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Landscape Protection in International Law$

Amy Strecker

Print publication date: 2018

Print ISBN-13: 9780198826248

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780198826248.001.0001

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The 1972 UNESCO World Heritage Convention

The 1972 UNESCO World Heritage Convention

Chapter:
5 The 1972 UNESCO World Heritage Convention
Source:
Landscape Protection in International Law
Author(s):

Amy Strecker

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198826248.003.0005

Abstract and Keywords

Chapter 5 analyses the evolving conception and protection of landscape in the World Heritage Convention. First, it traces the development of landscape protection from its early conceptual dependency on nature, to the incorporation of ‘cultural landscapes’ within the Convention’s scope in 1992. It then discusses the typology of cultural landscapes, issues of representativeness and the implications of the Word Heritage system for landscape protection globally, as well as locally. In this regard, a number of cases are analysed which, on the one hand, support the World Heritage Convention’s instrumental role in landscape governance, but which on the other, highlight the problems involved in ascribing World Heritage status to living landscapes from a spatial justice perspective.

Keywords:   World Heritage Convention, cultural landscapes, associative cultural landscapes, Dresden Elbe Valley, Montichiello, global landscape governance, local landscape governance

5.1 Natural Landscapes and the First Twenty Years

The Convention on the Protection of the World Cultural and Natural Heritage (hereafter World Heritage Convention) was adopted by UNESCO at its seventeenth General Assembly in 1972.1 Recognized as the flagship programme of UNESCO’s activities in the field of culture, the original aim of the Convention was to ensure the identification, protection, conservation, presentation, and transmission to future generations of cultural and natural heritage of ‘outstanding universal value’.2 The rationale behind the Convention was that the ‘deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world’ (preamble). The World Heritage Convention now has 193 states parties,3 which makes it the world’s most universal legal instrument in the field of conservation.4 To be nominated for inclusion in the World Heritage List, sites must be of ‘outstanding universal value’ and meet at least one out of ten selection criteria.5 Outstanding universal value ‘means cultural and/or natural significance which is exceptional enough to transcend (p.62) national boundaries and to be relevant and of importance to the global community now and in the future’.6

It is fair to say that the World Heritage Convention has received a disproportionate amount of attention—both scholarly and popular—compared to other UNESCO treaties. This is due to a number of reasons, including it being the earliest international treaty dealing with the peacetime protection of cultural heritage, its high visibility and widespread recognition, and for the way in which it has influenced heritage discourse and heritage standards globally. The Convention has been commented upon, and indeed critiqued, from various disciplinary standpoints.7

Although the World Heritage Convention was innovative for its time because it provided for the protection of both natural and cultural sites—a fact discernible from the use of the term ‘heritage’ instead of ‘property’ in its title8—selection criteria were nevertheless separated into natural and cultural sites at the time of drafting. Nature conservationists believed that the less human interference there had been in a given area, the ‘better’ or more authentic it was.9 Thus cultural heritage was divided into monuments, groups of buildings, and sites.10 Natural heritage was divided into natural features, geological, and physiographical formations and natural sites.11 Cultural sites had (p.63) to meet the criteria of authenticity and natural sites the criteria of integrity.12 What constitutes either of these terms has been a contentious issue since the Convention’s inception.

The first Operational Guidelines stated that authenticity involves ‘matters of design, material, workmanship or setting’.13 Both criteria have been expanded substantially by the World Heritage Committee (WHC) over the years, and the single paragraph defining authenticity in the first Operational Guidelines now incorporates some eight paragraphs in the most recent Guidelines (2017).14 ‘Properties nominated under criteria (i) and (iv) must now meet the conditions of authenticity, and the Nara Document on Authenticity is cited as a practical basis for measuring this.15 All properties nominated for inscription must possess the conditions of integrity.16 Integrity is described as ‘a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes’, and requires the assessment of a number of elements.17 It is usually taken to mean physical and/or contextual and/or environmental integrity. Examples would include an archaeological or architectural complex which was more or less complete, or a ruin, which had not been subsequently developed upon. Development in or around a site which strips it of an essential integrity, for example, a road dividing an architectural work from its gardens, would cause the loss of integrity. On the other hand, continuous and harmonious development over time could maintain integrity and enhance a site.

Although no explicit mention was made of landscapes in the original text of the Convention, the Operational Guidelines referred to landscapes under the criteria for natural heritage, namely as examples of the ‘interaction between man and his environment’, with ‘terraced agricultural landscapes’ provided as an example.18 Landscape was also referred to under cultural criteria but only in relation to ‘garden and landscape design’. A new paragraph was (p.64) introduced into the 1980 Operational Guidelines emphasizing the importance of ‘mixed sites’,19 and the reference to ‘terraced agricultural landscapes’ was removed from the list of natural criteria. In 1984 it returned, however, when the issue of mixed natural/cultural sites and rural landscapes was raised by the Rapporteur—reference being made to ‘exceptionally harmonious, beautiful, man-made landscapes as epitomised by the terraced rice-fields of South East Asia, the terraced fields of the Mediterranean Basin or by certain vineyard areas in Europe’. Despite this reference to mixed sites, in the following years most landscapes were inscribed on the World Heritage List under natural criteria only. The inscription of some landscapes under natural criteria excluded the recognition of people who for generations had lived there and who had managed the landscape (and for whom the landscape was sacred in some cases). Indeed, in the early years of the Convention’s implementation, there was an assumption that natural heritage was pristine, without the influence of humanity.20 Due to these problems, the WHC requested the IUCN, ICOMOS, and the International Federation of Landscape Architects to form a task force with the aim of developing guidelines for the identification and nomination of mixed natural and cultural sites.21 A first meeting was held in 1985 and guidelines were drafted, although when the UK put forward the nomination of the Lake District National Park in 1987 as a potential mixed natural/cultural landscape, the Committee opted not to make a decision until specific criteria could be developed for cultural landscapes.

5.2 World Heritage ‘Cultural Landscapes’

In 1992, the first expert meeting on World Heritage cultural landscapes was held in La Petite Pierre (France).22 On the basis of the recommendations of (p.65) the meeting, the Operational Guidelines were subsequently revised to officially include ‘cultural landscapes’ within the scope of the Convention, and were adopted by the sixteenth session of the WHC.23 Cultural landscapes were defined as ‘cultural properties representing the combined works of nature and of man designated in Article 1 of the Convention. They 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.’24

They should be selected on the basis both of their outstanding universal value and of their representativity in terms of a clearly defined geo-cultural region and also for their capacity to illustrate the essential and distinct cultural elements of such regions.25 […] The term embraces a diversity of manifestations of the interaction between humankind and its natural environment.26

The inclusion of the category of ‘cultural landscapes’ within the scope of the World Heritage Convention reflected the evolving concept of ‘heritage’ and recognized the fact that many sites cannot be separated into criteria of culture or nature. It also recognized the cultural and social importance attached to landscapes, which had, until then, been designated as ‘natural’ heritage.27 Prior to this, the text of the Convention favoured a ‘monumental’ vision of heritage, corresponding to Western aesthetic canons. ‘Out of step with over twenty years of progress made in the human sciences, it risked losing its credibility by privileging the monuments of a few cultural basins’.28 From an analysis of those in attendance at the first expert meeting in La Petite Pierre, it appears that the Australian experience of managing indigenous landscapes had an influence on the conceptualization of cultural landscapes for (p.66) the purposes of redefining the Convention’s criteria.29 Three categories of cultural landscapes were incorporated into the revised Operational Guidelines:30

  1. i. clearly defined landscapes designed and created intentionally by man. This embraces garden and parkland landscapes characteristically constructed for aesthetic, social, and recreational reasons which are often but not always associated with religious or other monumental buildings and ensembles;

  2. ii. organically evolved landscapes resulting from an initial social, economic, administrative, and/or religious imperative and have developed their present form by association with and in response to the natural environment. Such landscapes reflect that process of evolution in their form and component features. They fall into two sub-categories:

    1. a) relict (or fossil) landscapes in which an evolutionary process came to an end at some time in the past, either abruptly or over a period. Their significant distinguishing features are, however, still visible in material form:

    2. b) continuing landscapes which retain an active social role in contemporary society closely associated with a traditional way of life. They are continuing to evolve while, at the same time, exhibit significant material evidence of their historic evolution;

  3. iii associative cultural landscapes with definable powerful, religious, artistic, or cultural associations with the natural element rather than material cultural evidence, which may be insignificant or even absent.

The criteria concerning continuing and associative landscapes were significant because they gave recognition to continuing tradition, customary practices, and the associative dimension to landscapes. As noted by Rössler, ‘the primary difference was the acceptance of communities and their relationship with the environment’.31 The inclusion of both continuing landscapes and associative landscapes were certainly influenced by arguments raised by Indigenous peoples in response to the ‘natural’ heritage nominations of well-known heritage sites in Australia and New Zealand, most notably Uluru and Tongariro National Park. Tongariro National Park had been inscribed under natural criteria from 1990 before it was known that the ‘natural’ environment was not only the homeland of a community but also that the natural features (p.67) were imbued with great importance for their culture. Moreover, it was the presence of this community and their care and maintenance of the natural environment that gave the site its characteristic qualities. Tongariro was re-inscribed as an associative landscape in 1993 to mark the fundamental role the landscape plays in the oral tradition and cultural identity of the Maori people. According to Chief of the Ngati Tuwharetoa: ‘these sacred mountains are to be owned by no-one and yet are for everyone’.32

Likewise, Uluru and its surrounding landscape had initially been inscribed on the World Heritage List as a natural site in 1987, but was re-inscribed in 1994 as a cultural landscape in recognition of the close cultural associations between the Uluru landscape and the Anangu people. Uluru played an important role in shaping the definitions of cultural landscape in 1992 and thereafter. As stated by the Australian Government’s renomination: ‘The significance of the landscape is not measured only by individual locations … they are interconnected by the iwara (tracks) of the heroic beings active during the Tjukurpa (the Law).’33 ‘It is a complex concept because it relates not only to the era of the travels of the ancestral figures, but also to the Law as a force in the lives of the living. It does not reflect the Western concept of time.’34 Many of the striking rock features of Uluru ‘are the transformed bodies or implements of the creative heroes of the Anangu religion. The conservation and management of the Uluru Kata Tjuta National Park are guided by Anangu law and involves for example, the spacing of groups more evenly across the landscape ensuring that overexploitation of particular wild foods does not occur.’35 For the Anangu and many other indigenous peoples, the landscape is not only a natural entity, but also a cultural one.

Aside from the recognition of intangible values and the spiritual relationship between local communities and nature, the cultural landscapes category acknowledged that sites are not isolated islands, but that they have to be seen in the ecological system and their cultural linkages in time and space beyond single monuments and strict nature reserves. Furthermore, cultural landscapes highlighted the importance of unique land-use systems, the continued work of people over centuries and sometimes millennia to adapt to the natural environment, also recognized as enhancing biological diversity.36 (p.68) Key world crops developed in spectacular agricultural systems in the High Andes (e.g. potatoes, corn), terraced rice paddies in Asia (rice, fish, vegetables), and oasis systems in the Sahara (dates). The global importance of these systems and the genetic varieties in diverse cultural landscapes was acknowledged. In some cases they represent models for sustainable land use and community stewardship, including the marketing of specific agricultural products or traditional arts and crafts. The third cultural landscape to be inscribed on the World Heritage List represented one such example. The Rice Terraces of the Philippine Cordilleras were inscribed as a cultural landscape (organically evolved continuing) in 1995.37 Described as the result of the interaction between the people their customary activities and traditional practices of rice production dating back centuries, the decision to inscribe the Cordilleras was based on their illustration of a ‘remarkable degree of harmony between humankind and the natural environment’, their ‘great aesthetic appeal’, as well as their demonstration of ‘sustainable farming systems in mountainous terrain, based on careful use of natural resources.’38 ‘Owing to the difficult terrain, the Cordillera mountain tribes are among the few peoples of the Philippines who successfully resisted foreign domination and preserved their tribal culture’.39 The steepness of the slopes means that all tilling and maintenance has been carried out manually for the last 2000 years. The complex system of dams, sluices, canals, and bamboo pipes transfer water from the highest terrace to the lowest, draining into a river or stream at the bottom of the valley. However, while the designation of an agricultural landscape such as the Cordilleras as World Heritage was based on humanizing principles, the effects of such designation are arguably contrary to such ends.

Maintaining the integrity of a cultural landscape implies an obligation on the people living there to maintain their customs and traditional farming practices, yet this can be difficult, if not burdensome, in the face of external market forces, poverty, and environmental problems. The Cordilleras were placed on the List of World Heritage in Danger in 2001 due to landscape management issues stemming from the abandonment of terraces, dispossession of property rights, and resource management conflict.40 The underlying challenge for the landscape of the Cordilleras landscape was (and still is) socio-economic in nature.41 After a number of fact-finding missions, benchmarks were set in 2006 by the World Heritage Centre and the advisory bodies ICOMOS and IUCN. These benchmarks returned to the core of the (p.69) landscape’s problems and sought to consider local peoples’ perceptions, local development aspirations of the communities, and functional governance mechanisms.42 In order for the landscape of the Cordilleras to maintain its legitimacy, it must fulfil socio-economic benefits and provide a livelihood for the communities who live there. After efforts were made by the state party to remedy the situation, the Cordilleras were withdrawn from the List of World Heritage in Danger in 2012.43 Yet the case represents one of the challenges in the designation of living landscapes deemed to be of outstanding universal value, where that value implies restrictions on the fundamental rights of its inhabitants—namely that of development and self-determination, to be discussed further later in the chapter.

5.3 Landscape Diversity and Representativeness of the List

The Operational Guidelines refer to the great variety of landscapes representative of the different regions of the world.44 The problem of geographical cover and under-representation have marred the World Heritage Convention since its inception. There was, and still is, a preponderance of categories of cultural items that essentially pertain to European civilization, archaeological sites, historic sites, and Christian monuments, while vernacular heritage and cultural landscapes represented less than 10% of the whole List.45 In addition, cultural sites have always massively outnumbered natural sites on the World Heritage List.46 Thus, the listing system may appear rather ad hoc, driven by national interests. In an attempt to remedy this somewhat, in 1994 at its eighteenth session, the WHC adopted a Global Strategy for a more representative list.47 The strategy aimed to encourage more under-represented countries to become states parties to the Convention (p.70) and develop tentative lists. Since then World Heritage nominations are not considered unless previously inscribed on the Tentative List by a state party.48 Later, it was decided to examine only two complete nominations per state party per year, provided that at least one of the nominations concerned a natural property, and the annual limit on the amount of nominations to be reviewed was set at forty-five.49

As previously stated, the World Heritage Convention focuses on cultural properties of ‘outstanding universal value’ and selection for nomination for inscription of a property on the World Heritage List must come from the states parties. This has caused some criticism of the Convention,50 in that the listing of a few may signal to governments that they are at liberty to do as they wish with any site not on the List, and hence deemed to be of lesser historical, cultural, or social importance. Yet not all cultural properties or sites deemed to be important could feasibly be listed. ‘Outstanding universal value’ is a means of selection of a number of representative sites, which because of their exceptional quality are of more concern for the international community. Furthermore, the Convention’s Article 12 provides that ‘when a property belonging to the cultural heritage has not been included in the List, this shall in no way be construed to mean that it does not have an outstanding universal value for the purposes other than those resulting from inclusion’. Federico Lenzerini’s analysis of Article 12 points out that a ‘cultural property may be of outstanding universal value, being thus included within the scope of the Convention ratione materiae, even in the event that it is not inscribed on the World Heritage List’.51 This is also emphasized by Guido Carducci, who argues that the Convention ‘applies to heritage as defined by Articles 1 and 2 situated on the territory of states parties, whether or not this heritage is listed under Article 11’.52 Arguably, states parties to the Convention are under the obligation to respect the provisions of the Convention also with regard to those cultural properties not included in any of the two lists established by Article 11, if they objectively satisfy the conditions and requirements for being (p.71) considered of ‘outstanding universal value’.53 The Buddhas of Bamiyan, for example, were not inscribed on the List at the time of their wilful destruction by the Taliban, yet as pointed out by Pierre-Marie Dupuy, Afghanistan had ratified the Convention in 1979 and the importance of the Buddhas did not depend on their inscription on the List (and even if it did, it would unlikely have deterred the Taliban from destroying them).54 Indeed, there are cultural landscapes in many regions of the world which are not of ‘outstanding universal value’ but which may be highly representative or important at national or international levels.55 There are also many world heritage sites that are essentially cultural landscapes, although not inscribed as such. Archaeological landscapes such as Stonehenge and Avebury—as relict or fossil landscapes—or garden and park landscapes such as Versailles would be clear examples. Fowler notes that the cultural landscape concept is not the opposite of an area or structure which is thought to be of only local interest, as every landscape has its locally significant features and finds validity as a local place. The difference is that a potential World Heritage Site must satisfy the criterion of being ‘outstanding’ in so far as it must have a demonstrable quality over and above the merits of something of only local heritage interest.56 The rationale behind the designation of cultural landscapes as a World Heritage category was a noble one, an attempt to make the List more credible, representative, and more relevant outside Europe. However, as the example of the Cordilleras shows, it is not without problems, since designating a living landscape as heritage can bring with it various socio-economic challenges for sustainability and spatial justice. What follows is an examination of the typology of cultural landscapes inscribed on the List.

5.4 A Typology of World Heritage Cultural Landscapes

While cultural landscapes are defined as the ‘result of the combined work of nature and man’, they are nevertheless categorized as cultural or mixed heritage. Since the inclusion of cultural landscapes within the scope of the WHC in 1992, a total of 102 such landscapes have been inscribed on the World Heritage List (one of which has been delisted). Many sites inscribed (p.72) prior to 1992 would classify as cultural landscapes, as previously mentioned. Peter Fowler notes that prior to 2002, over 100 cultural landscapes had been inscribed on the List, yet only thirty of these were in the cultural landscapes category.57 Another study carried out more recently in 2007 revealed that over 360 sites on the World Heritage List could be described as a landscape complex.58 For the purposes of examining the typology, however, only those World Heritage sites defined as cultural landscapes within their site description will be addressed here. The first fact worth noting is that, of the 101 sites currently inscribed as cultural landscapes, ninety-one are classified as cultural heritage, and only twelve as mixed sites. Almost half of these cultural landscapes can be found in Europe and North America (fifty-four), followed by Asia and the Pacific (nineteen), Africa (twelve), Arab States (eight), and Latin America and the Caribbean (eight). A common thread of cultural landscapes is that most of them bear a toponym in their nomination title (valley, mountain, hill, archipelago, grove) or demarcated unit (region, park, settlement). However, cultural routes also feature, even though they do not represent a defined topographical area or spatial complex per se. It is difficult to separate cultural landscapes into the three categories originally conceived in the Operational Guidelines because many landscapes share multiple typologies, and the selection criteria for ascertaining the outstanding universal value of landscapes have since been incorporated into a set of ten criteria for all World Heritage nominations.59 However, it can be observed that the most represented form of cultural landscapes on the List is the second category, that is, organically evolved cultural landscapes, which can be split into relict (or fossil) landscapes and continuing landscapes. The former refers to ancient cultural landscapes that emerged in the prehistoric or historic period but which were later abandoned by humans or which are no longer used for the original purpose. Their material evidence is represented in the archaeological remains or ruins in the landscape. The continuing landscape, however, continues to function and evolve over time. Broadly speaking, the category of organically evolved cultural landscapes includes agricultural landscapes, industrial landscapes, historical townscapes, historic memorial landscapes, and (p.73) sacred landscapes. For the most part, particularly in the case of agricultural landscapes inscribed on the List, they are supposed to illustrate a harmonious interaction between humans and the environment over time, such as the Rice Terraces of the Philippine Cordilleras or the Cinque Terre. However, there are exceptions to this rule, for example, Las Medulas historic mining landscape in Spain.60 Las Medulas is the result of Roman exploitation of gold deposits using a technique based on hydraulic power, which impacted heavily on the landscape, leaving sheer faces in the mountainsides and vast areas of tailings, which are now used for agriculture. There was substantial objection at the time of nomination from some delegations, who believed not only that Las Medulas did not correspond to the definitions of cultural heritage in Article 1 of the Convention, but that this landscape was the result of destructive human activities as well as ‘harmful to the noble cause of environmental promotion and protection’.61

The next most represented category of cultural landscape on the List is the associative cultural landscape, now represented in criterion vi of the ten selection criteria, according to which a landscape must be ‘directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance’. It must be noted that this criterion is for the most part not considered in isolation but combined with other criteria in assessing the outstanding universal value of landscape for inscription. The first cultural landscapes formally inscribed on the List, Tongariro National Park in 1993 and Uluru Kata Tjuta in 1994 (previously discussed) were both re-inscribed under this category in recognition of the close cultural associations between these landscapes and the indigenous people for whom they hold special value. Of the thirty-one landscapes inscribed under the ‘associative’ criterion, the majority (twenty-six) are located outside Europe—in Asia and the Pacific, Africa, and Central America. The majority of these represent sacred landscapes, for example, in the form of sacred mountains (China, Japan, Kyrgyzstan),62 sacred hills (Madagascar, Zimbabwe),63 and sacred forests (Kenya).64 Other historic, literary, and artistic associations are represented in a small number of associative landscapes (p.74) in Europe, the Val d’Orcia being an example of a landscape with artistic and literary associations;65 the Ϸ‎ingvelli National Park in Iceland as a landscape with historic and literary associations—it was the seat of Norse governance from 930 until the eighteenth century and is celebrated in medieval Icelandic sagas.66 The remaining of the three categories of cultural landscapes, that is, clearly defined landscapes designed and intentionally created by man, is the least represented on the official list of cultural landscapes, all of which are located in Europe, as expected. This category covers garden and parkland landscapes, with a strong emphasis on aesthetics, often associated with building ensembles. Example of such a landscape includes Sintra in Portugal,67 the Royal Botanic Gardens in the United Kingdom,68 or the Garden Kingdom of Dessau-Worlitz in Germany.69

5.5 Institutional Framework and Implementation

The Operational Guidelines, although not mentioned in the Convention’s text, play an essential role in the daily implementation of the Convention by the secretariat.70 They set out the procedure for the inscription of sites and landscapes on the World Heritage List, include updated criteria for the protection and conservation of World Heritage sites, for the granting of international assistance through the World Heritage Fund, and for the mobilization of national and international support for the Convention, among other things. They are periodically revised to reflect the decisions of the WHC—the most recent Guidelines were adopted in 2017.71 The Operational Guidelines are ‘flexible working documents’, a tool of UNESCO ‘governance’72 and, in so far as they foster a uniform administrative practice of the states parties, especially regarding nominations of (p.75) properties for inscription, they have also been compared to an ‘administrative act’.73

Under the terms of Section III, articles 8 through 14 of the World Heritage Convention, implementation and oversight of the Convention are entrusted to the WHC, which meets once a year and consists of twenty-one representatives from the states parties to the Convention. The Committee is supported by a secretariat at the World Heritage Centre, UNESCO headquarters in Paris, and by three advisory bodies: the International Council of Monuments and Sites (ICOMOS), the International Union for the Conservation of Nature (IUCN),74 and the International Council for the Conservation and Restoration of Monuments (ICCROM). ICOMOS plays the largest role in the case of cultural landscapes and works closely with the IUCN. The main functions of the Committee are to examine the nominations put forward by states parties for inscription on the World Heritage List, to examine the state of conservation of the properties inscribed on the List through reactive monitoring, decide which properties should be inscribed on the World Heritage in Danger List, and decide whether a property should be deleted (which has only occurred twice, to be discussed later), to determine how resources are to be used and to review and report on the implementation of the Convention.75 Views on the effectiveness of the WHC vary between scholars and along disciplinary lines. On the one hand, the Committee has been described as a ‘guardian of the general interest’76 and the Convention is generally perceived as having a strong system of ‘international governance’.77 On the other hand, however, the Committee has come under scrutiny for its increasing politicization, with voting based on geopolitical alliances rather than on safeguarding the general interest.78 In addition, recommendations of the Advisory Bodies are increasingly (p.76) overturned and publicly derided.79 Lynn Meskell argues, for example, that sites are being transformed into transactional commodities with exchange values that transcend their cultural values.80

Periodic reporting consists in the reporting by states parties to the UNESCO General Conference (through the Committee) on the legislative and administrative provisions they have adopted for the application of the Convention, including the state of conservation of the World Heritage sites located on their territories. States parties can request expert advice from the advisory bodies and the secretariat. Periodic reporting is important for the long-term conservation of the properties as well as for ensuring the credibility of the implementation of the Convention. The procedure and format for such reporting is set out in detail in the Operational Guidelines.81 Reactive monitoring consists in the reporting by the secretariat and the advisory bodies to the WHC on the state of conservation of sites inscribed on the List that may be under threat. A further layer of supervision in the form of ‘reinforced monitoring’ was established by the Committee in 2007.82 States parties are invited to inform the Committee of their intention to undertake or authorize any major restoration or construction work that may affect the outstanding universal value of the property. The Committee may inscribe a property on the List of World Heritage in Danger if the site is threatened by serious and specific danger; if major operations are necessary for the conservation of the site and if assistance under the Convention has been requested for the site.83 Although, in practice, the Committee has proceeded to enlist some properties on the World Heritage in Danger List also without state consent, for example, the City of Dubrovnik in 1991.84 A number of criteria are set out in the Operational Guidelines to determine whether the site is deemed to be in danger. These include, inter alia, threatened effects of armed conflict, or effects of regional planning and town planning projects that seriously impair the authenticity or integrity of the (p.77) site.85 In the past, the information provided by states parties, particularly looking at the requirements of the conservation reports by the secretariat and the advisory bodies, was often incomplete.86 The frequency of the reporting was regarded as insufficient to monitor the implementation of decisions. Reinforced monitoring was adopted by the Committee to clarify the rules and responsibilities pertaining to World Heritage status and to improve compliance.87 Reinforced monitoring may be activated when implementation requires more robust monitoring and reporting beyond the standard requirements; the main difference between reinforced and reactive monitoring being the frequency of the information gathering activities and in the detail of the reporting process. States parties have the ‘responsibility’ (stronger language) to provide all relevant information to the WHC on the implementation of its decisions and to co-operate in this regard.88 In extreme circumstances, where the site has deteriorated to the extent that it has lost the characteristics which determined its inclusion in the World Heritage List, and where the corrective measures have not been taken by the state party, the Committee may propose the deletion of the site from the World Heritage List.89 According to UNESCO’s former Director General Matsuura, deletion is ‘never a satisfactory solution as UNESCO’s World Heritage Convention and World Heritage List have been created to ensure the preservation and enhancement of our shared heritage’.90 Deletion has in fact only occurred twice in the Convention’s history, to be discussed further below.

The approach by UNESCO in ensuring compliance of states parties with the Convention has generally been of ‘low level’ intensity, through persuasion or political pressure on governments, through placing a property on the List in Danger or through technical and financial assistance. This approach has been successful in many cases where the integrity of landscapes or sites has been seriously compromised by proposed development projects (see examples below). Although the Committee can issue formal expressions of concern to national governments and the international community, and may hold extraordinary sessions, it is ‘powerless to intervene directly against the will of the (p.78) state party concerned in order to protect our universal heritage’.91 The tension between state sovereignty on the one hand, and the international community interest on the other, has been a constant concern since the Convention’s adoption.92

5.6 World Heritage and the Global Governance of Landscape

The World Heritage Convention, despite its shortcomings, has undoubtedly had an impact on the global governance of landscapes. First, World Heritage status appears to weigh on domestic practice in cases of landscapes under threat from destructive large-scale project development. Second, it has proved instrumental in international cases dealing with landscape degradation (particularly in cases of investor–state arbitration and international criminal law) and third, the concept of the ‘cultural landscapes’ category itself has influenced other normative developments in the fields of international environmental law and cultural heritage law.93

World Heritage status has been used in many cases attempting to protect landscapes from environmentally or culturally destructive projects. Non-European examples include the Tasmanian rain forests, the location of a state-backed hydro-electric dam in the 1980s, which would have seriously harmed the integrity of the landscape. The case eventually made its way to the Australian High Court, where a four to three majority ruled in favour of the federal government and compliance with the Convention’s obligations.94 More recently, in 2014, the Tasmanian forests became again the focus of a dispute over proposals for modifications to the boundaries of the Tasmanian Wilderness to accommodate logging activity, made by Australian government on foot of election promises. Ultimately, the influence of the WHC, backed by domestic scrutiny and popular support, led to the cancellation of the proposed changes and protection of the Tasmanian Wilderness.95 In a similar case, a major copper mining operation was planned (p.79) for the Glacier Bay National Park, located at the junction of the Tatshenshini and Alesk rivers in British Columbia. The Tatshenshini-Alesk was part of an area including Canadian and US territory, inscribed on the World Heritage List in 1994 for its spectacular glacier and ice-field landscapes, as well as for the importance of grizzly bear, caribou, and Dall sheep habitat (under natural criteria vi through x). Because the mining (and consequent acid mine damage predicted by environmental impact assessment) would violate the World Heritage Convention, in addition to the Migratory Birds Convention, the Pacific Salmon Treaty, and the US–Canada Boundary Waters Treaty, a coalition of fifty conservation organizations urged British Colombia’s provincial government to create the Tatshenshini-Alsek Provincial Wilderness Park to protect the region.96

The World Heritage Convention has also been cited in a number of international investment disputes to justify the breaking of bilateral investment treaties (BITs) in order to protect cultural landscapes from destructive development. A wide variety of activities carried out by a state may interfere with an investor’s property rights and since investment agreements do not provide protective exemptions for environment or cultural heritage, regulatory measures aimed at protecting landscape may be considered as tantamount to expropriation, leading to a dispute. As illustrated by Valentina Vadi,97 the public purpose of a given regulation has been subject to only a limited exploration by tribunals and is not per se a defence to a claim of expropriation. While historically the basic content of BITs has almost entirely focused on investment protection, in recent years public policy concerns have begun to be incorporated more frequently into BIT provisions, concerns such as health, safety, security, and environmental protection.98 The protection of World Heritage landscapes has been the subject of two International Centre for the Settlement of Investment Disputes (ICSID) Tribunal cases in which the importance of international cultural heritage obligations was considered and in which inscription on the World Heritage List affected the outcome: SPP v Egypt and Parkerings v Lithuania.

(p.80) SPP v Egypt and Parkerings v Lithuania

The case of Southern Pacific Properties Limited v Arab Republic of Egypt99 involved the development of a tourist village at the pyramids of Giza by Southern Pacific Properties Limited. After the investment had been approved, Egypt applied for the area to be inscribed on the World Heritage List and cancelled the development project with a view to gaining World Heritage status, which was subsequently granted in 1979.100 The ICSID recognized that the registration of these areas occurred belatedly in the context of the dispute, but that Egypt’s acts, which were contemporaneous with the cancellation of the project, indicated the genuineness of its concerns for the heritage at the project site. One of these acts was Decree No. 90 of 1978 which declared landscape on the project site to be ‘public property’.101 The Tribunal sustained the claimants’ argument that the public purpose of the expropriation could not alter the obligation to pay fair compensation. However, it also added that the claimants’ activities on the Pyramids Plateau would have become internationally unlawful in 1979, but that it had significant consequences in other respects,102 namely, following 1979 when the Pyramids Plateau was enlisted as World Heritage, ‘sales in the areas registered with the World Heritage Committee under the UNESCO Convention would have been illegal under […] international law’, and that the allowance of lucrum cessans may only involve those profits which are legitimate.103 Thus as a result of World Heritage status for the site, compensation could be radically affected.104 The notion of World Heritage and its implications was further elaborated in the dissenting opinion of Judge Mohamed Amin El Mahdi, who opined that ‘the uniqueness of the site on which the project was finally intended to be implemented, mandated to take into consideration this element of ‘public international interest or need’ as regards the issue of the dispute’.105 In his opinion, the two Parties in the dispute did not underestimate the obligation to preserve any vestige of the Ancient Civilization on the Pyramids Plateau. By choosing the site of the project on the Plateau proper and in the vicinity of the monuments themselves, those who opted for that choice, instead of the site proposed by the Respondent, were necessarily aware of the high risks undertaken. ‘It was in (p.81) fact and in law a ‘contrat à grand risque’ he stated, with all the consequences that emanate from that qualification juridique106 and extended this further by implying there was a prior obligation regarding the preservation of cultural heritage in the interest of the international community and that this obligation constitutes an element of the international public order.107 As pointed out by Riccardo Pavoni, the case was significant because the ICSID Tribunal unhesitatingly accepted the WHC as relevant applicable law. In addition, the Tribunal’s terminology and overall structure of its reasoning imply that state measures adopted to safeguard heritage sites already registered on the World Heritage List would override investor protections and that investors should take notice of host states’ WHC obligations and become aware of the possible cultural and natural sensitivity of areas where they implement their activities.108

In the case of Parkerings v Lithuania,109 the ICSID Tribunal adopted a different approach and found that Lithuania’s cancellation of a project justified different treatment on the grounds of cultural heritage. The case involved a Norwegian investor Parkerings, who had entered into a contract to build and maintain multi-story parking facilities in the historic old town of Vilnius. The dispute erupted when the contract was terminated by the municipality, following legislative changes that brought the agreement into conflict with Lithuanian law.110 The claimant alleged that Lithuania had breached, among other things,111 the most-favoured nation treatment provision of the BIT and drew a contrast between the treatment it received and the treatment enjoyed (p.82) by a Dutch firm, Pinus Proprius.112 However, counsel for Lithuania argued that the two projects differed in important respects: notably in the public opposition to the Parkerings project on archaeological and environmental grounds, and the fact that the project infringed deeper into the city’s Old Town as defined by UNESCO, sparking concern from the State Monument Protection Commission over the impact on the city’s cultural heritage.113 The Tribunal ultimately ruled that Lithuania was not in breach of its obligations under the Norway–Lithuania BIT and held that the archaeological and environmental concerns attached to the Parkerings project justified different treatment. Notably the Tribunal found it ‘decisive’ that the Parkerings Project ‘extended significantly more into the Old Town as defined by UNESCO’114 and added:

Indeed, the record shows that the opposition raised against the BP projected multi-story car park were important and contributed to the Municipality decision to refuse such a controversial project. The historical and archaeological preservation and environmental protection could be and in this case were justification for the refusal of the project.115

Thus, the ICSID Tribunal held that characteristics such as different historical, archaeological, and environmental impacts of two foreign investment projects may contribute to a finding that two projects do not share like circumstances for comparison purposes. In this respect the Tribunal was praised by the Centre for International Environmental Law for giving ‘proper weight to environmental factors’, one observer adding that tribunals have differed in their approaches to interpretation of like circumstances, some treating them as mere exceptions while others in this case, as proper justifications.116 The fundamental difference between the case of SPP v Arab Republic of Egypt (p.83) and that of Parkerings v Lithuania is that while in former, the site had not yet been inscribed in the World Heritage List at the time the parties entered into the investment agreement, in the latter, the Old Town of Vilnius already had World Heritage status, which lent more weight to the overall argumentation of the respondent state, ultimately leading to a different outcome in the award. While the two cases indirectly dealt with the question of cultural landscape, that is, the pyramids, and surrounding area in the former, and the townscape of Vilnius in the latter, they both concerned the international ‘public interest’ in their preservation, the community interest in their protection, not as property of the state but as legacy of humankind, thereby illustrating the positive influence of World Heritage status.

Prosecutor v Strugar (ICTY), Prosecutor v Al Mahdi (ICC)

In addition to investor–state arbitration, the influence of the World Heritage Convention can also be seen in the jurisprudence of international criminal law. Two cases stand out in this regard: the first dates from the war in the Former Yugoslavia and concerns the deliberate shelling of the Old Town of Dubrovnik by the Yugoslav Peoples’ Army in 1991. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) recognized the attacks as independent counts of criminal liability under the laws and customs of war. Specifically, the Trial Chamber observed that ‘the Old Town of Dubrovnik in its entirety was entered onto the World Heritage List in 1979 upon the nomination of the SFRY. The properties inscribed on the World Heritage List include those, which because of their architecture, their homogeneity or place in the landscape, are of outstanding universal value from the point of view of history, art or science. […] The Chamber therefore concludes that the attack launched by the JNA forces against the Old Town on 6 December 1991 was an attack directed against cultural property within the meaning of Article 3(d) of the Statute.’117 Thus, the World Heritage status of Dubrovnik proved instrumental in the ICTY judges’ construing the site as cultural property for the purposes of interpreting the court’s statute.

The significance of World Heritage status was emphasized to a much greater extent in a more recent case involving an attack on a World Heritage site (arguably a cultural landscape, although not inscribed on the List as such). On 27 September 2016, the International Criminal Court (ICC) convicted Ahmad Al Faqi Al Mahdi for the deliberate targeting and attack of historic and religious monuments during the occupation of Timbuktu (Mali) (p.84) in 2012, when armed groups took control of the city and forcibly imposed Sharia Law on the population. Mr Al Mahdi was a member of Ansar Dine and head of the ‘hisbah’—the morality brigade—under the occupation of Timbuktu by AQMI (Al Qaeda Organization in the Islamic Maghreb) and Ansar Dine. Central to the prosecution’s argument was that the destruction of important cultural heritage sites not only affected the local inhabitants, but was also an affront to the values of humanity as a whole. The Prosecutor noted that ‘humanity’s collective conscience was shocked by this senseless destruction of its common heritage.118

The fact that all but one were UNESCO World Heritage sites proved an aggravating factor in the case against Al Mahdi. As noted by the Court, ‘all sites but one were UNESCO World Heritage sites, and, as such their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful inhabitants of Timbuktu, but also people throughout Mali and the international community.’119 This fact was clear with the reaction to many similar acts of destruction, for example, during the war in the former Yugoslavia at the shelling of Dubrovnik and Mostar, at the deliberate destruction of the Buddhas of Bamiyan by the Taliban in 2001, and more recently at the attack on Palmyra and other heritage sites in Syria, Iraq, and beyond. However, humanity as a whole is a somewhat ephemeral victim in this instance, the real victims being the local inhabitants of Timbuktu whose cultural heritage and cultural rights were being targeted. While Al Mahdi was aware of the World Heritage status of the shrines in question,120 it is not clear whether World Heritage status served as a reason for their targeting. In essence, what was targeted was the sacred, associative landscape of the people of Timbuktu, even if what gained attention was the World Heritage status of those sites. Thus, the rationale of the Court in emphasizing universal values over the more relativist ones is not entirely logical in this case.121

What the foregoing cases illustrate is that World Heritage status can and does play a role in decisions involving landscape protection at the international level, whether through diplomatic channels and their influence on domestic (p.85) decisions, as in the case of Tasmanian Wilderness and the Glacier National Park, or through its use by states as a legitimate aim to rescind on trade agreements, or more recently as an aggravating factor in international criminal cases concerning the intentional destruction of cultural landscapes. These examples contribute to a general opinio juris on the binding character of the principles prohibiting the deliberate destruction of landscapes of significant importance for humanity. Francesco Francioni and Federico Lenzerini cite the almost universal ratification of the World Heritage Convention, as well as the authoritarian character of UNESCO recommendations—representing the near totality of states that participate in the General Conference—as corroborating factors for this opinio juris.122 Roger O’Keefe recalls the obligation to protect in Article 4 as an obligation owed to ‘all states parties to the Convention, and “established for the protection of a collective interest of the group” as laid down in Article 48(1)(a) of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts’.123 It is, in O’Keefe’s view, an obligation erga omnes. Furthermore, the nature of the ‘protection of cultural heritage as a matter of public interest, and not only as part of private property rights, is recognized in most of the mature domestic legal systems of the world’.124 This represents some of the positive influence of the World Heritage Convention on global landscape governance. The impact of World Heritage status on local landscapes is significantly more complex.

5.7 The World Heritage Convention and Local Landscape Governance

According to Mechtild Rössler, the opening of the World Heritage List to cultural landscapes related to a shift towards ‘people and communities’.125 Yet what this means in practice is not clear sixteen years after the introduction of the cultural landscapes category. The shift to people and communities does not avoid the fact that landscapes are inherently contested, perhaps even (p.86) more so than other forms of heritage sites or monuments, due to the fact that many cultural landscapes are lived-in places. Cultural geographers use the term ‘contested landscape’ to suggest that no one looks at the landscape completely objectively, without preconceptions and biases.126 Contested landscapes are essentially about the unequal distribution of power, in which the views of some groups are deemed acceptable, while others are marginalized and ignored. Two European cases illustrate such tensions with cultural landscape inscription. The first is the cultural landscape of the Dresden Elbe Valley, one of only two sites to have been deleted from the World Heritage List, after the local authorities of Dresden decided to proceed with the construction of a controversial bridge across the valley.127 The second is the cultural landscape of the Val d’Orcia, which concerned the construction of a tourist development in the town of Monticchiello.

Dresden Elbe Valley

The Dresden Elbe valley was inscribed on the World Heritage List as an outstanding cultural landscape in 2004, for the way in which it integrated ‘the celebrated Baroque setting and suburban garden city into an artistic whole within the river valley’, as well as being ‘an example of land use, representing an exceptional development of a major Central European city’.128 The cultural landscape comprises both the urban centre of Dresden, as well as the valley stretching eighteen kilometres along the Elbe river from Ubigau Palace and Ostragehege fields in the north west, to Pillnitz Palace and the Elbe River Island in the south east. In 2005, it was revealed that documents supplied to support nomination of the site did not contain all the correct information regarding the location and dimensions of the Waldschlössen bridge, one of a number of bridges planned for the valley contained within the nomination dossier. After additional information had been supplied by the Mayor and the local administration, UNESCO stated that ‘this valley crossing is no longer an urban bridge, but instead an important road connection resembling a motorway which would result in tearing apart the affected areas of the city and mostly the valley area of the river Elbe’.129 A meeting was held in January (p.87) 2006 at UNESCO’s headquarters, with a variety of stakeholders, including the mayor of Dresden, where he agreed to commission a visual impact study. This was followed by a second meeting during which the mayor decided to suspend works until the outcome of the next session of the WHC. In the meantime, however, the Regional Government—the Land of Saxony—intervened and ordered construction of the bridge to proceed.130

At its thirtieth session in 2006, the WHC expressed great concerns over the bridge project and the results of the visual impact study. The study showed that the construction of the project would have a major visual impact on the core area of the cultural landscape.131 The Committee then decided to place Dresden on the World Heritage in Danger List, with the intention of deletion should the authorities decide to proceed. Germany was requested to review the project(s) in the core zone and to provide an updated report to UNESCO by 2007. In a reinforced monitoring mission to the Dresden Elbe Valley in 2008, the importance of sensitive development was stressed by UNESCO: ‘In terms of authenticity and integrity, it is important to recognize that the cultural landscape of the Dresden Elbe Valley developed over centuries of gradual accumulation and is therefore a living, evolving urban site where a certain degree of change is acceptable by definition.’132 It was also emphasized that over the centuries there was constant and conscious preservation of special panoramic views through careful planning of developments, i.e. certain fundamental features of the landscape ‘appear to have been intentionally retained and even enhanced over time because they were seen as constituting the essence of the place’.133 At its thirty-first session, the Committee decided to delete Dresden from the List, but gave Germany a further four months to find an acceptable solution. The solution offered by the authorities entailed slight modifications to the original design, which were not deemed to be enough by UNESCO to mitigate the impact of the bridge on the landscape. Eventually, after another year of attempted dialogue, the Dresden Elbe Valley was delisted.134

At the root of the dispute was the fact that the original planning decision of the Land of Saxony for the bridge had been approved before UNESCO had agreed to inscribe the Dresden Elbe Valley as a World Heritage site. (p.88) Yet the information provided by the nomination file was incomplete and did not provide full information regarding the bridge’s dimensions and location. According to Rössler, there were ‘misunderstandings’ and ‘misinformation’.135 The original application dossier supplied to the World Heritage Centre contained no precise proposal, only a map with various bridge models. Apparently there was another, internal document in German, which was not official, since all official documents have to be written in one of the working languages—English or French. ‘When a major construction project is pending, this project has to be presented to UNESCO for review, including the blueprints. This did not happen, and we only learned about this specific bridge belatedly’.136 It was described as an urban bridge, when it resembled a four-lane motorway. Furthermore, there was an assumption on the part of the authorities that because Dresden was not listed at the time, they were at liberty to pursue their own planning projects irrespective of potential breaches of the Convention and the international responsibility ensuing. The regional authorities relied on the fact that there had been a citizen’s referendum in 2005, which asked whether or not the citizens of Dresden were in favour of the bridge proposal. The outcome of the referendum was a majority in favour of the bridge.

When mediation failed, a number of cases were brought before local and regional administrative and constitutional courts.137 These culminated in Dresden City Council bringing a constitutional challenge and urgent motion to the Supreme Constitutional Court of Germany.138 The court upheld the referendum and the decision of the Saxon Higher Administrative Court, which ordered construction of the bridge to commence immediately. Sabine Von Schorlemer views the actions of the German state as puzzling.139 (p.89) She cites the fact that Germany applied to have the valley inscribed on the List only a number of years previously, yet did not intervene with the Land of Saxony to try to halt the project.140 In addition, she argues that Germany had been party to the World Heritage Convention since 1976, is one of the world’s most developed countries which supports other less-developed nations in the field of cultural co-operation, and in the past has modified plans for development projects on other World Heritage sites due to concerns voiced over integrity.141 Likewise, the Foreign Federal Ministry warned that the loss of World Heritage Status would constitute ‘a serious loss of credibility for Germany in the field of international co-operation’.142 Von Schorlemer also points to an alternative to the bridge that existed in the form of a tunnel, which was supported by the WHC.143 Yet what is missing in her analysis is that it is precisely Germany’s so-called puzzling actions that lead us to critically examine the delisting of Dresden, in particular, the implications of cultural landscape designation as weighed against the needs and desires of local populations. It could be argued that the decision to delist the cultural landscape only aggravated the situation and led to a loss of credibility, not for Germany as a state party, but rather of the World Heritage regime and its perceived unrealistic expectations. This was not a case of intentional heritage destruction, but one where initial misunderstandings, lack of proper oversight, and failed compromise led to a drastic decision, the effect of which had no influence on the original design of the bridge. The case raises the issue as to whether urban areas such as Dresden are suitable for cultural landscape designation. Dresden differs substantially from the case of the only other World Heritage site to have been delisted: the Oryx sanctuary in Oman, whereby the state approved operations on 90% of the reserve, threatening the Oryx species and their natural habitat. This was a fully informed decision on the part of Oman to encroach on the sanctuary in question, thereby rendering its continued viability as a habitat untenable.

(p.90) Monticchiello and the Val d’Orcia

The Val d’Orcia was also designated a World Heritage cultural landscape in 2004. Inscribed under criteria (iv) and (vi), its site description notes that the Val d’Orcia is ‘part of the agricultural hinterland of Siena, re-drawn and developed when it was integrated in the territory of the city-state in the fourteenth and fifteenth centuries to reflect an idealized model of good governance and to create an aesthetically pleasing picture. The landscape’s distinctive aesthetics, flat chalk plains out of which rise almost conical hills with fortified settlements on top, inspired many artists. Their images have come to exemplify the beauty of well-managed Renaissance agricultural landscapes.’144 In 2006, a town located in the heart of the Val d’Orcia, Monticchiello, became the centre of controversy over a 20,000 square metre development of ninety-five individual housing units in what was termed a ‘lotizzazione contestata’ (contested housing development).145 Aside from the inappropriate location of the houses—a brand new land sub-division located just under the castle and the historic village, with implications for access to water and sustainability—the development was originally intended to provide social housing for local couples who could no longer afford to live within the city walls. It was thus envisaged as an initiative to halt the population decline of the village. However, once the project received planning permission, the social aim of the project was subverted within a number of years to become an exclusive tourist development of semi-detached houses and villas well beyond the affordability of the locals. In the meantime, the Val D’Orcia was designated a protected area in 1999 and inscribed on the World Heritage List as a cultural landscape in 2004, presumably with the details of the development contained in the supporting documentation (in its original intended state as social housing units).146 The development began to receive increased criticism on foot of an opinion piece produced in La Repubblica by intellectual and Monticchiello resident Asor Rosa in 2006,147 which coincided with the initial construction phase of the project. Widespread debate ensued, with emphasis placed on the fact Monticchiello was a UNESCO World Heritage site and as such belonged to ‘the cultural heritage of humanity’.148 As a result, the Ministro dei Beni (p.91) Culturali initiated talks with the responsible local authority—the Commune of Pienza—in order to mitigate the development and propose a solution to the problem. A high-level meeting was tabled between the Ministry, the Regione Toscana, and the Director of the World Heritage Centre Francesco Bandarin, and a national conference was held in the Val d’Orcia in 2006.149 This led to the eventual injunction of the last phase of construction by Minister Francesco Rutelli.150 The action was welcomed by UNESCO representatives.151 Since then, recent changes in the national Landscape Code have introduced a number of measures affecting the protection and management of the landscapes, with the aim of preventing another case like Monticchiello.152

Yet, as often happens in a landscape dispute, the community at the centre became divided over the issue. In Monticchiello, the housing development became the subject of an annual play by the Teatro Povero—a theatre composed of the inhabitants themselves—in 2007; the programme for ‘A(h)ia!’ reads:

in the houses, a focus of scandal and division within the community, the hopes and fears of the villagers suddenly found a concrete form: on the one hand there was the hope of a future which would be more prosperous, vital and concrete, divorced from aesthetic preoccupations which seemed to belong to a museum or a tombstone; on the other hand, there was the massive intrusive impact of the buildings themselves, in a setting which is sensitive to say the least.153

The concerns of the inhabitants not wanting to live in a ‘museum’ are wholly legitimate, yet at the same time, it is questionable as to whether this particular development would have been of real benefit to the local community in the long term. Aside from the dimensions of the development (which is not a massive intrusion in the landscape but is out of proportion with the castle and its town), its ‘exclusive’ nature made it likely that most of the units would be occupied by seasonal visitors, ironically looking for an ‘authentic’ Tuscan experience in a World Heritage site. It did not offer any solutions to the declining population of the town itself, nor provide a sustainable means (p.92) of income. Monticchiello is one of a number of land-use planning disputes to have taken place in Tuscany in recent years, which have been used as an example in one research project to illustrate how the land-use planning system has changed from being based on solidarity to being interest-based, the result of poor governance on the part of elected officials who equate business interests with the public interest.154

The cases of Monticchiello and Dresden can be contrasted for the way in which the situation was dealt with by the respective authorities. In the latter, the local and regional authorities made no attempt at a real compromise, and World Heritage status did not appear to weigh sufficiently upon them in order to do so; on the contrary, the regional authorities of Saxony attempted to turn the dispute into one of local democracy versus ‘foreign domination’, with the Mayor of Saxony even stating that UNESCO World heritage status ‘punishes’ the citizens of Dresden.155 Nor did the German state intervene in this regard, and perhaps rightly so. One author argues that the main problem is scarce knowledge—particularly on the local and regional level—of the implementation and compliance tools existing for the World Heritage Convention.156 She cites the frequent misinterpretations of the Convention as being related to the question of who is in the position to nominate a site and the legal consequences of such inscription. Indeed, in an interview with Der Spiegel, Mechtild Rössler pointed to the ‘misunderstandings’ and ‘misinformation’ as contributing factors to the dispute, which highlights the need for greater communication with authorities and stakeholders regarding the Convention’s obligations. There is no provision in the Convention for dispute settlement.

However, there is also a popular perception that the World Heritage Convention can be a tool to ‘defend’ a site, but as the case of Dresden shows, this is only possible with the political will of the state party. Regarding the Convention’s obligations, there are various interpretations among stakeholders as regards compliance with the obligations of inscription on the World Heritage List. Edith Brown Weiss rightly points out that ‘highly educated’ and mobile transnational elites may feel comfortable with decision-making (p.93) at the international level, but this may evoke a visceral reaction from local communities who may be hostile to international institutions.157 If local residents are excluded from the decision-making process and dictated to rather than listened to, suspicion and hostility inevitably arise from certain obligations pertaining to inscription and site management. This is why communication and participatory mechanisms are important from the onset. Indeed, in assessing ten years of cultural landscape protection, it was recommended by experts that increased co-operation be established with local and regional bodies and that there be greater communication with people.158 As stated by a well-known cultural landscapes expert, ‘one of the main lessons learnt from cultural landscapes is that the best way in most cases to secure the future of that which we wish to maintain is to involve the residents’.159 It is of no surprise that the most successfully managed World Heritage Sites are those in which the inhabitants have an active role in the management (for example, Cinque Terre or Wachau160), for they alone can sustain the living landscape. The notion that people are central to any landscape policy is perhaps the principle tenet of the European Landscape Convention, the focus of the next chapter.

In 2011, UNESCO adopted a Recommendation on the Historic Urban Landscape,161 which explicitly mentions ‘using participatory planning and stakeholder consultations’, the establishment of appropriate partnerships, and local management frameworks for conservation and development projects, as well as the ‘coordination of public and private actors’ in its text. Its stated purpose is to act as an additional tool to integrate policies and practices of conservation of the built environment into the wider goals of urban development and represents a much more dynamic instrument than some of the previous UNESCO soft law instruments on landscape adopted thirty years ago. (p.94) (p.95)

Notes:

(1) Convention concerning the Protection of the World Cultural and Natural Heritage (opened for signature 16 November 1972, entered into force 17 December 1975), 1037 UNTS 151 (hereafter World Heritage Convention).

(2) Art. 4.

(3) Ratification status as of January 2018 <http://whc.unesco.org/en/statesparties> accessed 8 May 2018.

(4) For an overview of the Convention’s inception and development, see Francesco Francioni, ‘Thirty Years On’: Is the World Heritage Convention Ready for the 21st Century?’, Italian Yearbook of International Law, 12 (2002), and Francesco Francioni and Federico Lenzerini (eds), The World Heritage Convention: A Commentary (Oxford University Press, 2008).

(5) Outlined in para. 77 of the Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 08/01, January 2008.

(6) Operational Guidelines, para. 49.

(7) The World Heritage Convention has been a topic of investigation in many disciplinary fields, including critical heritage studies, tourism studies, indigenous rights, landscape studies, cultural geography, archaeological heritage management, global governance, environmental studies, and urban planning.

(8) For a discussion on the transformation from cultural property to cultural heritage in international law, see Francesco Francioni, ‘Des biens culturels au patrimoine culturel: l’évolution dynamique d’un concept et de son extension’, in Abdulqawi. A. Yusuf (ed.), Elaboration de règles internationales sur l’éducation, la science et la culture (UNESCO 2007).

(9) Peter Fowler, Landscapes for the World (Windgather Press, 2004), 4 (hereafter Fowler, Landscapes for the World).

(10) Monuments include ‘architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science’. Groups of buildings include ‘groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value’. Sites include ‘works of man or the combined works of nature and man, and areas including archaeological sites, which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view’ (Art. 1).

(11) Natural features consist of ‘physical and biological formations or groups of formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty’ (Art. 2).

(12) Operational Guidelines for the Implementation of the World Heritage Convention (1), CC-77/CONF.001/8 Rev, para 11.

(13) Ibid, para. 9.

(14) Operational Guidelines for the Implementation of the World Heritage Convention. WHC. 17/01 12 July 2017. 41 COM 11.

(15) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01, para 79. The Nara Document on Authenticity was adopted in Nara (Japan), 1–5 November 1994 and was conceived in the spirit of the Charter of Venice of 1964 and expands on it in response to the evolving scope of cultural heritage concerns.

(16) Decision 20 COM IX. 13.

(17) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01, para 88.

(18) Operational Guidelines for the Implementation of the World Heritage Convention, CC-77/CONF.001/8 Rev, para. 10 ii(c).

(19) As the combination of ‘natural and cultural sites’. Operational Guidelines for the Implementation of the World Heritage Convention (1980) UNESCO Doc WHC/2 Rev, p. 4, para. 13.

(20) See, for example, UNESCO 1st Session of the World Heritage Committee: CC-77/CONF.001/9. 19 October 1977.

(21) Mechtild Rössler, ‘UNESCO and Cultural Landscape Protection’ in Bernd von Droste et al. (eds), Cultural Landscapes of Universal Value (Gustav Fisher Verlag with UNESCO 1995), 42–49. Peter Fowler, World Heritage Papers 6. World Heritage Cultural Landscapes 1992–2002, (UNESCO World Heritage Centre 2003).

(22) Report of the Expert Group on Cultural Landscapes (La Petite Pierre, France, 24–26 October 1992). WHC-92/CONF.202/10/Add. See also, on the genesis of the concept within the World Heritage Convention: Mechtild Rössler, ‘Linking Nature and Culture: World Heritage Cultural Landscapes’, Cultural Landscapes: the Challenges of Conservation, World Heritage 2002, Shared Legacy, Common Responsibility; Associated Workshops, 11–12 November 2002 (Ferrara), 10. Peter Fowler, World Heritage Cultural Landscapes, 1992–2002: A Review and Prospect, ibid, 17. Mechtild Rössler, ‘World Heritage Cultural landscapes: A UNESCO Flagship Programme 1992–2006’, Landscape Research, 31 (4) 333–53. John Aitchison, ‘Cultural Landscapes in Europe, a Geographical Perspective’, in Bernd von Droste et al (eds), Cultural Landscapes of Universal Value (1995), 272. David Jacques, ‘The Rise of Cultural Landscapes’, International Journal of Heritage Studies, 1 (1995).

(23) Decision 16COM XIII. 1–3.

(24) Operational Guidelines for the Implementation of the World Heritage Convention, 1994, para 36, available at <http://whc.unesco.org/archive/opguide94.pdf> accessed 30 January 2018.

(25) Ibid, para. 36.

(26) Ibid, para. 37.

(27) UNESCO 1st Session of the WHC. CC-77/CONF.001/9. 17 Oct. 1977, 3. UNESCO Expert Review on Evaluation of General Principles and criteria for Nominations of Natural World Heritage Sites. WHC-96/CONF.202/INF.9. 15 April 1996, 4.

(28) Sophie Boukhari, ‘Beyond the Monuments: A Living Heritage’, UNESCO Sources, No. 80 (June 1996), 7.

(29) Report of the Expert Group on Cultural Landscapes, La Petite Pierre (France) 24–26 October 1992 (n 22).

(30) Defined in para. 39. Operational Guidelines 1994.

(31) Rössler, ‘World Heritage Cultural Landscapes: A UNESCO Flagship Programme 1992–2006’ (n 22).

(32) Chief of the Ngati Tuwharetoa, as cited in Fowler, Landscapes for the World (n 9), 33.

(33) Renomination of Uluru-Kata Tjuta National Park, reproduced in Fowler, Landscapes for the World (n 9), 34.

(35) Sophie Boukhari, ‘Beyond the Monuments: A Living Heritage’, UNESCO Sources 80 (June 1996), 9.

(36) Mechtild Rössler, World Heritage—Linking Cultural and Biological Diversity, Paper for the Seventh US/ICOMOS Symposium: Learning from World Heritage, Natchitoches, Louisiana, 25–27 March 2004.

(37) Decision 19COM VIII.C.1.

(38) Ibid.

(39) Ibid.

(40) Rachel Guimbatan, ‘Managing our Changing World Heritage: The Philippines Rice Terraces Experience’ IOP Conference Series: Earth and Environmental Science, vol. 6 (2009), session 57.

(42) Expert Meeting of the World Heritage Convention on Benchmarks and Chapter IV of the Operational Guidelines, Paris, 2–3 April 2007.

(43) Decision 33 COM 7A.24.

(44) Para. 47 and annex 3. Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01.

(45) H. Stovel, ‘The Evaluation of Cultural Properties for the World Heritage List’, Nature and Resources, 28 (3) (1992), 30; Henry Cleere, ‘The Uneasy Bedfellows: Universality and Cultural Heritage’, in Robert Layton, Julian Thomas, and Peter G. Stone (eds), Destruction and Conservation of Cultural Property (Routledge, 2001), 22, 26.

(46) This is still the case. As of January 2018, there are 832 cultural sites compared to 206 natural sites.

(47) Report of the Meeting on the Global strategy and Thematic Studies for a Representative World Heritage List (20–22 June 1994), UNESCO Doc. WHC-94/CONF.003/INF. 6.

(48) Paras 62–63 Operational Guidelines for the Implementation of the World Heritage Convention, WHC.08/01, January 2008.

(49) This procedure takes place on an experimental basis of four years, leaving the state party the decision on the nature of the nomination, see para. 61(a) Operational Guidelines 2008.

(50) David Lowenthal, ‘Cultural Landscapes’, The UNESCO Courier: A Window Open on the World, 50 (9) (1997), 18–20.

(51) Federico Lenzerini, ‘Article 12. Protection of Properties not Inscribed on the World Heritage List’, in Francioni and Lenzerini (eds), The 1972 World Heritage Convention. A Commentary (Oxford University Press, 2018), 202.

(52) Guido Carducci, Articles 4–7, ‘National and International Protection of the Cultural Heritage’, in Francioni and Lenzerini (eds), The 1972 World Heritage Convention. A Commentary (n 51), 113.

(53) Ibid, 205.

(54) Pierre-Marie Dupuy, ‘The Impact of Legal Instruments adopted by UNESCO on General International Law’, in Abdulqawi A. Yusuf (ed.), Standard-Setting in UNESCO, Vol. 1, Normative Action in Education, Science and Culture. Essays in Commemoration of the Sixtieth Anniversary of UNESCO (UNESCO 2007), 351, 360.

(55) Although, other categories exist to this end, including IUCN Protected areas V for example.

(57) Peter Fowler, World Heritage Cultural Landscapes 1992–2002, World Heritage Papers 6 (UNESCO World Heritage Centre, 2003), 140.

(58) Marina Kuleshova (Chief of the Cultural Landscapes Management Department, Heritage Institute, Moscow), Cultural Landscapes in the World Heritage List, paper presented at the Regional Seminar for CIS countries ‘Safeguarding the World Heritage in the Context of New Global Challenges’, 1–3 March 2011, Moscow.

(59) Until the end of 2004, World Heritage sites were selected based on six cultural and four natural criteria. The Operational Guidelines were then revised to include only one set of ten criteria, available at <http://whc.unesco.org/en/criteria/> accessed 30 January 2018.

(60) Decision 21COM VIII.C.

(61) This was the position of Thailand with agreement from Germany and Finland. Report of the 21st session of the Committee, WHC-97/CONF.208/17.

(62) Mount Wutai Sacred Buddhist Mountain (China), Decision 33COM 8B.7; Sacred Sites of the Kii Mountain Range (Japan), Decision 28COM 14B.28 and the Salaimon-Too Sacred Mountain (Kyrgystan), Decision 33COM 8B.16.

(63) Royal Hill of Ambohimanga (Madagascar), Decision 25COM XA; Matobo Hills (Zimbabwe), Decision 27COM 8C.38.

(64) Sacred MijiKenda Kaya Forests (Kenya), Decision 32COM 8B.50.

(65) Val d’Orcia (Italy); Decision 28 COM 14B.51.

(66) Ϸ‎ingvelli National Park (Iceland) Decision 28 COM 14B.41.

(67) Decision 19COM VIIIC.1.

(68) Decision 27COM 8C.32.

(69) Decision 24COMXC.1.

(70) Peter Strasser, ‘Putting Reform into Action’: Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing its Regulations’, International Journal of Cultural Property, 2 (2002), 246. Armin von Bogdandy and D. Zacharias, ‘Zum Status der Weltkulurerbekonvention im deutschen Rechtsraum—ein Beitrag sum internationalen Verwaltungsrecht, Neue Zeitschrift fur Verwaltungsrecht’, NVwZ, 26 (2007), 5, 527.

(71) WHC.17/01, Decision 41 COM 11.

(72) Sabine Von Schorlemer, ‘Compliance with the World Heritage Convention: Reflections on the Elbe Valley and the Dresden Waldschlössen Bridge’, German Yearbook of International Law, 51 (2008), 9.

(73) Laurance Boisson de Chazour, ‘Treaty Law-Making and Non-Treaty Law Making: The Evolution Structure of the International Legal Order’, in Rudiger Wolfrum and Volker Roben (eds), Development of International Law in Treaty Making (Springer 2005), 463, 473.

(74) Full title: ‘The International Union for the Conservation of Nature and Natural Resources’.

(75) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 08/01. Paras 6–7.

(76) Gionata Buzzini and Luigi Condorelli, ‘Article 11, List of World Heritage in Danger and Deletion of a Property from the World Heritage List’, in Francioni and Lenzerini (eds.), The 1972 World Heritage Convention: A Commentary (n 4), 187.

(77) Diana Zacharias, The International Regime for the Protection of the World Cultural and Natural Heritage (Shaker Verlag 2007), 32.

(78) See, for example, Lynn Meskell, ‘UNESCO’s World Heritage Convention at 40. Challenging the Economic and Political Order of International Conservation’, Current Anthropology, 54 (4) (2013), and Lynn Meskell, ‘The Rush to Inscribe: Reflections on the 35th Session of the World Heritage Committee, UNESCO Paris, 2011’, Journal of Field Archaeology, 37 (2) (2012), 145–51.

(79) Jukka Jokilehto, ‘World Heritage. Observations on Decisions related to Cultural Heritage’, Journal of Cultural Heritage Management and Sustainable Development, 1 (2011), 61–74.

(80) Meskell, ‘UNESCO’s World Heritage Convention at 40. Challenging the Economic and Political Order of International Conservation’ (n 78) and Lynn Meskell, ‘World Heritage and WikiLeaks: Territory, Trade, and Temples on the Thai-Cambodian Border’, Current Anthropology, 57 (1) (2016), 72–95.

(81) Decision 22 COM VI.7, set out in Section V.B. Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 11/01.

(82) Decision 31COM 5.2.

(83) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01, para. 177

(84) Decision 15COM VII.

(85) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01, para. 179(b).

(86) WHC-07/31.COM/5.2. Paris 15 June 2007 ‘Mechanism proposed by the Director-General to ensure proper implementation of the World Heritage Committee decisions’, paras 1 and 3.

(87) Ibid.

(88) Decision 31COM 5.2.

(89) Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 16/01, paras 192–198.

(90) UNESCO Press Releases, 31 January 2008, available at www.whc.unesco.org/en/news/412 accessed 8 May 2018.

(91) Christina Cameron, ‘The Strengths and Weaknesses of the World Heritage Convention’, Nature and Resources, 28 (3) 21.

(92) Art. 6 of the World Heritage Conventions reaffirms the sovereignty of states parties, as well as the property rights provided by national legislation. For a discussion on sovereignty and the World Heritage Convention see Francesco Francioni, ‘World Cultural Heritage List and National Sovereignty’, Humanitäres Völkerrecht (1993), 195.

(93) Discussed in Chapter 4 and Chapter 6.

(94) See Commonwealth v Tasmania [1983] 158 CLR. 1.

(95) BBC News, ‘Australia Drops Tasmanian Wilderness Logging Campaign’ <http://www.bbc.com/news/world-australia-35854980> accessed 30 January 2018.

(96) M. Chiglieri, ‘How the Tatshenshini-Alsek Wilderness Avoided Mining Disaster,’ <https://www.oars.com/blog/how-the-tatshenshini-alsek-wilderness-avoided-mining-disaster/> accessed 30 January 2018.

(97) Valentina Vadi, ‘Cultural Heritage and Investment Law: A Stormy Relationship?’, International Journal of Cultural Property, 15 (1)(2008), 1–24, 5. Vadi makes a case for the inclusion of cultural exceptions into IIAs.

(98) See Catherine A. Rogers and Roger P. Alford (eds), The Future of Investment Arbitration (Oxford University Press, 2009), and R. Dolzer and C. Schreuer (eds), Principles of International Investment Law (Oxford University Press, 2008).

(99) Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992, 8 ICSID Rev—FILJ (1993), at 328.

(100) Decision CONF 003 XII.46.

(101) Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992, 8 ICSID Rev—FILJ (1993) at 156.

(102) Ibid, at 157.

(103) Ibid, at 190.

(104) Ibid.

(105) Dissenting Opinion of Judge El Mahdi, at 2(c).

(106) Ibid.

(107) ‘In my opinion, I consider that the interest of the International Community as regards its Human Cultural Heritage implied a non-codified international obligation binding upon both the International Community and the States even before the entry into force of the UNESCO Convention. I may just refer here, in this context, to the fact that when Egypt, in the early sixties, had no alternative but to take the hard and painful decision to sacrifice certain monuments, inter alia the temple of Abu Simbel, as an inevitable consequence to the construction of the Aswan Dam, the international community saw to it, financially and technically, that these monuments be protected and preserved. This action, that dates thirty years ago, yet reveals un Etat d’esprit of the International Community behind its strive to preserve its own Cultural Heritage and for the least an international obligation in the making.’ Ibid.

(108) Ricardo Pavoni, ‘Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal’, Pierre-Marie Dupuy, Francesco Francioni and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009), 536. The Santa Elena award displayed a hostile approach to the WHC and other environmental obligations and was a major setback for international environmental law.

(109) ICSID Case No. ARB/05/8. Award of 11/09/2007.

(110) The changes involved the law on local fees and charges, the decree on clamping and the law on self-government, which were all amended in 2000. Ibid, at 327.

(111) Parkerings also alleged a violation of the duty of equitable and reasonable treatment, a violation of the obligation of protection and a violation of the prohibition of expropriation.

(112) At a superficial level, the two projects were comparable: Pinus Proprius, a competing foreign firm, also had an agreement to build a parking complex in Vilnius under a similar joint-activity agreement with the city.

(113) Ibid, at 385. On 20 October 2000, the State Monument Commission of Lithuania objected to the parking plan for a number of reasons, stating, inter alia that ‘the planned garages would change the character of the Old Town of Global value; destroy large areas of unexplored cultural layer. Also, the intensity of traffic and air pollution in the Old Town is likely to increase. The Old Town might become less attractive in terms of tourism and to the residents and visitor, and this would be a great loss.’ Likewise, the Urban Development Department of the Vilnius Municipality also objected to the project stating that ‘the city’s humanitarian community would psychologically not accept this proposal. […] In terms of the townscape, the site of the square is very important in the formation of the area of Cathedral Square.’ Ibid, at 386.

(114) Ibid, at 392.

(115) Ibid.

(116) See remarks by Marcos Orellana, Attorney with the Centre for International Environmental Law, which has often intervened as an amicus curiae in such cases to raise public concerns. Investment Treaty News, 28 September 2007, <http://www.iisd.org/pdf/2007/itn_sep28_2007.pdf> accessed 30 January 2018.

(117) Prosecutor v Pavle Strugar (Trial Judgment), IT-01-42-T, International Criminal Tribunal for the Former Yugoslavia (ICTY), 31 January 2005, para 327.

(118) Office of the Prosecutor (OTP), Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of the confirmation of charges hearing in the case against Mr Ahmad Al-Faqi Al Mahdi, 1 March 2016, available at <https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-01-03-16> accessed 8 May 2018.

(119) Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, para. 39.

(120) Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-171, Judgment of 27 September 2016, Trial Chamber VIII, para. 46.

(121) Paige Casaly, ‘Al Mahdi before the ICC: Cultural Property and World Heritage in International Criminal Law’, International Criminal Justice, 14 (5)(2016), 1199-1220.

(122) See, for a further discussion on this point: Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’, European Journal of International Law, 14 (4)(2003), 635.

(123) See also, Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ International and Comparative Law Quarterly, 53 (1) (2004), 190.

(124) Francioni and Lenzerini, (n 122).

(125) Rössler, ‘World Heritage Cultural Landscapes: A UNESCO Flagship Programme 1992–2006’ (n 22), 333–53.

(126) Barbara Bender, ‘Stonehenge—Contested Landscapes’, in B. Bender (ed.), Landscape Politics and Perspectives (Berg, 1993), 245–80.

(127) The first site which was the subject of delisting was the Arabian Oryx sanctuary in Oman. The government encroached upon 90% of the reserve, and despite reservations and warnings, it was delisted in 2007. Decision 31COM 7B.11.

(128) Description available at <http://whc.unesco.org/en/list/1156> accessed 30 January 2018.

(129) ICOMOS World Report 2006/2007 on Monuments and Sites in Danger, Heritage at Risk (2008), 64.

(130) See paras 113–115 and 116 (‘Ersatzvornahme’, execution by substitution) of the Gemeindeordnung für den Freistaat Sachsen (SächsGemO), 18 March 2003 (SächsGVBl., 55).

(131) State of Conservation (Dresden Elbe Valley) Decision 30 COM 7B.77.

(132) Giovani Boccardi (World Heritage Centre) and Jaroslav Killian (ICOMOS), Reinforced Monitoring Mission to the Dresden Elbe Valley World Heritage Property Germany, 4–5 February 2008, Mission Report, available at <http://archiv.welterbe-erhalten.de/pdf/080310_UNESCO_Report.pdf> accessed 30 January 2018.

(133) Ibid.

(134) Decision 33 COM 7A.26 Dresden Elbe Valley (Germany) (C 1156).

(135) Interview with Mechtild Rössler, ‘Dresden-UNESCO Dispute. There were Misunderstandings’. Spiegel, 7 February 2007.

(137) Administrative Court Dresden, Decision of 30 August 2006, 12 K 1768/06, decision on provisional measures in favour of the City Council who suspended the construction of the bridge. This was overturned by the Higher Administrative court of Bautzen. Administrative Court Dresden, Decision of 19 June 2007, 12 K 1139/07 (rejection of the petition by the mayor of Dresden Lutz Vogel to prevent the continuation of construction work to increase the chances for compromise with UNESCO). See also, Higher Administrate Court Bautzen Decision of 9 March 2007, 4 BS 216/06 (repeal of permission to suspend the construction of the bridge), and Higher Administrative Court Bautzen, Decision of 16 July 2007, 4 BS 243/07 (confirming the refection of the petition of the Mayor of Dresden).

(138) BVerfG, Decision of 29 May 2007, 2 BvR 695/07.

(139) Sabine Von Schorlemer, ‘Compliance with the World Heritage Convention: Reflections on the Elbe Valley and the Dresden Waldschlössen Bridge’, German Yearbook of International Law, 51 (2008), 3.

(140) On the contrary, the Constitutional Court upheld the Land of Saxony’s motion to proceed with construction.

(141) For example, the plans to construct a car park in the old city of Mamburg (ICOMOS, World Heritage at Risk, 2004/2005, 78), or the plans to destroy the old town of Quedlinberg.

(142) Marja Einig-Heidenhof, Head of Cultural and Educational Division at the Federal Ministry of Foreign Affairs, quoted in the Report of the Foreign Ministry to the 67th General Assembly of the German Commission for UNESCO (Dessau 27–28 June 2007).

(143) Although, admittedly, a tunnel would have considerable costs because of the funds already spent on the bridge project.

(144) Decision 28 COM 14B.51. Site description available at <http://whc.unesco.org/en/list/1026> accessed 30 January 2018.

(145) Stefano Chiarini, ‘Una lottizzazzione contestata in un paese patrimonio UNESCO’, Il Manifesto, 5 January 2007.

(146) Decision 28 COM 14B.51.

(147) Alberto Asor Rosa, ‘Il cemento assale la Val d’Orcia’, La Repubblica, 24 August 2006.

(148) Although, somewhat incongruously, the advertising for the ‘exclusive residence’ used this to promote the marketing of the site.

(149) Convegno Nazionale: ‘Monticchiello, Toscana: Il Paesaggio Italiano’, 28 October 2006.

(150) Rutelli’s measure was seen as the most viable solution. Salvatore Settis had called for the local authorities to place a compulsory purchase order on the already-built houses and then demolish them.

(151) See ‘Monticchiello, stop alle construzioni. Rutelli firma il vincolo paesaggistico’, Cronaca, La Repubblica, 23 January 2007.

(152) Decreto legislativo 24 marzo 2006 n. 157 alters Part III (dealing with landscape) of the Codice dei Beni Culturali e del Paesaggio; and reduces the identification process (Art. 138), lends more weight to organs of the State in protection and management (Art. 146); and rationalizes the system of sanctions (Art. 167).

(153) Teatro Povero programme of 2007, author’s copy.

(154) Anna Marson, Land-use planning ‘scandals’ in Tuscany: mismanagement or underestimation of general public interests, Politische Italien Forschung Occasional Papers, No. 09/2010.

(155) Press Release Staatskanzlei (State Chancellery), 25 June 2007: ‘kommt Erpressung nahe’, see also member of the German Parliament (CDU) Arnold Vaatz, Interview of 4 July 2008 ‘Erpressungspotential’ <http://www.dradio.de/dlf/sendungen/interview_dlf/811475> accessed 30 January 2018.

(156) Sabine Von Schorlemer, ‘Compliance with the World Heritage Convention: Reflections on the Elbe Valley and the Dresden Waldschlössen Bridge’, German Yearbook of International Law, 51 (2008), 3.

(157) Edith Brown Weiss, ‘The Rise or Fall of International Law?’, Fordham Law Review, 69 (2000), 345, 360.

(158) World Heritage Centre, Cultural Landscapes: The Challenges of Conservation, World Heritage Papers 7.

(160) The Wachau is a stretch of the Danube Valley between Melk and Krems, ‘is an outstanding example of a riverine landscape bordered by mountains in which material evidence of its long historical evolution has survived to a remarkable degree.’ It was inscribed under criterion (ii) and (iv) in 2000. CONF 204 X.C.1

(161) UNESCO Recommendation on the Historic Urban Landscape, 10 November 2011.