DRESDEN’S INSCRIPTION ON THE WORLD HERITAGE LIST

In order for a site to be considered for inscription on the World Heritage List, the respective State Party, in coordination with local authorities, must present to UNESCO an application for inscription describing the site and explaining how the site satisfies the criteria for which it is being nominated. Dresden’s first attempt at inscription on the World Heritage List took place in 1989, when the city submitted an application for the Dresden Altstadt (Old City) and its ensemble of baroque architecture including the Zwinger Palace and Semper Opera House.^{Footnote 2} UNESCO rejected that application on the basis that Dresden’s buildings lacked the necessary authenticity since much of the city had been rebuilt following bombing in World War II. Years later, Dresden again applied for inscription but this time under different criteria. On 6 January 2003, the Dresden Elbe Valley’s nomination for inscription on the World Heritage List was submitted to UNESCO’s World Heritage Centre in Paris.^{Footnote 3} For the new application, Dresden focused on the unique cultural landscape that had developed along the banks of the Elbe as the city developed along with its natural surroundings.

Cultural landscapes are a relatively new category of World Heritage Site and have only been recognized by UNESCO since 1992, when the World Heritage Convention became the first international instrument to legally protect such landscapes. New Zealand’s Tongariro National Park, inscribed in 1993, was the first cultural landscape added to the World Heritage List, and since then dozens of others have been added to the List.^{Footnote 4} UNESCO’s Operational Guidelines define cultural landscapes as “combined works of nature and of man” that are “illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.”^{Footnote 5} As defined in its nomination for inscription, the Dresden Elbe Valley’s cultural landscape would extend 18 km along the Elbe River, including nature preserves, protected architectural ensembles, monuments, palaces, villas, vineyards, parks, and historic villages. It would also include many elements dating from the Industrial Revolution, including the Blue Wonder steel bridge (1893), the Loschwitz funicular (1895), the Laubegast steamship yard (c. 1900), the Tolkewitz crematorium (1911), and the former Ostragehege abattoir and stockyard. The nomination focused on the interrelationship of these elements and the deliberate way in which the landscape had developed.

During its 28th annual session in Suzhou, China, from 28 June to 6 July 2004, the UNESCO World Heritage Committee voted to inscribe the Dresden Elbe Valley on its list of World Heritage Sites. In order to be inscribed on the World Heritage List, a site must possess “outstanding universal value,” which is defined in the Operational Guidelines as being of “cultural and/or natural significance which is so exceptional as to transcend national boundaries and be of common importance for present and future generations of humanity.”^{Footnote 7} The committee found that the Dresden Elbe Valley possessed such outstanding universal value and met the following criteria for inscription: §77(ii) exhibiting an important interchange of human values §77(iii) bearing an exceptional testimony to cultural tradition §77(iv) being an outstanding example of an ensemble or landscape which illustrates significance in human history §77(v) being an outstanding example of traditional human settlement or human interaction with the environment, especially when it has become vulnerable under the impact of irreversible change.^{Footnote 8}

The Dresden Elbe Valley’s inauguration as a World Heritage Site took place on 24 June 2005. In a ceremony at the Albrechtsberg castle overlooking Dresden, Professor Francesco Bandarin, director of the UNESCO World Heritage Centre in Paris, officially handed over the World Heritage Certificate to Dresden’s Mayor, Ingolf Roßberg (FDP). (See “Political Parties” section for definitions of political party abbreviations.) A press release from the city hailed the title as something that would be beneficial in marketing the city to international tourists and investors. As a “developing cultural landscape,” the city’s leaders believed that the city would be free to grow without additional restrictions other than those to which it was already subject under national law and local regulations.^{Footnote 9} This belief—that the World Heritage title carried with it little in terms of additional legal obligations—was an assumption that would soon be challenged.

THE WALDSCHLÖßCHEN BRIDGE

At the time of the Dresden Elbe Valley’s inscription, there was no indication that its World Heritage status would soon be at risk. Not long afterwards, however, the title was put in jeopardy and ultimately lost on account of the city’s plan to construct a vehicle bridge across the Elbe River at a site known as Waldschlößchen (little castle in the forest) after an 18th-century hunting lodge in the area of the same name. This area, several kilometers upstream from the city center, was known for its open meadows and vistas towards the old town—views that would be significantly altered by the addition of a bridge.

Bridges have long been a feature in Dresden, a city that straddles the Elbe River. The first recorded bridge dates from the 11th century and was located at the site of the current Augustus Bridge, which connects the historic cores of Dresden’s Old City and New City. As the city industrialized throughout the 19th century, a general construction plan was drawn up that envisaged a series of ring roads around the city. These ring roads would connect the various boroughs, requiring crossings wherever the roads met the Elbe. The Albert Bridge (1877) and Carola Bridge (1895) were built within the inner ring, and the Blue Wonder (1893) was built a few kilometers upstream to connect areas then outside the city.^{Footnote 10} Likewise, other bridges were built downstream including the Marien Bridge (1852), Flügelweg Bridge (1930), and Elbe A4 Highway Bridge (1936). Yet despite the many bridges within a short radius of the city center, several kilometers of scenic meadows along a bend in the Elbe between the Albert Bridge and the Blue Wonder remained bridge-free. The Waldschlößchen Bridge would cut those meadows in half.

The first proposal to build a bridge at the Waldschlößchen site came in 1900. Land was set aside for the proposed bridgeheads, but the project was not realized for economic reasons.^{Footnote 11} Construction studies were made during the 1930s, but the outbreak of World War II halted any further progress on the bridge.^{Footnote 12} Under the German Democratic Republic (GDR), various plans were proposed, including an eight-lane expressway in the 1979 version. In 1989 it was decided to build a four-lane bridge, with construction set to start the following year. Due to the GDR’s collapse in 1989, those plans were not realized.^{Footnote 13} In the early 1990s, as part of a new transportation plan for the Dresden metropolitan area, the idea for a new river crossing reemerged. The Dresden City Parliament approved this new overall transportation plan in January 1990.^{Footnote 14} In January 1994, an updated plan called for an additional Elbe crossing but did not specify whether this should take the form of a bridge, a tunnel, or several bridges. The Democratic Socialist Party (PDS) collected 23,000 signatures towards a referendum in favor of building several smaller bridges, but this referendum never came to fruition due to a decision by the City Council preempting it.^{Footnote 15} On the basis of expert studies completed in August 1996, the City Council decided to proceed with construction of a single bridge at the Waldschlößchen site and called for entries in an international design competition. In December 1997, the competition jury chose a design by the Berlin-based firm Kolb/Ripke—a design that has remained the choice ever since.^{Footnote 16}

Construction of the Waldschlößchen Bridge was originally anticipated to begin as early as 2000, and ground was first officially broken by Dresden’s Mayor Herbert Wagner (CDU) in a ceremony on 29 November 2000. For the next several years, however, little actual construction took place. The city had broken ground even though the bridge had not yet received full approval. City planners were concerned that the bridge’s anticipated noise levels would exceed allowed limits, and it took years to make changes and secure the necessary planning approvals. Finally, in February 2004, the Regional Council approved the revised planning documents and authorized the project. Despite this approval, construction was further delayed as the city struggled to pass a compliant budget amid financial difficulties. After local elections in September 2004, the new City Council (now with a majority coalition of Socialist (SPD), Democratic Socialist (PDS), and Green Party members) voted to further delay construction of the bridge and instead use funds allocated for its construction to refurbish daycare facilities.^{Footnote 17}

Bridge proponents sought a way to force the city to proceed with construction. On 27 February 2005, in a referendum initiated by the German Automobile Club (ADAC), the Christian Democratic Union (CDU), and the Free Democratic Party (FDP), citizens of Dresden voted for the construction of the Waldschlößchen Bridge.^{Footnote 18} More than 50% of citizens participated, with 67.9% of voters in favor of building the bridge. This referendum obligated the city to begin construction, and contracts were put out to tender, with construction scheduled to begin on 22 March 2006.^{Footnote 19}

UNESCO THREATENS TO REMOVE DRESDEN ELBE VALLEY

When the Dresden Elbe Valley was inscribed as a World Heritage Site in July 2004, there was no indication that proceeding with construction of the Waldschlößchen Bridge might put the site’s World Heritage status at risk. That risk was not a factor that voters in the February 2005 referendum could have considered. When the World Heritage Centre’s director traveled to Dresden and officially handed over the title in June 2005, the title did not appear to be at any risk nor was there was any mention of the bridge. Yet by November 2005, the World Heritage Centre’s criticism of the bridge began to be reported in the media.^{Footnote 20} Then at its annual meeting in July 2006, the World Heritage Committee decided to place the Dresden Elbe Valley on the List of World Heritage in Danger, threatening to delist the site should bridge construction proceed. What was the cause of this abrupt change in UNESCO’s disposition?

Although the bridge was the subject of much public debate in Dresden, it had received only passing mention in the Dresden Elbe Valley’s nomination for inscription.^{Footnote 21} The World Heritage Committee was not fully made aware of the bridge’s location or scope at the time of inscription, and it therefore came as an unwelcome surprise to the committee that a major new bridge would be constructed in the center of the recently inscribed Dresden Elbe Valley World Heritage Site. At first glance, it is difficult to conceive how such a large construction project could have escaped UNESCO’s notice given the scrutiny to which potential sites are subject during the nomination process. The city of Dresden ascribes the origin of this miscommunication to one of the experts from the International Council on Monuments and Sites (ICOMOS) who originally inspected the site prior to its inscription. According to the city, the expert mistakenly described the site of the planned Waldschlößchen Bridge as being 5 kilometers downstream from the city center rather than 3 kilometers upstream, as it actually is.^{Footnote 22} Why this mistake was not discovered and corrected in a timely fashion is something that remains unclear, but ICOMOS’s alleged mistake is minor and peripheral to the real problem. The World Heritage Committee’s concern did not stem from the Waldschlößchen Bridge being upstream from the city center rather than downstream. UNESCO reacted as it did because the bridge itself came as a surprise, and there is some evidence to suggest that UNESCO was intentionally kept in the dark about the city’s bridge plans. Take, for example, this statement from the Dresden Elbe Valley’s application documents:

Contrary to these claims, a main traffic artery was planned in the Elbe area, namely, the Waldschlößchen Bridge mentioned in the same paragraph, and its construction would affect the townscape and landscape.

VILNIUS (2006)—DRESDEN “RED-LISTED”

The 2006 annual meeting of the World Heritage Committee took place between 9–16 July in Vilnius, Lithuania. On 11 July, the committee decided to place the Dresden Elbe Valley on the List of World Heritage in Danger (the “Red List”) due to the city’s decision to proceed with construction of the Waldschlößchen Bridge. The committee found that the bridge’s impact on the integrity of the landscape would be so serious as to destroy the site’s outstanding universal value. If the city went ahead with the bridge, the committee vowed to “consider, in a prudent manner” delisting the site at the next annual meeting.^{Footnote 24}

Germany’s federal government tried to distance itself from what it characterized as a conflict between UNESCO and Dresden. When asked about Dresden’s red-listing in a press conference the day after UNESCO’s decision, a spokesperson from the federal government reiterated a message that the Ministry of Foreign Affairs had delivered the day before. The federal government regretted the situation and vowed to work, in close dialogue with the World Heritage Committee on one side and the responsible state and local authorities on the other, to find a solution that would lead to the red-listing being revoked. The spokesperson stressed that both the decision to apply for World Heritage status and the decision to build the bridge were both “state matters” (i.e., the Free State of Saxony) and that the federal government’s relationship with UNESCO was quite different. Since only States Parties may be represented in the World Heritage Committee, the Ministry of Foreign Affairs represented the Federal Republic of Germany generally, but in this matter it specifically represented Dresden. It saw its role in the process as one of assuring a smooth flow of information between the World Heritage Committee and the government in Saxony.^{Footnote 25} Whether this mediating role fully captured the extent of the federal government’s obligations was a question that would come to be much debated.

Dresden’s Mayor Dr. Lutz Vogel (Indep.) called the World Heritage Committee’s decision “harsh” but said that the city would take it seriously as Dresden wished to maintain its title. A 13 July press release from the mayor’s office explained that, since the city administration was legally bound by the February 2005 referendum, it was up to the City Council to decide how to proceed politically.^{Footnote 26} In a special meeting of the City Council on 20 July, a majority of the council voted for a proposal requesting that the mayor halt construction of the bridge. In a separate vote, the council also voted against immediately beginning construction.^{Footnote 27} These decisions put the city in a legal dilemma. In consultation with the mayor, Dresden’s Building Councilor, Herbert Feßenmayr, lodged an objection to the City Council’s decisions on the basis that, according to the municipal bylaws, referendums could not be altered for a period of three years, even if the underlying conditions had materially changed.^{Footnote 28} Whether the referendum was indeed absolutely binding became a highly contested issue in Dresden, and its legal status was an important question to answer since the threat of a UNESCO delisting was not a factor citizens took into consideration when they voted for the referendum.

On 25 August 2006, the Regional Council, acting in its role as municipal regulatory agency, went against the City Council’s decision and ordered that construction contracts for the bridge start to be awarded.^{Footnote 29} Not surprisingly, the City Council strongly objected to the Regional Council’s actions. In an attempt to clarify the overall legal situation, particularly the question of what exactly the popular referendum obligated the parties to do, the Regional Council referred the matter to the Saxon Higher Administrative Court. Somewhat dodging the question, in November 2006, the court called on the parties to find a compromise through an extrajudicial dispute resolution process. On 12 December 2006, Dresden began this six-week-long mediation process regarding the bridge. Among those present were federal representatives from the Standing Conference on Education Ministers and the Ministry of Foreign Affairs, representatives from the Free State of Saxony, five experts who acted as mediators, and Building Councilor Feßenmayr of Dresden.^{Footnote 30} The mediation process finished on 24 January 2007, with the parties not able to come to any mutual agreement. The city attributed this failure to the expert group, which rejected the current bridge design or any variation of it. In the view of the expert group, the planned bridge did not respect the Dresden Elbe Valley’s cultural landscape and a new plan would need to be developed. The mayor expressed regret at the outcome, but said that he still saw some possibility for resolution in the future.^{Footnote 31}

CHRISTCHURCH (2007)—UNESCO’S FIRST DELISTING

At its 2006 annual meeting, the World Heritage Committee vowed to consider delisting the Dresden Elbe Valley at the 2007 annual meeting in Christchurch, New Zealand, should construction of the Waldschlößchen Bridge continue according to the original plans. In the months, weeks, and even days leading up to the 2007 meeting, there were a number of developments in the legal battle between opponents and proponents of the bridge within Germany. On 9 March 2007, following the failed mediation process, the Saxon Higher Administrative Court ruled that construction of the Waldschlößchen Bridge must begin. Mayor Vogel announced that the city would accept and implement the court’s decision, requiring it to go ahead with the construction contracts already awarded and continue the tendering process. At the same time, he also promised to continue lobbying the World Heritage Committee to preserve the city’s World Heritage title.^{Footnote 32}

Despite the announcement from the mayor’s office, bridge construction could not immediately proceed because, on 22 March 2007, the Dresden City Council appealed the Saxon Higher Administrative Court’s decision to the Saxon Constitutional Court and Federal Constitutional Court. Both of these legal attempts to stop the bridge’s construction failed. On 3 May 2007, the Saxon Constitutional Court dismissed the City Council’s complaint. Immediately after this defeat, the city asked Saxony for additional time to develop alternative bridge plans, but Saxon Justice Minister Geert Mackenroth (CDU) declared that there was little opportunity remaining to come to an agreement with UNESCO and the referendum should be implemented.^{Footnote 33} On 6 June 2007, the judges of the Federal Constitutional Court likewise found no fault with the Saxon Higher Administrative Court’s ruling and refused to hear either the City Council’s constitutional complaint or its application for an injunction against the bridge. With these legal avenues to halt construction seemingly exhausted, bridge construction was again authorized to proceed.^{Footnote 34}

On 8 June, the Regional Council ordered that construction contracts for the bridge’s linking roads be awarded. A week later it called for the bridge to be constructed according to the original plans. The city, despite legal defeats and the Regional Council’s new orders, again postponed the awarding of construction contracts and filed an expedited motion in the Dresden Administrative Court seeking an injunction against the Regional Council. When the Dresden Administrative Court rejected the city’s application for an injunction against the Regional Council, the city appealed the administrative court’s decision to the Saxon Higher Administrative Court. On 21 June, only days before UNESCO’s annual meeting, Mayor Vogel again vowed that his office would attempt to find a solution to the bridge conflict.^{Footnote 35}

The 2007 annual meeting of the UNESCO World Heritage Committee took place in Christchurch, New Zealand, from 23 June to 1 July. With Mayor Vogel and Building Councilor Feßenmayr attending, Dresden presented several alternative, thinner-looking bridge designs that had been approved by the City Council.^{Footnote 36} Although the committee was not satisfied with the proposals, it decided to keep the Dresden Elbe Valley on the World Heritage List for the time being. Dresden remained on the Red List, and UNESCO gave the city until October 2007 to replace the current bridge plans with a solution that would “respect the outstanding universal value of the cultural landscape.”^{Footnote 37} Failing such a solution, the committee threatened to delete the site at the next meeting.

At the 2007 meeting in Christchurch, Oman’s Arabian Oryx Sanctuary became the first World Heritage Site ever removed from the World Heritage List due to Oman’s failure to protect the integrity of the site. In that case, the government of Oman decided to decrease the size of the sanctuary by 90% and open the site to natural gas development, thus destroying its viability as a sanctuary and depriving it of its outstanding universal value. Habitat degradation and poaching had already reduced the number of oryx in the sanctuary by roughly 90% since the site was inscribed in 1994, and only a few breeding pairs of oryx still existed in the sanctuary.^{Footnote 38} With this decision, UNESCO had shown that it was willing to delist sites in order to maintain the quality of the list, and there was a serious possibility that Dresden would be next.

The German federal government started to become concerned since now the Waldschlößchen Bridge was no longer just a regional issue but potentially a question of Germany’s obligations under international law. Culture Minister Bernd Neumann (CDU) noted that “delisting would have negative consequences not only for the Cultural City of Dresden [Kulturstadt] but also for Germany’s reputation abroad.”^{Footnote 39} Since it is ultimately the State Party that is responsible for the failure of any of its constituents to comply with international law, the federal government was worried that Germany as a whole might be held responsible for Dresden’s actions. Some wondered whether the federal government could force Dresden to comply by means of enacting a UNESCO-implementing law. In a press conference, Chancellor Angela Merkel (CDU) was asked whether the binding effect of a law that binds the federal government in relation to UNESCO under international law also should be extended to cities and municipalities in order to avoid future cases like Dresden. Without directly answering the question, the chancellor commented that, given the complex question of responsibility, it was interesting that the World Heritage Convention was never ratified by the federal states. She reiterated the regional nature of the bridge decision and the binding effect of the referendum and suggested that it might be good for the regional authorities to feel the effects of their decisions in order that the same mistakes would not be made in the future. The chancellor also proposed that there should be an effort to create national legal foundations for better coordinating implementation of the World Heritage Convention.^{Footnote 40}

After UNESCO’s 2007 meeting, construction preparations for the Waldschlößchen Bridge resumed immediately. The Regional Council began distributing construction contracts in mid-July, and later that month the city administration announced that actual construction would begin on 13 August 2007. Construction did not begin on schedule, however, because on 9 August the Dresden Administrative Court granted an injunction against the bridge sought by several environmental NGOs on the basis that the bridge would endanger a species of protected bat called the lesser horseshoe bat. The Saxon Higher Administrative Court lifted this injunction on 12 November 2007, declaring that bridge construction could continue in accordance with the applicable regulations.^{Footnote 41} Finally, on 19 November, site preparation work for the bridge began. Over the next few months, excavation and foundation work took place in the meadows on both sides of the Elbe. Under protest by bridge opponents, workers also felled trees around the site. One particular tree threatened by the construction, a 280-year-old red beech, attracted special attention and began to be occupied by activists on 12 December.^{Footnote 42} Activists continued to occupy the tree for about a month, but on 15 January 2008, with much media attention, it too was felled.^{Footnote 43}

Even with construction moving forward, Dresden still hoped to maintain its World Heritage title by redesigning the Waldschlößchen Bridge in a way that would be acceptable to UNESCO.^{Footnote 44} The city formed an expert commission headed by the former building director responsible for the reconstruction of the Church of Our Lady (Frauenkirche). The design changes they proposed included a narrower deck, slimmer arch, and a reduction of the visible volume of the footings. After being officially unveiled on 28 January 2008, these amended plans were then sent via the federal government to UNESCO in Paris, with the assumption that this would lead to further talks between Dresden and UNESCO.^{Footnote 45}

In February 2008, a team of experts from UNESCO and ICOMOS visited Dresden for two days to meet with local and national authorities and assess the impact the Waldschlößchen Bridge would have on the Dresden Elbe Valley, specifically focusing on impacts to the site’s outstanding universal value.^{Footnote 46} At its next annual meeting in June, the World Heritage Committee would then decide, based on the team’s findings and additional documentation, whether to delete the site. The expert delegation toured the site, received an overview of the planned bridge project, and discussed the bridge’s effects on the landscape. The delegation was also interested in the legal and financial aspects of the project, as well as the possibility of building a tunnel instead.^{Footnote 47} Following their visit, the international mission of experts recommended the construction of a tunnel rather than a bridge.^{Footnote 48} On 5 March 2008, UNESCO threatened anew to withdraw the World Heritage title should the Waldschlößchen Bridge be built, even if Dresden’s proposed slimmer design were used. Bridge opponents in Dresden then collected 40,000 signatures on a petition calling for a referendum on whether the city should construct a Waldschlößchen tunnel instead. The petition was submitted to Mayor Vogel on 11 March, but the city declared the petition invalid on the basis that it had been submitted beyond a prescribed two-month deadline, and work continued on the bridge. After this defeat of the citizens’ petition, Dresden’s City Council also tried to push for a tunnel referendum. At its meeting on 28 April, the council voted for a new referendum on the construction of a Waldschlößchen tunnel. Mayor Vogel, who was officiating the meeting, filed an objection to the motion, but the City Council again voted for the referendum in a separate session the following week. Nevertheless, the City Council’s proposed tunnel referendum never came to fruition. On 12 June, the Regional Council found the City Council’s decision to call a referendum unlawful based on both formal and substantive grounds.^{Footnote 49}

QUEBEC CITY (2008)—THE TUNNEL ALTERNATIVE

At its 2008 annual meeting in Quebec City, which took place 2–10 July, the World Heritage Committee decided to continue leaving the Dresden Elbe Valley on the List of World Heritage in Danger. Several months earlier, in April 2008, a delegation of officials from Dresden and Saxony had traveled to Paris to talk with the director and other high-level representatives of the World Heritage Centre. At that meeting the parties agreed that, in preparation for the committee’s annual meeting, Dresden would provide UNESCO with a summary of information on the bridge project including a general framework of the legal situation.^{Footnote 50} On account of this new information, the Dresden Elbe Valley was not delisted in 2008, as the committee had previously threatened, but neither was UNESCO pleased by the news. In Quebec, the World Heritage Committee stated that it hoped construction on the Waldschlößchen Bridge would be stopped and the site restored to its original condition. It urged German authorities to pursue a tunnel instead and threatened that, if bridge construction were not stopped, the committee would delete the Dresden Elbe Valley from the World Heritage List at the 2009 annual meeting. The decision to give Dresden more time was based on the still ongoing legal proceedings underway within Germany. The committee believed that “opposition to the construction of the bridge must be given a chance to succeed” and that keeping Dresden on the Red List would “help that fight.”^{Footnote 51} In a press conference shortly after UNESCO’s decision, the German federal government also suggested that it supported a tunnel option, with the Transportation minister offering federal financing to help with a tunnel’s construction. Due to the local nature of infrastructure projects, however, the federal government said that it could not force Dresden to change its plans. According to the federal government, any compromise would need to originate with the city.^{Footnote 52}

Discussions between UNESCO and Dresden continued over the following months. Mayor Helma Orosz (CDU) and former Building Councilor Feßenmayr traveled to Paris in October 2008 to meet with the director of the World Heritage Centre. While there, they explained the city’s legal predicament and emphasized Dresden’s desire to remain a World Heritage Site.^{Footnote 53} Meanwhile, in Dresden, opponents of the bridge continued to pursue a tunnel alternative but met opposition in the courts. On 16 September 2008, the Dresden Administrative Court denied an application by several conservation organizations seeking an injunction against the bridge. On 29 September, the newly formed Regional Directorate rejected another attempt by the City Council to hold a tunnel referendum, declaring the council’s action itself unlawful. The City Council had appealed to the Regional Directorate in hopes of having the now former Regional Council’s earlier decision of 12 June overturned.^{Footnote 54} Conservation organizations then tried to stop the bridge by filing a complaint against the original planning approval dating back to 2004—a complaint the Dresden Administrative Court dismissed on 30 October 2008. In a further proceeding on 20 March 2009, the court also determined, based on expert testimony, that the tunnel alternative being proposed would be more harmful to the environment than the bridge.^{Footnote 55} Tunnel opponents cited a variety of reasons why a tunnel would be problematic given the area’s geography. The Elbe floods occasionally, with floodwaters sometimes reaching high enough that even many of the city’s bridges cannot be used, as happened in 2002. Designing a flood-proof tunnel would be costly, require extensive excavation and elaborate engineering, and have a larger footprint than a bridge due to the much longer length required (up to 1800 m as opposed to 600 m for the bridge). This longer length would require extensive site preparation, including the demolition of numerous buildings, some of which are listed on the historic register. Some other problems with the tunnel included the higher maintenance costs since it would require 24-hour lighting and ventilation, as well as the decreased ability or likely inability to accommodate pedestrian and bicycle traffic.^{Footnote 56}

SEVILLE (2009)—DRESDEN DELETED

The 33rd annual session of the World Heritage Committee took place in Seville, Spain, 22–30 June 2009. Shortly before the meeting, the World Heritage Centre recommended that the committee delete the Dresden Elbe Valley from the World Heritage List.^{Footnote 57} On 25 June, in a speech before the committee, Dresden’s Mayor Helma Orosz made one last plea for the committee’s support, asking its members to consider the Dresden Elbe Valley as a whole and not just the small part of it where the bridge was being constructed. She called on the committee to consider Dresden’s legal situation, especially the fact that the bridge project had been certified by Germany’s highest court, the Federal Constitutional Court. She also emphasized that expert testimony before the Dresden Administrative Court had established that a tunnel would have more serious environmental consequences than a bridge, and she noted that the court had endorsed those findings. Although the city wanted to keep its World Heritage title, she explained, it also had obligations under German law. Mayor Orosz mentioned that she was able to speak with most of the committee members and sensed that they were both interested in and sympathetic towards the city’s situation. In her view, the best solution would have been for all parties to come to a consensus.^{Footnote 58} Given the parties’ positions, however, there was little room for consensus. Later that day, the 21-member World Heritage Committee voted to delete the Dresden Elbe Valley from the World Heritage List on the basis that, due to the construction of the Waldschlößchen Bridge “in the heart of the cultural landscape,” the Dresden Elbe Valley “failed to keep its outstanding universal value as inscribed.”^{Footnote 59} “The State Party,” the committee noted, was “unable to fulfill its obligation defined in the [World Heritage] Convention to protect and conserve Outstanding Universal Value, as inscribed, of the World Heritage Property.”^{Footnote 60}

The decision to immediately delist involved two votes, both of which were split. Of the 21 committee members, eight voted to postpone the decision an additional year. In a second vote, 14 members voted to delete the site, while five members (with two abstaining) voted to retain it.^{Footnote 61} The World Heritage Committee said it regretted the outcome, with the delegate chairing the meeting remarking that “every time we fail to preserve a site, we share the pain of the State Party.” On the other hand, the committee also left open the possibility that Dresden could reapply in the future under different criteria and boundaries. Some parts of the site, it recognized, might still be considered of “outstanding universal value.”^{Footnote 62} Dresden’s Mayor Orosz considered this as evidence that the World Heritage Committee still considered Dresden “World Heritage worthy.”^{Footnote 63}

In Germany, the federal State Culture minister called it “more than regrettable” that UNESCO, the Free State of Saxony, and the city of Dresden were unable to agree on a compromise. He found no fault with the federal government’s actions or lack thereof, saying that the federal government could have “no direct influence” on the bridge decision since it was primarily a state and local matter.^{Footnote 64} Reactions from other federal ministers varied. The Transportation minister called it “a black day for the Kulturnation” and blamed Saxony and Dresden. A minister from the Chancellery, however, spoke of an “unfriendly act” of UNESCO towards the Federal Republic. Another government spokesperson attributed some of these stronger reactions to the personal feelings of the ministers but said that all shared the same belief that it was regrettable that UNESCO and Dresden had been unable to reach a consensus.^{Footnote 65}

FROM DELISTING TO BRIDGE COMPLETION (2009–2013)

After UNESCO’s delisting of the Dresden Elbe Valley, Dresden continued construction of the Waldschlößchen Bridge. The first steel beams were delivered to the site in July 2009, and by that December one of the steel arches was complete. Construction was on track to meet the scheduled completion date of 1 June 2011, but due to a number of delays, neither that date nor several subsequent anticipated completion dates were met. Assembly of the bridge’s central arch was complete by March 2010, but due to various delays, it took almost the entire rest of 2010 until the arch could be floated into place and attached. First, excavation work on the riverbank needed to be completed, but due to a planning error, the excavation permit had not yet been obtained. In May 2010, all construction work stopped for a short time when it was discovered that a beaver, which is strictly protected in Germany, had begun to build a lodge on one of the bridge’s steel supports. After a week passed with no sight of the beaver, work on the bridge resumed. In September 2010, construction was again delayed briefly when several environmental NGOs challenged the recently issued excavation permit. The Saxon Higher Administrative Court temporarily ordered a week-long halt in construction but then refused to extend the stop order, allowing excavation work to proceed. Following this legal defeat, the NGOs then sought to prevent the floating-in of the bridge’s central arch. In an expedited motion on 28 October 2010, the court denied the NGOs’ work stoppage request, clearing the way for the middle section of the bridge to be floated into place. On 19 December 2010, after a further two-week-long delay due to bad weather, the central arch was floated in and lifted into its final position.^{Footnote 66}

Following installation of the last steel beam in May 2011, the bridge continuously connected both shores of the Elbe. The pouring of concrete for the deck began that August, but despite these developments, the consortium responsible for construction announced that the bridge would not be open to traffic in spring 2012 as hoped, but that a spring 2013 opening was more likely. Some of the delay was due to further legal challenges to the bridge by environmental NGOs. For four days in September 2011, the Saxon Higher Administrative Court heard complaints from Friends of the Earth Germany, the German Society for Nature Conservation, and the Green League, which argued that serious errors in the bridge’s planning had endangered rare species of plants and animals. The court issued its decision on 16 December 2011, dismissing the complaint and declaring that the bridge had been planned and constructed in accordance with the law. Nevertheless, in an effort to minimize the bridge’s impact on wildlife, a so-called bat guidance system was installed at the site in April 2012. The system consists of trees and bushes planted in a way specifically designed to facilitate bat navigation, with which the bridge may interfere.^{Footnote 67} Bridge construction continued throughout 2012 and into 2013. Although not finished by spring 2013 as the consortium had hoped, the bridge did finally open to vehicle traffic on 26 August 2013.

As construction on the bridge progressed, opposition to it also subsided somewhat. German courts at the local, state, and federal levels repeatedly ruled in favor of the bridge throughout numerous legal challenges. Among Dresdners, the bridge currently has around a 75% approval rating—considerably higher than at the height of the controversy, when local approval ratings were only slightly above 50%.^{Footnote 68} The bridge’s apparent success, however, has come at high cost. The delisting of the Dresden Elbe Valley cost Dresden more than just the prestige and increased tourism revenue associated with a World Heritage title. The bridge conflict also resulted in significant financial consequences to the city and state of Saxony, which in some cases had a direct negative effect on conservation-related efforts in the Dresden Elbe Valley. By February 2010, the estimated total cost for bridge construction had risen to €157 million ($212 million), €40 million ($54 million) higher than originally expected, because of the numerous reschedulings, redesigns, and increased costs for building materials. Ultimately, the price tag for the Waldschlößchen Bridge totaled €182 million ($246 million). Additionally, since the Dresden Elbe Valley was removed from the World Heritage List, it is no longer eligible for conservation funding from a federal aid program for German World Heritage Sites. This funding included a €6.3 million ($8.5 million) grant Dresden had applied for to restore sites along the Elbe Valley, including the Lingner Castle, a 19th-century villa overlooking the Elbe where the city had housed its own World Heritage Centre from 2007 to 2009.^{Footnote 69}

SHARED RESPONSIBILITY

In its decision to delete the Dresden Elbe Valley from the World Heritage List, the World Heritage Committee left open the possibility that Dresden could reapply in the future under different criteria and boundaries. Some parts of the site, it recognized, might still be considered of “outstanding universal value.”^{Footnote 70} Perhaps someday Dresden will rejoin the list, but how exactly would the new boundaries be drawn? If the new site excludes the Waldschlößchen Bridge, then it would exclude a central part of the Dresden Elbe Valley. And if the Waldschlößchen Bridge is not World Heritage worthy, should not the Carola Bridge, a bland concrete construction rebuilt in 1971, also be excluded? If so, that could be problematic since that bridge lies so close to the core of the old city and its historic structures. UNESCO’s 1989 rejection of Dresden’s application for inscription has already established that the old city lacks the authenticity necessary for World Heritage. Now, according to the 2009 delisting, the integrity of the Dresden Elbe Valley’s cultural landscape has been compromised as well. Since cultural landscapes are already one of the more flexible categories of World Heritage Site, identifying the new criteria under which Dresden could rejoin the list would require some creativity.

Even if Dresden were eventually relisted, the question remains whether a “World Heritage worthy” site should have been deleted in the first place. The reasons provided for the deletion are varied but not always consistent. On one hand, Dresden’s delisting suggests that the outstanding universal value the Dresden Elbe Valley once possessed could be irreparably damaged by adding one more bridge to a valley of many bridges, even before that new bridge was substantially built. This is a much lower threshold than the previous precedent set by the delisting of Oman’s Arabian Oryx Sanctuary, which suggested that a site would only be deleted from the list if it were substantially ruined and a lost cause. Conversely, the Dresden decision also sets a very high standard for maintaining site integrity, which is defined in the Operational Guidelines:

Many sites suffer from adverse effects of development and/or neglect, but they continue to maintain their outstanding universal value despite facing dangers that make the Waldschlößchen Bridge pale in comparison. As of April 2014, 44 properties are on the List of World Heritage in Danger, with seven new additions in 2013 (mostly as a result of the ongoing civil war in Syria).^{Footnote 72} Keeping these sites on the World Heritage List, even if, and perhaps especially if, they are on the Danger List, helps to protect them. In 2013, the earthquake-damaged city of Bam, Iran, on the Red List since 2003, was declared sufficiently stabilized to be no longer in danger, and two other sites were removed in 2012 after the concerns that had led to their red-listing were addressed.^{Footnote 73} If too high a standard of integrity were enforced with all sites, many at-risk and endangered properties could be delisted to their own detriment. In practice, the concept of outstanding universal value is much more robust than the Dresden Elbe Valley’s delisting might suggest, which is fortunate, because once that value is lost, so is the international scrutiny and technical assistance that a World Heritage title brings. Many sites cannot afford to lose that extra protection.

What the Dresden delisting does make clear is that UNESCO is serious about maintaining the integrity of the World Heritage List and expects World Heritage Sites and their respective States Parties to behave appropriately. In a press conference two years prior to the delisting, Germany’s Chancellor mused on the complex question of responsibility regarding the protection of World Heritage Sites. But as complex as the question may be within Federal Republic of Germany, at the international level it is well established in the World Heritage Convention and state practice that States Parties have an obligation to the international community to protect areas of outstanding universal value within their own borders.^{Footnote 74} If Dresden’s decision to build the Waldschlößchen Bridge was in contravention of international norms, the federal government cannot escape responsibility by dismissing the decision as merely a local or regional matter. As the chancellor mentioned, the Dresden case highlights the need for improved coordination and implementation of the Convention on multiple levels. Such coordination can only be accomplished if all participants act in good faith and maintain open communications throughout, so by failing to adequately describe the planned construction of the Waldschlößchen Bridge in the site’s nomination documents or correct this error in a timely fashion, a seed was planted for all future miscommunications. For such a major project with significant impacts on the site’s integrity, there was not only a basic duty to inform UNESCO about the project, but the circumstances would call for a higher standard of full and timely disclosure. Had this information been provided at the outset, the World Heritage Committee may have decided not to include Dresden on the World Heritage List at all or it may have delayed the decision. Instead the committee was placed in an awkward situation for which its own guidelines could only provide limited guidance.

According to its Operational Guidelines, the World Heritage Committee may delete properties from the World Heritage List in two types of circumstances. One case, of which the Arabian Oryx Sanctuary deletion is an example, is where the property has deteriorated and lost the characteristics for which it was inscribed.^{Footnote 75} The committee may also choose to delete if “the intrinsic qualities of a World Heritage Site were already threatened at the time of its nomination by action of man and where the necessary corrective measures as outlined by the State Party at the time have not been taken within the time proposed.”^{Footnote 76} Neither one of these scenarios anticipated the exact situation of the Dresden Elbe Valley. (For a different viewpoint, see Von Schorlemer at pg. 49, which finds that s. 192(a) of the Operational Guidelines would likely apply.) In June 2009, when the World Heritage Committee voted to delete the site, construction on the Waldschlößchen Bridge was only in its beginning stages. Discussions had deteriorated beyond salvation, but the bridge that would be responsible for the site’s deterioration was still years away from completion. The second case is a closer fit but still does not exactly describe Dresden’s situation. When the committee inscribed the Dresden Elbe Valley in 2004, the Regional Council had already approved the planning documents for the bridge. In that sense the site was threatened at the time of nomination, but UNESCO was not aware of that threat as Dresden’s application failed to properly describe the bridge. And since the threat to the site was not acknowledged, Germany, the State Party, had not outlined any corrective measures or proposed any timelines. For these reasons, the deletion of the Dresden Elbe Valley from the World Heritage List was not a standard delisting that fit within prescribed protocols. One justification for the delisting was akin to the rescission of a contract due to a material misrepresentation. Since UNESCO inscribed the site based on the belief that it would be managed in a way consistent with its World Heritage status, the misrepresentation of the Waldschlößchen Bridge in the nomination documents and the site’s continuing failure to develop an appropriate solution rendered the inscription voidable by UNESCO. The World Heritage Committee nevertheless tried to avoid delisting and, for one annual meeting after another, voted to keep the Dresden Elbe Valley on the List of World Heritage in Danger rather than delete it. Ultimately, however, after numerous threats to delist if bridge construction continued as planned, UNESCO had little choice other than to delist in order to maintain its own credibility. Hollow threats would not be taken seriously, and if Dresden were allowed to defy the World Heritage Committee without consequence, it might encourage similar behavior by other sites.

UNESCO has had numerous successes in stopping developments that would be harmful to World Heritage Sites. While UNESCO is “not an international police force,” according to its Assistant Director General for Culture, it does have a power of persuasion that comes from its authority and expertise.^{Footnote 77} Some successful interventions have led to the closure of a proposed gold mine adjacent to Yellowstone National Park, the abandonment of plans by Russian energy company Gazprom to construct a 400-meter skyscraper in the historical center of St. Petersburg,^{Footnote 78} the rerouting of a new highway near the Pyramids of Giza, and the decision not to build an aluminum plant near the sanctuary of Delphi.^{Footnote 79} The mere threat of having a site placed on the Danger List or, even worse, removed from the World Heritage List entirely, is often enough to cause governments to reexamine their policies.

Sometimes UNESCO is accused of being undemocratic, since there is no way for the citizens of the world to hold its UNESCO officials directly accountable through elections. One vocal critic of World Heritage, the British architect and professor Robert Adam, argues that “real communities can be democratic, the population of the world cannot.^{Footnote 80} And since culture is created at the local level, he says, only locals can understand their culture well enough to properly manage their heritage.^{Footnote 81} But there are countless examples of dysfunctional local politics and short-sighted local planning decisions that challenge these conclusions. One of the reasons for establishing World Heritage was to add an additional level of protection for sites deemed to be of global importance. Since UNESCO’s tools are resources are limited, this additional level of protection leaves much to be desired. With 981 World Heritage Sites, but only about 80 staff members and an annual budget of around $9 million, there is only so much that the World Heritage Centre can do.^{Footnote 82} The duty and cost of conservation fall heavily on national, state, and local governments, so even if World Heritage Sites are part of the world’s cultural and natural heritage, their conservation relies on local stewardship.

Despite all its consternation over the Waldschlößchen Bridge, UNESCO does not always oppose development, or bridges for that matter. Some bridges are themselves World Heritage Sites, such as Spain’s Vizcaya, Bosnia’s Mostar, and England’s Iron Bridge. At the World Heritage Committee’s 2010 meeting in Brasilia, a proposed vehicle bridge near the Lorelei in Germany’s Upper Middle Rhine World Heritage Site received the committee’s approval to begin planning despite being the first bridge to cross the 80-km stretch of the Rhine between Mainz and Coblenz.^{Footnote 83} Why did the Rhine bridge receive such a different reception only a year after the Waldschlößchen Bridge earned the committee’s harshest sanction? The Rhine bridge’s design would be better integrated with the landscape, but Germany also gave the committee advance notice to avoid any surprises later. Since then, however, the Upper Middle Rhine Valley’s World Heritage status has come under threat on account of a summer toboggan run that was recently installed in a privately-owned field above the Lorelei cliff. The project followed local planning regulations but is not in line with UNESCO’s idea of what should be included in a World Heritage site, leading UNESCO to order that the facility be dismantled or else it would threaten the Upper Middle Rhine Valley’s status. The popular and lucrative toboggan run is unlikely to be dismantled voluntarily, so it is possible that the facility would need to be purchased and removed at the expense of local taxpayers, whose own government approved the project in the first place. Whether on the Rhine or the Elbe, at river level or above it, the story is not so different.

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