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Non-State Actors and the Implementation of the World Heritage Convention in Asia: Achievements, Problems, and Prospects

Published online by Cambridge University Press:  26 February 2018

Alessandro CHECHI
Alessandro CHECHI*
Affiliation:
University of Geneva, Switzerlandalessandro.chechi@unige.ch
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Abstract

The philosophy underlying the UNESCO World Heritage Convention of 1972 [WHC] consists in promoting a system of international co-operation in the context of which the States Parties commit to preserving the cultural treasures of “outstanding universal value” located within their territories. However, it is a fact that today many properties inscribed on the List set under the WHC are endangered. This paper will focus on the role played by “non-state actors” in the enforcement of the WHC. It will thus dwell upon the relationships between public and private interests, on the one hand, and between international and domestic legal orders, on the other. Its purpose is to map out and discuss the most salient problems about the involvement of non-state actors—particularly non-governmental organizations [NGOs] and private companies—in the monitoring and implementation of the WHC.

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Type
Articles
Information
Asian Journal of International Law , Volume 8 , Issue 2 , July 2018, pp. 461 - 489
Copyright
© Asian Journal of International Law 2018 

Threats against cultural heritage go unabated. The destruction of monuments and art objects during armed conflicts is one example. In peacetime, cultural landscapes and historical buildings are liable to be damaged by uncontrolled urbanization and large-scale works undertaken by development-minded governments. The United Nations Educational, Scientific, and Cultural Organization [UNESCO] is engaged to change this gloomy state of affairs. One of the strategies currently envisaged by this organization is to fortify co-operation and dialogue with non-state actors.Footnote 1

The term “non-state actor” designates all entities: (1) largely or entirely autonomous from government funding and interference; (2) emanating from civil society, the market economy, or political impulses beyond state control; (3) participating in networks which extend across the boundaries of two or more states; and (4) acting in ways which affect political outcomes.Footnote 2 In addition, one can add that non-state actors are (5) organized (as they have an internal structure and rules to pursue the professed objectives) and (6) collective entities (as they are composed of individual human beings).

Non-governmental organizations [NGOs] and multinational business enterprises are among the most active non-state entities on the world scene. These entities can be, at the same time, “defenders” (“rescue” actors) and “enemies” (“threat” actors) of cultural heritage.Footnote 3 For instance, while NGOs participate in the development and enforcement of policies and rules, sites of cultural value may be deteriorated by the mineral and hydrocarbon extraction activities carried out by transnational corporations or by the tourism industry.

This study takes a narrow perspective in that it investigates under which circumstances and to what extent NGOs and business enterprises contribute to or impinge on the conservation of cultural heritage sites situated in the Asian continent. In addition, although there exist multiple registers of cultural sites, this paper focuses—albeit not exclusively—on the Asian properties inscribed on the List set under the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage [WHC].Footnote 4

The reason for this focus is threefold. First, the WHC is heading towards universal participation.Footnote 5 Second, there is much literature on case-studies relating to the implementation of the WHC.Footnote 6 Third, many Asian states are going through a period of rapid economic growth that is having a profound impact on the unique and immense diversity of the built environment—buildings, monuments, archaeological sites, sacred spaces, gardens, and parks—of metropolitan areas. Although the preservation of the built cultural environment contributes to the quality of life and to the collective memory of the inhabitants of urban areas, it appears that many Asian governments—but this trend is a global pattern—are commodifying cultural spaces for economic exploitation in the name of free market capitalism and wealth accumulation. This commodification not only brings about real-estate densification, increasing urbanization, and the homogenization of the urban design—the proliferating mega-architecture from sky-scraping office towers to massive residential complexes, and shopping malls looking the same as elsewhere—but also the alienation of local communities from their own heritage as a result of the transformation of traditional structures into environments detached from the local culture.Footnote 7

This paper looks at the WHC (Part I) in order to set the scene for the ensuing analysis of the phenomena of non-state actors’ involvement in its implementation (Part II).Footnote 8 The objective of this paper is to obtain an understanding of the underpinnings and implications of UNESCO’s approach to partnerships with NGOs and multinational business enterprises (Parts III and IV). The paper argues that a combination of top-down and bottom-up approaches is necessary in order to resolve the tensions between the WHC and the agenda of states, on the one hand, and between the latter and the objectives and expectations of the non-state actors concerned, on the other.

I. THE WORLD HERITAGE CONVENTION SYSTEM

The philosophy underlying the WHC consists in promoting a system of international co-operation and assistance in the context of which Contracting States adhere to the global commitment of ensuring “the identification, protection, conservation, presentation and transmission to future generations” of the cultural heritage of “outstanding universal value” [OUV] located within their territories.Footnote 9 Pursuant to the WHC, the term “cultural heritage” comprises “monuments” (architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings, and combinations of features), “groups of buildings” including historic cities, and “sites” (works of man or the combined works of nature and of man, and areas including archaeological sites).Footnote 10

The WHC presents a well-developed machinery including the World Heritage Committee [WHC Committee],Footnote 11 the World Heritage Centre [WHC Centre],Footnote 12 the WHC List, and the List of World Heritage in Danger [WHD List].

The WHC List contains the properties having OUV that have been nominated for inscription by the Contracting States,Footnote 13 whereas the WHD List includes such sites that are threatened by serious and specific dangers.Footnote 14 While the inclusion of a cultural property in the WHC List entails the consent of the state concerned,Footnote 15 the inscription of a property in the WHD List does not require that the territorial state present a request or give its consent. Under the last sentence of Article 11(4), the WHC Committee is empowered to inscribe a property on the WHD List, provided there is a “case of urgent need”. Likewise, the consent of the territorial state is not required for the deletion of a property from the lists. Although the WHC does not contain any specific provision on this issue, the deletion of a property must be considered as inherent to the object and purpose of the Convention.Footnote 16

The WHC Committee co-ordinates the process of inscription. To do so, it meets annually to take decisions as to the listing of sites, and to review the preservation and management of the properties inscribed on the lists (and to take decisions accordingly).Footnote 17 In addition to the requirement of OUV, the Committee’s decision on the inscription of a property on the WHC List relies on how the site will be managed, protected, and monitored. Once inscribed on the WHC List, the Contracting States accept responsibility for the development of an effective regulatory protective framework, and commit to comply with the Operational GuidelinesFootnote 18 and to adopt the system of reporting set in place by UNESCO. In particular, the Contracting States are encouraged to integrate the protection of cultural heritage into regional planning programmes, set up staff and services, and undertake scientific and technical conservation research.Footnote 19 Additionally, the Committee helps Contracting States to safeguard WHC properties by providing technical assistance, professional training, and, if necessary, emergency assistance for sites.Footnote 20

As hinted at above, the Contracting States play a decisive role in the inscription of cultural sites in the WHC List. First, they submit to the WHC Committee an inventory of properties suitable for inclusion (the “tentative list”). Second, states submit to the Committee a specific nomination. The tentative list must be submitted at least one year prior to the submission of an official nomination, and a nomination can only be submitted for a site that appears on the tentative list. The nomination is registered by the WHC Centre and then passed on to the International Council for Monuments and Sites [ICOMOS].Footnote 21 Therefore, neither UNESCO nor its bodies have the power to nominate or invite nominations for sites.

For the Contracting States, the benefits of inscription on the WHC List are numerous, and include international recognition and prestige, improved protection and management of sites, financial support, advocacy, and political protection. With respect to the latter issue, a well-known example relates to the Temple of Preah Vihear, which benefited from the diplomatic influence of UNESCO in 2008 when the political and military dispute between Cambodia and Thailand reached its apex following the inscription of the site to the WHC List by Cambodia.Footnote 22 The economic incentives in terms of development and employment opportunities of WHC listing must also be mentioned. These economic benefits, which are mostly linked to the increase in tourism activity, are one of the key motivations for the Contracting States in nominating sites. Shackley pointed out that the WHC List “is recognized as designating something very special, in tourism terms a definite ‘must see’”.Footnote 23 The notion of WHC is embraced by the tourism industry as a brand, with the consequence that the countries that have one or more sites inscribed on the List experience a tourism boom.Footnote 24

The WHC and its List have become increasingly popular and many regard it as “the most effective international legal instrument for the protection of the cultural and natural heritage”.Footnote 25 This is due in part to the great visibility of the system created by the WHC, which is well known by people all over the world. It is a rare feature for an international treaty to possess the capacity of projecting its effects beyond the sphere of governmental obligations to become part of the civil society and of the everyday life of people. In nearly all countries of the world, people—even if they may ignore the contents of the WHC—consider the sites inscribed on the List and accompanied by the distinctive emblem as the “heritage of humanity” tout court.Footnote 26

II. NON-STATE ACTORS AND THE BUILT CULTURAL HERITAGE

A. Goals

The WHC system aims to protect and celebrate the cultural (and natural) environment of OUV from the effects of development, modernity, and urbanization. Besides the WHC, other instruments have been adopted to address the threats and loss of built heritage. These include the UNESCO Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas,Footnote 27 the ICOMOS Declaration on the Conservation of the Setting of Heritage Structures, Sites, and Areas,Footnote 28 the UNESCO Vienna Memorandum on World Heritage and Contemporary Architecture—Managing the Historic Urban Landscape,Footnote 29 the ICOMOS Declaration on Heritage and Metropolis in Asia and the Pacific,Footnote 30 and the UNESCO Recommendation on the Historic Urban Landscape.Footnote 31

All in all, these instruments demonstrate the existence of a global consensus for safeguarding heritage places. In particular, these documents indicate that international agencies have come to focus on the aspects of development that impinge on the authenticity and integrity of built heritage, and on the issue of the involvement of non-state actors in the conservation and management of heritage places. The importance of this involvement is stressed by the Operational Guidelines: “States Parties to the Convention are encouraged to ensure the participation of a wide variety of stakeholders, including … non-governmental organizations (NGOs) and other interested parties and partners in the identification, nomination and protection of World Heritage properties.”Footnote 32 By the same token, the above-mentioned 2007 ICOMOS Declaration provides: “[c]onservation in metropolitan areas requires information, involvement and cooperation among the public, private, academic, and non-government sectors as well as citizens and international organizations.”Footnote 33

UNESCO’s overall approach to partnerships with non-state actors is defined by Article XI(4) of the UNESCO Constitution,Footnote 34 and the “Policy Framework for Strategic Partnerships: A Comprehensive Partnership Strategy”.Footnote 35 The latter document covers a number of categories of partners—including the private sectorFootnote 36 and NGOs—and contains strategies for engagement tailored to the particular partner concerned, the nature of the co-operation, and the level of risk perceived.Footnote 37 In UNESCO’s view, partnerships are a key enabler for meeting global challenges and generating sustainable change and long-lasting impact. By joining forces with these non-state partners, UNESCO aims to: promote the understanding of its goals and work; enhance the efficiency and effectiveness of its programmes; strengthen the visibility and impact of its action;Footnote 38 access expertise and support; mobilize financial and in-kind resources; reinforce the understanding, ratification, implementation, and monitoring of its normative instruments; and advance teaching, learning, and research that supports the development of sustainable knowledge societies.Footnote 39 Accordingly, UNESCO’s partners can, inter alia: participate in the elaboration and implementation of its programmes, policies, standards, and norms; provide technical assistance and advisory services; and provide cash and in-kind contributions.Footnote 40

Arguably, with this “Policy Framework”, UNESCO urges that the various voices and needs of civil society organizations, economic operators, and local communities are effectively integrated into the design and implementation of development and infrastructure projects. However, the question arises as to whether existing legal instruments constitute a sufficient basis to resolve the tensions between the purposes of the WHC and the agenda of states, on the one hand, and between the latter and the objectives and expectations of the non-state actors concerned, on the other. In what follows, these tensions will be discussed from the perspectives of two categories of non-state actors: NGOs and private business enterprises.

B. NGOs

1. UNESCO’s partnership with NGOs

The term “NGO” is an all-inclusive concept encompassing everything from a neighbourhood association to an organization operating globally, and is normally interpreted to include non-profit entities working for common goods.

NGOs are crucial partners of an intergovernmental organization such as UNESCO.Footnote 41 The current statutory framework for co-operation with NGOs is defined by the “Directives concerning UNESCO’s Partnership with Non-Governmental Organizations”.Footnote 42 In accordance with these Directives, UNESCO may establish official partnerships with international, regional, national, or local NGOs, provided that their purposes, functions, structure, and operation are non-governmental, democratic, and non-profit-making in character. In particular, an NGO can become a UNESCO partner if it fulfils the following conditions: (1) it shall be engaged in activities in one or more specific fields of UNESCO’s competence, in a spirit of co-operation, tolerance, and solidarity, in the interests of humankind and with respect for cultural identities; (2) it shall have a recognized legal status, an established headquarters, and be governed by democratically adopted statutes; and (3) it shall have been in existence and have been carrying out activities for at least two years at the time it requests the establishment of a partnership.Footnote 43 UNESCO can establish two main types of relations: a consultative partnership (designed to enable UNESCO to establish and maintain flexible and dynamic partnerships with any organization of civil society that is active in UNESCO’s fields of competence at whatever level), and an associate partnership (open to international or regional organizations having maintained a continuous and effective partnership with UNESCO for at least two years).Footnote 44

Against this background, it is worth pausing to look briefly at some of the NGOs that work in the field of cultural heritage in Asia.

As one of the advisory bodies to the WHC Committee, ICOMOS is responsible for the evaluation of cultural and mixed properties proposed for inscription on the WHC List. Following its assessment, a recommendation is made: inscribe the site; do not inscribe the site; or refer or defer for further research, explanation, or documentation. Furthermore, ICOMOS is tasked with the preparation of reports on the state of conservation of properties inscribed on the WHC List and the WHD List.Footnote 45

The International Council of Museums [ICOM] deals with museum concerns ranging from security to illegal trafficking in cultural goods. Regarding the fight against illicit trafficking, ICOM has established an International Observatory on Illicit Traffic in Cultural Goods,Footnote 46 and resorts to various awareness-raising tools. For instance, with respect to the trafficking in (and restitution of) cultural property removed from Khmer temples in Cambodia, ICOM strived to convince all its members to comply with its Code of Ethics.Footnote 47 In addition, it published “One Hundred Missing Objects—Angkor’s Lootings” and the “Red List of Cambodian Antiquities at Risk”, which present a selection of works of art stolen from Cambodian sites.Footnote 48

The Global Heritage Fund [GHF] aims to preserve threatened sites in developing countries, supported by both private and public funds. Through its conservation projects, GHF provides long-term planning, conservation expertise, monitoring and evaluation, and community engagement.Footnote 49

The World Monuments Fund [WMF] advocates for built heritage conservation on a global scale. Its primary activity is to identify projects requiring assistance and encouraging private donors and partnerships.Footnote 50

The Aga Khan Trust for Culture focuses on the physical, social, cultural, and economic revitalization of historic urban environments in the developing countries of Asia and Africa where Islam is the prevalent faith. Its programmes include the Aga Khan Award for Architecture; the Aga Khan Historic Cities Programme; and the Aga Khan Program for Islamic Architecture. The umbrella organization, the Aga Khan Development Network, obtains funding through a set of partnerships with national governments, private donors, and non-governmental bodies.Footnote 51

Turquoise Mountain Foundation is a non-profit NGO established in 2006 in Scotland and operating in Afghanistan, Myanmar, and Saudi Arabia. It aims at regenerating historic urban areas, renewing traditional arts and architecture, and hence providing jobs, skills, and a sense of national pride to people.Footnote 52

The Alliance for the Restoration of Cultural Heritage [ARCH] is a non-profit organization committed to the defence of cultural treasures marred by crisis and war, to the assessment of the dangers facing them, and to research options for their preservation and restoration. In addition, it works with other activists and creators in order to encourage historical narratives that emphasize creative cultural achievements and universal values of civilization, and to launch action campaigns to raise awareness and mobilize the public against threats to cultural heritage.Footnote 53

Finally, it is worth mentioning the International Alliance for the Protection of Heritage in Conflict Areas [ALIPH]. Launched in December 2016 by France and the United Arab Emirates, and headquartered in Geneva, this foundation will administer a fund that will be used for the protection of cultural heritage in war zones through the adoption of preventive measures, post-conflict interventions, and emergency actions.Footnote 54

2. The ambivalent role of NGOs

NGOs play various roles in the field of cultural heritage. Some provide services, while others concentrate on mobilizing local, national, and international actors via lobbying activities or public awareness campaigns. Moreover, NGOs are important players in the cultural heritage field because they can represent stances that otherwise would be unrepresented or underrepresented by focusing attention on the links between conservation and identity, and on the need to involve local communities in the conservation of the built environment. For instance, in Malaysia, Sri Lanka, and Thailand, NGOs seek to protect marginalized groups from development-minded states by defending tradition-based land rights and long-standing traditional practices having a connection with cultural sites.Footnote 55 Furthermore, not only do NGOs participate in the production of soft-law standards, national laws, and treaties, but they play a central role as law enforcement and monitoring agents. With respect to the implementation of the WHC, Article 13(7) states that the “Committee shall co-operate with … non-governmental organizations” for the “implementation of its programmes and projects”, while the Operational Guidelines emphasize that NGOs are among the “[p]artners in the protection and conservation” of WHC sites.Footnote 56 Moreover, it is worth mentioning that, although the Contracting States are supposed to inform the Committee of threats to listed sites, not infrequently it receives information from NGOs. For instance, in China, NGOs and other private entities have addressed complaints and organized protests in order to denounce the erosion of the authenticity, diversity, and sustainability of cultural heritage.Footnote 57 In particular, in Beijing, NGOs have been active in raising awareness about the impact of the construction of a railway line on the landscape of the Summer Palace, a WHC site since 1998.Footnote 58 Similarly, in India, heritage activists and NGOs vehemently reacted to the decision of the Telangana government to repeal legislation on the protection of buildings of historical significance.Footnote 59 In addition, UNESCO receives information from NGOs about the state of sites located in conflict zones such as Iraq and Syria. One of these is the Association for the Protection of Syrian Archaeology. Founded in 2011, this comprises a network of scientists, journalists, and citizens who document and disseminate information about the destruction and looting of Syria’s heritage.Footnote 60

In the light of this brief survey, it appears that NGOs provide some of the most commonly recognizable forms of advocacy and action in the cultural sector.Footnote 61 Closer inspection, however, reveals some critical flaws in NGOs’ actions. Due to restrictions in space, this paper will refer only to two major drawbacks.

The politicization of the WHC system is the first critical problem.Footnote 62 The processes by which cultural sites are inscribed on the WHC List (or not) can be influenced by political and economic alliances.Footnote 63 In effect, it appears that many sites have been nominated by states only to boost the national or local economy—and not to ensure their conservationFootnote 64 —even if such sites do not have convincing OUV or are not well known in their own country.Footnote 65

The politicization of the WHC decision-making process was evident at the Brasilia meeting of 2010, where some twenty-one new sites were added to the WHC List even though ICOMOS suggested only ten were eligible. The Imperial Citadel of Thang Long in Hanoi (Vietnam) was one of the sites inscribed as a result of such heavy political lobbying.Footnote 66 It is for this reason that The Economist signalled that the WHC Committee “was bending its own rules under pressure from member states”.Footnote 67 Other observers at the Brazilian session have described it as the most political to date because of the combination of nationalistic and commercial forces pushing for further enlargement of the WHC List.Footnote 68 This trend continued at the Paris meeting of 2011, where each ICOMOS recommendation was overturned.Footnote 69 Furthermore, at the Saint Petersburg session of 2013, it appears that the ICOMOS report on the Palestinian nomination of the Church of the Nativity and the Pilgrimage Route became infected by the political agenda of states.Footnote 70

It follows that ICOMOS is powerless with respect to the attacks against its expert status and authority moved by the states that seek either to challenge old colonialisms (by reversing the Western hegemony over the crafting and management of the WHC List), to strengthen new colonialisms and dependencies (as demonstrated by the mutual support showed by four of the five BRICS states—Brazil, Russia, India, China, and South Africa—that served on the WHC Committee until 2011),Footnote 71 or to exploit the global advertising that comes from WHC listing.

The second pitfall relates to the top-down approach currently employed for the selection of the built heritage to be protected. The fact is that decisions on heritage conservation are taken by experts and technocrats working for governmental agencies or cultural heritage NGOs on the basis of the importance of the items at stake for archaeology, prehistory, history, art, or science, or for economic or political reasons.Footnote 72 Therefore, local communities are left out of the designation process.Footnote 73 However, as noted above, this is at variance with Operational Guidelines, which provide for the involvement of local communities in the conservation and management of WHC sites.Footnote 74 This top-down approach entails a major problem, namely the creation of an official vision about cultural heritage sites that overemphasizes their global value to the detriment of local perceptions. In most cases this is due to the fact that civil society organizations are powerless or unwilling to represent and defend the interests of local communities. As a result, the voice of local people is overwhelmed by national and international ones.Footnote 75 In reality, monuments and cultural spaces—irrespective of their inscription on the WHC List or under other national or international schemes—should be protected not only because of their artistic, historical, or scientific attributes, but also because they convey ideas, myths, and associations that are valued by the people who live in the area and have a strong attachment to it. The way people relate to a place is not so much due to its attributes but to the person’s individual and collective perceptions.Footnote 76 Stated differently, it is pointless to pursue the preservation of cultural assets for their own sake and not for the sake of the people for whom they have a meaning.

Public participation can be defined as “a process by which people … can exercise influence over policy formulation, design alternatives, investment choices, management, and monitoring of development interventions in the communities”.Footnote 77 Public participation is an essential part of the decision-making process because: (1) cultural heritage is important at both the national and local level; and (2) the support has also transformed from an elitist upper-middle-class minority to a grassroots majority.Footnote 78 In particular, with respect to the WHC, it has been pointed out that the involvement of the local population in the identification and nomination of cultural heritage sites for inscription in the WHC List not only constitutes a means to attain full appreciation of the knowledge, traditions, and values attached to such sites, but also is the best guarantee to reconcile the recognition of their universal significance with the respect for ownership titles, history, and meanings that connect local communities to such sites.Footnote 79

The question of the participation of local communities—autonomously or through cultural heritage NGOs—in decision-making processes regarding the built environment is a delicate one and the response differs from state to state. In Japan, local and national authorities hold reunions to inform and to obtain the co-operation of the public, NGOs, the industry, and the media about the expected consequences of the nomination of sites to the WHC List.Footnote 80 In Thailand, local communities are encouraged to participate in the safeguarding of the cultural heritage of the capital city (Bangkok) through the implementation of the Master Plan.Footnote 81 By contrast, in Singapore, the laws regulating the built environment allow only for the participation of the persons directly concerned by development works or the designation of an area or building as a national monument. Legislation is silent on the participation of persons or civil society organizations that are not directly affected by such governmental decisions.Footnote 82 Likewise, in China, local communities have very limited rights and powers vis-à-vis state authorities with respect to the process of nomination.Footnote 83 In Hong Kong, the identification and designation of cultural heritage items under national legislation is government initiated and relies on procedures in which little transparency is provided. Correspondingly, there is no official proper and effective consultation process for the public to launch a request for designating a historic building as a monument.Footnote 84 Another example comes from Lijiang. Before the inscription of the city on the WHC List, the WHC advisory mission participated in a day-long “stakeholder meeting” together with representatives from the Chinese authorities responsible for heritage matters, experts from the Shanghai University Planning Institute, and two residents representing the local community. However, it was not clear how these were selected or whether they actually reported back to the wider community.Footnote 85 Moreover, in Lijiang—but the same applies to the WHC cities of Chengdu and Xi’an—the adoption of a top-down approach by governmental authorities has led to the forced relocation of the existing residents for the sake of the conservation of inscribed properties and to accommodate tourism growth. Not only has the relocation led to the destruction of their livelihood and housing, but also to the disruption of the socioeconomic and demographic composition of these traditional communities because relocated people have been replaced by migrants from other parts of China eager to benefit from the “tourismification” of the place.Footnote 86 Similarly, in Indonesia, a number of cultural sites have been inscribed on the WHC List with no knowledge or input from local people. This is the case of the magnificent monuments of Borobudur and Prambanan, where local people were not only excluded from the creation of the archaeological parks, but were also forced to move following expropriation of the landFootnote .87 These latter examples signal how a top-down decision-making process results in a “fortress conservation” whereby heritage sites are firmly anchored in an unalterable and “visitable past” only for the sake of tourists and profit.Footnote 88 An equally complex example comes from Afghanistan in relation to the archaeological site of Mes Aynak. This is a 2,000-year-old Buddhist city consisting of stupas, shrines, monasteries, statues, and frescoes, which is neither on the WHC List nor on Afghanistan’s tentative list. This site is threatened by the opening of a copper mine which is the object of a multi-billion deal between the Afghan government and a Chinese government-owned company.Footnote 89 At the same time, the national government has requested UNESCO to co-ordinate the activities of various NGOs which are engaged in rescuing the country’s Buddhist heritage. By contrast, it appears that Afghanistan’s Islamic heritage has not attracted the attention of cultural activists. As a result, the campaign run by the NGOs involved is disconnected from the interests of Afghan people, who prioritize the country’s Islamic heritage.Footnote 90

The foregoing examination not only reveals that in many Asian countries the question of the participation of local communities in decision-making processes is not taken into account. It also demonstrates that NGOs may fail—or may be unable—to recognize that the input of local actors at the level of heritage decision-making and management is germane, and that the objectives and expectations from both ends of the spectrum (the global and the local) should be negotiated and reconciled in order to promote and enhance heritage conservation and the economic, social, and cultural development of the communities and the countries concerned.Footnote 91

C. Private Business Enterprises

1. UNESCO’s partnership with private business enterprises

Private business enterprises can be defined as profit-oriented entities operating in national or international markets and having economic interests outside the country in which they are based. As a result of economic globalization, the national identity of enterprises is dissolved because their activities such as production and supply involve numerous countries.Footnote 92

UNESCO works with a wide range of business enterprises. To illustrate, in the 2010/2011 biennium UNESCO signed thirty-seven funding agreements concerning sixty-eight individual projects, twenty-five with companies and twelve with foundations. In the same period, eighteen non-financial agreements were signed with various private partners.Footnote 93 Among other things, business enterprises are selected for partnership on the basis of a demonstrated commitment to donate substantial funding, and to engage in Corporate Social Responsibility [CSR] activities.Footnote 94

As is well known, the concept of CSR means that companies recognize that they are called to work beyond the imperative to maximize the financial returns to shareholders in order to address social, cultural, and environmental issues. Correspondingly, while there are companies that regard CSR in the cultural heritage sector with scepticism (seeing it as a costly, unrewarding activity that does not address business objectives), other have committed to behave as good corporate citizens by supporting conservation projects related to heritage sites.Footnote 95 For example, the American Express Company has been for many years the world’s leading supporter of cultural heritage conservation and hence the best-practice example of CSR for cultural heritage. Through various initiatives, it has provided financial assistance to the WMF and governmental agencies for the restoration of monuments, such as the Taj Mahal (India), Van Mieu (Vietnam), and the Preah Khan temple complex at Angkor (Cambodia).Footnote 96

Motivation for CSR in the cultural heritage sector involves a complex mix of reasons, ranging from moral obligations, idealistic reasons, and strategic considerations (to create or enhance reputation, competitive benefits, and profits) to external pressure (such as regulation, community expectations, and pressure from NGOs, the media, the public at large, and affected local communities).Footnote 97 With respect to the latter reason, it appears that many companies have adopted CSR initiatives to support cultural heritage conservation in response to the invitation by UNESCO bodies and NGOs such as WMF and GHF.Footnote 98

More generally, the partnerships proposed by UNESCO are beneficial to business enterprises as these can profit from a strong image transfer by being associated with a reputable international brand and a prestigious UN agency, and by gaining access to UNESCO’s wide and diverse public and private network. As a result, enterprises can strengthen their good corporate citizenship and hence strengthen brand loyalty.Footnote 99

In an effort to streamline and foster CSR initiatives, a number of principles and codes of conduct have been established and subscribed to by various companies. Among these, the Equator PrinciplesFootnote 100 comprise minimum standards for determining, assessing, and managing not only social and environmental risk in projects to be funded by international financial institutions, but also risks relating to cultural heritage protection.

Through its engagement with private enterprises, UNESCO aims to leverage resources, expertise, and competencies to promote its ideals and values, achieving common development goals, strengthening the visibility and impact of its actions, and creating synergies among traditional and new partners. Among UNESCO’s partners, businesses dispose of a considerable potential that can contribute to the achievement of UNESCO’s strategic objectives through, for example, management and operational support as well as by providing access to technology and innovative products and services. UNESCO also enters into partnerships with businesses to increase funding and other resources in a more organized and sustainable manner.Footnote 101 It must be noted, however, that the financing of cultural heritage-related projects by the private sector is a controversial issue in many countries due to concerns about the privatization of heritage conservation and management.Footnote 102

UNESCO offers a range of different entry points for partnerships in the field of culture, which correspond to UNESCO’s priorities to build capacities to protect, promote, and transmit heritage. One of these entry points is the World Heritage Partnerships for Conservation Initiative [PACT], which was launched in 2002 by the WHC Committee to increase the preservation of WHC properties. This aims to raise awareness, mobilize funds, and implement activities. In particular, companies can contribute to this initiative by sharing their know-how and providing training, expertise, and funding for awareness-raising and conservation projects.Footnote 103 UNESCO has developed other initiatives that envisage the involvement of companies as well as NGOs, such as the projects “Development of the historic urban landscape approach as a key tool for the sustainable conservation and management of World Heritage historic urban ensembles”;Footnote 104 “Promote tourism as a tool for conservation and sustainable development at World Heritage sites”;Footnote 105 “Strengthening resilience at World Heritage cultural properties against disasters, conflicts, and climate change”;Footnote 106 and “Protecting cultural heritage in conflict situations—training and tools for the armed forces.”Footnote 107

2. The ambivalent role of private business enterprises

Generally speaking, business companies contribute to enhancing the social welfare of the community that resides in the areas where they carry out their activities. For instance, an increase in the number of factories in operation in a given territory increases the number of jobs and hence the standards of living in the nearby urban areas. However, industrial activities may also have a negative impact in the form of pollution and high-density urbanization.

This ambivalence is also discernible in relation to the liaison between cultural heritage and tourism.Footnote 108 As is well known, the tourism industry can bring about the revitalization of cultural spaces and of the economic activities linked to the influx of tourists—such as museums, hotels, restaurants, and shopping precincts—and of the identity and pride of local and national communities. Therefore, heritage tourism can be a source of long-term, socioeconomic development benefits as a source of tax revenue and generator of foreign exchange, jobs, and business opportunities. Correspondingly, tourism is regarded by governments as an economic development tool for poverty alleviation, the promotion of traditional arts and culture, and the preservation of national artistic treasures.Footnote 109 In this respect, Askew refers to the WHC List as a “tangible mechanism for drawing development aid for governments and tourism for private and/or State enterprises”.Footnote 110

On the other hand, the expansion of tourism without consideration as to whether the local people and infrastructures have the capacity to respond to it comes at a cost. Indeed, the unhindered influx of visitors may impact on the integrity and authenticity of historic structures,Footnote 111 disrupt traditional customs and knowledge,Footnote 112 and alter the socioeconomic and demographic composition of local communities.Footnote 113 In many cases, such a commodification and “Disneyfication” of heritage sites can worsen the visitor experience.

In addition, certain economic activities bring about, ipso facto, the deterioration of cultural heritage. This is the case with the realization of urban projects within or in the proximity of heritage sites.Footnote 114 An example comes from Mecca. Here, ancient buildings and historic sites have been replaced by modern skyscraper apartments and hotels to accommodate the ever-increasing numbers of pilgrims.Footnote 115 Other challenges are posed by the development of large-scale projects—such as highways, dams, or pipelines—or the exploitation of natural resources—such as mining and oil extraction.Footnote 116 The case of Mes Aynak mentioned above testifies to this.Footnote 117

However, it should be pointed out that even the companies involved in the exploitation of natural resources, especially those in the mining and petrochemical sectors, have undertaken to avoid extractive and other deleterious activities in or in the proximity of cultural sites. Although these “no-go pledges” may be required by prospective insurers or lenders, they may also derive from direct initiatives by companies.Footnote 118 An interesting example comes from Italy. Notwithstanding the obligations under the WHC to protect and preserve the Late Baroque Towns of the Val di Noto in Sicily, local authorities granted a foreign investor, Panther Oil, a concession to drill gas within the WHC site. As is well known, the site is in permanent danger of earthquakes. Therefore, drilling is risky because it could cause the deterioration if not the collapse of the baroque churches making up this stunning site. In the face of the drilling concession, which was upheld by a regional court’s ruling, and of the Italian government’s intervention to halt the project, Panther Oil decided to exploit the concession only outside the valley.Footnote 119 Another example relates to the International Council on Mining and Metals [ICMM]. Cognizant of the tension between the economic benefits of mineral and hydrocarbon extraction and a state’s obligations under the WHC, in 2003 the ICMM published a “Position Statement” whereby ICMM company members expressly committed not to “explore or mine in World Heritage Properties”, and that “[a]ll possible steps will be taken to ensure that existing operations in World Heritage properties as well as existing and future operations adjacent to World Heritage properties are not incompatible with the outstanding universal value for which these properties are listed and do not put the integrity of these properties at risk”.Footnote 120 This commitment was reiterated at a congress organized by IUCN in September 2016.Footnote 121

In addition, various instruments require that impact on cultural heritage is assessed as part of a broader environmental impact assessment of the projects carried out by private businesses. For instance, the policy for protecting physical cultural assets has been codified by the World Bank,Footnote 122 ICOMOS,Footnote 123 and the WHC Committee.Footnote 124

III. STATES VERSUS NON-STATE ACTORS

The foregoing discussion emphasizes that, in this increasingly globalized world, NGOs and enterprises have assumed governance roles in the cultural heritage field. It also demonstrates that the built environment is often imbued with values and meanings for local communities, and that in many cases these communities are excluded from decision-making processes concerning the heritage they cherish. In this context, NGOs often play a central role, as they can promote and encourage the active participation of communities. The foregoing analysis also hints at the fact that a number of global trends and threats influence how cultural heritage law and policy intersects with the activities of NGOs and private companies. In an economic climate involving government funding cuts—due in part to the global financial crisis which began in 2008—new sources of revenue and conservation measures are required. Public resources are becoming scarcer but the preservation needs are increasing. Indeed, struggling economies and poor governance are often unable to prevent uncontrolled development within or in the proximity of heritage sites, unsustainable tourism practices, neglect, pollution, and human-induced disasters. For these reasons, international organizations and governmental heritage authorities, as well as NGOs, increasingly turn to the private sector in order to raise funds for the preservation of sites or to conclude partnership agreements.

At this juncture, however, it must be pointed out that, although it is undeniable that the standards set forth in the WHC and in other cultural heritage treaties are being internalized to some extent by the non-state actors under consideration, states remain the primary actors on the international scene. This becomes clearer when considering the WHC system.

The WHC explicitly preserves state sovereignty and property rights over listed sites.Footnote 125 In other words, although the Convention is largely centred on the idea that the cultural and natural heritage of OUV must be preserved in the general interest of humanity, this objective remains conditioned by the recognition of the supreme sovereignty of states with respect to the properties located within their respective territories. As a result, the Contracting States retain the ultimate power to identify and nominate the sites situated within their jurisdiction. This may be a problem not only in the case of internal armed conflict—when there may no longer exist a government capable of expressing the consent in point—but even in peacetime, when the government concerned is not willing to give its consent to the inscription of an item on the WHC List for political or other reasons.Footnote 126 Moreover, the acquisition of WHC status neither implies the direct management of sites by UNESCO or the WHC Committee nor the imposition of a single regulatory framework. There is no indication in the WHC that the Contracting States are under a responsibility to share the property located in their territory with other Contracting States. Given that there is no exclusion of sovereignty, the WHC only entails that protection and conservation are carried out by the territorial state—as a guardian or custodian—in the interests of the international community as a whole. State Parties are also free to select the means of implementing their obligations resulting from the WHC. This is due to the fact that the WHC does not contain legally binding obligations and does not set universally agreed standards of conservation against which to monitor compliance. Therefore, the level of appropriateness of state conduct remains undefined. Furthermore, only the Contracting States, as the ultimate decision-makers within their own jurisdiction, have the power to submit periodic reports to the WHC Committee and to respond to the “state of conservation reports” elaborated by the WHC Centre. Finally, UNESCO, the WHC Committee, and their advisory bodies, have limited powers vis-à-vis states. This means that they risk being accused of interference in the internal affairs of sovereign Contracting States if they go too far with their attempts to persuade them to comply with their obligations and responsibilities under the WHC. The Committee has only the power to admonish State Parties and to cast bad publicity on the companies involved. In effect, in a number of cases the Committee has reprimanded certain states for their granting of concessions or exploration licences for energy and mining operations that encroached on WHC sites and urged these states to cancel such permits and/or to refrain from issuing such permits in the future. Such censure can in turn cause cuts in funding, both from the WHC Fund and other sources. Moreover, the WHC Committee can also appeal companies whose actions threaten listed sites.Footnote 127

Outside the WHC context, the primacy of the state is discernible by the fact that non-state actors’ capacity to act in defence of cultural heritage through lobbying activities, protests, or complaints can be curtailed by state authorities. For instance, states retain wide discretion in their dealings with local communities as to whether and when to confer political significance to their petitions. The result is that, as demonstrated, in many cases local communities are excluded from decision-making processes concerning the heritage sites in which they live and to which they have a strong attachment.Footnote 128 Another example relates to the participation of NGOs in the work of international organizations, which remains conditional upon states’ acceptance of their role and the international organizations’ [IOs’] accreditation.Footnote 129 Correspondingly, non-state actors are not eligible to enter into cultural heritage treaties. Like any multilateral treaty, these legal instruments are made by states for states. From a legal perspective, as non-state actors do not enjoy full international legal personality, in the absence of special arrangements neither concerned local communities nor NGOs can assume rights and obligations under international law. This means that states remain the exclusive international law-makers. Non-state actors may only function as lobbyists, consultants, or otherwise catalyze the formation of binding international law.Footnote 130

In the light of these considerations, it appears that too often criticism about the effectiveness of cultural heritage protection regimes in general and the functioning of the WHC system in particular is directed at UNESCO and the WHC Committee without taking into account their intergovernmental character. Rather, criticism would be better placed at the feet of Contracting States. Indeed, states are responsible for the political lobbying and diplomatic horse-trading—and the corruption—that invariably lead to the election of the WHC Committee or to the inscription or deletion of cultural sites from the WHC List.Footnote 131 As a result, the actual implementation of the WHC meets less the noble idea of a general interest of humanity than national priorities, given that states often use the WHC programme to serve their own nationalistic and commercial needs,Footnote 132 even to the extent of provoking the deterioration of the built heritage, the loss of intangible heritage, and the alteration of the spirit of the place. In this respect, Francioni rightly pointed out that “the concept of cultural heritage … requires a radical shift in perspective from the national interests of the State to which the property belongs, to the general interest of humanity in identifying and preserving a cultural or natural site so exceptional as to be of universal value”.Footnote 133

The case of the Temple of Preah Vihear is telling. One may argue that the inscription of the site on the WHC List endangered rather than strengthened its conservation, given that it was followed by serious armed incidents that caused fatalities, injuries, and material damage to the Temple. Thailand and Cambodia were aware of the outstanding historical, artistic, and spiritual value of the Temple of Preah Vihear, yet they did not hesitate to subject its conservation to gloomy reasons of domestic politics. As regards this dispute, Francioni rightly argued that “[b]ringing the World Heritage Convention in the battlefield of territorial claims reveals a misconception of the Convention, because this Convention is not an instrument for the advancement of national prestige or territorial claims but a tool for promoting cooperation and safeguarding heritage of exceptional value for humanity”.Footnote 134 Other examples demonstrate how collusion between governments and private firms has had detrimental results for heritage conservation. For instance, while development projects and mineral extraction may be economically rewarding to states, they may run counter to a state’s obligations under the WHC or other protective schemes. As part of the same trend, many projects undertaken by development-minded governments infringe on heritage sites despite the requirements for an environmental impact assessment imposed by national and international law.

IV. WHICH WAY FORWARD?

Against this background, it becomes clear that a normative solution aiming to change this gloomy picture by setting out more rigorous obligations for states or enhancing the powers and responsibilities of non-state actors seems impossible to achieve. Neither the adoption of a new multilateral agreement nor the amendment of existing treaties constitute feasible options for the time being, as these solutions require a radical change in the mindset of states.

It can, however, be submitted that a heightened implementation of the WHC and of the other relevant cultural heritage instruments may result from a combination of top-down and bottom-up approaches.

On the one hand, UNESCO and the other international organizations concerned should increase their efforts to engage not only states, but also NGOs and private enterprises, to respect existing cultural heritage rules in order to offset culture-insensitive policies and practices.Footnote 135 On the other hand, the non-state actors that have been examined in the preceding sections should continue to develop initiatives in support of cultural heritage conservation projects. This means, for instance, that NGOs should continue to put pressure on the WHC Committee, the WHC Centre, and the States Parties to the WHC and other relevant international treaties to explore ways to enhance and enforce existing rules and standards. This also means that NGOs should not give up the task of promoting and encouraging the active participation of local populations in the selection and management of the cultural sites to be protected. Ideally, this combination would allow UNESCO to address the growing misfit between the overarching objectives set out in its Constitution and in the WHC, on the one hand, and the politicization of the WHC programme, on the other.

Arguably, the development of this dual-tier approach may bring about two intrinsically interconnected results in the cultural heritage field and beyond: the empowerment of local communities, and the correct understanding of the principle of sustainable development.

As to the first limb, the involvement of local communities in the protection, management, and decision-making processes is key to ensuring the authenticity and proper conservation of heritage places. Local communities should be allowed to participate in discussions as to whether and how to reconcile the exigencies of modernity and development with the conservation of the built environment where they live and thrive. It follows, as demonstrated by the cases discussed in the preceding sections, that rules and standards on cultural heritage conservation should not be imposed on local communities without taking into consideration the relationship between such communities and the heritage sites concerned.Footnote 136

The development of community-based forms of governance could lead to the fulfilment of some of the objectives set forth in a number of international instruments relating to the built heritage. Starting with the WHC, it provides that each State Party is required not only to take effective and active measures for the protection, conservation, and presentation of cultural heritage sites, but also to give the sites “a function in the life of the community”.Footnote 137 Moreover, Article 27(1) of the WHC affirms that the “States Parties shall endeavour … to strengthen appreciation and respect [for the national heritage] by their peoples”. More specifically, the Operational Guidelines emphasize the importance of community participation, and that a partnership approach with community members is recommended with regards to nomination, management, and monitoring.Footnote 138 Correspondingly, some of the criteria for inscription on the WHC List refer to the “human dimension” of cultural heritage, as it is required that nominated properties shall “(ii) exhibit an important interchange of human values”, or “(vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs”.Footnote 139 Furthermore, the UNESCO Recommendation on the Historic Urban Landscape calls on civil society organizations to participate in the definition and implementation of policies, tools, and best practice in order to enhance the conservation of the urban heritage.Footnote 140 Still within UNESCO, the adoption of the “Strategic Action Plan for the Implementation of the World Heritage Convention 2012–2022”Footnote 141 has been the occasion to affirm that enhancing “the role of communities in the implementation of the WHC” should be one of the essential long-term objectives of the WHC Committee, and that “[h]eritage protection and conservation” is to be achieved through “connecting conservation to communities”.Footnote 142

The “Nara Document on Authenticity” of 1994Footnote 143 and the “Document Nara+20 on Heritage Practices, Cultural Values, and the Concept of Authenticity” of 2014 go in the same direction: the former emphasizes that “[r]esponsibility for cultural heritage and the management of it belongs, in the first place, to the cultural community that has generated it, and subsequently to that which cares for it”; while the latter underlines that national authorities have the responsibility to involve all stakeholders and communities in the processes aimed at establishing or recognizing the significance, value, authenticity, treatment, and use of heritage resources. Similarly, the 1987 ICOMOS Charter for the Conservation of Historic Towns and Urban Areas states that the “participation and the involvement of the residents are essential for the success of the conservation programme and should be encouraged. The conservation of historic towns and urban areas concerns their residents first of all.”Footnote 144

The 2005 Framework Convention on the Value of Cultural Heritage for Society of the Council of EuropeFootnote 145 is also relevant to the discussion on the empowerment of local communities. This treaty emphasizes the “need to involve everyone in society in the ongoing process of defining and managing cultural heritage”,Footnote 146 and calls on the Contracting States to “recognize individual and collective responsibility towards cultural heritage”,Footnote 147 and to “develop the legal, financial and professional frameworks which make possible joint action by public authorities, … investors, businesses, non-governmental organizations and civil society”.Footnote 148 More importantly, it introduces the notion of “heritage community”. This is defined as the “people who value specific aspects of cultural heritage which they wish … to sustain and transmit to future generations”.Footnote 149

The second limb of the approach under consideration relates to sustainable development. As is well known, this concept was defined for the first time by the World Commission on Environment and Development as the “[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs”.Footnote 150

Cultural heritage has long been absent from the mainstream sustainable development debate, though there is widespread agreement that activities for the conservation and management of cultural heritage may foster the sustainable human and economic development of contemporary societies.Footnote 151 First, sustainable development and cultural heritage management and conservation are linked in the sense that sustainable growth can lead to the preservation of the tangible heritage.Footnote 152 The protection of exceptional heritage properties cherished by people can be considered as an intrinsic contribution to human wellbeing. Moreover, very often cultural heritage is also an important asset for economic development and poverty alleviation, by attracting investments and ensuring locally based, stable, and decent jobs. A well-maintained heritage is also very important in addressing risks related to natural and human-made disasters. Experience has shown how the degradation of natural resources, neglected urban sprawl, and poorly engineered constructions increase the vulnerability of communities to disaster risks. Conversely, a well-conserved natural and historic environment considerably reduces underlying disaster risk factors. Finally, at times of crisis, access to and care for their heritage may help people to recover a sense of continuity, dignity, and empowerment. In conflict and post-conflict situations the acknowledgment and conservation of heritage, based on shared values and interests, may foster mutual recognition, tolerance, and respect among different communities.Footnote 153

The notion of sustainability, and hence the recognition of the potential of cultural heritage to provide social benefits, contributes to economic development, and fosters peace and security entered the WHC system only as a result of the revision of the Operational Guidelines in 1994, 2005, and 2011.Footnote 154 Today, the Guidelines are filled with references to this concept and its relationship to cultural heritage. For instance, the introductory part the Operational Guidelines state that “[t]he protection and conservation of the natural and cultural heritage are a significant contribution to sustainable development”,Footnote 155 while in the main text they recognize that WHC “properties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable and which may contribute to the quality of life of communities concerned”,Footnote 156 and that “[s]ustainable development principles should be integrated into the management system”.Footnote 157 In addition, the text of the most recent UNESCO instruments contain references to sustainable development.Footnote 158 Among these, the 2011 UNESCO Recommendation on the Historic Urban Landscape aims at integrating urban heritage conservation strategies within the goals of sustainable development and of the preservation of “the quality of the human environment … by considering the interrelationships of their physical forms, their spatial organization and connection, their natural features and settings, and their social, cultural and economic values”.Footnote 159

The role of culture and heritage as drivers and enablers of sustainable development has also been promoted by the UN General Assembly in Resolutions No. 65/166 of 20 December 2010 and No. 66/208 of 22 December 2011. These emphasize that culture “is an essential component of human development, represents a source of identity, innovation and creativity for the individual and the community …” and that “culture is … an important contributor to the sustainable development of local communities, peoples and nations, empowering them to play an active and unique role in development initiatives”.Footnote 160 Moreover, the Outcome Document “The Future We Want” of the UN’s Rio+20 Conference demonstrates that cultural heritage plays an essential role in fostering sustainable development.Footnote 161 The Outcome Document recognizes that “many people … depend directly on ecosystems for their livelihoods, their economic, social and physical well-being, and their cultural heritage”,Footnote 162 that there is a need for “holistic and integrated approaches to sustainable development”,Footnote 163 and that “all cultures and civilizations can contribute to sustainable development”.Footnote 164 It also affirms that “green economy policies in the context of sustainable development … should … [e]nhance the welfare of … local and traditional communities …, recognizing and supporting their identity, culture and interests, and avoid endangering their cultural heritage, practices and traditional knowledge …”.Footnote 165 Interestingly, regarding sustainable cities and human settlements, the Outcome Document recognizes “the need for conservation, as appropriate, of the natural and cultural heritage of human settlements, the revitalization of historic districts and the rehabilitation of city centres”.Footnote 166 Finally, it must be recalled that, as a result of UNESCO’s active involvement in the UN Sustainable Development Summit of September 2015, now—and for the first time—the international development agenda refers to culture within the framework of the Sustainable Development Goals [SDGs] of the 2030 Agenda for Sustainable Development.Footnote 167

It follows from this brief survey that the objectives of (cultural heritage) conservation and (economic, social, and cultural) development are not irreconcilable. Moreover, it appears that the relationship between development and conservation can turn to be productive provided that the interests of local communities are taken into consideration and are not trumped by the economic interests of governments and business enterprises. This is the case, for instance, if planning and building regulations allow for the participation of local communities and the incorporation of their conceptions and interests as to conservation, development, and management. If cultural heritage is to be part of the economic future of communities as a means to attract tourists and investment, it needs to be preserved as part of their future identity.Footnote 168 It follows that sustainable development requirements should not be imposed on local communities in ways that hamper their economic, social, and cultural development.Footnote 169

In reality, it appears that states and international organizations have so far largely failed to realize community-based forms of governance.

One reason is that the concept of sustainable development is generally construed by states and business enterprises as promoting the economic dimension of development. In other words, development-minded governments and the development sector have adopted the language of sustainability to build initiatives that sustain economic growth but that often have a detrimental impact on the cultural environment and on the communities that live and thrive therein. It is for this reason that, on the one hand, governments accept binding international standards with reluctance and, on the other, pro-development lobbies criticize the encroachment of conservation laws on planning decisions.Footnote 170 Such an interpretation, however, is at variance with the true meaning of sustainable development. Indeed, originally the home of the concept of sustainable development was ecology and, under the guise of ecological sustainability, it was understood essentially as the duty of human beings to protect the integrity of the Earth’s ecological systems and to avoid the depletion of finite resources. Then, as hinted above, the concept of sustainable development migrated from ecology into a wide variety of other contexts and, in addition, its focus shifted from conservation to utilization and wealth creation, irrespective of the consequences for the natural and cultural environments.Footnote 171

Another reason is that, while most models of sustainable development nominally include stakeholder collaboration, no means of verifying and ensuring the meaningful participation of communities have been established.Footnote 172 In this connection, it must be underlined that, despite the advances described above, contributing to sustainable development is not an explicit policy in the WHC framework. This becomes clear when considering paragraph 119 of the Operational Guidelines:

World Heritage properties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable and which may contribute to the quality of life of communities concerned. The State Party and its partners must ensure that such sustainable use or any other change does not impact adversely on the Outstanding Universal Value of the property. For some properties, human use would not be appropriate. Legislations, policies and strategies affecting World Heritage properties should ensure the protection of the Outstanding Universal Value, support the wider conservation of natural and cultural heritage, and promote and encourage the active participation of the communities and stakeholders concerned with the property as necessary conditions to its sustainable protection, conservation, management and presentation.Footnote 173

One way of reading this paragraph is to say that the preservation of OUV should prevail over any use of WHC properties. According to this conservation paradigm, heritage needs to be protected, frozen at a certain point in time, for the enjoyment of future generations—however sustainable it might be—even if at the cost of not allowing present generations to enjoy it.Footnote 174

V. CONCLUSIONS

This paper has looked at the role played by NGOs and multinational business enterprises in the implementation of the WHC on the Asian continent. A combination of top-down and bottom-up approaches involving states, NGOs, and private business enterprises was suggested in order to reach a twofold result: to emphasize that the application of the principle of sustainable development requires the empowerment of local communities; and to establish a relation of mutual supportiveness between the various stakeholders involved directly or indirectly in the everyday life of heritage sites, for example governments, site management authorities, supranational agencies, tourism operators and other business enterprises, NGOs, and local communities. If what is valued by local communities is taken on board by decision-makers, economic activities can contribute to sustaining the conservation of such places and the cultural values and beliefs of the community for whom heritage is preserved.

Footnotes

*

Senior Researcher (Art-Law Centre, Faculty of Law, University of Geneva, Switzerland). PhD (European University Institute, Italy); LLM (University College London, UK); JD (University of Siena, Italy). An earlier version of this paper was presented at the conference “Cultural Heritage Law and the Built Environment”, National University of Singapore, 17 March 2016. Thanks are due to the conference organizers and to the anonymous reviewers. The usual disclaimer applies.

1. Irina BOKOVA, “Culture in the Cross Hairs” The New York Times, 2 December 2012, online: The New York Times <http://www.nytimes.com/2012/12/03/opinion/global/cultural-sites-must-be-protected.html>.

2. ALSTON, Philip, “The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Philip ALSTON, ed., Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005), 3 at 15.

3. Keane describes the entities that concentrate on the development of heritage conservation projects as “a dynamic non-governmental system of interconnected … actors who organise themselves across borders, with the deliberate aim of drawing the world together in new ways”. KEANE, John, Global Civil Society? (Cambridge: Cambridge University Press, 2003) at 8.

4. Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 U.N.T.S. 151 (entered into force 17 December 1975) [WHC].

5. As of September 2017, the WHC has been ratified by 193 states.

6. See e.g. GALLA, Amareswar, ed., World Heritage: Benefits Beyond Borders (Cambridge: Cambridge University Press, 2012).

7. WINTER, Tim and DALY, Patrick, “Heritage in Asia: Converging Forces, Conflicting Values” in Patrick DALY and Tim WINTER, eds., Routledge Handbook of Heritage in Asia (Abingdon: Routledge, 2012), 4–35 at 6–7, 14–15.

8. Although there is an extensive international law scholarship on non-state actors (see e.g. NOORTMANN, Math, REINISCH, August, and RYNGAERT, Cedric, eds., Non-State Actors in International Law (Oxford: Hart Publishing, 2015); GAL-OR, Noemi, RYNGAERT, Cedric, and NOORTMANN, Math, eds., Responsibilities of the Non-State Actor in Armed Conflict and the Market Place: Theoretical Considerations and Empirical Findings (Leiden/Boston: Brill, 2015); D’ASPREMONT, Jean, NOLLKAEMPER, André, PLAKOKEFALOS, Ilias, and RYNGAERT, Cedric, “Sharing Responsibility Between Non-State Actors and States in International Law: Introduction” (2015) 62 Netherlands International Law Review 49 ; RYNGAERT, Cedric and NOORTMANN, Math, eds., Human Security and International Law: The Challenge of Non-State Actors (Antwerp: Intersentia, 2014); and ROBERTS, Anthea and SIVAKUMARAN, Sandesh, “Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law” (2012) 37 Yale Journal of International Law 107), the role of non-state actors in the field of international cultural heritage law has remained underresearched given that, to the knowledge of the present author, only two works have been published: CHECHI, Alessandro, “Non-State Actors and Cultural Heritage: Friends or Foes?” (2015) 19 Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid 457 ; and NAFZIGER, James, “The World Heritage Convention and Non-State Actors” in Lyndel V. PROTT et al., eds., Realizing Cultural Heritage Law: Festschrift for Patrick Joseph O’Keefe (Builth Wells, Pentre Moel: Institute of Art and Law, 2013), 73 .

However, the former work focuses on the enforcement of all UNESCO treaties on the protection of tangible cultural heritage from the perspective of non-state actors (hence it does not focus on the WHC), whereas the latter offers a brief case-based review of the (positive and negative) effects that non-state actors’ activities may have on the properties protected under the WHC. The present paper differs from the latter because it: (1) focuses on the Asian continent; (2) examines the goals of two types of non-state actors and their relationship with UNESCO and the WHC; and (3) widens the discussion to investigate the relationship between states and non-state actors, the role of local communities, and the issue of sustainable development.

9. WHC, supra note 4, art. 4. A property having OUV is eligible for inscription on the WHC List if it meets one or more of the criteria set out in the Operational Guidelines for the Implementation of the World Heritage Convention, Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, WHC.15/01 (8 July 2015) [Operational Guidelines] at para. 77.

10. WHC, supra note 4, art. 1. The WHC also covers natural heritage as defined in art. 2.

11. The Committee is the body responsible for the implementation of the WHC and consists of representatives from twenty-one of the Contracting States, who are elected for terms of up to six years by the UNESCO General Assembly.

12. Established in 1992, the WHC Centre is the secretariat of the Committee.

13. As of September 2017, the WHC List contains 1,073 properties (832 cultural, 206 natural, and 37 mixed properties). 175 cultural properties are from the Asia-Pacific region, which does not correspond to the whole Asian continent given that the Arab States of the Middle East, Russia, and former USSR republics belong to other regions.

14. As of September 2017, the List of World Heritage in Danger contains fifty-four properties.

15. WHC, supra note 4, art. 12. Art. 12 makes it clear that the fact that a property has not been included in either of the two lists “shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists”. On the practical implications of this Article, see FORREST, Craig, International Law and the Protection of Cultural Heritage (London/New York: Routledge, 2010) at 261–2; and LENZERINI, Federico, “Article 12: Protection of Properties Not Inscribed on the World Heritage List” in Francesco FRANCIONI and Federico LENZERINI, eds., The 1972 World Heritage Convention: A Commentary (Oxford: Oxford University Press, 2008), at 201–18.

16. A site is removed from the List only once the site’s OUV has been or will be altogether destroyed. As of September 2017, the WHC Committee has delisted two sites only: the Dresden Elbe Valley in 2009 (Dresden Elbe Valley (Germany) (C 1156), [2009] 33 COM 7A.26), and the Arabian Oryx Sanctuary in 2007 (State of conservation of World Heritage properties—Arabian Oryx Sanctuary, [2007] 31 COM 7B.11). On these issues see Gionata P. BUZZINI and Luigi CONDORELLI, “Article 11: List of World Heritage Sites in Danger and Deletion of a Property from the World Heritage List” in Francioni and Lenzerini, eds., ibid., at 175–99.

17. WHC, supra note 4, arts. 8–14.

18. Operational Guidelines, supra note 9.

19. WHC, supra note 4, arts. 4–6.

20. The Committee can decide on the use of the resources of the World Heritage Fund. Intended as a complement to national assistance towards the conservation and management of sites, the Fund contributes to emergency aid, training, management expertise, technical missions, and equipment, provided that the state concerned has complied with its duty of reporting. See WHC, supra note 4, arts. 15–18.

21. The International Union for Conservation of Nature and Natural Resources [IUCN] is the advisory body for natural properties.

22. On this dispute, see CHECHI, Alessandro, “The 2013 Judgment of the ICJ in the Temple of Preah Vihear Case and the Protection of World Heritage Sites in Wartime” (2015) 6 Asian Journal of International Law 1–26 .

23. Cited in STARR, Fiona, Corporate Responsibility for Cultural Heritage: Conservation, Sustainable Development, and Corporate Reputation (New York: Routledge, 2012) at 20.

24. LOGAN, William , “States, Governance and the Politics of Culture” in Daly and Winter, eds., supra note 7, 113–27 at 120–1.

25. STRASSER, Peter, “Putting Reform into Action: Thirty Years of the World Heritage Convention. How to Reform a Convention Without Changing Its Regulations” (2002) 11 International Journal of Cultural Property 215–266 .

26. FRANCIONI, Francesco and LENZERINI, Federico , “The Future of the World Heritage Convention: Problems and Prospects” in Francioni and Lenzerini, eds., supra note 15, 401–10 at 401–2.

27. Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas, Records of the 19th Session of the General Conference (Vol. 1), UNESCO, Nairobi (1976) at Annex I.

28. The Xi’an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas, 21 October 2005, online: ICOMOS <https://www.icomos.org/images/DOCUMENTS/Charters/xian-declaration.pdf> [ICOMOS Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas].

29. Vienna Memorandum on “World Heritage and Contemporary Architecture—Managing the Historic Urban Landscape”, UNESCO, WHC-05/15.GA/INF.7 (2005).

30. ICOMOS Declaration on Heritage and Metropolis in Asia and the Pacific, 1 June 2007, online: ICOMOS <https://www.icomos.org/newsicomos/news1991/2008-06-1-EN.pdf> at 5.

31. Recommendation on the Historic Urban Landscape, Records of the 36th Session of the General Conference (Vol. 1), UNESCO, Paris (2011) at 50.

32. Operational Guidelines, supra note 9, para. 12.

33. ICOMOS, supra note 30, Recommendation No. 5.

34. Constitution of the United Nations Educational, Scientific and Cultural Organization, 16 November 1945, 4 U.N.T.S. 275 (entered into force 4 November 1946) [UNESCO Constitution]. Art. XI(4) states that the “Organization may make suitable arrangements for consultation and co-operation with non-governmental international organizations concerned with matters within its competence, and may invite them to undertake specific tasks. Such co-operation may also include appropriate participation by representatives of such organizations on advisory committees set up by the General Conference.”

35. Policy Framework for Strategic Partnerships: A Comprehensive Partnership Strategy, 6 September 2013, UNESCO Doc. 192 EX/5.INF, online: UNESCO <http://unesdoc.unesco.org/images/0022/002229/222986e.pdf>.

36. Ibid., at 9. This category comprises all “types of business enterprises, including small- and medium-size firms, national, international and multinational corporations, philanthropic and corporate foundations, financial institutions and private individuals”.

37. Ibid., at 6–7.

38. Ibid., at 26–7.

39. Ibid., at 3–4.

40. Ibid., at 3, 5–6.

41. For the list of NGOs enjoying official partnerships with UNESCO, see UNESCO, “Non-Governmental Organizations” (August 2017), online: <http://en.unesco.org/partnerships/non-governmental-organizations>.

42. Adopted by the General Conference of UNESCO at its 36th session in 2011 (36 C/Res. 108).

43. UNESCO, supra note 35 at 30.

44. Ibid.

45. See Operational Guidelines, supra note 9, paras. 30–1, 34–5, 143–51. WHC, supra note 4, arts. 13(7), 14(2).

46. ICOM, “ICOM International Observatory on Illicit Traffic in Cultural Goods” (October 2017), online: ICOM <http://obs-traffic.museum/>.

47. ICOM, “Code of Ethics” (October 2017), online: ICOM <http://icom.museum/professional-standards/code-of-ethics/>.

48. ICOM, “Red Lists Database” (October 2017), online: ICOM <http://icom.museum/resources/red-lists-database/>.

49. Global Heritage Fund, “Global Heritage Fund” (October 2017), online: Global Heritage Fund <http://globalheritagefund.org/>.

50. World Monuments Fund, “World Monuments Fund” (October 2017), online: World Monuments Fund <https://www.wmf.org/>.

51. Aga Khan Trust for Culture, “About the Aga Khan Trust for Culture” (October 2017), online: Aga Khan Trust for Culture <http://www.akdn.org/our-agencies/aga-khan-trust-culture>.

52. Turquoise Mountain, “Turquoise Mountain” (October 2017), online: Turquoise Mountain <http://turquoisemountain.org/>.

53. Alliance for the Restoration of Cultural Heritage, “Alliance for the Restoration of Cultural Heritage” (October 2017), online: Alliance for the Restoration of Cultural Heritage <http://www.archinternational.org/>.

54. UNESCO, “UNESCO, France and the Emirates Launch an International Alliance for the Protection of Heritage”, (20 March 2017), online: UNESCO <http://www.unesco.org/new/en/media-services/single-view/news/unesco_france_and_the_emirates_launch_an_international_alli/>.

55. Winter and daly, supra note 7 at 29–30.

56. See Operational Guidelines, supra note 9, paras. 39–40.

57. EVANS, Harriet and ROWLANDS, Michael, “Reconceptualizing Heritage in China: Museums, Development and the Shifting Dynamics of Power” in Paul BASU and Wayne MODEST, eds., Museums, Heritage and International Development (New York/London: Routledge, 2015), 272–294 at 279, 290.

58. “China”, questionnaire, AHRC project World Heritage Sites for the Nation: The Preservation of World Heritage Sites in a National Context (2013–2015), on file with the author.

59. “Threat to Hyderabad Heritage as Govt Scraps Regulation 13” The Times of India (9 December 2015).

60. CHEIKHMOUS, Ali, “Syrian Heritage under Threat” (2013) 1 Journal of Eastern Mediterranean Archaeology & Heritage Studies 351–366 at 363.

61. Winter and Daly, supra note 7 at 29.

62. See UNESCO, “The World Heritage Convention: Thinking Ahead” (21 January 2015), online: UNESCO <http://whc.unesco.org/en/events/1233/> at 4.

63. BERTACCHINI, Enrico, LIUZZA, Claudia, MESKELL, Lynn, and SACCONE, Donatella, “The Politicization of UNESCO World Heritage Decision Making” (2016) Public Choice 1–35 .

64. Ibid., at 3–4.

65. Logan, supra note 24 at 116, 120–1, 123.

66. KOZYMKA, Irena, The Diplomacy of Culture: The Role of UNESCO in Sustaining Cultural Diversity (New York: Palgrave Macmillan, 2014) at 119.

67. “UNESCO’s World Heritage Sites: A Danger List in Danger”, The Economist (26 August 2010), online: The Economist <http://www.economist.com/node/16891951>.

68. It appears that the Canadian delegation of observers walked out in a mix of despair and disgust. Logan, supra note 24 at 124.

69. MESKELL, Lynn, “The Rush to Inscribe: Reflections on the 35th Session of the World Heritage Committee, UNESCO Paris, 2011” (2012) 37 Journal of Field Archaeology at 145.

70. ICOMOS recommended that Palestine should resubmit the nomination in accordance with normal procedures as the conditions for the inscription of the site on an emergency basis were not satisfied. Allegedly, one of the ICOMOS experts informed the Palestinian Ambassador to UNESCO, Elias Sanbar, that the report had been modified following political pressure. Elias SANBAR, “L’Eglise de la Nativité au patrimoine mondial: portée et enjeux”, Conférence d’ouverture du cycle « Le patrimoine culturel de l’humanité: un outil pour la paix » (4 March 2014), online: Université de Genève <http://www.art-law.org/archives/cyclepatrimoine.html>.

71. BEVAN, Robert , “World Heritage at 40: Success or Mess?” (2012) The Art Newspaper, No. 240 at 60ff.

72. Since the early nineteenth century, governments have used archaeologists, cultural resource managers, and conservators to select, interpret, and memorialize objects, places, histories, and myths not only to be preserved and handed on to future generations, but also to support or legitimize claims to self-determination and independence, and to create a cohesive national identity. HARRISON, Rodney, Heritage: Critical Approaches (London/New York: Routledge, 2013) at 141–3; and BLAKE, Janet, Exploring Cultural Rights and Cultural Diversity (Pentre Moel: Institute of Art and Law, 2014) at 82–7.

73. MILLAR, Sue, “Stakeholders and Community Participation” in Anna LEASK and Alan FYALL, eds., Managing World Heritage Sites (Amsterdam: Butterworth, 2006), 37–54 at 38.

74. Operational Guidelines, supra note 9, paras. 12, 39-40, 64, 119, 123; annex 3, para. 12; and annex 8.

75. Yixiao, XIANG and WALL, Geoffrey, “Implications of World Heritage Designation for Local Residents: A Case Study from Taishan and Taiqian, China” in Laurent BOURDEAU and Maria GRAVARI-BARBAS, eds., World Heritage, Tourism and Identity: Inscription and Co-production (Farnham: Ashgate, 2015), 51–68 at 54.

76. SALAZAR, Noel B., “The Local-to-Global Dynamics of World Heritage Interpretation”, in Bourdeau and Gravari-Barbas, ibid., 121–130 at 122–3.

77. See BHATNAGAR, Bhuvan and WILLIAMS, Aubrey C. , eds., “Participatory Development and the World Bank: Potential Directions for Change” (1992) World Bank Discussion Paper No. 183 at 2.

78. YUNG, Esther and CHAN, Edwin H.W., “Problem Issues of Public Participation in Built-Heritage Conservation: Two Controversial Cases in Hong Kong” (2011) 35 Habitat International 457–466 at 458.

79. Francioni and Lenzerini, supra note 26 at 402.

80. See “Japan”, questionnaire, AHRC project World Heritage Sites for the Nation: The Preservation of World Heritage Sites in a National Context (2013–2015), on file with the author.

81. SIRISRISAK, Tiamsoon, “Conservation of Bangkok Old Town” (2009) 33 Habitat International 405–411 .

82. Jack Tsen-Ta, LEE, “We Built This City: Public Participation in Land Use Decisions in Singapore” (2016) 10 Asian Journal of Comparative Law 1–22 .

83. Supra note 58.

84. Yung and Chan, supra note 78 at 459.

85. Logan, supra note 24 at 122.

86. Evans and Rowlands, supra note 57 at 278, 281.

87. WALL, Geoffrey and BLACK, Heather, “Global Heritage and Local Problems: Some Examples from Indonesia” in David HARRISON and Michael HITCHCOCK, eds., The Politics of World Heritage (Cleveland/Buffalo/Boston: Channel View Publications, 2005), at 156–9.

88. BUSHELL, R. and STAIFF, Russell , “Rethinking Relationships: World Heritage, Communities and Tourism” in Daly and Winter, supra note 7, 247–65 at 260.

89. DANIEL, Frank Jack and HAROONI, Mirwais , “Chinese Demands, Rebels and Buddhist Ruins Stall Afghan Copper Dream” Reuters (11 April 2015).

90. WYNDHAM, Constance , “Reconstructing Afghan Identity: Nation-Building, International Relations and the Safeguarding of Afghanistan’s Buddhist Heritage” in Basu and Modest, supra note 57, 122–42 at 139.

91. In this sense, see also LIXINSKI, Lucas, “Sustainable Development in International Heritage Law: Embracing a Backwards Look for the Sake of Forwardness?” (2015) Australian Yearbook of International Law 65–86 .

92. Starr, supra note 23 at 9.

93. UNESCO, supra note 35 at 13.

94. Ibid., at 12.

95. Starr, supra note 23 at 10, 15.

96. American Express, “Corporate Responsibility, Historic Preservation Initiatives”, online: American Express <http://about.americanexpress.com/csr/pip.aspx>; Starr, supra note 23 at 62, 81.

97. Starr, supra note 23 at 25, 27–8, 33–6.

98. For a catalogue of examples, see ibid., at 61–71.

99. UNESCO, “Private Sector” (October 2017), online: UNESCO <https://en.unesco.org/themes/private-sector>.

100. Equator Principles, “The Equator Principles (October 2017), online: Equator Principles <http://www.equator-principles.com/>.

101. Starr, supra note 23 at 9–10.

102. Ibid., at 16, 43, 56.

103. UNESCO, “Partnerships” (October 2017), online: UNESCO <http://whc.unesco.org/en/partnerships/>.

104. UNESCO, “Building Capacities to Protect, Promote and Transmit Heritage” (October 2017), online: UNESCO <https://en.unesco.org/partnerships/partnering/building-capacities-protect-promote-and-transmit-heritage>.

105. Ibid.

106. UNESCO, “Protecting Heritage at Risk” (October 2017), online: UNESCO <https://en.unesco.org/partnerships/partnering/protecting-heritage-risk>.

107. Ibid.

108. See TOURTELLOT, Jonathan B., “World Heritage’s Biggest Threat and Benefactor: Tourism” (2007) World Heritage Review 54–60 .

109. On the benefits from tourism, see e.g. Amareswar GALLA, “World Heritage in Poverty Alleviation. Hoi An Ancient Town, Viet Nam” in Galla, supra note 6 at 107–20.

110. ASKEW, Marc, “The Magic List of Global Status: UNESCO, World Heritage and the Agendas of States” in Sophia LABADI and Coline LONG, eds., Heritage and Globalization (London: Routledge, 2010), 19–44 at 40.

111. The Final Report on the Results of the Second Cycle of the Periodic Reporting Exercise for Asia and the Pacific, World Heritage Committee, UNESCO Doc. WHC-12/36.COM/10A (1 June 2012) at 55 lists tourism and transportation infrastructure among the human factors affecting WHC properties. Many impacts of tourists on sites are irreversible, including graffiti, looting, path and surface erosion, deteriorating effects of moisture, and humidity fluctuations. Starr, supra note 23 at 8.

112. Salazar, supra note 76 at 121–30; “Living Treasure. UNESCO Is Better at Naming Enemies than Finding Friends” The Economist (14 July 2012).

113. Logan, supra note 24 at 120–1.

114. Bevan, supra note 71.

115. PAGE, Simon, “Mecca: The ‘Blessed Heart’ of Islam” in Silvio FERRARI and Andrea BENZO, eds., Between Cultural Diversity and Common Heritage: Legal and Religious Perspectives on the Sacred Places of the Mediterranean (Farnham: Ashgate, 2014), 319–329 at 324–6.

116. According to the WHC Committee, mining oil and gas stands as one of the factors affecting cultural and natural properties (Decisions Adopted by the World Heritage Committee at its 39th session, World Heritage Committee, UNESCO Doc. WHC-15/39.COM/7, (29 May 2015). See also Nafziger, supra note 8.

117. See supra section II.B.2. Other cases concerning the impact of large-scale works on cultural spaces have been discussed by domestic courts and international arbitral tribunals, see e.g. Coal Contractors Limited v. Secretary of State for the Environment and Northumberland County Council (United Kingdom, QBD, 1993); Tikiri Banda Nulankulama v. Secretary, Ministry of Industrial Development (Sri Lanka, 884/99, 2000); and Parkerings-Compagniet AS v. Republic of Lithuania (ICSID Case No. ARB/05/08, Award of 11 September 2007).

118. AFFOLDER, Natasha, “The Private Life of Environmental Treaties” (2009) 103 American Journal of International Law 510–526 at 521.

119. VADI, Valentina, Cultural Heritage in International Investment Law and Arbitration (Cambridge: Cambridge University Press, 2014) at 251.

120. International Council on Mining and Metals, “Mining and Protected Areas”, Position Statement (September 2003), online: International Council on Mining and Metals <http://www.icmm.com/publications?rootTagId=95>. See also Stephen D. TURNER, “World Heritage Sites and the Extractive Industries” (20 June 2012), online: UNESCO <http://whc.unesco.org/en/extractive-industries/>.

121. International Council on Mining & Metals, “ICMM Calls for Stronger Legal Protection of World Heritage Sites” (5 September 2016), online: International Council on Mining & Metals <http://www.icmm.com/en-gb/news/2016/icmm-calls-for-protection-of-world-heritage-sites>.

122. See World Bank, “Operational Manual OP 4.11—Physical Cultural Resources” (April 2013), online: World Bank <http://www.sifee.org/static/uploaded/Files/ressources/contenu-ecole/antananarivo/bm/OP4.11_Physical_Cultural_resources.pdf>. This requires an assessment of the potential risks to physical cultural assets at an early stage through a consultative process involving project-affected groups, government authorities, and NGOs. World Bank, “Culture and the Corporate Priorities of the World Bank, Report on Progress from April 1999 to December 2002” (February 2003), online: World Bank <http://siteresources.worldbank.org/INTCHD/Resources/report-progress-april99-december02.pdf>.

123. See ICOMOS, “Guidance on Heritage Impact Assessments for Cultural World Heritage Properties” (January 2011), online: ICOMOS <https://www.icomos.org/world_heritage/HIA_20110201.pdf>. This offers guidance on the process of commissioning “heritage impact assessments” for WHC properties in order to evaluate effectively the impact of potential development on the OUV of properties.

124. See Operational Guidelines, supra note 9, paras. 108, 110.

125. WHC, supra note 4, arts. 3, 6(1), 11(3).

126. Francioni and Lenzerini, supra note 26 at 403–5.

127. See e.g. Decision 38 COM 7 in Decisions Adopted by the World Heritage Committee at its 38th Session (Doha, 2014), World Heritage Committee, UNESCO Doc. WHC-14/38.COM/16 (2014), at 12, para. 9, whereby the WHC Committee: “Welcomes the commitment made by TOTAL in June 2013 not to explore or exploit oil or gas inside sites inscribed on the World Heritage List as well as the new policy on World Heritage Sites adopted by the investment bank HSBC not to knowingly provide financial services to support projects which threaten the special characteristics of World Heritage properties and, also taking note of the discussions held between the World Heritage Centre, IUCN and International Petroleum Industry Environmental Conservation Association, calls on other companies in extractive industries and investment banks to follow these examples to further extend the ‘No go’ commitment.”

128. Heritage has been used and misused to impose the majority culture on minorities. See PHILP, Janette, “The Political Appropriation of Burma’s Cultural Heritage and Its Implication for Human Rights” in Michele LANGFIELD, William LOGAN, and Máiréad Nic CRAITH, eds., Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (London: Routledge, 2010), 83–100 ; and SHEPHERD, Robert, “UNESCO and the Politics of Cultural Heritage in Tibet” (2006) 36 Journal of Contemporary Asia 243–257 .

129. See e.g. RANJEVA, Raymond , “Les organisations non gouvernementales et la mise en œuvre du droit international” Collected Courses of the Hague Academy of International Law (1997) Vol. 270, 9–106.

130. D’ASPREMONT, Jean, “International Law-Making by Non-State Actors: Changing the Model or Putting the Phenomenon into Perspective?” in Math NOORTMANN and Cedric RYNGAERT, eds., Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers (Farnham: Ashgate, 2010), 171–194 at 178.

131. For instance, Cambodia allegedly spent about $0.5m on the election campaign for its seat on the WHC Committee and up to $10m to secure Preah Vihear’s inscription on the WHC List. Kozymka, supra note 66 at 116.

132. Evans and Rowlands, supra note 57 at 279, 290.

133. FRANCIONI, Francesco, “A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage” in A. Yusuf ABDULQAQI, ed., Standard-Setting in UNESCO, Normative Action in Education, Science and Culture, Vol. I (Leiden/Boston: Martinus Nijhoff and UNESCO Publishing, 2007), 221–236 at 229.

134. Evaluation of UNESCO’s Standard-Setting Work of the Culture Sector. Part III—1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, Internal Oversight Service, UNESCO Doc. IOS/EVS/PI/132 REV.3 (2014), at 43.

135. Logan, supra note 24 at 126.

136. Lixinski, supra note 91 at 66.

137. WHC, supra note 4, art. 5.

138. Operational Guidelines, supra note 9 at paras. 12, 39-40, 64, 119, 123; annex 3, para. 12; and annex 8.

139. Ibid., para. 77.

140. Supra note 31, arts. 22(d), 28, 30.

141. Strategic Action Plan for the Implementation of the World Heritage Convention 2012–2022, UNESCO Doc. WHC-11/18.GA/11 (2011).

142. Ibid., at 4.

143. This Document was adopted by the forty-five participants at the conference on “Authenticity in Relation to the World Heritage Convention”, held at Nara, Japan in November 1994; the conference was organized by the Agency for Cultural Affairs of the Japanese Government, the Nara Prefecture, UNESCO, ICCROM, and ICOMOS.

144. Charter for the Conservation of Historic Towns and Urban Areas (Washington Charter 1987), October 1987, online: ICOMOS <https://www.icomos.org/charters/towns_e.pdf>, art. 3.

145. Council of Europe Framework Convention on the Value of Cultural Heritage for Society, 27 October 2005, C.E.T.S. No. 199 [2005 Framework Convention on the Value of Cultural Heritage for Society of the Council of Europe]. As this Convention is open for signature by non-Member States, its application in Asia cannot be excluded.

146. Ibid., preamble, 5th para.

147. Ibid., art. 1(b).

148. Ibid., art. 11(b).

149. Ibid., art. 2(b).

150. See Report of the World Commission on Environment and Development: Our Common Future in Development and International Co-operation: Environment, World Commission on Environment and Development, UN Doc. A/42/427 (1987), at annex. See also Realizing the Future We Want for All, UN System Task Team on the Post-2015 Development Agenda (2012), online: United Nations Development Programme <http://www.undp.org/content/dam/undp/library/Poverty%20Reduction/Realizing%20the%20future%20we%20want.pdf>.

151. BANDARIN, Francesco, HOSAGRAHAR, Jyoti, and ALBERNAZ, Frances Sailer, “Why Development Needs Culture” (2011) 1 Journal of Cultural Heritage Management and Sustainable Development 15–25 ; World Bank, “Culture and the Corporate Priorities of the World Bank: Report on Progress from April 1999 to December 2002” (Washington: World Bank, 2003); SERAGELDIN, Ismail, “Cultural Heritage as Public Good: Economic Analysis Applied to Historic Cities” in Inge KAUL, Isabelle GRUNBERG, and Marc E. STERN, eds., Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press, 1999), 240–263 ; and SERAGELDIN, Ismail and MARTIN-BROWN, Joan, eds., Culture in Sustainable Development (Washington: World Bank, 1998).

152. Lixinski, supra note 91 at 65.

153. Kishore RAO, “Pathways to Sustainable Development” in Galla, supra note 6, 325–31 at 329.

154. The text of the WHC, which was adopted fifteen years before the Report “Our Common Future” (supra note 150), does not make any specific mention of the term “sustainable development”. It can be argued, however, that the WHC carries in itself the spirit of sustainability where it recognizes that the Contracting States have the duty “of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage” (WHC, supra note 4, art. 4), and “to adopt a general policy which aims to … integrate the protection of that heritage into comprehensive planning programmes” (ibid., art. 5(a)).

155. Operational Guidelines, supra note 9 at 6.

156. Ibid., at para. 119.

157. Ibid., at para. 132(5).

158. See also Convention on the Protection of the Underwater Cultural Heritage, 2 November 2001, 2562 U.N.T.S. 3 (entered into force 2 January 2009), annex, at rule 14; Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, 2368 U.N.T.S. 1 (entered into force 20 April 2006), art. 2(1); and Convention on the Protection and Promotion of the Diversity of Cultural Expression, 20 October 2005 (entered into force 18 March 2007), UNESCO, Records of the General Conference, 33rd Session, Paris (2005), art. 2(6).

159. Supra note 31, arts. 5, 11–13.

160. Resolution Adopted by the General Assembly on 22 December 2011, GA Res. 66/208, UN Doc. A/RES/66/208 at preamble, 3rd and 4th paras.

161. The Outcome Document of the UN’s Rio+20 Conference of 2012, is available at UNESCO, “Culture and Sustainable Development: The Key Ideas” (October 2017), online: UNESCO <http://www.unesco.org/new/en/culture/themes/culture-and-development/the-future-we-want-the-role-of-culture/%3E>.

162. Ibid., art. 30.

163. Ibid., art. 40.

164. Ibid., art. 41.

165. Ibid., art. 58(j).

166. Ibid., art. 134.

167. See UNESCO, “Sustainable Development Goals for Culture on the 2030 Agenda” (October 2017), online: UNESCO <http://en.unesco.org/sdgs/clt>.

168. Rao, supra note 153 at 330.

169. Lixinski, supra note 91 at 66.

170. Winter and Daly, supra note 7 at 15, 17.

171. MONTINI, Massimiliano, “Revising International Environmental Law Through the Paradigm of Ecological Sustainability” in Federico LENZERINI and Ana Filipa VRDOLJAK, eds., International Law for Common Goods (Oxford: Hart Publishing, 2012), 271–287 at 280; and Winter and Daly, supra note 7 at 12–13.

172. Lixinski, supra note 91 at 83.

173. Operational Guidelines, supra note 9, para. 119.

174. Lixinski, supra note 91 at 69–70.

* Senior Researcher (Art-Law Centre, Faculty of Law, University of Geneva, Switzerland). PhD (European University Institute, Italy); LLM (University College London, UK); JD (University of Siena, Italy). An earlier version of this paper was presented at the conference “Cultural Heritage Law and the Built Environment”, National University of Singapore, 17 March 2016. Thanks are due to the conference organizers and to the anonymous reviewers. The usual disclaimer applies.