reflect the principles and objectives of the Convention, and decide thereon, in accordance with objective selection criteria to be established by the Committee and approved by the General Assembly;
- examine requests submitted by States Parties for the granting of international assistance and decide thereon.
According to the Operational Directives for the Implementation of the Convention, adopted by the General Assembly in 2008 and subsequently updated, on an experimental basis, the evaluation of nominations for inscription on either list, of proposed programmes, projects, and activities that best reflect the principles and objectives of the Convention and of requests for international assistance greater than US$100,000, is undertaken by a consultative body of the Committee, known as the Evaluation Body, which makes recommendations to the Committee for its decision. The Evaluation Body is composed of twelve members appointed by the Committee. Among them, six are experts qualified in the various field of intangible cultural heritage who represent States Parties non-members of the Committee, and the other six are accredited NGOs,61 taking into consideration equitable geographical representation and various domains of intangible cultural heritage. The duration of office of a member of the Evaluation Body cannot exceed four years. The Committee determines two years beforehand, in accordance with the available resources and its capacity, the number of files that can be treated in the course of the two following cycles.
The Committee is assisted by the UNESCO Secretariat, which prepares the documentation of the Committee and the General Assembly, as well as the draft agenda of their meetings, and ensures the implementation of their decisions.
(p. 758) Given the social and living character of intangible cultural heritage, States Parties to the Convention are encouraged to create a consultative body or a coordination mechanism to facilitate the participation of communities, groups, and, where appropriate, individuals, as well as experts, centres of expertise, and research institutes, in particular in the identification and definition of the different elements of intangible cultural heritage present in their territories, the drawing up of inventories, the elaboration and implementation of programmes, projects and activities, the preparation of nomination files for inscription on the lists, and the removal of an element of intangible cultural heritage from one list or its transfer to the other.
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 2005)62 provides for the establishment within UNESCO of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions. It is composed of representatives of twenty-four States Parties, elected for a term of four years by the Conference of Parties, based on the principles of equitable geographical representation and rotation. The Committee, which meets annually, functions under the authority and guidance of, and is accountable to, the Conference of Parties.
The main functions of the Committee are:
- to promote the objectives of the Convention and to encourage and monitor its implementation;
- to prepare and submit for approval by the Conference of Parties, upon its request, the Operational Guidelines for the implementation and application of the provisions of the Convention;63
- to transmit to the Conference of Parties reports from parties to the Convention, together with its comments and a summary of their contents;
- to make appropriate recommendations in situations brought to its attention by parties in accordance with relevant provisions of the Convention, in particular in case of special situations where cultural expressions on the territory of a party are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding;64
- to decide on the use of the resources of the International Fund for Cultural Diversity established by the Convention;
The Conference of Parties and the Committee are assisted by the UNESCO Secretariat.
2 This contribution will focus on UNESCO, which is the international organization active at the world level in the field of culture. Several other organizations carry out activities in this field, such as the International Institute for the Unification of Private Law (UNIDROIT) and the Council of Europe.
3 Hereinafter: Const. See unesco, Basic Texts (UNESDOC 2016) 5. The Const. entered into force on 4 November 1946 and was amended several times by the General Conference. Under art XIII, para 1, ‘proposals for amendments to this Constitution shall become effective upon receiving the approval of the General Conference by a two-thirds majority; provided, however, that those amendments which involve fundamental alterations in the aims of the Organization or new obligations for the Member States shall require subsequent acceptance on the part of two thirds of the Member States before they come into force’.
5 According to art I of the Agreement, the UN recognizes UNESCO as a specialized agency responsible for taking such action as may be appropriate under its basic instrument for the accomplishment of the purposes set forth therein.
7 UNESCO members suspended from the exercise of the rights and privileges of UN membership shall, upon request of the UN, be suspended from UNESCO rights and privileges. UNESCO members expelled from UN shall automatically cease to be UNESCO members (art II, paras 4 and 5, Const.).
8 The withdrawal does not affect the financial obligations owed to the organization on the date the withdrawal takes effect (art II, para 6, Const.). A State that has withdrawn from UNESCO resumes membership by depositing a new instrument of acceptance (art XV, para 2, Const.).
9 All Member States have established a National Commission for UNESCO—that is, a national cooperating institution having the purpose of associating their governmental and non-governmental bodies with the work of UNESCO.
12 As explained by the United States, ‘this decision was not taken lightly, and reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO’. The United States indicated ‘its desire to remain engaged with UNESCO as a non-member observer State in order to contribute U.S. views, perspectives and expertise on some of the important issues undertaken by the organization, including the protection of world heritage, advocating for press freedoms, and promoting scientific collaboration and education’ (United States Department of State, Press Statement, 12 October 2017).
13 As stated in the UNESCO Medium-Term Strategy 2014–2021 (n 7) 24, ‘recent years have also been marked by an increasing trend to target culture in conflict. Conflicts arising within and between States involve cultural matters and target cultural differences in order to divide societies. The culture programme will engage to develop strategies and tools which will aim to (i) strengthen the protection of cultural heritage and expression in crisis and conflict situations and (ii) prevent the instrumentalization of culture to exacerbate differences and tensions’.
17 UNESCO, Records of the General Conference, 38th Session, I, UN Doc 38/C Resolutions, 41. For instance, on 16 February 2016 a memorandum of understanding was signed by Italy and UNESCO on the Italian Task Force for initiatives in favour of countries facing emergencies that may affect the protection and safeguarding of culture and the promotion of cultural pluralism. Under the memorandum, ‘in accordance with paragraph 4 of 38C/Resolution 48 and with UNESCO’s mandate foreseen therein, in response to a request by a Member State facing crisis or natural disaster, the Government shall consider such request and accordingly the Italian Task Force may be able to operate preventively as well as in the context and in the aftermath of a crisis, with the following functions: assessing damage and risk to cultural and natural heritage; devising operational plans for urgent safeguarding measures for the affected cultural and natural heritage; providing technical supervision and training in order to assist national authorities and other local actors in implementing emergency preparedness and response measures for the protection and safeguarding of cultural and natural heritage; assisting in transferring movable cultural heritage property at risk to safe havens; fighting against the looting and the illicit trafficking of cultural properties through the mobilization of the relevant department of the Italian Carabinieri (Comando Carabinieri per la Tutela del Patrimonio Culturale)’.
18 In 2015, the General Conference decided to establish an open-ended working group on governance, procedures, and working methods of the governing bodies of UNESCO. In 2017, the General Conference endorsed the recommendations of the Working Group (see UNESCO doc 39C/20 of 20 September 2017).
21 In order to correct an imbalance in the geographical distribution of seats on the board, all members of UNESCO are grouped into six regional electoral groups: Group I (Western European and North American States); Group II (Eastern European States); Group III (Latin-American and Caribbean States); Group IV (Asian and Pacific States); Group V (a) (African States); Group V (b) (Arab States).
22 The structure of the UNESCO Secretariat includes different sectors, services, and field offices. The programme sectors are Education (ED), Natural Sciences (SC), One Planet, One Ocean (IOC), Social and Human Sciences (SHS), Culture (CLT), and Fostering Freedom of Expression and Building Knowledge Societies (CI).
23 ‘At Mondiacult delegates found agreement in understanding culture not in the restricted sense of belles-lettres, the fine arts, literature and philosophy, but as the totality of the distinctive and specific features of the ways of thinking and organizing the lives of every individual and every community’: UNESCO, From Ideas to Actions–70 Years of UNESCO (Editora Brasileira de Arte e Cultura 2015) 111.
24 The concept is even broader if the International Convention against Doping in Sport (Paris, 2005) is considered. Sport is seen in this convention ‘as a means to promote education, health, development and peace’ (preamble). As stated in the UNESCO medium-term strategy 2014–2021, ‘sport for all is one of the most powerful vehicles to deliver messages about human rights, social development, peace values, and the rapprochement among peoples. Sport is also a tool for development and community-building. It fosters public health and cohesion, and is a means of increasing social capital, especially among young people’. UNESCO, Medium-Term Strategy 2014–2012 (n 7).
27 As remarked by Francesco Francioni, ‘The Evolving Framework for the Protection of Cultural Heritage in International Law’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity (Martinus Nijhoff Publishers 2012) 25, the current framework of the international protection of cultural heritage ‘is constituted largely of treaty law and to a smaller extent of soft law instruments mostly adopted within UNESCO. However, based on careful examination of international practice, it can be argued that some general principles have formed, or are in process of being formed, as part of general international law with regard to the obligation to respect and protect cultural heritage of significant importance’.
28 See, for example, Section 4.3.
29 See, for example, Section 4.4.
31 See UNESCO, Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc CLT-09/CONF/219/3 REV. 4 of 22 March 2012.
33 The fund has the purposes of providing financial or other assistance in support of preparatory or other measures to be taken in peacetime and to provide financial or other assistance in relation to emergency, provisional, or other measures to be taken in order to protect cultural property during periods of armed conflict or of immediate recovery after the end of hostilities.
34 See UNESCO, Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, UNESCO Doc CLT/CH/INS-2005/21 of October 2005.
35 In this connection, the ICPRCP may submit proposals with a view to mediation or conciliation to the Member States concerned. The outcome of the mediation and conciliation process is not binding on them.
36 UNESCO, Rules of Procedure for Mediation and Conciliation in Accordance With Article 4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, UNESCO Doc CLT-2010/CONF.203/COM.16/7 of October 2010.
42 Decisions as to whether a particular matter is covered by the provisions of the Convention are taken by a majority of the members present and voting. Members abstaining from voting are regarded as not voting.
44 So far, 1121 properties are inscribed on the World Heritage List, of which fifty-three are on the List of World Heritage in Danger. Of these, 869 properties are cultural, 213 natural, and thirty-nine mixed; thirty-nine properties are transboundary. Two properties have been delisted.
45 The current strategic objectives are to strengthen the credibility of the World Heritage List; ensure the effective conservation of World Heritage properties; promote the development of effective capacity-building in States Parties; increase public awareness, involvement, and support for world heritage through communication; and enhance the role of communities in the implementation of the Convention.
46 Besides deciding to inscribe or not to inscribe a property on the World Heritage List, the WHC may also decide to refer the nomination back to a State Party for additional information or defer it for more in-depth assessment or study or substantial revision by a State Party.
48 Namely: nominations submitted by States Parties with no properties inscribed on the list; nominations submitted by States Parties having up to three properties inscribed; resubmitted referred nominations; nominations that have been previously excluded due to the annual limit of thirty-five nominations; nominations for natural heritage; nominations for mixed heritage, nominations of transboundary or transnational properties; nominations from States Parties in Africa, the Pacific, and the Caribbean; nominations submitted by States Parties having ratified the Convention during the last twenty years; nominations submitted by States Parties that have not submitted nominations for five years or more; nominations of States Parties, former members of the WHC, who accepted on a voluntary basis not having a nomination reviewed during their mandate.
49 When the Secretariat receives information that a property inscribed has seriously deteriorated, or that the necessary corrective measures have not been taken within the time proposed, from a source other than the State Party concerned, it verifies, as far as possible, the source and the contents of the information in consultation with the State Party concerned and request its comments.
52 ICCROM, established in 1956, is an intergovernmental organization aiming at carrying out research, documentation, technical assistance, training, and public awareness programmes to strengthen conservation of immovable and moveable cultural heritage.
53 ICOMOS, established in 1965, is an international non-governmental organization. Its members are individuals and institutions formed into national committees, which may be organized in any UNESCO Member State. The role of ICOMOS is to promote the application of theory, methodology, and scientific techniques to the conservation of the architectural and archaeological heritage.
54 IUCN is an international organization established in 1948. Its members may have a governmental (States and government agencies; political and/or economic integration organizations) or non-governmental (national and international non-governmental organizations; affiliates) character. The objectives of the IUCN are to influence, encourage, and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable (IUCN, Statues of 5 October 1948, revised on 22 October 1996, and last amended on 10 September 2016 (IUCN 2016) art 2).
56 UNESCO, Resolutions of the first session of the Meeting of States Parties to the Convention on the Protection of the Underwater Cultural Heritage, Paris, 2009, UNESCO Doc CLT/CIH/MCO/2009/ME/98, amended on 29 April 2015, Resolution 5/MSP 1 of 27 March 2009.
57 ‘The Meeting of States Parties may establish a Scientific and Technical Advisory Body composed of experts nominated by the States Parties with due regard to the principle of equitable geographical distribution and the desirability of a gender balance.’
59 The Convention is today in force for 178 States. Under art 2, para 1, of the Convention, intangible cultural heritage means ‘the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.’ See Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013).
61 Accreditation of non-governmental organizations is granted by the General Assembly on proposal by the Committee according to a number of criteria. In particular the organizations shall have proven competence, expertise, and experience in safeguarding intangible cultural heritage belonging to one or more specific domains; have objectives that are in conformity with the spirit of the Convention and, preferably, statutes or by-laws that conform with those objectives; cooperate in a spirit of mutual respect with communities, groups, and, where appropriate, individuals that create, practise, and transmit intangible cultural heritage; possess operational capacities; have existed and have carried out appropriate activities for at least four years when being considered for accreditation.
64 Where such a special situation has been determined by a party, the Committee may also recommend to foster the dissemination of information on best practices of parties in similar situations, to inform the parties of the situation and invite them to take action in order to provide assistance or to suggest to the party concerned that it seek assistance, if needed, from the International Fund for Cultural Diversity.