The Role of the World Heritage Convention for Foreign Investments and Investment Disputes: An Overlooked Instrument for Preventing Harmful Investment Activities?

Investment activities by foreign investors such as mining operations or energy production can threaten natural and cultural World Heritage, which is protected under the World Heritage Convention. As World Heritage sites have been at the heart of various (recent) investment disputes, the question arises as to how obligations under the World Heritage Convention affect investment activities and investment disputes. The article seeks to shed light on this issue by analysing different aspects of the World Heritage Convention in the context of investment law. It starts by exploring how investment tribunals have approached investment disputes involving World Heritage sites and what their decisions imply for the regulation of investment activities in or near World Heritage sites. Subsequently, the article examines which obligations the World Heritage Convention imposes on foreign investors, host states, and investors‘ home states. In the analysis of the home states‘ duties, Article 6(3) of the Convention, which has hitherto received little scholarly attention, is of particular interest. Based on decisions of the World Heritage Committee and doctrinal opinions, the authors interpret said provision and place it in the specific context of investment law. In doing so, they find that a limited duty to regulate exists for home states of investors if they provide financial or non-financial support to a business operation abroad.


I. Introduction
The recognition of the need to preserve cultural and natural heritage as a global public good provides the basis for the UNESCO World Heritage Convention of 1972 (WHC), which aims at protecting cultural and natural heritage of an outstanding universal value from a historical, scientific, aesthetic, conservationist, ethnological or anthropological point of view (socalled World Heritage sites). 1 Since World Heritage sites form part of World Heritage of all humankind, it is the duty of the international community as a whole to preserve them. 2 Besides, the protection and conservation of these sites may be a social good for national and local communities or in terms of maintaining biodiversity and a healthy environment.
Yet, investment activities become an increasing threat to World Heritage sites. This is especially true for sites that are deemed economically exploitable 3 through mining activities, the development of tourist facilities and energy production. 4 For instance, the Virunga National Park in the Democratic Republic of Congo -home to endangered mountain gorillas 5 -has inter alia been jeopardized by potential oil and gas exploitation activities of transnational companies. 6 Considering these threats, it is plain that private interests of investors may clash with the public interest embodied in the preservation of World Heritage. State authorities may therefore have to intervene in order to protect World Heritage sites, which can eventually lead to investment disputes with foreign investors. However, investors may also receive support from both the host state of the investment and the home state of the investor for developing projects close to World Heritage sites. In this way, states permit or contribute to the threats posed to World Heritage sites by investment activities.
Against this backdrop, the paper explores two main questions: first, what role has the WHC played and could it play in investment disputes; secondly, which obligations arise for host states of foreign investments and the home state of investors? In answering these questions the article attempts to outline to what extent the WHC can regulate the conduct of investors and states and contribute to the protection of cultural and natural World Heritage sites when foreign investors plan investment activities in or close to these sites. In this regard, the analysis of host and home state obligations under the WHC provides relevant knowledge for parties involved in future investments, as mining projects to extract the nowadays highly demanded lithium in areas close to World Heritage sites illustrate. 7 In addition, exploring answers to said questions may offer insights into the intricate relationship between international investment law and international climate law, including the multilateral Paris Agreement. 8 The manner in which investment tribunals have approached the multilateral WHC and World Heritage sites in their awards may be particularly instructive for pending investment disputes involving coal phase-outs. . However, the Uniper arbitration will soon come to and end as the company is required to withdraw its arbitration claim against the Netherlands as part of a bailout package by the German government, see Lisa Bohmer, 'Uniper is required to withdraw its intra-EU ECT claim against the Netherlands as part of German bailout package' (IAReporter, 22 July 2022) <www.iareporter.com/articles/uniper-is-required-to-withdraw-its-The paper starts with a brief overview of the WHC, the World Heritage Committee (II.) and investment disputes involving the WHC (III.). Subsequently, it addresses how tribunals can take into account the public interest of protecting World Heritage and misconduct of foreign investors in or close to World Heritage sites (IV.). Finally, the article explores which regulatory obligations arise from the WHC for host states of foreign investments, on the one hand (V.) and from Article 6(3) WHC for home states of the investors, on the other (VI.) -an issue that has thus far received no attention in scholarshipfollowed by a brief conclusion (VII.).

II. World Heritage Convention and the World
Heritage Committee -Legal and Institutional Framework for Protecting World Heritage The WHC was adopted on 16 November 1972 and is based upon the principle that items of cultural and natural heritage are a common good of all peoples. 10 Thus, the Convention obliges all 194 state parties to make a common effort in identifying and conserving World Heritage sites. 11 In these efforts the state parties are assisted by the World Heritage Committee, 12 an inter-governmental intra-eu-ect-claim-against-the-netherlands-as-part-of-german-bailout-package/> accessed 22 July 2022. body consisting of 21 state party representatives, who ought to be 'qualified in the field of the cultural or natural heritage' 13 . Properties recognized as World Heritage sites are inscribed in the World Heritage List, 14 which as of mid-2022 contains 1154 entries. 15 The identification of cultural and natural heritage relies on the properties' outstanding universal value, 16 allowing the WHC to protect a wide variety of cultural, natural and mixed heritage. 17 The initial identification of a site's global significance for humanity, its delineation as well as its nomination for admission to the World Heritage List is incumbent upon the state party in whose territory the property is located. 18 Based on ten assessment criteria, e.g., the property being an outstanding example of a type of building, the nomination has to include an explanation as to why the proposed cultural, 19 natural 20 or mixed property has outstanding universal value. 21  Operational Guidelines, supra note 10, N° 24 a), 31 e); Meskell, supra note 13, 220ff; Scholze, supra note 16, 217. List neither implies that it is not protected under the WHC nor that the site does not have outstanding universal value (Article 12 WHC). 23 Unlike the identification, the protection of cultural and natural heritage is a common responsibility of all state parties. 24 While this generally follows the Convention's logic of World Heritage sites as common good, Article 4 WHC imposes the primordial obligation to protect and conserve the cultural or natural heritage on the state party in whose territory the property is located. Article 6(1) WHC complements the obligation of the territorial state by emphasizing the duty of the international community as a whole to cooperate. Article 6(2) WHC stipulates that state parties must provide help in the identification and preservation of a World Heritage site if requested by the state which the site is located. Additionally, Article 6(3) WHC compels all state parties to refrain from 'deliberate measures that might damage directly or indirectly' a World Heritage site 'on the territory of other state parties'. 25 In the event of a threat to a World Heritage site, Article 11(4) WHC provides a specific procedure -the inscription in the List of World Heritage in Danger by the World Heritage Committee. 26 Said procedure does not, unlike the admission to the World Heritage List, require the consent of the state in 23 Art 12 WHC ('The fact that a property belonging to the cultural or natural heritage has not been included in […] [the World Heritage List or List of World Heritage in Danger] 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.'); Boer, supra note 18, 89; Federico Lenzerini, 'Article 12' in Francioni, supra note 10, 205. and Thailand must co-operate between themselves and with the international community in the protection of the site as a world heritage. In addition, each State is under an obligation not to "take any deliberate measures which might damage directly or indirectly" such heritage. In the context of these obligations, the Court wishes to emphasize the importance of ensuring access to the Temple from the Cambodian plain.'). 26 See further Operational Guidelines, supra note 10, N° 9, 182ff; Operational Guidelines, supra note 10, N° 177ff; Gionata P Buzzini and Luigi Condorelli, 'Article 11' in Francioni, supra note 10, 180ff. the territory of which the relevant property is located. 27 Once a property is on the List of World Heritage in Danger, the Committee conducts regular reviews of its state of conservation. 28 Based upon these investigations and consultations with the state party concerned, the Committee decides if further measures for conservation are needed, the property is no longer in danger 29 or the property has lost its outstanding universal value and must therefore be deleted from the World Heritage List. 30  property' due to antiquities in the area and approval of the project was officially withdrawn. 39 In 1979, the Pyramid Fields was added to the World Heritage List. 40 In 1984, SPP initiated arbitration proceedings against Egypt arguing that Egypt had violated its obligations under the contract and the Egyptian foreign investment law. 41 Egypt claimed that its ratification of the WHC had required the termination of the project. 42 The tribunal only partially followed this argument. When addressing the applicable law it acknowledged that the WHC would be relevant for the decision in the investment dispute, 43 but the tribunal held the WHC 'by itself does not justify the measures taken by the Respondent to cancel the project, nor does it exclude the Claimants' right to compensation'. 44 The mere ratification of the WHC by Egypt in 1975, i.e. prior to the start of the construction work, was treated as irrelevant, but the tribunal found that the inclusion of the Pyramid Fields in the World Heritage List in 1979 meant that the 'relevant international obligations emanating from the Convention became binding on the Respondent.' 45 This particular reasoning by the tribunal has been criticized in light of Article 12 WHC. 46 The tribunal went on to state that after the inclusion of the site in the World Heritage List 'a hypothetical continuation of the Claimants' activities interfering with antiquities in the area could be considered as unlawful from the international point of view.' 47 The latter conclusion affected the amount of damages eventually awarded. As far as the expropriation claim was concerned, the tribunal recognized that Egypt had the sovereign right to cancel the project in order to protect the site. The cancellation of the project and the re-designation of the land as public property was a 'right [that] was exercised for a public purpose, namely, the preservation and protection of 39 Ibid., paras 63-65. 40 Ibid., para 153. 41 Ibid., para 1. 42 Ibid., paras 150, 156. 43 Ibid., para 76. 44 Ibid., para 154. 45 Ibid. antiquities in the area'. 48 Still compensation was due. 49 However, damages for lost profits could only be awarded until the site was inscribed on the World Heritage List because afterwards 'the Claimants' activities on the Pyramids Plateau would have been in conflict with the Convention and therefore in violation of international law, and any profits that might have resulted from such activities are consequently non-compensable.' 50 2.

Santa Elena v Costa Rica
Santa Elena v Costa Rica 51 also concerns the expropriation of a property located in an area with a unique natural habitat, which an investor had purchased to develop a tourist resort. 52 Costa Rica argued that the expropriation pursued a public purpose: it wanted to expand a national park to conserve flora and fauna in the area. 53 The investor received compensation, but the amount was contested, which eventually led to ICSID arbitration in 1995. 54 The arbitration proceedings merely concerned the question whether the amount of compensation was sufficient, not whether a direct expropriation had occurred. 55 After the proceedings had commenced, Costa Rica nominated the site in question for inclusion in the World Heritage List, which occurred in 1999. 56  tribunal's finding that 'the [public] purpose of protecting the environment for which the Property was taken does not alter the legal character of the taking for which adequate compensation must be paid. The international source of the obligation to protect the environment makes no difference.' 58 3.

Parkerings v Lithuania
In Parkerings v Lithuania, 59 a Lithuanian subsidiary owned by the Norwegian investor Parkerings, joined a consortium and the Municipality of the City of Vilnius granted it with an exclusive concession to operate ten multi-storey car parks, which the consortium was required to construct. 60 However, the Municipality eventually terminated the agreement in 2004 for alleged material breaches by the consortium. 61 As a response, Parkerings instituted ICSID proceedings against Lithuania in 2005, 62 arguing inter alia that it had been discriminated against because the Municipality supposedly treated the Norwegian investor less favourably than a Dutch company in like circumstances. 63 However, the arbitral tribunal concluded that the two investors were not in like circumstances. The planned car parking facility of Parkerings would have extended far into the Old Town of Vilnius, a World Heritage site, reaching the historical site of the cathedral. 64 While the other car park was also located in the old town, 65 the fact that Parkering's project 'extended significantly more into the Old Town as defined by the UNESCO, is decisive' and implied that these two construction projects were not comparable. 66 Furthermore, 'the City of Vilnius did have legitimate grounds to distinguish between the 58 Ibid., para 81 (footnote omitted); see also ibid., para 72. Subsequent proceedings also concerned expropriation claims in the same province, but the WHC and the concept of World Heritage was not raised by the parties and the tribunal did not address it either, see Ibid., para 10. 63 Ibid., paras 363-365. 64 Ibid., para 382ff, 385. 65 Ibid., para 381. 66 Ibid., para 392. See also ibid., para 396. two projects', 67 namely concerns related to 'historical and archaeological preservation and environmental protection'. 68

4.
Glamis Gold v USA Glamis Gold v USA 69 concerned an investor who planned a gold mine project in an area of the Californian desert, which was not listed as a World Heritage site. However, the Native American Quechuan tribe considered the area important for cultural and religious reasons. 70 The US Federal Government had originally refused to approve a mining project in the area, 71 but after a change of government following the 2000 election, the mining claims were recognized as valid. 72 In response, the Californian state took legislative measures to prevent negative impacts of mining activities on sacred Native American sites and inter alia required operators of open-pit mining sites to backfill the mines. 73 Due to the original failure by federal authorities to approve the project and the backfilling requirement, the investor initiated arbitration proceedings arguing that an indirect expropriation and a violation of the minimum standard of treatment had occurred. 74 The tribunal dismissed the claims on the merits holding that the legislative measures were not arbitrary and unreasonable 75 and inter alia pointed out that the measures tried to prevent harm by pits and waste piles to 'pot shards, spirit circles, and the like, sight lines, teaching areas and viewsheds'. 76 While the WHC did not play a major role in the reasoning, the tribunal noted that US domestic law implemented the WHC. 77 Moreover, in a footnote it referred to Article 12 WHC emphasizing that 'a site's non-inclusion on the register does not signify 67 Ibid., para 396. 68 Ibid. Ibid., para 185. 75 Ibid., para 805. 76 Ibid., para 805. 77 Ibid., para 84.
its failure to possess "outstanding universal value"'. 78 Thereby, the tribunal recognized that the inclusion in the World Heritage List was not constitutive for the determination of whether a natural or cultural site is so unique that it deserves protection.

Cortec Mining v Kenya
The investment dispute in Cortec Mining v Kenya 79 involved a World Heritage site, 80 namely sacred indigenous sites located in a natural dry forest area protected under Kenyan law as a forest reserve, nature reserve and national monument. 81 The investor planned a mining project in the dry forest area and started intensive exploration activities after the area had been re-opened for mining. 82 Subsequently, the investor submitted an application for a full mining licence, which was first rejected due to a missing environmental impact assessment (EIA), 83 but two days after the 2013 general election a special mining licence was granted before a new government had been sworn in. 84 However, all mining licences issued in the transitional period were later revoked 85 and Kenyan courts held that the special mining licence had been void ab initio. 86 In the subsequent investment arbitration proceedings, the tribunal dismissed the case on jurisdictional grounds holding that no protected investment existed. In particular the tribunal held that the investor's disregard for the domestic laws protecting the area in question and its failure to obtain an EIA approval 'constituted violations of Kenyan law that, in terms of international law, warrant the proportionate response of a denial of treaty protection under the BIT and the ICSID Convention.' 87 While the tribunal 78 Ibid., para 84, fn 194; see also did not explicitly mention the WHC, compliance with domestic rules that also protected a World Heritage site were of paramount importance for the tribunal's finding.

Gosling and Others v Mauritius
The most recent award addressing the WHC, Thomas Gosling and Others v Mauritius, 88 concerned an investor, who inter alia had planned a tourism development project and purchased land in an area, which the government planned have added to the World Heritage List. 89 The project was supposed to be implemented in a buffer zone of the designated World Heritage site in accordance with the plans prepared by government-appointed experts, who worked on the application for inscription on the World Heritage List. 90 In addition, the project needed various permits from state authorities to proceed. 91  Ibid., paras 42-47. 90 Ibid., paras 45, 50. 91 Ibid., para 49. 92 Ibid., para 61. 93 Ibid., para 63. 94 Ibid., paras 65, 71-72. 95 Ibid., para 73. 96 Ibid., paras 74-75. 97 Ibid., para 76.
2016, arguing in particular that the revised planning policy guidance violated their rights as investors.
The majority of the tribunal rejected the argument that the investor had been expropriated, 98 that the Fair and Equitable Treatment (FET) standard had been breached 99 or that discriminatory treatment had occurred. 100 Primarily, the tribunal did not find that the letter of intent was tantamount to governmental approval of the project 101 and pointed out that the prime minister 'did hint at the risk of going ahead' 102 prior to World Heritage Committee's decision on Mauritius' application in a meeting with the investor. According to the tribunal, the record 'of this meeting show[s] the paramount interest of the Government in the inscription of the site in UNESCO's World Heritage List.' 103 The majority noted that Mauritius had always had the objective to register the site as World Heritage, which was known to the investor and furthermore, the state was permitted to change its policies with respect to whether a project can go ahead in the buffer zone since no contrary assurances had been given to the investor. 104 Moreover, the investor had not received any permits prior to the change in policy. 105 On the issue of discrimination between different tourism development projects in the buffer zone, the majority of the tribunal held that the projects were not in like circumstances, inter alia due to their location in different sub-zones of the buffer zone, and pointed out that the 'division of the buffer zone in sub-zones by [the revised guidance] was justified by objective criteria of fauna, flora, and visual integrity on the basis of the recommendations of the UNESCO's experts.' 106 98 Ibid., para 242. 99 Ibid., paras 247-248, 250. 100 Ibid., paras 251-252, 256. 101 Ibid., para 236. 102 Ibid., para 238. 103 Ibid. 104 Ibid., para 249. 105 Ibid. 106  Alternatively, the concept of World Heritage may become relevant for counterclaims, i.e. claims brought by the respondent state against the claimant investor in the arbitral proceedings. 114 However, the success of such a claim firstly depends on whether the jurisdictional clause of the underlying investment treaty covers any dispute (related to the investment) and not only claims by an investor against a state. 115 For instance, the tribunal in Urbaser v Argentina accepted that the dispute resolution clause of the Argentina-Spain BIT covering '[d]isputes arising between a Party and an investor of the other Party in connection with investments' 116 and allowing for arbitration 'at the request of either party to the dispute' 117 permitted the respondent state Argentina to bring a counterclaim against the investor. 118 Secondly, it depends on the applicable law clause, which must provide a legal ground for a claim against the investor. 119 Mere reference to international law and thus the WHC would arguably not suffice since no obligations for investors are emanating from the WHC. Similarly, the arbitral tribunal in Urbaser v Argentina pointed out in connection with Argentina's counterclaim, which was primarily based on the human right to water, that '[t]he human right to water entails an obligation of compliance on the part of the State, but it does not contain an obligation for performance on part of any company'. 120 Rather, 'the investor's obligation to perform has as its source domestic law; it does not find its legal ground in general international law.' 121 Thus, it is again the domestic law of the host state implementing the WHC, which could provide an adequate legal basis for a counterclaim if domestic law forms part of the applicable law.
Apart from the jurisdictional phase and counterclaims, the tribunal may consider the WHC when assessing the merits of a claim. This is largely uncontroversial if the applicable law clause not only refers to the investment treaty, but international law as well, 122 and if the respondent state relies on the WHC as a defence. Even if the applicable law clause is more narrow, a tribunal may consider other sources of international law under Article 31(3) (c) Vienna Convention on the Law of Treaties (VCLT). 123 Whether and under which circumstances an arbitral tribunal could take into account other sources of international law -including the WHC -on its own initiative (iura novit curia) remains contested. 124 Moreover, it should be noted that taking into account the WHC does not allow arbitral tribunals to 'adjudicate on the eventual breach of cultural heritage law' 125 since their mandate is limited to rule on whether the state breached investment law. Nonetheless, tribunals 'may analyse the specific investment claims in the light of the relevant rules of international law applicable in the relationship between the parties, including the WHC.' 126 In any event, as the arbitral awards described above indicate, on the merits an investor's disregard for the WHC regime and the listing of an area as a World Heritage site may prove fatal for investment claims. This is 121  particularly true for those based on the legitimate expectations under FET, 127 since prudent investors may need to be aware that it is impossible or only possible with restrictions to conduct investment activities on or close to World Heritage sites. In addition, investment claims based on non-discrimination standards are unlikely to succeed in situations where investments negatively affecting a World Heritage site are treated differently from investments (in same economic sector) that do not cause harm to World Heritage sites. 128

C. Limited Effect of Addressing Investor
Misconduct in Investment Proceedings respect to cultural or natural heritage, but rather refer to the environment or human rights. 132 Moreover, state parties tend to incorporate general exception clauses to further restrict the possibility of investment claims by investors when measures are taken in the public interest, including the protection of the environment and cultural sites. 133 For instance, the Israel-Japan BIT provides that 'nothing in this Agreement shall be construed so as to prevent the former Contracting Party from adopting or enforcing measures: […] imposed for the protection of national treasures of artistic, historic or archaeological value'. 134 Such exception clauses do not establish obligations for investors, but may insulate states from investment claims for measures taken to protect heritage. However, the effect of such exception such clauses has been contested in scholarship and recent arbitral practice and it is doubtful whether such clauses preclude awards granting compensation or damages. 135

V. Host State Obligations under the WHC
Chapter II of the WHC is the Convention's centrepiece as it is the only source of the state parties' obligation to protect World Heritage sites. 136 The chapter is independent of protection mechanisms provided in other chapters, such as the World Heritage List, since the obligations under chapter II take effect irrespective of the inscription of the property concerned. 137 Despite the underlying principle of World Heritage as common heritage of all nations, the chapter heading 'national and international protection of cultural and natural heritage' indicates a separation of obligations. 138 While Articles 4 and 5 WHC focus on the duties of the state party in whose territory the property is located, Article 6 WHC puts an emphasis on the responsibilities of the international community. Thus, regarding foreign investments, Articles 4 and 5 WHC are the relevant provisions for the determination of the host state's obligations.
A state has to fulfil the obligations under Articles 4 and 5 with respect to any property of outstanding universal value on its territory. 139 While the WHC does not define those obligations, Article 5 provides an open-ended list of possible measures to ensure the protection, conservation and presentation of properties. 140 A further indication of the host state's obligations' specific content are the 'Operational Guidelines for the implementation of the World Heritage Convention'. 141 Despite detailed instructions in the Guidelines concerning the identification 142 and protection 143 of properties, the legally binding responsibilities undertaken by the state parties may not be as far reaching as Articles 4 and 5 WHC suggest. 144 While the wording of the first sentence in Article 4 WHC reveals the recognition of territorial sovereignty, 145 the language in the second part narrows down the obligations to a pledge 'to do all [they] can, to the utmost of [their] own resources'. 146 Similarly, the commitment to request international assistance, which is meant to be complemented by Article 6(1) WHC, only applies 'where appropriate'. 147 Following this pattern, Article 5 WHC merely requires the state parties to 'endeavour, in so far as possible, and as appropriate' to take measures for the protection of World Heritage sites. 148 The qualifying language of both Articles 4 and 5 WHC reveals the conflicting interests of protecting World Heritage as a common good on the one hand and sovereignty on the other. 149 Since the Convention's authors opted for a strong accentuation of sovereignty explicitly referred to in Article 6(1) WHC 150 -the language of the WHC reflects the correlating consideration of varying economic conditions and domestic legislations. 151 The extent of the obligations under Articles 4 and 5 WHC have been subject to interpretation in a number of domestic court proceedings. For instance, in the Commonwealth v Tasmania case the High Court of Australia was concerned with the construction of a hydro-electronic dam on the Gordon and 2 and situated on its territory, belongs primarily to that State'. River in Tasmania, which threatened to flood a World Heritage site. 152 In the context of the case, the justices interpreted Articles 4 and 5 WHC. 153 Based on the removal of the term 'undertake' from the draft version of these articles, and its usage in Article 6 WHC, Justice Wilson reasoned that Articles 4 and 5 WHC amount to a promise or aspiration rather than a legal obligation. 154 Yet, the majority of justices argued that the articles do in fact contain a legal obligation. Therefore, the Court came to the conclusion that the federal government's ban of the construction was lawful. 155 The German Federal Constitutional Court substantiated Justice Wilson's interpretation in its Waldschlösschenbrücke decision. 156 In this case, the Court had to deal with the impact of the construction of a bridge on the Dresden Elbe Valley's outstanding universal value. Drawing upon recognition of the state parties' sovereignty, it held that 'the World Heritage Convention does not offer absolute protection against any kind of changes to World Heritage sites'. 157 The Austrian Supreme Administrative Court came to a similar conclusion in its judgement concerning the lawfulness of the construction of a train tunnel, which was deemed to threaten the Semmering Railway World Heritage site. 158 By juxtaposing Article 4 WHC with Article 6(3) WHC, 159 it found that the former 'stipulates a different, less far reaching standard under international law for the preservation of cultural and natural heritage located within the state's own sovereign territory'. 160 VI. Home State Obligations under the WHC This section focuses on the -hitherto largely neglected -question whether the WHC includes specific obligations for home states of investors to regulate investment activities abroad when they pose a threat to World Heritage sites according to Article 6(3) WHC. 161 To answer this question, the interpretations of Article 6(3) WHC provided by scholarship and the World Heritage Committee will be addressed before analysing the provision on the basis of Article 31 VCLT and with reference to the travaux préparatoires (Article 32 VCLT). The section concludes by assessing which concrete obligations may arise from Article 6(3) WHC for home states with respect to investment activities of their investors abroad.

A. Interpretations by Scholarship
According to Article 6(3) WHC 'each State party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention'.
The predominant school of thought construes Article 6(3) relatively narrowly. 'Deliberate measures which might damage' is essentially equated 160  to 'deliberate damage', 'deliberately causing damage' or 'deliberate harm', 162 implying a requirement of intent to cause damage. 163 According to this interpretation, the provision essentially stipulates a prohibition of intentionally causing damage to World Heritage sites located in another state's territory.
Mere side effects of human activities are not within the scope of application. 164 A second school of thought does not focus on the link between intent and the real or potential damage caused, but rather on whether the measure itself -irrespective of any motivation to cause harm -was intentional. 165 Accordingly, a distinction is drawn between intentional state actions ('deliberate measures') -which may be prohibited under Article 6(3) if a risk to a World Heritage site in another state exists -and unintended actions, which are not covered by the scope of application. 166 Moreover, scholars disagree on the meaning of the term 'measure'. While it has been suggested that 'measure' only refers to 'positive legislative acts', 167 the leading commentary on the WHC explains that 'any measure' implies the applicability of the provision to a variety of situations, including transboundary-poaching activities. 168 Some scholars also disapprove of the general understanding of Article 6(3) as a duty of omission. 169 They argue that the provision might also require a state to intervene in activities conducted on its territory which might pose a risk to World Heritage sites abroad. 170

B. World Heritage Committee Decisions
The obligations under Article 6(3) WHC have repeatedly been subject to discussions in the World Heritage Committee. While the Committee is no judicial or arbitral body, its decisions as well as the views by representatives of state parties presented in the Committee, provide an insight into the Committee's as well as state parties' understanding of the provision.

Activities of Armed Forces
In the Democratic Republic of the Congo, activities of people linked to the government posed a threat to World Heritage sites. The World Heritage Committee expressed serious concern with regard to five of the country's World Heritage sites in 2005 as mining and poaching activities of 'armed groups, inter alia, elements of the regular army, the national police and former rebel, elements of the regular army, the national police and former rebel [sic!] troops that are awaiting demobilization or integration into the 167 Quirico, Key Issues, supra note 162, 402-403. 168 Carducci, supra note 136, 126; see also Thorson national army' threatened their outstanding universal value. 171 Therefore, the Committee not only decided to retain all properties concerned on the List of World Heritage in Danger, but also requested Sudan to do 'its best to prevent transborder poaching activities' 172 in accordance with Article 6(3) WHC. 173

Financial Support
The World Heritage Committee decisions concerning Ha Long Bay in Vietnam mark the role of project financing in the Convention's protection regime. Due to the planned construction of a new port as well as a large floating hotel, the World Heritage site's outstanding universal value was at risk. 174 As Japanese aid agencies considered to provide US $100 million of financial support for the project, the Committee alluded to the obligations under Article 6(3) WHC. 175 The Canadian delegate likewise referred to the provision and drew the Committee's attention to the issue of private companies' involvement. 176 After the Japan International Cooperation Agency (JICA) had proceeded to complete the 'project formulation study' nonetheless, the Committee requested the Vietnamese and Japanese authorities to provide information on the project's environmental impact. 177

Construction Measures Associated with Water Resources
The GIBE III dam on the Omo River in Ethiopia is an illustrative example of the role of Article 6(3) WHC in the context of dam projects endangering World Heritage sites in a neighbouring country. Said dam threatened the Kenyan Lake Turkana National Parks' outstanding universal value 178 , as its construction would have led to a drop of water levels and disrupted the fragile hydrological regime of the property. 179 In light of this, the Committee, referring to Article 6 WHC, urged Ethiopia to halt the construction of the dam. 180 Additionally, the Committee requested Ethiopia to provide assessments of any other dam projects on the Omo River and encouraged institutions supporting the construction of GIBE III to intercept their financial support. 181

Extraction of Mineral Resources 182
The Virunga National Park is one of a number of World Heritage sites jeopardized by mining projects. The national park located in the DRC was threatened, because Uganda included parts of a lake bordering the property in calls for tender for future petroleum exploration projects. 183 The Committee therefore reiterated that 'oil and gas mining is incompatible with the World Heritage status' 184 and underscored that private companies had committed to refrain from such activities in protected areas. 185 Complementary to the companies' commitment, the Committee reminded Uganda of its obligation under Article 6(3) WHC and requested the state party to refrain from granting any petroleum exploitation permits in the critical area. 186 The Committee Decision on Mount Nimba Strict Nature Reserve 187 illustrates the role foreign investors' home states play in mining activities on World Heritage sites. As Guinea developed interest in iron-ore mining projects in the area of the transboundary World Heritage site located in Guinea and Côte d'Ivoire, the Guinean authorities proposed new boundaries of the property excising future mining sites. 188 In order to compensate the downsizing of the World Heritage site, the organizations financing the mining project offered support for the conservation of the nature reserve. 189 While emphasizing the respect for Guinea's economic interests, the World Heritage Committee declined the offer and requested the nomination of the property for the List of World Heritage in Danger. 190 Furthermore, the Committee asked the US and France as home states of the companies interested in the said mining project, to consider the obligations under Article 6(3) WHC. 191 The US delegate countered the Committee's request by pointing out that the WHC only applied to state parties. In addition, the delegate argued that the US government was not involved in mining activities through direct activity or financing of these private companies, which is why the US would not breach its obligations under the WHC if the mining project were to proceed. 192

Tourism and Fishing
As fishing activities and tourism took a toll on the Galapagos Islands' outstanding universal value, the Committee requested the monitoring of their state of conservation. 193 Over time, however, the impacts of anthropogenic influence increased to the extent that the property was added to the List of World Heritage in Danger. 194 Since threats, such as shipping, over-fishing and tourism, could not be attributed to a specific state party, the Committee reminded state parties in general to respect their obligations under Article 6(3) WHC. 195

C. Article 6(3) WHC -Analysis of an Enigmatic Provision
In light of the interpretations provided by scholarship and the Committee, this section attempts to establish the scope and meaning of Article 6(3) WHC in accordance with Articles 31 and 32 VCLT. 196 Article 31(1) VCLT provides that treaties '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.' Article 32 VCLT stipulates that supplementary means of interpretation, such as the travaux préparatoires can be consulted 'to confirm the meaning resulting from the application of article 31' or 'when the interpretation according to Article 31(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.' As the outline of interpretations by scholarship has shown, the most contentious terms in Article 6(3) WHC are 'measure' and 'deliberate'. With regard to 'measure', the ordinary meaning is 'a plan, a course of action '. 197 These rather broad terms suggest that the word not only covers legislative acts, 198 but also other activities. 199 The World Heritage Committee decisions substantiate this proposition, as the Committee in most cases refers to Article 6(3) WHC in the context of non-legislative acts such as construction projects, 200 mining, 201 oil exploration, 202 and poaching activities. 203 The adjective 'deliberate' is commonly understood as 'with careful consideration and full intention'. 204 While there seems to be consensus regarding the ordinary meaning of this term, its grammatical connection with 'measure' and the resulting inferences are the neuralgic point in the understanding of the provision. Following general grammatical rules, an adjective refers to the following noun. 205 Consequently, 'deliberate' modifies the noun 'measure'. 206 On the basis of this understanding, it cannot be presumed that Article 6(3) WHC only refers to acts of deliberately caused damage. 207 This result is supported by the travaux préparatoires of the Convention. 208 its territory -regardless of whether the state itself or a private corporation constructed the dam -the duty to prevent transboundary harm under customary international law requires the state 'to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control'. 215 Therefore, the state is obliged to determine whether a risk of transboundary harm exists, in particular by conducting EIAs 216 and by taking 'appropriate measures to prevent or mitigate that risk'. 217 Similarly, it may constitute a violation of Article 6(3) WHC, if the state takes the deliberate measure to authorize the construction of a dam on its territory and thereby creates a risk of transboundary harm to a World Heritage site located abroad.

D. Home State Obligations for Investor Conduct:
What, If Any?
The analysis above suggests that home states of investors may have obligations with respect to private investors' misconduct abroad only in a limited set of circumstances. When the entire harmful operation takes place abroad, it is arguably not possible to establish a duty to intervene in investment activities under Article 6(3) WHC unless the private investor could be attributed to the state under the law of state responsibility 218 or if the home state at some point had to take a 'deliberate measure' to render the private investor's activity possible. 219 Thus, a reasonable argument can be made that a state -being the home state of the investor or in fact any state other than the host state-has an obligation to assess the impacts of an investment project on World Heritage sites when a decision is taken by that state to finance a project near a World Heritage site abroad or to provide any other kind of non-financial support (e.g. the export-authorizations of machinery needed for the investment activity abroad). In particular, financial support in the form of aid or loans clearly constitutes a 'deliberate measure' under Article 6(3) WHC. 220 Accordingly, both the wording of Article 6(3) WHC and the practice/discussions in the Committee 221 suggest that a state may not take such active steps supporting an investment project abroad when the project poses a risk to a World Heritage site in the foreign state.

VII. Conclusion
World Heritage and investment activities are often at odds. The interest in preserving a World Heritage site because of its outstanding natural or cultural value may collide with the interest in economically exploiting the site. much protection to offer to World Heritage sites under the WHC. Conversely, the language of the WHC and decisions by the World Heritage Committee suggest that home states of investors may have a stricter obligation vis-à-vis World Heritage sites located in another state. While it remains difficult to argue that home states of investors have a duty under the WHC to regulate private investment activities occurring in another state, providing (financial) assistance to an investment, which threatens a World Heritage site abroad, could breach the WHC.
In conclusion, the WHC has a role to play in ensuring that investment activities do not contravene the environmental and cultural policies of a state and the desire of the international community as a whole to preserve unique cultural and natural sites. Although it may be a limited role, scholars, tribunals and states should pay close attention to the WHC when investment activities and investment disputes involve World Heritage sites. In addition, the manner in which investment tribunals approach the rules contained in the WHC may be relevant for investment disputes revolving around climate policies and the Paris Agreement.