Abstract
This article explores international investment disputes concerning sites inscribed on the unesco World Heritage List, with a special focus on the icsid tribunal award concerning Le Morne Brabant in Mauritius. It analyses the encounter between international investment law and the World Heritage Convention from both perspectives and examines the collision taking place between the two legal regimes in light of the theory of fragmentation of international law. After unpacking key lessons from international arbitrations concerning World Heritage, the article concludes by suggesting ways in which participants in the Convention could engage with the question of investment protection within their regime should they so choose.
1 Introduction
Does international law protect a foreign investor who is refused the permission to build a golf course on a unesco World Heritage Site inscribed as a memorial of historical resistance against slavery? This, in a nutshell, was the question brought before an icsid arbitral tribunal in the matter of Thomas Gosling and Others v. Mauritius.1 The case concerned the cultural heritage site of Le Morne Cultural Landscape (Mauritius), inscribed on the unesco World Heritage List since 2008, and the legal responsibility of Mauritius for the last-minute refusal of real estate development permits from a group of foreign investors during and after the inscription process.2 It was filed at the International Centre for Settlement of Investment Disputes (icsid) on 27 September 2016, and the arbitral tribunal rendered its award on 18 February 2020. The case of Le Morne offers a uniquely clear view to the stakes involved in regime conflicts between a typical bilateral investment treaty – in this case the UK-Mauritius bit from 19863 – and the nearly universally signed unesco World Heritage Convention (whc) of 1972.4 The tension between investment protection and cultural heritage has been meritoriously explored in the preceding years,5 and the confrontation between these two regimes continues to be of such global significance that all new events merit due scholarly attention.
World heritage enjoys a unique standing and protected status in international law. The whc is probably the most famous conservation scheme in the world, representing the joint efforts of 194 States Parties under a dedicated treaty framework associated with a prominent UN organization. Its overall aim is the protection of the cultural and natural heritage of outstanding universal value,6 defined as “cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity”.7 Each property on the world heritage list represents a “part of the world heritage of mankind as a whole”, “for whose protection it is the duty of the international community as a whole to co-operate”.8 World heritage sites are “assets held in trust to pass on to generations of the future as their rightful inheritance”.9 The UK-Mauritius bilateral investment treaty, on the other hand, is a typical bilateral investment treaty that makes no special reference to world heritage. The bit is an instrument aimed at facilitating foreign direct investments by granting private investors explicit legal guarantees against government actions or omissions that might violate their rights under international investment law. According to it, investments of private nationals or companies “shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security” in the territory of the parties, while neither party “shall, in any way, impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory”.10 Any disputes that may arise can be submitted to the icsid for investor-State dispute settlement.11
In their internal logic, legal regimes tend to reject the possibility of collisions and suggest that the law will align neatly as long as all parties interpret the world in conformity with the rules and functions of the regime. To this end, both the whc and typical bilateral investment treaties are based on particular ideals of ‘depoliticisation’ that protect their perceived impartiality and consistency. Each regime is created to deal with a particular type of legal relationship in the real world in a standardised, predetermined manner so as to maximise mutual trust in the fair and reciprocal good faith of both parties and to reduce the risk of self-interested, coercive or otherwise unwelcome ‘political’ disputes that might arise over the subject matter of the treaty. Collisions emerge when the two regimes intersect at a particular case, in which each regime perceives the function of the other as ‘political’ and thus non-legal. Thus, the purpose of bit’s is to depoliticise questions arising from the treatment of foreign investments and property interests, and the purpose of the whc is to depoliticise questions arising about the duty and need of states parties to collaboratively protect properties of outstanding universal value wherever they exist. The object and purpose in both regimes is different, yet they overlap in the real world whenever foreign investment interests concern property nominated or inscribed as World Heritage. From the perspective of bit’s the act of declaring property a site of outstanding universal value may lead to an investment dispute that would become ‘politicised’ without the bilateral treaty. From the perspective of the whc, the act of two states to establish a bilateral regime that elevates foreign private investors into a specially protected caste may lead to a dispute within the Convention that would become ‘politicised’ precisely because of the impact of the special arbitration arrangements.
When disputes are submitted for resolution, the parties need to find the appropriate forum, and that appropriate forum then needs to identify the dominant legal language through which it characterises the matter. In real experience, disputes over World Heritage do find their way into investment arbitration. In that forum, the role of the legal obligations arising from the World Heritage Convention and the decisions of the World Heritage Committee are to be assessed in light of their applicability and relevance in particular investment disputes. It is a known principle of law that all treaties shall be interpreted in good faith, taking into account any relevant rules of international law applicable in their relations.12 Inasmuch as we accept that both bit s and global UN conventions constitute ‘relevant rules’ of international law, we find that investment disputes concerning world heritage take place in two intertwined treaty dimensions. The same States that have signed treaties to encourage and protect private investments are the same States that have signed a near-universal Convention to jointly and cooperatively safeguard the common heritage of mankind across their jurisdictions. But what does it mean for these States to pursue both objectives at the same time? What is the object and purpose of such contradicting treaty obligations shared between them?
This article offers an overview of the case of Le Morne and unpacks its significance for the World Heritage Convention. It explores the legal nature of the regime collision between investment law and world heritage from both sides of the encounter and offers the scholars and professionals working with world heritage some suggestions about where to look next for further answers.
2 Le Morne as an Investment Dispute
2.1 Case Background
Le Morne Brabant is a rugged mountain that juts into the Indian Ocean in the southwestern corner of Mauritius. Throughout the 18th and early 19th centuries, the mountain was used as a natural fortress by runaway slaves or maroons. It was inscribed on the unesco World Heritage List in 2008 by virtue of the outstanding universal value attributed to its significance as a symbol of humanity’s resistance to slavery.13 Much of the lands surrounding the Le Morne mountain belong to private landowners. Being a site of beautiful and exciting scenery, Le Morne has for years stood at the crossroads between the interests of conservation and commercial development.14
In 2008, the government of Mauritius nominated Le Morne for inscription as a world heritage site. During the preparation of the nomination dossier, public interest in Le Morne had grown and private development plans for the area had emerged alongside. One of these was the Trochetia development project, a leisure apartments and a holiday resort, to be funded by a consortium of foreign investors in cooperation with the local landowners. During the subsequent unesco evaluation and inscription process, Mauritius kept revising its planning policies as its government prepared to facilitate the eventual conservation of the landscape. The revisions repeatedly affected the plans and permits of the landowners and their foreign investors, who eventually put their project to a halt. Once the project was discontinued, the investors began to seek compensation, first through negotiations with the government, and ultimately by filing an international investment claim.15
2.2 Claim and Response
In 2014 the Prime Minister of Mauritius received a letter from a foreign law firm informing Mauritius of the unsettled investment dispute, demanding a settlement of 47,5 million euros, and stating the intention to file an investor-State claim at the International Centre for Settlement of Investment Disputes (icsid).16 In 2015, also the unesco World Heritage Committee took note of the dispute and appointed a review committee to investigate the matter.17 In response, Mauritius requested a review of the Le Morne boundary delimitations and proposed a discreet, scaled-down development project included in the buffer zone of the site.18 But at the end of the obligatory cooling-down period, the investors filed their claim in 2016 in the name of one UK citizen and four companies registered in the UK and Mauritius.
As a relief the claimants requested damages and compensation of 23,7 million euros due to the violations of the UK-Mauritius bit, additional ‘moral damages’ to Mr. Gosling, plus legal costs and interest.19 Their claim was primarily based on an alleged indirect expropriation in violation of Article 5(1) of the bit: the Government of Mauritius had caused the claimants’ investments to lose their value by issuing the revised planning policy regulations that broke the investors’ legitimate expectations. Such legitimate expectations had allegedly been raised by assurances made to the claimants by public authorities, such as in a particular Letter of Intent issued by the local Board of Investment at an earlier stage.20 Additionally, the claimants claimed that the respondent’s actions had violated the standards of fair and equitable treatment and had resulted in discrimination as projects by other actors had been nevertheless permitted in the Le Morne buffer zone.21
The act of nominating Le Morne for inscription on the World Heritage List was never in itself considered a violation of the investors’ rights. On the contrary, it was something the claimants had initially been eager to support – after all, such a prestigious status would have been extremely beneficial to their resort. Instead, the alleged indirect expropriation had taken place within the domestic realm of governmental planning policy. The smoking gun according to the claimants was to be found in the final policy revision which backtracked on all the previously contemplated compromises between the investors and Mauritius.22 This had taken place after the original Nomination Dossier had been finished and so came as a surprise against the investors’ expectations. Thus the authority of Mauritius to include private lands in the area of the proposed World Heritage site was not under dispute per se. Rather, the claim concerned, as so often in international investment arbitrations, mainly the question of the right to, and the amount of, fair compensation.
In its response, the Government of Mauritius denied any indirect expropriation. The development projects at Le Morne had never been authorized or approved by the government, and the claimants could still use their lands for their original and usual purposes of grazing and hunting.23 Crucially, the government stressed that its paramount policy objective at Le Morne had always been the mountain’s inscription on the World Heritage List.24 This had been public knowledge. The claimants never had reasonable investment-backed expectations that Mauritius would not limit their development in pursuit of the world heritage inscription.25 In particular the government rejected the weight of the letter of intent which the claimants had filed as key evidence. The government had never promised the claimants that it would refrain from regulatory actions. Framing its actions as “an appropriate, non-discriminatory exercise of police power undertaken as a part of a bona fide effort to achieve Mauritius’ long-standing goal to inscribe Le Morne as a World Heritage Site”, the government also cited its previous offers for settlement through land-exchanges and other means.26 It argued that a breach of the minimum standards of fair and equitable treatment in this case would require an action constituting “an unexpected and shocking repudiation of a policy’s very purpose and goals, or otherwise grossly subvert[ing] a domestic law or policy for an ulterior motive”.27 This threshold could not have been crossed in the case of Le Morne, given the government’s openly stated goal of world heritage inscription, and that the nomination reports and recommendations had been repeatedly rejected by and revised with unesco and its Advisory Bodies in the course of the inscription process.28
2.3 World Heritage in Investment Law at the Time
sales in the areas registered [as World Heritage] would have been illegal under both international law and Egyptian law … From that date forward, 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.32
This is perhaps the most articulate precedent for assigning a practical effect and significance for world heritage status in an investment arbitration. Its legal reasoning is broadly compatible with the underlying principles of the World Heritage Convention, where it is “incumbent on the international community as a whole” to participate in the protection of the cultural and natural heritage of outstanding universal value.33 Following such long-term aims of conservation, duly identified world heritage properties could be understood as entrusted in a proprietary realm shared in common with the future generations. While a territorial sovereign in the present continues to practice imperium over a world heritage site, its dominium is no longer unquestionably conveyable for private purposes, and official measures to protect such property enjoy a certain presumption of public legitimacy.
Besides the Pyramids, other cases with world heritage connections seem to also lean more towards the special recognition of the world heritage status rather than its rejection. Thus in Glamis Gold, reference was made to the World Heritage Convention Article 12 giving protection to heritage of outstanding universal value also when it has not been included in the List, while in the Parkerings-Compagniet the respondent was not obliged to compensate for the losses incurred to a bidder who had lost to a competitor’s plan that was less invasive to a nearby architectural world heritage site.34 These were the relevant examples available for the tribunal in the matter of Le Morne, as it was now tasked with making its own contribution to this jurisprudence.
2.4 The Award of 2020
In 2020, the arbitral tribunal for Le Morne dismissed the claim and ordered each party to bear their own costs. The award affirmed that the revisions and restrictions to potential developers that had resulted from compliance with the world heritage inscription process constituted no indirect expropriation, breach of the fet standard, or discrimination, and that no compensation was therefore due to the claimants. One arbitrator filed a brief dissenting opinion, in which he deemed that an indirect expropriation had taken place, and that any considerations the majority had found in the respondent’s favour should not affect the obligation to pay due compensation, but rather the question of the proper amount of that compensation alone.
In accordance with the tribunal’s mandate, the award framed the matter of Le Morne narrowly as an investment dispute, focusing on it first and foremost as a question of contractual rights and obligations between the parties while largely avoiding the broader questions about the conservation values involved. It mainly grounded its decision in the lack of merit in the claimant’s evidence: the tribunal did not see the correspondence as giving grounds for protected legitimate expectations for the investor, but rather very much the opposite. In particular, the tribunal found that the wording in the letter of intent received by the claimants from the board of investment “did not confer any development rights to the Claimants”,35 and that another letter from the board “is not a letter providing assurances, but is nothing more than a reminder … to submit the first set of documents needed by the boi for further processing of the Investment Certificate”.36
After the tribunal had established that no formal contractual right had existed at the time of the alleged expropriation, its attention moved to whether or not other actions by the respondent had nonetheless created such expectations that would warrant protection and compensation. Here it touched upon the public significance of the world heritage inscription process. If the process were to be understood merely as part of the government’s internal deliberations and plans, a foreign investor might be forgiven for not taking into account its ramifications. But if the opposite were true, then the investor’s ignorance about the potential impacts of world heritage status should have exceeded what could be deemed permissible. This is a question of who took the risk, whether it was done knowingly, and who should bear the consequences. In this crucial matter, the tribunal found in favour of the respondent. “The Respondent’s objective had always been to inscribe Le Morne as a heritage site,” it found, and “[t]he Claimants were aware of this objective.”37 Observing that the initial plans concerning Le Morne had been rejected by unesco, and consequently exposed to several revisions, the tribunal found it “doubtful that the [letters of correspondence] by themselves would have been sufficient to generate, in a prudent businessman, expectations to proceed with an investment such as the Claimants had planned to carry out”.38 The pending world heritage nomination had without a doubt been an attractive prospect for the investors, offering potential financial benefit to their planned resort. At the same time, it was a source of preconceived regulatory risk, a sign that the site was of outstanding universal value which requires compliance to the highest standards of conservation. The die had been cast by the investors, and this time their risk had materialised.
The award does not blankly exculpate the respondent of all its overall responsibilities under the bit,39 nor does it claim that world heritage would in and of itself fall outside investment treaties. But in its language the award identifies world heritage conservation as a factual and contextual element of paramount significance when assessing the legitimacy of investors’ expectations. It recognizes the publicity and inherent significance of the world heritage conservation regime itself; like a force of nature, the presence of exceptional conservation values – which the Convention calls outstanding universal value40 – constitutes a condition under which it is incumbent on all parties to behave in good faith regarding the objective of conservation. This is not simply because the government of Mauritius or any other government deems so, as a policy objective. On the contrary, it is because individual governments have an international legal duty to recognize “the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong”.41
The award was accompanied by a brief dissenting opinion, in which one arbitrator differed from the majority on his assessment of the policy reversal by Mauritius when it had revised its ppg2 policy guidelines. In contrast to the majority, he did interpret the reversal as a violation of the fet standard and an uncompensated expropriation in the meaning of the bit Articles 2 and 5.42 He identified the contractual arrangements among the claimants as constituting ‘assets’, and notes how the majority award also occasionally identifies them as such.43 These private assets would then have been expropriated as they turned out to have been based on false hopes.
But the overall degree of dissent expressed in the opinion is relatively limited in magnitude. First, it emphatically affirms the right and reasoning of Mauritius to secure the world heritage inscription by implementing the necessary regulations: “It is undisputed that the inscription of Le Morne as a unesco World Heritage Site was in the public interest of Mauritius and its people, and … [i]n sum, Respondent was fully entitled to prohibit any development at Le Morne, including in the buffer zone, in the interests of the people of Mauritius – and it did so”.44 Second, beyond arguing that a duty to compensate did in principle exist, the dissenting opinion did not further elaborate on the true value of the expropriation or due compensation. It differed from the majority mainly on the nature of the legal question involved, stressing that “the questions of how advanced the project was … are not relevant to liability – they are relevant to quantum”.45 Any actual amount of compensation, he admitted, might be ‘fairly limited’ in light of the fact that the investors had yet to obtain the necessary permits and authorizations and that none of the projects had approached construction.46
Upon closer inspection, then, the dissenting opinion is a restatement of the Pyramids rule. It seems that the tribunal might have found unanimity if the majority had accepted Mauritius’ nominal responsibility but only awarded a minimal compensation for sunken costs that preceded the nomination.
3 Le Morne as World Heritage
3.1 Le Morne and the World Heritage Committee
Investment disputes over world heritage can raise unease among the World Heritage community, as its participants momentarily find the fate of ‘their’ properties at the hands of remote arbitral tribunals with no direct connection to, or accountability for, the World Heritage system. But as the World Heritage Convention does not include a settlement mechanism for legal disputes over world heritage property, the response of the community is to yield to the circumstances by framing investment disputes as internal matters of the States concerned. Accordingly, while the matter of Le Morne was pending, the World Heritage Committee mainly stood back and waited for the outcome.
The World Heritage Convention is based on multilateral diplomatic co-operation, made possible by the persuasive power and prestige of the World Heritage brand. The States Parties oversee and review the status of conservation of particular sites through the Committee. The two formal mechanisms for oversight are periodic reports by States Parties and a particular reactive monitoring process.47 The periodic reporting procedure is fairly self-explanatory, with States reporting on their sites at regular intervals for the consideration of the Committee. In reactive monitoring, the territorially responsible State may be requested to provide a separate State of Conservation Report concerning an individual site, and international expert monitoring missions may be dispatched to investigate. The Committee may then recommend particular measures with possible international assistance to the State Party. In serious cases, the Committee may include the site on the List of World Heritage in Danger or even remove the site from the World Heritage List altogether.48 If more time and examination is required, the Committee may request more information and monitoring, postponing the resolution of the matter to its subsequent sessions, often in the hopes of facilitating a mediated settlement.49
The monitoring process is not a plaintive nor redressive mechanism. Investment disputes seldom make their way into Committee discussions, and States rarely, if ever, enquire into each other’s relations with foreign investors in this forum. While the members of the Committee may raise into discussion concerns about each others’ sites, the functioning of the Convention is emphatically based on cooperation, assistance and the avoidance of loss of world heritage.50 The Committee is inclined to view any conservation issues strictly within the intra-Convention sphere between the States Parties, where its examination is limited to an individual member’s management of a conservation site vis-à-vis the Convention. In accordance with whc Article 6(1), “fully respecting the sovereignty” of the local State and “without prejudice to property right provided by national legislation”, the Committee usually avoids commenting on the property relations involving particular sites. Discretion in individual cases is accompanied by advocacy and guidance within the framework of overall mutual cooperation.51 The resultant declarations, as legally non-binding, are not intended to render outcomes to particular property disputes.
In the case of Le Morne, the World Heritage Committee also adopted such a courteous approach. Mauritius included a brief mention of the investment dispute in its report to the Committee in 2015.52 A unesco mission was sent to Mauritius in early 2016 to investigate. The mission took notice of the dispute and agreed that it is “clearly important that the impasse between the State Party and the plaintiff is resolved in a definitive and harmonious manner”.53 Citing a lack of details available about the pending case, it avoided going into further detail, noting: “The issue of ownership is not, per se, an issue for the World Heritage Committee, rather it is the sole responsibility of the State Party.”54 The Committee was therefore recommended to confine the matter into the domestic realm of Mauritius and to avoid any external interference in the course of the investment dispute. The mission also suggested that the alleged expropriation actually took place before (and therefore distinct from) the World Heritage inscription: this would have presented the entire affair as a separate circumstance on the ground rather than an integral element related to the inscription. All in all, both conclusions point to the principle of sovereignty reflected in the World Heritage Convention Articles 3, 4 and 6(1). By emphasising the sovereign sphere, the world heritage regime upholds the institutional nature of the Convention: the sovereign States Parties may arrange their domestic property relations as they wish.
By distancing itself from investment disputes the World Heritage Committee conforms to the project of their ‘depoliticization’. It assumes the role of a body of technical administrators for the Convention rather than a global forum tasked with determining contested property relations between the present and future generations. As a managerial rather than political body, the Committee can safely constrain its response to particular legal disputes to the level of technical measurement between the conservation efforts of one State Party and the standards of conservation enshrined in the Convention. Inability to meet the conservation standards may result in a prolonged cycle of evaluations and support missions, the placement of the property on the endangered list, or removal from the list, but no solutions need be found to the legal disputes arising from the international legal contradictions that exist between the goals of exploitation and conservation. These matters the World Heritage framework is free to leave to the domestic responsibility of States or to resolution on other ‘borrowed’ international fora such as investor-State investment arbitrations.
3.2 Lessons from the Arbitration
The award in Gosling v Mauritius is of great interest to the long-term conservation of world heritage. There, it adds to the small handful of jurisprudence that has so far protected the efforts of respondent States to conserve the outstanding universal value inherent in world heritage. Our first observation, then, is that the tribunal found the merits in the favour of the respondent. As such, the award avoided the undermining of the World Heritage Convention that might occur if arbitral practice were to perceive world heritage conservation as arbitrary expropriation.
Secondly, the award offers support to the public significance of world heritage conservation in its deliberations. In a key paragraph, the tribunal found it doubtful that prospective correspondence with a board of investment would have been sufficient to generate, in a prudent businessman, expectations to proceed with their investment on the possible world heritage site.55 It also found and confirmed that the claimants had been aware that the respondent’s objective had always been to inscribe Le Morne as a heritage site.56 Here the award suggests that investors may have an elevated duty of awareness concerning regulatory risks when planning development projects near potential world heritage sites with outstanding universal value. Although in a more specific sense the tribunal decided the case on the question of evidence – the letter of intent and other correspondence – the discussion which it gives on the role of world heritance still forms an essential part of the award. In future investment arbitrations concerning world heritage, these passages and reasonings will be available as a reference for parties and arbitrators alike.
Thirdly, the outcome in the matter of Le Morne leaves untouched the rule of the Pyramids case, namely, that starting from the date of inscription to the World Heritage list onwards, an investor’s activities within a world heritage site would be in conflict with the Convention and therefore in violation of international law, and that any profits that might result from such activities would consequently be non-compensable.57 Even the dissenting arbitrator admitted that if Mauritius had been found responsible, any actual ‘quantum’ might still have remained ‘fairly limited’ in light of the facts of the case.58 Thus, had the claimants in Le Morne passed the prudent businessman test, the compensation might still have been limited to specified sunken pre-inscription costs at most, similar to the Pyramids.
3.3 What Else Could be Done?
From the perspective of conservation law, the World Heritage Convention is a remarkable multilateral instrument which enjoys more or less universal validity. It protects a common good in the interest of the international community as a whole, generating multilateral obligations which many consider as erga omnes in nature,59 suggesting that they ought to prevail over the personal interests of investors. The issue at stake in investment disputes involving World Heritage is usually not whether the interferences determined by a State with respect to an investment to protect cultural heritage are legitimate in themselves, but rather whether the investor is entitled to compensation. This aspect is normally resolved negatively, as investors should have the awareness that the importance of World Heritage can justify restrictions to investments.
But as world heritage is usually not mentioned in bit s, the icsid convention or other key instruments of investment law, some might still express concern. What guarantees are there that future tribunals will take the World Heritage Convention as seriously as the tribunals in Pyramids and Le Morne have? What happens if they begin to adopt a contrary stance, perhaps even seeing the outstanding universal value of world heritage as an aggravating circumstance, increasing the amount of due compensation? Another potential concern arises from the impact of bilateral investment treaties as a source of potential ‘regulatory chill’, which scholars have debated for some time.60 Does the threat of investment arbitration discourage individual States from fulfilling their duties under the World Heritage Convention, and if so, what is the responsibility of the international community? Why should the parties derive their ‘right to regulate’61 world heritage from fragments of investment law rather than from their own sovereignty as recognized in the Convention?
Investment disputes become re-politicized in the sphere of the World Heritage Convention. They concern heritage of mankind as a whole for whose protection it is the duty of the international community as a whole to cooperate.62 While the primary responsibility for the identification, administration and conservation of sites rests with each territorial sovereign,63 the Convention also contains a uniquely verbose framework of complementary multilateral obligations. Under Article 6(2) all States Parties undertake to ‘give their help’ to one another in the protection of world heritage sites, and even more materially, under Article 6(3) they undertake “not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage … situated on the territory of other States Parties”.64 States are, in short, obliged to concern themselves with world heritage beyond their own borders too, and to abstain from acts that might even indirectly harm it.
Could bilateral investment arrangements be seen as deliberate measures that might directly or indirectly damage world heritage? Looking at the case of Le Morne from this angle, States Parties witness a group of British investors, together with their local partners, holding hostage as it were a part of the common heritage of mankind whose protection is a global concern and joint undertaking. This is made possible by a bilateral arrangement between two signatories of the Convention, and it is arbitrated on a forum unknown to the Convention. In this sense the bit itself might well be designed to ‘damage directly or indirectly’ cultural and natural heritage in the meaning of Article 6(3), and as such would call for a co-operative remedy carried out in good faith by all parties involved, including both Mauritius and the United Kingdom.
There is at least one known instance where the meaning of Article 6(3) was discussed at the committee. At the turn of the 1990s, an international public-private mining company was proceeding to develop the large iron ore deposits found under the conserved mountain range of Mount Nimba, a nature reserve in Guinea and Côte d’Ivoire inscribed on the World Heritage List in 1981, with profound estimated environmental impact.65 In this context, the World Heritage Committee raised the question whether France and the United States, the home countries of the foreign investors involved, would be obliged under Article 6(3) to jointly prevent their nationals from conducting the mining operations.66 In reply, the US delegate argued that the United States would not breach its obligations under Article 6(3) because its “Government was not involved in the mining project by direct activity or financing”.67 The United States therefore dodged the matter under the public/private distinction. The matter was ultimately resolved directly when the boundaries of the Mount Nimba world heritage site were adjusted to include a remarkable doughnut-hole which excluded the mining area from the protected zone.68 The Committee therefore seemed to acquiesce to the narrow interpretation of Article 6(3) and the ‘depoliticized’ ethos of separating private rights from public negotiations.
Nevertheless, the example of Mount Nimba demonstrates that nothing prevents the member States of the Convention from investigating and discussing the responsibility of states over the impact of their foreign investors. The World Heritage Convention has the advantage of enjoying a near-universal membership, and many consider the obligations under the Convention as binding erga omnes.69 Should there be concern for the resistance of world heritage against foreign investment among the member States, they would be well advised to raise the question in the Committee such as by requesting an investigation from the Secretariat on the subject. Should the Committee reach new outcomes or conclusions, there also do not seem to be impediments to it communicating them to the arbitral tribunals and international community at large. One possible avenue to participate in investment disputes is offered by the practice of amicus curiae briefs. These are interventions by international organizations or other interested parties in the capacity of ‘friends of the court’, providing expert information and legal opinions of substantial importance for the case which the parties and the adjudicators may not be in the knowledge to seek on their own. The practice is becoming more common in investment arbitration where amicus curiae interventions may help ensure the proper cognizance of public interests.70 Interventions amicus curiae have been recognized in the icsid arbitration rules, which were followed in the matter of Le Morne and which are likely to provide the framework for several future investment disputes over world heritage sites.71
For its part, unesco possesses the necessary awareness and knowhow to draft and submit amicus briefs in legal matters involving world heritage, as demonstrated by its amicus brief to the International Criminal Court in 2016 over the destruction of cultural heritage at the world heritage site of Timbuktu.72 The organization has recently been developing its capacities and readiness in amicus curiae interventions, as it has for example in 2021 published general guidelines for civil society organizations interested in taking such action in freedom of expression cases.73 Thus, there seems to be no fundamental obstacle for unesco taking a more active stance in ensuring the proper recognition of world heritage in the settlement of investment disputes, provided that its member States and organs were able to agree on a common message.
4 Conclusion
Regime collisions are bound to occur whenever a property covered by foreign private interests is earmarked for perpetual public conservation. On the theoretical level, the investment dispute over Le Morne illustrates the phenomenon of fragmentation in international law.74 A major feature of present-day international law is its division into distinct, self-referential specialist regimes such as human rights law, international environmental law, international trade law and international investment law. Conflicts between such regimes emerge because they perceive the same situations or same facts through different functional lenses and teleological valuations; the intersection between the interests of conservation and economic development is a typical example of this. Such tensions are resolved in various ways, most commonly by each regime framing the case in a way that enables them to prioritise their own interpretative procedures and principles over others. But the question that follows is simply who should get to apply these considerations, who should have priority in authoritatively defining the functional nature of a matter; whether for example a bit should prevail (as lex posterior) over the World Heritage Convention, or vice-versa (as lex specialis).75
The case of Le Morne goes beyond this initial clash. It also illustrates how institutions on all sides of the treaty conflict take careful manoeuvres to isolate the two treaty environments from one another; first within the World Heritage Committee, and finally at the moment of decision in an arbitral tribunal. This mutual evasion, which on the surface level seems to indicate a common desire to ‘depoliticize’ the confrontation, reflects the inherent politics of international law itself, for ever at ease with treating the right of private property – “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”76 – as naturally independent from the ‘political’ realm of public responsibility.
A handful of observations deserve the attention of World Heritage practitioners. First, the award in the case of Gosling v Mauritius found in favour of the respondent, thus contributing to the list of precedents protecting world heritage conservation over foreign investment. Secondly, although the tribunal decided the case mainly on a question of the claimant’s evidence, by referring to the standard of the prudent businessman and the claimants’ knowledge of the respondent’s public priorities it also provided a degree of recognition to the outstanding universal value inherent in world heritage properties. Thirdly, nothing in the decision contradicts the prior rule identified in the Pyramids case, according to which no further compensation was due as of the date of inscription of a property to the World Heritage List protected by international law.
Practitioners should expect to encounter more investment arbitrations dealing with world heritage in the future. Most signatories of the world’s investment treaties are also signatories to the World Heritage Convention, and the current allocation of dispute resolution to investment tribunals takes place with their acquiescence. The current situation is of their making, and there is little reason to suggest that the States Parties together perceive the two regimes as inherently incompatible. However, as the records of the matter of Mount Nimba demonstrate, nothing in principle prevents the Parties to the World Heritage Convention from engaging in discussions about the extent of their mutual obligations under Article 6(3) to jointly contribute to the protection of world heritage. In the event that the Committee did agree on a joint interpretation on investment protection, unesco has already demonstrated its ability to promote the interests of world heritage in international dispute settlement through interventions amicus curiae.
Thomas Gosling and others v. Republic of Mauritius icsid Case No. arb/16/32 (henceforth ‘Gosling v Mauritius’). The case will here be generally referred to as the case of Le Morne which is the name of the world heritage site concerned. The arbitration dealt also with a secondary claim over nearby Pointe Jerome, which was decided more or less similarly but which will not be discussed here.
For the inscription decision, see Decision 32 com 8B.18 (Quebec City 2008), whc-08/32.com/24Rev. at 161.
1986 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Mauritius for the Promotion and Protection of Investments, UK Treaty Series No. 6 (1987) Cm 65.
1972 unesco Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037 unts 151 [henceforth: ‘World heritage convention’ or ‘whc’]. It currently has 194 States Parties.
e.g. Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: Cambridge University Press, 2014); Valentina Vadi, “Culture Clash? World Heritage and Investors’ Rights in International Investment Law and Arbitration”, icsid Review 28 (2013): 123- 143; Francesco Francioni, “Public and Private in the International Protection of Global Cultural Goods”, European Journal of International Law 23 (2012): 719–30.
whc (supra note 4) preamble.
unesco Operational Guidelines for the Implementation of the World Heritage Convention, 31 July 2021, whc.21/01, Art 49.
whc (supra note 4), Preamble and Art 6(1).
World Heritage Committee, Budapest Declaration on World Heritage (Budapest, 28 June 2002), Art. 2.
UK–Mauritius bit (supra note 3), Art 2.
Ibid, Art 8.
1969 Vienna Convention on the Law of Treaties, Art 31 (3) (c).
whc Decision 32 com 8B.18 (n 2). Outstanding universal value based on these criteria shall: (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. See whc Operational Guidelines (supra note 7), section ii.d, para 77.
Gaëtan Jacquette, ‘Il était une fois … Le Morne’, Le Mauricien, January 27, 2014: 16.
Gosling v Mauritius, Award (2020), paras 42–78. See generally also 39th session of the World Heritage Committee, Item 7B of the Provisional Agenda, unesco Doc whc-15/39.com/7B.Add (29 May 2015), at 63; “Le Morne: l’État mauricien face à une réclamation de Rs 2 milliards” Le Mauricien – Week-End, August 31, 2014: 14; “Développement foncier: nous comprenons que nous ne pouvons plus aller de l’avant au Morne”, Le Mauricien, November 8, 2014: 14–15.
e.g. Le Morne Cultural Landscape Status of Conservation Report (3 April 2015), Ref: 1259bis at 15.
unesco Doc whc-15/39.com/7B.Add (29 May 2015), (n 15), at 63; Le Morne Cultural Landscape Status of Conservation Report (3 April 2015), Ref: 1259bis, at 15; Decision 39 com 7B.42 (Bonn, 2015), unesco Doc whc-15/39.com/19, at 106.
Le Morne Cultural Landscape Status of Conservation Report (26 February 2016), Ref: 1259bis, at 16–18.
Gosling v Mauritius, Award (2020), para 85. The amount of damages comprised € 18mn for the investments at Le Morne, and € 5,7mn for the investments at the second site at Pointe Jerome.
Ibid, para 167.
Ibid, paras 167–8.
See supra note 15; ‘The Le Morne Cultural Landscape Application for Inscription on the World Heritage List’ Republic of Mauritius, January 2007, Appendices, 1984–2007, esp. at 2000; International Council on Monuments and Sites (icomos): Le Morne Advisory Body Evaluation No 1259 (11 March 2008), p. 6; “Aucune volonté de contribuer à une déclassification du site du Morne” Le Mauricien, September 17, 2014: 10.
Gosling v Mauritius, Award (2020), paras 175–176.
Ibid, para 209.
Ibid, para 176.
Ibid, paras 177–178.
Ibid, para 179.
Ibid, paras 179–180.
For case practice, see Valentina Vadi, Cultural Heritage in International Investment Law (supra note 5), 134–136 et passim; Valentina Vadi, “Culture Clash?” (supra note 5), 143; Valentina Vadi, “Gravity and Grace: Foreign Investments and Cultural Heritage in International Investment Law”, Vanderbilt Journal of Transnational Law 55 (2022): 1007–1050.
Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, icsid Case No. arb/84/3, Award, 20 May 1992. [henceforth, ‘spp v. Egypt’]
Ibid, para 154: “[T]he unesco Convention by itself does not justify the measures taken by the Respondent to cancel the project, nor does it exclude the Claimants’ right to compensation. […] the choice of sites to be protected is not imposed externally, but results instead from the State’s own voluntary nomination.”
Ibid, paras 190–191. See also para 251.
whc (supra note 4), preamble.
Glamis Gold, Ltd v United States of America, nafta/uncitral, Award, 8 June 2009; Parkerings-Compagniet as v Lithuania, icsid Case No arb/05/8, Award, 11 September 2007. Some contrast can be found in Santa Elena v. Costa Rica, where the arbitrators straightforwardly equated environmental protection purposes with any other case of expropriation (see para 72.) But here the connection to world heritage was very limited: the disputed expropriation had taken place in 1978, whereas the property had only been inscribed as World Heritage twenty years later, in 1999. See Compañia del Desarrollo de Santa Elena, S.A. v. The Republic of Costa Rica, icsid Case No. arbl96/1, Final Award, 17 February 2000. In Unglaubes, a different tribunal adopted a somewhat similar interpretation in another expropriation matter elsewhere in Guanacaste. However, this case did not involve the world heritage site at all. See Marion Unglaube and Reinhard Hans Unglaube v. Republic of Costa Rica, icsid Case No. arb/09/20, Award, 16 May 2012, para. 205 et passim.
Gosling v Mauritius, Award (2020), para 230.
Ibid, para 233.
Ibid, para 249.
Ibid, para 235–236.
Ibid, para 235.
whc (n 4), Art 1, Art 2.
whc (n 4), preamble.
Gosling v Mauritius, dissenting opinion by Stanimir Alexandrov, para 45.
Ibid, para 26.
Ibid, para 27.
Ibid, para 28.
Ibid, para 45.
These are laid out in the whc Operational Guidelines (n 7), paras 199–210 and 169–176 respectively.
whc Operational Guidelines, (supra note 7), para 176 (a)–(d); Eike Albrecht and Bénédicte Gaillard, ‘Procedure for Delisting a Site From the World Heritage List: Is Delisting With Consent or Against the Wish of a State Party Possible?’ Journal of Tourism and Hospitality Management 3 (2015): 15–21.
whc Operational Guidelines (supra note 7), para 176 (e).
Ibid, para 170.
For example, see publications concerning World Heritage and Extractive Industries, at whc.unesco.org/en/extractive-industries; unesco Doc. whc/16/40.com/7, paras 18–19.
Le Morne Cultural Landscape Status of Conservation Report (3 April 2015), Ref: 1259bis, at 15–17; Le Morne Cultural Landscape Status of Conservation Report (26 February 2016), Ref. 1259bis, at 16–18.
World Heritage Committee (40th Sess. 2016) State of conservation of properties inscribed on the World Heritage List (Paris, 10 June 2016), unesco Doc. whc/16/40.com/7B.Add, p. 22.
Ibid.
Gosling v Mauritius, Award (2020), para 236.
Ibid, para 249.
spp v. Egypt, para 191.
Gosling v Mauritius, dissenting opinion by Stanimir Alexandrov, para 45.
See, e.g., Francesco Francioni and Federico Lenzerini, “The Destruction of the Buddhas of Baimyan and International Law”, European Journal of International Law 14 (2003): 619–651, 634; Roger O’Keefe, “World Cultural Heritage: Obligations to the International Community as a Whole?”, International and Comparative Law Quarterly 53 (2004): 189–209; Francesco Francioni, “Culture, Heritage and Human Rights: An Introduction”, in Cultural Human Rights (Leiden: Martinus Nijhoff, 2008), ed. Francesco Francioni and Martin Scheinin, 1–15, 10–11; on the other hand, Guido Carducci, “Arts 4–7: National and International Protection of the Cultural and Natural Heritage”, in The 1972 World Heritage Convention: A Commentary, ed. Francesco Francioni and Federico Lenzerini (Oxford: Oxford University Press 2006), 98–132.
See, e.g., Kyle Tienhaara, “Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement”, Transnational Environmental Law 7 (2018): 229–250; Anna Sands, “Regulatory Chill and Domestic Law: Mining in the Sanurbán Páramo”, World Trade Review 22 (2023): 55–72.
See, e.g., Charalampos Giannakopoulos, “The Right to Regulate in International Investment Law and the Law of State Responsibility: a Hohfeldian Approach”, in Permutations of Responsibility in International Law, ed. P. Pazartzis and P. Merkouris (Leidejn: Martinus Nijhoff, 2019), 148–184.
whc (supra note 4), Preamble and Art 6(1).
Ibid, Arts 1–4, 5(d) and 6(1).
Ibid, Arts 6(2) and 6(3).
unesco World Heritage Centre Mission Report: Mount Nimba (Guinea) May/July 1993, 8–9, 25 and 34–36.
World Heritage Committee (14th Sess. 1990) soc: Mount Nimba Strict Nature Reserve (Guinea and Cote d’Ivoire) Doc. conf 004 ix. Also letter to France (8 June 1991), unesco Archive, whc Guinea, file 502.7 A 101 whc (665.2) Part iv [1989–1992].
World Heritage Committee (15th Sess. 1991) soc: Mt. Nimba Nature Reserve (Guinea and Cote d’Ivoire) unesco Doc. conf 002 viii. No reply from France was found. See World Heritage Committee (14th Sess. 1990) Mount Nimba (Guinea and Cote d’Ivoire) unesco Doc. conf 003 iv.a.22–24, para 24.
whc Report of the 16th Session (Santa Fe 1992), unesco Doc. whc-92/conf.002/12 at 26–28; Monitoring of the State of Conservation of World Conservation of World Heritage Cultural and Natural Properties, whc 17th Session (Cartagena 1993), unesco Doc. whc-93/conf.002/5 at 17–19; whc Report of the 17th Session (Cartagena 1993), unesco Doc. whc-93/conf.002/14 at 19–20; Cf. Lyndel V. Prott, “unesco International Framework for the Protection of the Cultural Heritage”, in Cultural Heritage Issues: The Legacy of Conquest, Colonization and Commerce, ed. James A.R. Nafziger and Ann M. Nicgorski, (Leiden: Martinus Nijhoff, 2009), 257–285, 269. Also the law firm working for an interested mining consortium admitted in passing that Art 6(3) “does, however, have consequences for other signatories to the Convention, including the United States and the Republic of France”. See ‘Re: Legal status of the Nimba Mountains Mining Project’ (3 June 1991) in unesco Archive, whc Guinea, file 502.7 A 101 whc (665.2) Part iv [1989–1992].
See above (supra note 59).
Gary Born and Stephanie Forrest, “Amicus Curiae participation in Investment Arbitration”, icsid Review 34 (2019): 626–655.
2022 icsid Arbitration Rules, Rule 67.
Prosecutor v. al Mahdi, unesco Amicus Curiae Observations, icc-01/12-01/15, 2 December 2016.
Peter Noorlander, “unesco Guide for Amicus Curiae Interventions in Freedom of Expression Cases” (unesco 2021), unesco Document ci-2021/fej/g-1.
See, e.g., Martti Koskenniemi, “The Fate of Public International Law: Between Technique and Politics”, Modern Law Review 70 (2007): 1–30; Andreas Fischer-Lescano and Gunther Teubner, “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law”, Michigan Journal of International Law 25 (2004): 999–1046.
Cf. vclt Art 30 (4) (a) and (b).
William Blackstone, Commentaries on the Laws of England (1753), Vol. 1, Bk. ii, Ch. i.
