Document: WHC-02/CONF.202/6 1. The Committee accepted the proposal of the Chairperson to take note of the overview of progress with reforms and strategic reflection (decision 26 COM 10).
2. The Delegate of Argentina noted that the document as updated since the Bureau meeting, had to be taken into account for the discussions on agenda item 17 related to the Strategic Objectives.
11 WAYS AND MEANS TO REINFORCE THE IMPLEMENTATION OF THE WORLD HERITAGE CONVENTION
Document: WHC-02/CONF.202/7 Rev1 1. The Assistant-Director for Culture explained that studies were being undertaken in preparation for the drafting of a Declaration concerning the Intentional Destruction of Cultural Heritage (to be presented to the UNESCO General Conference at its 32nd session) to analyse, amongst other issues, how to complement the existing UNESCO heritage conventions and to respond to such circumstances. The Chief of the International Standards Section of the Cultural Heritage Division informed the Committee that the above-mentioned initiative had an interdisciplinary application, thus such a Declaration would have implications for the World Heritage Convention as well as other cultural heritage Conventions.
2. The Delegate of India drew the Committee's attention to the fact that the Resolution of the 13th General Assembly of States Parties to the World Heritage Convention (see paragraph 1 of document WHC-02/CONF.202/7) refers to the “Acts constituting a crime against the common heritage of mankind”, whereas the Resolution of the 164th session of the Executive Board (see paragraph 6 of document WHC-02/CONF.202/7) refers to “intentional destruction of culturally important monuments and sites”. She argued that the terminology of the latter might raise questions with regard to the issues of State sovereignty and jurisdiction as the term "culturally important monuments and sites" had not been defined. Moreover, she requested that in analysing these issues consideration be given to acts committed during peace time as well as during armed conflict, to acts of terrorism and that the distinction be made between acts committed by the State and those carried out by groups of individuals.
3. The Delegate of Argentina underlined the importance of coordination between the World Heritage Convention and other international instruments for the protection of the cultural and natural heritage; overlapping of activities between the World Heritage Centre and the Division for Cultural Heritage should be avoided. She suggested that the Committee be associated with the drafting of the Declaration concerning the Intentional Destruction of Cultural Heritage.
4. The Delegate of Belgium, as one of the countries which has offered to host an expert meeting to reflect upon ways and means to enhance the implementation of the UNESCO legal instruments for the protection of the common heritage of humanity, informed the Committee that legal studies were being prepared in this area and that they would be distributed once available. The Delegate of Belgium requested that amendments (in particular in paragraphs 3 and 8) be made to document WHC-02/CONF.202/7 before it be made public on the World Wide Web. He also requested that the Committee be provided, at each of its sessions, with a comparative table of ratifications to all UNESCO cultural heritage Conventions.
5. The Chairperson proposed the Committee to take note of the working document, to express its interest to monitor progress made on the future Declaration, to ask States Parties to present their initiatives and to ask for a table with the state of the ratifications of all UNESCO cultural heritage conventions.
6. The Delegate of Saint Lucia asked to include in the decision the request to amend the working document as suggested by the Delegate of Belgium.
7. The Delegate of the United Kingdom asked for a written draft of the proposed decision. He noted that the subject of the future Declaration did not only concern the World Heritage Convention.
8. The Delegate of Thailand asked that the Committee, when participating in these initiatives, should be cautious not to act beyond the terms of reference and the spirit of the World Heritage Convention.
9. The Delegate of Colombia also requested a draft decision in written form.
10. The Delegate of India supported the intervention made by the Delegate of Thailand, considering that some governments thought that a new instrument was not necessary. She asked for coordination between the Executive Board of UNESCO and the World Heritage Committee and expressed the willingness of her Government to contribute to the debate.
11. The Delegates of the United Kingdom and Thailand asked to refer in the decision to the role of the Convention rather than to the role of the Committee.
12. The Delegate of India, supported by the Delegate of Thailand, suggested to invite the Director-General of UNESCO to develop future work on this issue while taking into account the concerns expressed by the Delegates at this session.
13. The Chairperson closed the debate by reformulating the draft decision which was accepted by the Committee (decision 26 COM 11).
12 POLICY AND LEGAL ISSUES CONCERNING THE INSCRIPTION OF PROPERTIES ON THE LIST OF WORLD HERITAGE IN DANGER AND THE POTENTIAL DELETION FROM THE WORLD HERITAGE LIST
1. The UNESCO Legal Adviser presented the working document prepared jointly by the World Heritage Centre and the UNESCO Office of International Standards and Legal Affairs in consultation with international legal experts. He then made a power point presentation with the following explanation:
"Thank you Mr Chairman.
Mr Chairman, as you said this is a very important issue, I therefore hope that you will bear with me if I take a little more time than you had given to previous speakers to make this introductory presentation to document WHC-02/CONF.202/8. It is normal that in the course of implementation of an international convention, issues of interpretation may arise. This is what has happened in this case, after all the World Heritage Convention is now 30 years old. There are always new problems and unforeseen events which make such interpretations necessary, although lawyers like to believe that they have addressed everything that could be addressed in the conclusion or elaboration of a convention. Now the two main questions before us today are, firstly, whether the consent of a State Party is required when inscribing a property on the List of World Heritage in Danger and secondly whether the State Party’s consent is required when deleting a property from the World Heritage List.
It is extremely important to underline first of all who may interpret international conventions and what are the procedures and principles that should be used to carry out such interpretation. With respect to the organs that may interpret an international convention, it should be pointed out that it is normally the organs which have to implement a convention that must interpret it. For example, in this case both questions relate to an issue of jurisdiction of the World Heritage Committee - whether the Committee has certain powers, whether the Committee can do certain things on the basis of the World Heritage Convention, and whether the Convention allows the Committee to do those things? It is for the Committee to determine its jurisdiction, to interpret the World Heritage Convention and to say whether the Convention allows it to do those things. The International Court of Justice with respect to the Security Council and the General Assembly of the United Nations said, already in 1962, that each organ must in the first place determine its own jurisdiction. Other organs such as the International Labour Organization (ILO) Governing Body, the Executive Directors of the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), the World Bank, the International Finance Corporation (IFC) and the International Development Association (IDA) have done so. They have frequently taken decisions interpreting their constituent instruments. Of course these decisions were taken after considering a legal opinion given by their legal counsel and this is the case here. Our role is to help you, to assist you in coming to a final decision on this important question.
With respect to the process of interpretation and the principles and rules that should be used when interpreting the Convention and the provisions of the Convention relating to the two questions which I have just mentioned, we have to resort to customary international law (customary international law which has been codified in the Vienna Convention on the Law of Treaties, in particular Articles 31 and 32). It is generally accepted that those Articles of the Vienna Convention onthe Law of Treaties codify and reflect customary international law. In other words universally accepted international norms.
Article 31 of the Vienna Convention says that the provisions of the Treaty should be interpreted in good faith according to the ordinary meaning of terms in their context and in the light of its object and purpose. So for the provisions that we have to deal with here, and in interpreting the World Heritage Convention, we have to look at the normal and the ordinary meaning of the terms used in the context of the World Heritage Convention and of course in light of the object and the purpose of the Convention. Additional elements that have to be taken in context are also the preamble and annexes, an agreement made in connection with the conclusion of the Treaty, an instrument made by one or more parties and accepted by others as related to the Treaty. A subsequent agreement regarding the interpretation of the Treaty and subsequent practices are equally important. Article 32 of the Vienna Convention also refers to the preparatory work and the circumstances of the conclusion of a Treaty but these are considered only as supplementary means of interpretation. They are not the main principles and rules of interpretation and they are resorted to only in the case that the main principles and rules codified in Article 31 of the Vienna Convention do not actually provide adequate means of interpreting the Convention and interpreting the provisions of the Convention, and only in case there is ambiguity in that interpretation.
So, what do we mean by the context? The context is the Convention taken as a whole and if we take the Convention concerning the Protection of the World Natural and Cultural Heritage, we see that this Convention is very mindful of State sovereignty. Article 3 of the Convention refers to sovereignty, Article 6.1 also refers to sovereignty and respect for that sovereignty. The Convention at the same time strives to strike a balance between State sovereignty, on the one hand and the safeguarding of the values which transcend individual State interests, on the other. What are these values? These are the values which have been recognised when cultural and natural properties are declared as being of universal value. No State is obliged, although it may be a party to the Convention, to nominate a property for inscription in the World Heritage List or to ask the Committee to recognise a property as being of universal value. If a State does so and the Committee includes a property in that List, therefore granting it universal value and universal recognition as a property, then of course that State subjects that property (and subjects itself also) to a certain Treaty regime which requires international co-operation and which is subject to the interests of the international community. It accepts the obligations arising from that Treaty regime. It is, in a way, like putting something in a common basket. While you are not obliged to put it in that common basket, if you do put it in that common basket, then of course you have to accept that what you have put in that common basket will be treated in the same way as all other things that are in the common basket. Therefore, there are certain constraints, there are certain duties and obligations which arise from sharing and putting something together under a Treaty regime. That is why the Convention highlights the interests of the international community as a whole in the protection of properties which are declared of universal value or recognised as being of outstanding universal interest.
With respect to the object and purpose of the Convention, the Law of Treaties directs us to look not only at the ordinary meaning of the terms but to do so in the light of the object and the purpose of the Treaty. We see that the properties that are declared of outstanding interest and of universal value need to be preserved as part of the World Heritage of mankind as a whole and that one of the essential purposes of the World Heritage Convention is to establish an effective system of collective protection of the cultural and natural heritage of outstanding universal value. So there is a system which is created by the Convention and which is a system of collective protection.
Now with respect to the ordinary meaning of terms, a first principle is that we have to take these terms in their natural and ordinary sense unless they are ambiguous. Secondly, all the provisions of a Treaty must be presumed to have intended significance. In other words we cannot say that a certain provision is redundant. Because a provision is there, it was intended to have a meaning and to have a significance.
Turning now to the text on which we have been asked to provide an opinion, I would like to invite you to take a look at Articles 11.4 and 11.3 of the Convention. I think this is extremely important in the light of what I have just said about interpreting the Convention in accordance with the ordinary meaning of the words in their context and in light of the object and the purpose of the Convention. When you look at these provisions, you will immediately realise that there is a difference between Article 11.3 and Article 11.4. Article 11.3 states that “the inclusion of a property in the World Heritage List requires the consent of the State concerned...”. This text is very explicit, it is very clear. It is based on consent. Article 11.4, on the other hand talks about the establishment of a List of World Heritage in Danger by the Committee and it states that “the Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of List of World Heritage in Danger, a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention". So it is quite clear that the first three sentences of Article 11.4 require that normally there should be request for assistance from the State concerned because it is primarily that State which has the duty to preserve the property concerned. But when you read further, the last sentence of Article 11.4 says “the Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicise such entry immediately." So the first three sentences convey a meaning, the last sentence conveys another meaning. The first three sentences clearly establish that there must be a request for assistance from the State concerned. The last sentence says that in exceptional circumstances, in case of urgent need, the Committee may make a new entry in the List of World Heritage in Danger at any time if that property is considered to be in danger and publicise such entry immediately.
The notion of "urgent need" is not defined by the Convention and I believe that it is one of the functions of the Committee to define this either through its practice or through the guidelines that the Committee has been developing over the years. This could be done in the same way that the Committee defines the criteria for the inclusion of properties in the World Heritage List. As you all know, these criteria have evolved over the years; the criteria for the inclusion today are not the same as when the Committee started its work, when it first established those criteria. So in trying to elaborate the notion of "urgent need", the Committee should follow the same procedure. However, one thing which we can definitely stress is that the last sentence of Article 11.4 is not redundant, it reflects an intended purpose beyond the first part of Article 11.4. It confers certain prerogatives and powers on the Committee, in case of urgent need. But the Committee itself has to define "urgent need". There are other factors that have to be taken into account with respect to the implementation of this provision (last sentence of Article 11.4) and we have to look, for example, at the practice of the Committee which can best be gleaned either from the Operational Guidelines or from the inscription of properties on the List of World Heritage in Danger.
With respect to the inscription of properties on the List of World Heritage in Danger and the implementation of Article 11.4, can we establish a differentiation between the first three sentences of Article 11.4 and its last sentence, and can we find that differentiation in the context of the practice of the Committee relating to the inscription of properties on this List? We all know that most of the inscriptions that the Committee has effected up to now correspond to the requirements of the first three sentences of Article 11.4, in other words they were done following a request from a State for assistance or sometimes actually a request for inscription on the List of World Heritage in Danger. Although sometimes there is no request for assistance, governments may come forward and ask the Committee to inscribe a property on the List of World Heritage in Danger. There are however a number of instances in which the Committee has inscribed properties on the List of World Heritage in Danger without a request for assistance and without a request for inscription on the List of World Heritage in Danger. Some of those examples are well-known, and you are all aware of them - such as the inscription of the Old City of Dubrovnik and Angkor. So the Committee has implemented the last sentence of Article 11.4 and has presumably acted under that last sentence on several occasions by inscribing properties on the List of World Heritage in Danger without a request from the territorial State. However, we have to also take cognisance of the fact that the Committee has done that in exceptional circumstances, when the governments and States on whose territory these properties were located did not expressly object to that inscription. These are both very important considerations.
The additional questions that have been raised and which were communicated to you in Helsinki, relate to what happens if the country on whose territory the property is located does not accept that the property be inscribed on the List of World Heritage in Danger and what would be the reaction of the Committee? I believe that is the most important question that the Committee needs to address because so far the Committee, except in two cases which are in the process of being considered, has never inscribed a property on the List of World Heritage in Danger in the face of clear and expressed objections from the State in whose territory that property is located. This is the reason why I insist that the Committee would need to elaborate on what constitutes "urgent need" and what constitutes "exceptional circumstances". It is to take this into account and to be able to deal with this problem that certain criteria and procedures are called for as this is a problem with which the Committee will have to deal. If the Committee, over and in the face of the objections of the State concerned, actually proceeds to inscribe a property on the List of World Heritage in Danger, what has the Committee achieved? Is the objective to publicise the fact that this property is in danger? How can the ultimate objective of saving and safeguarding that property be achieved? It is my view that the Committee would need to elaborate certain procedures and certain criteria to ensure compliance by the territorial State. This is because, as you know, World Heritage properties are of extreme importance and sensitivity for nations. Whilst there are certain methods for the settlement of disputes and for overcoming objections by States Parties with respect, for example, to trade issues or to investment issues, in the case of World Heritage properties, there are at present no procedures that have been put into place (such as, for example a panel before which a contradictory procedure could take place and before which the State concerned could also present its views before the Committee takes its final decision on the matter). This decision would of course be a political decision. But, before that political decision you may need to have a technical or quasi-judicial due process in which the State concerned can defend itself and can give reasons as to why it does not accept the listing or the labelling of a property as being in danger. So, this is why the issue of the "urgent need" and the possibility of inscription on the List of World Heritage in Danger at any time need to be further clarified and further elaborated by the Committee so that it can actually realize and achieve the objectives for which this power had been conferred on it by the Convention; in other words, in order to save and safeguard and protect the endangered properties, which might need its action.
Now with respect to the second question and of course this question is linked to the first one because the objective of the inscription of a property on the List of World Heritage in Danger is to save the property and to give back its integrity as such and its universal value. However, if it cannot be saved and if it is beyond repair then of course the only solution that is available to the Committee or that might be available to the Committee is the deletion of that property from the World Heritage List. So including a property on the List of World Heritage in Danger in that sense could be an intermediate step whereby before the deletion of a property from the World Heritage List, a property might be placed on the List of World Heritage in Danger.
With respect to the issue of deletion, the World Heritage Convention does not say much except establish the fact that the Committee has to review now and then and to update the World Heritage List. What does update and review mean? Of course you cannot keep a property on the World Heritage List which has lost all the qualities for which it was included in this List. If that property loses all those qualities it would be for the Committee to delete that property from the World Heritage List. In that case the consent of the State Party would not be required because the property does not have the qualities for which it was in the first place included in the World Heritage List.
So, to summarise my remarks and the opinion that I have presented to you today, I would put it as follows. With respect to Article 11.4, normally there must be a request from the State Party concerned, a request for assistance especially in order to include the property on the List of World Heritage in Danger. However, in urgent and exceptional circumstances the Committee is empowered to include such a property on the List of World Heritage in Danger. The Committee would however need to develop its practice and elaborate appropriate criteria and procedures to define when such urgency exists and where such exceptional circumstances arise. With respect to the deletion of a property, it is my view that if a property loses the qualities for which it was declared of universal value then the Committee has the power to delete such a property from the World Heritage List without the consent of the State Party concerned.
Thank you Mr Chairman."
2.1 The representative of IUCN made a brief presentation to the Committee highlighting the main conclusions of information document WHC-02/CONF.202/INF.12. He stated that although the IUCN paper was prepared before receiving the UNESCO working document, it generally supports it. He referred to Article 14.2 of the World Heritage Convention which states that the Director-General of UNESCO should utilise "to the fullest extent possible the services of (....) IUCN in their respective areas of competence and capability". He commented that IUCN has competence and capability in the field of international environmental law as IUCN's Commission on Environmental Law includes many of the world's leading environmental lawyers.
2.2 The first question presented was whether State Party consent was required for Reactive Monitoring? IUCN is of the opinion that while the co-operation of the State Party is desirable, it is not essential. With regard to State Party consent for In-Danger listing, IUCN believes that State Party consent is not essential. The reasons for this position are further elaborated in the information document WHC-02/CONF.202/INF.12. The third question was whether the World Heritage Committee can delete a property from the World Heritage List and if State Party consent is required to do so. IUCN has concluded that the Committee can delete properties without the consent of the State Party. With regard to the last question as to which values are protected in a World Heritage property, IUCN is of the opinion that the State Party should take measures to safeguard the property as a whole.
3. The Chairperson commented that an important introduction had been provided by these two presentations and that a working method should be established by the Committee.
4. Throughout the discussion UNESCO was congratulated for having provided the Committee with such a thorough document as well as for the articulate and well-founded presentation made by the Legal Adviser.
5.1 After having commended the Legal Adviser for his presentation, the Delegate of Greece expressed his country's agreement with the conclusions presented by IUCN. He considered that State Party consent is not required for a property to be inscribed on the List of World Heritage in Danger, albeit efforts should be made to consult with the State Party concerned. However, if these consultations were not successful, the property could be inscribed on the List of World Heritage in Danger without the consent of the State Party.
5.2 With regard to deletion of a property from the World Heritage List, he stated that the Committee should only do so -without the consent of the State Party- when the situation is “irreversible”. The word "irreversible" should be a guideline when determining the procedure for deletion of properties from the World Heritage List. The term "emergency case" should be further defined and different sub-categories of emergency cases should be created.
5.3 Although not dealt with in the working document, he asked what would happen to endangered monuments of outstanding and of universal value and also of symbolic value which are not inscribed on the World Heritage List. The Delegate of Greece stated that the World Heritage Committee should take a further step to protect these great monuments which are in danger by inscribing them on the World Heritage List in order to save them from all threats. He urged the Committee not to forget that UNESCO is known world wide because of World Heritage.
6.1 The Delegate of Argentina, referring to item (i) of the action required by the Committee (see cover page of the working document), highlighted the need for the Committee to define a working method to be followed when discussing this issue. However, she pointed out that the working method would depend on the decision to be taken regarding the revision of the Operational Guidelines (Item 18). If the adoption of the proposed revised Operational Guidelines is postponed, she recommended that a working group be established to conduct its work after the Committee session to discuss the legal opinions presented during this Committee session. Due to the political nature of these issues, this group should be constituted of governmental experts, without prejudice to the participation of the non-governmental organizations recognised by the World Heritage Convention. 6.2 Regarding the substance of the discussion, item (ii) of the action required by the Committee (see cover page of the working document), she stated that this discussion would be more effective if dealt within the analysis of the relevant paragraphs of the Operational Guidelines. Notwithstanding these comments, the Delegate of Argentina presented the preliminary general position of her country. She stated that from the moment a State Party nominates a property for inscription on the World Heritage List in practice it delegates to the World Heritage Committee the management of this List. In particular, the State Party delegates to the Committee the authority to include World Heritage properties on the List of World Heritage in Danger when the circumstances described in Article 11.4 of the World Heritage Convention are met. Thus, and as a general rule, no State Party consent is necessary for the Committee to decide, when well-founded reasons exist, to inscribe a property on the List of World Heritage in Danger.
6.3 With regard to the deletion of properties from the World Heritage List, and as a general rule, the Committee can do so, when well-founded reasons exist, without the consent of the State Party concerned. The justification provided by the Committee is of particular relevance here because of the possible conservation of the intangible values of the endangered or destroyed property. She commented that these conclusions were the ones most in conformity with the Convention objective of providing an effective system of protection for World Heritage properties. She agreed with the Legal Advisor in that, in accordance with Article 31 of the Vienna Convention on the Law of Treaties, when a convention does not offer a clear interpretation, then one can and must resort to identifying the "useful effect" and the convention’s objectives. Her country would be willing to explore formulas that would include, exceptionally, the situation of a State Party which demonstrates that it is fulfilling its treaty obligations with regard to the conservation of World Heritage properties in its territory. The mechanism for presenting opposition established by the 2nd Protocol of the 1954 Hague Convention might be a possible starting point for the elaboration of such formulas.
7. The Chairperson commented that with regard to the working method he wished that a decision be taken at this Committee session and that it would be very good, after having heard the legal opinions of the States Parties, if a consensus could be obtained on this issue.
8. The Delegate of Egypt commented that if a property were inscribed on the List of World Heritage in Danger, without the consent of the State Party, will create many problems would arise. First of all, it would be presumed that the World Heritage Committee would be more concerned about the conservation of a property than the State Party itself. Second, he indicated the practical difficulty for the Committee in implementing a decision to inscribe a property on the List of World Heritage in Danger without the consent or co-operation of the State Party. He commented that if work on the property would be required, co-operation would be necessary. If there is no co-operation, some contention between the State Party and the Committee could arise, which in turn would only cause more damage to the property. Mechanisms should be found to prevent contention between the State Party and the Committee. To conclude, he stated that although the Committee has the right to inscribe a property on the List of World Heritage in Danger, it cannot neglect the right or the sovereignty of the State Party.
9. The Delegate of Portugal commented that on some critical issues of the Operational Guidelines a lot of caution and common sense was required. He affirmed that the co-operation of the State Party should always be sought, both for inscription on the List of World Heritage in Danger and deletion from the World Heritage List. He stated that inscribing a property on the List of World Heritage in Danger or deleting a property from the World Heritage List are exceptional measures and exceptional measures should only be taken in exceptional circumstances.
10.1 The Delegate of Thailand stated that the World Heritage Convention provides for adequate reasoning to argue that the Committee has the legitimacy and the responsibility to inscribe an endangered property on the List of World Heritage in Danger in cases of urgent need without the State Party concerned. This also applies when deleting a property from the World Heritage List.
10.2 He addressed two legal issues which had been mentioned by the States Parties. First, he addressed the issue of sovereign rights of the State Party concerned. The question, in this case, was whether an inscription on the List of World Heritage in Danger without the consent of the State Party would amount to a disrespect of the sovereign rights of the State Party concerned. In treaty making once a State Party accepts a legal instrument it means that the State Party has consented to limit its sovereign rights within the framework of the legal instrument. Thus, the obligations provided within must be respected. In this case, there is a very delicate balance of the sovereign rights of the State Party and the legitimacy and responsibility of the World Heritage Committee. He proceeded to reading Article 6.1 of the World Heritage Convention:
" Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty [emphasis added] of the international community as a whole to co-operate."
He stated that it was very clear, according to this Article that once a State Party has accepted the legal instrument, it has to accept the responsibilities and obligations under the legal instrument concerned. This is also reflected in Article 7 of the Convention.
10.3 With regard to the last sentence of Article 11.4:
"The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately."
The Delegate of Thailand commented that it was very clear that in case of urgent need, the Committee may at any time make a new entry on the List of World Heritage in Danger and publicize such entry immediately. The question is whether the Committee would do this in a rush or abuse its authority. Paragraphs 86 - 93 of the March 1999 Operational Guidelines carefully spell out how the Committee should proceed in these cases. In practice, the Committee consults the State Party concerned, unless exceptional circumstances occur such as Dubrovnik and Angkor. In the latter case, the property was not yet inscribed on the World Heritage List and was inscribed both on the World Heritage List and the List of World Heritage in Danger in order to stimulate the State Party. This measure was effective as the government of Cambodia was complimented on having met all the requirements of the Committee.
10.4 The second legal issue concerns the interpretation of the Travaux préparatoires. He commented that in the Travaux préparatoires reference was made to Article 11 of the Convention. It was stated that consent was required for the inscription on both the World Heritage List and the List of World Heritage in Danger. In normal circumstances, this has been abided by the World Heritage Committee. However, in cases of "urgent need", the last sentence of Article 11.4 could be applied. This has been done in the past and it reflected later on in the Operational Guidelines.
10.5 The Committee cannot depend alone on this provision (Article 11.4). In addition to this, in the Travaux préparatoires reference was made to Article 6. It was stated:
"While expressly retaining their sovereignty and any existing property right to the cultural and natural heritage situated on their territory, the States Parties to the Convention recognise that a cultural and natural heritage referred to in Articles 1 and 2, becomes a universal heritage and consequently the international community has the responsibility for it at the international level".
The Convention is very clear that the collective responsibility over World Heritage is invested in the World Heritage Committee. Thus, the Committee has the legitimacy and the responsibility to protect World Heritage for humanity, especially for World Heritage properties. If consensus can be reached in this issue, this can be transferred to the Operational Guidelines for the sake of protecting our precious World Heritage sites for humanity and the future generations to come.
11. The Delegate of the United Kingdom affirmed that according to the Vienna Convention, and as confirmed by the Legal Adviser in his presentation, it is for the Committee to decide on the interpretation of the Convention. She said that this is not the first convention to be left ambiguous in drafting. She stated that once the Committee has decided its position on the interpretation, this then needs to be reflected in the Operational Guidelines. The Operational Guidelines should not overtake the Convention as they are subservient to the Convention. She commented that her country had sympathy with both views, but the United Kingdom has concluded that to be inscribed as a site in danger the permission of the State Party is needed, but it is not needed to delete a site from the World Heritage List.
12. The Delegate of Belgium agreed with the conclusions presented by the Legal Adviser. He stated that these issues were of key importance as they were in conformity with the evolving trends of international law. He said that a timorous decision from the Committee in this matter would be a step back from the 21st to the 19th century. He emphasized that the issues at stake also have implications in the field of human rights and environmental law. He proposed that the simplest solution, even if certain issues require further precision, would be for the Committee to adopt the conclusions of the working document and that the Operational Guidelines be modified accordingly.
13. The Delegate of Zimbabwe described the conclusions presented by the Legal Adviser as ones "beyond any reasonable doubt". He stated that the Committee should make a move forward by adopting them and that he shared the views presented by the Delegate of Belgium. He described two scenarios arising from Article 11.4 of the Convention. In the first scenario of cases of urgent need, he stated that there is no doubt that the Committee has almost the obligation to intervene and make decisions. But where the situation does not call for that, the consent of State Party is quite essential. With regard to the practical dimension, and while it is desirable for the Committee to have the co-operation of the State Party, he asked whether the Committee can move ahead without the consent of the State Party and would it be practical to do so? Would it save that heritage? And what purpose would then be served by such an action? He stated that the Committee needs to underscore the desirability of co-operation with the State Party when it takes decisions. It is very desirable that State Party consent is obtained before arbitrary moves are taken, particularly where the issue is not of an urgent nature. He urged the Committee to come to some conclusion so that the work related to the Operational Guidelines can be completed. He called for a balance between what was presented by the Legal Adviser and the States Parties' concerns.
14. The Delegate of Nigeria stated that he shared the views presented by the Legal Adviser. He said that it seemed clear that the Committee can take some decisions which will be in the interest of preserving World Heritage. However, the sovereignty of States Parties can not necessarily be mortgaged because as Article 11 of the Convention states the support, encouragement and the co-operation of the States Parties would be necessary to ensure that the properties are safeguarded. He emphasized the importance that the political process be respected. It is true that countries have the duty to protect World Heritage properties, but there is the political wisdom that ensures that States Parties are engaged in a spirit of co-operation and not confrontation. He recommended that the views presented by the Legal Adviser be adopted. He supported the Delegate of the United Kingdom when saying that the Operational Guidelines must not take over the spirit of the Convention. In cases of urgent need and where the Committee has to take a decision, there should be a mechanism for arbitration that would ensure the collaboration, co-operation and the harmony between the State Party and the Committee in the spirit of ensuring that the World Heritage properties are kept inviolate in the interest of the world itself.
15. The Delegate of China highlighted that this issue is not only legal and technical, but also political. He said that since the purpose of inscribing a property on the List of World Heritage in Danger is to save the property, it is absolutely necessary to have the full and sincere co-operation of the State Party concerned. If not, even if the Committee makes the decision, it will meet a lot of problems. It will eventually affect the appropriate and effective protection of the property concerned. He supported what was said by the Delegate of Nigeria.
16.1. The Delegate of Finland commented that in analysing these issues the effectiveness of the Convention and the pragmatic way in which it is applied should be considered. With regard to the Travaux préparatoires, already from those negotiations and from the Convention itself, he said that it was quite clear that in ordinary circumstances the consent or consultation of the State Party is required for the inscription of properties on the List of World Heritage in Danger. The consent in this case can also be tacit, that is when the State Party does not react to the request for consultations. However, the problem arises when discussing cases of urgent need. He said he was rather impressed by the statement made by the Delegate of Thailand whereas when a State becomes party to the Convention it already gives its consent. He was not convinced by this argument saying that there is a small fallacy in it. He commented that what has actually happened is that the decisions that the Committee had taken in the past were actually based on the Operational Guidelines. Furthermore, he agreed that the Operational Guidelines should not be used to enhance or expand the Convention.
16.2 He concluded by saying that according to the present wording of the Convention even in cases of urgent need State Party consent is necessary. He considered the question should also be reviewed in practical circumstances as pointed out by the Delegate of Egypt. If State Party consent is not required this might have a counter-productive effect and will actually erode the Convention and work against its objectives. In addition, he stated that although in international law, conventions could be interpreted, this interpretation requires the approval of all States Parties who have adhered to the Convention. That means that the interpretation is non-controversial. He said that this is obviously not the case. He expressed the position of his delegation to look for a compromise solution, suggesting text such as: "In urgent need consent is not necessary. However, if a State Party expressly objects to the inscription, this inscription would not be possible".
17.1 The Delegate of Lebanon stated that the Committee had heard many different legal opinions and that a decision is required from the Committee. He noted that several working groups have made proposals and quoted from the recommendations of the Amman workshop on "The Role of World Heritage in Danger Listing in promoting international co-operation for the conservation of World Natural Heritage", organised by the World Heritage Centre and IUCN in October 2000:
"While the Committee is the ultimate authority in all decisions concerning the inclusion of a site in the “Danger-List”, the Committee should, as far as possible, seek consensus among all parties involved in the consultation process before including a site in that List. Such consensus is vital for co-operation among the State Party, advisory bodies, NGOs and other actors to implement plans and actions recommended by the Committee to remove prevailing threats to the site. However, in all cases the Committee must retain its authority to include a site on the List of World Heritage in Danger even if it has not been possible to reach consensus among all concerned parties".
17.2 He stated that in normal cases a consensus is sought. It is evident that there should be dialogue between the Committee and the State Party concerned in order to be able to determine the most appropriate measures to be taken and to apply them. However, the problem arises when after several years, notwithstanding the recommendations and attempts to solve the situation, these measures are not applied and the property continues to deteriorate to such an extent that it becomes endangered and risks losing its outstanding universal value.
17.3 He questioned what was to be done in these cases? He said that the Convention allows for the Committee to delete the property from the World Heritage List, but this would represent a failure, not only for the World Heritage Committee, but also for the international community. To avoid this situation, there is an intermediate phase - when facing exceptional or urgent circumstances - where the Committee has the right and the duty to inscribe an endangered property on the List of World Heritage in Danger, even if there is no formal agreement from the State Party. For those who question the practical usefulness of such a decision, he stated that inscribing a property on the List of World Heritage in Danger prevents further deterioration of the property. He asked why the Committee should be obliged to delete a property from the World Heritage List rather than inscribing on the List of World Heritage in Danger for the purposes of protecting the property?
17.4 He concluded that the inscription on the List of World Heritage in Danger could be seen as a means of pressure so that the measures requested by the Committee to improve the situation be implemented. However, this means that the inscription of a property on the List of World Heritage in Danger automatically presupposes the implementation of international measures of assistance to protect the property. He insisted that it is useless to inscribe a property on the List of World Heritage in Danger without taking any further action. He said that immediate measures should be taken and a budget line should be opened for all properties to be inscribed or already inscribed on the List of World Heritage in Danger.
18.1 The Delegate of India reminded the Committee of the importance of the sovereignty of States Parties and the need, at all times, for consent and consultations with the State Party. However, she considered that there is still some ambiguity as to when the Committee has the discretion to take action in this area. She reminded the Committee that when discussing these issues it should keep in mind the objective of saving World Heritage properties which have outstanding universal value.
18.2. When analysing the definition of “urgent need” (paragraph 49 of document WHC-02/CONF.202/8) the Delegate of India drew the attention of the Committee to a range of situations of urgent need which are not specified. In these cases the distinction could be made between man made and natural cases of urgent need. Furthermore, for man made circumstances, a distinction should be made between armed and non-armed conflicts as well as between international and non-international conflicts, amongst others. Also she considered that the Committee should question the reasons why, with all of the existing instruments such as reactive monitoring and technical co-operation, the situation has deteriorated to such an extent. Urgent need would then arise in circumstances where there is total impunity by the State Party, total lack of co-operation by the State Party or collapse of State authority. There is a vast range where, in varying degrees, the State has possibly co-operated or can be encouraged to co-operate.
18.3 The Delegate of India accepted the view as presented by the Legal Adviser that the last sentence of Article 11.4 does give an opening and a possibility for the Committee to address genuine cases of urgent need applying to properties which are on the World Heritage List. She noted that this was not for cases such as the Bamiyan Buddhas. However, and in the absence of criteria for defining urgent need, she said that this might lead the Committee to a subjective situation which will lead to further ambiguity. In these cases the Committee must also envisage full follow-up for the protection of the property. As the objective is to save the property, the Committee should provide assistance. However, she questioned how these follow-up activities would be carried out without the consultation and co-operation of the State Party. She reiterated her interest in further clarifying the concept of “urgent need” so that it includes very clear and precise cases such as State impunity, collapse of State authority or total lack of State co-operation. She concluded by saying that her country would not feel comfortable introducing unnecessary subjectivity in the Committee's work. She also commented that the Operational Guidelines should not overtake the Convention and that this should be kept in mind when the Committee discusses other items.
19. The Delegate of the Republic of Korea agreed with the Delegates of Zimbabwe, Nigeria and India that these issues have political aspects which should also be considered. Thus, co-operation should be sought and confrontation avoided. He said that even if legally the Committee does not require the consent for inscription, it is another matter how the Committee can secure the protection of the property effectively without the co-operation of the State Party. The Committee should try to avoid these actions without having the consent of the State Party, to the extent possible. Although exceptions can be made for cases of urgent need and emergency cases. The ways and means to secure co-operation and dialogue between the World Heritage Centre and the State Party should be included and supplemented in the Operational Guidelines.
20. The Observer of Chile stated that the first challenge for the Committee would be to decide during this session on the course of action to be followed. In order to do so, the Committee would need to take into consideration its previous practice, its competence and the discussions on this subject. However, he considered that it is very clear that this issue has legal, technical and political implications. Thus, it is not enough to deal with each aspect separately to solve this issue. A holistic approach is necessary. If immediate action was to be taken this could have erroneous implications for the other fields. He suggested that a working group composed of intergovernmental experts be created to discuss this subject, but that this initiative should not be rushed. He also offered, as President of the Legal Committee of the UNESCO General Conference and if the Committee should wish so, to undertake the necessary studies to elucidate these issues.
21.1 The Observer of Australia stated that although he was not going to rehearse Australia's long held position on the legal arguments, he observed that after listening to the interventions that, while there seemed to be growing consensus on the view that State Party consent is required in nearly all circumstances, except in the cases of urgent need and emergency circumstances, there still was concern about the definition of urgent need and on how to define the processes. He also mentioned several questions: Does the Committee have the processes to make those difficult and challenging decisions? What is the Committee's experience in this? How does the Committee develop its practice? He affirmed that most States Parties are looking for solutions. He suggested that the Committee consider that a working group be established and that it be tasked with defining clear parameters, thresholds and benchmarks for the arbitration of cases of urgent need where State Party consent has not been obtained or where there is no competent State Party authority.
21.2 He stressed that further thought should be given to the ways by which the inscription of a property on the List of World Heritage in Danger can be seen as a means to stimulate international attention and focus international co-operation as was conceived by the drafters of the Convention. He said that consideration should be given to a dedicated fund within the International Assistance budget to assist States Parties with properties on the List of World Heritage in Danger. He proposed that this initiative be given a positive label such as "priority heritage assistance programme" as a way of demonstrating the level of international co-operation required. He also suggested that if a State Party cannot reach a consensus with the Committee, and it does not take a programme of action or does not meet its commitments year after year, the Committee might want to consider changing the boundaries of the property, to exclude the areas where the problems are occurring, or changing the values of the property before moving towards the necessary, but to be avoided at all costs, step of deletion from the World Heritage List, even without the consent of the State Party.
22.1 The Observer of France thanked the Belgian Delegation for having initiated this debate. He endorsed the conclusions of the working document, in particular those in paragraph 24. He stated that the remarks made by the Delegate of Thailand reinforced what was concluded by the working document. He reminded the Committee that World Heritage, which the Committee strives to protect, is not only constituted by the addition of the national heritage of States Parties since there is a higher interest which transcends national interests. Moreover, the balance between the sovereign rights of the States Parties and the higher interest established by the Convention is the basis of international solidarity – solidarity which is at the heart of the Convention. This solidarity is expressed by the fact that the States cannot, on the one hand, claim the important advantages and benefits such as economic interest, prestige, reputation of an inscription on the World Heritage List, and, on the other hand, not fulfil the obligations and responsibilities established by the Convention. When we speak of rights and responsibilities, we should also speak of duties.
22.2 He continued by saying that the conclusions presented by the Legal Adviser are not only in agreement with the letter of the Convention, but also with its spirit for the creation of a common heritage for which the international community is jointly responsible for its protection. As the World Heritage Committee represents the interests of this international community it therefore has the duty to protect this common heritage. He expressed his understanding for the concerns expressed by some States Parties concerning the possible abusive interference in their internal affairs, concerns which are legitimate and deserve to be respected. Thus, if progress is to be made on this issue, these concerns should be addressed.
22.3 The Observer of France reaffirmed that the inscription on the List of World Heritage in Danger is not a sanction nor a humiliation, but a means of solidarity towards the State Party. He considered that only on the basis of this inscription real assistance can be implemented and resources be given to protect the property. Evidently the co-operation of the State Party should be sought before any coercive measure can be taken. However, he did not agree with the idea that if a decision were taken to inscribe a property on the List of World Heritage in Danger without the consent of the State Party this would provoke conflict. All actions must be taken in a climate of trust and solidarity between the ensemble of States Parties as this is the only way of reinforcing the Convention. He strongly warned the Committee not to approve procedures whereby it would be easier to delete a property from the World Heritage List than to inscribe it on the List of World Heritage in Danger. If the Committee were to follow this orientation, it would certainly not be helping the Convention or World Heritage. He therefore urged the Committee to find a good compromise and consensus.
23.1 The Observer of Poland noted as a preliminary comment that the working document and the document presented by IUCN did not have the same legal value. He congratulated the Legal Adviser for presenting a document which not only dealt with the legal aspects of the subject, but also with the practical and political aspects. He considered that another virtue of the working document is that it draws the attention of the Committee to certain limitations which can not actually be surmounted. In particular, he asked that the Centre's possible scope for action would be in cases of urgent need which would allow for the inscription of properties on the List of World Heritage in Danger without State Party consent. He considered that the Committee could not accept other forms of action with regard to inscriptions on the List of World Heritage in Danger other than the cases of urgent need. Thus, the working document clearly defines where the Committee can take action without State Party consent being required. If the Committee were to accept the conclusions presented by the Legal Adviser, the Committee would have to define cases of urgent need.
23.2 With regard to the IUCN document, he stated that as an Advisory Body IUCN does not have the right nor the competence to interpret the World Heritage Convention. Moreover, although IUCN is competent in matters of environmental law, it does not have the right to interpret international law. As IUCN is competent in matters relating to natural heritage, its interpretation would only be limited to cases of that field. Furthermore, among the arguments presented by IUCN on why State Party consent is not required for inscription on the List of World Heritage in Danger, he could not accept that there is a presumption of unwillingness or bad faith on behalf of a State Party. He concluded by saying that the List of World Heritage in Danger is an extraordinary measure for the protection of World Heritage properties. Thus, he stated that it was not realistic nor constructive to proceed with actions which might obstruct co-operation with a State Party due to the fact that its consent has not been requested.
24. The Observer of Nepal stated that having the co-operation of the State Party and of the World Heritage Committee is essential for the protection and conservation of World Heritage properties, especially in developing countries. He pointed out that Nepal has been facing some problems with the conservation of the Kathmandu Valley as has been discussed in the 24th session of the World Heritage Committee (Cairns, 2000). It is the responsibility of the World Heritage Committee as well as of the State Party to protect World Heritage sites. The Committee has agreed that is necessary to get the support and co-operation of the State Party in conservation matters, and he said therefore that it is equally necessary to have the consent of the State Party for the inscription on the List of World Heritage in Danger. He supported the views expressed by the Delegations of Egypt, Belgium and Portugal, amongst others. He asked the Committee to carefully examine whether the State Party is doing its utmost to protect the World Heritage site before the Committee takes a decision.
25. The Observer of Japan stressed that the issue being discussed was not only a legal one, but one with practical and policy aspects. He emphasized that the smooth implementation of the Convention should not be hindered by not resolving these issues. From this point of view, he stated that the Committee has the mandate to decide on these issues through the Operational Guidelines or in other ways. He expressed his agreement with the conclusions presented by the Legal Adviser and suggested that the Operational Guidelines be implemented in a flexible way.
26. The Observer of the Netherlands thanked the Belgian Delegation for having brought this issue up for discussion. She stressed the importance of concluding the debate as it had implicitly been going on for more than 10 years. The most important aspect at this point would be to find the balance between State sovereignty and international responsibility. She considered that the Committee has a very sound legal basis for its discussion due to the thorough working document prepared by the Secretariat. She also emphasized the need to distinguish between legal, political and practical aspects. Amongst the valuable suggestions made during the debate, she considered the establishment of criteria for defining urgent need a very important suggestion. She also agreed with the suggestion made by the Observer of Australia that a separate budget line be created for the List of World Heritage in Danger. She accepted the conclusions presented by the Legal Adviser and proposed that the Committee should look for a practical solution, and in particular determine benchmarks and criteria for the definition of urgent need.
27.1 The Chairperson thanked the Secretariat, the Legal Adviser and all those who had contributed to the working document for having provided the Committee with such an exhaustive and clear legal opinion. He referred to the great awareness that the Committee has of its responsibility in protecting World Heritage. He considered that there is agreement that the spirit of the Convention gives priority to the protection and conservation of all World Heritage sites. If properties are endangered, the Convention has foreseen the List of World Heritage in Danger, as an instrument of solidarity and co-operation. He stated, therefore, that when inscribing a property on this List, the consent and co-operation of the State Party should always be sought, with the exception of cases of urgent need. What is now most important is the definition of what are these cases of urgent need or exceptional circumstances.
27.2 He asked the Committee if there was consensus to make a decision and to adopt the conclusions presented by the Legal Adviser acknowledging that there are exceptional cases which do not require the consent of the State Party. He proposed the creation of a working group to work during the present Committee session and also perhaps after to define cases of urgent need and study the possibility of setting up a special budgetary line related to the List of World Heritage in Danger. With regard to the final decision of the Committee, he suggested that a written proposal be formulated.
28. The Delegate of Egypt expressed his appreciation for all the views presented during the discussion. He proposed that the Committee take note of the working document, rather than accept its conclusions. Although he considered the document very exhaustive and covering several aspects of these issues, he could not accept some of its conclusions, in particular that the consent of State Party is not required when the Committee deletes a property from the World Heritage List. He stated that this issue had not yet been discussed by the Committee, so in his view this part of the working document remains open to question.
29. The Delegate of the United Kingdom expressed her support for some of the aspects mentioned by the Delegate of Egypt. She declared that her country could not agree with the interpretation presented by the Legal Adviser concerning Article 11.4 of the Convention. She expressed her concern that the Committee take a decision on this issue and informed the Committee that her delegation was working on what could be a compromise solution. Her delegation believed that the Committee has the right to tell a State Party that a property is in danger, but that States that are opposed to inscription on the List of World Heritage in Danger cannot have their sites inscribed on this List. She concluded by saying that the Committee has the right to delete sites which have lost their outstanding universal value for which they were inscribed on the World Heritage List. Moreover, these changes should be incorporated as amendments to the Operational Guidelines.
30. The Delegate of Zimbabwe asked that the debate not be reopened and agreed with the proposal of the Chairperson to create a working group as this would represent an important step forward.
31. The Delegate of Finland expressed his agreement with the proposal of the Delegate of the United Kingdom.
32. With regard to the deletion from the World Heritage List, the Chairperson affirmed that this was a right of the Committee, but that it should try to avoid it as it represents a last resort. As for the inscription on the List of World Heritage in Danger, he considered that this is one of the tools in the hands of the Committee for the conservation and protection of World Heritage sites. He stressed that the Committee has the right to include a property on the List of World Heritage in Danger as an expression of common and shared responsibility. However, the Committee should always seek the consent and co-operation of the State Party, with the exception of cases of urgent need and exceptional circumstances. In these latter cases, there should be very precise definitions of the cases of urgent need and exceptional circumstances. He proposed that a working group should be created exclusively for the purpose of defining urgent need and exceptional circumstances, although the creation of a special budgetary line should not be forgotten.
33. The Delegate of Greece stated that this issue is connected to the revision of the Operational Guidelines (Item 18). The creation of the working group would therefore depend on the procedure to be adopted when discussing that agenda item.
34. The Delegate of Egypt did not agree with the idea of creating a working group for the establishment of criteria for cases of urgent need. He said that no matter how the Committee defines cases of urgent need, these criteria would never be comprehensive. These criteria would only restrain the future actions of the Committee. He concluded that cases of urgent need should be examined on a case-by-case basis by the Committee.
35. The Chairperson replied by saying that certain objective indications could be provided by the Committee.
36. The Delegate of Finland agreed with the comments made by the Delegate of Egypt, but suggested that perhaps some general considerations could be established.
37. The Delegate of Saint Lucia stated that she did not think that there was total consensus on both issues. She suggested that before discussing the definition of urgent need, the Committee should decide on what comes first. She therefore recommended that a written text be prepared as a way to reach a conclusion on this agenda item.
38. The Chairperson asked the Secretariat to prepare a draft decision which was presented to the Committee later that day:
Draft Decision Legal Considerations The World Heritage Committee:
Recalls that the World Heritage Convention establishes a system of international co-operation for the protection of the cultural and natural heritage;
Underlines its responsibility to ensure the conservation of properties inscribed on the World Heritage List;
Recalls that the inscription of a property on the List of World Heritage in Danger is an expression of international solidarity and should not be considered as a sanction;
Commits to seek co-operation with States Parties and will establish clearly defined procedures for consultation with States Parties on measures for the protection and conservation of World Heritage properties;
Decides to give priority and to dedicate resources2 to properties inscribed on the List of World Heritage in Danger;
Further decides that:
a) under ordinary circumstances the inscription of a property on the List of World Heritage in Danger presupposes that a request for assistance has been submitted to the Committee under the Convention. However, if the State Party concerned requests the inscription of a property on the List of World Heritage in Danger it may be considered as equivalent to a request for assistance under the Convention; b) in cases of urgent need, the Committee may inscribe a property on the List of World Heritage in Danger without the consent of the State Party. If the State Party concerned expressly objects to such an inscription, the Committee should envisage an appropriate mechanism for obtaining the co-operation of the State Party in the interest of safeguarding the World Heritage property in question. The Committee should establish clear criteria and parameters for defining cases of "urgent need". c) the Committee has the international responsibility to delete a property from the World Heritage List when the outstanding universal value which justified its inscription is lost. Deletion of a property from the World Heritage List does not require the consent of the State Party concerned nor is it necessary that the property is already inscribed on the List of World Heritage in Danger; 7. Invites the Director-General to submit to the 27th session of the World Heritage Committee appropriate amendments to the Operational Guidelines. 39. The Chairperson invited the Committee to examine this draft decision paragraph by paragraph.