1. Introduction
In July 2021, the Finnish state received a letter from the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) World Heritage Centre. The letter concerned a planned construction project involving the building of a shopping centre within the buffer zone of Old Rauma, one of seven World Heritage Sites in Finland. In the letter, UNESCO expressed its serious concern regarding the project and recommended that all construction work be suspended while the impacts of the project on the site were reassessed.Footnote 1 Only a month earlier, UNESCO’s World Heritage Committee (hereinafter the Committee) had removed Liverpool – Maritime Mercantile City in England from the World Heritage List for very similar reasons.Footnote 2 At the time of writing, the shopping centre project is still progressing as originally planned adjacent to the Old Rauma Site.
This article will guide you through the streets of Old Rauma using the theory developed by Wesley Newcomb Hohfeld (1879–1918), a noted American jurist and legal theorist. At the core of Hohfeld’s theory is a framework based on eight fundamental legal concepts concerning rights.Footnote 3 Although the Hohfeldian approach has previously been applied in relation to land use and property rights, as well as urban and cultural commons, scant attention has been paid to its applicability to cultural heritage.Footnote 4 Thus, the present article demonstrates how the concept of cultural heritage, as centred on World Heritage, can be transplanted into the Hohfeldian framework. It examines the utility that the framework might have with regard to understanding World Heritage as a subject of rights. As exemplified by the case of Old Rauma, Hohfeld’s thinking can be used to explain the complex legal relations found within cultural heritage law, a field to which this article belongs. Rather than adopting the traditional dogmatic view, this article applies a legal-theory-focused approach while bringing together international public elements of cultural heritage law, a human rights perspective, and the right to roam as a distinctive feature of Nordic law.Footnote 5
Today, World Heritage is critically vulnerable to both deliberate and collateral damage. While at first glance it may appear that Old Rauma is not facing any particular danger, this article argues that it is currently threatened for reasons typical of capital-centric society, reasons that neither state authorities nor the law are able to adequately recognize. As Kit Barker has stated, feeding a legal problem into the Hohfeldian analytical machine may not resolve normative problems of law, but it can serve to clarify the natures of any controversies or confusions.Footnote 6 This article uses the machine to anatomize and make visible the legal relations behind the protection of World Heritage by using Old Rauma as an example. The focus is mainly, albeit not exclusively, on official heritage adopted in accordance with the provisions of the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC), as complemented by the UNESCO Operational Guidelines for the Implementation of the World Heritage Convention (Operational Guidelines).Footnote 7
The article will proceed as follows. First, a brief instruction manual for both Hohfeld’s theory and Old Rauma will be provided. Second, an analysis of World Heritage as a Hohfeldian phenomenon will be performed, with a focus on the legal relations between the state and individuals, including future generations. Although the Old Rauma site will be examined as a key example, the research findings will be applicable to other kinds of cultural sites as well. Third, given the increasing number of threats facing cultural sites, the contemporary legal challenges and possible solutions will be discussed. Finally, to conclude the article, a few observations will be offered concerning the applicability of the Hohfeldian framework as a theoretical tool in the field of cultural heritage law.
2. Drawing a map: How to navigate with Hohfeld in Old Rauma?
Over the course of the last century, Hohfeld’s writings have become recognized as classics in the field of legal theory due to demonstrating the fundamental elements of legal thinking regarding rights. The structure of the Hohfeldian framework is based on eight fundamental legal concepts concerning liberty rights, claim rights, power rights, and immunity rights which are grouped into jural correlatives (Table 1) and jural opposites (Table 2). Each concept has a unique correlative and a unique opposite. In Table 1, the concepts are vertically divided into correlative pairs, while in Table 2 they are divided into opposite pairs. At the same time, each concept is sui generis, although each gains its meaning from its specified relations with the other concepts.Footnote 8
Jural correlatives
Jural opposites
The Hohfeldian framework portrays a kind of zero-sum game in which one party’s right is another party’s obligation. Its statuses are often divided into first- and higher-order positions. Liberty, no-right, claim, and duty are all first-order positions, whereas power, liability, immunity, and disability are all higher-order positions. In terms of the first-order positions, they define whether a given type of action is required, allowed, or prohibited. As for the higher-order positions, they pose the question of changeability in relation to legal relations. A party with the status of a higher-order position, such as a judge or a state, has the ability to cause changes in another party’s legal status.Footnote 9
The approaches to interpreting the Hohfeldian framework vary among the scholars. This article’s theoretical grounding principally relies on the interest-theory-based approach posited by scholars such as Matthew H. Kramer and Visa A. J. Kurki.Footnote 10 However, this article does not engage in the debate regarding how Hohfeld’s framework should be understood. Instead, its contribution relates to the discussion of how the legal relations between rights and responsibilities are intertwined with the legal phenomenon of World Heritage.
Before entering Old Rauma with Hohfeld, it will likely prove useful to provide a brief overview of the legal and administrative framework governing the site. Old Rauma, a historic district of a harbour town on the Gulf of Bothnia, has been listed as a UNESCO World Heritage Site since 1991, as approved by the Committee and based on selection criteria IV and V. Footnote 11 The 1972 WHC entered into force in Finland in 1987. It requires Finland, as a state party, to ensure the identification, protection, conservation, presentation, and transmission to future generations of all World Heritage situated on its territory. Footnote 12 In Finland, the Ministry of Education and Culture is the governmental body responsible for the introduction and governance of all international conventions related to cultural heritage, including the 1972 WHC. In turn, the Finnish Heritage Agency is the authority charged with implementing the 1972 WHC. To effectively protect the World Heritage values of Old Rauma, a buffer zone has been established around the site. Footnote 13 The land use plans and land protection in the district are based on Finnish domestic legislation governing land use and built heritage protection. Moreover, in the Constitution of Finland, the responsibility for cultural heritage is assigned to everyone. Footnote 14
With the earliest standing buildings in the area having been built during the fifteenth century, Old Rauma represents an example of traditional Nordic architecture and wooden town building techniques. Similar to other Nordic World Heritage Sites, such as the Hanseatic Town of Visby in Sweden and Bryggen in Norway, Old Rauma remains an inhabited neighbourhood. It should be noted that even though it is a physical place and so classified as tangible heritage according to international cultural heritage law, Footnote 15 Old Rauma is de facto inseparable from its intangible elements such as handicraft traditions, the unique Rauma dialect, and local festive events. Footnote 16 Therefore, rather than the concept of ‘cultural property’, this article will use ‘cultural heritage’ to look beyond the notion of considering cultural items to be solely tangible property and to explore World Heritage as a phenomenon associated with various rights, not only property rights. Footnote 17 For the same reason, in addition to the 1972 WHC, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Heritage Convention) has some relevance to the focus of this article, as will be discussed below.
3. Old Rauma through a Hohfeldian lens
As mentioned above, there is an ongoing dispute regarding the construction of a shopping centre within the Old Rauma buffer zone, and it is not the first dispute of its kind. In 2004, the Rauma City Council approved modifications to the town plan to would allow a hypermarket to be built inside the buffer zone. In terms of construction and traffic planning, the buffer zone established in the district requires all projects to take into account the preservation of the special status of Old Rauma as a World Heritage Site. The Supreme Administrative Court of Finland, however, rejected all appeals brought by local residents and entrepreneurs. Similarly, in 2016, the Rauma City Council modified the town plan once more, this time to allow for the construction of a shopping centre, and once again, the Court rejected all appeals, including one by the Finnish Heritage Agency. In both cases, the Court stated that there was no evidence that the changes to the town plan would lead to a loss of anything considered essential to the World Heritage values of Old Rauma. In addition, the Court considered, inter alia, that a flourishing business district would help to preserve the lively atmosphere and local spirit of Old Rauma, not place them at risk. Footnote 18 The debate arose again in 2021 when the visual model of the proposed shopping centre was made public. The model has been criticized for its long-walled façade and box-like shape, which are not in keeping with the picturesque look of Old Rauma.Footnote 19
Aside from traditional yet still relevant threats such as wars and looting, World Heritage Sites are also being threatened by newer dangers ranging from climate crisis to pandemics, which are considered to be related to neoliberal values and capitalist needs. The construction projects not only in Old Rauma, but in Liverpool – Maritime Mercantile City and Notre-Dame de Paris too, are particularly timely examples of such neoliberal threats in action. These examples will be discussed in more detail below to provide a closer examination of the protection of World Heritage as a subject of rights using Hohfeld’s theory as a tool.
3.1 Liberty rights as shrimp salads
Hohfeldian concepts are sometimes metaphorically described as atoms, with the relations between them being described as molecules.Footnote 20 Legal problems can be analysed and solved using these atoms and molecules. Moreover, our journey through Old Rauma is also built on them, beginning with liberty rights. When delving into Hohfeld’s world, it is essential to understand that exploring legal relations using the associated concepts represents the core issue, not categorizing rights. After all, Hohfeld did not create any new words; rather, he demonstrated the use of existing words in a new way by analysing how the word ‘right’ was used and understood in judicial contexts.
According to the Hohfeldian framework, when considered as a legal relation, a liberty implies a privilege or a liberty in terms of personal rights concerning the mind, body, and property. Footnote 21 Thus, if someone has a liberty, someone else has a no-right. A liberty is also the opposite of a duty. With regard to liberty rights, Hohfeld used the example of entering or staying off someone’s property.Footnote 22 In this context, a liberty refers to permission to do something, without violating a contrary legal obligation by doing so. To some extent, this example can be applied to World Heritage too. In the Old Rauma district, everyone has free access to the area. Due to enjoying freedom of movement, I have the right to visit Old Rauma and take a walk along its cobblestone streets at any time of the day.Footnote 23 I have the liberty to choose, in my own mind and body, where to go for a walk. By the same token, I am under no obligation to wander around the historic city, meaning that I also have the liberty to not go for a walk at all. In addition, during my little walk, I have the liberty to enjoy all the vivid cultural heritage around me. If there is a cultural event going on, as there often is in Old Rauma, I have the right to freely participate in the cultural life of the community.Footnote 24
Nobody has the right to limit my liberty to spend a sunny afternoon outdoors, unless there happen to be extraordinary circumstances, such as a state of emergency due to war or pandemic conditions, in which case the state authorities can limit citizens’ and visitors’ right to freely move around the Old Rauma district in order to guarantee their safety and health. Likewise, my liberty to take part in cultural events can sometimes also be restricted. For instance, during the period 2020–2021, to prevent the spread of the novel coronavirus disease 2019 (COVID-19), many states, including Finland, banned mass events and group gatherings.Footnote 25 As a consequence, theatre plays and art exhibitions were cancelled, libraries and movie theatres were closed, and cultural sites such as Old Rauma were emptied of tourist crowds. When human life is at stake, liberty rights concerning World Heritage can be severely curtailed or withdrawn.
Even if we return to normal circumstances and I continue my casual walk with Hohfeld through one of the oldest cities in Finland, my liberty rights still face certain restrictions. As a city centre, Old Rauma is a public space, but most of the buildings in the area are privately owned, and property owners have a right to their property.Footnote 26 Therefore, I do not have the liberty to intentionally sneak into the private yard of someone’s house. Someone else, in this case the owner of the property, has the right that I should not enter the yard unless the owner has invited me or opened the yard to the public during city festivities. In other words, the property owner has the liberty to spend time in the yard, whereas I do not have such a liberty, which refers to Hohfeld’s no-right. Yet, if I were for example, a gardener who had been hired to take care of the yard, I would have both the liberty and the duty, as the opposite of a liberty, to enter the yard. In such a case, my liberty and duty would be based on the employment contract I signed with the property owner as well as on my right to work and freely choose my employment under the established human right regime.Footnote 27
Hohfeld preferred the use of practical examples, including one involving a shrimp salad in which he outlined two classes of legal relations concerning who has a right to eat the salad and who has an obligation not to eat it.Footnote 28 What does World Heritage have to do with a shrimp salad? As it happens, the shrimp salad could well be a residence legitimated as World Heritage. The example is clear when property rights are clear; the party who owns the salad has the right to eat it and the right to allow someone else to eat it too. Hence, X has the privilege to eat the salad and the right that Y should not eat it unless X approves such an act. X owns a charming wooden house dating from the nineteenth century in the heart of Old Rauma that Y has no-right to visit unless X gives permission.
Alison Clarke and Paul Kohler have suggested a scenario in which shrimp salads are growing wild on bushes. In that case, there exists no no-right that others should not eat the shrimp salads.Footnote 29 Anyone has the liberty to stop by a shrimp salad bush and eat a salad. When discussing the tangible heritage of Old Rauma, as concrete physical property it belongs to the property owners, while as intangible experience-based and subjective heritage, it belongs to everyone. In fact, anyone can enjoy the pretty facade of X’s charming house in Old Rauma as long as X’s privacy rights are respected. Due to being protected by international and national legislation, as a cultural landscape, Old Rauma is everybody’s landscape, which is another situation in which nobody has a no-right. Simply put, this means that unless someone owns World Heritage as property, a subjective liberty or no-right exists. In such a case, everyone has at least a collective right to World Heritage, save for extraordinary circumstances under a state of emergency. With regard to the shopping centre case, it seems that the Court considered the collective liberty rights related to Old Rauma not to be violated. For instance, the Court argued that the maximum height of the shopping centre would be lower than the heights of some of the buildings surrounding it. Footnote 30 In other words, the shopping centre would not affect people’s liberty to enjoy the World Heritage landscape.
3.2 An intergenerational perspective on claim rights
In spoken language, the words ‘a liberty’ and ‘a claim’ often refer to the concept of ‘a right’. The difference between liberty rights and claim rights, as Hohfeldian concepts, can be explained by their correlatives. While a no-right is a correlative to a liberty, a duty is a correlative to a claim. If X has a claim right that Y is not allowed to pick apples from a tree located on X’s property, Y has a duty not to harvest X’s apples. By contrast, as discussed above, if Y were a gardener hired to take care of the apple trees, Y would have a duty to enter X’s property and collect the apples.
Thus far, this article has explored the legal relations between different rights holders in the same temporal dimension. However, as a legal concept, World Heritage refers to an obligation to protect cultural heritage for the enjoyment of both present and future generations.Footnote 31 As stated by Kramer and then further defined by Kurki, while rights are equivalent to claims, they can also represent several rights holders. Footnote 32 This article adopts a broad understanding of the possession of interests in relation to the capacity to hold rights and grant rights to future generations in terms of World Heritage. In this regard, the Hohfeldian zero-sum game is utilized to track down obligations that arise simultaneously from different temporalities and from the interests of various rights holders in connection with World Heritage.
Let us attempt a little time travel by modifying Hohfeld’s legal relations between X and Y to cover the relations between the present and the future. What if, when strolling around Old Rauma, I notice that someone or something is damaging it – do I have an obligation to act?Footnote 33 This could be the case if World Heritage is viewed as a collective duty owned to future generations. There are many ways to approach the issue of whether possible future persons, those who are not yet in existence, can possess human rights and therefore, have a claim right to World Heritage that is facing danger before they are even born.Footnote 34 As ‘all human beings are born free and equal in dignity and rights’,Footnote 35 future generations will have human rights. From a Hohfeldian perspective, if there exists such a duty, there also exists a correlative claim and vice versa. Thus, if I had a duty to future generations to protect existing cultural heritage in my present day, future generations would have a claim to cultural heritage in their past too. If X is a member of these future generations, who has a right to participate in cultural life and enjoy art, which includes World Heritage, Y has a responsibility to guarantee that some cultural heritage still exists to be enjoyed in the time in which X lives.
Axel Gosseries has explored the idea of rights belonging to members of future generations by applying some Hohfeldian tools. More specifically, Gosseries questions if we even need to acknowledge judicial claim rights of future generations as correlates of present duties.Footnote 36 Sarah Harding, in turn, has stated that there are fewer challenges involved in proving that future generations have a right to cultural heritage than in defining the legal obligations that arise based on that right.Footnote 37 Safeguarding and handing down selected pieces from the past to future generations is one reason behind the judicial preservation of cultural heritage within international cultural heritage law. For example, the 1972 WHC places the primary duty of safeguarding future generations’ cultural heritage on states parties.Footnote 38 Although it might seem that future generations’ rights to cultural heritage are not necessarily required to defend present-day obligations, some elements have already been built into the instruments of international law to support future generations’ cultural claim rights. For example, the Universal Declaration on Cultural Diversity, which was adopted by UNESCO in 2001, creates a link between human rights and cultural heritage.Footnote 39 Furthermore, the declaration claimsFootnote 40 cultural diversity itself to be part of the common heritage of humanity, which should be recognized for the benefit of future generations too.Footnote 41
Still, if someone violated the World Heritage of Old Rauma and, therefore, future generations’ right to it, the matter would not be addressed by an international court specializing in cultural heritage issues. As its own specific area of law, cultural heritage does not have a similar ad hoc mechanism of norm enforcement and dispute settlement like other fields of international law such as human rights.Footnote 42 However, although there is still a long way to go, some existing judicial authorities and tribunals have begun to develop policies concerning the safeguarding of cultural rights and protection of cultural heritage, with the ground-breaking Al Mahdi case serving as an example of a proceeding that also touched upon intergenerational values.Footnote 43
The connection between World Heritage and intergenerational claim rights can also be explored through international environmental law, as international cultural heritage law instruments safeguard some environmental claim rights too.Footnote 44 Between states and people, the climate crisis, as a legal, political, and social phenomenon, highlights the problems associated with justice representing intergenerational claim rights. In recent years, there have been several proceedings brought against states concerning state responsibility for climate change mitigation.Footnote 45 In particular, young people have increasingly claimed rights on behalf of future generations. These cases have mainly been based on rights concerning a healthy environment and the right to life. Although the cases are not particularly connected to World Heritage, they do refer to rights that are related to cultural heritage.
Yet, the key issue is not only acknowledging the duty regarding World Heritage far in the future, but also assuming related responsibility today, which again leads to the question of how a site should be safeguarded – by preserving it in its original state as far as possible or by allowing the passage of time to shape it? For instance, in April 2019, immediately after the Notre-Dame de Paris fire, President Emmanuel Macron comforted the shocked French public by declaring that the cathedral would be repaired within five years. Notre-Dame has consistently been a popular tourist site and, in 2024, Paris is expected to receive a particularly high number of tourists due to hosting the Summer Olympic Games. What Macron envisioned in terms of the urgent reconstruction project proved to be a sort of authenticating project. A design idea for the collapsed cathedral spire that was submitted to a design competition was rejected, and the decision was made to restore the cathedral to its original form to the greatest extent possible. In practice, this has involved logging of a thousand 150-year-old oaks in order to meet the requirements of ‘La Forêt’.Footnote 46
Notre-Dame is protected as a World Heritage Site, along with the Banks of the Seine. States parties to the 1972 WHC are required to preserve World Heritage for future generations in accordance with the principles of sustainable development.Footnote 47 Protecting a World Heritage Site by logging trees that sequester carbon and, therefore, damaging the ecosystem of a centuries-old forest, can hardly be considered a sustainable activity, especially given that the original authenticity of Notre-Dame cannot be restored. For future generations, rebuilding the cathedral using environmentally friendly methods could represent a change in cultural values that is in line with UNESCO’s criteria and takes full account of the environmental and climate impacts of the project.
While Notre-Dame’s authenticity is too highly prioritized, the city of Rauma does not recognize any major threat to its World Heritage Site’s outstanding universal values, although the city has announced that it will prepare an updated report concerning the shopping centre’s impacts on Old Rauma as the construction project proceeds. This limited reaction is reminiscent of the behaviour of the city of Liverpool. When the Committee removed Liverpool – Maritime Mercantile City from the World Heritage List in June 2021, it became only the third site in the history of the 1972 WHC to lose its World Heritage status. This rare outcome was the result of Liverpool’s plans to construct luxury apartments and towering buildings on its historic waterfront.Footnote 48 After the Committee’s decision was made public, the city expressed its disappointment by stating that it should not have to choose between maintaining its World Heritage status and the wealth of jobs and opportunities that would come with regenerating Liverpool and its communities.Footnote 49
In the end, the major issue concerns the power to choose what kinds of sites will be left for future generations. If the objective of protecting World Heritage is not solely to provide future generations with the most aestheticized or original view as possible, but rather to offer an accurate view of the past, both the Old Rauma shopping centre project and the Notre-Dame fire should be viewed as valid parts of any truthful historical account of World Heritage. After all, shopping centres have become familiar aspects of city skylines in the twenty-first century. In any case, the extent to which construction projects meet the criteria for sustainable development in terms of safeguarding World Heritage is highly questionable.
Overall, granting rights to future generations does matter, both morally and legally, as Gosseries has argued and as accords with the interest-theory-based approach posited by Kramer. Imposing a responsibility in relation to future generations’ claim rights provides a direction and a purpose for such a duty.Footnote 50 Everyone is entitled to all the rights and freedoms outlined within the human right regime regardless of time and place, which imposes at least an ethical obligation towards future generations. However, whether the issue is the construction of housing or hypermarkets, the obligation only safeguards rights for the foreseeable future, not longer-term rights, for example, with regard to a healthy environment. Still, the greatest responsibility for fulfilling the obligation to protect World Heritage lies with those who hold power rights, which will be discussed next.
3.3 The dualism of power rights
In recent years, there have been a growing number of attempts to raise cultural heritage issues for discussion at the international level. In 2017, the United Nations Security Council adopted a resolution concerning the protection of cultural heritage in which it counsels member states to implement all necessary measures to advance the protection of cultural heritage within their territory.Footnote 51 In particular, the resolution highlights how member states have the primary responsibility to protect their cultural heritage. In 2018, the United Nations Human Rights Council adopted a resolution in which it requires states to respect, protect and fulfil cultural rights in the field of cultural heritage.Footnote 52 Both resolutions underline states’ liability to safeguard cultural heritage. With regard to Old Rauma, international and national obligations, including those imposed by the 1972 WHC, assign the Hohfeldian liability for protecting cultural rights on its territory to Finland as a state.
As a historic city district designated as a World Heritage Site, there are many kinds of rights holders in Old Rauma. Local entrepreneurs have the right to their business and their livelihood. People using historical houses for residential purposes have the right to privacy, although they also have a duty to take care of their property. In return, public authorities have a liability to provide necessary guidance, abilities and grants to homeowners so that they can fulfil their duty. For instance, the city of Rauma provides services and assistance in terms of repairs and renovation for free to citizens of Old Rauma. Additionally, the Finnish Heritage Agency provides subsidies for safeguarding the cultural heritage of Old Rauma. Effectively, the state has the power to decide on the financial contributions it will make. Moreover, receiving such a contribution imposes a liability for a citizen to carry out the required actions. Some conservation projects within Old Rauma are still funded entirely by private homeowners, without any support from either local or public authorities.Footnote 53
According to Hohfeld, anyone who can make changes to legal relations holds a legal power. When X is exercising power in a way that alters Y’s legal relations, Y becomes subject to a liability.Footnote 54 There is a challenge associated with drafting the relation between power and liability in the context of cultural heritage. Both concepts are de facto held by the same right holder. Thus, public authorities have the power and the liability to protect cultural heritage. They also have the power to choose which parts of culture are, and which are not, legally protected under domestic law as well as which cultural property is suggested for inclusion in UNESCO’s lists, which again assigns the final responsibility for safeguarding the chosen cultural property to the state. Yet, in the case of Old Rauma, its citizens may also exercise some power rights or liabilities,Footnote 55 even if the state ultimately has the authority to administer cultural heritage.
The state also has the power to choose which protection mechanisms it applies. For instance, the city of Venice in Italy has announced that it will begin to charge day-tripper tourists entering the World Heritage Site from the beginning of January 2023.Footnote 56 In this case, Venice’s authorities are using their power rights by making changes in legal relations concerning tourists’ liberty rights to enter the historic city. Legal conflicts can therefore arise when a cultural landscape that is supposed to be accessible to everyone, has access fees and opening hours. Yet, at the same time, entrance fees can be considered as an action to enforce the state’s liability to protect World Heritage.
Regarding the power rights of the state, the other side of the coin entails that a power to protect implies a power not to protect. The 1972 WHC assigns states the power to choose which parts of their cultural heritage are considered significant enough to safeguard as World Heritage. This power entails a liability too.Footnote 57 The same applies to, for example, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which defines cultural property as property specifically designated as being of importance by the state.Footnote 58
Aside from having the power to choose which cultural heritage is protected and legitimized, a state also has the power to wipe World Heritage Sites from its map. For instance, in 2007, the Arabian Oryx Sanctuary became the first site to ever be removed from the World Heritage List after Oman decided to reduce the size of the protected area by some 90 per cent.Footnote 59 In 2017, Poland violated its World Heritage commitments by logging in the Białowieża Forest, one of Europe’s oldest and largest primaeval woods.Footnote 60 In both cases, the states’ power to destroy was motivated by the aim of releasing natural resources for economic purposes, while citizens’ and current and future generations’ claim rights to World Heritage were overruled. However, it must be acknowledged that the state is not the only body with the power to harm or destroy cultural sites. Indigenous communities, for example, may deliberately decide to destroy any part of their cultural heritage. In other words, indigenous peoples have the right to self-determination, autonomy, or self-government, which again grants the power to preserve and control their cultural sites as they please.Footnote 61
As discussed above, Old Rauma has not been exempt from public authorities’ power rights when it comes to preferring property and business rights. Old Rauma holds World Heritage status as one of the best preserved and most expansive examples of northern European architecture and urbanism and, further, as an outstanding example of a Nordic wooden city. Despite this, the Rauma City Council has twice used its power rights to carry out major construction projects in the buffer zone. In the case of Old Rauma, UNESCO’s power to affect how its states parties implement their power rights has proved limited. In practice, the most serious possible consequence is losing World Heritage status and the associated reputational damage, as illustrated by the case of Liverpool. Removing a site from the World Heritage List is one of the few concrete steps that UNESCO can take.
3.4 Illusion of immunity
If my pleasant walk through Old Rauma was taking place during a dramatic turn of events and a bomber flew over the city with the intention of deliberately causing damage to World Heritage, what would Hohfeld say? Or what would happen if I dug up an ancient buried treasure from the yard of the Church of the Holy Cross, a medieval church in Old Rauma, and smuggled it across the Finnish border? Hohfeld described a situation in which Y’s legal relations cannot be changed by X due to Y having immunity. In this situation, X is unable to affect such a change due to lacking the power to change Y’s legal relations.
According to international law, World Heritage as part of the cultural property of the nation, has certain features of immunity, especially during times of war under the International Humanitarian Law and the 1954 Hague Convention.Footnote 62 During peacetime, under the 1954 Hague Convention, states have the responsibility to prepare for the safeguarding of cultural property situated within their territory.Footnote 63 Under the 1972 WHC, states parties should refrain from any deliberate measures that might damage the cultural or natural heritage of other states parties.Footnote 64 Moreover, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, as well as the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, safeguard tangible heritage from theft and illegal exportation, and also cover the return of stolen cultural property. With regard to Hohfeldian concepts, states have an immunity right to cultural heritage, including World Heritage, within their borders, which correlates with a disability to destroy each other’s cultural sites. In addition, any illegally exported cultural property must be returned to its state of origin.
The immunity rights provided under these conventions are state-owned and property-centred, as they mostly focus on safeguarding the rights of the party who is the possessor of tangible heritage. Alessandro Chechi has stated that the relationship between property rights and immunity rules needs to be reconceptualized, inter alia, by recognizing cultural objects more broadly than mere physical artifacts. Once again, cultural heritage involves more than just property – it is a diverse phenomenon tied to the lives of human beings and communities.Footnote 65 If a bomber attack led to the destruction of Old Rauma, it would be damaging for the historic buildings of the World Heritage Site, but it would also damage all the intangible practices, events, and values that are entwined with the built historic environment. International law, however, favours an immunity for immovable heritage.Footnote 66 The dichotomy between tangible and intangible can serve as an obstacle to safeguarding World Heritage as a whole, which render an immunity a mere illusion.
At the same time, any measures designed to enable World Heritage to be effectively safeguarded during armed conflicts can increase the protection available against other kinds of threats. Thus, when states prepare to guarantee immunity rights concerning World Heritage during wartime, World Heritage can indirectly also be protected from, for example, the climate crisis. However, World Heritage, as a subject of immunity rights, remains extremely vulnerable and judicially only weakly protected when it comes to the threats associated with the climate crisis. In today’s world, immunity rights are strongly tied to states’ power rights and states. borders. Furthermore, the resources necessary to fulfil obligations concerning World Heritage protection are not equally spread across the world. Indeed, less developed countries bear the highest risks regarding climate crisis because they are less protected and more geographically vulnerable than wealthier countries.Footnote 67 Indigenous communities and their heritage are also especially vulnerable to climate impacts. In the Arctic, the very ground beneath people’s feet is disappearing, meaning that indigenous peoples are already facing the loss of their traditional homelands.Footnote 68 Although indigenous peoples are recognized as specific stakeholders in relation to safeguarding World HeritageFootnote 69, indigenous heritage has hardly any immunity if the cultural rights of indigenous peoples are not guaranteed by the relevant state party on a wider scale.Footnote 70 According to the Hohfeldian approach, to ensure that indigenous peoples have immunity rights to their cultural heritage, states should not have the power to alter such a right. As has previously been noted, under current international law, states do not have a disability to use their power rights to control cultural heritage within their borders, quite the contrary in fact.
4. The need for legal elasticity: An overview of contemporary challenges
Thus far, this article has examined World-Heritage-related rights using the Hohfeldian framework. Now, some potential conflicts and solutions originating from the legal relations concerning World Heritage will be discussed. To prevent conflicts with regard to the safeguarding of World Heritage, this article suggests fostering resilience and transparency in legal relations through elastic legal mechanisms that bring together various rights holders simultaneously and from different temporalities. The Nordic right to roam will be used as an example of such a mechanism.
When it comes to liberty rights in particular, the Nordic countries have a special feature concerning accessing and experiencing privately owned landscapes where signs stating ‘No Trespassing’ are rarely seen. At least in Finland, Sweden, and Norway, the legislation is characterized by what is described as a right or a freedom to roam.Footnote 71 Hohfeld might have described it as a buffet of shrimp salads served equally to everyone. In practice, it means that everyone has the right to enjoy nature anywhere in the countryside regardless of the land ownership situation. The liberty to roam also involves an obligation not to harm the environment and not to infringe the property owner’s privacy, for example, by entering a private yard or residence. Concurrently, this legal principle guarantees the protection of landowners’ rights and gives citizens the right to roam – a liberty to engage in an experience that nobody can own.
In general, World Heritage is associated with social and aesthetic experiences, and thereby promoting the well-being of individuals and communities, which is again related to both social and cultural rights and to liberty rights in general. Harding has identified the connection, as well as the legal gap, between a deeper understanding of the immaterial value of cultural heritage and the need to safeguard cultural-heritage-related rights as a whole. Footnote 72 This gap shares some of the same features as the gap recognized by Haanpää et al. in terms of safeguarding the tangible heritage of Old Rauma when compared with its intangible heritage.Footnote 73
With regard to the legal gap described by Harding, the right to roam forms a resilient legal exception; it represents a crossroads where liberty rights meet claim rights. The liberty is extended from a right related to a concrete object to a right concerning an ethereal experience. It is a rare example of legislation in which the dominance of property rights exhibits a certain elasticity by recognizing the immaterial values of the environment as a social and cultural space. Given the right to roam, X has the liberty to freely walk in the woods owned by Y. Moreover, X is allowed to, for example, to ski, swim, and pick wild berries and mushrooms on Y’s property. However, X has no right to, for example, cut down trees or litter.Footnote 74 Similarly, X has a duty not to damage the property, nature, or animals, nor to disturb people’s privacy while Y has a claim to privacy, safety, and the property.
In one way or another, the debate regarding the essence of World Heritage leads to a discussion of ownership, which is centred on tangible heritage. The fundamental policy behind the definition of property law focuses on the protection of the property holder’s rights. Cultural property – such as an immovable building – has a possessor. Old Rauma is a World Heritage Site comprised of historic buildings owned by private citizens, the city of Rauma, and other bodies such as business owners and the Evangelical Lutheran Church of Finland. Thus, everyone has the liberty to wander around the Old Rauma district, although that liberty comes with obligations not to disturb the property owners or damage the cultural property. Regarding the construction project, it seems that property and business rights have been prioritized over the intangible and intergenerational cultural heritage values connected with World Heritage.
However, World Heritage is a broad concept consisting of both concrete and immaterial elements. By taking care of tangible cultural heritage, such as the wooden buildings of Old Rauma, authorities and citizens are, indirectly and voluntarily protecting intangible heritage too. The conservation of the buildings upholds the local way of life, including various forms of intangible heritage. Moreover, it enables everyone to participate in the community’s cultural life. In addition to cultural property and cultural heritage, Old Rauma also forms part of the cultural commons as a landscape and an urban space featuring human-made, intellectual, and cultural resources.Footnote 75 When cultural commons are safeguarded as World Heritage, as in the case of Old Rauma, they are governed by states. This imposes on states a liability to protect cultural heritage as well as a power that can be misused.
When a state uses its power rights, it can strengthen the protection of World Heritage, although it may also undermine everyone’s liberty to move around and participate in cultural life, for instance by setting an entrance fee. So far, Old Rauma as a district is a public space that belongs to everyone. Anyone can freely enter the city anytime. There are no specific opening hours or admission fees. The many-sided local industry and free accessibility are an essential part of the town’s spirit and authenticity. On the other hand, fees can be justified as part of the conservation when preventing the effects mass tourism.
At worst, the state may use its power rights in a way that is contrary to its liability by damaging its own World Heritage, for example by building a shopping centre and, in so doing, altering a historic neighbourhood. In addition to the state, indigenous communities may have power rights when it comes to destroying their own cultural heritage. However, the state itself also has both the power and the liability to impose sanctions for violating cultural heritage.Footnote 76 At the same time, the state has immunity rights in relation to the cultural heritage it possesses, which means that it has the power to destroy World Heritage within its borders, and still enjoy immunity against sanctions. In fact, under the 1972 WHC the most severe sanction that can be imposed is the removal of a site from the World Heritage List.
Another challenge in terms of legal relations concerns the protection of immunity rights related to cultural heritage during paramilitary operations, civil wars, or conflicts caused by non-state actors such as terrorists, rebel groups or freedom fighters. In addition, it is important to consider the adverse effects on cultural heritage caused by climate crisis and environmental disasters, which can both destroy and create heritage. In the future, the principles and responsibilities associated with cultural heritage will likely increase the number of situations in which the concerns of many interest groups, including the private sector, collide. Consequently, the overlap between public and private duty-holders will become difficult to see. The risks to human life and the environment do not follow state borders, although the power to protect or not to protect cultural heritage does.
On a wider scale, the power to protect World Heritage can be seen to include states’ liability to protect the right to life which is connected to a healthy and safe environment. It likely goes without saying that humankind will face serious challenges when attempting to preserve World Heritage for future generations. By protecting the environment, biodiversity, indigenous rights, and clean water, future generations’ rights to cultural heritage will at least be indirectly safeguarded. To prevent legal conflicts with regard to safeguarding cultural heritage, it is vital to not separate liberty rights concerning tangible and intangible heritage. Indeed, the distinction between tangible and intangible cultural heritage can be prove problematic.Footnote 77 Janet Blake has claimed that the whole dichotomy is artificial and does not accord with reality: in most cases, tangible and intangible cultural heritage are inseparably combined and exhibit such a close relationship that separating them would be counter-intuitive.Footnote 78 For communities, both today and in the future, cultural heritage plays a central role in the way they define themselves, identify with their past, and contemplate their future, which requires cultural heritage to be protected as a whole, thereby overcoming the limitations that a tangible-based approach to World Heritage, and official cultural heritage in general, entails.
As previously discussed, states can use their power rights to limit their citizens’ liberty rights in extraordinary circumstances. For example, to combat the COVID-19 pandemic, states have adopted various measures that restrict human rights and freedoms, including cultural rights, in an effort to prevent the spread of the virus. In adopting such measures, states implement their liability to safeguard more fundamental and subjective rights, such as the right to life. At the same time, World Heritage can de facto benefit from restrictive measures. When states introduce curfews and travel bans, air pollution may be reduced while less tourist activity will result in less erosion at World Heritage sites. Moreover, when states exercise their power rights and citizens fulfil their liability by staying at home during pandemics, World Heritage sites are left in peace.
Yet, urban landscapes such as Old Rauma are cultural communities. Therefore, it should be remembered that, to protect World Heritage, communities need to be protected too. As in the case of Old Rauma, people are the ones who, in the course of their daily lives, safeguard and provide cultural heritage with its heart by living among it. Without a community and its people, such sites become desolate spaces. Even so, during circumstances such as the COVID-19 pandemic, World Heritage can become available in new ways. For instance, Old Rauma’s traditional annual festival, Rauma Lace Week, which represents a significant part of the community’s cultural heritage, took place virtually in 2020 due to COVID-19. This indicates that there are still many possibilities to rethink and rediscover how to fulfil the obligations and guarantee the rights associated with World Heritage.
5. Conclusion
Hohfeld contended that concrete examples and actual cases lie at the heart of the framework and that analysing them makes legal concepts and relations become alive and visible.Footnote 79 To be understood coherently, concepts require legal norms. Otherwise, they exist only as empty principles without clear meanings. Using the World Heritage Site of Old Rauma as a concrete example, this article has revealed the kinds of relations that World Heritage’s judicial dimensions can contain both in that particular case and on a more general level.
Although the world has changed since Hohfeld’s framework was created – it has now been over a century since his significant essays were published – it still provides valid tools for defining and analysing the concept of rights. Questions regarding the rights and responsibilities associated with World Heritage are now more present than ever due to climate displacement, wars, and long-time curfews increasingly leading to abandoned and dilapidated sites. There are countless examples of how cultural sites are being destroyed by human-made conflicts and environmental disasters in such a way that violates World Heritage. In addition to visible threats, World Heritage is also endangered by people’s consumption habits and lifestyles with hypermarkets now being considered to meet people’s needs better than brick-and-mortar stores. What happened to the World Heritage status of the Liverpool – Maritime Mercantile City shows that the Committee is ready to respond to such threats, although the threshold for concrete action is quite high. In addition, UNESCO’s letter concerning the construction project in Old Rauma demonstrates that the Committee is capable of recognizing neoliberal threats, although it also demonstrates that states can use their power rights to ignore recommendations by UNESCO.
Above all, the aim of this article has not been to explore the work of Wesley Newcomb Hohfeld; rather, it has been to analyse World Heritage alongside Hohfeld. In terms of the rights connected with World Heritage, which represent an especially unstructured group of rights, profound analysis has proven to be necessary. Nevertheless, it was not considered relevant to classify the entire broad and disorganized construction of the international cultural heritage regulatory system. Instead, it was decided to recognize a variety of rights and duties linked to its centre, to World Heritage, and to draw some general conclusions based on the essence of its legal relations, as revealed using the Hohfeldian framework.
Testing the judicial concept of World Heritage using the Hohfeldian framework has demonstrated how its legal nature represents a combination of public and private rights and responsibilities connected to human rights, while different legal rules affect each other at different levels of regulation in terms of public and private law, domestic and international law, peace- and wartime law, and when emergency rules are enacted due to other extraordinary circumstances. Similarly, there exist duplicated and simultaneous rights and duty holders in both the present and the future.
The state has both the power and the liability to administer World Heritage. This liability creates new liabilities when a state or local authority with the liability to manage World Heritage provides funding for citizens or individuals to maintain or renovate their cultural property. At the same time, when a state has a power and a liability concerning World Heritage, it also has a duty to not harm World Heritage. The power to choose what to preserve is two-sided and involves the power to destroy when selecting what not to preserve. In this way, World Heritage can be viewed as the legacy that is chosen to be preserved for future generations. In other words, states are sovereign when it comes to deciding which parts of their cultures are considered World Heritage and worthy of protection within their borders. World Heritage that has monetary value, for example, as a tourist site, encourages conservation rather than destruction, while less profitable cultural heritage is likely to remain unrecognized by the state, which can lead to a lack of immunity. Regarding the Nordic right to roam, liberty rights and claim rights can strike a compromise between rights related to property and business and the right to freely wander and enjoy various forms of World Heritage. The right to roam represents a mechanism that responds to the need to foster resilience with regard to the rights and responsibilities associated with World Heritage protection.
As a legal term, World Heritage, when viewed as part of cultural heritage or cultural property, appears to be complex, as it is strongly connected to various legal relations and political decision-making processes affected by economic preferences and values. There are various aspects involved in pointing out the norms concerning World Heritage and, in the end, all the words and concepts discussed in this article are only some elements of law that have been established and given substance by human beings. Still, the words are the ones that matter. They create the reality people live in and, when enshrined in law, represent people’s values and priorities.
As Hohfeld stated, ‘[a]nyone who has seriously observed and reflected on the interrelation of ideas and language must realize how words tend to react upon ideas and to hinder or control them’.Footnote 80 The dominance of the property and economic discourses influences the ways World Heritage is viewed, defined, and acknowledged. In conclusion, it is crucial that states bear the ultimate liability for World Heritage protection, which requires states to take actions within their cultural and environmental policy and cultural heritage management. Nonetheless, this does not exclude the possibility of people having power rights too. Although the right to World Heritage may appear to be collective and divided by its legal nature, the experience when exercising the right to enjoy and cherish culture is still subjective by its very essence, while tangible and intangible heritage can be experienced simultaneously.
