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Max Planck Encyclopedia of Public International Law [MPEPIL]

World Natural Heritage

Kerstin Odendahl

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 August 2020

Subject(s):
Regional co-operation — Cultural property / heritage

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Definition

The notion of ‘world natural heritage’ forms part of a double-tracked legal concept set forth by the World Heritage Convention (WHC) of 1972. The second part of the concept is the ‘world cultural heritage’ (Cultural Heritage) which forms part of cultural property. Consequently, the WHC stands at the crossroads of the international protection of culture and nature (Nature, International Protection).

Worldwide efforts to protect sites of universal importance arose mainly from two events (Francioni 15; O’Keefe and Prott 77). The first event was the decision of the Egyptian government in 1946 to build the Aswan High Dam and to flood the valley as well as the famous temples at Abu Simbel and Philae. Thanks to an international campaign launched by the United Nations Educational, Scientific and Cultural Organization (UNESCO) the monuments could be saved by relocating them to a higher ground in 1964 and 1968. The other event was the raging flood that destroyed and severely damaged large parts of the cultural property of the cities of Florence and Venice in 1966. Both events inspired UNESCO to present a Preliminary Draft Convention concerning the Protection of Monuments, Groups of Buildings and Sites of Universal Value in 1971. In the same year, the International Union for Conservation of Nature (IUCN) elaborated a draft convention on the protection of natural sites (Brown Weiss 94). The two drafts were harmonized to represent a single convention aiming at the protection of both cultural and natural heritage of ‘outstanding universal value’. The idea to combine the protection of culture and nature is mainly a result of the US initiative to create a World Heritage Trust in the 1960s (Batisse and Bolla 17). The WHC is the only global, legally binding instrument that offers such a combined protection. As of August 2015, it has been ratified by 191 States Parties.

According to Art. 2 WHC the following is considered as ‘natural heritage’: (a) natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from an aesthetic or scientific point of view; (b) geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; (c) natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation, or natural beauty. The enumeration shows that only immovable elements of nature (features, formations, areas, and sites) as well as habitats (van Heijnsbergen 26–27) fall within the scope of the WHC.

According to Art. 11 (5) WHC the criteria for evaluating the ‘outstanding universal value’ of a natural property are defined by the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (‘Committee’). They are to be found in the Operational Guidelines. In order to be considered as being of outstanding universal value, a natural property must fulfil the following requirements: it has to (1) meet one or more of the ten criteria set forth in the Operational Guidelines; (2) meet the conditions of integrity and/or authenticity; and (3) have an adequate protection and management system to ensure its safeguarding (Operational Guidelines paras 77–119). The ten criteria mentioned above have been amended by the Committee over time (Redgwell 68 et seq) and were formerly presented as two separate sets: six criteria for cultural heritage and four criteria for natural heritage. Still, only four of the ten criteria are applicable to natural heritage. They currently read as follows: the property must either (a) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (b) be an outstanding example representing major stages of earth’s history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features; (c) be an outstanding example representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems, and communities of plants and animals; or (d) contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation (Operational Guidelines para. 77 (vii)–(x)).

If a property meets both the criteria of a ‘world natural’ and a ‘world cultural heritage’, it will be attributed the status of a ‘mixed cultural and natural heritage’ (Operational Guidelines para. 46). The so-called ‘cultural landscapes’, a new category developed by the Committee in the 1990s, represent the ‘combined works of nature and of man’ designated in Art. 1 (3) WHC (Operational Guidelines para. 47 and Annex 3). Therefore, they form part of the world cultural heritage (Phillips 6 et seq). A natural property becomes a ‘world natural heritage’, a ‘mixed cultural and natural heritage’, or a ‘cultural landscape’ belonging to the world cultural heritage at the moment of inscription on the World Heritage List. The procedure for the inclusion of a property in the list and the legal consequences are the same for both cultural and natural heritage.

B.  Inclusion in the World Heritage List

1.  Procedure

The governing structure of the WHC consists of the General Assembly and the Committee. The General Assembly includes all States Parties and meets every two years. The main body, however, is the Committee consisting of 21 Member States (Art. 8 (1) WHC) which meets annually. It is assisted by the World Heritage Centre, established in 1992, which acts as secretariat (O’Keefe and Prott 78; Vrdoljak 246). The Committee is responsible for establishing, keeping up to date, and publishing the World Heritage List and the List of World Heritage in Danger (Art. 11 (2) and (4) WHC), defining and continually developing the criteria for an inclusion of a property in either of the lists in the Operational Guidelines (Art. 11 (5) WHC), and deciding on requests for international assistance (Art. 13 WHC). Furthermore, it plays a key role in the implementation of the WHC.

The World Heritage List and the procedure of inclusion are laid down in Art. 11 WHC and the Operational Guidelines paras 120 et seq (Scovazzi 157 et seq). Every State Party can submit to the Committee an inventory of the cultural or natural heritage, situated on its territory, which the State considers being of outstanding universal value. This ‘Tentative List’ contains all properties that a State Party may decide to submit for inscription in the next five to ten years. It is up to the State Party to decide when to select a property from its Tentative List and to present it for nomination. The World Heritage Centre assists the States Parties in preparing the nomination file. The file has to contain all relevant information and documentation to enable the Committee to evaluate the outstanding universal value of a property. If the criteria and the conditions of integrity are met, but the qualities of the property are threatened by the action of man, the State Party shall submit an action plan outlining the corrective measures and indicating the time needed to implement them. The file shall be sent to the International Council of Monuments and Sites (ICOMOS) and IUCN which act as Advisory Bodies to the Committee (Vrdoljak 261 et seq). After the evaluation process is completed, it is up to the Committee to decide. The decision to inscribe a property on the World Heritage List requires the consent of the State Party concerned. But the Committee may also decide to refer the nomination back to allow the State Party to provide additional information, to defer a nomination for more in-depth assessment or study, or a substantial revision by the State Party, or even decide not to include a property in the list. However, before refusing a request, the Committee has to consult the State Party. All decisions are taken by a majority of two-thirds of the Committee members present and voting. As of August 2015, the World Heritage List included 1,031 properties (802 cultural, 197 natural, and 32 mixed properties) in 163 States Parties.

In order to identify and fill the major gaps in the list, the Committee adopted the Global Strategy for a Representative, Balanced and Credible World Heritage List in 1994 (Operational Guidelines paras 55 et seq). Initially, the Strategy was developed for cultural heritage only. Later, it was expanded to be applied to natural heritage and ‘mixed’ heritage as well. The Strategy asks States Parties whose heritage is already well represented on the list to slow down their rate of submission of further nominations. States Parties whose heritage of outstanding universal value is under-represented are encouraged to present more nominations. The Committee has set at 45 the annual limit on the number of nominations to be reviewed, giving priority not only to nominations submitted by under-represented States but also to nominations of natural heritage.

2.  Legal Consequences

The WHC lays down a number of duties and rights. Most of them refer to cultural and natural heritage as defined in Arts 1 and 2 of the WHC. Once a property is inscribed on the World Heritage List, however, further obligations and rights arise.

10  Most duties are incumbent on the States Parties on whose territories cultural or natural heritage as defined in Arts 1 and 2 of the WHC is situated. All States Parties to the WHC have the duty laid down in Art. 4 of ensuring the identification, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage situated on their territory, whether or not any parts of the heritage are on the World Heritage List (Carducci 109; Lenzerini 205). The measures to be taken in order to comply with this obligation erga omnes partes (O’Keefe 202 et seq) include, inter alia, the adoption of appropriate legal instruments, the integration of the protection of the natural heritage into comprehensive planning programmes, the creation of specialized services, the development of scientific and technical studies and research, and the establishment of training facilities (Art. 5 WHC). The exact scope of these provisions is difficult to determine. In the Tasmanian Dam case (Commonwealth v Tasmania) of 1983, however, the High Court of Australia decided that Arts 4 and 5 WHC impose legal obligations on States Parties, even though the language of these provisions gives large discretion to States Parties as to the concrete steps to take (Lyster 222 et seq; O’Keefe and Prott 79 et seq). Once a property is inscribed on the World Heritage List, the State Party has the additional obligation to accept the ‘Reactive Monitoring’ by the Committee.

11  But not only States Parties on whose territories natural and cultural heritage is situated assume duties. The other States Parties recognize that the heritage mentioned in Arts 1 and 2 WHC, whether or not it is on the World Heritage List, constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate (Art. 6 (1) WHC). Furthermore, they commit themselves to take no deliberate measures which might damage directly or indirectly cultural or natural heritage situated on other States’ territory (Art. 6 (3) WHC). The provision has an extremely broad scope (Lyster 228). Once a cultural or natural heritage is inscribed on the World Heritage List, a further duty arises: States Parties undertake to give their help in its identification, protection, conservation, and presentation if the State on whose territory it is situated so requests (Art. 6 (2) WHC).

12  Most of the rights provided for by the WHC arise at the moment of inclusion of a property on the World Heritage List. They refer to the State Party on whose territory the property is situated. First, the State is entitled to use the World Heritage Emblem, adopted by the Committee in 1978, in order to identify the property (Operational Guidelines paras 258 et seq). Second, it may request international assistance to secure the identification, protection, conservation, presentation, or rehabilitation of the property (Arts 13, 19, et seq WHC; Operational Guidelines paras 233 et seq). Under special circumstances international assistance may also be available for natural properties which are not (yet) inscribed on the World Heritage List (Operational Guidelines para. 233; Lenzerini 205). International assistance is primarily financed by the World Heritage Fund (Arts 15 et seq WHC; Operational Guidelines paras 223 et seq). The total budget of the World Heritage Fund comprised about US$ 5 million during the biennium 2014–2015. However, only about 25% of the sum could be used for conservation of World Heritage sites, public awareness, and capacity-building in States Parties. The other 75% was needed to finance the work of the Advisory Bodies. The total budget of the World Heritage Fund has steadily declined (UNESCO ‘Report on the Execution of the Budget for the Biennium 2014–2015 and Preparation of the Budget for the Biennium 2016–2017’). As a general rule, the State Party being assisted has to bear the majority of the costs. International assistance is, therefore, only considered as a complementary instrument. The Committee decides upon the allocation of the funds according to the urgency of requests (Lemaistre and Lenzerini 310 et seq).

C.  Inclusion in the List of World Heritage in Danger

1.  Procedure

13  A world heritage site which is jeopardized by serious and specific danger, for the conservation of which major operations are necessary and for which assistance has been requested, may be placed on the List of World Heritage in Danger (‘Red List’), by the Committee (Art. 11 (4) WHC; Operational Guidelines paras 177 et seq). Serious and specific dangers include the threat of disappearance caused by accelerated deterioration; large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations or abandonment for any reason; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods, and tidal waves (Art. 11 (4) WHC).

14  When considering the inscription of a property on the Red List, the Committee consults the State Party concerned in order to develop a programme for corrective measures. For this purpose, the Committee may even send observers from the relevant Advisory Bodies to visit and evaluate the property. If the Committee decides to inscribe the property on the Red List, it defines a programme of corrective action to be taken and presents it to the State Party concerned for immediate action. The Committee may decide on the inscription of a property on the Red List at any time. The consent of the State Party in question is not required (Zacharias 41). In case of ‘urgent need’ the Committee is even empowered to inscribe a property on the Red List without a previous request for assistance from the State Party concerned. The Committee may decide simultaneously on the inscription of a new property on the World Heritage List and on the Red List, as happened in the case of the Bamiyan Valley in Afghanistan, in 2003. Often, inscriptions on the Red List lead to controversies, as was the case with the Everglades in the US or Mount Nimba located on the borders of Guinea, Liberia, and Côte d’Ivoire (for examples of inscriptions on the Red List which proved controversial see Buzzini and Condorelli 192 et seq). By August 2015, the Red List included 48 properties (30 cultural and 18 natural properties). All properties are inscribed both on the World Heritage List and on the Red List.

2.  Legal Consequences

15  The inscription of a property on the Red List gives rise to new rights and obligations of the State Party on whose territory the property is located. The right to request international assistance and receive financial support from the World Heritage Fund is strengthened. Properties inscribed on the Red List are given priority by the Committee (Operational Guidelines para. 236). It can provide immediate assistance and alert the international community. In most cases this ‘emergency call’ leads to supplementary assistance provided by single States, international organizations, or private entities. As an obligation, the State Party has to accept a regular review of the state of conservation of the property in question including monitoring procedures and expert missions (Operational Guidelines para. 190). They serve as a basis for the Committee’s further decisions.

16  If the measures have been successful and the property is no longer under threat, the Committee decides to remove the property from the Red List. If the recommended measures prove to be insufficient, the Committee may recommend additional ones. If the state of conservation deteriorates dramatically, the Committee may even decide to delete the property from both the Red List and the World Heritage List (Operational Guidelines para. 191).

3.  Deletion of Properties from Both the Red List and the World Heritage List

17  The possibility of deleting a property from both the Red List and the World Heritage List is not expressly provided for by the WHC. Nevertheless, such a possibility has to be considered as inherent to the spirit of the convention (Buzzini and Condorelli 197). The Committee has indeed established a delisting procedure. In cases (a) where a property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World Heritage List; or (b) where the intrinsic qualities of a world heritage site were already threatened at the time of its nomination by the action of man and where the necessary corrective measures, as outlined by the State Party at the time, have not been taken within the time proposed, the Committee can decide to delete a property from the World Heritage List (Operational Guidelines para. 192). In this case, the property loses its status as a world heritage site. Before taking such a decision the Committee has to consult the State Party concerned. It may decide to previously include the property in the Red List. This step, however, does not constitute a necessary condition (Buzzini and Condorelli 199).

18  The first delisting procedure took place in July 2007. At its 31st session in Christchurch, New Zealand, the Committee decided to delete the Arabian Oryx Sanctuary in Oman from the World Heritage List. Oman had reduced the size of the protected area by 90%. Between 1996 and 2007 the population of the Arabian Oryx had been reduced from 450 to 65 with only about four breeding pairs. These events were considered by the Committee as destroying the outstanding universal value of the site. No other world natural heritage site has been delisted since then.

19  The possibility of removing a property from the World Heritage List acts as the last incentive to compliance with the WHC and constitutes the only ‘sanction’ at the disposal of the Committee.

D.  Mechanisms of Implementation

20  Implementation of the WHC in order to ensure effective protection of the world natural heritage, and thus prevent a property from being deleted from the World Heritage List as a last resort, is a key challenge. Several mechanisms have been enshrined in the WHC as well as in the Operational Guidelines to this end. Furthermore, new initiatives intended to broaden implementation efforts have been developed.

1.  Reporting and Monitoring

21  The WHC lays down the obligation of States Parties to submit regular reports to the UNESCO General Conference about the legislative, administrative, and other measures which they have adopted for the application of WHC, together with details of the experience they acquired (Art. 29 (1) WHC). This provision, however, was considerably neglected during the first 15 years after the entry into force of the WHC in 1975. There was not an established reporting system, and the quality of reports varied enormously. Many countries did not even report at all (Brown Weiss 105).

22  As a consequence, important efforts to introduce effective mechanisms for reporting and monitoring were made (Van Hoof 32 et seq). Today, the system is based on two procedures: Periodic Reporting (Operational Guidelines paras 199 et seq) and Reactive Monitoring (Operational Guidelines paras 169 et seq).

23  The duty of the States Parties to submit regular reports according to Art. 29 WHC was strengthened and systematized in 1997. The Committee introduced a section on Periodic Reporting in the Operational Guidelines after having decided on the aims, the format, and the timetable for its implementation. One important characteristic of the system is its regional approach (Operational Guidelines para 203 c): countries from the same region have to report at the same time, and the results are later evaluated in an overarching regional report. The first cycle of periodic reporting started in 2000 and ended in 2006. The reports consisted of two sections: one on the implementation of the WHC in general and one on the state of conservation of each world heritage site (Operational Guidelines para 206). Even if the system still showed some limitations (World Heritage Centre ‘Challenges for the Millennium’ 46), the experience of this first cycle was much more convincing than previous attempts on reporting since States Parties could rely on a comprehensive procedure and participated more actively. After a reflection and evaluation pause on World Heritage Periodic Reporting (Operational Guidelines para. 205), the second cycle started in 2008 and ended in 2015.

24  The second measure to improve implementation of the WHC concerned monitoring. In 1992, the Committee adopted Strategic Guidelines emphasizing monitoring and compliance. In 1995, it added a new section to the Operational Guidelines on Reactive Monitoring (Operational Guidelines paras 169 et seq). If exceptional circumstances occur or the State Party has the intention to undertake or authorize work which may have an effect on the state of conservation of the property, it has to inform the Committee, which will then start a review and consultation process in order to prevent serious damage to the property. Reactive Monitoring is defined as the reporting by the Secretariat, other sectors of UNESCO, and the Advisory Bodies to the Committee on the state of conservation of specific world heritage properties that are under threat (Operational Guidelines para. 169). These reports may concern alleged problems of protection, management, and conservation which UNESCO or the Advisory Bodies have been informed about by States Parties, NGOs, individuals, or the media (World Heritage Centre ‘Challenges for the Millennium’ 42). Reactive Monitoring is also foreseen in reference to properties inscribed, or to be inscribed, on the List of World Heritage in Danger and with regard to the eventual deletion of properties from the World Heritage List.

2.  Recent Initiatives

25  In recent years, several new initiatives with regard to the implementation of the WHC have been launched. A very important one relates to education and, therefore, to the duty laid down in Art. 27 (1) WHC. Efforts to mobilize young people for world heritage have been massively intensified since 1994 (World Heritage Centre ‘Mobilizing Young People for World Heritage’). The relevant activities are coordinated within the UNESCO Young People’s World Heritage Education Programme (‘WHE Programme’). The introduction of a World Heritage Education Kit was one of the flagship projects in this context. Another one was the creation of the World Heritage Youth Forum in 1995. In order to allow young people to meet and to engage actively in the process of securing and enhancing their World Heritage, more than 34 fora have so far been organized at the international, regional, and national levels. The international fora are usually held prior to the annual sessions of the World Heritage Committee.

26  Another initiative concerns the institutional framework. The regional dimension of the implementation procedure has been continually strengthened with the help of new regional centres. Starting in 2007, UNESCO has established eight ‘Category 2 Centres’, which offer capacity building within the World Heritage context. They are not legally part of UNESCO; they are associated with the organization through formal arrangements. The most recent centre was founded in 2014 in India, the Centre on World Natural Heritage Management and Training for Asia and the Pacific Region. The regional centres assist and support States Parties in the implementation of the WHC in their territories.

27  There are also initiatives aiming at the involvement of the private sector. In 2002, the Committee set up the World Heritage Partnerships for Conservation Initiative (‘PACT’). The purpose of this initiative is to mobilize (additional) sustainable resources for the conservation of world heritage, but also to foster a dialogue, an exchange, and an interaction between different stakeholders (Gillespie 180). In 2013, the Committee adopted a Revised PACT Initiative Strategy.

28  Finally, regular publications of the World Heritage Centre try to increase awareness and promote knowledge. One example for strengthening the protection of natural heritage is the Natural Heritage Strategy, published by the World Heritage Centre in 2006. It contains all relevant guiding principles, mission statement, strategic orientations, and working methods relating to natural heritage.

E.  Evaluation and Perspectives

29  The WHC and, therefore, the protection of the world natural heritage, is characterized by many exceptionally positive aspects. The WHC was the first treaty to adopt a holistic approach to nature and culture (Francioni 16–17; Rössler). It has become one of the most respected and best-known international protection mechanisms. It has thus helped to raise the visibility of exceptional cultural and natural sites. An inscription on the World Heritage List has a positive impact both on the protection of the site and on tourism. Large number of visitors, however, may also contribute to the degradation of a landscape (for details on the relationship between tourism and protection/sustainability see Luger and Wöhler; Harrison and Hitchcock).

30  The guiding principle of the WHC is the idea that certain properties under the sovereignty of a State are of outstanding universal value and, therefore, need to be preserved as part of the heritage of mankind. Whilst the sovereignty of the State on whose territory the cultural or natural heritage is situated is fully respected, the State concerned has the main obligation to preserve it. But if the State is not able to cope with this obligation on its own, the international community as a whole has to assist if the property is inscribed on the World Heritage List. The legal concept is thus modelled upon a trust or a mandate exercised in the interest of mankind as a whole (Kiss and Shelton 336).

31  Furthermore, the WHC was the first convention to create a system of providing international financial aid for nature conservation measures (Sand 43). So far, this mechanism has proven to be quite successful. One example of a success story concerning a world natural heritage site is the Ngorongoro Conservation Area in Tanzania, a huge crater with the world’s largest concentration of wild animals, which was inscribed on the Red List in 1984. In only five years, thanks to international technical cooperation, the situation improved, and the area was deleted from the Red List.

32  But the protection provided by the WHC also shows some deficiencies (Francioni 29 et seq; Zacharias 46–47). One weakness is the lack of a mechanism to control the decisions of the Committee. States Parties have to accept its (negative) decisions; there is no possibility of a judicial or administrative review (Litton 247 et seq). Most of the deficiencies of the WHC, however, are a result of the strong respect for national sovereignty. Both the inscription on the World Heritage List and the granting of international assistance need the request and the consent of the State Party concerned. Without a State’s initiative neither the Committee nor the international community are able to act. As a consequence, it has proved almost impossible, for example, to inscribe a property located on a territory, sovereignty over which is claimed by more than one State, even though Art. 11 (3) WHC was elaborated for exactly this case. Furthermore, the WHC cannot be applied to sites situated in areas beyond national jurisdiction, like the Polar Regions (Dingwall 187 et seq) or the international marine areas, since no State Party can submit a request for inscription.

33  The main weakness of the WHC, however, is the lack of legally binding enforcement or sanction mechanisms. There is no possibility of preventing a State from neglecting or even destroying a world heritage site situated on its territory. The only mechanism, established by the Committee, is the procedure to delete a property both from the Red List and the World Heritage List and, thus, to withdraw the status of a world heritage. Sometimes, this mechanism seems to be a quite effective ‘threat’ which incites the States to react. Unfortunately, it does not always work. So far, one world natural heritage (Arabian Oryx Sanctuary in Oman) and one world cultural heritage (the Dresden Elbe Valley) have been deleted from the World Heritage List. The warnings and the efforts of the Committee to prevent the States in question from further deteriorating the site, therefore, did not lead to a positive result.

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