THIRTY YEARS ON: IS THE WORLD HERITAGE CONVENTION READY FOR THE 2IST CENTURY?

in The Italian Yearbook of International Law Online
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THIRTY YEARS ON: IS THE WORLD HERITAGE CONVENTION READY FOR THE 2IST CENTURY?

in The Italian Yearbook of International Law Online

References

' See Lowenthal, Possessed by the Past: The Heritage Crusade and the Spoils of History, New York, 1996, p. 11 ff. 2See UNESCO Convention on the Protection of the Underwater Cultural Heritage, 2001. 3 On the destruction of the Buddhas of Bamyan see FRANCIONI and LENZERINI, "The Destruction of the Buddhas of Bamyan and International Law", EJ1L, 2003, p. 619 ff.

4 See Francioni, "World Cultural Heritage List and National Sovereignty", Humanitares Völkerrecht, 1993, p. 195 ff. 5 Sec Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954. 6 See Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1999. 7 See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970. 8 See UNIDROIT Convention on Stolen or Illegally Exported Cultural Goods, 1995. 9 See supra note 2. 10 See United Nations Convention on the Law of the Sea, 1982, UN Doc. A/CONF.62/122, ILM, 1982, p. 1245. 11 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972. 12 Two new documents are worth mentioning: the first is the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage, as modified by the Intergovernmental Meeting of Experts held in Paris from 24 February to 1 March 2003 (document on file with the author); the second is the proposed UNESCO Declaration on Intentional Destruction of Cultural Heritage, Brussels, 2002 (document on file with the author). " See the ratification status at http://whc.unesco.org/wldrat.htm (as of 10 February 2003).

14 Ironically, this author was due to discuss his final dissertation in law at the University of Florence the very day of the flood. Instead of defending his thesis, he found himself involved for weeks in the excruciating job of salvaging books from mud and debris. Eventually he made it to obtain his law degree. However nothing in that early experience would have foreshadowed his later interest in the application of international law to the conservation of cultural heritage.

15 See UNESCO, Protection of Mankind's Cultural Heritage. Sites and Monuments, Paris, 1970, p. 40 f. 16 The text of the resolution is available in UNESCO, Records of the General Conference, Sixteenth Session, Paris, 12 October-14 November 1970, Vol. I, Resolutions, p. 55. 17 See Recommendations 98 and 99 of "Educational, Informational, Social and Cultural Aspects of Environmental Issues" of the Action Plan for the Human Environment adopted by the Conference, available at http://www.unep.org/Documents/Default.asp?DocumentID =97&ArticlelD=151 1. 18 See supra note I l. 19 The complete list of the sites inscribed in the World Heritage List is availablc at http://whc.unesco.org/heritage.htm.

20 See Article 11 of the Convention. 21 Sec Articles 1 and 2, regarding the definition of, respectively, cultural and natural heritage. 22 See Preamble, para. 6. 23 See Article 6, para. 1. Z4 See Article 11, para. 2. 25 See Article 11, para. 4. 26 See Article 8, para. 1. 27 See Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, cit. supra note 6, Article 24 ff.

28 The Statutes of the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation were adopted by Resolution 4/7.6/S of the Twentieth Session of the General Conference of UNESCO, Paris, 24 October-28 November 1978, and are available at http://www.unesco.org/ culture/laws/committee/html eng/statuts.shtml. z9 See para. 1. 3o Ibid. 31 For further treatment of the implieations deriving from the removal of world cultural heritage from the domain of domestic jurisdiction, see FRANCIONI, cit. supra note 4. 'z See supra note 5. 33 See supra note 7. 'a See Preamble, second sentence.

's The concept of erga omnes obligations has been proclaimed by the International Court of Justice in a renowned statement included in the judgement relating to the Barcelona Traction, Light and Power Company case, (ICJ Reports, 1970, p. 3 ff, pp. 33-34); according to which "an essential distinction should be drawn between the obligation of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest to their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning basic rights of the human person including protection from slavery and racial discrimination". For an early doctrinal elaboration of the erga omnes concept, see PICONE, "Obblighi reciproci ed obblighi erga omnes degli Stati nel campo della protezione intemazionale dell'ambiente marino dall'inquinamento", in STARACE (ed.), Diritto internazionale e protezione dell'ambiente marino, Milano, 1983, p. 21 ff

36 See 1969 Vienna Convention on the Law of Treaties, UNTS, Vol. 1155, p. 331. 37 See 1972 Declaration of the United Nations Conference on the Human Environment.

38 See UN General Assembly Resolution 37/7 of 28 October 1982 (available at http://www.un.org/ documents/ga/res/37/a37rOO7.htm), in particular paras. 1-12. 39 See Rio Declaration on Environment and Development, adopted in by the United Nations Conference on Environment and Development met at Rio de Janeiro from 3 to 14 June 1992. 40 See, e.g., Article II of the 1973 Oslo Agreement on the Conservation of Polar Bears, 1LM, 1974, p. 13, and Article 2 of the 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats.. 41 See Article 2 of the 1985 Vienna Convention for the Protection of the Ozone Layer. 42 See Article 4, para. 2 of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. 43 See Article 3 of the 1992 United Nations Framework Convention on Climate Change, and Article 2 of the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change. 44 See Article 2 of the 1991 Convention on the Protection of the Alps (Alpine Convention). 45 See Treaty Establishing the European Community, OJ EC, No. C 325 of 24 December 2002, ai 33. See KRAMER, EEC Treaty and Environmental protection, London, 1990, p. 61. 47 See Case Concerning the Gabcikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports, 1997, p. 3 ff., p. 74, para. 140. 48 See International Law Commission Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted in 2001.

49 See UNESCO Universal Declaration on Cultural Diversity, 2 November 2001. 50 See Prosecutor v. Dario Kordic and Mario Cerkez, Judgement of 26 February 2001, para. 207 (according to the Tribunal, the acts of destruction or wilful damage done to institutions dedicated to religion, "when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of 'crimes against humanity', for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects"); see, more comprehensively, FRANCIONI and LENZERINI, cit. supra note 3. 51 A UNESCO meeting of experts on this subject was held in Brussels 9-13 December 2002 and a draft declaration is now ready for consideration at the 2003 General Conference (see supra note 12; pertinent documents on file with the author). 52 See Kiss, "La notion de patrimoine commun de 1'humanite", RCADI, 1982, Vol. II, p. 99 ff. 53 See supra note 10, Article 136.

54 See International Sea-Bed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, Doc. ISBA/6/A/I8 of 20 July 2000, Annex, available at http://www.brownwelsh.com/Archive/SeabedRegs.pdf, Regulations 7 and 8. 55 See supra note 2. 56 See supra note 43, Preamble.

57 See Convention on Biological Diversity, 1992, Preamble. 58 See IUCN Draft International Covenant on Environment and Development, 2000, available at http://www.iucn.org/themes/law/pdfdocuments/EPLP31 ENsecond.pdf; Article 3 states that "[t]he global environment is a common concern of humanity". See Protocol on Environmental Protection to the Antarctic Treaty, 1991; Article 7 states that jalny activity relating to mineral resources, other than scientific research, shall be prohibited". See Articles 1 and 2, cit. supra note 21. 1. 61 See Declaration on Principles of International Law Concerning Friendly Relations and Co- operation among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625 (XXV) of 24 October 1970, UN GAOR, 25`" Sess., Suppl. No. 28, tri 121. See supra note 37.

63 See supra note 39. 64 See 1979 Convention on Long-range Transboundary Air Pollution, especially Preamble and Article 7 ff. ss Id., Article 6. 66 See 1986 Vienna Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, and 1986 Vienna Convention on Early Notification of a Nuclear Accident. 67 See, e.g., Articles 117 and 197 of the United Nations Convention on the Law of the Sea, cit. supra note 10. 68 See, e.g., Articles I and I I of the Beme Convention on the Conservation of European Wildlife and Natural Habitats, cit. supra note 39. 69 See supra note I I; Article 11 (3), second sentence, states that "[t]he inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute".

70 See supra note 7. 71 See the list of States Parties at http://www.unesco.org/culturellawslI970/html_eng/page3.shtml. 72 See Article 5(b). 73 See Articles 5(d) and 9. 74 See, in particular, Articles 5(f), 10 and 17. 75 See Article 7(b)(ii). 76 See Articlc 9. For instance, pursuant to this Article, the United States has signed a number of bilateral agreements in the field, for example with Canada (Agreement between the Government of the United States of America and the Government of Canada Concerning the Imposition of Import Restrictions on Certain Categories of Archaeological and Ethnological Material, 10 April 1997) and Italy (Agreement between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archacological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy, 19 January 2001).

77 See supra note 8. 78 See supra note 36; Article 31 states that "1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty [...]".

79 See Case Concerning the Gabcikovo-Nagymaros Project, cit. supra note 47, para. 140. 80 See General Agreement on Tariffs and Trade, 1947 (amended and modified in 1994), Article XX(g). 81 see United States-lmport Prohibition of Certain Shrimp and Shrimp Product, Report of the Appellate Body, WTO Doc. WT/DS58/AB/R of 12 October 1998, para. 125 ff. 82 See Operational Guidelines for the Implementation of the World Heritage Convention, 2002, UNESCO Doc. WHC.02/2 of July 2002, paras. 35 ff. 83 Ibid., para. 44.

84 The evolution of the World Heritage Committee from a position of reserved caution to a position of full support of a system of periodic monitoring can be seen in the documents of its Eighteenth Session, Phuket, Thailand, 12-17 December 1994, Report, UNESCO Doc. WHC- 94/CONF.003/16 of 31 January 1995, particularly para. IX, and of its Nineteenth Session, Berlin, Germany, 4-9 December 1995, Report, UNESCO Doc. WHC-95/CONF.203/16 of 31 January 1996, particularly paras. V and IX, with the relative follow-up in the General Assembly of States Parties held in 1997. 85 Article 12 states that "[t]he fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 I

shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists". 6 See UNESCO Recommendation concerning the Protection, at National Level, of The Cultural and Natural Heritage, whose Preamble states that "every country in whose territory there are components of the cultural [...] heritage has an obligation to safeguard this part of mankind's heritage and to ensure that it is handed down to future generations" and that "knowledge and protection of the cultural [...] heritage in the various countries of the world are conducive to mutual understanding among the peoples". 87 See Article 11, para. 3 of the Convention.

88 The Human Rights Committee is established by Article 28 of the 1966 International Covenant on Civil and Political Rights, UNTS, Vol. 999, p. 171. 1. 89 This suggestion recaptures some of the earlier views underlying the original proposals for world heritage protection. The United States draft, for example, did not give a decisive role to the territorial State's consent in relation to listing. It would have allowed the inclusion in the List of property "(I) which had not been submitted by a State Party, and (2) sites located anywhere throughout the world ". Similarly, the IUCN draft convention did not require territorial State's consent for nomination but only for actual inscription. Even the negotiating text approved by the UNESCO governmental experts meeting maintained a great flexibility in referring to the "consent of the State concerned", which could have been different from the territorial State. See, for further reference to these precedents MEYER, "Travaux preparatoires for the UNESCO World Heritage Convention", Earth Law Journal, 1976, p. 45 ff., p. 55 and note 102. 9° See Article 19 of the Convention, which states that "[a]ny State Party to this Convention may request international assistance for property forming part of the cultural or natural heritage of outstanding universal value situated within its territory. It shall submit with its request such information and documentation provided for in Article 21 as it has in its possession and as will IT enable the Committee to come to a decision".

91 See supra text accompanying note 69. 92 See World Heritage Committee, Twenty-First Session, Naples, Italy, 1-6 December 1997, Report, UNESCO Doc. WHC-97/CONF.208/I7 of 27 February 1998, Annex IV. 93 This case has prompted a request to the UN legal office to determine the legal status, under relevant UN resolutions, of the area where Mount Zion is located (document on file with the author). 94 Such sentence states that "[t]he inclusion of a property situated in a territory, sovereignty or jurisdiction over which is elaimed by more than one State shall in no way prejudice the rights of the parties to the dispute". 95 See supra note 2.

96 See the various types of Protected Areas in US Department of State, Handbook of the Antarctic Treaty System, 9th ed., 2002, available at http://www.state.gov/g/oes/ris/rpts/ant, �articularly Chapter XII, "Protection of the Antarctic Environment". 7 see the in-depth analysis contained in the UNESCO legal counsel's opinion presented and discussed at the 2002 meeting of the World Heritage Committee, Twenty-sixth Session, Budapest, Hungary, 24-29 June 2002, Summary Record, UNESCO Doc. WHC- 02/CONF.202/INF.I5 of 11 March 2003, p. 12. 98 The text of Article 11, para. 4 reads as follows: "[t]he Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of 'List of World Heritage in Danger', a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention. This list shall contain an estimate of the cost of such operations. The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large- scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves. The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately". 99 See supra note 90 and accompanying text.

100 See supra note 98. 101 This is consistent with the practice of the Committee in many cases, including Dubrovnik in 1991 (see World Heritage Committee, Fifteenth Session, Carthage, 9-13 December 1991, Report, UNESCO Doc. SC-91/CONF.002/15 of 12 December 1991, para. 29), Mount Nimba in 1992 (see World Heritage Committee, Sixteenth Session, Santa Fe, United States of America, 7-14 December 1992, Report, UNESCO Doc. YMC-92/CONF.002/12 of 14 December 1992, para. V1I1.13), Galapagos in 1997 (in such case the site was not inscribed in the List; see World Heritage Committee, Twenty-First Session, Naples, Italy, 1-6 December 1997, Report, UNESCO Doc. WHC-97/CONF.208/17 of 27 February 1998, para. 111.2), even though resistance to world heritage in danger listing was shown in the case of Kakadu in 1998 and 1999 (documents on file with the author), and is being shown in the case of Kathmandu Valley.

102 See supra note 28. �°3 See supra note 6, Article 24.

z This workshop was jointly organized by UNESCO, the University of Siena and the City of Siena to mark the 30th anniversary of the World Heritage Convention.

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