Cultural Heritage, Sustainable Development and Human Rights. Towards an Integrated Approach [1. ed.] 9781032413570, 9781032413587, 9781003357704

Table of contents :
Cover
Half Title
Series
Title
Copyright
Contents
List of Contributors
List of Abbreviations
Acknowledgments
Part I Introduction
1 Cultural Heritage, Sustainable Development and Human Rights: The Need for an Integrated Approach
Part II General Issues in a Fragmented Legal Framework
2 The Principle of Sustainable Development and International Cultural Heritage Law
3 The Spirit and the Substance. The Human Dimension of Cultural Heritage from the Perspective of Sustainability
4 ‘No One May Invoke’: The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent
5 Cultural Properties in Outer Space
6 The Urban-Rural Divide and the Contribution of Cultural Heritage to Sustainable Development
7 EU Law, Sustainable Development and Culture: A Controversial Encounter?
Part III Tangible Cultural Heritage, Sustainable Development and Human Rights
8 The 2030 Agenda for Sustainable Development: Its Impact on the Implementation of the 1972 World Heritage Convention
9 The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites: The Venice Case
10 Restitution of Cultural Property and Decolonization of Museums: Issues of Consistency Between Fulfilment of Legal Obligations, Ethical Principles and Identity Links
11 “Contested” Cultural Heritage: Towards the Emergence of an International Duty of Transmission to Future Generations?
Part IV Intangible Cultural Heritage, Sustainable Development and Human Rights
12 Sustainable Development and Intangible Cultural Heritage
13 Participation of Indigenous Peoples in the Safeguarding of Intangible Cultural Heritage: A Principle at the Crossroads of Human Rights and Sustainable Development
14 Traditional Governance Institutions and the Holistic Protection of Traditional Knowledge
15 Strengthening the Protection of Intangible Cultural Heritage in Development Projects: The Role of Multilateral Development Banks
16 Some Remarks on Child and Forced Marriages and Traditional Practices Harmful to Women’s Health: Their Possible Implications for Sustainable Development
Part V Cultural Heritage, Sustainable Development and Human Rights: Focus on Climate Change and Natural Resources
17 Cultural Rights, Environmental Rights and Climate Rights: Insights from International and EU Law
18 A Cultural Rights-Based Approach to Climate Change? Limits and Implications of Cultural Claims in Climate Cases Before International Human Rights Monitoring Bodies
19 Gravity and Grace: Sustainable Development, Foreign Investments and Cultural Heritage in International Investment Law
20 The Legal Protection of Biocultural Diversity Between Cultural Rights and Sustainable Development. A Comparative Perspective
21 Cultural Traditional Practices Versus Protection of Wildlife: Possible Solutions in the Light of the Principle of Sustainability
Part VI Conclusions
22 An Integrated Approach to Cultural Heritage, Sustainable Development and Human Rights: Mission Impossible?
Index

Citation preview

Cultural Heritage, Sustainable Development and Human Rights

The importance of cultural heritage – in both its tangible and intangible forms – to sustainable development and its economic, social and environmental components is increasingly evident in the recent practice of intergovernmental and nongovernmental organizations at the universal and regional levels. Due consideration for the integration of the cultural dimension in the implementation of Agenda 2030 has begun to grow in various international fora, including initiatives to emphasize the role and contribution of tangible and intangible heritage as drivers and enablers of sustainable development. It has also been recognized that the inherent links between cultural heritage and sustainable development cannot be correctly addressed without considering their various implications for the effective enjoyment of all human rights, including cultural rights. This book offers a thorough academic investigation of the importance of cultural heritage to sustainable development and cultural rights from an international law perspective. Providing an in-depth review of the possible intersections between cultural heritage, sustainable development and cultural rights, and the limits of the current legal and institutional framework, it will be of interest to researchers and scholars of international law, cultural heritage law, environmental law and human rights law. Laura Pineschi is Full Professor of International Law at the University of Parma (Italy). She is the author of two monographs and the editor of various volumes published in Italy and abroad. Results of her research activity in the fields of international environmental law, UN peacekeeping operations, human rights law, cultural heritage protection and cultural rights have also been published in Italian and international academic journals or as book chapters. She has been Director of the Directed Studies (English-speaking section) of The Hague Academy of International Law in 2015 and Member of the Directive Council of the Italian Society of International Law from 2009 to 2016. At the University of Parma, she served as Dean of the Faculty of Law from 2009 to 2012 and as Director of the Center for Studies in European and International Affairs (CSEIA) from 2016 to 2023.

Cultural Heritage and International Law

Regulating Transnational Cultural Heritage Diversity, Memory and Identity Merima Bruncevic Transboundary Heritage and Intellectual Property Law Safeguarding Intangible Cultural Heritage Patricia Covarrubia Cultural Heritage, Sustainable Development and Human Rights Towards an Integrated Approach Edited by Laura Pineschi

Cultural Heritage, Sustainable Development and Human Rights Towards an Integrated Approach

Edited by Laura Pineschi

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Laura Pineschi; individual chapters, the contributors The right of Laura Pineschi to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-41357-0 (hbk) ISBN: 978-1-032-41358-7 (pbk) ISBN: 978-1-003-35770-4 (ebk) DOI: 10.4324/9781003357704 Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of Contributors List of Abbreviations Acknowledgments PART I

Introduction 1 Cultural Heritage, Sustainable Development and Human Rights: The Need for an Integrated Approach

ix xv xxiii

1 3

LAURA PINESCHI

PART II

General Issues in a Fragmented Legal Framework 2 The Principle of Sustainable Development and International Cultural Heritage Law

13 15

ANA FILIPA VRDOLJAK

3 The Spirit and the Substance. The Human Dimension of Cultural Heritage from the Perspective of Sustainability

46

FEDERICO LENZERINI

4 ‘No One May Invoke’: The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent

66

FEDERICA MUCCI

5 Cultural Properties in Outer Space TULLIO SCOVAZZI

82

vi

Contents

6 The Urban-Rural Divide and the Contribution of Cultural Heritage to Sustainable Development

93

FRANCESCO FRANCIONI

7 EU Law, Sustainable Development and Culture: A Controversial Encounter?

108

MARCO INGLESE

PART III

Tangible Cultural Heritage, Sustainable Development and Human Rights 8 The 2030 Agenda for Sustainable Development: Its Impact on the Implementation of the 1972 World Heritage Convention

129 131

SABINE VON SCHORLEMER

9 The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites: The Venice Case

155

MARCO GESTRI

10 Restitution of Cultural Property and Decolonization of Museums: Issues of Consistency Between Fulfilment of Legal Obligations, Ethical Principles and Identity Links

175

MANLIO FRIGO

11 “Contested” Cultural Heritage: Towards the Emergence of an International Duty of Transmission to Future Generations?

193

COSTANZA RIZZETTO

PART IV

Intangible Cultural Heritage, Sustainable Development and Human Rights

211

12 Sustainable Development and Intangible Cultural Heritage

213

TULLIO SCOVAZZI

13 Participation of Indigenous Peoples in the Safeguarding of Intangible Cultural Heritage: A Principle at the Crossroads of Human Rights and Sustainable Development VÉRONIQUE GUÈVREMONT

233

Contents 14 Traditional Governance Institutions and the Holistic Protection of Traditional Knowledge

vii 255

FRANCIS KARIUKI

15 Strengthening the Protection of Intangible Cultural Heritage in Development Projects: The Role of Multilateral Development Banks

278

BERENIKA DRAZEWSKA AND KRISTIN HAUSLER

16 Some Remarks on Child and Forced Marriages and Traditional Practices Harmful to Women’s Health: Their Possible Implications for Sustainable Development

300

FRANCESCA TROMBETTA PANIGADI

PART V

Cultural Heritage, Sustainable Development and Human Rights: Focus on Climate Change and Natural Resources

321

17 Cultural Rights, Environmental Rights and Climate Rights: Insights from International and EU Law

323

OTTAVIO QUIRICO

18 A Cultural Rights-Based Approach to Climate Change? Limits and Implications of Cultural Claims in Climate Cases Before International Human Rights Monitoring Bodies

339

ELENA CARPANELLI

19 Gravity and Grace: Sustainable Development, Foreign Investments and Cultural Heritage in International Investment Law

360

VALENTINA VADI

20 The Legal Protection of Biocultural Diversity Between Cultural Rights and Sustainable Development. A Comparative Perspective

382

PIER LUIGI PETRILLO

21 Cultural Traditional Practices Versus Protection of Wildlife: Possible Solutions in the Light of the Principle of Sustainability MARIA CLARA MAFFEI

400

viii

Contents

PART VI

Conclusions

421

22 An Integrated Approach to Cultural Heritage, Sustainable Development and Human Rights: Mission Impossible?

423

LAURA PINESCHI

Index

436

Contributors

Elena Carpanelli is Researcher and Assistant Professor (tenure track) of International Law at the Department of Law, Politics and International Studies of the University of Parma. From 2016 to 2019 she worked as Postdoctoral Research Fellow in International Law at the Center for Studies in European and International Affairs (CSEIA) of the same university. She spent several research periods abroad, including at Columbia Law School in New York (2014–2015) and, more recently, at the University of Hiroshima (2022), where she was nominated Specially Appointed Assistant Professor. She holds a PhD from the University of Milan–Bicocca (2016) and an LLM from the University of Leiden (2011). She is the author of one monograph, co-editor of two volumes and author of several articles and chapters. Her research interests include international human rights, international environmental law, and air and space law. Berenika Drazewska is a Senior Research Fellow at Singapore Management University (SMU). She holds a PhD in International Law from the European University Institute (2016) and an LLM from the same institution (2011). While at the EUI, she was one of the coordinators of the Cultural Heritage Working Group, which organized conferences, workshops and seminars on international legal issues relevant to the protection of cultural heritage. She has also participated in international conferences and has published and peer-reviewed articles on these topics. Her first monograph, Military Necessity in International Cultural Heritage Law (Brill 2021), analysed the problem of destruction of cultural heritage during armed conflicts from the perspective of international law. Her research interests include protection of cultural heritage and cultural diversity, cultural human rights and cultural heritage governance. Francesco Francioni (Doctor of Laws, Florence; LLM, Harvard) is Professor Emeritus of International Law at the European University Institute, Florence. Previously, he held the chair of International Law at the Law Faculty of the University of Siena. He is a member of the Institut de droit international, a member of the editorial board of the Italian Yearbook of International Law and the Cofounder and General Editor with Ana Filipa Vrdoljak of the Oxford University

x

Contributors

Press Series “Cultural Heritage Law and Policy”. He has been a member of the Italian delegation in numerous international negotiations and diplomatic conferences for the adoption of treaties in the field of environmental protection and cultural heritage and served as President of the UNESCO World Heritage Committee 1997–1998. He has been Judge ad hoc in the UN Tribunal of the Law of the Sea and arbitrator at the Permanent Court of Arbitration (The Hague). He has published extensively in the field of public international law in the English, Italian and French languages. Manlio Frigo is Full Professor of International and European Law and of International Contract and Arbitration Law at the Milan State University (Università degli Studi di Milano), Department of International, Juridical, Political and Historical Studies; Member of the Steering Committee of the PhD in International Economic Law of the Bocconi University; Member of the Committee on Cultural Heritage Law of the International Law Association; expert consultant to the European Union Commission and international organizations, such as UNESCO and UNIDROIT, on the subject of circulation and the fight against illicit trafficking of cultural assets; Counsel at Bonelli Erede, Milan, office; and Member of the Focus Team Art and Cultural Property. Marco Gestri is Full Professor of EU and International Law at the University of Modena and Reggio Emilia (Italy). He is also an Adjunct Professor of International Law at the Johns Hopkins University SAIS Europe, at LUISS University, Rome and at the Alta Scuola di Economia e Relazioni Internazionali (ASERI) of the Catholic University in Milan. He is on the board of editors and the book reviews editor of the Italian Yearbook of International Law. He is the author of two monographs and co-author of a textbook on international and European migration law. He is the editor of eight volumes and has written numerous articles and book chapters. His research interests include international environmental law, cultural heritage law, human rights law, migration law, international and EU disaster response law, the law of the sea, and air and space law. Véronique Guèvremont is Professor at the Faculty of Law of Université Laval (Quebec, Canada). She holds the UNESCO Chair on the Diversity of Cultural Expressions and is co-responsible for the Arts, Media and Cultural Diversity axis of the International Observatory on the Societal Impacts of Artificial Intelligence and Digital Technologies (OBVIA). Graduated from the University of Paris 1 Panthéon-Sorbonne, she has been teaching International Cultural Law and International Economic Law since 2006. From 2003 to 2005, she was an associate expert with UNESCO’s Division of Cultural Policies during the negotiation of the 2005 Convention. Her most recent researches and publications focus on cultural rights, the treatment of cultural goods and services in trade agreements, the preservation of the diversity of cultural expressions in the digital age and the cultural dimension of sustainable development. Since 2015, she has been part of the UNESCO Expert Facility on the 2005 Convention.

Contributors

xi

Kristin Hausler is the Dorset Senior Research Fellow and Director of the Center for International Law at the British Institute of International and Comparative Law (London). She regularly advises governments, international organizations (IO) and NGOs on cultural heritage, such as on heritage protection in Ukraine, legislative drafting in Iraq, or engaging non-state actors on heritage protection. She also conducts training on heritage protection with military and police forces. She has spoken on cultural heritage matters around the globe, including at the United Nations and NATO, and frequently appears as a guest professor on Cultural Heritage Law at universities including Georgetown Law, the University of Florida, the University of Geneva, and Leiden University. Before joining the Institute, she worked in Canada on the repatriation of Ancestral remains to Indigenous communities. Before becoming a lawyer, she studied art history at Christie’s in New York and worked in the museum sector. Marco Inglese is Researcher and Assistant Professor (tenure track) of European Union Law at the Department of Law, Politics and International Studies of the University of Parma. He holds a joint PhD in European Union Law (University of Bologna and University of Strasbourg). He spent numerous research and professorship periods abroad, notably, at the Freie Universität Berlin (Germany), University of Fribourg (Switzerland), University College Dublin (Ireland), University of Sarajevo (Bosnia-Herzegovina), China-Europe School of Law at the China University of Political Science and Law (China), and University of Strasbourg (France). He is the author of one monograph and several articles and chapters. His research interests include food law and sustainability, the regulation of the single digital market, the European Ombudsman and the principle of good administration, the European Citizens’ Initiative and the principle of democracy, and EU health law. Francis Kariuki is an Advocate of the High Court of Kenya and a lecturer at the Strathmore University Law School. He holds Bachelor of Laws (LLB) and a Master of Laws (LLM) degrees from the University of Nairobi and a Doctor of Philosophy (PhD) from the University of the Witwatersrand, South Africa. His PhD thesis was examining the role of traditional governance institutions in the protection of traditional knowledge in Kenya. He is a Fellow of the Chartered Institute of Arbitrators (CIArb) London and Kenya and is an experienced arbitrator and an accredited mediator. His research interests are in traditional knowledge, traditional governance institutions and natural resources law. He has published and presented papers on traditional knowledge and has been involved in trainings and workshops on traditional knowledge. Federico Lenzerini is PhD, International Law, and Full Professor of International Law and Human Rights at the Department of Political and International Sciences of the University of Siena (Italy). He is also Professor at the LLM programme in Intercultural Human Rights at the St. Thomas University School of Law, Miami, Florida, and Professor at the Tulane-Siena Summer School on International Law, Cultural Heritage and the Arts. He has been Consultant to UNESCO (Paris),

xii

Contributors

Counsel to the Italian Ministry of Foreign Affairs for international negotiations related to cultural heritage, and member of the Italian delegation at meetings of the World Heritage Committee. He has been the Rapporteur of the International Law Association (ILA) ‘Committee on the Rights of Indigenous Peoples’, Rapporteur of the ILA ‘Committee on the Implementation of the Rights of Indigenous Peoples’ and member of the ILA ‘Committee on Cultural Heritage Law’. Maria Clara Maffei is a Researcher of International Law at the Department of Law, Political and International Studies of the University of Parma. From 1994 to 2002 she was a researcher of International Law at the Faculty of Law of the University of Modena and Reggio Emilia. She holds a PhD from the University of Milan (1991). In 1991–1992 she was a Jean Monnet Fellow at the European University Institute of Fiesole (Florence). She is the author of two monographs, co-editor of one volume and author of several articles and chapters. Her research interests mainly focus on international human rights (including cultural rights), international environmental law and international law of the sea. Federica Mucci, PhD, is Associate Professor of International Law at the University of Rome Tor Vergata where she teaches, inter alia, specific courses on the international protection of cultural heritage. She has participated in many negotiations at UNESCO as legal expert of the Italian delegation. She taught also at the European University of Rome, LUMSA University (Rome) and the International Maritime Law Institute in Malta. In Fall 2018, at Venice International University (S. Servolo, Venice), she taught the courses on ‘Identity, Heritage and Globalisation: Global Cultural Heritage in International Law’ and ‘The Protection of Animals in International Law’. Her monographs, published by Editoriale Scientifica, are about copyright and the digital challenge in European Community law (2008), the international protection of cultural heritage and of the diversity of cultural expressions (2012) and the role of States and international organizations in the protection of the common heritage of humankind (2023). Francesca Trombetta Panigadi is Associate Professor of Private International Law at the Department of Law, Political and International Studies of the University of Parma. Since 2004 she has been teaching Private International Law and since 2018 also European Union Law. She is the author of one monograph, co-editor of two volumes and author of several articles. Her recent research interests focus on the field of private international law of European Union family law, matrimonial matters, protection of minors, parental responsibility and successions and wills. Pier Luigi Petrillo is Full Professor of Comparative Public Law at the University of Rome Unitelma Sapienza and UNESCO Chair Professor on Intangible Cultural Heritage and Comparative Law. He is also Professor of ‘Heritage Markets for Food and Arts’ and ‘Lobbying Law’ at the Luiss Guido Carli University (Italy). From 2018 to 2022 he was Chairperson of the Evaluation Body of the ICH UNESCO Convention and is now Member of the ICH UNESCO Global Facilitator Network.

Contributors

xiii

His last book in English is The Legal Protection of Intangible Cultural Heritage (Springer 2019). Laura Pineschi is Full Professor of International Law at the University of Parma (Italy). She is the author of two monographs and the editor of various volumes, published in Italy and abroad. Results of her research activity in the fields of international environmental law, UN peacekeeping operations, human rights law, cultural heritage protection and cultural rights have also been published in Italian and international academic journals or as book chapters. She has been Director of the Directed Studies (English-speaking Section) of The Hague Academy of International Law in 2015 and Member of the Directive Council of the Italian Society of International Law from 2009 to 2016. At the University of Parma, she served as Dean of the Faculty of Law from 2009 to 2012 and as Director of the Center for Studies in European and International Affairs (CSEIA) from 2016 to 2023. Ottavio Quirico, PhD (Université des Sciences Sociales, Toulouse, France), is a Senior Researcher at the University for Foreigners of Perugia and an Associate Professor at the University of New England Law School and the Australian National University, Centre for European Studies. He has been, inter alia, a Marie Curie Fellow at Université Panthéon-Assas in Paris and a Fernand Braudel Senior Fellow at the European University Institute, Law Department. He has taught and researched extensively in the areas of International Law and Relations and EU Law and Policy and has acted as a consultant to the United Nations. He coordinates the EU-funded research project ‘Implementing Climate Policies’ (620604-EPP-1–2020–1-AU-EPPJMO-PROJECT). Costanza Rizzetto is PhD Candidate in International and Public Law, Ethics and Economics for Sustainable Development at the Department of Italian and Supranational Public Law of the University of Milan. She holds an LLM in Transnational Crime and Justice from the United Nations Interregional Crime and Justice Research Institute of Turin and a double master’s degree from the University of Milan and the University of Toulouse I Capitole. Her research interests include public international law, law of international organizations and cultural heritage law. Tullio Scovazzi is a retired Professor of International Law in the Italian Universities of Parma, Genoa, Milan and Milan-Bicocca. In 2000 he gave the course on ‘The Evolution of International Law of the Sea: New Issues, New Challenges’ at the Hague Academy of International Law. In 2005 he was Director of Studies at the Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law on the topic ‘The Cultural Heritage of Mankind’ (French-speaking section). He is a member of the Institut de droit international. He is author of several books and articles on various topics, especially in the fields of international law of the sea, international environmental law, cultural law. He is occasionally legal advisor in international negotiations and meetings

xiv

Contributors

relating to international law of the sea, the environment, cultural properties and human rights. Valentina Vadi is an Adjunct Professor in International Law at the School of Political Sciences of the University of Florence and a Research Fellow at the Department of Political Science, Law and International Studies of the University of Padua. She was formerly a Professor in International Economic Law at Lancaster University (2015–2021), a Michigan Grotius Senior Research Fellow at Michigan Law School (2019), and an Emile Noël Postdoctoral Fellow at the Jean Monnet Center for International and Regional Economic Integration, New York University (2013– 2014). She holds a doctorate in international law from the European University Institute, degrees in international law and political science from the University of Siena, and a Magister Juris (LLM) from the University of Oxford. She is the author of Cultural Heritage in International Economic Law (Leiden: Brill 2023) and the co-editor (with A. di Blase) of The Inherent Rights of Indigenous Peoples in International Law (Rome: University of Rome III Press 2020). Sabine von Schorlemer holds the Chair of International Law, EU Law and International Relations since 2000 and the UNESCO Chair in International Relations since 2009, both at Technische Universität Dresden. From 2009 to 2014 she served as the Saxon State Minister for Higher Education, Research and the Fine Arts. Inter alia, she acted as an Advisor to the German Federal Foreign Office on UN Politics and as an Independent Expert for the Director-General of UNESCO. In 2004–2005, she was a member of the High-Level Task Force of the UN High Commissioner for Human Rights (UNHCHR) on the implementation of the right to development. She is the Vice-President of the Curatorium of the African Institute of International Law and Member of the International Law Association, the German Commission for UNESCO, and the Advisory Committee for the funding initiative ‘Patrimonies’ of the Gerda Henkel Foundation. Her recent books are about cultural heritage destruction (2016) and UNESCO World Heritage and postcolonial discourses (2022). Ana Filipa Vrdoljak is the UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney. She is the author of International Law, Museums and the Return of Cultural Objects (CUP, 2006, forthcoming 2nd ed. 2024); and editor of Oxford Handbook on International Cultural Heritage Law with Francesco Francioni (OUP 2020); Oxford Commentary on the 1970 UNESCO and 1995 UNIDROIT Conventions with A. Jakubowski and A. Chechi (OUP, forthcoming 2023); The Cultural Dimension of Human Rights (OUP, 2013); and International Law for Common Goods: Normative Perspectives in Human Rights, Culture and Nature with F. Lenzerini (Hart, 2014). She is a General Editor, with Francesco Francioni, of the Oxford Commentaries on International Cultural Heritage Law (OUP) and book series Cultural Heritage Law and Policy (OUP). She is President, Cultural Property Society (US) and Chair, Management Committee, International Journal of Cultural Property (CUP).

Abbreviations

AAR ACHR ACP Group ADB ADRDM AfCHPR AfCtHPR AfDB AIIB AJIA AJIKS AJIL ALR ANU ARA ASEAN ASJIL ASW AT&P AUILR AYIL BCS BIT BLM BLR BUILJ CA&E CAO CBD CEDAW CERD CESCR

African Archaeological Review American Convention on Human Rights African, Caribbean and Pacific Group of States Asian Development Bank American Declaration on the Rights and Duties of Man African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights African Development Bank Asian Infrastructure Investment Bank Australian Journal of International Affairs African Journal of Indigenous Knowledge Systems American Journal of International Law Australian Law Reports Australian National University Annual Review of Anthropology Association of Southeast Asian Nations Asian Journal of International Law Aboriginal subsistence whaling Administrative Theory & Praxis American University International Law Review Australian Yearbook of International Law British Columbia Studies Bilateral investment treaty Black Lives Matter Buffalo Law Review Boston University International Law Journal Cardozo Arts & Entertainment Law Journal Compliance advisor-ombudsman Convention on Biological Diversity Convention on the Elimination of All Forms of Discrimination against Women Committee for the Elimination of Racial Discrimination Committee on Economic, Social and Cultural Rights

xvi

Abbreviations

CETS CITES CJEU CJICL CJIELP CLR CMAS CMLR COE CoP CRC CSLR CUP CYELS CYIL DARIO DCS DEDAW DJILP DPCE DUDI DUE EBRD EC ECCC ECHR ECHRLR ECJ ECLR ECOSOC ECOWAS ECtHR EDAP EE EFAR EIAR EIB EJC EJIL EJSD

Council of Europe Treaty Series Convention on International Trade in Endangered Species of Wild Fauna and Flora Court of Justice of the European Union Cardozo Journal of International and Comparative Law Colorado Journal of International Environmental Law and Policy Columbia Law Review Conservation and management of archaeological sites Common Market Law Review Council of Europe Conference of Parties Committee on the Rights of the Child Cleveland State Law Review Cambridge University Press Cambridge Yearbook of European Legal Studies Canadian Yearbook of International Law Draft Articles on the Responsibility of International Organizations Developing Country Studies Declaration on the Elimination of Discrimination Against Women Denver Journal of International Law and Policy Diritto pubblico comparato ed europeo Diritti umani e diritto internazionale Il Diritto dell’Unione Europea European Bank for Reconstruction and Development European Community Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights European Convention on Human Rights Law Review European Court of Justice European Constitutional Law Review Economic and Social Council Economic Community of West African States European Court of Human Rights European Diversity and Autonomy Papers Edward Elgar Publishing European Foreign Affairs Review Environmental Impact Assessment Review European Investment Bank European Journal of Crime, Criminal Law and Criminal Justice European Journal of International Law European Journal of Sustainable Development

Abbreviations xvii ELJ ELR EP EPL EPW ERPL EU EUI EUP FAO FCPNM FDI FET FGM FILJ FPIC FPICon GBLR GEC GHG HCA HCHR HJRL HLPF HLR HRC HRQ HYIL IACHR IACtHR IADB ICC ICCPR ICCROM ICESCR ICH ICHL ICJ ICJ Rep ICLEI ICLQ ICLR ICOMOS ICPD

European Law Journal European Law Review European Papers European Public Law Economic and Political Weekly European Review of Private Law European Union European University Institute Edinburgh University Press Food and Agriculture Organization Federal Convention for the Protection of National Minorities Foreign direct investment Fair and equitable treatment Female genital mutilation Fordham International Law Journal Free, prior and informed consent Free, prior and informed consultation Global Business Law Review Global Environmental Change Greenhouse gases High Court of Australia UN High Commissioner for Human Rights The Hague Journal on the Rule of Law UN High-Level Political Forum on Sustainable Development Hofstra Law Review Human Rights Committee Human Rights Quarterly The Hague Yearbook of International Law Inter-American Commission of Human Rights Inter-American Court of Human Rights Inter-American Development Bank International Criminal Court International Covenant on Civil and Political Rights International Centre for the Study of the Preservation and Restoration of Cultural Property International Covenant on Economic, Social and Cultural Rights Intangible cultural heritage International cultural heritage law International Court of Justice ICJ Reports of Judgments, Advisory Opinions and Orders International Council for Local Environmental Initiatives International and Comparative Law Quarterly International Community Law Review International Council on Monuments and Sites International Conference on Population and Development

xviii Abbreviations ICRC ICRW ICSC ICSID ICSID Review ICTY IDA IDRC IFC IFCD IIAs IIED IJCL IJCP IJHR IJIEL IJMGR IJTJ ILA ILC ILM ILO ILPA IP IPCC IPQ IPR IRM IUCN IWC IYIL JAPP JARE JBS JCHMSD JCMSD JEE JELP JFA JHRE JHRP JICI

International Convention on the Rights of the Child International Convention for the Regulation of Whaling International Coalition of Sites of Conscience International Center for the Settlement of Investment Disputes ICSID Review – Foreign Investment Law Journal International Criminal Tribunal for the Former Yugoslavia International Development Association International Development Research Centre International Finance Corporation International Fund for Cultural Diversity International investment agreements International Institute for Environment and Development International Journal of Constitutional Law International Journal of Cultural Property International Journal of Human Rights Indian Journal of International Economic Law International Journal on Minority and Group Rights International Journal of Transitional Justice International Law Association International Law Commission International Legal Materials International Labour Organization Inuit Language Protection Act Intellectual property Intergovernmental Panel on Climate Change Intellectual Property Quarterly Intellectual property right Independent Review Mechanism International Union for the Conservation of Nature International Whaling Commission Italian Yearbook of International Law Journal of Applied Philosophy Journal of Academic Research in Economics Journal of Black Studies Journal of Cultural Heritage Management and Sustainable Development Journal of Conflict Management and Sustainable Development Journal of Ethnobiology and Ethnomedicine Journal of Environmental Law and Policy Journal of Field Archaeology Journal of Human Rights and the Environment Journal of Human Rights Practice Journal of International Criminal Justice

Abbreviations xix JIDS JIEL JIP JIPR JIWLP JSL JSRNC JWIP JYIL LA-21 LCLR LCP LEDJ LIEI LUP LWHID MCR MDBs MDGs MGLJ MICI MINUSMA MIPLR MIPR MJECL MJIL MONDIACULT MPEIPL MPYUNL MTS MUP NAR NASA NE&E NGO NIEO NJHR NJIL NPR NYIL OAS OCM

Journal of International Dispute Settlement Journal of International Economic Law Journal of Intellectual Property Journal of Intellectual Property Rights Journal of International Wildlife Law and Policy Journal of Space Law Journal for the Study of Religion, Nature and Culture Journal of World Intellectual Property Japanese Yearbook of International Law Local Agenda 21 Lewis & Clark Law Review Law and Contemporary Problems Law, Environment and Development Journal Legal Issues of Economic Integration Land use policy List of World Heritage in Danger Material Culture Review Multilateral development banks Millennium Development Goals McGill Law Journal Independent Consultation and Investigation Mechanism UN Multidimensional Integrated Stabilization Mission in Mali Marquette Intellectual Property Law Review Minnesota Intellectual Property Review Maastricht Journal of European and Comparative Law Michigan Journal of International Law World Conference on Cultural Policies Max Planck Encyclopedia of International Procedural Law Max Planck Yearbook of United Nations Law Management Theory and Studies for Rural Business and Infrastructure Development Michigan University Press Nature and Resources: The UNESCO Journal on the Environment and Natural Resources Research United States National Aeronautics and Space Administration Nature Ecology & Evolution Non-governmental organization New International Economic Order Nordic Journal of Human Rights Nordic Journal of International Law National Public Radio Netherlands Yearbook of International Law Organization of American States Ocean & Coastal Management

xx

Abbreviations

OHCHR OIDU OJ OUP OUV OWHC PCM PELJ PTK QUP RBDI RCI RdC RDI RECIEL RECs REDI RGA RQDI RSC RTDE S&NR SA&CLR SAJIS SC SCPC SCR SCSL SDCT SDGs SDLP SIDI SIE SJIS SPLC TEL TEU TFEU TK TLR

Office of the United Nations High Commissioner for Human Rights Ordine internazionale e diritti umani Official Journal of the European Union Oxford University Press Outstanding universal value Organization of World Heritage Cities Project complaint mechanism Potchefstroom Electronic Law Journal Protection of Traditional Knowledge and Cultural Expressions Queens University Press Revue Belge de Droit International Rivista del commercio internazionale Recueil des Cours de l’Académie de Droit International de la Haye Rivista di diritto internazionale Review of European Community & International Environmental Law Regional economic communities Revista Española de Derecho Internacional Rivista Giuridica dell’Ambiente Revue québécoise de droit international Revised Statutes of Canada Revue trimestrielle de droit européen Society & Natural Resources Santander Art and Culture Law Review South African Journal of Information Studies Statutes of Canada Stato, Chiese e pluralismo confessionale Supreme Court of Canada Reports Special Court for Sierra Leone Sustainable Development, Culture, Traditions Journal Sustainable Development Goals Sustainable Development Law and Policy Società Italiana di Diritto Internazionale e di Diritto dell’Unione europea Studi sull’integrazione europea Stanford Journal of International Studies Southern Poverty Law Center Transnational Environmental Law Treaty on the European Union Treaty on the Functioning of the European Union Traditional knowledge Temple Law Review

Abbreviations xxi TPR UCDLR UCLG UCT UDHR UGP ULR UN UNAIDS UNCIO UNCITRAL UNCLOS UNCOPUOS UNCTAD UNDESA UNDP UNDRIP UNECA UNECE UNEP UNESCO UNESCO CPC UNESCO IOS UNFCCC UNFPA UNGA UNHCR UN HRC UNICEF UNIDROIT UNIFEM UNLJ UNRIAA UNSC UNTS US USSR VCLT VCLTIO VLR

The Pacific Review University of California Davis Law Review United Cities and Local Governments University of Cape Town Universal Declaration on Human Rights University of Georgia Press Uniform Law Review United Nations Joint United Nations Programme on HIV/AIDS United Nations Conference on International Organizations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Committee on Peaceful Uses of Outer Space United Nations Conference on Trade and Development United Nations Department of Economic and Social Affairs United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United Nations Economic Commission for Africa United Nations Economic Commission for Europe United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization UNESCO Committee for the Protection of Cultural Property in the Event of Armed Conflict UNESCO International Oversight Service United Nations Framework Convention on Climate Change United Nations Population Fund United Nations General Assembly United Nations High Commissioner for Refugees United Nations Human Rights Council United Nations International Children’s Emergency Fund International Institute for the Unification of Private Law United Nations Development Fund for Women University of Nairobi Law Journal United Nations Reports of International Arbitral Awards United Nations Security Council United Nations Treaty Series United States of America Union of Soviet Socialist Republics Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations Vermont Law Review

xxii

Abbreviations

WCCD WGDD WGIP WHC WHO WILJ WIPO WIREs WTO WWF YEL YIDL YIEL YILC YJIL YLJ

World Commission on Culture and Development Working Group on the Draft Declaration on the Rights of Indigenous Peoples Working Group on Indigenous Population World Heritage Committee World Health Organization Wisconsin International Law Journal World Intellectual Property Organization Wiley Interdisciplinary Reviews World Trade Organization World Wildlife Fund Yearbook of European Law Yearbook of International Disaster Law Yearbook of International Environmental Law Yearbook of the International Law Commission Yale Journal of International Law Yale Law Journal

Acknowledgments

The present volume is the final outcome of a research project carried out with the financial support of the Center for Studies in International and European Affairs (CSEIA) and the Department of Law, Politics and International Studies of the University of Parma (Department of Excellence 2023–2027), Italy. The initial results were presented at a workshop held in Parma, in November 2021, as part of the events organized to celebrate ‘Parma, Italian Capital of Culture 2020 + 2021’, where the authors of some chapters included in this book discussed their interim findings. Other leading scholars from different parts of the world kindly accepted to join the project and to take part towards its final outcome. I wish to express my deepest gratitude to all of them for their invaluable contribution and their patient collaboration in making the completion of this project possible. A debt of gratitude is also owed to Alessandra Mistura, PhD in International Law (Geneva Graduate Institute for International and Development Studies), my precious assistant editor; Christopher Callan, for his linguistic revision of the chapters of this book; and all the staff of the Law Library of the University of Parma for their wonderful assistance and constant help. My most heartful thank finally goes to the favorite victims of my “emergency calls”: Elena Carpanelli, Marco Inglese and Maria Clara Maffei of the University of Parma and authors of three chapters of this book. Nothing would have been possible without their invaluable support, keen observations and sense of humor during all stages of the overall research project. Obviously, any flaws, inaccuracies or delays in the fulfilment of this collective effort remain my sole responsibility. Parma, 30 May 2023 Laura Pineschi

Part I

Introduction

1

Cultural Heritage, Sustainable Development and Human Rights The Need for an Integrated Approach Laura Pineschi*

1

Introduction

During the last few decades, the inherent relevance of cultural heritage1 to sustainable development and its economic, social and environmental components has become increasingly evident at the universal and regional levels. It has also been recognized that the interrelations between cultural heritage and sustainable development cannot be fully addressed without considering their various implications that they have for the effective enjoyment of all human rights (including cultural rights), which are – by their very nature – universal, indivisible, interrelated, interdependent and mutually reinforcing. Accordingly, the need for a holistic and integrated approach has been emphasized in various international fora and in the academic literature.2 It must be acknowledged, however, that progress made through international co-operation in this direction is very slow and, sometimes, far below expectations. * Professor of International Law, Department of Law, Political and International Studies (Department of Excellence 2023–2027), Center for Studies in European and International Affairs (CSEIA), University of Parma (Italy). 1 As aptly remarked, cultural heritage is ‘a portmanteau term with a myriad of possible meanings and interpretations’. Janet Blake, International Cultural Heritage Law (OUP 2015) 1. In this volume, the term “cultural heritage” will be used in accordance with a comprehensive notion of its meaning, which includes all forms of cultural heritage, both tangible and intangible. For a definition of the latter, Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention), Article 2.1: ‘practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’. Elements to be considered for the purposes of this definition are also contained in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 20 October 2005) entered into force 18 March 2007 2440 UNTS 311 (hereinafter: 2005 UNESCO Convention), i.e. cultural expressions and activities consisting of ‘diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used’ (Article 4.1). 2 In particular, see: Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development (Routledge 2018); Claire Cave and Elene Negussie (eds) World Heritage Conservation. The World Heritage Convention, Linking Culture and Nature for Sustainable Development (Routledge 2019); Ben Boer, ‘The Environment and Cultural Heritage’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 318. DOI: 10.4324/9781003357704-2

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The present volume intends to focus on opportunities and challenges stemming from the application of an integrated approach to cultural heritage, sustainable development and human rights. Before drawing the attention of the reader to the analysis carried out by the authors in the following chapters, a brief introductory overview may be helpful to recall the major developments (and some of the structural limits) of the current legal framework. 2

Sustainable Development and the Principle of Integration

The evolution of the notion of “development” from economic growth to “sustainable development” has undoubtedly played a prominent role in the progressive “expansion”3 of international law over the last decades. Generally described as development ‘that meets the needs of the present generation without compromising the ability of future generations to meet their own needs’,4 the legal implications of sustainable development have been mainly investigated from an environmental perspective. It is also noteworthy, however, that sustainability ‘is emerging in international law as a core value of the international community’5 and that a sustainable development approach is not only required to combat the depletion of natural resources, but also in other areas of international law. International cultural heritage law (ICHL) is a prominent example in this regard. The extensive (and never closed) debate on the concept of sustainable development is widely known. Equally well known is the skepticism that has often been expressed about the ambiguity of this notion (a sort of ‘mantra’;6 an ‘almost infinitely malleable’ concept;7 a ‘slogan incantatoire’8), which is often repeated with no certainty as to its content.9 It could also be stressed that the inherent vagueness

3 Tullio Treves, ‘The Expansion of International Law. General Course of Public International Law’ (2015) 398 RdC 37. 4 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’, UN Doc A/42/427 (4 August 1987) Annex para 27. 5 Nico Schrijver, ‘The Evolution of Sustainable Development in International Law’ (2007) 328 RdC 236. 6 Nico Schrijver and Friedl Weiss, ‘Introduction’, in Nico Schrijver and Friedl Weiss (eds) International Law and Sustainable Development. Principles and Practice (Martinus Nijhoff 2004) xi. 7 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment (3rd ed., OUP 2021) 54. 8 Laurence Dubin, ‘Fonction intersystémique du concept de développement durable’, in Hélène Ruiz Fabri and Lorenzo Gradoni (eds) La circulation des concepts juridiques: le droit international de l’environnement entre mondialisation et fragmentation (Societé de Législation Comparée 2009) 178. 9 Michael McCloskey, ‘The Emperor Has no Clothes: The Conundrum of Sustainable Development’ (1999) 9 Duke Environmental Law and Policy Forum 153 (‘Does anyone know what it really means in practice?’); Christina Voigt, Sustainable Development as a Principle of International Law (Martinus Nijhoff 2009) 18 (‘When a concept is meant to cover everything, it is likely to say nothing’).

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5

of this concept has been regarded as the very reason for its success10 and for its general acceptance by States. Unsurprisingly, at least with regard to environmental sustainability, differences have not arisen on the concept itself, which allows governments to safeguard environmental interests without precluding economic growth. Difficulties emerge when States are called upon to agree a joint strategy with quantifiable targets and deadlines, as shown, for instance, by the two UN Conferences which have focused on sustainable development,11 and the intergovernmental conferences aimed at accelerating the implementation of climate conventions.12 It would be misleading, however, to infer that no significant results have emerged from this extensive debate. Beyond any discussion on the legal status of sustainable development – a mere concept, a principle, or a duty of customary law?13 – it can be assumed that sustainable development plays a double role: on the one hand, it is a goal that States, individually and collectively, must strive to achieve, and, on the other hand, it is an interpretative tool to find a balance between conflicting interests and legal rules.14 It should also be recalled that various principles provide a basic framework for attaining sustainable development. Most of them are incorporated in the 1992 Rio Declaration on Environment and Development15 and include the following as fundamental components: prevention (Principle 2), precaution (Principle 15), integration (Principle 4), inter-generational and intra-generational equity (Principles 3,

10 Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’, in Alan Boyle and David Freestone (eds) International Law and Sustainable Development. Past Achievements and Future Challenges (OUP 1999) 30–31 (‘It is clearly entitled to a place in the Pantheon of concepts that are not to be questioned in polite company, along with democracy, human rights, and the sovereign equality of States. And, like those revered concepts, it is rooted in theoretical obscurity and confusion’). 11 UN Conference on Environment and Development (Rio de Janeiro 3–14 June 1992); World Summit on Sustainable Development (Johannesburg 26 August–4 September 2002); and UN Conference on Sustainable Development (Rio de Janeiro 20–22 June 2012) (hereinafter: Rio+20). 12 UN Framework Convention on Climate Change (New York 9 May 1992) entered into force 21 March 1994 1771 UNTS 107; Paris Agreement to the United Nations Framework Convention on Climate Change (Paris 12 December 2015) entered into force 4 November 2016 3156 UNTS. 13 The question concerning the legal status of sustainable development has been extensively debated by legal scholars. On the increasing irrelevance of this issue, ILA, ‘International Law on Sustainable Development. Conference Report’ (Rio de Janeiro 2008) 7 (‘It is no longer a question of whether sustainable development has binding force or not, it is now a question as to how far it is influencing legal and political debate including the resolution of judicial disputes. Ensuring effective impact, rather than ascertaining status, should become our principal concern’). Last access to all links mentioned in this chapter: 15 May 2023. 14 For a brief analysis on the function of sustainable development in international law, Virginie Barral, ‘Retour sur la fonction du developpement durable en Droit international: de l’outil herméneutique à l’obligation de s’efforcer d’atteindre le développement durable’, in Societé Française de Droit International, Colloque de Lyon. Droit international et développement (Pedone 2015) 411. 15 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration) Principle 4.

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5 and 7), and public participation (Principle 10). Integration is generally regarded, however, as the backbone,16 if not the essence,17 of sustainable development. Principle 4 of the Rio Declaration (‘environmental protection shall be considered an integral part of the development process and cannot be considered in isolation from it’) is considered to be a “codification” of integration. The latter, however, goes beyond that wording. First, sustainable development is not only related to environmental protection or the rational use of natural resources, since its ultimate aim is to promote a sustainable human society.18 Accordingly, all wider issues relating to the social and cultural dimension are to be taken into account from an integrated approach. Far from implying that equal weight should be given to all concerns under all circumstances,19 this is an acknowledgment that ‘[t]hese dimensions are interdependent and mutually reinforcing, with none having predominance over another and each being equally necessary’.20 Second, a correct application of the principle of integration requires its systemic application at all levels of governance. In particular, as the ILA Conference on international law on sustainable development highlighted in 2006, sustainable development considerations are to be integrated at all institutional levels: national and international, public and private, horizontally, vertically and within each individual institution. In addition, systemic integration includes the adoption of longterm programmes and strategies, as well as the undertaking of structural changes and the re-organization of ‘traditionally economic-growth focused organizations’ through, for instance, the appointment of personnel or experts with appropriate skills.21 Institutional integration is completed by legal integration, which includes normative integration and integration as a judicial reasoning tool.22 In particular, whereas the former requires the incorporation of sustainable development considerations when treaties are adopted or amended, in order to ensure, inter alia, the

16 UNGA, ‘Rio Declaration on Environment and Development: Application and Implementation, Report of the Secretary-General’ UN Doc E/CN.17/1997/8 (10 February 1997) para 31. 17 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgement), [2010] ICJ Reports 14, para 177. 18 Voigt (nt. 9) 39. 19 ibid 41. 20 WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) (hereinafter: Policy Document) para 9. See also Duncan French, International Law and Policy of Sustainable Development (MUP 2005) 213 (‘Sustainable development is . . . not an artificial attempt to group together issues that are more properly understood separately, but it is sustainable development itself that provides the most coherent intellectual and pragmatic framework through which such issues should be analysed’). 21 ILA, ‘International Law on Sustainable Development. Conference Report’ (Toronto 2006) (hereinafter: ILA Conference Report) 7–12. 22 ibid 14 ff.

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7

inter-disciplinary integration of different fields of law,23 the latter should achieve the same goal when norms are interpreted and applied. In this regard, by means of judicial reasoning, courts and tribunals should in fact ‘recognise the complexity of the system of which they form part’ and use integration ‘as a lens through which synergies are found and then built upon’.24 More generally, integration can be a useful tool to help in strengthening the unity of the international legal order.25 Third, the required level of the balancing process largely depends on the specific circumstances; sustainable development is in fact a dynamic concept, as ‘what it requires may vary in time, space and content’.26 In addition, a long-term perspective is to be adopted, due to the long-lasting or irreversible damage that may be caused by certain human activities, in accordance with the principles of prevention, precaution and inter-generational equity. Overall, this is a very complex process. Nonetheless, objective difficulties cannot be invoked in order to transform the adoption of an integrated approach, at the political and legal level, into a merely formal, if not hortatory, process with no concrete impact upon the final outcome of the decision-making process. Otherwise, ‘States could . . . continue with their business as usual’ and any progress towards sustainable development would become illusory.27 3

Cultural Heritage and Sustainable Development

The need to consider culture as a fourth pillar of sustainable development – along with the ‘traditional’ economic, social and environmental dimensions28 – is not a recent issue. Only recently, however, has culture as a driver and enabler of sustainable development – to use the wording of the UNGA resolutions on ‘Culture and Sustainable Development’29 – been widely acknowledged in different fora, at various levels.30 This trend is particularly evident within the area of ICHL, where references to the importance of integrating culture into sustainable development and of adopting

23 ibid 15. 24 ibid 22. 25 Ángel J. Rodrigo Hernández,’El principio de integración de los aspectos ecónomicos, sociales y medioambentales del desarrollo sostenible’ (2012) 64 REDI 133, 159. 26 Virginie Barral and Pierre-Marie Dupuy, ‘Principle 4’, in Jorge E. Viñuales (ed) The Rio Declaration on Environment and Development. A Commentary (OUP 2015) 157, 166. 27 ibid 164. 28 See, e.g., Véronique Guèvremont, ‘La reconnaissance du pilier culturel du développement durable: vers un nouveau mode de diffusion des valeurs culturelles au sein de l’ordre juridique mondial’ (2012) 50 CYIL 163; Olga Helen Astara, ‘Culture as the Fourth Pillar of Sustainable Development’ (2014) 1 SDCT 93; Francesca Sabatini, ‘Culture as Fourth Pillar of Sustainable Development: Perspectives for Integration, Paradigms of Action’ (2019) EJSD 31. 29 See, e.g., UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/76/214 (17 December 2021) (hereinafter: Culture and Sustainable Development) paras 1 and 2. 30 Ana Filipa Vrdoljak, ‘The Principle of Sustainable Development and International Cultural Heritage Law’, in this volume.

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a sustainable development approach are progressively found in various legally binding and non-binding instruments adopted at both the universal and regional level.31 But if one looks closer, this evolution has not been entirely clear and straightforward. Generally speaking, it should be noted that the cultural dimension does not appear to have been systematically incorporated into UN documents relating to development or sustainable development. In the Agenda for Development, adopted by the UN General Assembly in 1997, development was recognized as a ‘multidimensional undertaking to achieve a higher quality of life for all people’,32 and culture was mentioned with respect to globalization.33 However, where the resolution stressed the role played by the UN system in promoting development according to a comprehensive and integrated approach, culture was not included among the components of sustainable development.34 The contribution of culture to sustainable development has been acknowledged in the final documents of world summits and UN conferences, such as the Plan of Implementation of the UN World Summit of 2002,35 and the outcome document of the UN Conference of 2012 (Rio+20).36 Nevertheless, both instruments mainly refer to cultural diversity. In addition, only a generic call to ‘a constructive intercultural debate’ can be found in the final report of the 2022 UN Conference on Stockholm+50.37 Above all, even though culture is sometimes referred to in the 17 Sustainable Development Goals (SDGs) of the UN 2030 Agenda,38 an ad hoc SDG is not included in this document. In addition, culture, cultural diversity, or cultural heritage are only rarely mentioned in the 164 targets of the SDGs. Various reasons might explain these and other gaps and inconsistencies. Suffice it here to recall the fragmented evolution of international law into different law fields and the consequent development of inter-State co-operation according to a sectoral approach (environment, culture, trade and investment, protection of human rights, international peace and security). Furthermore, only recently has a new awareness progressively matured towards a dynamic and holistic notion of

31 For a systemic survey see ibid. See also Federico Lenzerini, ‘The Spirit and the Substance. The Human Dimension of Cultural Heritage From the Perspective of Sustainability’, in this volume. 32 UNGA, ‘Agenda for Development’ UN Doc A/RES/51/240 (15 October 1997) para 1. 33 ibid para 6. 34 ibid para 230. 35 UNGA, ‘Report of the World Summit on Sustainable Development’ UN Doc A/CONF.199/20*, Resolution 2, 6 ff. 36 UNGA, ‘The Future We Want’ UN Doc A/RES/66/288 (11 September 2012). 37 UNGA, ‘Stockholm+50: A healthy planet for the prosperity of all – Our responsibility, our opportunity’ UN Doc A/CONF.238/9 (1 August 2022) para 140. 38 UNGA, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda).

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cultural heritage, i.e., ‘as the result of an indissoluble combination of tangible and intangible components’39 and as a global concern.40 It is also true, however, that, on the one hand, convergences and interrelationships can be found;41 in particular, integration as a legal and judicial reasoning tool may become essential for finding connections and solving possible conflicts and inconsistencies between different legal rules and regimes. On the other hand, the interests at stake are manyfold and difficult challenges may be faced. Yet, the solemn acknowledgment of culture as a driver and enabler of sustainable development remains a pure slogan if concrete issues are not addressed according to a comprehensive and integrated approach, both at the local and the global level, resisting the one-size-fits-all model and seriously considering alternative models of sustainable development.42 4

Cultural Heritage, Sustainable Development and Human Rights

The centrality of the human being is increasingly evident in the evolution of international law on the protection of cultural heritage, as a constitutive component of the identity, continuity with the past, and the development processes of individuals and groups of individuals.43 This entails, inter alia, the right to take part in cultural life,44 the right to have one’s culture and cultural diversity respected,45 and the recognition of the interdependence between cultural rights and other human

39 Lenzerini (nt. 31) section 2. 40 On the meaning of this expression with regard to cultural heritage, James A.R. Nafziger and Tullio Scovazzi (eds) The Cultural Heritage of Mankind (Brill 2008); Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010); Marco Gestri, ‘Teoria e prassi di un accordo pionieristico nella gestione di beni di interesse generale: la Convenzione del 1972 sul patrimonio mondiale’, in Maria Cecilia Fregni, Marco Gestri, Maria Cristina Santini (eds) Tutela e valorizzazione del patrimonio culturale. Realtà territoriale e contesto giuridico globale (Giappichelli 2021) 113. 41 For a broader inquiry into the interrelation between the two domains, Blake (nt. 1) 114 ff. See also Marina Lostal, ‘The Role of Specific Discipline Principles in International Law: A Parallel Analysis between Environmental and Cultural Heritage Law’ (2013) 82 NJIL 101, 391. 42 UNGA, ‘Development and Cultural Rights: The Principles’ UN Doc A/77/290 (15 August 2022) (hereinafter: ‘Development and Cultural Rights’) 9. 43 See, e.g., UN Human Rights Council (UN HRC), ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed’ UN Doc A/HRC/17/38 (21 March 2011) para 2 (‘Cultural heritage is linked to human dignity and identity’) and para 77 (‘As reflected in international law and practice, the need to preserve/safeguard cultural heritage is a human rights issue. Cultural heritage is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities and their identity and development processes’). 44 See UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) Article 27; International Covenant on Economic, Social and Cultural Rights (New York 16 December 1966) entered into force 3 January 1976 993 UNTS 3, Article 15; CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15.1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/21 (21 December 2009) (hereinafter: General Comment No 21). 45 General Comment No 21. See also International Covenant on Civil and Political Rights (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171, Article 27; UNESCO,

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rights to ensure their effective fulfilment.46 Accordingly, human rights protection and safeguarding culture are not only closely interrelated; their connection is also inextricable and unbreakable.47 The transition from the conservation and preservation of cultural heritage to its protection as an essential value of cultural identity of human beings can also be inferred from the case law and practice of human rights treaty bodies.48 The human dimension of cultural heritage – from a spatial and temporal perspective – has been confirmed by the landmark jurisprudence of the International Criminal Court (ICC).49 A clear trend towards the consideration of the human rights dimension also characterizes the evolution of international environmental law. In this regard, prominent evidence can be seen in the case law and practice of judicial and quasi-judicial bodies that monitor the effective implementation of human rights obligations. In addition, the human right to a clean, healthy, sustainable environment has not only been recognized by regional multilateral environmental agreements50 and human rights conventions,51 but also by UN bodies.52 This process recently culminated in

46 47

48 49 50

51

52

‘Universal Declaration on Cultural Diversity’ (2 November 2001) Annex I. 2005 UNESCO Convention, Preamble, recital 5 and Article 2.1. Federico Lenzerini, The Culturalization of Human Rights (OUP 2014) 119 (‘[N]o proper protection of human rights may be ensured without safeguarding culture and, a fortiori, the cultural identity of peoples – to be intended as the whole sum of cultural elements which characterize and make it unique and different from all others’). For an overview of various interlinkages between cultural heritage and human rights, Ana F. Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’, in Federico Lenzerini and Ana F. Vrdoljak (eds) International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (OUP 2014) 139; Yvonne Donders, ‘Cultural Heritage and Human Rights’, in Francioni and Vrdoljak (nt. 2) 379; Francesco Francioni, ‘Cultural Heritage and Human Rights’ (2021) 25 MPYUNL 148. See also various reports submitted by the special rapporteurs in the field of cultural rights that the UN HRC has appointed since 2009. Case of the Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC Case No ICC01/12–01/15 (27 September 2016) para 80. Case of the Prosecutor v Ahmad Al Faqi Al Mahdi (Public Reparations Order) ICC Case No ICC-01/12–01/15 (17 August 2017) paras 15–16. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) entered into force 30 October 2001 2161 UNTS 447, Article 1; Regional Agreement on Access, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú, 4 March 2018) entered into force 22 April 2021 Article 4. African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981) entered into force 21 October 1986 1520 UNTS 217, Article 24; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, 17 November 1988) entered into force 16 November 1999 Article 11; Arab Charter on Human Rights (22 May 2004) entered into force 15 March 2008 ; ASEAN Human Rights Declaration (19 November 2012) para 28(f). UN HRC, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Framework Principles on Human Rights and the Environment’ UN Doc A/HRC/37/59 (24 January 2018) Annex. UN HRC,

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the adoption of the UNGA Resolution 76/300 of 28 July 2022, on the human right to a clean, healthy and sustainable environment.53 Finally, the need for a human rights approach to the climate change emergency has become increasingly clear not only in the academic literature, but also in the practice of the UN bodies,54 and in the case law of national tribunals and human rights courts.55 These developments are unsurprising, given the central role that human rights protection plays in achieving sustainable development, as the ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development had already stressed in 2002,56 and the 2030 Agenda implicitly reiterated in 2015.57 But, in addition, also many UN documents with a closer focus on culture – from the UNGA resolutions on culture and development58 to the 2022 first report of the new Special Rapporteur on cultural rights, Alexandra Xanthaki59 – underscore the central role of the human rights component in achieving sustainable development. The need to address cultural heritage, sustainable development and human rights in a more holistic manner is also greatly emphasized by independent experts and academic literature. In particular, closer international co-operation is required to properly address challenges to the effective enjoyment of cultural rights, in their individual and collective dimension,60 through a sustainable development framework.61 As we shall see, however, various inconsistencies and problems remain at the practical level, due to a persistent State-centric approach, which may represent a key obstacle to the notion of a comprehensive protection of cultural heritage.

53 54 55 56 57

58 59

60 61

‘The Human Right to a Clean, Healthy and Sustainable Environment’ UN Doc A/HRC/RES/48/13 (18 October 2021). UNGA, The Human Right to a Clean, Healthy and Sustainable Environment’ UN Doc A/RES/76/300 (1 August 2022). UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/7/23 (28 March 2008) and subsequent resolutions. Elena Carpanelli, ‘A Cultural Rights-Based Approach to Climate Change? Limits and Implications of Cultural Claims in Climate Cases Before International Human Rights Monitoring Bodies’, in this volume. ILA, ‘Resolution 3/2 adopted at the 70th Conference’ (2002) Preamble, recital 14 (‘[T]he realization of the international bill of human rights, comprising economic, social and cultural rights, civil and political rights and peoples’ rights, is central to the pursuance of sustainable development’). 2030 Agenda, Preamble, recital 3 and para 10. For a critical assessment of the human rights approach adopted by the 2030 Agenda and related SDGs, Lynda M. Collins, ‘Sustainable Development Goals and Human Rights: Challenges and Opportunities’, in Duncan French and Louis J. Kotzé, Sustainable Development Goals. Law, Theory and Implementation (EE 2018) 66. ‘Culture and sustainable development’ (nt. 29). Development and Cultural Rights, paras 19–20 (‘Sustainable development is not reachable without the integration of full respect for sustainable rights . . . Sustainable development cannot be separated from the recognition of individual and collective cultural rights, including spiritual and heritage rights’). For a thorough inquiry, Andrzej Jakubowski (ed) Cultural Rights as Collective Rights. An International Law Perspective (Brill 2016). General Comment No 21, para 16(c) ‘Development and Cultural Rights’, in particular 7 ff.

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Laura Pineschi

5 Towards an Integrated Approach? As this cursory overview shows, there is a real need for the adoption of a holistic approach to the various intersections between cultural heritage, sustainable development and human rights. This would require a very complex process, not to mention the relevant implications that a systemic integration may have for the appropriate implementation of individual and collective States’ duties. For similar reasons, it can also be inferred that a thorough inquiry of this topic from a legal perspective is likely to be an arduous undertaking, due to the variety of issues that may arise and the continuous evolution of relevant matters. It is worth noting, however, that although various aspects of cultural heritage and human rights have been the subject of a large number of authoritative studies in the last decades,62 possible intersections between cultural heritage, sustainable development and human rights and their legal implications are rarely investigated using a comprehensive approach. This book intends to contribute in this direction, exploring the opportunities and challenges of an integrated approach to this topic from different perspectives. As mentioned, an exhaustive treatment can hardly be provided. A limited selection of issues has proved necessary, and omissions are inevitable. In particular, the following analysis will be structured into six complementary parts. After the first one, consisting of this introduction, the second part will focus on some general issues, in particular by addressing the incorporation of the principle of sustainable development within ICHL and the human dimension of cultural heritage from the perspective of sustainability. In the same cluster, other contributions will consider the overall theme from different legal, spatial or subjective dimensions. The third and the fourth parts will examine the intersections between cultural heritage, sustainable development and human rights by investigating some select issues relating to, respectively, tangible and intangible cultural heritage. The fifth part will put emphasis on global environmental risks, like climate change and biodiversity loss, and will envisage possible solutions to address their implications for cultural heritage at the normative level or with respect to the adjudication of cultural rights. Possible tensions between cultural rights and the exploitation of natural resources within a sustainable development framework will also be considered under international investment law and in the light of exceptions provided for under international treaties protecting wildlife. The concluding part will build upon the preceding chapters in order to assess the major achievements and failures and to give a tentative answer to our research question: has a systemic integrated approach really started, and what are the major challenges that still remain open?

62 More generally, for possible interactions between public international law and cultural heritage protection, see Anne-Marie Carstens and Elizabeth Varner (eds) Intersections in International Cultural Heritage Law (OUP 2020).

Part II

General Issues in a Fragmented Legal Framework

2

The Principle of Sustainable Development and International Cultural Heritage Law Ana Filipa Vrdoljak*

1

Introduction

Culture and cultural heritage have been central to our evolving understanding of the normative content of “development” in international law since the foundation of the UN. For non-aligned countries, championing the right to development as fundamental to decolonization and independence, cultural heritage was a driving preoccupation to achieving equality between States. For civil society, since the 1970s there have been demands for a more holistic understanding of development by the international community, encompassing economic, social and environmental sustainable development – and an appreciation of the role of culture as its enabler and driver. Yet, despite repeated efforts to facilitate a better understanding and appreciation of the role of culture and cultural heritage in sustainable development by States and the general public, much work remains to be done. The principle of sustainable development is becoming a central pillar of international cultural heritage law. Since the adoption of the Sustainable Development Goals (SDGs) by the UN General Assembly (UNGA) in 2015 and their implementation by UN bodies and agencies, including its specialist cultural organization, UNESCO, sustainable development is informing the interpretation and implementation of each its Culture Conventions. This process is having a gradual and potentially transformative impact on international cultural heritage law by reinforcing the essential role of culture and cultural heritage in the effective enjoyment of human rights, and the maintenance of peace and security – a role which is signaled in UNESCO’s foundational document. This chapter traces the evolution of international cultural heritage law in tandem with the right to development and the New International Economic Order (NIEO) through to the operationalization of the SDGs. It then provides an overview of the application of the sustainability principle in the operation of the Culture Conventions, that is, the Convention for the Protection of Cultural Property in the Event of Armed Conflicts;1 the Convention on the Means of Prohibiting and Preventing the * UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney (Australia). 1 (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240 (hereinafter: 1954 Hague Convention). DOI: 10.4324/9781003357704-4

16 Ana Filipa Vrdoljak Illicit Import, Export and Transfer of Ownership of Cultural Property;2 the Convention Concerning the Protection of the World Cultural and Natural Heritage;3 the Convention on the Protection of Underwater Cultural Heritage;4 the Convention for the Safeguarding of the Intangible Cultural Heritage;5 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.6 The chapter concludes by considering how the principle of sustainability is evolving in respect of the international protection of cultural heritage and its effect on international cultural heritage law generally. 2

From Right to Development to Sustainable Development Goals

International cultural heritage law has been informed by and reflects the evolution of concepts of “development” in international law in the post–Second World War period. The rationales and language of UNESCO’s Culture Conventions embraced changes from the right to development and NIEO through to the operationalization of the current SDGs – seeking to define the role of culture and cultural heritage within this broader, evolving discourse.7 This Part tracks this evolution and maps it against the adoption of various Culture Conventions since UNESCO’s establishment. 2.1

Decolonization and the Right to Development

In the post–Second World War period, the link between culture and development was defined by decolonization and the articulation of the right to self-determination and economic, social and cultural development. The UN Charter confirms that self-determination is applicable to ‘peoples’ and incorporates it as an aim and purpose of the new organization and its Member States (Articles 1.2 and 55).8 Despite this development, there remained significant resistance to its transformation into a

2 (Paris 14 November 1970) entered into force 24 April 1972 823 UNTS 232 (hereinafter: 1970 UNESCO Convention). 3 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 4 (Paris 2 November 2001) entered into force 2 January 2009 2562 UNTS 3 (hereinafter: Underwater Convention). 5 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention) Preamble. See also UNGA, ‘Culture and Development’ UN Doc A/Res757/249 (20 February 2003) para 5(k). 6 (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311 (hereinafter: 2005 UNESCO Convention). 7 UNESCO International Oversight Service (IOS), ‘UNESCO’s Work on Culture and Sustainable Development, Evaluation of a Policy Theme. Evaluation Office’ IOS/EVS/PI/145 REV.5 (November 2015) 4–19. 8 (San Francisco 26 June 1945) entered into force on 24 October 1945 1 UNTS XVI (hereinafter: UN Charter) Article 73.

Sustainable Development and Cultural Heritage Law 17 legally binding principle.9 This occurred with the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960. It states in part: ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.10 Successive UNGA resolutions and their gradual endorsement by the International Court of Justice (ICJ) rendered the right to self-determination justiciable in international law.11 While the objective was that self-determination was of universal application,12 how the right can be exercised remains, still now contested, especially beyond the “classical decolonization” context.13 The articulation of the right to self-determination and to freely pursue development within human rights law took several more years. The Universal Declaration of Human Rights approved by the UNGA in 1948 does not specifically refer to a right to self-determination.14 It was only with the adoption of common Article 1 of, respectively, the International Covenant on Civil and Political Rights,15 and the International Covenant of Economic, Social and Cultural Rights in 1966,16 that it became a legally binding “human” right. This provision reproduces the language of the Colonial Countries Declaration. With its inclusion in the international covenants, the right of self-determination and development became of universal application to all peoples.17 During the 1960s and ‘70s new States maintained that the right to self-determination was not confined to the right of peoples to freely determine ‘by and for themselves’ their political status, but also extended to include economic, social and cultural matters.18 Sovereign equality and the reversal of colonization, they

9 South West Africa (Ethiopia v South Africa; Liberia v South Africa) Second Phase (Judgment) [1966] ICJ Rep 6. 10 UNGA, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ UN Doc Res/1514(XV) (14 December 1960) Article 2 (emphasis added) (hereinafter: Colonial Countries Declaration). 11 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) [1971] ICJ Rep 16, paras 52–53; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, paras 54–65; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] 136, para 88. 12 UNCIO, ‘Opinion of the Department of Foreign Affairs of Mexico’ UN Doc 2 G/7(c) (23 April 1945) in UN, Documents of the United Nations Conference on International Organization San Francisco 1945, Volume III (UN1945) p 54 ff. 13 Wall Advisory Opinion (nt. 11). 14 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) (hereinafter: UDHR). 15 (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171 (hereinafter: ICCPR). 16 (New York 16 December 1966) entered into force on 3 January 1976 993 UNTS 3 (hereinafter: ICESCR). 17 Wall Advisory Opinion (nt. 11) Separate Opinion of Judge Rosalyn Higgins, paras 29–30. 18 ECOSOC, ‘Report of the Commission on Human Rights’ UN Doc E/2256 (1952) paras 20–74; Aureliu Cristescu, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments (UN 1981) paras 26–87.

18 Ana Filipa Vrdoljak argued, would only be achieved through development – not only economic development, but also through social and cultural development.19 The UNESCO General Conference adopted the Declaration of the Principles of International Cultural Cooperation in 1966.20 The 1966 Declaration enunciated principles concerning the right (and duty) of peoples to develop their culture.21 Article 1 recognizes that each culture must be respected and preserved because all cultures form part of the ‘common heritage belonging to all mankind’.22 This principle reflects the Preamble of the first Culture Convention adopted by the General Conference, the 1954 Hague Convention. The Declaration on the Right to Development of 1986 recognizes that development is ‘a comprehensive economic, social, cultural and political process’ aimed at ‘the constant improvement of the well-being of the entire population and of all the individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of [its] benefits’.23 It expresses concern that denial of all human rights, including cultural rights, is a ‘serious obstacle’ to development and that international efforts to promote and protect human rights should be accompanied by efforts to establish a new international economic order.24 Proponents of the NIEO advocated a new international order leading to a new international cultural order.25 Common Article 1.2 of the ICCPR and the ICESCR also provides that ‘all peoples may, for their own ends, freely dispose of their natural wealth and resources’. Cultural heritage, tangible and intangible, movable and immovable, became a cultural resource, to develop a national cultural identity and pursuit of development – a position also espoused by the Declaration of the Intergovernmental Conference on Cultural Policies in Africa (Africacult) of 1975 which declared that ‘development must aim primarily at enriching human life by providing a harmonious balance of values’.26 During the decolonization period, several initiatives were promoted as being essential to a people’s cultural development and exercise of the right to self-determination. The first demand concerned the restitution of cultural resources removed as a direct result of the often unfettered and unauthorized

19 UNGA, ‘Preservation and Further Development of Cultural Values. Note by the Secretary-General’ UN Doc A/31/111 (24 August 1976) para 66 (emphasis added) and paras 7 and 25. 20 UNESCO, ‘Declaration of the Principles of International Cultural Co-Operation’ (4 November 1966) (hereinafter: 1966 Declaration). Last access to all links mentioned in this chapter: 7 January 2022. 21 Boutros Boutros-Ghali, ‘The Right to Culture and the Universal Declaration of Human Rights’, in UNESCO (ed) Cultural Rights as Human Rights (UNESCO 1970) 73. 22 1966 Declaration, Article 1. 23 UNGA, ‘Declaration on the Right to Development’ UN Doc Res 41/128 (4 December 1986) Preamble and Article 1. 24 ibid. 25 ILC, ‘Succession of States in Respect of Matters Other than Treaties: Eleventh Report’, UN Doc A/CN.4/322 (1979) 80, para 46. See also Cristescu (nt. 18) para 599. 26 UNESCO, ‘Declaration of the Intergovernmental Conference on Cultural Policies in Africa’ (1975) .

Sustainable Development and Cultural Heritage Law 19 exploitation during colonial occupation.27 Also, there was an insistence on the present need for technical and financial assistance to preserve and develop their cultures and cultural heritage.28 Finally, they called for the international regulation of the ongoing illicit export, import and transfer of cultural objects.29 This legislative framework was realized with the 1970 UNESCO Convention. Its opening preambular recital alludes to the right to self-determination and cultural development through its reference to the 1966 Declaration, which had referenced the Colonial Countries Declaration in its opening paragraph. The travaux had defined the Convention’s purpose as controlling the illicit transfer of the cultural heritage of ‘peoples’.30 In addition, the Preamble of a preliminary draft had referred to Article 27 UDHR concerning the right to freely participate in cultural life which meant that ‘it [was] incumbent upon States to protect the cultural property existing within their territory’.31 Drafted when there was an emphasis in international law on the protection of national cultures by the States and individual human rights, this draft preambular recital was deleted from the final text of the Convention.32 UNESCO instruments and UN human rights bodies have gradually enabled non-state groups to have a voice in national and transnational decision-making processes affecting their enjoyment of cultural rights and cultural heritage. The right to self-determination as it relates to cultural development as a human right as it attaches to Indigenous peoples has been repeatedly affirmed and elaborated by various UN and regional organizations and human rights bodies in the lead-up to the adoption of the UN Declaration on the Rights of Indigenous Peoples.33 During its drafting in the 1990s, Indigenous representatives emphasized the importance of the collective nature of self-determination and development, including cultural development, in reversing ‘the impact of racism on the expression of indigenous identity’.34 The 1995 UNIDROIT Convention on Stolen or Illegally Exported

27 See Letter dated 3 November 1973 from the Permanent Representative of Zaire to the United Nations addressed to the President of the President of UN General Assembly, UN Doc A/9199 (6 November 1973) para 3; UNGA, ‘Political Declaration of the Fourth Conference of Non-Aligned Countries’ UN Doc A/9330 (22 November 1973) 5, para 18; Fifth Conference of Heads of State or Governments of Non-Aligned Countries, ‘Resolution and Explanatory Note on Restitution of Works of Art to the Countries from which they have been Expropriated’ UN Doc NAC/CONF.5/S/ RES.24 (19 August 1976) 148 ff. 28 UNGA ‘Preservation’ (nt. 19) paras 57–60 and 64. 29 ibid paras 61 and 63. 30 UNESCO, ‘Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Preliminary Report’ UNESCO Doc SHC/MD/3 (8 August 1969) para 10. 31 ibid Annex. 32 The United States opposed this interpretation of Article 27 UDHR and successfully negotiated for its deletion from the final text. UNESCO, ‘Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Final Report’ SHC/MD/5 (27 February 1970) 22, Annex 1. 33 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP). 34 ECOSOC, ‘Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session’ UN Doc E/CN.4/Sub.2/Res/1994/56 (28 October 1994).

20 Ana Filipa Vrdoljak Cultural Objects recognizes the ‘irreparable damage’ caused by the illicit trade in cultural objects to the ‘cultural heritage of national, tribal, indigenous or other communities, and also to the heritage of all peoples’.35 The Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples prepared simultaneously with the UNDRIP provides that ‘[t]he effective protection of the heritage of the indigenous peoples of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability, and creativity of the human species as a whole’.36 It indicates that ‘to be effective’, protection of Indigenous peoples’ heritage must be based on the principle of self-determination which includes the right to ‘maintain and develop their own cultures and knowledge systems, and forms of social organization’.37 UNDRIP’s Preamble also recognizes that ‘respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’.38 It reaffirms that the right to self-determination and cultural development contained in the UN Charter, the ICCPR, the ICESCR and the Vienna Declaration and Programme of Action of 1993 apply to Indigenous peoples, individually and collectively.39 It stresses that, like other resources, Indigenous peoples’ cultural heritage, including traditional knowledge and cultural expressions must not be exploited without their free, prior and informed consent.40 This emphasis is reflected in the negotiations in the lead-up to UN Millennium Development Goals (MDGs) and SDGs.41 2.2

From the Stockholm Declaration (1972) to the Rio Declaration (1992)

The next iteration of development in international law saw its fusion with the emergent field of environmental law. From the Stockholm Declaration in 1972,42 through to the Rio Declaration two decades later,43 development would be “tempered” by 35 (Rome 24 June 1995) entered into force 1 July 1998 2421 UNTS 457. 36 ECOSOC, ‘Human Rights of Indigenous Peoples. Report of the seminar on the draft principles and guidelines on the protection of the heritage of indigenous peoples’ UN Doc E/CN.4/Sub.2/2000/26 (19 June 2000) 12, para 1. 37 ibid para 2. 38 UNDRIP, Preamble. 39 ibid, Preamble and Articles 1 and 3. See World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ UN Doc A/CONF.157/23 (12 July 1993) (hereinafter: the Vienna Declaration). 40 ECOSOC, ‘Review of the Draft Principles and Guidelines on the Heritage of Indigenous Peoples’ UN Doc E/CN.4/Sub.2/AC.4/2004/5 (16 June 2006) para 19. 41 ECOSOC, ‘Indigenous Peoples and the Millennium Development Goals’ UN Doc E/C.19/2005/4/ Add.13 (21 March 2005); UNDESA, ‘International Expert Group Meeting on the Millennium Development Goals, Indigenous Participation and Good Governance. UNESCO Contribution’ UN Doc PFII/2006/WS.3/6 (2006). 42 UNGA, ‘Declaration of the UN Conference on the Human Environment’ (Stockholm, 5–16 June 1972)’ UN Doc A/CONF.48/14/Rev.1 (1972) (hereinafter: Stockholm Declaration). 43 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992).

Sustainable Development and Cultural Heritage Law 21 human rights law, environmental law, and the connection between nature and culture to cross-fertilize these emerging areas of international law. The 1972 WHC remains UNESCO’s flagship Culture Convention and very much reflects the milieu during which it was drafted and adopted. Recognition of the link between enjoyment of human rights, including the right to life, with the protection of the natural and built environment is contained in Principle 1 of the Stockholm Declaration.44 Its working documents record that ‘[t]he decision to take into account the social and cultural aspects of the environment reflects the need for a very broad approach to development, including cultural and ethical choices’.45 The Stockholm Declaration was influential in the drafting of the 1972 WHC and its then pathbreaking embrace of the interrelationship between natural and cultural heritage. However, unlike the Stockholm Declaration, the final text of the 1972 WHC makes no reference to human rights instruments being drafted contemporaneously.46 A decade later, the World Commission on the Environment and Development was charged with defining strategies for sustainable development.47 Its Report to the UNGA on Environment and Development defined sustainable development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.48 It noted that ‘our cultural and spiritual heritages can reinforce our economic interests and survival imperatives’.49 In respect of the relationship of biological diversity as a ‘resource’ for development it noted that: ‘[U]tility aside, there are also moral, ethical, cultural, aesthetic, and purely scientific reasons’.50 The Brundtland Report reproduces a contribution by an Indonesian publisher who opined that the Commission should consider: ‘[T]he question of more participation for those people who are the object of development. Their basic needs include the right to preserve their cultural identity, and their right not to be alienated from their own society, and their own community’.51 The Commission did address the adverse impact of development on Indigenous peoples and 44 Stockholm Declaration, Principle 1. See UNGA, ‘Action Plan for the Human Environment: Educational, Informational, Social and Cultural Aspects of Environmental Issues’ UN Doc A/CONF.48/14/ Rev.1 (1972) 24 ff. 45 UNGA, ‘Conference on Human Environment. Educational, Informational Social and Cultural Aspects of Environmental Issues. Report by the Secretary-General’ UN Doc A/CONF.48/9 (21 December 1971) 3, para 2. See Barbara L Angstman et al, ‘The Stockholm Conference: A Synopsis and Analysis’ (1973) 8 SJIS 31, 58. 46 Including the ICCPR; ICESCR; International Convention on the Elimination of Racial Discrimination (New York 7 March 1966) entered into force 4 January 1969 660 UNTS 195 (hereinafter: CERD); UNGA, ‘Declaration on the Elimination of Discrimination Against Women’ UN Doc A/ RES/22/2263 (7 November 1967) (hereinafter: DEDAW). 47 UNGA, ‘Process of Preparation of the Environmental Perspective to the Year 2000 and Beyond’ UN Doc Res 38/161 (19 December 1983). 48 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) (hereinafter: Brundtland Report) para 1. 49 ibid para 2. 50 ibid para 53. 51 ibid para 10.

22 Ana Filipa Vrdoljak their cultures; and the capacity of Indigenous traditional knowledge and practices in ‘sustainably managing very complex ecological systems’.52 It raised the need to address Indigenous ‘traditional’ rights to land and resources, and called for a ‘decisive voice’ in related decision-making process – described as ‘a touchstone of a sustainable development policy’.53 Two decades after the Stockholm Declaration, the UN Conference on the Environment and Development in 1992 adopted the Rio Declaration, which focuses on ‘sustainable’ development and a human rights-based approach. Its first principle states that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’. The Vienna Declaration, which was prepared contemporaneous and adopted the following year, recognized the need to continually adapt UN human rights machinery to current and future needs for the protection and promotion of human rights ‘within the framework of a balanced and sustainable development for all people’.54 It reaffirmed the human right of all peoples to self-determination and to freely pursue their cultural development as articulated in common Article 1 of the ICCPR and the ICESCR. Its final report called for ‘ensur[ing] recognition of . . . cultural rights at the national, regional and international levels’ and the use of indicators to measure progress on implementation.55 Like the Brundtland Report, the most explicit cross-section between culture, human rights and sustainable development in the Rio Declaration addresses the rights of Indigenous peoples and local communities. Principle 22 provides that because of their knowledge and practices, Indigenous peoples and ‘other local communities’ play a ‘vital’ role in environmental management and development. Therefore, States should recognize and support ‘their identity, culture and interests and enable their effective participation’ to achieve sustainable development.56 Likewise, Agenda 21 also addresses that the need to empower communities to achieve sustainable development (and combat poverty) at every level includes ‘respecting the cultural integrity and the rights of Indigenous peoples and their communities’.57 The Vienna Declaration too recognized the ‘the inherent dignity and the unique contribution’ of Indigenous people to development and cultural diversity and ‘strongly reaffirm[ed] the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development’.58 It too called on States to ‘ensure the full and free participation’ of Indigenous peoples in society, especially on decisions that affect them;

52 53 54 55 56 57 58

ibid para 74. ibid paras 75 and 78. Vienna Declaration, para 17. ibid para 98. Rio Declaration, Principle 22. UNGA, ‘Agenda 21’ UN Doc A/CONF.151/26 (12 August 1992) 30, para 3.7(b). Vienna Declaration, para 20.

Sustainable Development and Cultural Heritage Law 23 and to take positive action to ensure respect for their human rights and fundamental freedoms and their distinct identities and cultures.59 The push for a multidimensional understanding of development which integrated culture and was based on recognition of cultural diversity and ‘grass roots’ participation was a central objective of UNESCO’s World Conference on Cultural Policies in 1982 (MONDIACULT 1982).60 Its Recommendation on the Cultural Dimension of Development emphasizes that ‘culture is one of the fundamental dimensions of overall development, the true aim of which is not mere economic growth’. Cultural policies promoting cultural diversity were viewed as essential for achieving sustainable development and ensuring human rights and democracy.61 Its Mexico City Declaration on Cultural Policies promoted a broad and holistic understanding of culture as [T]he whole complex of distinctive spiritual, material, intellectual and emotional features that characterise a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of human beings, value systems, traditions and beliefs.62 The Declaration revisited the language of the NIEO and the right to development, by reiterating that the protection and promotion of cultural heritage enables ‘a people to defend its sovereignty and independence’ and ‘affirm and promote its cultural identity’.63 It affirmed the tenets of the 1966 Declaration that ‘all cultures form part of the common heritage of mankind’, adding that the international community has a ‘duty to ensure that the cultural identity of each people is preserved and protected’.64 Following MONDIACULT, the UNGA proclaimed the World Decade for Cultural Development (1988–1997), which had four objectives: recognition of the cultural dimension of development, affirming cultural diversity, broadening participation in cultural life, and promoting international cultural cooperation.65 The World Commission on Culture and Development (WCCD) in its 1995 report titled ‘Our Creative Diversity’ cautioned: ‘[A]ttempts to make culture a qualifier of development . . . must be taken with great care’.66 Rather than the conservationist drive pursued in respect of the physical environment, it advocated for a ‘constructive,

59 ibid. 60 UNESCO IOS, ‘Policy Theme Evaluation’ (nt. 7) para 21. 61 UNESCO, ‘World Conference on Cultural Policies: Final Report’ CLT/MD/1 (November 1982) 75 ff. 62 ibid 41. 63 ibid 43. 64 ibid 40. 65 UNGA, ‘Proclamation of the World Decade for Cultural Development’ UN Doc Res 41/187 (8 December 1986) para 2. 66 UNESCO, ‘Our Creative Diversity: Report of the World Commission on Culture and Development’ (1995).

24 Ana Filipa Vrdoljak constitutive, and creative role’ for culture in respect of development.67 UNESCO, in cooperation with UN agencies, was asked to undertake research and a programme of action on culture and development covering the interaction between cultures, and development processes that defined cultural change; cultural indicators and systematic data collection on cultural rights violations; and the nature and causes of ethnic conflicts.68 The WCCD recommended that a draft list of cultural rights not protected by existing treaty law be prepared by the International Law Commission. UNESCO Member States resisted the recommendation, and in response the Organization commissioned a report on cultural rights in existing international instruments; while the working group, intended to examine the list and determine which rights needed further elaboration, was never established.69 Instead, it would fall to the following decade for the elaboration of the right to participate in cultural life, and for a Special Rapporteur on Cultural Rights to be appointed.70 At the close of the World Decade, the UNGA adopted Resolution 52/197 of 1997 on cultural development observing that while global public opinion was becoming more attuned to the cultural dimension of development, awareness of the ‘central importance of culture is . . . insufficiently present in development policy and practice’.71 The subsequent Intergovernmental Conference on Cultural Policies for Development, organized by UNESCO, restated the principle that ‘sustainable development and the flourishing of culture are interdependent’, and recognized that a leading aim of ‘human development’ is ‘the social and cultural fulfilment of the individual’ through access to and participation in cultural life.72 It set a series of recommendations which would be reiterated and enshrined cultural instruments adopted by the General Conference over the coming decade.73 In its 2000 resolution, the UNGA recognized the ‘importance of cultural values and cultural diversity as elements of sustainable development’ and ‘underlin[ed] the fact that tolerance and respect for cultural diversity and universal promotion and protection of human rights, including the right to development, are mutually supportive’.74 Culture became integrated into UN peace-building and poverty eradication initiatives; and UNESCO was asked to assist developing countries in national capacity

67 68 69 70

71 72 73 74

ibid 24–25. ibid 272. Birgitta Leander, Preliminary List of Cultural Rights (UNESCO 1996). CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/ GC/21 (21 December 2009); UN HRC, ‘Independent Expert in the Field of Cultural Rights’ UN Doc A/HRC/RES/10/23 (26 March 2009). UNGA, ‘Cultural Development’ UN Doc A/RES/52/197 (26 February 1998) Preamble. The UNGA has adopted biannual resolutions on this theme moving from ‘cultural development’, ‘culture and development’ to ‘culture and sustainable development’. UNESCO, ‘Intergovernmental Conference on Cultural Policies for Development: Final Report (Stockholm, 30 March–2 April 1998)’ CLT-98/Conf.210/5 (31 August 1998) (hereinafter: UNESCO Stockholm Declaration) 12, paras 1–2. UNESCO Stockholm Declaration, 12, paras 1, 2 and 4. UNGA, ‘Culture and Development’ UN Doc A/RES/55/192 (29 January 2001) Preamble.

Sustainable Development and Cultural Heritage Law 25 building for the implementation of its Culture Conventions covering conservation, protection and restitution of cultural property and promotion and enhancement of cultural goods and services.75 2.3

From Millennium Development Goals to Sustainable Development Goals

The most recent phase elaborating upon the intersection between culture, human rights and development spans the first decades of the 21st century from the MDGs to SDGs. It is defined by the intensification of efforts for the recognition of the centrality of culture for sustainability development, and the promotion of cultural diversity and cultural human rights (including the right to self-determination and cultural development) to this end. Three of UNESCO’s Culture Conventions have come to embody this shift in emphasis within the international community: the 2001 Universal Declaration on Cultural Diversity,76 the 2003 UNESCO Convention and the 2005 UNESCO Convention. Despite this preparatory work done in the lead up to the UN Millennium Summit in 2000, its Declaration, which enunciated the MDGs, addressed the role of culture in sustainable development in a very limited fashion.77 Culture was promoted within the value of ‘tolerance’ with the call that ‘human beings must respect one other, in all their diversity of belief, culture and language . . . cherished as a precious asset of humanity’.78 Within a decade, the UNGA High-Level Plenary Meeting on the MDGs emphasized the importance of culture and cultural diversity for the development and realization of the MDGs.79 In the intervening 15 years between the MDGs and the SDGs, UNESCO’s General Conference would adopt three instruments which focused on the interrelation between culture, cultural heritage, human rights, and sustainable development. The 2001 UNESCO Declaration provides that: ‘[C]ultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized an affirmed for the benefit of present and future generations’ (Article 1).80 Embracing a holistic interpretation of development espoused by MONDIACULT 1982, it described cultural diversity as ‘one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence’ (Article 3). The 2001 UNESCO Declaration reiterated Member

75 ibid para 2 and 5. See UNGA, ‘Return or Restitution of Cultural Property to the Countries of Origin’ UN Doc A/RES/54/190 (17 February 2000). The emphasis on restitution of cultural property was reiterated in subsequent resolutions. 76 UNESCO, ‘Universal Declaration on Cultural Diversity’ 31C/Res. 25(2002) (2 November 2001) Annex I (hereinafter: the 2001 UNESCO Declaration). 77 UNGA, ‘United Nations Millennium Declaration’ UN Doc A/RES/55/2 (18 September 2000). 78 ibid para 6. 79 UNGA, ‘Keeping the Promise: United to Achieve the Millennium Development Goals,’ UN Doc A/ RES/65/1 (19 October 2010) paras 15, 16, and 66, cf para 41. 80 2001 UNESCO Declaration, Article 1.

26 Ana Filipa Vrdoljak States’ commitment to the ‘full implementation of the human rights and fundamental freedoms’ contained in the UDHR, the ICCPR and the ICESCR. It reaffirmed a key principle contained in the Vienna Declaration, that ‘[c]ultural rights are an integral part of human rights, which are universal, indivisible, and interdependent’ (Article 5). Accordingly, its main lines of action on implementation include better understanding and clarifying the content of cultural rights;81 and policies and strategies for the preservation and enhancement of cultural and natural heritage, intangible cultural heritage (ICH), and combating the illicit trade in cultural goods and services.82 The opening preambular recitals of the 2003 UNESCO Convention reference international human rights treaties, in particular the UDHR, ICESCR and ICCPR; and the ‘importance of the ICH as a mainspring of cultural diversity and a guarantee of sustainable development’ as recognized in the 2001 UNESCO Declaration. The 2003 UNESCO Convention uses the 1972 WHC as a template as to its structure and governance framework, and its drivers when referring to heritage ‘transmitted from generation to generation’ and ‘constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’.83 But unlike this earlier treaty, the rationale for the protection of ICH is placed explicitly within a human rights context and recognizes its importance to cultural diversity and, in turn, sustainable development.84 In addition, the 2003 UNESCO Convention recognizes that ‘communities, in particular indigenous communities, groups, and, in some cases, individuals play an important role in [its] production, safeguarding, maintenance and re-creation . . . thus helping to enrich cultural diversity and human creativity’.85 States Parties shall seek the participation of communities, groups, individuals and relevant non-governmental organizations in the implementation of the treaty.86 The 2005 UNESCO Convention is even more explicit in its embrace of the language of development. Its Preamble reiterates that cultural diversity is the “mainspring” of sustainable development for communities, peoples and nations, and emphasized the importance of integrating cultural as ‘a strategic element in national and international development policies’. The complementarity of economic and cultural aspects of development is a guiding principle, with ‘individuals and peoples hav[ing] a fundamental right to participate in and enjoy’ the cultural aspects of

81 ibid Annex II, para 4 (Main lines of an action plan for the implementation of the UNESCO Universal Declaration on Cultural Diversity). 82 ibid. 83 UNESCO Member States had deliberated, but finally decided against, the inclusion of intangible heritage in the 1972 WHC. UNESCO, ‘Draft report of Commission IV’ UNESCO Doc 30C/64 (12 November 1999) 10. 84 2003 UNESCO Convention, Article 2.1. 85 2003 UNESCO Convention, Preamble, 6th recital. See also UNGA, ‘Culture and Development’ UN Doc A/RES/57/249 (20 February 2003) para 5(k). 86 2003 UNESCO Convention, Articles 11 and 15.

Sustainable Development and Cultural Heritage Law 27 development, also.87 Cultural diversity is recognized as an ‘essential requirement’ of sustainable development for the benefit of future generations, and the full realization of human rights.88 States Parties are called on to integrate culture into their development policies at all levels to promote sustainable development and foster the protection and promotion of diversity of cultural expressions.89 The Convention in its Preamble acknowledges the importance of traditional knowledge, especially of Indigenous peoples, as a ‘source of intangible and material wealth’, its positive contribution to sustainable development, and its need to be adequately protected and promoted. It also recognizes the ‘vitality of cultures’, including of minorities and Indigenous peoples, and their freedom to create, disseminate, distribute and to access, for the benefit of their own development.90 The UNGA Resolution on culture and development in 2010 referenced the 2005 UNESCO Convention, when it recognized that culture is ‘an essential component of human development, represents a source of identity, innovation and creativity for the individual and the community’ and an important factor in poverty eradication, economic growth, and ‘ownership’ of development processes. It encouraged UNESCO, together with other UN bodies and development agencies, to support national capacitybuilding in developing countries for the implementation of the Culture Conventions in a manner that is consistent with relevant UNGA resolutions and MDGs.91 Similarly, the UN Conference on Sustainable Development Outcome Document titled ‘The Future We Want’ recognized that ‘many people, especially the poor, depend directly on ecosystems for their livelihoods, their economic, social and physical well-being, and their cultural heritage’.92 Therefore, green economic policies should comply with international law, respect human rights, and recognize and support the identities, cultures and interests of Indigenous peoples, minorities, and other local and traditional communities and ‘avoid endangering their cultural heritage, practices and traditional knowledge’.93 The UNGA Resolution on Culture and Sustainable Development in 2013 listed UNESCO’s Culture Conventions when ‘acknowledg[ing] the important role of cultural diversity for social and economic development’.94 The UNGA requested that UNESCO prepare a report on how culture could be better integrated into the post 2015 SDGs being prepared by the UN.95 UNESCO identified six themes concerning how culture can contribute to achieving sustainable and equitable development: poverty reduction, education, gender equality and

87 88 89 90 91 92 93 94

2005 UNESCO Convention, Article 2.5. ibid Articles 2.1 and 2.6. ibid Article 13. ibid Preamble. UNGA, ‘Culture and Development’ UN Doc A/RES/65/166 (28 February 2011) para 5. UNGA, ‘The Future We Want’ UN Doc A/RES/66/288 (11 September 2012) Annex, para 30. ibid 58. UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/68/223 (17 February 2014) Preamble. 95 UNGA, ‘Culture and Sustainable Development: Report of the UNESCO’ UN Doc A/69/216 (31 July 2014).

28 Ana Filipa Vrdoljak women’s empowerment, sustainable cities and urbanization, environment and climate change, and inclusion and reconciliation.96 In the preparation of the SDGs, UNESCO called on the UN to emphasize how culture was effective in localizing development strategies; safeguarding traditional knowledge was essential for environmental sustainability; cultural human rights were vital to people’s ‘dignity and freedom’; and access to and participation in cultural life, individually and collectively, promoted social cohesion and peace.97 The UN Special Rapporteur in the field of Cultural Rights, Farida Shaheed, observed that there was a need for a holistic approach to development which brought together its environmental, economic and social dimensions through culture, because ‘[i]t is the thread linking these dimensions and knitting our lives together which can facilitate or block ownership of development agendas; make them successful or fail’.98 She recommended specific targets on cultural rights with indicators accessing inclusiveness in planning and implementation of the SDGs; and the ability of all to access, participate in, and contribute to cultural life as intrinsically joined to development.99 The 2030 Agenda for Sustainable Development and related SDGs adopted by the UNGA in 2015 reference culture in a limited fashion.100 Nonetheless, the document does capture key elements raised in the preparatory work. Its opening paragraphs borrow from Article 1 of the UN Charter defining its purpose, to include respect for ‘cultural diversity’ and ‘equal opportunity permitting the full realization of human potential and contributing to shared prosperity’.101 It acknowledges natural and cultural diversity and recognizes the contribution of all cultures to be enablers of sustainable development. Accordingly, there is a pledge to ‘foster intercultural understanding, tolerance, mutual respect and an ethic of global citizenship and shared responsibility’.102 There is no dedicated, standalone SDG on culture. But then, the preparatory materials never promoted this aim. Instead, culture is integrated at various junctures throughout the 2030 Agenda, as had been reflected in UNESCO’s report.103 The most 96 UNESCO, UNFPA and UNDP, Post-2015 Dialogues on Culture and Development (UNESCO, UNPFA, UNDP 2015) 6. 97 UNGA, ‘Culture and Sustainable Development: Report of the UNESCO’ UN Doc A/69/216 (31 July 2014) para 68. 98 Statement by the UN High Commissioner for Human Rights, ‘Culture and Sustainable Development in the Post-2015 Development Agenda’ (5 May 2014) . 99 ibid. 100 UNGA, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda). 101 2030 Agenda, para 8. 102 ibid para 36. 103 SDG 4.7 states that by 2030 learners ‘acquire the knowledge and skills needed to promote sustainable development including . . . appreciation of cultural diversity and culture’s contribution to sustainable development’. UNDESA, ‘Goal 4. Targets and Indicators’ . SDG 8, concerning sustainable economic development, and SDG 12, related to sustainable consumption, incorporate elaboration and implementation of policies to promote sustainable tourism that promotes job creation and local culture and products. UNDESA, ‘Goal 8. Targets

Sustainable Development and Cultural Heritage Law 29 overt reference to strengthening efforts to protect and safeguard the ‘world’s cultural and natural heritage’ is pigeonholed into SDG 11 concerning cities. While culture and cultural heritage is not identified specifically in the other SDGs, there is no reason why it is not still relevant, as explained by UNESCO. SDG 16 concerning promotion of peaceful and inclusive societies for sustainable development includes promotion of rule of law and equal access to justice for all at national and international levels; and ensuring ‘responsive, inclusive, participatory and representative’ decision-making at every level.104 The 2021 Call to Action for Human Rights likewise reaffirms this commitment to effective participation and access to justice.105 The UN HRC Resolution on the right to a clean, healthy and sustainable environment recognized that it includes the right ‘to participate in cultural life, for present and future generations’ and calls on promotion of effective access to justice and remedies.106 When integrating the implementation of Culture Conventions with the 2030 Agenda and SDGs, UNESCO has invariably focused on SDG 16 above all others. 3

Sustainable Development and UNESCO’s Culture Conventions

Since the adoption of the SDGs in 2015, UNESCO, as an agency of the UN, has worked to align its policies and programmes with the 2030 Agenda. These efforts have encompassed the work of its culture sector and the operations related to the Culture Conventions: the 1954 Hague Convention, the 1970 UNESCO Convention, the 1972 WHC, the Underwater Convention, the 2003 UNESCO Convention, and the 2005 UNESCO Convention. Although adopted and or implemented under the auspices of UNESCO, these treaties and their respective governance structures are technically independent of the organization. Nonetheless, they are dependent on UNESCO for their day-to-day operations from financial support through to personnel (e.g. Secretariats). This Section focuses on how each of these Culture Conventions is being reinterpreted within the prism of the SDGs; and the broader push to explore synergies among these treaties and their operations, and encouraging collaborations with allied initiatives within the UN system generally to foster sustainable development. 3.1

1972 World Heritage Convention

The text of the 1972 WHC provides points of conjunction with culture and sustainable development. Its pathbreaking contribution is contained in its title – the

and Indicators’ ; UNDESA, ‘Goal 12. Targets and Indicators’ . 104 2030 Agenda, 25. 105 UN Secretary-General, ‘The Highest Aspiration: A Call to Action for Human Rights’ (2020) 8–9. 106 UN HRC, ‘The Human Right to a Clean, Healthy and Sustainable Environment’ UN Doc A/HRC/ RES/48/13 (18 October 2021) Preamble.

30 Ana Filipa Vrdoljak cultural and natural heritage – dealt with in one instrument.107 The Preamble recognizes that cultural or natural heritage of ‘outstanding interest’ ‘needs to be preserved as parts of the world heritage of mankind as a whole’; and States have a duty to ensure its identification, protection, conservation, presentation and transmission to ‘future generations’ (Article 4). This language reflects the language of the Stockholm Declaration. However, unlike the Stockholm Declaration, the 1972 WHC does not refer to human rights.108 Nonetheless, Article 5 does provide that States Parties ‘adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community’. To the extent that the text of the 1972 WHC addresses development, it does so as a possible threat to cultural and natural heritage.109 The evolution in the discourse on World Heritage and development was flagged by the World Heritage Committee (WHC) in 2010 with a call to better understand how the implementation of the 1972 WHC in maintaining Outstanding Universal Value (OUV) contributed to sustainable development.110 This trajectory has revealed tensions and has led to calls for the framework’s embrace of ‘a more inclusive definition of heritage . . . which would place emphasis on its inherent relation to local communities and their well-being’.111 Aligned with this sentiment, the WCCD report called for a more integrated approach to tangible and intangible heritage which recognizes the interaction between culture and nature.112 The first use of the word “sustainable” appeared in the Operational Guidelines in 1992 with the inclusion of cultural landscapes.113 Consultation with local communities in the preparation of nominations also appeared in 1992.114 An internal UNESCO evaluation noted that ‘a more restricted, technical understanding of OUV, focusing on the objects and sites rather than their context and broader community meaning, has tended to prevail’.115 The current WHC Operational Guidelines adopted in 2021 address sustainable development and the 2030 Agenda in an abbreviated fashion. It acknowledges that since 1972, ‘the international community has embraced the concept of “sustainable development”’, and that ‘protection and conservation of the natural and cultural heritage constitute a significant contribution to sustainable development’.116

107 Francesco Francioni, ‘Introduction’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (2nd ed, OUP 2023) 1. 108 Including the ICCPR, the ICESCR, the CERD, and the DEDAW. 109 1972 WHC, Preamble and Article 11.4. 110 WHC, ‘World Heritage Convention and Sustainable Development’ WHC-10/34.COM/5D (18 June 2010). 111 WHC, ‘World Heritage Convention and Sustainable Development’ WHC-12/36.COM/5C (11 May 2012) paras 16 and 18. 112 UNESCO, ‘Our Creative Diversity’ (nt. 66) 176. 113 WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC/2. Rev (27 March 1992). 114 ibid. 115 UNESCO IOS, ‘Policy Theme Evaluation’ (nt. 7) para 84. 116 WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) (hereinafter: WHC Operational Guidelines).

Sustainable Development and Cultural Heritage Law 31 The Operational Guidelines recognize that States Parties have a responsibility to ‘contribute [to] and comply’ with the SDGs in World Heritage processes and conservation initiatives generally.117 Accordingly, they encourage States to mainstream the 1972 WHC Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention adopted in 2015, including the 2030 Agenda and international human rights ‘standards’.118 The Policy Document states that the 1972 WHC is ‘integral’ to UNESCO’s mandate to foster ‘equitable sustainable development’, promotion of peace and security, and policy coherence concerning the SDGs.119 It cites the Budapest Declaration on World Heritage adopted in 2002, the UN Year for Cultural Heritage. The Budapest Declaration appeals to the international community to address ‘increasing challenges to our shared heritage’ including by ensuring ‘an appropriate and equitable balance between conservation, sustainability, and development’ to enable World Heritage sites to be protected by activities which contribute to social and economic development and the quality of life of ‘communities’.120 The Policy Document maps the operation of the 1972 WHC across all three dimensions of sustainable development – environmental, social and economic – to address ‘planet, people, prosperity and peace’, asserting that the treaty itself is a manifestation of ‘partnership’.121 The current WHC Operational Guidelines reference economic aspects of sustainable development in respect of the promotion of sustainable and inclusive economic benefits for local communities and Indigenous peoples through ‘foster[ing] local cultural and creative industries and safeguarding intangible heritage associated’ with World Heritage sites.122 The Policy Document addresses human rights within the context of inclusive social development.123 It references the connection between Article 1 of UNESCO’s Constitution and the 1972 WHC and elaborates upon a human rights-based approach to the treaty’s operation.124 It indicates that States Parties ‘should commit to uphold, respect and contribute to the implementation of the full range of international human rights standards as a pre-requisite for effectively achieving sustainable development’.125 By comparison, recent revisions to the Operational Guidelines only ‘encourage’ States Parties to adopt a ‘human rights based approach and ensure gender-balanced participation of a wide variety of stakeholders and right-holders’ in the identification, nomination, management and protection of World Heritage

117 118 119 120 121 122 123 124 125

ibid para 16(o). ibid para 14bis. Policy Document, para 20. WHC, ‘Budapest Declaration on World Heritage’ WHC-02/CONF.202/5 (2002) . Policy Document, para 13. WHC Operational Guidelines, para 214bis. Policy Document, paras 17 ff. ibid para 20. ibid (emphasis added).

32 Ana Filipa Vrdoljak sites.126 The Policy Document states that States Parties should ensure the full cycle of World Heritage processes is ‘compatible with and supportive of human rights’; adopting a human rights-based approach and promoting technical cooperation and capacity-building to this end;127 and to ‘develop, through equitable participation of concerned people, relevant standards and safeguards, guidance tools and operational mechanisms . . . compatible with an effective rights-based approach’ for existing and future properties.128 The Policy Document states that conservation and management of World Heritage properties should be based on ‘recognition of cultural diversity, inclusion and equality’ including ‘recognition, respect and inclu[sion] of the values as well as cultural and environmental place-knowledge of local communities’.129 It should enhance the quality of life and well-being, particularly of local communities by protection and equitable use of food, water and ‘medicinal’ plants.130 It also encompasses ‘respect, consultation and involvement of Indigenous peoples and local communities’;131 and gender equality.132 Some of this language is referenced in the WHC Operational Guidelines in an abbreviated fashion.133 Concerns raised in the 2015 UNESCO IOS report of the draft Policy Documents remain, including the Policy’s ‘timid’ references to intangible heritage and its relationship to World Heritage.134 That the relationship between OUV and sustainable development ‘remains an incompletely inarticulate issue’ and there was a need to shift from ‘the technical, site-based approach to OUV towards a more holistic, dynamic, and multi-dimensional understanding of heritage’s value for society’.135 The success or otherwise of the Policy Document remains dependent on its integration into the Operational Guidelines and their implementation, which continues to be cursory. There is a need to integrate World Heritage into other relevant UN wide initiatives like the Sendai Framework for Disaster Risk Reduction (2015–2030).136 3.2

2001 Underwater Cultural Heritage Convention

Like the World Heritage Convention, the 2001 Underwater Convention states that underwater cultural heritage is ‘an integral part of the cultural heritage of humanity and a particularly important element of the history of peoples, nations, and their relations with each other concerning their common heritage’. Its guiding principles

126 127 128 129 130 131 132 133 134 135 136

WHC Operational Guidelines, paras 12 and 111 (emphasis added). The Policy Document defined a human rights-based approach. Policy Document, 15. ibid para 20(iii). ibid para 18(iii). ibid para 19(iii). ibid para 21. Policy Document, para 23. WHC Operational Guidelines, para 119. UNESCO IOS, ‘Policy Theme Evaluation’ (nt. 7) para 96. ibid para 94. ibid paras 98–99.

Sustainable Development and Cultural Heritage Law 33 include international cooperation for its protection, in situ preservation for the benefit of humanity, and that underwater cultural heritage shall not be subject to commercial exploitation.137 The Preamble refers to the progressive development of international law rules related to the protection and preservation of underwater cultural heritage, including the 1970 UNESCO Convention, the 1972 WHC, and the UN Convention on the Law of the Sea.138 Neither the Convention nor its current Operational Guidelines reference human rights or sustainable development.139 UNESCO’s IOS Evaluation Report of the 2001 Underwater Convention concluded that the ‘discourse around the 2001 Convention is too narrow, which puts the relevance of the instrument into question for many’; and that the Organization’s presentation of the treaty did not ‘sufficiently highlight’ the importance of underwater cultural heritage beyond SDG 14 on oceans and seas.140 The Rio Declaration and Agenda 21 highlighted the duty to protect the marine environment and cooperate to this end arising from UNCLOS. These instruments called for integrated management and a precautionary approach in the sustainable development and protection of the cultural and natural resources of the marine environment, involving all stakeholders and interests.141 The UNESCO IOS report encouraged UNESCO to cooperate with UN Oceans, the UN Decade of Ocean Science for Sustainable Development, and the World Bank’s work on the ‘blue economy’ for the ‘sustainable use of ocean resources’.142 Accordingly, the Underwater Convention’s relevance to the 2030 Agenda goes beyond SDG 14 on oceans and encompasses education, economic growth, sustainable cities, good health and well-being, climate change, and partnerships. The report concludes that UNESCO needs to do more in the UN system to demonstrate the contribution of the 2001 Underwater Convention for cultural, social and economic sustainable development and integrate underwater cultural heritage protection into broader efforts to protect the marine environment and oceans.143 In 2023, the Meeting of States Parties adopted the Results Framework 2022–2029 for the implementation and monitoring of the 2001 Underwater Convention, which specifically addressed the impact of underwater cultural heritage as a link between society and the oceans, internal and inland waters and associated ecosystems as a driver for sustainable development. The Results Framework now requires States Parties to report on ‘responsible use and

137 Underwater Convention, Article 2. 138 (Montego Bay, 10 December 1982) entered into force 16 November 1994 1833 UNTS 3 (hereinafter: UNCLOS). 139 UNESCO, ‘Operational Guidelines for the Convention on the Protection of the Underwater Cultural Heritage’ CLT/HER/CHP/OG 1 (August 2015). 140 UNESCO IOS, ‘Evaluation of UNESCO’s Standard-Setting Work of the Culture Sector, Part IV: 2001 Convention on the Protection of the Underwater Cultural Heritage’ IOS/EVS/PI/174.REV (May 2019) iii. 141 ibid 12. 142 ibid 13–14. 143 ibid 15.

34 Ana Filipa Vrdoljak management of underwater cultural heritage for well-being and sustainable development’ as part of the periodic monitoring.144 3.3

2003 Intangible Cultural Heritage Convention

In contrast to the 1972 WHC and Underwater Convention, the text of the 2003 UNESCO Convention provides that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups, individuals, and of sustainable development’ (Article 2.1).145 This distinction is unsurprising given the developments in international law and discourse in the intervening 20 years between the adoption of the two Conventions. It is also unsurprising, given that human rights and sustainable development are explicitly referenced in the 2003 UNESCO Convention, that these are more fully explained and integrated into its operations and work of its governing bodies. Chapter IV of the current Operational Directives on the Implementation of the 2003 UNESCO Convention ‘on sustainable development at the national level’ provides that ‘States Parties shall endeavour, by all appropriate means, to recognize the importance and strengthen the role of intangible cultural heritage as a driver and guarantee of sustainable development’ and ‘fully integrate [its] safeguarding . . . into their development plans, policies and programmes at all levels’.146 The Chapter is broad-based and detailed, covering all three dimensions of sustainable development and peace and security. States Parties should fully understand the actual and potential impact of development plans and programs on ICH through ‘environmental, social, economic and cultural impact assessment processes’.147 They should ensure that inscriptions on the Convention’s lists advance the SDGs.148 In keeping with obligations under the 2003 UNESCO Convention and the SDGs, States Parties are called to endeavour to ‘ensure the widest possible participation of communities, groups and where appropriate individuals’; and that they are the ‘primary beneficiaries’ of development plans and policies affecting

144 Results framework for the implementation and monitoring of the 2001 Convention on the Protection of the Underwater Cultural Heritage (8 June 2023) UCH/23/9.MSP/8.INF.1 p 2 and Monitoring Mechanism, including Results Framework for the 2001 Convention (31 May 2023) UCH/23/9. MSP/8, 3 para 10. 145 The Fund established under the 2003 UNESCO Convention is prevented from accepting contributions from entities whose activities are incompatible with ‘existing human rights instruments, with the requirements of sustainable development or with the requirement of mutual respect among communities, groups and individuals’. UNESCO, ‘Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage’ (hereinafter: Operational Directives) para 73. 146 Operational Directives, para 170. 147 ibid para 172. 148 ibid para 176.

Sustainable Development and Cultural Heritage Law 35 intangible heritage.149 They should also ensure that safeguarding plans and programs ‘are fully inclusive of all sectors and strata of society’ consistent with Article 11.150 Consistent with the SDGs, the Operational Directives encourage States Parties to ‘acknowledge’ the contribution of intangible cultural heritage for environmental sustainability,151 and to recognize that ‘communities, groups and individuals as the bearers of knowledge about nature and the universe’ are ‘essential actors’.152 States Parties are encouraged to adopt appropriate legal, administrative and financial measures to ensure their rights to create and transmit their ICH.153 The Ethical Principles for Safeguarding Intangible Cultural Heritage were prepared with a view to their contribution to peace and sustainable development.154 The Intergovernmental Committee ‘recall[ed] that the safeguarding of intangible cultural heritage, within the spectrum of sustainable development, should be able to rely on public policies which value cultural action’.155 The Principles further elaborate the link between the 2003 UNESCO Convention and international human rights norms and rights of Indigenous peoples. The first principle states that communities, groups and, where applicable, individuals should have the ‘primary role’ in safeguarding their own ICH; and their ‘right to continue practices, representations, expressions, knowledge and skills necessary to ensure the viability of intangible cultural heritage should be recognized and respected’.156 All interactions with communities, groups and individuals should be transparent and ‘contingent on their free, prior, sustained and informed consent’.157 They should benefit from ‘moral and material interests’ related to the heritage including research, promotion and adaptation.158 Assessments must be made of the ‘direct and indirect, shortterm and long-term, potential and definitive impact’ of any action that may affect the ‘viability’ of the intangible cultural heritage or relevant community should be assessed as to its ‘direct and indirect, short-term and long-term, potential and definitive impact’.159 Within Chapter IV of the Operational Directives, human rights come within the umbrella of ‘peace and security’ (SDG 16). States Parties are asked to ‘fully realize the contribution that safeguarding [of ICH] make[s] to the construction of peace’ by recognizing, promoting and enhancing ICH that has ‘peace-making and peace-building at their core, bring communities, groups and individuals together

149 150 151 152 153 154 155 156 157 158 159

ibid para 171(a) and (b). ibid para 174. ibid para 188. ibid para 189(a). ibid para 173(b), 189(c) and 190(b). Intergovernmental Committee, ‘Ethical Principles for Safeguarding Intangible Cultural Heritage’ ITH/15/10.COM/15.a (15 October 2015). ibid para 12. ibid Principles 1 and 2. ibid Principle 4. ibid Principle 7. ibid Principle 9.

36 Ana Filipa Vrdoljak and ensure exchange, dialogue, and understanding among them’.160 In its role of achieving lasting peace, States Parties are encouraged to ensure respect for the ICH of Indigenous peoples, migrants, immigrants and refugees, people of different ages and genders, persons with disabilities, and members of vulnerable groups; leverage the contribution of safeguarding intangible cultural heritage to democratic governance and human rights by ensuring the participation of communities, groups and individuals; and promote safeguarding initiatives focused on intercultural dialogue and respect cultural diversity.161 3.4

1954 Convention on Protection of Cultural Property During Armed Conflict

The 1954 Hague Convention was adopted decades prior to the SDGs, so there is no reference to sustainable development or human rights in the treaty. Given the objectives of the 1954 Hague Convention and its 1954 and 1999 Protocols, the work of this framework has been brought within the SDGs through SDG 16 concerning peace. The thematic programme ‘Heritage for Peace’ was launched pursuant to the decision of the Committee for the Protection of Cultural Property in the Event of Armed Conflict to the 1999 Second Protocol to strengthen ‘the role of heritage in conflict prevention, in conflict situations, for conflict resolution, and as a tool of post-conflict recovery’.162 The objective of the programme is to address one of the three dimensions of the 2030 Agenda and contribute to SDG targets 11.4 (strengthening efforts to protect and preserve the world’s cultural and natural heritage) and 16.a (support through international cooperation to national institutions responsible for strengthening capacity at all levels to prevent violence and combat terrorism and crime, particularly in developing countries).163 Citing Strategic Objective 3 in UNESCO’s Medium-Term Strategy for 2022–2029 concerning ‘building inclusive, just and peaceful societies by promoting . . . cultural diversity . . . and protecting heritage’,164 this programme is designed to make cultural heritage an ‘active tool in the process of strengthening international peace and security’ by fostering synergies amongst UNESCO’s Culture Conventions.165 The

160 Operational Directives, para 194. 161 ibid paras 193 and 197. This integration of the safeguarding of ICH and SDGs is reinforced with the preparation of open source, training materials by the secretariat. 162 UNESCO Committee for the Protection of Cultural Property in the Event of Armed Conflict (CPCP), ‘Decisions adopted during the 15th Meeting of the Committee’ C54/20/15.COM/Decisions (10–11 December 2020) 5, para 5. 163 UNESCO CPC, ‘Reinforcing Synergies between the 1954 Hague Convention and its two Protocols and the other UNESCO Culture Conventions’ C54/20/15.COM/5 (26 November 2020) para 24. 164 UNESCO, ‘Medium Term Strategy (2022–2029)’ 41C/4 (2022) 19, 27–29. 165 UNESCO CPC, ‘Implementation Strategy of the Thematic Programme “Heritage for Peace”’ C54/21/16.COM/INF.5.I (2 November 2021) para 19.

Sustainable Development and Cultural Heritage Law 37 decision’s supporting documentation refers to the Policy Document and to the Operational Directives.166 The implementation of this programme is designed along three axes, using cultural heritage as a mediation tool in conflict prevention, conflict resolution, and post-conflict recovery.167 Based on national periodic reports provided by States Parties, it outlines the findings of the needs assessment. The most detailed response was made in respect of the conflict prevention strategic national axis which focuses on national legislation, training of armed forces, and safeguarding measures which reflect obligations under the 1954 Hague Convention and the 1999 Protocol. By contrast, the conflict resolution axis is the least developed and focused exclusively on ensuring synergies across the Culture Conventions and coordination of their implementation of monitoring and supervision. The final axis covering post-conflict recovery draws on a UNESCO collaborative project with the World Bank to integrate a ‘people-centred and physical environment-based approach’ to reconstruction and recovery using the Framework for Culture in City Reconstruction and Recovery.168 The programme’s objective is to ‘involve local populations’ in defining and developing policies and strategies for reconstruction of built heritage and strengthening of intercultural integration around cultural heritage at the national level.169 It uses the World Bank assessment tools, post-conflict needs assessment and recovery and peacebuilding assessments,170 and UNESCO and Institute for Economics and Peace joint initiative for measuring an ‘enabling environment’ for intercultural dialogue.171 3.5

2005 Convention on Diversity of Cultural Expressions

The 2005 UNESCO Convention, most prominently of the Culture Conventions, engages the language of sustainable development as articulated in the SDGs. Its Preamble states: ‘[C]ultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and

166 UNESCO CPC, ‘Reinforcing’ (nt. 163) para 23; UNESCO CPC, ‘15th Meeting Decisions’ (nt.162) paras 4, 6 and 9. 167 UNESCO CPC, ‘Implementation Strategy’ (nt. 165) para 23(iii). 168 UNESCO and WBG, Culture in City Reconstruction and Recovery. Position Paper (UNESCO 2018). 169 UNESCO CPC, ‘Implementation Strategy’ (nt. 165) para 35. 170 Uwe Kievelitz et al, ‘Practical Guide to Multilateral Needs Assessment in Post-Conflict Situations’ ; Donata Garrasi and Ross Allen, Review of Experiences with Post-Conflict Needs Assessments (2008–2015) (World Bank 2016); EU, UN Development Group and World Bank, ‘Joint Declaration on PostCrisis Assessment and Recovery Planning’ (25 September 2008) . 171 UNESCO and Institute for Economics and Peace, Measuring Intercultural Dialogue. A Conceptual and Technical Framework (UNESCO 2020).

38 Ana Filipa Vrdoljak nations’.172 It recognizes the importance of cultural diversity for the full realization of human rights contained in the UDHR and ‘other universally recognized instruments’; and culture as a ‘strategic element’ of national and international development policies.173 As explained earlier, human rights and sustainable development are listed as guiding principles under the Convention. Under the principle of sustainable development, cultural diversity is described as a ‘rich asset’ for individuals and societies, and its promotion and maintenance as essential for sustainable development for present and future generations.174 The Operational Guidelines to the 2005 UNESCO Convention note that integration of culture into development policies contributes to the protection and promotion of the diversity of cultural expressions; fosters access to, participation in and enjoyment of the creation and production of cultural expression, particularly of disadvantaged groups; realizes the full potential and contribution of cultural industries to sustainable development, economic growth and promotion of ‘decent quality of life’; maintains social cohesion, ‘fight[s] violence through cultural activities that promote human rights and culture of peace and reinforces the sense of social integration of youth’; and reinforces and improve development polices across various sectors.175 Related to this, the Guidelines on the implementation of the 2005 UNESCO Convention in the digital environment, adopted by the Conference of the Parties in 2017, encourages all ‘stakeholders’ – including internet service providers – to respect and promote the Convention and the guidelines, and links this with the 2030 Agenda and the UN Guiding Principles on Business and Human Rights, as well as international human rights instruments and principles.176 The guidelines in respect of preparation of national reports by States Parties provide detailed guidance on how their implementation of obligations under the Convention map across the SDGs.177 The 2005 UNESCO Convention is distinguishable from the other UNESCO Culture Conventions in the language it uses and the overarching framework which is more in keeping with international economic law and by extension development law referring to ‘cultural expressions’, ‘cultural industries’, ‘cultural goods and services’, ‘preferential treatment’ and so on.178 Article 13 provides the content for States Parties’ obligation to ‘endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection

172 173 174 175

2005 UNESCO Convention, Preamble. ibid Article 2. ibid. UNESCO, ‘Operational Guidelines: Integration of Culture in Sustainable Development’ CLT2019/WS/21 (2019) (hereinafter: 1954 Hague Convention OG) 51. 176 UNESCO, ‘Guidelines on the Implementation of the Convention in the Digital Environment’ (2017) 88. 177 1954 Hague Convention OG, 35 ‘Annex Framework for the Quadrennial Periodic Reports on Measures to Protect and Promote the Diversity of Cultural Expressions’. 178 2005 UNESCO Convention, Preamble.

Sustainable Development and Cultural Heritage Law 39 and promotion of the diversity of cultural expressions’. They must support the operation for sustainable development, especially poverty reduction in developing countries, by fostering ‘a dynamic culture sector’ by various measures including by strengthening their cultural industries, facilitating wider access to global markets and international distribution, facilitating the mobility of artists, and international collaboration (Article 14(a)). Harking back to the original tenets of the right to cultural development, it calls for capacity-building through knowledge exchange, technology transfer and financial support (Article 14(b)). Recognition of the equal dignity of and respect for all cultures, including those of Indigenous peoples and minorities, is a guiding principle of the 2005 UNESCO Convention.179 Its Operational Guidelines state that civil society participation should give ‘voice to groups such as women, persons belonging to minorities, and indigenous peoples’ to ensure that all ‘stakeholders’ special circumstances and needs are taken into account when formulating cultural policies’.180 This limited extrapolation of the participation of Indigenous peoples contrasts with developments in other fora, like the WIPO and the Convention on Biological Diversity.181 Referencing the 2001 UNESCO Declaration, the 2003 and 2005 UNESCO Conventions and in its 2018 Policy on Engaging with Indigenous Peoples, UNESCO acknowledges that Indigenous peoples must be ‘considered as stakeholders and right-holders in social, human and cultural development’.182 It notes that even if the treaties do not specifically refer to Indigenous peoples ‘they also apply to them’.183 The Policy enumerates how its work in the culture sector and its Culture Conventions, will respect, protect and promote the human rights, specifically cultural rights, and cultural heritage of Indigenous peoples consistently with the UNDRIP, including ‘the right to freely pursue their cultural development and not be subjected to forced assimilation or destruction of their culture’.184 3.6

1970 Convention on Illicit Import, Export and Transfer of Ownership of Cultural Property

The 1970 UNESCO Convention was adopted during the decolonization period and reflects the concerns of the right to cultural development as defined by the call for a NIEO. Its Preamble opens with an acknowledgment of the importance of the provisions of the 1966 Declaration, which had in turn cited the Declaration on the Granting of Independence to Colonial Countries and Peoples in its Preamble. The 1966 Declaration affirms as a principle that each culture has a dignity and value which must be respected and preserved; people have a right and duty to

179 ibid Article 2.3. 180 1954 Hague Convention OG, 47. 181 ILA, ‘Lisbon Conference: Participation in Cultural Heritage Governance at the Global Level, Final Report’ (2022) . 182 UNESCO, ‘Policy on Engaging with Indigenous Peoples’ (2018) 23, para 72. 183 ibid 24, para 73. 184 ibid 25, para 77(c).

40 Ana Filipa Vrdoljak develop its culture; and ‘in their rich variety and diversity, all cultures form part of the common heritage belonging to all mankind’.185 The Operational Guidelines commence with the following statement: Cultural heritage is among the priceless and irreplaceable inheritance, not only of each nation, but also of humanity as a whole. The loss, through theft, damage, clandestine excavations, illicit transfer or trade, of its invaluable and exceptional contents constitutes an impoverishment of the cultural heritage of all nations and peoples of the world and infringes upon the fundamental human rights to culture and development.186 Neither the treaty text nor its current Operational Guidelines reference sustainable development. Compared to the other Culture Conventions, the 1970 UNESCO Convention’s Meetings of States Parties have occurred less frequently, the subsidiary committee has only recently been constituted and the related operational guidelines are nascent. Accordingly, the engagement with the 2030 Agenda is very limited, with much of it arising from discussion related to development of synergies with the other Culture Convention.187 Yet, this is in stark contrast to the articulation of the importance of addressing illicit trade in cultural objects and restitution within the broader discourse on the role of culture in development, from the right to development through to sustainable development, explored above. The Mexico City Declaration of 1982, using language aligned with the 1970 UNESCO Convention, defined the restitution of cultural objects illicitly removed from their countries of origin as a ‘basic principle of cultural relations between peoples’ and called for strengthening the effectiveness of existing international instruments.188 The 2010 UNGA Resolution on Culture and Sustainable Development cited the 1970 UNESCO Convention; it also called on Member States and intergovernmental organizations to support national legal frameworks for cultural heritage protection, addressing the illicit trade and return of cultural objects in accordance with national and international law because of its importance in ‘sustaining’ cultural diversity.189 This call has been reiterated by the UNGA in each subsequent resolution of culture and sustainable development in the decade since.190 UNGA Resolutions on Culture and Sustainable Development have consistently cross-referenced their resolutions on return or restitution, while

185 1966 Declaration, Article 1. See also, Colonial Countries Declaration. 186 UNESCO, ‘Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property’ C70/15/3.MSP/11 (March 2015) para 1. 187 UNESCO, ‘Report on the Project to Reinforce Synergies between the 1970 Convention and the other UNESCO Culture Convention’ C70/21/6.MSP/10 (May 2021) para 23. 188 ibid para 26. 189 UNGA, ‘Resolution 65/166’ (nt. 91) Preamble and para 2(f). 190 UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/76/214 (17 December 2021) para 17(k).

Sustainable Development and Cultural Heritage Law 41 the latter resolutions have increasingly explicitly engaged the language of sustainable development and cited the 2030 Agenda.191 The UNGA Resolution on Return or Restitution of Cultural Property to Countries of Origin of 2021 in its Preamble cites the 2030 Agenda and [A] pledge to foster intercultural understanding, tolerance, mutual respect and an ethic of global citizenship and shared responsibility, an acknowledgement of the natural and cultural diversity of the world and a recognition that all cultures and civilizations can contribute to, and are crucial enablers of, sustainable development, as well as targets related to the protection and return or restitution of cultural property.192 It also recalled the Human Rights Council resolution on cultural rights and protection of cultural heritage of 2018 which noted with deep concern that illicit trafficking in cultural property could undermine the full enjoyment of cultural rights.193 It also cited all UNESCO’s Culture Conventions, and the 1970 UNESCO Convention and its work of its governing bodies in detail. The illicit traffic of cultural heritage and its restitution, as well as the 1970 UNESCO Convention, are often aligned with SDG 16. The first UN Security Council Resolution 2347 (2017) dedicated to cultural heritage in its Preamble notes that looting and smuggling of cultural property in the event of armed conflict . . . to deny historical roots and cultural diversity in this context can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States.194 It referenced UNESCO’s Strategy for the Reinforcement of Actions for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict adopted in 2015 which covers illicit trafficking at length in its preparatory document. It noted that: ‘[E]xperience had shown the positive role of culture-driven initiatives to foster mutual recognition and dialogue during and in the aftermath of conflict, and the critical role of culture and heritage as drivers and enablers of sustainable development’.195 Beyond international criminal law, illicit trade,

191 ibid Preamble, citing UNGA, ‘Return or Restitution of Cultural Property to the Countries of Origin’ UN Doc A/RES/73/130 (24 December 2018). 192 UNGA, ‘Return or Restitution of Cultural Property to the Countries of Origin’ UN Doc A/ RES/76/16 (8 December 2021). 193 UN HRC, ‘Cultural Rights and the Protection of Cultural Heritage’ UN Doc A/HRC/RES//37/17 (9 April 2018) Preamble. 194 UNSC, ‘Resolution 2347 (2017) of 24 March 2017’ UN Doc S/RES/2347 (24 March 2017) Preamble. 195 UNESCO, ‘Reinforcement of UNESCO’s Actions for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’, UNESCO Doc 38 C/48 (2 November 2015).

42 Ana Filipa Vrdoljak restitution and the 1970 UNESCO Convention are addressed in respect of SDG 16.4 concerning organized crimes, as exemplified by the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law of 2021. The Kyoto Declaration expresses ‘deep concern’ for the negative impact of crime on the rule of law, human rights, socio-economic development, public health and security, the environment and cultural heritage; and cites the 1970 UNESCO Convention as part of the ‘international legal framework’ promoting international cooperation ‘to combat crimes against cultural property’.196 The extrapolation of the contribution of the 1970 UNESCO Convention to the SDGs has also delved into the role of non-state actors and the participation of communities and groups, in particular Indigenous peoples. The 2020 UNGA Resolution on Culture and Sustainable Development recognizes in its Preamble the ‘role of museums as crucial partners for protecting and promoting culture, from safeguarding world heritage to countering illicit trafficking in cultural property’.197 The Recommendation concerning the protection of museums and their collections, their diversity and their role in society in 2015 enables the aligning of key concerns of the 1970 UNESCO Convention with sustainable development agenda. Its Preamble ‘recognizes . . . the need to strategically incorporate culture, in its diversity, into national and international development policies, in the interests of communities, peoples and countries’.198 It also affirms that the ‘preservation, study and transmission of cultural and natural, tangible and intangible heritage, in its movable and immovable conditions, are of great importance for all societies, for intercultural dialogue among peoples, for social cohesion, and for sustainable development’.199 Member States are called upon to take appropriate measures to ‘encourage and facilitate dialogue’ and promote ‘constructive relationships’ between museums and Indigenous peoples concerning the return or restitution of cultural property consistently with current law and policies.200 The UNGA resolution of 2019 after citing UNDRIP, called on Member States to enable access to and repatriation of human remains and ceremonial objects in their possession through ‘fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned’.201

196 UNGA, ‘Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law: Towards the Achievement of the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/76/181 (16 December 2021) Annex, para 1 and 89. 197 UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/74/230 (16 January 2020). 198 UNESCO, ‘Recommendation Concerning the Protection of Museums and their Collections, their Diversity and their Role in Society’ (17 November 2015) . 199 ibid. 200 ibid paras 17 and 18. 201 UNGA, ‘Resolution 74/230’ (nt. 197) Preamble.

Sustainable Development and Cultural Heritage Law 43 4

Drawing Conclusions

The adoption of the SDGs and their implementation by UNESCO in its policies and programs is having a gradually and potentially transformative impact on its Culture Conventions and by extension, international cultural heritage law, more broadly. This is discernible in three respects: first, renewed efforts to integrate the operations of the Conventions; second, the reinforcement of the importance of the role of culture and cultural heritage, for human rights and peace and security; and third, the application of the principle of sustainable development in the field of international cultural heritage law. Much has been made – rightly – of the siloing of the international protection of cultural heritage by the Culture Conventions. Not only is each treaty equal and independent of the others under the law of treaties; each instrument is reflective of the preoccupations and drivers of their States Parties and the milieu during which they were drafted and adopted. However, there has been a growing understanding of the holistic nature of cultural heritage, which is not properly reflected in the operations of each Convention in isolation. Although there have been efforts to foster the integration of the operations of these treaties due to the increasingly limited resources of UNESCO, this effort has gained great impetus with the implementation of the SDGs. The push for integration has fostered meetings between the governing bodies (including secretariats), sharing of experiences and good practice, and efforts towards harmonization of work across the Conventions including in respect of matters touching upon SDGs. This movement towards integration, as limited as it may be, can facilitate a more coherent consolidation of international cultural heritage law and practice generally. In this sense, the SDGs may be having a tacit, though more limited, effect on UNESCO’s Culture Conventions, similar to that which the Framework Convention on the Value of Cultural Heritage for Society is intended to have on Council of Europe’s culture treaties.202 Another impact of the 2030 Agenda on our understanding of the Culture Conventions is the manner through which most, if not all have been aligned with the SDGs in relation to the rule of law and peace. Not only has this near consistency across the Conventions furthered integration efforts, but it also brings the treaties back to UNESCO’s Constitution and the organization’s stated purpose – and the objective for which treaties on cultural heritage are adopted by the organization, that is, to ‘contribute to peace and security by promoting collaboration among the nations through . . . culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms’.203 Rather than being the raison d’être of these Conventions, this objective may often be lost in their implementation. Therefore, in a circuitous fashion, the SDGs have the potential to reinforce the core rationale for these treaties. 202 (Faro 27 October 2005) entered into force 1 June 2011 CETS No 199. 203 Constitution of the United Nations Educational, Scientific and Cultural Organization (London 16 November 1945) entered into force 4 November 1946 4 UNTS 275, Article 1.1.

44 Ana Filipa Vrdoljak The third element, which is the central focus of this article, is the application of the principle of sustainable development to the field of cultural heritage protection. As noted earlier, as defined by the Brundtland Report, the principle has been recognized and applied by the ICJ and other international tribunals204 and forms part of customary international law since the end of the last century.205 Although developed in respect of natural resources and the natural environment, the principle is increasingly being recognized as applicable to cultural heritage. However, while the underlining content and elements of the principle are similar, they are tailored to the specific concerns of culture in respect of development. In so doing, its evolution also addresses the five “P”s of the SDGs: people, planet, prosperity, peace and partnership. Therefore, the core concern of the Culture Conventions is the promotion and protection of cultural diversity for the benefit of humanity. This has been indicated, explicitly or implicitly, in all UNESCO treaties on culture from the 1954 Hague Convention to the 2005 UNESCO Convention, and finds its fullest expression in the 2001 UNESCO Declaration. The latter arguably may be considered a “framework” instrument for our interpretation of the Culture Conventions. The principle of sustainable development as it applies to cultural diversity and cultural heritage has a number of identifiable elements. First, inter-generational equity and the safeguarding and promotion of cultural diversity and cultural heritage as the cultural heritage of humanity is for the benefit of future generations and is most manifest in the 1972 WHC.206 The rationale as the cultural heritage of humanity underscores the need for international cooperation through multilateral instruments. Second, sustainable use and the notion of ensuring cultural “resources” are utilized in a “sustainable”, “appropriate” and “rational” manner. Arguably, most of (if not all) the Culture Conventions are driven by this imperative, whether it be the preventative obligations of States Parties of the 1954 Hague Convention to the list of properties in danger under the 1972 WHC and its equivalent under the 2003 UNESCO Convention. Third, intragenerational equity has embraced a plethora of initiatives adopted in respect of cultural heritage since decolonization, including the right to selfdetermination and cultural development of peoples, through to the right to participate in cultural life in human rights law and broader participatory rights including in respect of decision-making and the application of free, prior, and informed consent. In addition, it covers the application of equitable use and benefit-sharing. Fourth, the integration of culture into the economic, social and environmental aspect of sustainable development. This integration is reflected in analogies 204 Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 78, para 140; United States – Import Prohibition of Certain Shrimp and Shrimp Products (Report of the Appellate Body) WT/DS58/AB/R (6 November 1998) 38 ILM 121 (1999) para 129. 205 Philippe Sands, ‘International Courts and the Application of the Concept of “Sustainable Development”’ (1999) 3 MPYUNL 389. 206 Gabčíkovo-Nagymaros (nt. 204) para 140. See also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.

Sustainable Development and Cultural Heritage Law 45 drawn between cultural diversity and biological diversity. It is aligned with renewed efforts to recognize the interrelationship between the nature and culture and holistic understandings of cultural heritage covering tangible and intangible, movable and immovable – and initiatives integrating the operation of the Culture Conventions. The ever-increasing application of sustainable development to international cultural heritage law is pushing all the Culture Convention frameworks to address these elements. By extension, it has the potential to consolidate the interpretation and implementation of international cultural heritage law generally and align it more closely with human rights law and international peace and security.

3

The Spirit and the Substance. The Human Dimension of Cultural Heritage from the Perspective of Sustainability Federico Lenzerini*

1 The Spirit and the Substance For several decades the legal significance of cultural heritage has been mainly identified as being linked to its tangible dimension, which produces a value that is objectively perceivable and appreciable by the international community as a whole. This value is embedded in the substance of cultural property and in the perceptions it produces in terms of artistic, aesthetic, historical, ethnological or archaeological significance, which distinguishes it from “ordinary” objects and qualifies its worth as an asset to be preserved in the interest of present and future generations. This understanding of cultural heritage has found expression in a number of international instruments, at the top of which the Convention Concerning the Protection of the World Cultural and Natural Heritage stands,1 defining the significance of cultural heritage by reason of its ‘outstanding universal value’2 – making it ‘so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’3 – hence worth preserving ‘as part of the world heritage of mankind as a whole’.4 The said perception of cultural heritage is incomplete and does not fully valorize the spiritual dimension of cultural heritage. This dimension – often invisible and sometimes obscured by the sparkling attractiveness of the material substance of the heritage concerned – is represented by the value that an element of cultural heritage has for its creators and bearers as an essential element of their own cultural identity and distinctiveness and is often a necessary prerequisite for the effective enjoyment of human rights. Most elements of tangible

* Professor of International Law and Human Rights, Department of Political and International Sciences, University of Siena (Italy). 1 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 2 ibid, Articles 1 and 2. 3 WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) (hereinafter: WHC Operational Guidelines) para 49. 4 1972 WHC, Preamble, recital 6. DOI: 10.4324/9781003357704-5

Spirit and Substance. The Human Dimension of Cultural Heritage 47 cultural heritage contextually incorporate both the material and spiritual dimensions – the main exception being historical or archaeological heritage which is not representative of any cultural model existing today. Apart from this or similar exceptions, all manifestations of cultural heritage bear – to use different terminology – both a tangible and an intangible facet, whose protection and safeguarding should be guaranteed through a comprehensive, integrated and differentiated approach. 1.1

The Spirit

In most cases, it is the intangible component in particular which defines the human and spiritual dimension of cultural heritage. Article 2 of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage defines the latter as the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.5 It is worth reiterating that, as emphasized a few lines above, tangible and intangible cultural heritage are not necessarily two ontologically distinct categories of heritage which in the real world and in the life of people can be separated from one another as entities pursuing distinct purposes. On the contrary, in most cases the expressions “tangible cultural heritage” and “intangible cultural heritage” refer to two interrelated facets of the same composite entity, which are contextually necessary in order to allow the latter to properly produce all the benefits for which it is conceived, created and transmitted to future generations. For instance, religious buildings may certainly be valuable for their “universal” – generally perceivable – architectural, artistic and/or aesthetic values; many religious buildings are inscribed on the World Heritage List for their outstanding universal value, either in the form of churches or cathedrals, mosques, temples, monasteries, and so on.6 At the same

5 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention) Article 2. 6 UNESCO, ‘World Heritage List’ . Last access to all links mentioned in this chapter: 22 November 2022.

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time, however, the same buildings have a spiritual significance that is immaterial and transcends the walls and the other material elements of the property, which is totally permeated by such an intangible component, for the fulfilment of which it was originally built. The spirit of those buildings rests on their function and capacity to realize a non-physical value, which corresponds to an important – often essential – component of the cultural and social identity for the people for whom they represent a place of worship, as well as of their very existence. This significance has been recognized, among others, by the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has held that hostile acts against cultural heritage may be used as a weapon for persecuting the communities especially attached to it, when the heritage concerned is particularly significant for those communities and the perpetrators are guided by a discriminatory intent.7 The crucial significance of this dimension of cultural heritage finds further evidence in the connection existing between the latter and the effective enjoyment of a number of internationally recognized human rights. As emphasized by the UN Special Rapporteur in the field of cultural rights in 2016, [c]ultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and groups and their identity and development processes. Cultural heritage is to be understood as the resources enabling the cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations.8 In equivalent terms, the 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage stresses that ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.9 Of course, the human rights–related value of cultural heritage may be affected not only by its blatant destruction, but also by many other actions and situations, including its mismanagement, its use for purposes that are not compatible with the traditional usage of the heritage concerned by its creators and/or bearers, the fact of depriving the latter of their own cultural heritage, and so on.

7 Prosecutor v Tihomir Blaškić (Judgment) IT-95–14-T (3 March 2000) para 227; Prosecutor v Kordić & Cerkez (Judgment) IT-95–14/2-T (26 February 2001); Prosecutor v Prlić et al (Judgment) IT-04– 74 (29 May 2013) paras 1711–13. 8 UN HRC, ‘Report of the Special Rapporteur in the Field of Cultural Rights’ UN Doc A/HRC/31/59 (3 February 2016) para 47. 9 UNESCO, ‘Declaration Concerning the International Destruction of Cultural Heritage’ (17 October 2003) (hereinafter: 2003 Declaration) Preamble.

Spirit and Substance. The Human Dimension of Cultural Heritage 49 The connection between intangible cultural heritage and human rights is particularly evident as a fundamental element of the identity of its creators and bearers.10 In many cases, however, this connection is also clear with regard to tangible heritage. To be more precise, and consistent with the approach followed in this chapter, one can argue that it is a connection which springs from the intangible dimension of tangible heritage. In other words, it is a spirit which emanates from the substance. One may think, for instance, of the right to freedom of religion and belief. In the words of the Human Rights Committee (HRC), [t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group.11 The HRC refers to a number of expressions and elements of both intangible (‘ceremonial acts . . . [and] various practices integral to such acts’) and tangible (‘ritual . . . objects . . . distinctive clothing or head coverings’) heritage, which are indissolubly amalgamated together to create a cohesive whole indispensable for the proper enjoyment of the right to freedom of religion and belief. In this regard, among the elements subsumed within the concept of cultural heritage, land and natural resources are certainly included, provided that they are culturally significant for a given community. This holds true, in particular, as regards Indigenous peoples, who have, with their traditional lands and the natural resources contained therein, a relationship which is not ‘merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations’.12 Along these lines, the African Court on Human and Peoples’ Rights has emphasized that in the context of traditional societies, where formal religious institutions often do not exist, the practice and profession of religion are usually inextricably linked with land and the environment. In indigenous societies in particular, the freedom to worship and to engage in religious ceremonies depends on 10 Federico Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) 22 EJIL 101, 114–18. 11 HRC, ‘General Comment No. 22 (48) (art. 18)’ UN Doc CCPR/C/21/Rev.1/Add.4 (30 July 1993) para 4. 12 The Mayagna (Sumo) Awas Tingni Community v Nicaragua (Judgment, Merits, Reparations and Costs) IACtHR Series C No 79 (31 August 2001) para 149.

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Federico Lenzerini access to land and the natural environment. Any impediment to, or interference with accessing the natural environment, including land, severely constrains their ability to conduct or engage in religious rituals with considerable repercussion on the enjoyment of their freedom of worship.13

The Court has consistently concluded that, ‘given the link between indigenous populations and their land for purposes of practicing their religion, the evictions of [an Indigenous community from its ancestral lands] rendered it impossible for the community to continue its religious practices and is an unjustifiable interference with [its] freedom of religion’,14 giving rise to a violation of Article 8 of the African Charter on Human and Peoples’ Rights.15 Other human rights whose enjoyment depends on the preservation of the relationship between an individual or a community and cultural heritage include, but are not limited to, the right to take part in cultural life, which actually presupposes an obligation for States to ‘[r]espect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters’, as well as to ‘[r]espect and protect cultural heritage of all groups and communities’;16 the right of minorities and their members to enjoy their own culture, as sanctioned by Article 27 of the International Covenant on Civil and Political Rights,17 and by customary international law, since ‘protection of the right to culture . . . requires respect for, and protection of, [the] cultural heritage essential to [a minority] group’s identity’;18 the (collective) right to property, intended as ‘the right of a people or a community [(especially an Indigenous community)] to keep possession of the cultural heritage of particular significance for its cultural identity, to preserve the social and spiritual connection

13 African Commission on Human and Peoples Rights v Kenya (Judgment) AfCtHPR No. 006/2012 (26 May 2017) para 164. 14 ibid, para 169. 15 (Nairobi 27 June 1981) entered into force 21 October 1986 21 ILM 58 (1982). Article 8 reads as follows: ‘[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms’. 16 CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/ GC/21 (21 December 2009) para 50. See more comprehensively on the right in point and its connection with cultural heritage, Yvonne Donders, ‘Cultural Heritage and Human Rights’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 379, 390–395. On General Comment No 21 of the CESCR, Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No 21 of the Committee on Economic, Social and Cultural Rights’, in Silvia Borelli and Federico Lenzerini (eds) Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Brill 2012) 29. 17 (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171. Article 27 reads as follows: ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. 18 African Commission on Human and Peoples’ Rights v Republic of Kenya (nt. 13) para 179.

Spirit and Substance. The Human Dimension of Cultural Heritage 51 existing with such a heritage, as well as to transmit it to future generations;19 and the rights of Indigenous peoples – conceived of as a holistic ensemble – since ‘the intervention in and destruction of [Indigenous peoples’] cultural heritage entail[s] a significant lack of respect for their social and cultural identity, their customs, traditions, worldview and way of life, which naturally cause[s] great concern, sadness and suffering among them’.20 The spiritual aspect is certainly the most intimate among the values inherent to cultural heritage. In some cases, it cannot be properly and fully comprehended by people who do not belong to the communities especially concerned. Sometimes the significance and use of cultural heritage is connected to knowledge which is kept secret by the community and even within the community, being an exclusive prerogative of shamans, medicine men, religious or other leaders. This is the reason why the only appropriate way of ensuring the adequate safeguarding of such an intangible heritage consists in properly involving the representatives of the peoples and communities concerned, who know better than any other persons – or who only know – the role played by said heritage within the community and the ensuing heritage-related needs of the latter. 1.2

The Substance

Johann Wolfgang Von Goethe once said that ‘a man should hear a little music, read a little poetry and see a fine picture every day of his life, in order that worldly cares may not obliterate the sense of the beautiful which God has implanted in the human soul’.21 Goethe referred to music, poetry and pictures, but one could easily replace these goods with, for example, monuments, sculptures and paintings, without altering the essence of the message conveyed by the quote. And, in any event, it is not in doubt that music, poetry and pictures are expressions of cultural heritage. The point is that there is beauty in cultural heritage, and the perception of such beauty produces appreciation for the heritage and, a fortiori, for those who have produced it. Cultural heritage produces empathy and cohesion among human beings. When we are in a foreign country admiring a beautiful building or piece of art, we feel a sense of unity and sharing of positive feelings with all other people who are with us. We are all united by such a feeling of admiration for cultural heritage, pervaded by a magical atmosphere which makes all differences (e.g. ethnic, racial, national, religious) irrelevant. The positive sensations produced by cultural

19 Federico Lenzerini, ‘Intentional Destruction of Cultural Heritage’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 75, 88. 20 Case of the Kichwa Indigenous People of Sarayaku v Ecuador (Judgment) IACtHR Series C No. 245 (27 June 2012) para 220. On the implications produced by climate change on Indigenous peoples’ land rights, see Ademola Oluborode Jegede, The Climate Change Regulatory Framework and Indigenous Peoples’ Lands in Africa: Human Rights Implications (Pretoria University Law Press 2016). 21 ‘The Wisdom of Goethe’ (Clarendon House Books, 2018) .

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heritage normally remain with us for a long time, if not for the rest of our life, and, in supporting, promoting and protecting such heritage we are united with all other people who, across the world, share the same feelings. Therefore, cultural heritage creates an invisible, but strong, line uniting all human beings, or a notable part of them. At the end of this process, cultural heritage becomes the common heritage of humanity, if not technically in legal terms,22 certainly in terms of ethical perception. It follows that cultural heritage – for its objective qualities as embedded in its tangible substance – becomes a source of individual and community enrichment, and this happens by means not only of one’s own heritage, but of the heritage of others as well. When cultural heritage bears such outstanding qualities that its protection upgrades to becoming an interest of the international community as a whole, it produces significant implications in the context of international law, including in terms of the responsibility linked to its protection and preservation. Consistently, in his separate opinion attached to the ICJ’s Order of 18 July 2011 on the Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear, Judge Cançado Trindade emphasized that ‘the ultimate titulaires of the right to the safeguard and preservation of their cultural and spiritual heritage are the collectivities of human beings concerned, or else humankind as a whole’.23 Along the same lines, in the renowned Al Mahdi judgment, the International Criminal Court (ICC) highlighted that the destruction of mausoleums of saints and mosques in Timbuktu between 30 June and 11 July 2012 caused suffering for the ‘international community [as a whole], in the belief that heritage is part of cultural life’.24 With respect to the same instance of destruction, the African Commission on Human and Peoples’ Rights also emphasized the special importance of those mausoleums and mosques, determined by the circumstance that they were ‘classified by UNESCO as a world heritage and are a symbol of the greatness of Africa . . . an eloquent testimony to the significant role played by Africa in the history of humanity’.25 The finding of the ICC in the Al Mahdi judgment echoed a position reiterated on several occasions by the ICTY, especially as regards the Old Town of Dubrovnik, in Croatia, whose ‘outstanding universal value’ was already certified in 1979, when it was inscribed on World Heritage List.26 In light of the fact that the site was protected in the interest of the entire international community, in 2004 the

22 Federico Lenzerini, ‘Patrimonio comune dell’umanità [dir. int.]’ (Diritto on line Treccani, 2019) . 23 Request for Interpretation of the Judgement of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Separate Opinion of Judge Cançado Trindade) ICJ Reports 2011, 606, para 114 (italics in the original text). 24 Case of the Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC Case No. ICC01/12–01/15 (27 September 2016) para 80. 25 AfCHPR, ‘Press release on the destruction of cultural and ancient monuments in the Malian city of Timbuktu’ (10 July 2012) . 26 UNESCO, ‘World Heritage List’ (nt. 6).

Spirit and Substance. The Human Dimension of Cultural Heritage 53 ICTY found that the shelling of the Old Town perpetrated in 1991 by the Yugoslav forces resulted in ‘a violation of values especially protected by the international community’.27 As a consequence, ‘[t]he shelling attack on the Old Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of humankind’.28 In fact, the Old Town of Dubrovnik is to be considered as being of ‘great importance to the cultural heritage of every people’.29 While – as stressed by Article II.2 of the 2003 Declaration – the intentional destruction of cultural heritage in general is to be considered an ‘unjustifiable offence to the principles of humanity and dictates of public conscience’,30 ‘it is a crime of even greater seriousness to direct an attack on an especially protected site’,31 in light of its special significance for humanity as a whole. 2 The Human Dimension of Cultural Heritage There are different ways of conceiving the human dimension of cultural heritage. The most obvious approach consists of linking the expression ‘human dimension’ to the intangible facet of cultural heritage. However, according to a partially different perspective – consistent with the reflections developed in the previous section – both the spirit and the substance of cultural heritage are linked to human perceptions, due to the sense of belonging and identity usually determined by the former, and to the feeling of admiration and personal enrichment conveyed by the latter. As emphasized and reiterated in the previous section, most elements of cultural heritage are the result of an indissoluble combination of tangible and intangible components, which interact with each other in defining the value of the heritage concerned, including as regards its connection with human rights. Such a combination also determines the extent of the need to adopt an integrated approach in establishing the criteria and strategies for ensuring the protection/safeguarding of cultural heritage. The spirit and the substance, therefore, converge into a unique whole entirely permeated by human content. The reason why cultural heritage – together with human rights and nature – represents one of the three main common goods protected by international law32 is that it is as equally necessary for human existence as the two other goods just mentioned. Maybe, cultural heritage is less necessary than human rights and nature in terms of physical existence, but it is definitely indispensable for the spiritual life of the human being, including from an inter-generational perspective. It follows that the human dimension is not a characteristic that cultural heritage assumes in the presence of certain conditions or when it is considered from a specific perspective. The human dimension 27 28 29 30 31 32

Prosecutor v Jokić (Judgment) IT-01–42/1-S (18 March 2004) para 46. ibid para 51. Prosecutor v Strugar (Judgment) IT-01–42-T (31 January 2005) para 232. 2003 Declaration, Article II.2. Prosecutor v Jokić (nt. 27) para 53. Federico Lenzerini and Ana F. Vrdoljak (eds) International Law for Common Goods. Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014).

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is rather an inherent attribute of cultural heritage, certainly the most significant of its qualities in defining its importance under international law. While a growing number of authors advocate an ecocentric approach as regards the protection of the environment (rectius: nature),33 it is indubitable that still today the evolution of international law is guided by an anthropocentric attitude. This – without taking any ethical or ideological position on the debate of anthropocentrism versus ecocentrism – is what appears to this author as factual evidence. In this framework, while it can be discussed whether cultural heritage possesses inherent elements of significance beyond its importance for humans, it is actually the latter quality which has elevated it as one of the paramount goods protected by international law. In other words, the element of cultural heritage that makes humanity particularly concerned with its protection and safeguarding is exactly its human dimension, which – as previously noted – permeates its whole “volume”. It is essentially its human dimension – as just defined – that delineates the roles played by cultural heritage in the different areas of interest of international law with which it interacts, including sustainable development. 3

(The Human Dimension of ) Cultural Heritage and Sustainable Development

3.1 Working Concept of Sustainable Development

The working concept of sustainable development is the classical one formulated in 1987 in the Brundtland Commission Report: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.34 The Brundtland Report adds that, ‘[i]n essence, sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development; and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations’.35 As is well known, sustainable development has three main dimensions – social, economic and environmental – as well as the fundamental requirement of promoting peace and security. Social sustainability presupposes that ‘[u]niversal human rights and basic necessities are attainable by all people, who have access to enough resources in order to keep their families and communities healthy and secure’.36 Economic sustainability requires that

33 See, among others, Eleanor Shoreman-Ouimet and Helen Kopnina, Culture and Conservation: Beyond Anthropocentrism (Routledge 2016); Holmes Rolston III, A New Environmental Ethics: The Next Millennium for Life on Earth (2nd ed, Routledge 2020). 34 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) (hereinafter: Brundtland Report) Chapter 2, para 1. 35 ibid, Chapter 2, para 15. 36 ‘What Is Sustainability?’ (McGill University) .

Spirit and Substance. The Human Dimension of Cultural Heritage 55 [h]uman communities across the globe are able to maintain their independence and have access to the resources that they require, financial and other, to meet their needs. Economic systems are intact and activities are available to everyone, such as secure sources of livelihood.37 Finally, environmental sustainability determines the imperative that ‘[e]cological integrity is maintained, all of earth’s environmental systems are kept in balance while natural resources within them are consumed by humans at a rate where they are able to replenish themselves’.38 According to UNESCO, a fourth dimension should be added: culture.39 All such dimensions are strictly intertwined with each other. In 2015 the international community operationalized such principles through the unanimous adoption by the UNGA of the 2030 Agenda for Sustainable Development,40 a ‘universal call to action to end poverty, protect the planet, and ensure that by 2030 all people enjoy peace and prosperity’.41 It consists of a comprehensive set of 17 goals, the Sustainable Development Goals (SDGs), and 169 targets, having the purpose of reducing poverty and improving health and wellbeing for all human beings by 2030. 3.2

The SDGs, Culture and Cultural Heritage42

The SDGs explicitly refer to culture only three times and to cultural heritage only once. In particular, in the context of SDG 4 (‘Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all’), Target 4.7 pursues the goal to, [b]y 2030, ensure that all learners acquire the knowledge and skills needed to promote sustainable development, including, among others, through education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence, global

37 ibid. 38 ibid. 39 UNESCO, ‘Exploring Sustainable Development: A Multiple-Perspective Approach’ (UNESCO 2012) 5. 40 UNGA, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda). 41 UNDP, ‘What are the Sustainable Development Goals?’ (2022) . 42 On cultural heritage and SDGs, Sophia Labadi et al, Heritage and the Sustainable Development Goals: Policy Guidance for Heritage and Development Actors (ICOMOS 2021) .

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As regards SDG 8 (‘Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all’), Target 8.9 recommends to, ‘[b]y 2030, devise and implement policies to promote sustainable tourism that creates jobs and promotes local culture and products’.44 The only specific reference to cultural heritage is included in SDG 11 (‘Make cities and human settlements inclusive, safe, resilient and sustainable’),45 whose Target 11.4 urges all actors concerned to ‘[s]trengthen efforts to protect and safeguard the world’s cultural and natural heritage’.46 Finally, within the framework of SDG 12 (‘Ensure sustainable consumption and production patterns’), Target 12(b) proclaims the need to ‘[d]evelop and implement tools to monitor sustainable development impacts for sustainable tourism that creates jobs and promotes local culture and products’.47 It may be noted how ‘[t]hese targets give light to the role that local heritage (that determines the cultural heritage) can play in this sustainable development framework’.48 It appears that no much significance is attributed to cultural heritage in the context of the SDGs, and that ‘[t]he 2030 Agenda amounts to a minor step forward in the consideration of cultural aspects in sustainable development’.49 This despite the fact that, before the adoption of the SDGs, a number of global networks, under the banner ‘The Future We Want Includes Culture’, campaigned for the inclusion of one goal specifically devoted to culture, or at least for a guarantee that culture and cultural heritage would play a prominent role of in the framework of the SDGs.50 In any event, it may be reasonably asserted that culture and cultural heritage may provide a fundamental contribution to the achievement of any of the 17 SDGs: • As regards SDG 1 (End Poverty in All Its Forms Everywhere), cultural services, expressions, and heritage can provide an important contribution to inclusive and sustainable economic development.51

43 UNDESA, ‘Goal 4. Targets and Indicators’ . 44 UNDESA, ‘Goal 8. Targets and Indicators’ . 45 On cities and sustainable development see Inta Kotāne, ‘Culture as an Element of Sustainable Development and Urban Attraction Capacity’ (2011) 26 MTS 112. 46 UNDESA, ‘Goal 11. Targets and Indicators’ . 47 UNDESA, ‘Goal 12. Targets and Indicators’ . 48 Luigi Petti, Claudia Trillo and Busisiwe Ncube Makore, ‘Cultural Heritage and Sustainable Development Targets: A Possible Harmonisation? Insights from the European Perspective’ (2020) 12 Sustainability 926, 931. 49 United Cities and Local Government (UCLG) and Culture 21, ‘Culture in the Sustainable Development Goals: A Guide for Local Action’ (May 2018) 3. 50 ibid. 51 ibid 7.

Spirit and Substance. The Human Dimension of Cultural Heritage 57 • SDG 2 pursues the objective to ‘End Hunger, Achieve Food Security and Improved Nutrition and Promote Sustainable Agriculture’. Cultural heritage, especially intangible heritage and traditional knowledge related to genetic resources, may represent a formidable tool in developing sustainable agricultural and other food-production techniques, available even to the most disadvantaged sectors of the human society.52 For instance, one concrete measure would consist of ‘[b]uilding upon local knowledge and practices related to traditional farming, fishing, food gathering, and food preservation and incorporating them into modern practices instead of depending on imported foods’.53 • In the context of SDG 3 (‘Ensure Healthy Lives and Promote Well-Being for All at All Ages’), enjoyment of cultural heritage and participation in cultural life may actually improve living conditions and well-being.54 • With respect to SDG 4, as previously noted, Target 4.7 makes it clear that promotion and appreciation ‘of cultural diversity and of culture’s contribution to sustainable development’ may contribute to the building of a culture of peace and non-violence, tolerance and mutual understanding among peoples,55 which, in addition to representing the fundamental requirement of sustainable development, would notably facilitate the effective realization of all its three dimensions. • SDG 5 calls for ‘Achiev[ing] Gender Equality and Empower[ing] All Women and Girls’. Culture and cultural heritage may contribute in various ways in accomplishing this goal. In particular, ‘opportunities for women and girls to take active part in cultural life and lead their own projects’56 would allow them to gain intellectual and economic independence and break the bonds of dependence on men. Also, cultural development would represent a formidable weapon to sweep gender-inequality stereotypes away. • As far as SDG 6 (‘Ensure Availability and Sustainable Management of Water and Sanitation for All’) is concerned, as with SDG 2, certain elements of intangible cultural heritage and traditional knowledge ‘can provide lessons towards fostering an appropriate, sustainable use of water-related ecosystems’.57 • Equivalent considerations may be developed as regards SDG 7 (‘Ensure Access to Affordable, Reliable, Sustainable and Modern Energy for All’). While traditional cultural methods probably do not fit with the idea of ‘modernity’, as it is commonly conceived, intangible cultural heritage and traditional knowledge

52 ibid 8. 53 UNESCO, ‘Intangible Cultural Heritage and the Sustainable Development Goals in the Pacific’ (2016) 7. 54 UCLG and Culture 21 (nt. 49) 9. 55 See, in this regard, Federico Lenzerini, ‘Fostering Tolerance and Mutual Understanding Among Peoples’, in Abdulqawi A. Yusuf (ed) Standard-setting in UNESCO, Volume I: Normative Action in Education, Science and Culture, Essays in Commemoration of the Sixtieth Anniversary of UNESCO (Nijhoff 2007) 187. 56 UCLG and Culture 21 (nt. 49) 13. 57 ibid 14.

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Federico Lenzerini may certainly help in developing means of energy saving and in promoting the sustainable use of (even modern) energy sources. Culture and cultural heritage, as emphasized by Target 8.9 reproduced above, are central in achieving the purpose of SDG 8, insofar as they can promote sustainable tourism, sustainable and fair conditions of employment and, a fortiori, economic growth. SDG 9 pursues the purpose of ‘Build[ing] Resilient Infrastructure, Promot[ing] Inclusive and Sustainable Industrialization and Foster[ing] Innovation’. Cultural knowledge may be of help in developing ‘processes aimed at research, development and innovation in a wide range of industrial areas’.58 In the framework of SDG 10 (‘Reduce Inequality within and among Countries’), enjoyment of cultural heritage and participation in cultural life ‘can contribute to empowering and promoting the inclusion of all people, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status’.59 Cultural heritage is explicitly attributed, by Target 11.4 reproduced above, a key role in the process of making cities and human settlements inclusive, safe, resilient and sustainable, which is the purpose of SDG 11. Cultural heritage is indeed fundamental in fostering sustainable development at the local level.60 As previously noted, the importance of culture is also explicitly highlighted in SDG 12, particularly in Target 12(b). However, promotion of local culture is conceived of as an end of the goal, rather than a means to achieve its purposes. In reality, again, intangible cultural heritage and traditional knowledge may supply a significant contribution in this respect, providing formidable models of sustainable consumption and production patterns. To a similar extent, intangible cultural heritage and traditional knowledge may play a fundamental role in taking urgent action to combat climate change and its impacts, which is the purpose of SDG 13. In particular, models of lifestyle and use of natural resources typical of traditional communities, particularly Indigenous peoples, may typically provide formidable lessons of sustainable life. These lessons, if imitated, would notably decrease the impact of human activities on the environment, leading to notable positive results in the context of the fight against climate change. Analogous considerations may be extended to SDG 14 (‘Conserve and Sustainably Use the Oceans, Seas and Marine Resources for Sustainable Development’) and to SDG 15 (‘Protect, Restore and Promote Sustainable Use of Terrestrial Ecosystems, Sustainably Manage Forests, Combat Desertification, and Halt and Reverse Land Degradation and Halt Biodiversity Loss’). Diverse traditional management systems of maritime resources provide outstanding examples of sustainability. The same holds true as regards traditional ways of using terrestrial ecosystems. Indigenous peoples in particular – in light of

58 ibid 18. 59 ibid 20. 60 ibid 22.

Spirit and Substance. The Human Dimension of Cultural Heritage 59 their balanced use of natural resources, generally characterized by a profound respect for all living beings and nature in general – embody a way of life which is usually totally respectful of biodiversity and sustainability, and have often developed traditional and sustainable methods of protecting the land and water resources which should be appropriately valorized. • SDG 16 pursues the purpose of ‘Promot[ing] Peaceful and Inclusive Societies for Sustainable Development, Provid[ing] Access to Justice for All and Build Effective, Accountable and Inclusive Institutions at All Levels’. Here promotion of culture and cultural heritage, including at the local level, would notably improve the good functioning of institutions – including those devoted to justice – particularly through the promotion of their social and cultural acceptance and the awareness that they exist in order to promote the common good and put institutions at the service of people, and not the opposite. • Finally, in the context of SDG 17 (‘Strengthen the Means of Implementation and Revitalize the Global Partnership for Sustainable Development’), its target could be realized through, inter alia, valorizing ‘the capacity of cultural stakeholders to produce and distribute cultural goods and services, particularly those that represent lesser-known cultural expressions’ and ‘enabling them to address . . . sustainable development challenges’.61 3.3

The Role Played by (the Human Dimension of) Cultural Heritage in Pursuing the Three Dimensions and the Fundamental Requirement of Sustainable Development

As previously emphasized, sustainable development has three main dimensions (social, economic and environmental), plus the fundamental requirement of promoting peace and security. The Preamble of the 2003 UNESCO Convention emphasizes the importance of intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development. Article 2 of the same Convention also requires that intangible cultural heritage be compatible with sustainable development. In this regard, saying that cultural heritage is significant for sustainable development and must be compatible with sustainable development is evidently tautological. It is obvious that elements of cultural heritage which have the potential to threaten sustainability cannot be considered as being involved in any of the components of the global process aimed at promoting sustainable development. It is to be noted that the requirement that cultural heritage must be consistent with sustainable development is proclaimed not only by the 2003 UNESCO Convention with regard to intangible heritage, but also by international instruments concerning the protection of tangible cultural heritage. In particular, the WHC Operational Guidelines, after emphasizing that ‘[t]he protection and conservation

61 ibid 30.

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of the natural and cultural heritage constitute a significant contribution to sustainable development’,62 encourage States parties to mainstream into their programmes and activities related to the World Heritage Convention the . . . Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention . . . as well as other related policies and documents, including the 2030 Agenda for Sustainable Development.63 Furthermore, the WHC Operational Guidelines recognize the responsibility of States to ‘contribute to and comply with the sustainable development objectives, including gender equality, in the World Heritage processes and in their heritage

62 WHC Operational Guidelines, para 6. On World Heritage properties and sustainable development, Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development. New Directions in World Heritage Management (Routledge 2018). Many documents emphasize the need for the 1972 WHC to be managed in a way which is consistent with sustainable development, as well as the contribution that World Heritage properties may provide in the promotion of the latter. See, among others, WHC, ‘Budapest Declaration on World Heritage’ WHC-02/CONF.202/5 (2002) , committing to ‘ensure an appropriate and equitable balance between conservation, sustainability and development, so that World Heritage properties can be protected while the quality of life of our communities is improved’; UNESCO, ‘Hangzhou Declaration: Placing Culture at the Heart of Sustainable Development Policies’ (2013) reaffirming that ‘culture should be considered to be a fundamental enabler of sustainability, being a source of meaning and energy, a wellspring of creativity and innovation, and a resource to address challenges and find appropriate solutions. The extraordinary power of culture to foster and enable truly sustainable development is especially evident when a people-centred and place-based approach is integrated into development programmes and peace-building initiatives’; WHC, ‘Istanbul Declaration on the Protection of World Heritage’ (2016) ; UNESCO, ‘Ngorongoro Declaration on Safeguarding African World Heritage as a Driver of Sustainable Development’ (2016) which acknowledges the commitment of ‘African States Parties to the World Heritage Convention . . . to a balanced approach in heritage conservation and sustainable development while meeting the needs of local communities and maintaining the Outstanding Universal Value (OUV) of cultural and natural World Heritage sites in Africa’, recognizes that ‘[s]ustainable development and heritage, in particular World Heritage, can be mutually beneficial if the opportunities they offer are properly identified and transmitted to present and future generations’, and declares that ‘[h]eritage, including World Heritage properties, is a driver of sustainable development and critical for achieving regional socio-economic benefits, environmental protection, sustainable urbanization, social cohesion and peace’; WHC, ‘Baku Declaration on the Protection of Cultural and Natural Heritage’ (2019) para 19, which invites States ‘to prioritise the effective protection, conservation and management of World Heritage properties situated on their territories in consistency with the “Policy Document for the integration of a sustainable development perspective into the processes of the World Heritage Convention”’; WHC, ‘Fuzhou Declaration’ (2021) calling for ‘closer international cooperation to undertake appropriate research and planning to facilitate a balance between conservation and sustainable development, while addressing existing challenges and exploring new opportunities for World Heritage in the framework of universal multilateralism with common values shared by all humankind’. 63 WHC Operational Guidelines, para 14bis.

Spirit and Substance. The Human Dimension of Cultural Heritage 61 conservation and management systems’.64 In the context of the management of World Heritage properties, the WHC Operational Guidelines highlight that it ‘may . . . contribute to sustainable development, through harnessing the reciprocal benefits for heritage and society’.65 Educational and capacity building programmes and scientific studies and research methodologies concerning World Heritage properties should also promote, inter alia, sustainable development in various ways.66 Last but not least, in the context of the evaluation of cultural landscapes (a category of cultural heritage), the WHC Operational Guidelines include, among the relevant factors, ‘[c]onservation of biodiversity within sustainable use systems’ and ‘[s]ustainable land and water use’.67 As regards the Policy Document for the Integration of a Sustainable Development Perspective mentioned by the WHC Operational Guidelines, it is a document adopted by the General Assembly of the States Parties to the 1972 WHC in 2015.68 The Policy Document recognizes that the 1972 WHC ‘is an integral part of UNESCO’s overarching mandate to foster equitable sustainable development and to promote peace and security’,69 and stresses that, ‘[b]y identifying, protecting, conserving, presenting and transmitting to present and future generations irreplaceable cultural and natural heritage properties of Outstanding Universal Value (OUV), the World Heritage Convention, in itself, contributes significantly to sustainable development and the wellbeing of people’.70 Subsequently, in recognizing that ‘World Heritage conservation and management strategies that incorporate a sustainable development perspective embrace not only the protection of the OUV, but also the wellbeing of present and future generations’,71 the Policy Document identifies three ‘overarching principles’ on which such strategies should be based, i.e., human rights, equality and sustainability through a long-term perspective.72 Among other things, the Policy Document also stresses that ‘[a]ll dimensions of sustainable development should apply to natural, cultural and mixed properties in their diversity. These dimensions are interdependent and mutually reinforcing, with none having predominance over another and each being equally necessary’.73

64 65 66 67 68

69 70 71 72 73

ibid para 15(o). ibid para 112. ibid paras 214bis and 215. ibid Annex 6, part C, para 8(ii) and (iii). WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) (hereinafter: Policy Document). See also WHC, ‘Resolutions adopted by the General Assembly of State Parties to the World Heritage Convention at its 20th Session (UNESCO, 2015)’ WHC-15/20.GA/15 (20 November 2015) . Policy Document, para 1 (footnotes omitted). ibid para 3. ibid para 6. ibid para 7. ibid para 9.

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Coming to the social dimension of sustainable development, this clearly corresponds to the protection and guarantee of internationally recognized human rights in favour of all human beings and communities. As elaborated in section 1 above, protection/safeguarding of cultural heritage represents a crucial prerequisite for ensuring the effective enjoyment of a number of fundamental human rights, including, but not limited to, the right to freedom of religion and belief, the right to take part in cultural life, the right of minorities and their members to enjoy their own culture, the right to property and the rights of Indigenous peoples. The relationship between cultural heritage and human rights looks like a double-faced coin, in the context of which the significance of the former for the effective realization of the latter is somehow counterbalanced by the requirement that cultural heritage is ‘compatible with existing international human rights instruments’, as explicitly stressed by Article 2 of the 2003 UNESCO Convention.74 The aggregate ensemble of cultural heritage that is relevant for the promotion of sustainability is therefore the one purged of the elements incompatible with human rights. In concrete terms, cultural heritage – especially its intangible component – is fundamental in achieving inclusive social development.75 In particular, it may greatly contribute to the accomplishment of food security, as local communities ‘have developed foodways as well as production and conservation systems that are diversified and adapted to these locations and environmental changes’.76 Traditional health practices can also contribute to well-being and quality health care for all; in particular, ‘[c]ommunities worldwide have developed a diversity of health-related knowledge and practices, providing effective and affordable therapies, often based on the use of local natural resources . . . [which] are affordable and accessible, including in isolated rural areas where other medicine is less readily available’.77 To an equivalent extent, ‘[t]raditional practices concerning water management can contribute to equitable access to clean water and sustainable water use, notably in agriculture and other livelihoods. Throughout history, local communities have proven their capacities to shape sustainable water management practices, guided by deeply held beliefs and traditions, and to achieve access to clean water for all’.78 Furthermore, cultural heritage provides sustainable models of education and transmission of cultural identities to future generations, promotes social cohesion and inclusion and is ‘decisive in creating and transmitting gender roles and identities and therefore critical for gender equality’.79 As regards in particular World Heritage, the Policy Document underlines its potential role in contributing to inclusion and equity, enhancing quality of life and well-being, respecting, protecting and promoting human rights, respecting, consulting and

74 2003 UNESCO Convention, Article 2. 75 UNESCO, ‘Intangible Cultural Heritage and Sustainable Development’ (2015) 3. 76 ibid. 77 ibid 3–4. 78 ibid 4. 79 ibid 5.

Spirit and Substance. The Human Dimension of Cultural Heritage 63 involving Indigenous peoples and local communities, as well as achieving gender equality.80 With respect to the environmental dimension of sustainable development, cultural heritage is decisive in ensuring protection and preservation of biodiversity and environmental sustainability, through valorizing and promoting ‘lifestyles and intangible cultural heritage practices that are intricately linked to nature and that respect the environment’, developed by local communities, in a global society where ‘human activities are consuming natural resources at increasing and unsustainable rates’.81 In fact, ‘communities have developed innovative and adaptive strategies to optimize the use and management of water and minimize the consumption of energy’.82 Cultural heritage also provides excellent models of community-based resilience to natural disasters and climate change.83 With specific regard to World Heritage properties, the WHC Operational Guidelines stress that they ‘may sustain biological and cultural diversity and provide ecosystem services and other benefits, which may contribute to environmental and cultural sustainability’.84 This aspect is further considered by the Policy Document, which emphasizes that ‘[t]he World Heritage Convention promotes sustainable development, and in particular environmental sustainability, by valuing and conserving places of outstanding natural heritage value, containing exceptional biodiversity, geodiversity or other exceptional natural features, which are essential for human well-being’.85 The Policy Document further adds that World Heritage properties should be managed so as to promote the protection of biological and cultural diversity and ecosystem services and benefits, as well as to strengthen resilience to natural hazards and climate change.86 As far as the economic dimension of sustainable development is concerned, cultural heritage is often ‘essential to sustaining the livelihoods of groups and communities. Local knowledge, skills and practices, maintained and enhanced through generations, provide subsistence livelihood for many people’.87 It also generates ‘revenue and decent work for a broad range of people and individuals, including poor and vulnerable ones’, including, for example, through traditional craftmanship.88 Furthermore, communities and groups can benefit from tourism activities related to cultural heritage.89 The Policy Document highlights that ‘World Heritage properties, as cultural and natural heritage in general, offer great potential to alleviate poverty and enhance sustainable livelihoods of local communities,

80 Policy Document paras 18–23. 81 UNESCO, ‘Intangible Cultural Heritage’ (nt. 75) 7. 82 UNESCO, ‘Sustainable development and living heritage’ . 83 UNESCO, ‘Intangible Cultural Heritage’ (nt. 75) 9. 84 WHC Operational Guidelines, para 119. 85 Policy Document, para 14. 86 ibid paras 15–16. 87 UNESCO, ‘Intangible Cultural Heritage’ (nt. 75) 10. 88 ibid. 89 ibid.

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including those of marginalized populations’.90 It identifies three main objectives that could and should be promoted by World Heritage, if properly managed: ensuring growth, employment, income and livelihoods; promoting economic investment and quality tourism; and strengthening capacity-building, innovation and local entrepreneurship.91 Finally, in terms of peace and security, many elements of cultural heritage promote intercultural dialogue and foster tolerance, mutual understanding among peoples and peace. Elements of intangible cultural heritage, particularly rituals of peace and reconciliation, also have huge potential to provide for efficient means of dispute settlement, in addition to contributing to restoring peace and security, especially at the local level.92 A similar role is played by tangible heritage – rectius, by the material component of cultural heritage. In this regard, the Policy Document stresses that World Heritage, as protected by the 1972 WHC, ‘is an integral part of UNESCO’s established mandate to build bridges towards peace and security’.93 In particular, World Heritage properties may be ‘used to prevent conflicts between and within States Parties and to promote respect for cultural diversity within and around’ themselves.94 They can also ‘contribute favourably to conflict resolution and the re-establishment of peace and security’,95 and ‘[d]uring a conflict and in the post-conflict transition phase . . . [they] can make a significant contribution to recovery and socio-economic reconstruction’.96 4

Conclusion

On the occasion of the celebration of the World Day for Cultural Diversity for Dialogue and Development, on 21 May 2018, the Director-General of UNESCO, Audrey Azoulay, declared that to be able freely to build one’s identity, drawing on various cultural sources, and to be able to develop one’s heritage in a creative way are the foundations of a peaceful and sustainable development of our societies. This is an essential issue, and a challenge for the future: integrating culture into a global vision of development.97 90 Policy Document, para 24. 91 ibid paras 25–27. On cultural tourism as a generator of economic development see Dragan Nikodijević, ‘Valorization of Cultural Heritage in the Context of a Social Policy of Sustainable Development – Developmental and Economic Potentials of Cultural Tourism’ (2011) 8 Megatrend Review 259. 92 UNESCO, ‘Intangible Cultural Heritage’ (nt. 75) 12–13. 93 Policy Document, para 28. 94 ibid para 30. 95 ibid para 32. 96 ibid para 33. 97 Audrey Azulay, ‘Message from the Director General. World Day for Cultural Diversity for Dialogue and Development’ (21 May 2018) .

Spirit and Substance. The Human Dimension of Cultural Heritage 65 In order to win this challenge, it is necessary to promote awareness, in particular within civil society, of the decisive role of culture in the process of building a sustainable future. The value and the beauty of culture, cultural heritage, cultural diversity and intercultural dialogue should be perceived by people as the driving force for harmonious life on the planet. Enjoyment by all of the immeasurable richness of culture and cultural heritage could really play a decisive role in making the achievement of the goals of sustainable development effectively possible. In fact, [p]articipation in cultural activities fosters young people to be more imaginative and innovative: the processes of creation and cultural participation provide knowledge and techniques to imagine and expand horizons, integrate diverse elements, and create something new. Cultural experiences can be important platforms for the development of capacities that expand selfknowledge, self-expression, self-determination, and life satisfaction and well-being. . . Educational systems at all levels should include the acquisition of cultural skills and knowledge pertaining to intercultural dialogue; the recognition and valuing of diversity, creativity, tangible and intangible heritage; and the development of skills using digital tools for cultural transmission, innovative expression, and bridging of cultures.98 In other words, culture and, especially cultural heritage – particularly its human dimension – could provide humanity with the necessary skills to make the right choices in terms of sustainable development, and, a fortiori, to ensuring that the continuation of life in the world will be possible, for the benefit of future generations. What we need is to actually open our minds to the great lessons that culture and cultural heritage can bring to us, in a spirit of appreciation of their rich diversity and of mutual understanding in our relations with all the people living in the world.

98 Nancy Duxbury, Jyoti Hosagrahar and Jordi Pascual, Why Must Culture Be at the Heart of Sustainable Urban Development? (UCLG 2016) 30.

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‘No One May Invoke’ The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent Federica Mucci*

1 The “Mutual Functionality” between the International Protection of Cultural Heritage and Human Rights There is no doubt that there must be a congruence, indeed even a “mutual functionality”, between the protection of cultural heritage and the fundamental interests which have been protected, since the Second World War, by international law, namely human rights and peace. Not so much “explored” historically, this topic has come to the attention of the community of international law scholars due to the practice that has developed especially in the wake of the serious episodes of intentional destruction of cultural heritage which have occurred in recent years, in the context of disrespect for cultural pluralism, evidently associated with serious violations of human rights “in the round”.1 International cultural cooperation and the protection of cultural heritage as functional to the protection of peace and human rights were already provided under

* Associate Professor of International Law, University of Rome Tor Vergata (Italy). I would like to dedicate this contribution to the memory of Prof. Kader Asmal. I did not know him personally, but I participated in the Italian delegation to the negotiation of the 2005 UNESCO Convention, and I appreciated his masterful, passionate and tireless work in chairing the meetings. The negotiations were very complex, and at times it was difficult not to lose sight of the deeper meaning of our work. 1 The attention from scholars on the relationship between the international protection of cultural heritage, human rights and peace was particularly prompted by the massive intentional destruction of cultural properties by ISIS in Syria and Iraq; the 2016 International Criminal Court (ICC) ruling on the destruction of several cultural properties at the UNESCO World Heritage site of Timbuktu, in Mali; and the UN Security Council Resolution 2347 (2017). See in particular, Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12–01/15 (27 September 2016); UNSC, ‘Resolution 2357 (2017)’ UN Doc S/RES/2347 (2017) (24 March 2017); UNESCO, ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’ 38C/49 (2 November 2015). It is to be noted, though, that the relationship between peace protection and cultural heritage protection had already been translated into clearly operational terms since the adoption of UN Security Council Resolution 1483 (2003) – albeit at the time, only with reference to the return of movable cultural property. DOI: 10.4324/9781003357704-6

‘No One May Invoke’ 67 the UN Charter and the UNESCO Constitution.2 Though not so diffusely until recently, the close positive, synergistic interrelationship between cultural heritage and human rights – not only specifically cultural rights – is studied by scholars and sometimes taken into consideration by international courts.3 It was also highlighted in pronouncements of the International Criminal Tribunal for the Former Yugoslavia (ICTFY) and in reports by the UN Special Rapporteur on cultural rights.4 This topic is today open to significant potential developments, in particular after the entry into force of the Council of Europe Framework Convention on the Value of Cultural Heritage for Society.5

2 Both international cultural cooperation and universal respect for human rights and fundamental freedoms are introduced in the UN Charter as functional to create peaceful and friendly relations among nations, based on equal rights and self-determination of peoples. Charter of the United Nations (San Francisco, 26 June 1945) entered into force 24 October 1945, Article 55. Likewise, the purpose to contribute to peace and security through cultural cooperation is introduced in Article I.2(c) of the UNESCO Constitution as functional to further the universal respect for human rights and fundamental freedoms. It is also affirmed that to realize this purpose the Organization will work, inter alia, on the protection of cultural heritage. Constitution of the United Nations Educational, Scientific and Cultural Organization (London, 16 November 1945) entered into force 4 November 1946 275 UNTS 4. 3 More consistently in the jurisprudence of the Inter-American Court of Human Rights, which has developed an integrated approach to rights. See Mónica Feria Tinta, ʻJusticiability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notionsʼ (2007) 29 HRQ 431. As for the European Court, see Council of Europe, Cultural rights in the case-law of the European Court of Human Rights (17 January 2017) . Last access to all links mentioned in this chapter: 11 March 2023. An important reference point on these themes in the work of scholars is the work leading to the adoption, in 2007, of the Fribourg Declaration on Cultural Rights, which called for attention to be given to the implementation of cultural rights as catalysts for a better implementation of all human rights. Fribourg Declaration on Cultural Rights (Fribourg, 7 May 2007). See also CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/21 (21 December 2009). It has been noted, though, that the definition of culture adopted by the CESCR is broader than the notion embodied in Article 2(a) of the Fribourg Declaration on Cultural Rights. Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No 21 of the Committee on Economic, Social and Cultural Rights’, in Silvia Borelli and Federico Lenzerini (eds) Cultural Heritage, Cultural Rights, Cultural Diversity New Developments in International Law (Nijhoff 2012) 24, 34. 4 The ICTY took into account the destruction of cultural property as an element to prove the specific intent required for the crime of genocide. Micaela Frulli, ʻAdvancing the Protection of Cultural Property through the Implementation of Individual Criminal Responsibility: The Case Law of the International Criminal Tribunal for the Former Yugoslaviaʼ (2005) 15 IYIL 195, 214. As for the UN reports on cultural rights see, UN HRC, ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheedʼ UN Doc A/HRC/17/38 (21 March 2011); UNGA, ‘Cultural Rights. Report of the Special Rapporteur in the Field of Cultural Rights’ UN Doc A/71/317 (9 August 2016). The reports and a list of related events and materials on ʻA Cultural Rights Approach to Heritage’, including the expert contribution to the Prosecutor v Ahmad Al Faqi Al Mahdi case, are available at . See Prosecutor v Ahmad Al Faqi Al Mahdi (Reparations Phase) ICC-01/12–01/15 (27 April 2017). 5 (Faro, 27 October 2005) entered into force 1 June 2011 CETS No 199 (hereinafter: Faro Convention). The indications regarding specific individual and collective rights expressed in a non-directly

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Among the UNESCO Conventions on the protection of cultural heritage, an explicit link to the international protection of human rights is made through references to the Universal Declaration of Human Rights,6 and other human rights instruments in the Preamble of the Convention on the Safeguarding of the Intangible Cultural Heritage.7 Another is to be found in the Preamble of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions,8 a convention that is not, in fact, about cultural heritage, though the protection it provides is in any case based on the ʻcultural qualificationʼ of certain goods, services and activities. Of course, the previous conventions adopted within UNESCO for the protection of cultural heritage were also positively related to the protection of human rights; however, the topic was at best introduced in general terms with reference to the international collective dimension of human rights. In the Preamble of the Convention for the Protection of Cultural Property in the Event of Armed Conflict,9 and later in the Preamble of the Convention Concerning the Protection of the World Cultural and Natural Heritage,10 it is stated, respectively, that ʻthe preservation of the cultural heritage is of great importance for all peoples of the worldʼ and that ʻparts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a wholeʼ. In the Preamble of the Convention on the Protection of the Underwater Cultural Heritage,11 ʻthe importance of underwater cultural heritage as an integral part of the cultural heritage of humanityʼ is acknowledged, and the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

6 7 8 9 10 11

binding form in the text of the Convention could inspire positive solutions within the domestic legal orders of the Parties. ‘Compared to other conventions, the “framework convention” does not create a specific obligation to act. It suggests rather than imposes’. Council of Europe, ‘Convention on the Value of Cultural Heritage for Society (Faro Convention, 2005)’ . In fact, Article 6 states that ʻNo provision of this Convention shall be interpreted so as to: a) limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments, in particular, the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms; b) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments; c) create enforceable rightsʼ. Articles 6(a) and (b) are other examples of “compatibility” clauses about the protection/valorization of cultural heritage and human rights, in this case giving precise indications on the interpretation of the treaty on this issue. Article 6(c), instead, makes explicit the need for legislative intervention within States for the provision of new rights to be effective. UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) (hereinafter: UDHR). (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311 (hereinafter: 2005 UNESCO Convention). (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240. (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). (Paris 2 November 2001) entered into force 2 January 2009 2562 UNTS 3.

‘No One May Invoke’ 69 and Transfer of Ownership of Cultural Property, also converges – although not so clearly – towards the common heritage of mankind concept.12 It refers to the moral obligations of every State to respect its own cultural heritage and that of all nations, thus giving the idea of a separation of cultural heritage on a national basis, but at the same time it states that it is ʻincumbent upon every Stateʼ to protect the cultural property existing within its territory, hence underlining that the link to a State’s own heritage does not imply an exclusive interest in its protection. It is most explicit as to the fact that cultural heritage cannot be considered outside its “human context” of reference, since it explains that the true values of cultural property ʻcan be appreciated only in relation to the fullest possible information regarding is origin, history and traditional settingʼ.13 2 The Inclusion of Clauses to Avoid Conflict with the Protection of Human Rights in the 2003 and 2005 UNESCO Conventions The close interrelation between the issues of the protection of intangible cultural heritage (ICH) and the diversity of cultural expressions, on the one hand, and the protection of human rights, on the other, in the 2003 and 2005 UNESCO Conventions is not only made explicit in general terms in the Preamble. In these two treaties, a clause is also inserted into the operative part of the text. This study mainly refers to the clause inserted in the 2005 UNESCO Convention. Both conventions, then, also explicitly refer to the topic of sustainable development, which is explored in greater depth in the 2005 UNESCO Convention.14 Since the 2003 UNESCO Convention is about ‘living heritage’ and the 2005 UNESCO Convention is mainly about creativity and access to the diversity of cultural expressions, it is evident that the human rights dimension is more directly affected by these two conventions than in the previous UNESCO cultural heritage conventions. Despite this, the two conventions share the laudable choice of

12 (Paris 14 November 1970) entered into force 24 April 1972 823 UNTS 232. 13 ibid Preamble. On the issue of restitution of cultural property and identity links, Manlio Frigo, ‘Restitution of Cultural Property and Decolonization of Museums: Issues of Consistency between Fulfilment of Legal Obligations, Ethical Principles and Identity Links’, in this volume. 14 The Preamble of the 2003 UNESCO Convention considers ‘the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development’. Sustainable development is then considered, together with human rights, in the compatibility clause in the last part of Article 2.1. The 2005 UNESCO Convention affirms in the Preamble that ‘cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations’ and then that one of its objectives is ‘to reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link’ (Article 1(f)). It then includes a Guiding Principle dedicated to Sustainable Development (Article 2.6) and Article 13, titled ‘Integration of culture in sustainable development’. As regards the functional, dynamic approach to cultural heritage characterizing the 2003 and 2005 UNESCO Conventions and their focus on sustainable development see infra, section 8.

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focusing on facilitating international cooperation rather than on the provision of new, more specific, human rights, in addition to those already provided for in various other international law sources.15 It seems strange, then, that in these two conventions, States have included clauses intended to regulate potential conflicts between the protection of cultural heritage and cultural diversity, on one side, and the protection of human rights, on the other side. If it is true that between these values/interests of the international community, congruence is assumed, indeed arguably, even amounting to a “mutual functionality”, why should it be necessary to insert new rules aimed at preventing conflicts between them? What is the real meaning, both in theoretical and operational terms, of such clauses? 3 The Clause Included in the 2003 UNESCO Convention: A Compatibility Condition within the Definition of Protected Cultural Heritage Article 2 of the 2003 UNESCO Convention prescribes that, [f]or the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements . . . of sustainable development. Is this clause in line with the “mutual functionality” approach taken between cultural heritage and human rights? Through the limitation within the definition, the clause formally affects the objective scope of application of the Convention, hence the treaty does not need to include any clause regulating the relationship among potentially conflicting interests that are protected by international law. By definition, what is not compatible with existing international human rights instruments cannot be the object of safeguarding under the Convention. The compatibility clause has the undoubted merits of not being a subordination clause; it highlights, however, the need felt by the negotiators to prevent conflicts – hence the fact that they considered such conflicts possible in the absence of the explicit condition. The issue there was clearly fear that, in the folds of some traditional beliefs and practices, violations of human rights would fall under the Convention. This very likely would not be the case, notwithstanding the complexities of real traditional and legislative contexts, considering the distinction between any possible traditional practice and – in the proper sense – ICH.16 15 This was done in the belief that the key to more effective human rights at the international level lies not in the identification of new rights, but in the greater implementation of existing ones. 16 States take a variety of policy approaches regarding ICH practices that can be associated with human rights violations or other negative outcomes for health or social life. ‘Practices that are not compliant with human rights can be prohibited by law. In some States, certain ICH elements which are widely practised and accepted in society remain illegal because they were originally banned

‘No One May Invoke’ 71 It could also be noted that, on one hand, gross violations of human rights are prohibited by jus cogens, a prohibition that cannot be derogated from by treaty law. On the other hand, any apparent conflict would be solved through the holistic, integrated approach to all human rights, considering that the protection of identity is a clear rationale behind the 2003 UNESCO Convention and the protection of human identity is a fundamental human rights goal, since the right to an identity provides a person with dignity.17 In any case, the clause is there, ad abundantiam or not. The need to make the condition explicit can in fact be read as an important indication of a necessary shift of perspective, with reference to the definition of the object of protection in treaties for the protection of cultural heritage, as far as aspects relating to the protection of human rights are concerned. On these aspects, the starting point is not – as was the case in the previous conventions about cultural heritage – simply silence and reliance on domestic legal systems; the international norm does not simply set the “lowest common denominator”, with respect

under colonial rule, but the law is not enforced. Other States take the view that simply banning ICH practice can drive them underground and make them even more difficult to regulate and address. ICH practices that are not compliant with human rights provisions can also be explicitly or implicitly permitted by the State in existing legislation and policy. Legislation and policies within a State are not necessarily consistent with the principles of the international human rights instruments that they have ratified’. UNESCO, ‘Information Sheet: Human Rights Policy’ . These kinds of issues are always very complex and easily misunderstood. One example relates to the adoption, in Tanzania, of a ban on so-called witchdoctors because of the alleged role of their activities and beliefs in the murder of people with albinism for the trade in albino body parts, which lack pigment and are valued for their association with good luck and wealth. UNESCO includes the news about the Tanzanian law in a paragraph titled ‘Retaining or reinstating sanctions against human rights abuses associated with ICH practice’. In fact, the association with ICH practices by some scholars is referenced as not being accepted by most of the interested community members: ‘traditional healers in Tanzania, many of whom are licensed by the government, have long been tied to relationships with ancestors and other spirits. . . The vast majority of traditional healers . . . do not condone using body parts and would not harm anyone to obtain elements for a remedy’. Linda Poon, ‘Can a New Ban on Witchcraft Protect the Albinos of Tanzania?’ NPR (16 January 2015) . However, ‘[t] he Tanzanian State continues to make policy as though all traditional healers are responsible for this form of violence’. Amy Nichols-Belo, ‘“Witchdoctors” in White Coats: Politics and Healing Knowledge in Tanzania’ (2018) 37 Medical Anthropology 722. On this topic, see also Human Rights Watch, ‘“It Felt Like A Punishment”: Growing Up with Albinism in Tanzania’ (9 February 2019) . The issue is not specific to Tanzania. ‘[N]otwithstanding the efforts that have been made to date, challenges remain, including the continuing prevalent belief in dangerous myths and superstitions about persons with albinism’. UN HRC, ‘Harmful Practices and Hate Crimes Targeting Persons with Albinism. Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism’ UN Doc A/HRC/49/56 (4 January 2022). The hate crimes and de-humanizing practices are referenced in the context of “myths”, never properly of traditional cultural heritage. See UN HRC, ‘Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism on her Mission to the United Republic of Tanzania’ UN Doc A/HRC/37/57/Add.1 (20 December 2017) paras 71–73. 17 As regards bridging ICH and human rights, and in particular about the tension between individual and group rights, Lucas Lixinski, Intangible Cultural Heritage in International Law (OUP 2013).

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to what must be protected by national laws. In order to define what is ICH, Article 2 of the 2003 UNESCO Convention also reaffirms the solid, cogent “anchorage” on the deep reason of the international protection of cultural heritage, to be found in the protection of peace and human rights. In other words, in the 2003 UNESCO Convention – dedicated to a kind of cultural heritage that is living, extremely complex and difficult to define – States wanted to be crystal clear with regard to the ratio of protection in the international legal system. On the contrary, up until then, the international convergence on the cultural heritage to be protected was mainly built on the comparison between the elements that were already protected in domestic legal systems. This ratio eschews any relativistic drift and must stay firmly rooted in universal values, hence enhancing their protection, avoiding any risk of inconsistency, even though in any case safeguarding is possible only if each of the States Parties shall ‘identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations’.18 4 The Safeguard Clause in the 2005 UNESCO Convention The idea of introducing in the 2005 UNESCO Convention a clause concerning compliance with human rights was first expressed at the second meeting of the independent experts who were drafting the preliminary text of the Convention.19 From the beginning, it was drafted as the “twin” of the text in the clause included in the 2001 Universal Declaration on Cultural Diversity.20 In the following debates, until the adoption of the final text of the Convention, there was no substantial discussion about it being solemnly (or rather, peremptorily) formulated as a safeguard clause. Nevertheless, some reasoning was offered as to how the reference to human rights should be expressed, and whether/how the UDHR or other international law sources should be explicitly named. This is the final text: 1. Principle of respect for human rights and fundamental freedoms. Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. 18 2003 UNESCO Convention, Article11(b). 19 Toshiyuki Kono, ʻObjectives and Guiding Principlesʼ, in Sabine Schorlemer and Peter-Tobias Stoll (eds) The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Explanatory Notes (Springer 2012) 100. 20 UNESCO, ‘Universal Declaration on Cultural Diversity’ (2 November 2001) (hereinafter: 2001 UNESCO Declaration). In the last part of Article 4, the Declaration includes a clause that is identical to the one later included in the 2005 UNESCO Convention, exception made for the explicit mention of the UDHR.

‘No One May Invoke’ 73 The last part of the article is the safeguard clause, much more problematic, in terms of anticipating possible conflicts, than the wording included in the 2003 UNESCO Convention. Again, its inclusion seems to indicate the foreseen possible prospect of an antinomy, despite having just stated that cultural diversity cannot be protected if human rights are not guaranteed. In addition, the wording seems to suggest a subordination clause (in the sense that if an antinomy between the protection of human rights and the protection and promotion of cultural diversity were to be envisaged, the conflict would have to be resolved by giving precedence to human rights), rather than a clarification with reference to the object of the protection provided by the convention instrument, as was the case in the previous 2003 UNESCO Convention.21 What purpose could such a subordination clause have, then, considering that immediately beforehand it was made clear that without the guarantee of human rights it would not be possible to promote and protect cultural diversity, thus in fact explicitly endorsing the idea of a mutual functionality between human rights and cultural diversity? The articulation of human rights norms in instruments often points a way forward in resolving perceived conflicts; however, there may be no hierarchy or “priority” of human rights norms, as the international community has repeatedly reiterated that ‘all human rights are universal, indivisible and interdependent and inter-related’, though in some treaties, under certain conditions, temporary derogations to some human rights – and not to others – are possible.22 5 A Clause Inspired by the Wording of a Non-binding Act, Then Taken Up in Another Non-binding Act The fact that the 2005 UNESCO Convention deals with the almost indefinable universe of “cultural expressions” – instead of cultural heritage – made the solution adopted in the 2003 UNESCO Convention to limit the object of the protection of the treaty practically impossible to pursue in this case. The safeguard clause inserted in the second part of Article 2.1 of the 2005 UNESCO Convention reproduces almost literally the text of a similar provision inserted in the 2001 UNESCO Declaration. Then, in 2009, the CESCR used the same wording in its General

21 In that case, in fact, the antinomy does not arise at all because, by definition, what is against human rights is not the object of protection under the 2003 UNESCO Convention (see supra, section 3). 22 On the inter-connectedness of all human rights, Ana Filipa Vrdoljak, ‘Human Rights and Illicit Trade in Cultural Objects’, in Silvia Borelli and Federico Lenzerini (eds) Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law (Nijhoff 2012) 126. As for provisions offering potential for derogation, see: International Covenant on Civil and Political Rights (New York, 16 December 1966) entered into force 23 March 1976 999 UNTS 171, Article 4; Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950) entered into force 3 September 1953 ETS No 005, Article 15. On these topics, relating to different kinds of emergencies – other than war – Emanuele Sommario, ‘Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters’, in Andrea de Guttry et al (eds) International Disaster Response Law (TMC Asser Press 2012) 327.

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Comment No 21 on Article 15 of the International Covenant on Economic, Social and Cultural Rights.23 In the context of those non-binding acts, this solemn affirmation can be understood as a call for consistency in the sense of the necessary integrated interpretation and implementation of human rights, urged by the broad meaning of the “culture” referred to.24 Since these are not provisions that give rise to rights and obligations, the contradiction remains appreciable mainly on a “merely” logical rather than strictly legal level or, better, can be explained as behavioural guidance on how to interpret and implement obligations under other sources. Indications on the interpretation are explicitly included in some treaties, among which are the ICESCR25 and the Faro Convention. It is interesting to note that the second part of the clause inserted in the Faro Convention is very similar to the clause inserted in the 2005 UNESCO Convention. However, the first part affirms that ʻNo provision of this Convention shall be interpreted so as to’ instead of ʻNo one may invoke the provisions of this Convention in order to’. Well, the central point of this analysis is the thesis that, in reality, the two provisions have the same meaning, as instructions for a coherent interpretation and implementation of all human rights through an integrated approach. This despite the unfortunate wording of the clause inserted in the 2005 UNESCO Convention, appearing to provide for the subordination of the protection and promotion of the diversity of cultural expressions to human rights on whose guarantee it is based. 6

Other Provisions of the 2005 UNESCO Convention Aimed at Preventing Conflicts with International Obligations under Other Treaties

During the negotiation of the 2005 UNESCO Convention, the real fear of antinomies in the name of the protection of cultural diversity was about the relationship 23 CESCR, ‘General Comment No 21 (nt. 3) para 18. See also International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966) entered into force 3 January 1976 999 UNTS 171 (hereinafter: ICESCR). 24 The broadness, complexity and sensitivity of the concept of “culture” have, in fact, been the crucial challenges in the transformation of this concept into legal human rights norms. Yvonne Donders, ‘Cultural Diversity and Cultural Identity in Human Rights’ in Andreas J. Wiesand, Kalliopi Chainoglou and Anna Sledzinska-Simon (eds) Culture and Human Rights: The Wroclaw Commentaries (De Gruyter 2017) 23. Although the division between the different categories of human rights – civil, political, economic, social and cultural – does not imply that one category of human rights is more important than another, practice shows that the different categories of human rights have not developed at an equal pace, and cultural rights have received less attention. One of the main reasons for their underdevelopment is the vagueness of the term ‘culture’. Yvonne Donders, ‘Cultural Rights in the Convention on the Diversity of Cultural Expressions: Included or Ignored?’ in Toshiyuki Kono and Steven Van Uytsel (eds) The UNESCO Convention on the Diversity of Cultural Expressions: A Tale of Fragmentation of International Law? (Intersentia 2012) 165. 25 ICESCR, Articles 5.1 and 13.4.

‘No One May Invoke’ 75 with obligations relating to trade liberalization. In fact, the cultural goods, services and activities referred to in the 2005 UNESCO Convention declaredly have a dual nature.26 This is the reason why the provisions of Article 20 were the subject of strenuous and difficult negotiation, which saw for some time the persistence in the draft text of two opposing alternative options, a primacy clause and a subordination clause. The text as finally adopted was, in fact, inspired by a presentation given, at the request of the States during the negotiations, by the Legal Adviser of UNESCO. The Adviser referred to the possibility of using an approach which emphasized “mutual compatibility” between international instruments, in the sense that Parties would apply or interpret these instruments in a mutually supportive manner in order to avoid disputes or paralyzing conflicts between the instruments concerned. Following the debate at the second session of the Intergovernmental Meeting the Chairperson, Prof. Kader Asmal, concluded that a new proposal, which would focus on the mutual complementarity of international instruments, should be drafted. The proposal was drafted, and the text continued to be the subject of an intense debate.27 In the end, the text as adopted is neither a primacy nor a subordination clause and appears to be a lesson in the contextual interpretation of treaties in good faith:28

26 2005 UNESCO Convention, Preamble (‘Being convinced that cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value’). 27 Abdulqawi A. Yusuf and Yuki Daijo, ‘Shepherding the Conclusion of Complex International Conventions: The Role of the Chairperson in the Negotiations on Cultural Diversity’ in Tiyanjana Maluwa (ed) Law, Politics and Rights Essays in Memory of Kader Asmal (Brill 2013). 28 This solution took the place of the two alternative formulations of Article 19 first included in the 2005 UNESCO Convention draft on the subject of the convention’s relationship with other treaties. The Legal Adviser in his presentation made it clear that a first possibility was not to include in the convention any clause on the relationship to other treaties, since in any case it would be regulated under general international law, which is reflected in particular under Article 30 the Vienna Convention on the Law of Treaties, initially titled “Application of Treaties Having Incompatible Provisions” in its 1964 draft. One of the two options contained in Article 19 of the preliminary draft was that the convention would not affect or should not be interpreted to affect rights and obligations of parties under existing agreements. The second option, whose source of inspiration was clearly Article 22.1 of the 1992 UN Convention on Biological Diversity, was that the convention may affect rights and obligations under existing agreements if the enjoyment of those rights and the observance of such obligations would cause serious damage or threat to the diversity of cultural expressions. In his presentation, the Legal Adviser included various other possibilities or options for the formulation of such clauses, setting apart “extremes” from “in-betweens” and ending up by introducing “simple compatibility” and “mutual compatibility” clauses. His conclusion was that ‘whatever formula may eventually be selected by parties to a convention to ensure overall consensus; in those cases where a follow-up mechanism is established, it is not the conflicts or contradictions between the provisions of various conventions that is usually emphasized, but the mutual supportiveness of such conventions. Whenever a meeting of States Parties to a convention has to deal with the application of successive conventions, experience indicates that State Parties are called upon to implement such conventions in a mutually supportive manner in order to avoid disputes and paralysing conflicts between

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Federica Mucci Article 20 Relationship to other treaties: mutual supportiveness, complementarity and non-subordination 1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention. 2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.

In this regard, it should be noted that the requirement of coherence in the international legal order finds expression first and foremost through general principles; legal techniques and subordination clauses are helpful, but they could never resolve conflicts related to the foundations and objectives of the different instruments. In this case, Article 20, despite the undeniable internationally recognized “dual nature” of cultural goods, services and activities, expresses a positive and conciliatory approach between the different spheres of international obligations assumed, pertaining to the commercial and cultural nature at the same time of these “assets”. In view of this, it is even stranger that, on the other hand, the clause intended to prevent antinomies between the Convention and international human rights protection obligations is expressed through such a peremptory and confrontational approach, seemingly one of subordination, despite the fact that the protection of cultural diversity is avowedly “of the same nature” as the protection of human rights. 7 A Very Broad “Cultural Qualification” That Demands the Explicit Reference to Consistency in the Application of International Standards It is no coincidence that the question of compatibility with the international protection of human rights comes into such sharp relief, particularly in the two most recent conventions concluded at UNESCO in the cultural sphere. They, in fact, considerably broaden the margin of appreciation of the “cultural qualification” that rises to the level of specific international legal protection. In

conventions to which some of those States are parties’. UNESCO, ‘Report of the First Session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention on the Protection of the Diversity of Cultural Content and Artistic Expressions’ CLT/CPD/2004/CONF.201/9 (November 2004) Annex II, para 17.

‘No One May Invoke’ 77 the case of the elements of ICH protected under the 2003 UNESCO Convention, the extension to “living heritage” apparently does not detach us from the idea of an “object of protection” whose cultural specificity is absolutely prevalent, if not exclusive. However, it deprives us of the possibility of focusing its definition on an element that is by its nature “objectified”, ideally separable – albeit artificially, since its “cultural” nature depends on it – from the conditions and modes of life of people. In the case of ‘cultural goods, services and activities’, the extension to elements of a declared “dual nature” (commercial and cultural) requires an evaluative approach to the main nature of each specific policy, in order to know whether the measure to be adopted is appropriate in the light of the competent set of international rules applicable to it (developed within UNESCO or the WTO, depending on whether the cultural or commercial nature of the policy in question prevails). It follows that both Conventions are necessarily structured to guide and evaluate state policies of various kinds, which do not primarily have anything to do with cultural heritage as expressed by material objects inherited from the past, but rather with human activities, both collective and individual. Although the protection of material objects according to universal standards also faces very complex challenges, not only from a practical point of view, but also from a theoretical one (just think of the universal convergence on the concept of the “authenticity” of World Heritage sites), it is evident that the impossibility of focusing the protection regime primarily on material objects raises these political and intellectual “challenges” to the highest level, at the same time making it almost impossible to clearly define the scope of application of the convention regimes in a general and abstract manner.29 In the light of these considerations, it is not surprising that in these last two conventions the need was felt to explicitly set out the relationship with other sources of international law, in particular those on the protection of human rights, given that the object of both conventions is not one or more categories of material objects, but are measures to safeguard/protect and promote human activities closely related to cultural identity (2003 UNESCO Convention) and the creation, production, dissemination, distribution of and access to cultural activities, goods and services (2005 UNESCO Convention). It is striking, however, that in the 2005 UNESCO Convention the two different solutions adopted in the same treaty to prevent antinomies in the international legal system, read in the light of an awareness of the structural peculiarities of the

29 This resulted in both cases in a strenuous negotiating effort to define the object of protection of the two Conventions. Despite the undeniable similarities in the structure of the treaty and in its organs (Committee) and instruments (lists and consultative bodies), for the reasons mentioned here, the 2003 UNESCO Convention is very different from the 1972 WHC. This difference, on closer inspection, immediately becomes apparent in particular with reference to the nature of the lists and of the consultative/advisory bodies, but above all in terms of the effectiveness of the suivi by the Committee, i.e., the actual relevance of the international monitoring carried out by the Committee on the elements included in the lists.

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international legal system, remind us that its coherence cannot be made true by a non-existent centralized judicial function. In the phase of establishing the law, this coherence derives from reference to certain common parameters,30 strengthened by mutual listening between the courts, as well as by correct behaviour on the part of all the subjects, both in negotiating new treaties and in the interpretation and application of already existing norms. In particular, Article 20 of the 2005 UNESCO Convention is undoubtedly the clearest manifestation of rapprochement techniques seeking to ensure compatibility between different treaties in a supportive (“positive”) sense.31 Wanting to grasp its positive aspects, even in spite of the peculiar wording of the clause that is the object of these considerations, there is an incontrovertible underlining of the fact that compatibility between different treaties must be achieved through the already mentioned two ways to make true the abstract coherence of the international legal order: that is to say, on the one hand, negotiation and, on the other hand, the interpretation of norms. This, in fact, is true also for the mandatory protection of fundamental human rights, sometimes referred to as the “material constitutional framework” of the international legal order, and therefore the ultimate key to its coherence.32 Only through this approach can the possible negative consequences of the “fragmentation” be prevented, excluding antinomies and enhancing the effectiveness of international law – all the greater, the more the relationship between the sources produces synergies and not antinomies. Here, then, are the indications on the “mutual supportiveness” of international treaties and here, too, is the true meaning – more operational than axiomatic – of the apparent contradiction in Article 2.1 of the 2005 UNESCO Convention; in fact, a call for good faith in the execution of convention obligations, taking into account the broader framework of all the obligations in force. This reminder, in its peremptory formulation, is undoubtedly intended to emphasize the fundamental and inderogable nature of the principles on the protection of human rights, though perhaps not doing so quite in the best way, since it seems to start from the assumption of an unreasonable hypothesis of conflict between measures adopted in the name of the diversity of cultural expressions and the universal protection of human rights. As we have seen, such drafting in acts which are not directly aimed at giving rise to new rights and obligations, despite the literal tenor of the clause, can be

30 In the first instance, jus cogens, although it does not seem to be concretely used by the courts as a hierarchical way of resolving antinomies. Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 EJIL 265, 273. 31 Anne Peters, ‘The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization’ (2017) 15 IJCL 671, 688. It is indeed very strange that this clause, the result of such a complex and significant negotiation process, is not mentioned at all in the ILC Report on the Fragmentation of International Law. ILC, ‘Fragmentation of International Law. Report of the Study Group of the ILC’ UN Doc A/CN.4/L.682 (13 April 2006). 32 For a universality and consistency that doesn’t imply “constitutionalization”, Simma (nt. 30) 268, 297.

‘No One May Invoke’ 79 more easily understood as an indication aimed at applying an already established legal framework, in which an integrated approach to the protection of all human rights is already assumed, which also focuses on the enhancement of cultural heritage.33 As a clause inserted in the operative part of a treaty it seems instead to indicate the need to complete the legal framework by introducing considerations that misleadingly resemble a subordination clause.34 8 The Cultural Dimension of Sustainable Development Goes Hand in Hand with a New, Broader and More Dynamic Understanding of Cultural Heritage By its very nature, sustainable development, which is realized in the construction of synergies, calls for the projection into the future of the international community and its needs also in relation to the cultural dimension, hence to the intergenerational perspective of rights. This perspective in the end is nothing more than the natural result of a deepening of the true meaning of these rights, only possible through a carefully contextualized reading of them, aimed at synthesizing all the interests at stake, overcoming any conflicting approach and thus constantly preventing antinomies. The reference to sustainable development in the 2003 and 2005 UNESCO Conventions naturally stems from the extension of the international protection to a much broader legal concept of culture. This is precisely because of the close interconnection of the “living cultural heritage” and cultural creativity with the international protection of human rights, which, on the one hand, ontologically relies on the “reconciliatory principle” of sustainable development,35 and, on the other hand, offers an initial, concretely operational declination of it in the sense of the “cultural dimension” of sustainable development.

33 See supra section 5. 34 As if the fear of relativistic drifts in the protection of universal human rights could be averted just through a subordination clause, whereas the solution to this problem is far more complex than that. One of the main issues at stake refers in particular to the evaluation of cultural elements for the socalled culturally motivated crimes. See, among others, Jeroen Van Broeck, ‘Cultural Defence and Culturally Motivated Crimes (Cultural Offences)’ (2001) 9 ECJ 1; Sara De Vido, ‘Culturally Motivated Crimes against Women in a Multicultural Europe. The Case of Criminalization of FGM in the 2011 COE Istanbul Convention’, in Lauso Zagato and Marilena Vecco (eds) Citizens of Europe. Culture e diritti (Edizioni Ca’ Foscari 2015). On these themes, see also nt. 16 above. It must never be forgotten, on the other hand, that a “culturally careful approach” to human rights is necessary to grant real protection – and from this follows the inappropriateness of a general subordination clause. On the “culturally careful approach” to human rights, see Federico Lenzerini, The Culturalization of Human Rights Law (OUP 2014). On the role of the judiciary, and in particular of the European Court of Human Rights, in the ‘recognition of distinctness’, see Massimo Iovane, ‘The Universality of Human Rights and the International Protection of Cultural Diversity: Some Theoretical and Practical Considerations’ (2007) 14 IJMGR 231, 254. 35 Peters (nt. 31) 688.

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The international understanding of what deserves to be subject to a specific protection regime for cultural reasons, and of the very reasons motivating such protection, has undeniably deepened and broadened over time. From “cultural properties” to “cultural heritage” as understood in the 1972 WHC, the step is undoubtedly significant, but it does not yet require detachment from the main focus of protection of a material element, thus definable by its objective characteristics. Therefore, as we have seen, another positive, albeit destabilizing step forward – as far as structural legal consequences are concerned – even before the conclusion of the Faro Convention and the 2005 UNESCO Convention (significantly in the same year), is marked by the 2003 UNESCO Convention, in which “cultural heritage”, although still characterized by its exclusive cultural qualification, being intangible, has focused the scope of the Convention on a wide range of public policies. The result is, on the one hand, an increased difficulty in appreciating the effectiveness of the 2003 and 2005 UNESCO Conventions in terms of compliance with international rights and obligations.36 On the other hand, there is a real “declination”, both theoretical and operational, of the cultural dimension of sustainable development, through the operational guidelines of the two Conventions, but above all through the daily work in the various concrete international cooperation initiatives. It is no coincidence, in fact, that on the official website of the 2003 UNESCO Convention it is possible to “dive” into the ICH as inscribed in the UNESCO lists, relating it directly to the 17 Sustainable Development Goals the international community has set for 2030.37 The accessibility of information on the projects financed by the 2005 UNESCO Convention Fund – all operational examples of the realization of culturally sustainable development – is also carefully edited.38 The “living” and dynamic approach typical of these two conventions strongly calls for an integrated vision of all human rights, imparting a dynamic acceleration

36 For the 1972 WHC, it is possible to “measure” the degree to which States conform to the recommendations adopted by the Intergovernmental Committee regarding the management of each specific World Heritage site and, therefore, the effectiveness of the dialogical relationship between international protection and state sovereignty. Marco Gestri, ‘The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites: The Venice Case’, in this volume. The 1972 WHC, being in any case focused on the management of sites that are geographically well delimited in terms of core zones and buffer zones despite the adoption of the term “heritage” instead of “properties”, is and still remains primarily focused on “measurable” parameters of objective characteristics of the sites, even if the synergy with other UNESCO conventions and the relevance of the connection of sites with local communities are progressively implemented. For a different opinion on the similarities and differences between the 1972 WHC and 2003 UNESCO Convention, Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 396. 37 UNESCO, ‘Safeguarding our Living Heritage’ . This shows the relationship of the original co-interest between ICH and sustainable development, while with reference to World Heritage sites we relate to the 2030 targets “downstream” of a protection system already primarily based on other parameters. Sabine von Schorlemer, ‘The 2030 Agenda for Sustainable Development: Its Impact on the Implementation of the 1972 World Heritage Convention’, in this volume. 38 UNESCO, ‘IFCD Projects’ .

‘No One May Invoke’ 81 to the concept of cultural heritage, very much in line with the contents of the Faro Convention, and working towards the definition of the cultural dimension of sustainable development. Thus, these conventions are contributing to strengthening the entire UNESCO convention system for the protection of cultural heritage, including the celebrated and highly successful 1972 WHC, in line with the always necessary “functional” approach to the protection of cultural heritage, as an asset protected for its human and not merely material value, hence through an integrated approach to all human rights, with particular regard to cultural rights and to the cultural aspect of all rights.39

39 Tolina Loulanski, ‘Revising the Concept for Cultural Heritage: The Argument for a Functional Approach’ (2006) 13 IJCP 207.

5

Cultural Properties in Outer Space Tullio Scovazzi*

1 A Subject Not Explicitly Regulated by Multilateral Treaties Since the first human-made object impacted on the surface of the Moon – the Soviet spacecraft Luna 2 on 14 September 1959 – it is estimated that there are now more than 100 sites on the Moon hosting traces of human.1 They include the boot prints left on the Moon on 21 July 1969 by Apollo 11 American astronauts Neil Armstrong and Buzz Aldrin, together with objects, such as a plaque (‘Here man first set foot on the Moon, July, 1969. We came in peace for all mankind’) and a silicon disc containing messages of peace from 94 States.2 The lack of atmosphere on the Moon and the absence of human interferences since the last manned expedition – that of Apollo 17 between 7 and 19 December 1972 – has facilitated the preservation of cultural heritage so far. However, the situation is likely to change if new activities, including the exploitation of natural resources, are developed in outer space in the near future.3 For instance, layers of lunar dust, which obscure the surface when a spacecraft lands, are composed of abrasive and adhesive materials (lunar regolith) that can harm the spacecraft and the surrounding environment. The international law regime of outer space is defined by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies;4 the Agreement on the Rescue

* Former professor of international law in the Universities of Parma, Genoa, Milan and Milan-Bicocca (Italy). The author wishes to thank Ms. Marlène Losier for her useful comments. 1 Michelle Hanlon, ‘“Due Regard” for Commercial Space Must Start with Historic Preservation’ (2021) 9 GBLR 130, 138. See more generally Annette Froehlich (ed) Protection of Cultural Heritage Sites on the Moon (Springer 2020). 2 Tahir Rahman, We Came in Peace for All Mankind: The Untold Story of the Apollo 11 Silicon Disc (Leathers Publishing 2008). 3 Michelle Hanlon and Bailey Cunningham, ‘The Legal Imperative to Mitigate the Plume Effect: An “Aggravation and Frustration” that Imperils Our History and Our Future’ (2019) 43 JSL 309. 4 (Washington, Moscow and London 27 January 1967) entered into force 10 October 1967 610 UNTS 205 (hereinafter: Outer Space Treaty). The Outer Space Treaty is today binding for 112 States. DOI: 10.4324/9781003357704-7

Cultural Properties in Outer Space 83 of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space;5 the Convention on International Liability for Damage Caused by Space Objects;6 the Convention on Registration of Objects Launched into Outer Space;7 and the Agreement Governing the Activities on the Moon and Other Celestial Bodies.8 None of the treaties listed above specifically regulates how sites and properties of cultural interest located in outer space should be protected. The Outer Space Treaty, recognizing ‘the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes’,9 sets forth a number of general principles. They include the freedom of exploration and use of outer space,10 the freedom of scientific research,11 the prohibition of national appropriation,12 the prohibition of military uses,13 and, more generally, the principle that the exploration and use of outer space are to be carried out for the benefit and in the interests of all States and are ‘the province of mankind’: The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.14

5 (Washington, Moscow and London 22 April 1968) entered into force 3 December 1968 672 UNTS 119. The Treaty is today binding for 99 States. 6 (Washington, Moscow and London 29 March 1972) entered into force 1 September 1972 961 UNTS 187. The Convention is today binding for 98 States. 7 (New York 12 November 1974) entered into force 15 September 1976 1023 UNTS 15. The Convention is today binding for 73 States. 8 (New York 5 December 1979) entered into force 11 July 1984 1363 UNTS 3 (hereinafter: Moon Agreement). The Moon Agreement is today binding for 18 States. 9 Outer Space Treaty, Preamble. 10 Outer Space Treaty, Article I.2 (‘Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies’). 11 Outer Space Treaty, Article I.3 (‘There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation’). 12 Outer Space Treaty, Article II (‘Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’). 13 Outer Space Treaty, Article IV (‘States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited’). 14 Outer Space Treaty, Article I.1. The expression ‘shall be the province of mankind’ becomes in the French and Spanish official texts of the provision ‘elles sont l’apanage de l’humanité tout entière’

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In terms of the ownership of objects launched into outer space, the Outer Space Treaty provides that: Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.15 The Outer Space Treaty also provides that States parties are bound to conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States parties.16 This provision, combined with Article VIII, could be understood in a broad sense, as implying also the interest of States towards the preservation of the heritage constituted by the traces of their past activities and the prohibition of appropriation or destruction of such heritage by other States. The Moon Agreement introduces into space law the principle of the common heritage of mankind as regards the exploitation of natural resources: 1. The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article . . . 5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement . . . 7. The main purposes of the international regime to be established shall include: (a) (b) (c) (d)

The orderly and safe development of the natural resources of the moon; The rational management of those resources; The expansion of opportunities in the use of those resources; An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.17

and ‘e incumben a toda la humanidad’. It should probably be understood in the sense of “sphere of action”. 15 Outer Space Treaty, Article VIII. 16 Outer Space Treaty, Article IX. 17 Moon Agreement, Article 11. Article 18 of the Moon Agreement, referred to in Article 11.5, relates to a review conference of the Agreement.

Cultural Properties in Outer Space 85 The Moon Agreement includes a provision for the designation of ‘international scientific preserves’: States Parties shall report to other States Parties and to the Secretary-General concerning areas of the moon having special scientific interest in order that, without prejudice to the rights of other States Parties, consideration may be given to the designation of such areas as international scientific preserves for which special protective arrangements are to be agreed upon in consultation with the competent bodies of the United Nations.18 However, it is uncertain whether cultural heritage sites could be qualified as areas ‘having special scientific interest’, as this wording seems more appropriate for natural sites. Moreover, the limited number of parties to the Moon Treaty – in fact, the principle of the common heritage of mankind is not shared by several States, including the major space powers – makes this provision of limited practical use. 2

Relevant Provisions in Other Instruments

By 20 July 2011, the US National Aeronautics and Space Administration (NASA) had already released a set of recommendations to space-faring entities on how to protect and preserve the historic and scientific value of lunar artifacts belonging to the United States government.19 NASA performed analyses on plume and lunar regolith impingement and examined the risk of damage to the Apollo landing sites resulting from future spacecraft descents and surface low-altitude flight mobility. The NASA Recommendations are intended to apply to US artifacts on the lunar surface, including: A. Apollo lunar surface landing and roving hardware; B. Unmanned lunar surface landing sites (e.g. Surveyor sites); C. Impact sites (e.g. Ranger, S-IVB, LCROSS, lunar module [LM] ascent stage); D. USG experiments left on the lunar surface, tools, equipment, miscellaneous EVA hardware; and E. Specific indicators of U.S. human, human-robotic lunar presence, including footprints, rover tracks, etc., although not all anthropogenic indicators are protected as identified in the recommendations.20 The NASA Recommendations address disturbance, understood as a change or perturbation to the site artifacts resulting in loss of historic and scientific processes and information,21 as well as contamination, understood as depositing chemical, 18 Moon Agreement, Article 7.3. 19 NASA, ‘Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of US Government Lunar Artifacts’ (20 July 2011) (hereinafter: NASA Recommendations). 20 ibid 5. 21 ibid 7, para A1–1.

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biological or physical material (surface particulate, non-volatile residue, volatile hydrocarbons, microbial),22 onto artifacts at the heritage site, such that the deposition reduces its historical, engineering or scientific value. Particular measures are recommended for Apollo 11 and Apollo 17 landing sites, which represent the first and the last human missions to the Moon and carry special historical and cultural significance. They are treated as unique, by recommending the exclusion of vehicles and visits to any area inside the sites’ boundaries: Project Apollo in general, and the flight of Apollo 11 in particular, should be viewed as a watershed in human history and humanity. It was the first instance in human history in which emissaries from this planet visited another body in the solar system. It represented the culmination of years of effort, the significant expenditure of life and resources, and the opening of a new age in human history. The site of that first landing requires preservation; only one misstep could forever damage this priceless human treasure.23 On 31 December 2020, the United States adopted the One Small Step to Protect Human Heritage in Space Act,24 based, inter alia, on the following findings: The landing of the Apollo 11 spacecraft and humanity’s first off-world footprints are achievements unparalleled in history, a direct product of the work and perseverance of the more than 400,000 individuals who contributed to the development of the Apollo missions on the shoulders of centuries of science and engineering pioneers from all corners of the world . . . The landing of the Apollo 11 spacecraft was made on behalf of all humankind, and Neil Armstrong and Buzz Aldrin were accompanied by messages of peace from the leaders of more than 70 countries. The lunar landing sites of the Apollo 11 spacecraft, the robotic spacecraft that preceded the Apollo 11 mission, and the crewed and robotic spacecraft that followed, are of outstanding universal value to humanity. Such landing sites – (A) are the first archaeological sites with human activity that are not on Earth; (B) provide evidence of the first achievements of humankind in the realm of space travel and exploration; and (C) contain artifacts and other evidence of human exploration activities that remain a potential source of cultural, historical, archaeological, anthropological, scientific, and engineering knowledge.25 22 ibid 8, para A1–7. 23 ibid 17. 24 One Small Step to Protect Human Heritage in Space Act, Pub. L. No 116–275, § 1694 (2020) (hereinafter: the Act). 25 ibid Sections 2(a)(3), 2(a)(5), 2(a)(6) and 2(a)(7).

Cultural Properties in Outer Space 87 Particularly important is the finding that the Apollo 11 site is of outstanding universal value to humanity. The Act directs NASA to add the above-mentioned NASA Recommendations as a condition or requirement into contracts, grants, agreements, partnerships or other arrangements pertaining to lunar activities carried out by, for, or in partnership with NASA, to inform other relevant federal agencies of the Recommendations and to encourage the use of best practices, consistent with the recommendations, by such agencies. A provision on cultural heritage in outer space can be found in the Artemis Accords, that is, the Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets and Asteroids for Peaceful Purposes,26 which on 13 October 2020 were signed by a number of States (Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, the United Kingdom and the United States; Bahrain, Brazil, Colombia, France, Israel, Mexico, New Zealand, Poland, Romania, Saudi Arabia, Singapore, South Korea and Ukraine joined the Accords later). This instrument is not a treaty, as is also implied in one of its provisions.27 Rather it is a “political commitment” which establishes ‘a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploitation and use of outer space’.28 The State signatories of the Accords ‘note that that the utilization of space resources can benefit humankind by providing critical support for safe and sustainable operations’29 and ‘emphasize that the extraction and utilization of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty’.30 This statement – which seems questionable in light of the international outer space regime – is in line with the present policy of the United States and some other countries to support the public and private recovery and use of resources of outer space.31 Even more

26 The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets and Asteroids for Peaceful Purposes (13 October 2020). 27 Artemis Accords, Section 13.2 (‘The Government of the United States of America will maintain the original text of these Accords and transmit to the Secretary-General of the United Nations a copy of these Accords, which is not eligible for registration under Article 102 of the Charter of the United Nations, with a view to its circulation to all the Members of the Organization as an official document of the United Nations’). 28 ibid Section 1.1. 29 ibid Section 10.1. 30 ibid Section 10.2. 31 Cf United States Commercial Space Launch Competitiveness Act, Pub. L. 114–90 (2015). It provides that the President shall ‘facilitate commercial exploration for and commercial recovery of space resources by United States citizens’ and ‘promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference’. ibid Sections 51302(a)(1) and 51302(a)(3). It also provides that ‘a United States citizen engaged in commercial recovery of an asteroid resource or a space resource . . . shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations by the United States’. ibid Section 51303.

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questionable is the compatibility of the Artemis Accords with the Moon Agreement, so far as the question of exploitation of natural resources is concerned.32 In any case, in the field of outer space cultural heritage, the Artemis Accords aim at preserving significant historical sites and at developing international practices and rules to this purpose: 1. The Signatories intend to preserve outer space heritage, which they consider to comprise historically significant human or robotic landing sites, artifacts, spacecraft, and other evidence of activity on celestial bodies in accordance with mutually developed standards and practices. 2. The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to preserving outer space heritage.33 3 Tentative Models for a Future Agreement The short review carried out above shows that there is a desire and some prospects to develop in the future, within the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS) or in another appropriate fora, a regime for the protection of cultural heritage in outer space.34 It is evident that a workable regime could be envisaged only on a global basis with the support and the participation of the great majority of States, both active and non-active in outer space activities. As clearly stated in the Outer Space Treaty – and not explicitly questioned by any State to date – the exploration and use of outer space must be carried out for the benefit and in the interests of all countries. While outer space has its own characteristics, it is interesting to elaborate on some useful ideas that could be drawn from existing multilateral treaties applicable to the protection of cultural heritage.35 3.1

The World Heritage Convention

The first instance is the World Heritage Convention,36 concluded within the framework of UNESCO. In itself, the 1972 WHC cannot be applied to outer space, as 32 While the United States is not a party to the Moon Agreement and takes the position that it does not reflect customary international law, it seems questionable how some States parties to the Moon Agreement could have signed the Artemis Accords which are in full contradiction with the former. 33 Artemis Accords, Section 9. 34 For instance, in the non-governmental field, the American non-profit organization For All Moonkind, which in 2022 was granted consultative status with the ECOSOC, has the mission to ensure that ‘the six Apollo lunar landing sites and similar sites in outer space are recognized for their outstanding value to humanity and consequently preserved and protected for posterity as part of our common human heritage’. 35 Another model is based on the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1. Lucas Lixinski, MM Losier and Hanna Schreiber, ‘Envisioning a Legal Framework for Outer Space Cultural Heritage’ (2021) 45 JSL 1. 36 Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC).

Cultural Properties in Outer Space 89 protected immovable properties must be situated ‘in the territory’ of a State party.37 This excludes all areas beyond national jurisdiction, such as the high seas,38 Antarctica (at least for those States that do not have claims on sectors of the Antarctic continent) and, even more so, outer space. It is, however, important that the 1972 WHC moves from the general assumption that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.39 The international community as a whole – and not only the State on whose territory the heritage is located – has a duty to protect the cultural or natural properties of “outstanding universal value” listed under the 1972 WHC:40 Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage . . . is situated, and without prejudice to property rights 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 of the international community as a whole to co-operate.41 The involvement of the international community in the protection of the heritage is an idea that should also be retained in the future regime for the protection of cultural heritage in outer space. Given its geographical scope of application, in the 1972 WHC the interest of the international community is carefully balanced with the interest of the territorial State. Any proposal for the inclusion of a property on the World Heritage List established by the Convention can only be presented by the territorial State, together with an appropriate management plan or other documented management system. However, the decision to include the property on the list is taken by the World Heritage Committee (WHC). This body represents the general interest of all the States parties,42 is entrusted with the monitoring of the state

37 38 39 40 41 42

Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008). 1972 WHC, Articles 3 and 4. For the attempt to enlarge the application of the World Heritage Convention to the high seas, David Freestone et al, World Heritage in the High Seas: An Idea whose Time Has Come (2016) World Heritage Reports No 44. 1972 WHC, Preamble. Notably, one of the listed properties – the “Ngorongoro Conservation Area” (Tanzania) – also includes early hominid footprints, dating back 3.6 million years. 1972 WHC, Article 6.1. Even if members of the WHC are representatives of States parties, the Operational Guidelines for the implementation of the World Heritage Convention provide that ‘Committee decisions are based on objective and scientific considerations, and any appraisal made on its behalf must be thoroughly

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of conservation of World Heritage properties,43 and is empowered to withdraw a property from the list if it has lost its outstanding universal value.44 Also useful seems the idea to establish two lists – the World Heritage List and the List of World Heritage in Danger – on which specific properties are inscribed. The first list grants visibility to the heritage and its importance and the second contributes to mobilizing funds and technologies for international assistance, if there is a need for any intervention for the preservation of the heritage. 3.2

The Law of the Sea Instruments

Article 149 of the UN Convention on the Law of the Sea specifically deals with the cultural heritage found in the so-called Area, that is the seabed and ocean floor beyond the 200-mile limit of national jurisdiction.45 It provides that all objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin. This provision appears devoid of details that could ensure its practical application. However, it does embody two promising ideas. First, Article 149 shows a preference for uses of archaeological and historical objects that promote the ‘benefit of mankind as a whole’. Private interests, such as the disposal of the objects for trade and personal gain, are given little weight, if any. Second, some categories of States which have a link with the objects, namely, the State of cultural origin, the State of historical and archaeological origin, the State or country of origin tout court, are given preferential rights, although Article 149 does not specify either the extent of these rights or the manner in which they should be harmonized with the concept of ‘benefit of mankind as a whole’. The Convention on the Protection of Underwater Cultural Heritage, concluded within the framework of UNESCO, specifically relates to a kind of cultural heritage, both movable and immovable, that can also be located in remote areas beyond national jurisdiction, such as the sea-bed of the high seas.46 It tries to implement the two promising ideas contained in the UNCLOS.

43 44 45 46

and responsibly carried out. The Committee recognizes that such decisions depend upon: a) carefully prepared documentation; b) thorough and consistent procedures; c) evaluation by qualified experts; and d) if necessary, the use of expert referees’. WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) para 23. ibid Part IV. ibid para 9. (Montego Bay 10 December 1982) entered into force 16 November 1994 1833 UNTS 3 (hereinafter: UNCLOS) Article 149. (Paris 2 November 2001) entered into force 2 January 2009 2562 UNTS 3 (hereinafter: Underwater Convention). Roberta Garabello and Tullio Scovazzi (eds) The Protection of the Underwater Cultural Heritage: Before and after the 2001 UNESCO Convention (Brill 2003).

Cultural Properties in Outer Space 91 The Underwater Heritage Convention applies to all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.47 While not entering into the question of ownership over the relevant heritage, the Underwater Convention provides that ‘States Parties shall preserve underwater cultural heritage for the benefit of humanity’.48 In particular, Underwater cultural heritage shall not be commercially exploited. The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.49 Similar principles could be established also for cultural heritage in outer space. All States parties are under an obligation to protect underwater cultural heritage found beyond national jurisdiction,50 and to take all practicable measures to prevent any immediate danger to the relevant heritage, whether arising from human activity or any other cause, including looting.51 Any State Party may declare to the Director-General of UNESCO its interest in being consulted on how to ensure the effective protection of the relevant heritage. However, such a declaration must be based on a verifiable link with the heritage concerned,52 particular regard being paid to the preferential rights of States of cultural, historical or archaeological origin.53 The States Parties having declared an interest are invited by the UNESCO Director-General to consult on how best to protect the heritage and to appoint a coordinating State,54 charged with implementing measures of protection agreed by the consulting States and to issue all necessary authorizations for such agreed measures.55 The coordinating State is bound to act for the benefit of humanity as a whole, on behalf of all States parties.56 A similar machinery could be envisaged also for cultural heritage in outer space, especially in cases where more than one State is linked with the heritage and is

47 48 49 50 51 52 53 54 55 56

Underwater Convention, Article 1.1.(a). ibid Article 2.3. ibid Article 2.7 and Annex, Rule 2. ibid Article 11.1. ibid Article 12.3. The Underwater Convention does not define the concept of a “verifiable link”. Underwater Convention, Article 11.4. ibid Article 12.2. ibid Article 12.4. ibid Article 12.6.

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interested in ensuring its preservation. The State having the most direct link, in particular the State of registration of a spacecraft, would be entitled to exercise the role of coordinating State. 3.3

The Antarctic Instruments

If the schemes of protection described above seem too complex, a simpler model can be found in another instrument which is applicable in remote areas, that is Annex V to the Protocol on Environmental Protection to the Antarctic Treaty.57 Specially protected areas in Antarctica can be designated to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research.58 In particular, any State party to the Protocol may propose a site or monument of recognized historic value for listing as a Historic Site or Monument. The proposal for listing is submitted to the Antarctic Treaty Consultative Parties.59 If approved, the consequence is that Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.60 4

Concluding Remarks

As the exploitation of economic resources in outer space has not yet taken place, no concrete problems of sustainable development of cultural heritage have occurred so far. It is important that the question of preservation of cultural heritage located in outer space is taken into consideration in a timely fashion as soon as new rules are being elaborated – hopefully at the world level – on activities directed at the utilization of space resources. Inspiration could be drawn from a number of concepts and tools used in some existing international treaties, which are already applicable to the protection of cultural heritage. In this regard, particularly promising seem concepts such as the interests of the international community, if not humankind, as a whole; the preferential position of States having a link with the heritage; the prohibition of commercial exploitation; and the drawing of a list of relevant properties.

57 (Madrid 4 October 1991) entered into force 14 January 1998 2941 UNTS 9, Annex V (Area protection and management). 58 ibid Article 3.1. 59 ibid Article 8.2. The list includes 74 entries so far. 60 ibid Article 8.4.

6

The Urban-Rural Divide and the Contribution of Cultural Heritage to Sustainable Development Francesco Francioni*

1

Introduction

Congratulations to Laura Pineschi for the organization of this interesting symposium on cultural heritage and sustainable development. I have accepted willingly the request to provide a contribution to this volume because this theme permits us to explore the less familiar face of the legal concept of sustainability. Culture and cultural heritage have not played a prominent role in the elaboration of the 17 Sustainable Development Goals (SDGs) adopted in 2015 by the United Nations General Assembly (UNGA) as a blueprint to achieve, by 2030, a future of environmental, economic and social sustainability.1 And yet, it is difficult to overlook the importance of culture and cultural heritage as a cross-cutting dimension of sustainable development processes. Culture conditions a broad spectrum of public policies, from education, to poverty reduction through the development of skills enabling people to obtain quality jobs, to the pursuit of social justice and inclusion.2 On the other hand, it would be unrealistic to think that, in a world increasingly strained by cultural conflicts, which often result in forms of violent extremism and even in war, the concept of sustainable development would remain confined to the environmental and socio-economic dimensions, without the inclusion of culture as an essential element of human development, sustainability and even of human security. In this presentation I propose to examine the role of cultural heritage in sustainable development from a dual perspective: that of urban cultural heritage and that of the heritage of the rural or extra-urban world. There are two motives for this choice. The first is the city of Parma itself, the venue of the symposium at the origin of this book and the cultural capital of Italy for 2021. Parma represents a territory * Professor Emeritus of International Law at the European University Institute, Florence (Italy). 1 UNGA, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda). 2 UNESCO, ‘Inter-Agency Platform on Culture for Sustainable Development’ . Last access to all links mentioned in this chapter: 3 February 2023. For literature, see also Francesco Francioni, ‘Global Justice, Equality and Social Inclusion: What Kind of ‘Modernization’ of International Law?’, in Riccardo Pisillo Mazzeschi and Pasquale De Sena (eds) Global Justice, Human Rights and the Modernization of International Law (Springer 2018) 225–239. DOI: 10.4324/9781003357704-8

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that combines, at a level of excellence, examples of urban cultural heritage and examples of rural heritage in its countryside. For the first, it is sufficient to think of the memories of the Roman age, the monuments of the communal period, such as the Duomo and the Baptistery with its sculptural decorations by Benedetto Antelami, as well as the paintings of the Renaissance and of the Baroque epoch. For the second, we have outstanding examples of built heritage in the wonderful Reggia di Colorno in Parma’s countryside, and of an abundance of intangible heritage in the musical tradition of Italian Opera, embodied in the immortal works of Giuseppe Verdi, as well as in the excellence of agricultural tradition and food culture that has made Parma the “food valley” famous all over the world. The second reason for the choice of this dual perspective goes beyond the character of the place and concerns the epistemological viewpoint from which we assess the role of cultural heritage in the promotion of sustainable development. This assessment can be very different depending on whether we consider the cultural heritage of urban centres – the cities – or that which has developed in the wider countryside of the world. Cities and urban communities have had a dominant role in the formal norm creation and application of international law.3 The specific branch of international cultural heritage law also owes its origin and evolution mainly to the concern for the protection of urban monuments, historic centres, religious buildings, architectural ensembles, museums, libraries, archives and other elements of urban cultural heritage. Much less attention has been given to the cultural patrimony of rural communities and of people living and working in extra-urban areas. But today this situation is changing. The concept and scope of cultural heritage is evolving. Now it includes the combination of works of nature and works of humans, which produces the concept of “cultural landscapes” covering primarily areas of the countryside where the invisible hand of humans has shaped the natural conformation of the land.4 It includes intangible cultural heritage (ICH), represented by traditional knowledge, skills, rites and myths, and the value of cultural diversity, which necessarily concerns the people that still live and work in contact with nature in the countryside or the wilderness of the world, including farmers, Indigenous peoples and traditional rural

3 The widely recognized father of the discipline, Hugo Grotius, developed his seminal works, Mare liberum and De iure belli ac pacis in close connection with the early 17th century emergence of Amsterdam as a major urban centre expanding its commercial and political influence on a worldwide scale. His predecessor, Alberico Gentili, contributed to the nascent discipline of international law first as a legal consultant in London and then as regius professor in Oxford. For an assessment of the contribution of these two scholars to the development of international law, see, respectively, Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon & Schuster 2017); Valentina Vadi, War and Peace. Alberico Gentili and the Early Modern Law of Nations (Brill 2020). 4 The concept of cultural landscape has especially been developed within the framework of the 1972 World Heritage Convention and, although it also covers urban landscapes, the great majority of the 119 sites inscribed in the World Heritage List are in the countryside and their cultural value consists of their capacity to reflect important techniques of agriculture, land use, management of biological resources and other aspects of interaction between humanity and the environment, as well as the spiritual association of people with their land. On cultural landscapes, see Amy Strecker, Landscape Protection in International Law (OUP 2018).

Urban-Rural Divide and the Contribution of Cultural Heritage 95 communities. A recognition by UNESCO of the importance of rural cultural heritage can be found in the Operational Directives for the Implementation of the Convention for the Safeguarding of Intangible Cultural Heritage, which requires State Parties to ensure the recognition of, respect for and enhancement of those farming, fishing, hunting, pastoral, food-gathering, food preparation and food preservation knowledge and practices, including their related rituals and beliefs, that contribute to food security and adequate nutrition and that are recognized by communities, groups and, in some cases, individuals as part of their intangible cultural heritage.5 In spite of the increasing complexity and progressive expansion of the concept of cultural heritage in international law, there remains, at a theoretical and practical level, a fundamental imbalance between the attention given by international law to elements of urban cultural heritage and the protection provided to rural and extra-urban heritage. In this chapter, I shall examine how this imbalance underlies the development of international cultural heritage law and how it may thus become a relevant factor also in the analysis of the role that cultural heritage plays in the promotion of sustainable development. 2

Cities, International Law and Sustainable Development

Cities as hubs of socio-cultural organization and economic interaction between people have played a privileged role in the formation and application of international law. Before the historical affirmation of the nation state as a pillar of international law, the cities of ancient Greece (Pòleis) contributed to the early development of treaties of peace, alliance and confederation;6 African cities bordering the Indian Ocean provided the impulse, before their colonization, to the formation of early rules on trade with the Orient;7 the Italian Communes invented the discipline of private international law;8 Maritime Republics in their relations with the Muslim world contributed to the formation of a body of norms on the fair treatment of aliens, through the institution of consular and diplomatic relations;9 and not to mention the role of a city like Amsterdam, with its eminent lawyer-philosopher Hugo

5 UNESCO, Operational Directives for the Implementation of the Convention for the Safeguarding of Intangible Cultural Heritage para 178. 6 Carlo Focarelli, Introduzione storica al diritto internazionale (Giuffré 2013) 64 ff. 7 Catherine Coquery-Vidrovich, The History of African Cities South of the Sahara: From the Origin to Colonization (Markus Wiener Publishers 2005). 8 See the role of Bologna and the development by the school of “Statutists” of a distinction between real statutes and personal statutes. For a masterly reconstruction of the early history of private international law, see David F. Cavers, The Choice of Law Process (MUP 1966) 1–18. 9 Roberto Ago, ‘Pluralism and the Origin of the international Community’ (1977) 3 IYIL 3; Luigi Ferrari Bravo, Lezioni di diritto internazionale (Editoriale Scientifica 1993) 25 ff. For a comprehensive

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Grotius, which became the cradle of the early systematization of the corpus of public international law.10 The birth of the modern nation state, and its consolidation in the 19th century, has certainly reduced the role of urban centres as legal actors of international law. But it is in the era of globalization and, even more so, in the present epoch of post-globalization critique that cities and their urban communities seem to have reclaimed the role of protagonists in international relations and to have reaffirmed their mission as cultural actors next to, and even in place of, the State.11 This phenomenon is due to the increasing infiltration of international law in what used to be the sphere of domestic jurisdiction, with the effect that international law now regulates matters which used to fall into the reserved domain of State sovereignty and to have become of direct concern for urban communities. This is evident in the field of human rights, where cities and local authorities are taking an active role in the promotion and protection of a wide range of human rights, including the rights of women, children and refugees,12 and where, at the same time, cities and local authorities are found to be bearers of international obligations and responsible entities for their breach.13 It is evident also in the field of environmental protection and sustainable development, where cities around the world are at the forefront of mitigation and adaptation strategies to face climate change and other environmental disasters, sometimes even in opposition to inadequate national policies.14 But it is especially in the field of cultural heritage protection that we can find the most important manifestations of the active and independent role of urban communities in the pursuit of the goal of sustainable development. The Organization of World Heritage Cities (OWHC), with its more than 300 members, aims at promoting the implementation of the 1972 Convention concerning the Protection

10

11

12 13

14

historical account, Marino Berengo, L’Europa delle città. Il volto della società urbana europea tra Medioevo ed età moderna (Einaudi 1999). The historical events leading to the dispute between the city of Amsterdam and the Dutch East India Company over who should own the captured Portuguese vessel Santa Catarina were at the origin of the legal opinions formulated by Grotius on that matter and later elaborated in his classical writings Mare Liberum (1609) and De jure belli ac pacis (1625). For a brilliant account of this early conceptualization of international law, see Hathaway and Shapiro (nt. 3) 28 ff. For a detailed analysis of the role of cities in international law, and of the relative limits, see the recent symposium organized by the IYIL on ‘Cities and International Law’. See (2021) 30 IYIL 17, 17–169; Helmut P Aust and Janne E Nijman, Research Handbook on International Law and Cities (EE 2022). UN HRC, ‘Role of Local Governments in the Promotion and Protection of Human Rights: Final Report of the Human Rights Council Advisory Committee’ UN Doc A/HRC/30/49 (7 August 2015. See also, ‘World Charter for the Right to the City’ . This is the practice of the European Court of Human Rights, even if, obviously, the international responsibility for the breach ultimately falls upon the State. See, for instance, Oneryildiz v Turkey, Judgment, ECtHR Application 48939/99 (30 November 2004) (finding a breach of the right to life arising from the mismanagement by the city of Istanbul of a dangerous dumping site in a densely populated area, resulting in an explosion and loss of life and property of the inhabitants). Christine Bakker, ‘Are Cities Taking Center-Stage? The Emerging Role of Urban Communities as ‘Normative Global Climate Actors’’ (2021) 30 IYIL 155.

Urban-Rural Divide and the Contribution of Cultural Heritage 97 of the World Cultural and Natural Heritage15 by encouraging cultural cooperation between cities, the exchange of information and experiences at the regional and international level, and at developing best practices and conservation models for the management and preservation of the cultural heritage of their urban centres.16 The affirmation of autonomy and the international activism of cities in the management of their cultural heritage may present some critical aspects when cities’ initiatives happen to run counter to international commitments undertaken by the relevant national government by treaty or other forms of international obligations. This is the case for Venice, which for years has passively followed an open-door policy to unsustainable mass tourism and of the free passage of gigantic cruise ships in its lagoon, in violation of norms and guidelines of the 1972 Convention. This had led the World Heritage Committee (WHC) on several occasions to threaten the inscription of Venice and its lagoon on the List of World Heritage in Danger for Italy’s failure to ensure the proper conservation of Venice’s outstanding universal value (OUV).17 The activism and sense of autonomy of cities and local governments in the pursuit of their own concept of socio-economic development may turn out to be so radically incompatible with the preservation of the cultural value and integrity of the urban cultural heritage so as to lead to its deletion from the World Heritage List. This has happened so far in two cases. The first concerns the urban landscape of Dresden, inscribed in the World Heritage List in 2004 as the Dresden Elbe Valley and then removed from the same list in 2009 as a consequence of a decision of the municipal authorities to build a modern motorway bridge across the Elbe River, an action which was judged by UNESCO to destroy the OUV of the site.18 The second case concerns the city of Liverpool, which was also removed from the World Heritage List in 2021 because of the extensive urban development of its waterfront

15 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). The Convention is in force for 194 States Parties. 16 The OWHC was created in 1991 following the first meeting of World Heritage Cities which took place in Québec (Canada), officially founded on 8 September 1993 in Fez (Morocco). It represents ‘a collective intelligence on all issues related to the urban management of a World Heritage property and connects with more than 300 cities having on their territory a site inscribed on the UNESCO World Heritage List’. The cities are represented in the OWHC by their mayor, with the active participation of elected municipal officials and heritage managers. OWHC, ‘All About OWHC’ . 17 For the reiterated threat by the WHC to inscribe Venice and its Lagoon on the List of World Heritage in Danger, WHC, ‘Venice and its Lagoon (Italy)’ WHC-14/38.COM/16 (7 July 2014) 79; WHC, ‘Venice and its Lagoon (Italy)’ WHC/16/40.COM/19 (15 November 2016) 122, para 10; WHC, ‘Venice and its Lagoon (Italy)’ WHC/21/44.COM/18 (31 July 2021) 141–143 (declining to inscribe Venice on the List of World Heritage in Danger on account of the last-minute adoption by Italy of legislation prohibiting access and transit in the Venice canals of the contested large cruise ships). See Law Decree No 103 of 20 July 2021. Further on this case, Marco Gestri, ‘The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites: The Venice Case’, in this volume. 18 WHC, ‘Dresden Elbe Valley (Germany)’ WHC-09/33.COM/20 (20 July 2009) 43–44.

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with its irreversible impact on the OUV of the site.19 It is interesting to note that, especially in the second case, the national government (the United Kingdom) was firmly opposed to the deletion of the city from the World Heritage List, on the basis of the argument that the urban development criticized and condemned by UNESCO was in fact an improvement of the city and contributed to the sustainable development of the local population. In contrast to these cases, the autonomy of cities and their role as independent actors in the pursuit of the sustainable development of their urban cultural heritage may also spur the adoption of protective measures that go beyond the standards adopted at the national level. In this case, local protective measures may run counter to obligations undertaken by the State in other fields of international relations. An example of this is offered by the municipal legislation adopted by the city of Florence, which required the use by local retailers of products and services typical of the local tradition and local crafts in order to safeguard the integrity and continuity of the local living culture and the authenticity of the public space surrounding the historic centre. This restrictive legislation was a belated response to the threat posed by uncontrolled mass tourism, the increasing financialization of the housing resources in the urban centre, the pressing commercial interests and their negative impact on the OUV of the old city. This legislation was challenged by foreign investors for its alleged violation of their right to market access and nondiscrimination. In particular, it gave rise to a dispute with the McDonald’s food chain arising from the Municipality of Florence’s refusal to grant a license to operate a fast-food restaurant in the old square of the Baptistry and of the Cathedral.20 The dispute was finally settled in favour of the city, whose municipal legislation was held legitimate and justifiable in view of guaranteeing the protected status of the old town centre. Discrimination was not an issue since several licenses had been awarded to McDonald’s to operate in other less sensitive parts of the city. The tension between the protection of urban cultural heritage and the socioeconomic development pursued by the local communities led to the adoption in 2011 of the UNESCO’s Recommendation on Historical Urban Landscapes. This Recommendation outlines that the most serious sources of tension between urban cultural heritage and sustainable development is the growing phenomenon of massive urbanization, the relentless pressure of globalization on local culture and development, unsustainable mass tourism, and environmental degradation aggravated by climate change.21 The principles and policies laid down in the Recommendation are addressed to States and not to cities, consistently with the intergovernmental nature

19 WHC, ‘Liverpool – Maritime Mercantile City (United Kingdom of Great Britain and Northern Ireland’ WHC/21/44.COM/18 (31 July 2021) 56–57. 20 For the interplay between obligations arising from investment treaties and obligations to respect and protect cultural heritage, see Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (CUP 2014) 177 ff. 21 UNESCO, ‘Recommendation on the Historic Urban Landscape’ (10 November 2011) . For critical analysis of the Recommendation, with the suggestion of shifting the focus from cities to urban “communities” and their

Urban-Rural Divide and the Contribution of Cultural Heritage 99 of UNESCO. But this may leave room for conflicting attitudes between the central and local governments, as we have seen in the case of the Dresden Elbe Valley. Besides the OWHC, another network of urban centres which is very relevant for sustainable development is the International Council for Local Environmental Initiatives (ICLEI). This network was created in 1990 under the impulse of a group of Canadian and US cities. Now it represents 1750 local and regional authorities and pursues sustainable development policies that go beyond the pure “environmental initiatives” inscribed in its original name.22 Agenda 21, the action programme launched by the 1992 Rio Conference on Environment and Development, addresses in Chapter 7 the issue of sustainable development of human settlements in cities by directing local governments to develop participatory approaches to sustainable urban development and to devise culturally sensitive tourism programmes. Chapter 28 of the Agenda includes a reference to cities and local governments as decision-making centres capable of playing ‘a vital role in educating, mobilizing and responding to the public to promote sustainable development’.23 In this context, the Local Agenda 21 (LA-21) provides for the participation of the local population in decisions that entail an adaptation of global development objectives to local needs and conditions.24 Thus, citizen participation, in accordance with Principle 10 of the Rio Declaration on Environment and Development,25 becomes an essential component of the sustainable use and development of local cultural heritage. In conclusion, there is no doubt that the intense participation of city networks in the promotion of a sustainable use and management of urban cultural heritage, and the facilitative normative framework provided by Agenda 21 and LA-21, are evidence of the important role that cities and urban communities can play in the pursuit of sustainable development. However, at the operational level, the SDGs fall short of the promise that urban cultural heritage may be a propulsive factor for sustainable development. There is only scant reference to cultural heritage in SDG 11, where only one of the 10 targets, Target 4, concerns the strengthening of the protection of the ‘world’s cultural heritage’. Too little, indeed. And, in addition, it is hardly comprehensible that this Target should concern only World Heritage, rather than all forms of cultural heritage, both material and intangible, that are of significant importance for the socio-economic development of urban communities.

22 23 24 25

socio-cultural diversity, see Lucas Lixinski, ‘Paradoxes of Visibility and Preservation: Cultural Heritage and the Making of the City as an International Legal Category’ (2021) 30 IYIL 37. The founding conference of the Organization was held in New York at the UN headquarters in September 1990. Its secretariat is in Bonn. See Riccardo Pavoni, ‘Sustainable Development as a Cornerstone of Cities’ Engagement with International Law’ (2021) 30 IYIL 60. UNGA, ‘Report on the United Nations Conference on Environment and Development: Annex II Agenda 21’ UN Doc A/CONF.151/26/Rev. 1 (3–14 June 1992) para 28. ibid. UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration) Principle 10.

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Rural Cultural Heritage and Sustainable Development

If the cultural heritage of cities has had vast recognition in international law and, as we have seen, it is also gaining relevance in the determination of the objectives of sustainable development, what role has the cultural heritage of rural communities played in relation to the same objectives of sustainable development? This question is pertinent and necessary if we consider that until recently the majority of the world’s population was living and working in rural areas and in natural spaces of the planet untouched by urbanization. Even now, nearly half of the world population continues to live in extra-urban spaces. This fact, of itself, means that anyone who studies or practices international law has a responsibility to try to understand, from the point of view of the rural population, what the perception is of the relevance that cultural heritage may have for sustainable development, and how that perception may differ from that of those who live and work in the city. In this respect, it is interesting to note that, in the recent burgeoning literature on cities and international law, we find the expression ‘the invisibility of the city’ to indicate the unexpressed potential of cities as actors on the international scene.26 On closer inspection, however, the quality of “invisibility” is much more fitting for the rural populations than for the city. With the term “rural population” we mean a great variety of people, who traditionally include the farmers, the peasants, persons devoted to pastoral work, forestry or fishing, and Indigenous peoples who inhabit their ancestral lands and local traditional communities who derive their material sustenance and their traditional knowledge from the natural resources of their territory. Today, the category of people who live and work in rural areas also includes the masses of migrants, who push at the frontiers of developed countries, especially of Europe and North America, to replace the dwindling local manpower in the agricultural, fisheries and forestry sectors. All these people have produced their own culture over the centuries, especially, a patrimony of knowledge and intangible cultural traditions that has remained largely invisible in the historical narrative and elaboration of international law. Cultural heritage offers examples of representation of rural life in the iconography of ancient and medieval art. An exceptional example, close to the city of Parma, is the bas-relief of the Modena Duomo with the moving images of Adam and Eve in the act of painfully tilling the soil after their banishment from Eden.27 But it is undeniable that the visual arts and literature have looked at the countryside mostly from the point of view of the representation of the beauty and serenity of rural landscapes, rather than in order to give visibility to the cultural heritage resulting from the real life, labour and the toils of rural communities. To this loss of visibility corresponds a loss of memory in historical narratives and an absence of voice at the level of international relations. As acutely pointed 26 Besides the already cited symposium of the IYIL, see also Aust and Nijman (eds) Research Handbook of Cities and International Law, both at nt. 11. 27 Bas-relief sculpted by Wiligelmo around the end of the 11th century for the Duomo of Modena, now a World Heritage Site.

Urban-Rural Divide and the Contribution of Cultural Heritage 101 out in sociological literature, the people working and living in the rural world have been une classe objet, an object rather than a subject of history,28 due to the prevailing attention paid to cities as protagonists of history and sources of production of international law. And yet, people living and working in rural areas have played, and continue to play, an important role in critical times of modern and contemporary history. One needs only to recall the deutscher Bauernkrieg, the “peasants war” of 1524–1526 in Germany, the most important class revolt in Europe before the French revolution and opposed by Martin Luther;29 the peasants movement in 19th-century revolutionary Europe and their contribution to the movements of national liberation; their critical role in the 20th-century revolutions in Russia and China;30 and today’s massive revolts of Indian farmers successfully opposing the central government policy of holding open a door to foreign industrial investments in agriculture.31 Against the loss of memory and of the historical visibility of the rural population and their cultural heritage, it is cinema that has provided one of the most powerful representations of rural life and culture in contemporary historical narratives. I am referring to the 1978 film by Ermanno Olmi, L’albero degli zoccoli (“The Tree of the Wooden Clogs”), Palme d’Or at the 1979 Cannes Film Festival. It is an extraordinary and compassionate story of the hard, real, day-to-day life of a rural community in the valleys of Lombardy at the dawn of the 20th century. The microcosm represented on the screen, its reality and authenticity, have the value of a universal testimony of the living culture, hardship and injustice suffered by the rural population as a class of people deprived of any rights and voice in the society of that time. More than a century on from the events narrated in that film the question of the rights, dignity and culture of people living and working in the rural areas of the world, has been addressed at the international law level by the UNGA with the adoption in 2018 of the Declaration on the Rights of Peasants and Other People Working in Rural Areas.32 This Declaration complements the approach to sustainable development taken with the 17 SDGs of the 2030 Agenda and supports the right to development proclaimed by the old Declaration on the Right to Development

28 Pierre Bourdieu, ‘Une classe objet’ (1977) 17 Actes de la recherce en sciences sociales 2. 29 Martin Luther opposed the peasant war in the name of peace and order and in spite of the fact that the revolt drew its motivating force from the Reformation and the condemnation of the privileges of the ruling classes. For a historical perspective, see Peter Blickle, The Revolution of 1525: The German Peasant War from a New Perspective (Johns Hopkins University Press 1981). 30 For a critical overview, see Eric R. Wolfe, Peasant Wars of the Twentieth Century (Harper & Row 1973). 31 Mujib Mashal, Emily Schmall and Russell Goldman, ‘What Prompted the Farm Protests in India?’ New York Times (27 January 2021) . 32 UNGA, ‘UN Declaration on the Rights of Peasants and Other People Working in Rural Areas’ UN Doc A/RES/73/165 (21 January 2019) (hereinafter: the Peasants Declaration). For a comprehensive analysis of the Peasants Declaration, see Mariagrazia Alabrese et al (eds) The United Nations Declaration of Peasant’s Rights (Routledge 2022).

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of 1986.33 But, while the 1986 Declaration, as well as the 2030 Agenda, have a non-legal and consensual character and by and large avoid controversial aspects of the international economic order, the Peasants Declaration aims at placing the development of peasants firmly within the domain of human rights law, a law that is unquestionably binding and, with respect to certain rights, even has the character of a higher law.34 Additionally, the Peasants Declaration proclaims human rights that are specific to peasants and other people working in rural areas, such as the right to land (Article 17), the right to seeds (Article 19) and the right to a sustainable use of natural resources. The affirmation of these rights presents a challenge to certain aspects of the existing liberal system of international economic relations and seems to recapture themes of the New International Economic Order of the 1970s.35 This explains the vote against the adoption of the Peasants Declaration by a group of Western States and the high number of abstentions.36 This notwithstanding, the significance of the Peasants Declaration on the rights of peasants for sustainable development becomes even more evident when we consider that the idea of human rights, as emerged after 1945 with the 1948 Universal Declaration of Human Rights and its claim to universality, should have given voice also to the part of humanity living and working in rural areas of the world. However, in practice, the complex UN and regional mechanisms of human rights protection have had little redemptive effect with regard to the socio-economic conditions of the rural people of the world. The whole philosophical foundation of the human rights system created at UN and regional level remains largely individualistic, centered mainly on the idea of liberty and civil rights, while the claims put forward by the rural population are mainly collective. The importance of the Peasants Declaration for a more inclusive idea of sustainable development becomes more evident when we consider its synergistic relationship with another UN declaration: the historical Declaration on the Rights of Indigenous Peoples adopted by the UNGA in 2007.37 These two Declarations have in common the moral and political intent to address the rights, dignity and cultural heritage, and historical injustices of a class of people long forgotten by international law. They are timely and important, because they concern people who have been and remain vulnerable under the impact of irreversible changes brought about by modernity and globalization. This impact is especially relevant 33 UNGA, ‘Declaration on the Right to Development’ UN Doc Res 41/128 (4 December 1986) (hereinafter: 1986 Declaration). 34 For the view that peasants’ human rights may have the character of a higher law, Lorenzo Gradoni and Luca Pasquet, ‘Voice under Domination: Notes on the Making and Significance of the United Nations Declaration on the Rights of Peasants’ (2022) 33 EJIL 39, 61 ff. 35 UNGA, ‘Declaration on the Establishment of a New International Economic Order’ UN Doc A/ RES/S-6/3201 (1 May 1974). 36 Austria, Hungary, Israel, New Zealand, Sweden, the United States, and the United Kingdom, voted against the Peasants Declaration. Forty-seven States abstained, including Russia, Brazil, South Korea, Canada, and most members of the European Union. 37 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP).

Urban-Rural Divide and the Contribution of Cultural Heritage 103 for the socio-cultural structure of rural communities. The capital-intensive mode of industrial agricultural production and distribution has profoundly modified the methods of food production based on the work of rural family and in many parts of the world linked to a traditional economy of subsistence.38 Modern industrial agriculture relies on advanced technologies, expensive machinery and fertilizers, large investments in selective productions, and sophisticated logistics for transport and distribution worldwide. These are elements that have an impact on the cultural make-up of rural communities and on their ability to maintain a sustainable system of food production that may prevent malnutrition and famine.39 This disruptive impact is increased by the current demographic replacement of local rural workers by the masses of migrants moving from the South to the North, not to speak of the devastating effects that the ongoing war of aggression waged by Russia against Ukraine has on the transnational supply chain of food on which many poor nations have come to be dependent. Looking at sustainable development through the lens of cultural heritage, the fault line that exists between the rural and the urban world view and underlying cultural heritage suggests two different concepts of sustainable development. The first one is that expressed by Principle 1 of the Rio Declaration, according to which sustainable development entails a ‘a healthy and productive life in harmony with nature’. The other is based on an urbano-centric idea of sustainability that rejects the fundamental requirement that development be “in harmony with nature” and relies instead on the supremacy of technology, trade, the ever-more intensive utilization of energy and natural resources, and the massive concentration of people in cities and even mega-cities of the future. These are very different conceptions of sustainable development. As far as culture is concerned, they also match two different ideas of cultural heritage: the idea of material heritage prevailing in the urban reality with its monuments, historic centres, museums and collections of artifacts, and the idea well entrenched in the rural world of ICH represented by vernacular traditions, knowledge, rituals, skills and practices that are the spontaneous expression of the cultural creativity and social life of rural communities. 4

Beyond the Urban-Rural Divide

In spite of the apparent incompatibility between the urban and the rural approaches to sustainable development, there are signs, today, that a new attention being placed on the cultural heritage of rural communities of the world may contribute to a more balanced vision of the role that cultural heritage may play in relation to sustainable development. The adoption of the two already examined Peasants 38 For a critical analysis of the current trends in industrial food production and distribution, UN HRC, ‘Critical Perspectives on Food Systems, Food Crisis and the Future of the Right to Food: Report of the Special Rapporteur on the Rights to Food’ UN Doc A/HRC/43/44 (21 January 2020). 39 For an analysis of this impact on rural communities, Smita Narula, ‘Peasants’ Rights and Food Systems Governance’, in Mariagrazia Alabrese et al (eds) The United Nations Declaration of Peasant’s Rights (Routledge 2022) 151 ff.

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Declaration and UNDRIP marks an important step towards a robust recognition of the contribution that cultural heritage of rural communities may make to sustainable development. These two Declarations follow on from the 1972 Stockholm Conference’ recognition that the relationship between socio-cultural aspects of human communities and their natural environment is an indispensable element for the sustainable use of the resources of the planet. Hence, the need for an approach to development that would include cultural considerations.40 Such an approach, led also to the adoption of the 1972 Convention and to its unprecedented fusion of natural and cultural heritage within a system of international cooperation that today includes virtually all States of the world. The Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples adopted in preparation of the UNDRIP state: The effective protection of the heritage of the indigenous peoples of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability, and creativity of the human species as a whole.41 This principle has found its way into the Preamble of the UNDRIP which expressly provides that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote development in accordance with their aspirations and needs. . . Respect for indigenous knowledge, cultures and traditional practices contributes to the sustainable and equitable development and proper management of the environment. The contribution to sustainable development of the cultural heritage of Indigenous peoples and local communities is recognized also by Principle 22 of the Rio Declaration, which states: Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly

40 UNGA, ‘Declaration of the UN Conference on the Human Environment (Stockholm, 5–16 June 1972)’ UN Doc A/CONF.48/14/Rev.1 (1972) Principle 1. See also UNGA, ‘Action Plan for the Human Environment: Educational, Informational, Social and Cultural Aspects of Environmental Issues’ UN Doc A/CONF.48/14/Rev.1 (1972) 24 ff. 41 ECOSOC, ‘Protection of the Heritage of Indigenous Peoples’ UN Doc E/CN.4/Sub.2/1995/26 (21 June 1995) Annex I, para 1. See also UN HRC, ‘Efforts to Implement the UN Declaration on the Rights of Indigenous Peoples. Indigenous Peoples and the Right to Self-Determination’ UN Doc A/ HRC/48/75 (4 August 2021).

Urban-Rural Divide and the Contribution of Cultural Heritage 105 support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. If we turn our attention from these past achievements to the contemporary scene, we realize that the grim experience of the COVID-19 pandemic of the past two years has contributed to the expansion of a growing class of people who reject the idea that urban culture is the only model of social organization capable of ensuring intellectual progress and sustainable development. These people – many of them young – believe that there is a future for humanity also in the possibility of a gradual return to work and life in the countryside, in contact with nature and in full observance of the principle of sustainable use of natural resources enshrined in the Rio Declaration. This possibility, as often happens, is captured by art long before it may be acknowledged by law. This is shown, for example, by the pioneering work of the Dutch artist and architect Ren Koolhaas, who, after having spent much of his life planning urban centres, has turned his attention to the importance of rural areas as living spaces and to the enormous potential that such spaces offer to people who live there to emancipate themselves from the subordinate role they have historically played as “servants” of the city. What Koolhaas suggests is that architects and artists should consider switching their attention from the city and the dominant design of urbanization to new critical practices and cultural policy initiatives which can address new compelling cultural, social and economic challenges emerging in the countryside, in rural communities and agriculture.42 A similar lesson comes from the Lebanese architect Wael Al Awar, winner of the prestigious Leon d’Oro (Golden Lion) at the 2021 Biennale di Venezia with his innovative proposal of architectural models that bring together traditional knowledge, natural materials, skills of the extra-urban world, and advanced technology developed and applied in urban contexts.43 A strong call for a new intellectual partnership between urban culture and rural cultural heritage comes from the work undertaken in the United Kingdom by the Creative Rural Industries Consortium, which in its New Creative Rural Economies Report advocates a shift in current arts and cultural policies, away from the exclusive preoccupation with the city and the discourse on urbanism towards a formulation of a more inclusive urban-rural cultural cooperation that is required for the future of the environment and of economic and cultural sustainability.44 At the international law level, promising signs for an inclusive urban and rural approach to sustainable development can be found in the already mentioned

42 This message is eloquently articulated in the recent exhibition of Koolhaas’s work at the Guggenheim Museum in New York opened in February 2020 and appropriately entitled “Countryside, The Future”. Guggenheim Museum . 43 Chiara Gatti, ‘L’architetto Wael Al Awar: “Progetto case fatte di sale per proteggere il pianeta”’ La Repubblica (4 November 2021) . 44 For more information on the Report and the activities of the Consortium, Creative Rural Industries Consortium, .

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2030 Agenda, whose SDG 11, Target 11, expressly seeks ‘to support positive economic, social and environmental links between urban, peri-urban and rural areas’. This Target is supported also by the UN-Habitat’s Guiding Principles for Urban-Rural Linkages, which are a component of the UN’s New Urban Agenda and of its objective of giving increased relevance to local cultural and socioeconomic conditions and to the integration of the urban and rural dimensions in policies of territorial development.45 The possible evolution of the duality urban/rural heritage towards a relationship of mutual supportiveness is relevant also to counterbalance the deterministic assessment of certain documents adopted by the UN and other organizations with regard to the future of humanity in urban centres and mega-cities. I am referring, in particular, to the UN World Urbanization Prospect, a report assuming that by 2050, 70% of the world population will live and work in cities.46 But I am referring also to some contemporary tendencies that see the possibility of sustainable development only in the massive urbanization of the world population. The Eco-Modernist Manifesto for the Anthropocene, elaborated by a private group of scientists and intellectuals in 2015, advocates a massive concentration of humanity in mega-cities and further intensification of extraction of mineral resources as keys to an efficient use of energy and natural resources and as the only realistic way to pursue the goal of sustainable development. Such urbano-centric projects would require more careful analysis following the health and social disaster caused by the COVID-19 pandemic, which has paralyzed cities all over the world and pushed so many people to leave cities and to seek refuge in the safer and less densely populated areas of the countryside. But, more importantly, from the point of view of international law, such projects run counter to the foundational principles of the Rio Declaration. Its Principle 1 proclaims that ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’. How can a type of development founded on the unlimited urbanization of humanity, the ever-more intensive exploitation of non-renewable natural resources, and the dominion of technology, and which considers cultural and natural heritage only objects of a utilitarian calculation of costs and benefits be ‘in harmony with nature’? If sustainable development means the possibility of a future in which we can live together in harmony with the natural environment that sustains our life, international law must imagine a type of development that reconciles the historical importance of urban cultural heritage with the often-neglected reality of the vernacular tradition of an extra-urban cultural heritage inherited and transmitted by the people and communities who live and work in rural areas of the world.

45 UN Habitat, ‘Urban-Rural Linkages: Guiding Principles’ (2019) . 46 UNDESA, ‘World Urbanization Prospect 2018’ .

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Conclusions

A reflection on the role of cultural heritage in promoting sustainable development in international law must consider the historical separation between the city and countryside as places of production and transmission of culture and cultural heritage. The dominating role of cities in the development of international law has meant a privileged role for urban cultural heritage in the elaboration of international standards of protection and in the recognition of cultural heritage’s function in the promotion of sustainable development. This chapter has argued that, with the expansion of the concept and scope of cultural heritage, now including the ICH and the value of cultural diversity, international law must also recognize the importance of the cultural heritage of that vast part of humanity that still lives and works in contact with nature in the rural areas of the world. Their cultural heritage, made up of traditions, knowledge, rites and myths, has remained largely invisible in the historical narrative of international law. Today, it seems often to have been relegated to the past, a past unconsciously buried under the thick layer of technological progress and of the elusive expectation of unlimited industrial well-being. Rediscovering the value of the cultural patrimony of the vast countryside of the world can help broaden the protective reach of international cultural heritage law and, at the same time, help the inclusion and resilience of rural societies and their participation in national and international strategies for sustainable development. This is a condition to strengthen the moral and legal basis of the international community’s commitment to the promotion of sustainable development. Two milestones in this direction remain the UNDRIP (2007) and the Peasants Declaration (2018).

7

EU Law, Sustainable Development and Culture A Controversial Encounter? Marco Inglese*

1

Introduction

Since its inception, commonly dating back to the Rio Declaration of 1992,1 endorsing the famous Brundtland Report,2 the principle of sustainable development has been at the centre of a lively academic and institutional debate.3 Similarly, the protection of cultural heritage is usually entrusted to UNESCO and the many conventions it has promoted, one of which the European Union is also a part.4 Essentially, the principle of sustainable development and the protection of cultural heritage – be it tangible or intangible – are deeply rooted in international law, with their respective entrenchment, and overlapping judicial and non-judicial enforcement systems. Understanding and assessing whether sustainable development and culture protection should have an impact over the EU legal order from a fundamental rights-based approach is the research question of this chapter which, as will be shown, finds a positive answer in some specific EU actions, despite the rigidity of the principle of conferral. The very fact that consideration of sustainable development and culture originates from international law and has later been transplanted into the EU legal order is a proof of the permeability of the latter vis-à-vis the former. Unsurprisingly, * Assistant Professor in EU Law, Department of Law, Politics and International Studies (Department of Excellence 2023–2027), University of Parma (Italy). 1 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration). 2 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) para 27 (‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs’). 3 For a discussion on how it was conceived, shaped, and included within international law instruments, Claire Brighton, ‘Unlikely Bedfellows: The Evolution of the Relationship between Environmental Protection and Development’ (2017) 66 ICLQ 209. 4 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311. Last access to all links mentioned in this chapter: 25 November 2022. The EU acceded on 18 December 2006. Delia Ferri, ‘EU Participation in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Diversity: Some Constitutional Remarks’ (2005) EDAP Working Paper No 3, 5. DOI: 10.4324/9781003357704-9

EU Law, Sustainable Development and Culture 109 the EU has consistently steered international summits on sustainable development, such as the World Summits in Rio de Janeiro5 and in Johannesburg.6 Indeed, as Article 21 of the Treaty on European Union recalls, the EU is committed to respecting and contributing to the advancement of international law.7 Nonetheless, it remains to be seen how and, eventually, to what extent the principle of sustainable development has been finding, or will find, its own way within the EU legal order. The principle of sustainable development is present in Article 11 of the Treaty on the Functioning of the European Union as one of the so-called horizontal clauses underpinning all EU actions and policies.8 However, it has not been expressly included in Articles 190–191 TFEU: whereas the former sets forth EU environmental goals and actions, the latter is the legal basis the EU relies upon to adopt binding legal acts. In this respect, the EU enjoys a shared competence in the environmental field as per Article 4.2(e) TFEU. Furthermore, since its solemn proclamation, Article 37 of the Charter of Fundamental Rights of the EU embodies the principles of environmental protection and sustainable development.9 Ultimately, the former is genuinely linked to the latter to the extent that the economic and social dimension thereof should be clear too. When it comes to culture, the EU legal order seems to have been undertaking a less ambitious path. Despite being born in the domain of market integration,10

5 See, in particular, the motion for a resolution on developing a common EU position ahead of the UN Conference on Sustainable Development (Rio+20). European Parliament, ‘Motion for a Resolution on Developing a Common EU Position ahead of the UN Conference on Sustainable Development (Rio+20)’ B7–0522/2011 (20 September 2011) . See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Increasing the Impact of EU Development Policy: An Agenda for Change’ COM(2011) 0637 final (13 October 2011). 6 Letter from the Ministry of Foreign Affairs of Denmark, on behalf of EU Member States, to the President of the 2002 World Summit on Sustainable Development UN Doc A/CONF.199/19 (4 September 2002) (calling for a stronger commitment on renewable energy sources). 7 Consolidated Version of the Treaty on the European Union [2016] OJ C-202/3 (hereinafter: TEU) Article 21.1 (‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’). 8 Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C-202/1 (hereinafter: TFEU) Article 11 (‘Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’). 9 Charter of Fundamental Rights of the European Union [2021] OJ C-326/02 (hereinafter: EU Charter) Article 37 (‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’). 10 Rachael Craufurd Smith, ‘The Evolution of Cultural Policy in the European Union’, in Paul Craig and Grainne De Burca (eds) The Evolution of EU Law (2nd ed, OUP 2011) 872.

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on the one hand, culture is intimately connected to Member States’ constitutional identity; on the other hand, the EU only has competence to support Member States’ actions as per Article 6(c) TFEU. Article 167 TFEU, for its part, seems to add nothing to this scenario. Turning the attention to the EU Charter, Article 22 merges culture with religion and linguistic diversity, hence it is unsurprising that that norm has been relied upon essentially to combat discrimination. However, it is interesting to note that one of the most ancient – and, as such, never amended – provisions of the TFEU, Article 36, provides that the free movement of goods can be restricted where ‘the protection of national treasures possessing artistic, historic or archaeological value’ is at stake; all elements echoing a functional link with culture. Recently, the EU has been active in the field of regulating the free movement of cultural objects while, from a historical perspective, culture has demonstrated its value, especially in terms of the old directives on television and radio programmes and has also been invoked before the European Court of Justice (ECJ) in disputes regarding allegedly discriminatory linguistic regimes. These references to primary law are mostly isolated. In other words, the principle of sustainable development and culture never meet each other formally. In the more appropriate EU legal order jargon, they belong to different competences, consequently entailing different institutions’ involvement; therefore, meaning that any encroachment whatsoever must be avoided. Should that not be the case, a legislative act might be challenged through an action of annulment as per Article 263 TFEU, potentially grounded on a violation of the Treaty. Against this extremely rigid pattern, this chapter seeks to delve into the relations, if any, between culture and sustainable development in the EU legal order, by adopting a fundamental rights-based approach. Hence, the starting points are (1) whether Article 22 of the EU Charter embodies cultural rights and (2) how those rights can be accommodated with Article 37 of the EU Charter, a norm that makes explicit reference to the principle of sustainable development. This is a mostly theoretical approach given that, as will be explained in the next sections, to date the aforementioned relations have not been investigated in legal scholarship; nor additionally have they been explored in EU legislation or in the ECJ’s case law. Therefore, this chapter depicts the role of the principle of sustainable development in the EU legal order (section 2) and examines how culture underpins it (section 3). Section 4 argues that sustainable development and culture are unlikely to encounter one another for two intertwining reasons: (1) they belong to two different areas of competences where the EU’s breadth of powers is substantially asymmetric and (2) they pursue different goals, so far being treated in isolation from one another. This interim finding, however, is mitigated by a sort of open conclusion (section 5), where it is acknowledged that sustainable development and culture might compenetrate each other when some specific economic activities, such as, but not limited to, the management of cultural heritage, are at stake. In fact, examining the Commission’s most recent practice, it emerges that several initiatives – enshrined in EU non-binding acts – are already in the pipeline.

EU Law, Sustainable Development and Culture 111 2 The Principle of Sustainable Development in European Union Law: A Functionalist Overview Although not immediately introduced by the Maastricht Treaty, alongside the conferral of a competence on the environment,11 the principle of sustainable development is nowadays very much present in EU primary and secondary law. To start with, the Preamble of the TEU declares that the principle of sustainable development shall be taken into account within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields.12 This very well-crafted statement illustrates the idea that the principle of sustainable development has three intertwined dimensions affecting the environment, the economy, and society. This had already been confirmed at the highest political level by the European Council conclusions, whose Annex I reiterates that [Sustainable development] seeks to promote a dynamic economy with full employment and a high level of education, health protection, social and territorial cohesion and environmental protection in a peaceful and secure world, respecting cultural diversity.13 As will be seen in the next sections, this explicit political endorsement greatly influenced the Commission’s legislative agenda, as well as Member States’ actions. The Treaty of Lisbon makes the principle of sustainable development even more visible by elevating it to one of the EU’s goals as per Article 3.3 TEU, as one of the guiding principles of EU external action (Article 21.3(f) TEU)14 and, more importantly for the purposes of this chapter, as a horizontal clause which, by virtue of Article 7 TFEU, the EU has to ensure consistency with.15 Indeed, Article 11 TFEU affirms that ‘environmental protection requirements must be integrated into the

11 Robert Lane, ‘New Community Competences under the Maastricht Treaty’ (1993) 30 CMLR 939, 969–974. 12 TEU, Preamble. 13 European Council, ‘Presidency Conclusions. 16 and 17 June 2005’ 10255/1/05 (15 July 2005) 28 (emphasis added). See also Communication from the Commission to the Council and the European Parliament, ‘Draft Declaration on Guiding Principles for Sustainable Development’ COM(2005) 218 (25 May 2005). 14 TEU, Article 21.2(d) (‘foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty’). 15 TFEU, Article 7 (‘The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’).

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definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’.16 Essentially, this amounts to a non-economic interest – having its roots either in the derogation to free movement enshrined in Article 36 TFEU or in the doctrine of overriding reasons of public interest – whose value needs to be considered in each and every action the EU undertakes.17 By contrast, a slightly different formulation is laid down in Article 37 of the EU Charter, whereby a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.18 However, it is striking to note that the principle of sustainable development is excluded from the wording of Article 191.2 TFEU, wherein the four environmental principles (the precautionary principle, the principle of preventive action, the principle of rectifying damage at source, and the polluters pay principle) are listed together. In spite of that, this obvious exclusion is evidently justified by the fact that the four environmental principles, cumulatively taken, forge sustainable development as such.19 Last, Article 191.3 TFEU mentions ‘the economic and social development of the Union as a whole and the balanced development of its regions’. Listing primary law norms serves the purpose of arguing that, despite its several nuances, the presence of the principle of sustainable development is not sufficient per se to ground EU actions. In this respect, Article 11 TFEU, complemented by Article 37 of the EU Charter, is the norm aiming at guaranteeing an effet utile to the principle of sustainable development. Indeed, they both need to be read and interpreted jointly by the ECJ, specifically for what concerns their justiciability. As shall be discussed in detail in section 4, it is hardly possible to make the principle of sustainable development justiciable by the ECJ and, to the best of our knowledge, so far this has never successfully happened.

16 On this formulation, introduced by the Treaty of Amsterdam, Martin Wasmeier, ‘The Integration of Environmental Protection as a General Rule for Interpreting Community Law’ (2001) 38 CMLR 159. 17 Emily Reid, ‘Protecting Non-economic Interests in the European Community Legal Order: A Sustainable Development?’ (2005) 24 YEL 385. 18 EU Charter, Article 37. 19 EU and international law scholars are concurrent on this point. Laura Pineschi, ‘I principi del diritto internazionale dell’ambiente: dal divieto di inquinamento transfrontaliero alla tutela dell’ambiente come common concern’, in Rosario Ferrara and Maria Alessandra Sandulli (eds) Trattato di diritto dell’ambiente. Volume I (Giuffrè 2014) 93; Ornella Porchia, ‘Le politiche dell’Unione europea in materia ambientale’, in Rosario Ferrara and Maria Alessandra Sandulli (eds) Trattato di diritto dell’ambiente. Volume I (Giuffrè 2014) 153; Alexandra Aragão, ‘Environmental Principles in the EU’, in Ludwig Krämer and Emanuela Orlando (eds) Principles of Environmental Law (EE 2018) 449; Virginie Barral, ‘The Principle of Sustainable Development’, in Ludwig Krämer and Emanuela Orlando (eds) Principles of Environmental Law (EE 2018) 103.

EU Law, Sustainable Development and Culture 113 Nonetheless, the ECJ has attributed it a broad interpretative value, especially in opinions assessing the compatibility of so-called new generation free trade agreements with EU law. In its opinion on the free trade agreement with Singapore, the ECJ first linked the common commercial policy as per Article 207 TFEU with the EU general goals and external policies, to affirm that the ‘objective of sustainable development henceforth forms an integral part of the common commercial policy’.20 Second, the ECJ confirmed that the principle of sustainable development encompasses an environmental, societal, and economic dimension in so far as the protection of workers and environment are also included in the agreement. So the three-dimensional structure of the principle is confirmed; consequently, it, as a whole, must be taken into account in pursuing each and every policy initiative, including in negotiating free trade agreements.21 This is even more visible when combating climate change is at stake22 as per Article 191.1 TFEU, recalling also that the EU is equipped with a specific legal basis, Article 192 TFEU.23

20 Opinion Procedure 2/2015, Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore [2016] ECLI:EU:C:2016:992 Opinion of AG Sharpston, para 147. 21 There is abundant and concurrent scholarly literature in this field, agreeing that the principle of sustainable development, in its three-dimensional structure, has a very visible external projection coupled with EU values as per Article 2 TEU. Paivi Leino, ‘European Universalism? – The EU and Human Rights Conditionality’ (2005) 24 YEL 329; Jan Vandenberghe, ‘On Carrots and Sticks: The Social Dimension of EU Trade Policy’ (2008) 13 EFAR 561; Fabienne Bossuyt, ‘The Social Dimension of the New Generation of EU FTAs with Asia and Latin America: Ambitious Continuation for the Sake of Policy Coherence’ (2009) 14 EFAR 703; Tobias Leeg, ‘Normative Power Europe? The European Union in the Negotiations on a Free Trade Agreement with India’ (2014) 19 EFAR 335; Morten Broberg, ‘The European Union-Caribbean Relation: On the Apparent Deterioration of the EU-Caribbean Relationship’ (2016) 21 EFAR 75; Editorial comments, ‘Playing by the Rules – Free and Fair Trade’ (2018) 55 CMLR 373; Marco Bronckers and Giovanni Gruni, ‘Taking the Enforcement of Labour Standards in the EU’s Free Trade Agreements Seriously’ (2019) 56 CMLR 1567; Gracia Marin Duran, ‘Sustainable Development Chapters in EU Free Trade Agreements: Emerging Compliance Issues’ (2020) 57 CMLR 1031; Shuxiao Kuang, ‘The European Commission’s Discourse on Sustainable Development in “Trade for All”: An Argumentative Perspective’ (2021) 26 EFAR 265; Jacques Pelkmans, ‘Linking “Values” to EU Trade Policy – A Good Idea’ (2021) 26 ELJ 391. 22 Geert De Cock, ‘The European Union as a Bilateral “Norm Leader” on Climate Change vis-à-vis China’ (2011) 16 EFAR 89; Kati Kulovesi, Elisa Morgera and Miquel Munoz, ‘Environmental Integration and Multi-Faceted International Dimensions of EU Law: Unpacking the EU’s 2009 Climate and Energy Package’ (2011) CMLR 829; Beatriz Perez de las Heras, ‘Beyond Kyoto: The EU’s Contribution to a More Sustainable World Economy’ (2013) 19 ELJ 577. 23 Recently, Article 192 TFEU has been used to enact Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 [2021] OJ L-243/1. Its recital 6 makes an express reference to Article 37 of the EU Charter. By contrast, Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment and amending Regulation (EU) 2019/2088 [2020] OJ L-198/13 is based on Article 114 TFEU and does not mention Article 37 of the EU Charter. On the use and choice of environmental legal bases, Nicolas de Sadeleer, ‘Environmental Governance and the Legal Bases Conundrum’ (2012) 31 YEL 373.

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However, the observance or, better, the strict adherence, to the principle of sustainable development in the EU internal and external sphere simply is one of the clearest signs of the value of the principle of consistency,24 as set out in Article 7 TFEU, as well as of the respect of international law25 as per Article 3.5 TEU. Indeed, while it is well-known that the principle of sustainable development is rooted in international law, it should also be clear that its three-dimensional structure affects the overall range of EU actions. Moreover, an environmental, societal, and economic assessment – this time, considered individually – is also needed in legislative procedures,26 whose impact assessments are more and more detailed.27 This functionalist overview serves the purpose of ascertaining the role of the principle of sustainable development, paying particular attention to its internal and external sphere. However, one should not underestimate the fact that – as will be seen in sections 4 and 5 – it has a fundamental rights dimension, whose justiciability – or, even, effet utile – is doubtful at best. Now, in order to verify whether the principle of sustainable development and culture can encounter each other in the EU legal order, specific attention will be devoted to the latter. 3

Mainstreaming Culture into European Union Law: A Functionalist Overview

The very fact that the EU legal order is based on the principle of conferral determines that the EU can act – or to be more precise, legislate – solely in the domains listed in the Treaty. As happened for the environment, a cultural competence has been conferred upon the then European Community through the Maastricht Treaty, with the creation of a brand-new Title IX (‘Culture’) containing (former) Article 128, now Article 167 TFEU. Therefore, back in the ‘90s, culture was seen as ‘a radically new and controversial field of Community competence’, ironically asking ‘is the Notting Hill carnival in London an aspect of common Community culture?’28 With the Treaty of Lisbon and a reconfiguration of EU objectives, Article 3.3 TEU provides for the respect of ‘its rich cultural and linguistic diversity, and

24 Christian NK Franklin, ‘The Burgeoning Principle of Consistency in EU Law’ (2011) 30 YEL 42. 25 Rupert Dunbar, ‘Article 3.5 TEU a Decade on: Revisiting “Strict Observance of International Law” in the Text and Context of other EU Values’ (2021) 28 MJECL 479. 26 Case C-900/19 One Voice and Ligue pour la Protection des Oiseaux v Ministre de la Transition Ecologique et Solidaire [2021] ECLI:EU:C:2021:211, para 60. Here, the ECJ recalled that ‘[the Birds Directive] comes within the framework provided for both in Article 3 TEU and in Article 37 of the Charter, provisions according to which, in essence, the European Union is to work for sustainable development and ensure a high level of protection of the environment’. 27 Lorella Di Gianbattista, ‘La valutazione d’impatto nell’Accordo interistituzionale “Legiferare meglio”’ (2016) DUE – Osservatorio 1. 28 Robert Lane, ‘New Community Competences under the Maastricht Treaty’ (1993) 30 CMLR 939, 953.

EU Law, Sustainable Development and Culture 115 [ensuring] that Europe’s cultural heritage is safeguarded and enhanced’.29 It is wellknown, though, that the EU pursues its objectives through a decisive functionalist approach, aiming at advancing and deepening the most diverse areas of integration. So whereas Article 167.1 TFEU30 embodies the importance of EU cultural heritage,31 when it comes, instead, to potential initiatives to be commenced using Article 167.2 TFEU,32 commentators have questioned this possibility since the very introduction of an EU cultural competence. In particular, it has been argued that Article 167.4 TFEU33 ‘provides a number of safeguards against the homogenization of national and regional specificities’,34 while it ‘seems indeed more about setting boundaries than giving the green light to the Community to delve further into cultural matters’.35 Yet, it would generally be possible to discern a sort of EU common interest in opening up cultural markets by favoring the free movement of artists, artifacts and, more broadly, cultural goods and services.36 Moreover, the EU will carry out these actions in cooperation with international organizations and third countries, especially when free trade is to be fostered.37

29 Ugo Villani, ‘Considerazioni introduttive alla tutela europea dei beni culturali’, in Enrico Catani, Gianluca Contaldi and Fabrizio Marongiu Bonaiuti (eds) La tutela dei beni culturali nell’ordinamento internazionale e nell’Unione europea (Edizioni Università di Macerata 2018) 17. 30 TFEU, Article 167.1 (‘The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’). 31 Rachael Craufurd Smith, ‘Article 151 EC and European Identity’, in Rachael Craufurd Smith (ed) Culture and European Union Law (OUP 2004) 277. A different discourse can also be made in respect of a definition of ‘culture heritage’. Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49 ICLQ 61. For the notion of ‘European’ cultural heritage, Evangelia Psychogiopoulou, ‘Cultural Heritage in European Union Law and Policies’ (2018) 45 LIEI 177, 181–183 (where she precisely illustrates the vacuity of this expression as well as possible interpretative solutions). 32 TFEU, Article 167.2 (‘Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas: – improvement of the knowledge and dissemination of the culture and history of the European peoples, – conservation and safeguarding of cultural heritage of European significance, – noncommercial cultural exchanges, – artistic and literary creation, including in the audiovisual sector’). 33 TFEU, Article 167.4 (‘The Union shall take cultural aspects into account in its action under other provisions of the Treaty, in particular in order to respect and to promote the diversity of its cultures’). 34 Evangelia Psychogiopoulou, ‘The Cultural Mainstreaming Clause of Article 151.4 EC: Protection and Promotion of Cultural Diversity or Hidden Cultural Agenda?’ (2006) 12 ELJ 575, 576. 35 ibid 583. 36 Case C-561/17 Spiegel Online GmbH v Volker Beck [2019] ECLI:EU:C:2019:16 Opinion of Advocate General Szpunar, para 23 (‘Article 167 is a general provision intended to serve as guidance in relation to the action of the EU institutions in spheres relating to culture. . . even if the publication of articles on policy matters does fall within the scope of the concept of ‘culture’ within the meaning of Article 167 TFEU, that provision cannot be interpreted as allowing the Member States to derogate from the unconditional obligations arising from provisions of EU secondary law. Any other interpretation would effectively refute the EU’s competence to harmonise the laws of the Member States in any culture-related sphere such as copyright, audiovisual services, the market in works of art, and so on’). 37 Evangelia Psychogiopoulou, ‘The External Dimension of EU Cultural Action and Free Trade: Exploring an Interface’ (2014) 41 LIEI 65.

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Be that as it may, one should also acknowledge that despite the presence of a legal basis such as Article 167 TFEU,38 the EU has been pursuing its cultural agenda through other means. In particular, culture affects free movement of goods (paintings, statues and, generally speaking, works of art), services (especially media transmissions) and can even have an impact over competition and State aid, while simultaneously being a key component of linguistic diversity.39 Obviously, this chapter is not devoted to a thorough analysis of all these elements; however, they can be sketched out in order to grasp the intricacies – if any, of course – with the principle of sustainable development. For what concerns free movement rules, it is well-known that cultural artifacts fall within the scope of application of Articles 34 and 36 TFEU,40 as the ECJ held in 1968.41 However, considering that they can very well be national treasures,42 thereby constituting objects of a distinct applicable regime and being subject to more restrictive rules or being illicitly traded, the EU has enacted ad hoc legislation since the early ‘90s.43 Indeed, nowadays, Directive 2014/60 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State44 and

38 It is interesting to note that in the case C-42/97, the EU Parliament sought the annulment of Council Decision 96/664/EC of 21 November 1996 on the adoption of a multiannual programme to promote linguistic diversity of the Community in the information society, on the ground that the correct legal basis should have been not only Article 130 TEC (now Article 173 TFEU) but also Article 128 TEC (now Article 167 TFEU). The ECJ dismissed the action on the ground that, inter alia, ‘it must be stated that it does not express a cultural aim pursued as such but merely one of the aspects of the programme of which the main and predominant characteristic is of an industrial nature. Language in that context is seen not as an element of cultural heritage but rather as an object or instrument of economic activity’. Case C-42/97 European Parliament v Council of the European Union [1999] ECR I-00869, para 53. Furthermore, ‘the object of the programme, namely the promotion of linguistic diversity, is seen as an element of an essentially economic nature and incidentally as a vehicle for or element of culture as such’. ibid para 61. 39 Ennio Triggiani, ‘Beni culturali per l’integrazione europea’, in Enrico Catani, Gianluca Contaldi and Fabrizio Marongiu Bonaiuti (eds) La tutela dei beni culturali nell’ordinamento internazionale e nell’Unione europea (Edizioni Università di Macerata 2018) 25. 40 TFEU, Article 34 (‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’); TFEU, Article 36 (‘The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on . . . the protection of national treasures possessing artistic, historic or archaeological value’). 41 Case C-7/68 Commission of the European Communities v Italian Republic [1968] ECR I-00617. 42 Tania Kyriakou, ‘The Protection of National Treasures in the EU Single Market’, in Evangelia Psychogiopoulou (ed) Cultural Governance and the European Union (Palgrave MacMillan 2015) 63. 43 François Rigaux, ‘Libre circulation des biens culturels et protection des trésors nationaux’ (1994) 2 ERPL 95; Andrea Biondi, ‘The Merchant, the Thief and the Citizen: The Free Circulation of Works of Art in the European Community’ (1997) 34 CMLR 1173; Andrea Biondi, ‘The Gardener and Other Stories: Peregrinations of Cultural Artefacts within the European Union’, in Rachael Craufurd Smith (ed) Culture and European Union Law (OUP 2004) 155. 44 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast) [2014] OJ L-159/1.

EU Law, Sustainable Development and Culture 117 Regulation 116/2009 on the Export of Cultural Goods45 constitute a fully-fledged regime, thereby offering both an intra- and extra-EU trade dimension.46 In this respect, it is significant that the former is based on Article 114 TFEU47 and the latter on what is now Article 207 TFEU.48 Moreover, illicit art trafficking is also considered in Directive 2018/843.49 Closely linked to the free movement of goods, the free movement of services also plays an important role which, over time, has been essentially attached to media diffusion across Member States, linguistic diversity, pluralism and the right to free expression and information as well as touching upon competition law and State aid. In this sense, the former Television without Frontiers Directive50 and its recast, the Audio-Media Visual Services Directive,51 have been harshly criticized since, even if it is true that they enhance the free movement of services, their cultural dimension is clearly minimal.52 Indeed, free movement is granted to European 45 Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods [2009] OJ L-39/1; Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods [2019] OJ L-151/1. 46 Alberto Miglio, ‘La restituzione dei beni culturali nell’Unione europea: dalla direttiva 93/7 alla direttiva 2014/60, tra mercato interno e competenza esterna dell’Unione’ (2016) 30 RCI 863; Sabrina Urbinati, ‘Lights and Shadows of the EU Regulation 2019/880 on the Introduction and Import of Cultural Goods’, in Maurizio Arcari, Irini Papanicolopulu and Laura Pineschi (eds) Trends and Challenges in International Law. Selected Issues in Human Rights, Cultural Heritage, Environment and Sea (Springer 2022) 153. 47 TFEU, Article 114.1 (‘The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’). 48 TFEU, Articles 207.1 and 207.6 (‘The common commercial policy shall be based on uniform principles. . . . The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action’ and ‘The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation’). 49 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU [2018] OJ L-156/43. See also Anna Mosna, ‘Give Art Market Regulation a Chance’ (2022) 29 MJECL 304. See also European Parliament, Directorate-General for Internal Policies, ‘Cross-Border Restitution Claims of Art Looted in Armed Conflicts and Wars and Alternatives to Court Litigations’ (2016) . 50 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L-298/23. 51 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L-95/1. 52 Lorna Woods, Jeremy Scholes, ‘Broadcasting: The Creation of a European Culture or the Limits of the Internal Market?’ (1997) 17 YEL 47; Mira Burri-Nenova, ‘The New Audiovisual Media

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services; yet the directive imposes very lenient conditions on this, thereby making the cultural character of the adjective ‘European’ at best non-existent. These observations have also been proved to be valid in the field of competition law53 and State aid as per Article 107.3(d) TFEU, whereby the Commission notice on the notion of State aid54 subsumes the very same minimal idea of ‘European’ culture.55 Last, linguistic and national and regional diversities are an inherently entrenched part of culture and also serve to mirror an intimate aspect of Member States’ national identities. On these topics, unsurprisingly, the ECJ has played a very active role. It is noteworthy that, although UH is the first-ever judgment in Irish,56 the ECJ had to rule on whether an adequate knowledge of that language constitutes an indirect discrimination for non-Irish speakers wishing to work in the Emerald Island’s public education sector.57 Additionally, Advocate General Bobek recalled that ‘language policy cannot but reflect the history, culture, traditions and society of each country’,58 while significantly linking this statement to Runevič-Vardyn.59 Therefore, in light of a consistent stream of judgments delivered by the ECJ60 in addition to the evolution of primary law, it has been convincingly argued that the protection of national language is directly linked to national identities.61 In this

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54 55 56 57

58 59 60

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Services Directive: Television Without Frontiers, Television Without Cultural Diversity’ (2007) 44 CMLR 1689; Thomas Gibbons, ‘The Impact of Regulatory Competition on Measures to Promote Pluralism and Cultural Diversity in the Audiovisual Sector’ (2007) 9 CYELS 239; Mira Burri, ‘Business as Usual? The Implementation of the UNESCO Convention on Cultural Diversity and EU Media Law and Policies’ (2013) 38 ELR 802. Evangelia Psychogiopoulou, ‘EC Competition Law and Cultural Diversity: The Case of the Cinema, Music and Book Publishing Industries’ (2005) 30 ELR 838; Rachael Craufurd Smith, ‘Balancing Culture and Competition: State Support for Film and Television in European Community Law’ (2008) 10 CYELS 35. European Commission, ‘Commission Notice on the notion of State aid as referred to in Article 107.1 of the Treaty on the Functioning of the European Union’ [2016] OJ C-262/1. Pieralberto Mengozzi, ‘Le attività culturali e la comunicazione della Commissione del 19 luglio 2016 sulla nozione di aiuto di Stato’ (2016) 22 DUE 741. Case C-64/20 UH v tAire Talmhaìochta Bia agus Mara and Others [2021] ECLI:EU:C:2021:207. Case C-379/87 Anita Groener v Minister for Education and the City of Dublin Vocational Committee [1989] ECLI:EU:C:1989:559; C-379/87 Anita Groener v Minister for Education and the City of Dublin Vocational Committee [1989] ECLI:EU:C:1989:197 Opinion of Advocate General Darmon, para 19 (‘the preservation of language is one of those questions of principle which one cannot dismiss without striking at the very heart of cultural identity’). Case C-64/20 UH v tAire Talmhaìochta Bia agus Mara and Others [2021] ECLI:EU:C:2021:14 Opinion of Advocate General Bobek. Case C-391/09 Malgožata Runevič-Vardyn and Lukasz Pawel Wardyn v Vilniaus Miesto Savivaldybes Administracija and Others [2011] ECLI:EU:C:2011:291. See also Case C-391/20 Boriss Cilevičs and Others [2022] ECLI:EU:C:2022:638. Case C-202/11 Anton Las v PSA Antwerp NV [2013] ECLI:EU:C:2012:239; Case C-15/15 New Valmar BVBA v Global Pharmacies Partner Health Srl [2016] ECLI:EU:C:2016:464. See also Bruno De Witte, ‘Cultural Policy Justifications’ in Panos Koutrakos, Niahm Nic Shuibhne and Phil Syrpis (eds) Exceptions from EU Free Movement Law. Derogation, Justification, Proportionality (Hart 2016) 131. Giacomo Di Federico, L’identità nazionale degli Stati membri nel diritto dell’Unione europea. Natura e portata dell’art. 4, par. 2, TUE (Editoriale Scientifica 2017) 42. Similarly, although more

EU Law, Sustainable Development and Culture 119 particular respect, it has been contended that ‘there is EU language law, but one may doubt whether there is a genuine EU language policy’.62 Alike, one may still wonder to what extent the trajectory of EU cultural policy still is hectic vis-à-vis a joint reading of the horizontal clauses embodied in Articles 7 and 13 TFEU.63 Consequently, the next section links them in order to verify whether sustainable development and culture are a likely or, as it will be posited, a potential encounter. 4

Sustainable Development and Culture: A Functionalist Overview Towards a Potential Encounter

Whereas sections 2 and 3 showed that sustainable development and culture are essentially functional to the pursuit of EU’s goals, it remains to be seen whether the two could, potentially, integrate each other, thereby forming a two-tier test for the assessment of the consistency of EU’s legislative and non-legislative actions. As shall be immediately clear, the answer is no. There exists a pragmatic reason for which sustainable development and culture hardly meet rebus sic stantibus. They pertain to different areas of competences, areas so different that they can barely be intertwined. One should, surely, frankly admit that the case law of the ECJ is so extensive and so variegated that domains reserved to the Member States have been, bit by bit, diluted by EU interventions. However, the now infamous competence creep, in spite of the operation of the principles of conferral, subsidiarity, proportionality, and sincere cooperation has been characterizing the intrusiveness of the EU in Member States’ legislations. This argument needs to be elaborated upon by referring to the case law of the ECJ. Should one consider, for instance, the EU competence in the vast domain of health, there exists (1) a shared competence in ‘common safety concerns in public health matters’ (Article 4.2(k) TFEU) and (2) a supporting competence in ‘protection and improvement of human health’ (Article 6(a) TFEU). In turn, what the EU can decide to do is counterbalanced by Article 168.7, TFEU, according to which Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States

cautiously and focused on cultural heritage, Rachael Craufurd Smith, ‘Article 151 EC and European Identity’, in Rachael Craufurd Smith (ed) Culture and European Union Law (OUP 2004) 277; Rachael Craufurd Smith, ‘From Heritage Conservation to European Identity: Article 151 EC and the Multi-Faceted Nature of Community Cultural Policy’ (2007) 32 ELR 48. 62 Bruno De Witte, ‘Language Law of the European Union: Protecting or Eroding Linguistic Diversity?’, in Rachael Craufurd Smith (ed) Culture and European Union Law (OUP 2004) 205, 240. 63 One should also take into account that the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage encompasses ‘oral traditions and expressions, including language as a vehicle of the intangible cultural heritage’. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 3, Article 2.2(a). However, the EU is not a party to this Convention.

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shall include the management of health services and medical care and the allocation of the resources assigned to them.64 Despite this, years of consistent judgments have demonstrated that even responsibilities entrusted to Member States are to be exercised in the full respect of EU law.65 Furthermore, the same argument could be applicable vis-à-vis EU citizenship. Although it is self-evident that Member States used to enjoy wide powers in attributing and revoking national citizenship, a new stream of judgments has opened the gates to EU intervention, thereby curtailing their discretion. Indeed, since Rottman,66 they need to respect EU law – and, in particular, the principle of proportionality – when revoking EU citizenship. Moreover, in the recent actions for failure to fulfil obligations against Cyprus67 and Malta,68 the Commission is scrutinizing whether national schemes also known as citizenship by investment are compliant with EU law, thereby, obviously, seeking to restrict the grounds upon which a Member State can attribute its citizenship to an individual. The two examples above show that when a Member State exercises its own competence it must do so while respecting EU law. However, when the EU is exercising its own competences, the situation is entirely different. According to the settled doctrine of the centre of gravity, a legislative act must be grounded, if possible, only on one legal basis, crucially the one setting the goals and the procedure. This used to be true in interpillar (and strategic) disputes between the Parliament and other institutions. Now, since the Treaty of Lisbon, interpillar litigation is all but non-existent given that the pillar structure has been dismantled. However, this does not impede that an act can be based on one or more legal bases, provided that (1) the EU is competent and (2) the legislative procedure is the one and only one. Good examples of this simplified approach are the General Data Protection Regulation,69 the Proposal for a Regulation on Artificial Intelligence70 and the Proposal for a

64 TFEU, Article 168.7. 65 There is no space to report the abundant case law of the ECJ, nor to mention the magnitude of scholars’ reactions. However, a good account of what took place in the last 25 years is to be found in Case C-243/19 A v Veselibas Ministrija [2020] ECLI:EU:C2020:872. See also Giacomo Di Federico and Stefania Negri, Unione Europea e salute. Principi, azioni, diritti e standard qualitativi (Giappichelli 2020). 66 Case C-135/08 Janko Rottman v Freistaat Bayern [2010] ECLI:EU:C:2020:104. 67 European Commission, ‘Cyprus Investor Citizenship Scheme. Reasoned Opinion Art. 258’ (9 June 2021) INFR(2020)2300. 68 European Commission, ‘Malta Investor Citizenship Scheme. Reasoned Opinion Art. 258’ (6 April 2022) INFR(2020)2301. 69 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ l-119/1. 70 Proposal for a regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts, COM/2021/206 final (21 April 2021).

EU Law, Sustainable Development and Culture 121 Directive on Platform Workers,71 but also the Patients’ Rights Directive.72 In all these cases, the EU had a clear competence, exercised through the ordinary legislative procedure. This scheme cannot be replicated when it comes to potential encroachments between sustainable development and culture for the straightforward reason that the former is a shared competence, the latter is a complementary one; thus, the EU can neither adopt harmonization acts nor approximate Member States’ legislations. Surely, nothing prevents certain references, in the motivation part, from streamlining one or both. However, it could be ruled out that the EU legislators have been paying sufficient attention to these aspects. This seems to be confirmed also by looking at the ECJ’s case law where it could have had the chance to draw a parallel – however tenuous it might be – or to consider sustainable development and culture according to an integrated approach, thereby expressly endorsing Principle 4 of the Rio Declaration in the EU legal order.73 In Liga van Moskeeën,74 the ECJ held that Article 13 TFEU75 cannot be used to annul a norm of a regulation restricting access to ritual slaughtering, despite this being an essential part of culture and religion. Similarly, in Oeuvre d’assistance aux bêtes d’abattoirs,76 the ECJ held that animals slaughtered without previous stunning cannot be marketed with a logo of organic farms. Ultimately, the ECJ reiterated this reasoning also in Centraal Israëlitisch Consistorie.77 In this respect, it is noteworthy to point out that neither Article 13 TFEU – one of the horizontal clauses whose consistency must be assured by virtue of Article 7 TFEU – nor Article 22 of the EU Charter on freedom of religion has been successfully invoked before the Court as parameters of validity.78 Similarly, to the best of our knowledge, a plea grounded on the violation of the principle of sustainable development as per Article 37 of the EU Charter has not been 71 Proposal for a directive of the European Parliament and of the Council on improving working conditions in platform work, COM/2021/762 final (9 December 2021). 72 Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare [2011] OJ L-88/45. 73 Rio Declaration, Principle 4 (‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’). 74 Case C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest [2018] ECLI:EU:C:2018:335. 75 TFEU, Article 13 (‘In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’). 76 Case C-497/17 Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation and Others [2019] ECLI:EU:C:2019:137. 77 Case C-336/19 Centraal Israëlitisch Consistorie van Belgie e.a. and Others [2020] ECLI:EUC:2020:1031. 78 Isabelle Pingel, ‘Le bien-être animal en droit de l’Union Européenne. À propos de trois décisions de la Cour de justice relatives à l’abbattage ritual’ (2022) 57 RTDE 57.

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successful either. The case law of the ECJ is consistent to the extent that this argument has been dismissed in Associazione Italia Nostra Onlus,79 considered purely ancillary by Advocate General Whal80 and rapidly rejected in Front Polisario.81 Furthermore, it is interesting to note that Advocate General Hogan explicitly acknowledged that Article 11 TFEU provides that environmental protection requirements must be integrated into the definition and implementation of the European Union’s policies and activities, in particular with a view to promoting sustainable development. This principle has been recognized by the Court in a number of policy areas.82 However, the Court does not even mention it in its judgment. Perhaps the best example of this explicit – but, to certain extent, ineffective – recognition can be found in the opinion of Advocate General Pitruzzella in Commission v Council regarding the Comprehensive and Enhanced Partnership Agreement between the EU and Armenia. He affirmed that sustainable development ‘incorporates environmental and social constraints, respect for human right and fundamental freedoms as well as human health into the economy’.83 In essence, as the judgments commented above sought to show, culture and sustainable development have not been jointly but, rather, individually, interpreted. Although they both are very much present in the case law of the ECJ, they serve different purposes, belong to different domains of competences and, ultimately, are not destined to encounter each other. However, if this is what the ECJ and the institutions have been doing to date, disregarding the principle of integration, this does not automatically mean that, referring to a fundamental rights approach, sustainable development and culture cannot be used to streamline EU actions in very specific policy areas, thereby jointly highlighting the value of Articles 22 and 37 of the EU Charter. 5 An Open Conclusion: Searching for Integration This chapter has, so far, argued that the principle of sustainable development and culture are an unlikely encounter for two entrenched reasons. First, pertaining to different areas of EU competences, they have been used for different purposes, especially considering that in the field of culture the EU is solely empowered to support, coordinate or supplement, while within the vast domain of the environment, the EU

79 Case C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia and Others [2016] ECLI:EU:C:2016:978. 80 Opinion Procedure 3/15 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled [2016] ECLI:EU:C:2016: 657. 81 Case T-512/12 Front Polisario v Council of the European Union [2015] ECLI:EU:T:2015:953. 82 Case C-110/20 Regione Puglia v Ministero dell’Ambiente [2021] ECLI:EU:C:2021:517 Opinion of Advocate General Hogan, para 59. 83 Case C-180/20 European Commission v Council of the European Union [2021] ECLI:EU:C:2021:495 Opinion of Advocate General Pitruzzella, para 62.

EU Law, Sustainable Development and Culture 123 enjoys a shared competence. Secondly, the case law of the ECJ does not allow to infer a reading of culture as a component of sustainable development. Therefore, adhering to a strict and literal analysis of the EU legal order, this chapter should be concluded by a solid denial that culture and sustainable development would ever encounter each other. Nevertheless, some additional arguments can be put forward relying on the wellknown doctrine of the indivisibility of human rights. Since the EU is equipped with an independent and autonomous source of fundamental rights protection,84 one can surely ascertain that both culture and sustainable development are very well present, respectively, in Articles 22 and Article 37 of the EU Charter. However, the former refers to ‘respect[ing] cultural, religious and linguistic diversity’ whereas the latter affirms that ‘the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. For the sake of completeness, Article 25 of the EU Charter recognizes the right of the elderly ‘to participate in . . . cultural life’. Nevertheless, this does not mean that culture and sustainable development are destined to encounter each other; hence, a paramount role is to be attributed to lawmakers as well as courts. And this conclusion, once again, has to be linked to the scope of application of the EU Charter which, according to Article 51, is limited to EU institutions, bodies, offices and agencies, as well as to Member States in the implementation of EU law. Furthermore, Article 51 of the EU Charter adds that this cannot and does not expand EU competences. Thus, once again, the rigidity of the principle of conferral hinders a potential interpenetration of culture and sustainable development. Commentators, too, seem cautious in this respect. It has been contended that respect for diversity in Article 22 CFR arguably goes beyond imposing a negative obligation on the EU not to harm diversity and creates a positive requirement to take measures to help preserve and promote such diversity, for instance through . . . financial and other means of support for marginalised or struggling communities.85 It has also been recognised that ‘conflicts may also arise between property rights and traditional customs, such as hunting’.86 By the same token, it has been 84 Regarding the autonomy of the EU legal order, at least in this specific domain, Opinion Proceeding 2/13 Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms [2014] ECLI:EU:C:2014:2454, para 170 (‘the autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU’). 85 Rachael Craufurd Smith, ‘Article 22 – Cultural, Religious and Linguistic Diversity’, in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds) The European Charter of Fundamental Rights: A Commentary (Hart 2011) 605, 612. See also John Morijn, ‘The EU Charter of Fundamental Rights and Cultural Diversity in the EU’, in Evangelia Psychogiopoulou (ed) Cultural Governance and the European Union (Palgrave MacMillan 2015) 151. 86 Rachael Craufurd Smith, ‘Article 22’ (nt. 85) 613.

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acknowledged that ‘the scope of application of Article 37 is wide-ranging, if not all-encompassing . . . although . . . the enforceability of the principle faces significant limitations’,87 downgrading it to a ‘declaration of principle’.88 Finally, it has been underscored that ‘the wording of Articl[e] 37 . . . is the most removed from the language of rights’.89 From a wide-ranging perspective, it would have been interesting to see the ECJ linking Articles 22 and 37 of the EU Charter in the well-known Inuit saga,90 had it not been for the procedural grounds of Article 263 TFEU curtailing the locus standi of the applicant. In this respect, it is still worth noting that the ban on trade of seal products did not affect traditional, sustainable hunting practices.91 Unfortunately, however, no traces of this consideration are present in Advocate General Kokott’s opinion either.92 In any case, an integrated approach potentially tying culture and sustainable development is timidly arising in some institutions’ non-binding acts. The New European Agenda for Culture clearly affirms that ‘[t]he Commission also plans to use the Agenda to emphasise the cultural dimension of sustainable development and to help implement the UN 2030 Agenda for Sustainable Development’.93

87 Elisa Morgera and Grácia Marin Durán, ‘Article 37 – Environmental Protection’, in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds) The European Charter of Fundamental Rights: A Commentary, (Hart 2011) 984. See also Roderic O’Gorman, ‘The Case for Enshrining a Right to Environment within EU Law’ (2013) 19 EPL 583. 88 Morgera and Marin Durán (nt. 87) 996. See also Case C-176/12 Association de mediation sociale v Union locale des syndicates CGT and Others [2013] ECLI:EU:C:2013:491 Opinion of Advocate General Cruz, para 51. 89 Tobias Lock, ‘Rights and Principles in the EU Charter of Fundamental Rights’ (2019) 56 CMLR 1201, 1214. 90 Case T-526/10 Inuit Tapiriit Kanatami and Others v European Commission [2013] ECLI:EU:T:2013:215; Case C-583/11 P, Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2013] ECLI:EU:C:2013:625. 91 Regulation 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L-286/36, Article 3.1 (‘The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence’). See also the amended version that, in any case, has not substantially modified Article 3.1. Regulation (EU) 2015/1775 of the European Parliament and of the Council of 6 October 2015 amending Regulation (EC) No 1007/2009 on trade in seal products and repealing Commission Regulation (EU) No 737/2010 [2015] OJ L-262/1. 92 Case C-583/11 P Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2013] ECLI:EU:C:2013:21 Opinion of Advocate General Kokott. 93 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A New European Agenda for Culture’ COM(2018) 267 final (22 May 2018) 7. See also Francesco Emanuele Grisostolo, ‘La salvaguardia del patrimonio culturale immateriale: recenti tendenze in area europea’ (2018) 19 DPCE 723; Michele Lastilla, ‘I settori culturali e creativi nella nuova Agenda europea per la cultura’ (2019) 20 DPCE 689; Anna Oriolo, ‘Patrimonio digitale: guidelines internazionali e strategie dell’Unione europea di accessibilità, diffusione e protezione dei beni culturali e scientifici nell’era digitale’ (2020) 14 SIE 433. Regarding previous actions, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A European Agenda for Culture in a Globalising World’ COM(2007) 242 final (10 May 2007).

EU Law, Sustainable Development and Culture 125 Additional elements can be singled out in the Commission staff working document,94 especially as to what concerns sustainable cultural tourism. Following it up, research has detailed best practices in the sustainable management of the cultural heritage, stressing the importance of endorsing an integrated approach to sustainable development and cultural heritage.95 One year later, the Council recalled that ‘[t]he three dimensions of sustainability (economic, social and environmental) are integrated and indivisible and culture is an inseparable part of all three’96 and that ‘[c]ulture, as a sector of activity, can be understood as a self-sustaining pillar in sustainable development’,97 thereby inviting the Commission ‘[t]o prepare, in coordination with Member States, an action plan on the cultural dimension of sustainable development at EU level and integrate the action plan in the EU’s implementation strategy for the 2030 Agenda’.98 The Commission is thus actively working to cope with this mandate, especially coordinating Member States’ actions on sustainable cultural tourism.99 Further, it has delivered a framework for action on cultural heritage, stressing the need for a holistic, integrated and mainstreamed approach.100 Ultimately, it might be argued that the EU – or, rather, the Commission – has been taking the lead on actions aimed at mainstreaming sustainable development and culture. Yet, this is possible solely to the extent that Member States’ actions need to be supported, complemented and supplemented in the cultural field, with any harmonization whatsoever excluded. Essentially, then, the EU encourages

94 Commission Staff Working Document, ‘A New European Agenda for Culture – Background information’ SWD(2018) 167 final (22 May 2018). 95 Christer Gustafsson and Bálazs Mellár, ‘Research for CULT Committee– Best Practices in Sustainable Management and Safeguarding of Cultural Heritage in the EU’ (European Parliament 2018) . 96 Resolution of the Council of the European Union and the Representatives of the Governments of the Member States meeting within the Council on the Cultural Dimension of Sustainable Development [2019] OJ C-410/1, 1, para 3. 97 ibid 2, para 11. See also Valerie Guévremont, ‘La reconnaissance du pilier culturel du développement durable: vers un noveau mode de diffusion culturelles au sein de l’ordre juridique mondial’ (2012) 50 CYIL 163. 98 Resolution on Cultural Dimension (nt. 96) 5, para 1. 99 Report of the OMC (Open Method of Coordination) Working Group of Member States’ Expert, ‘Sustainable Cultural Tourism’ (2019) . The report proposes a definition of sustainable cultural tourism as ‘the integrated management of cultural heritage and tourism activities in conjunction with the local community, creating social, environmental and economic benefits for all stakeholders in order to achieve tangible and intangible cultural heritage conservation and sustainable tourism development’, ibid 8. On the use of OMC in the cultural sector, Evangelia Psychogiopoulou, ‘The Cultural Open Method of Coordination: A New but Different OMC?’ (2018) 3 EP 257. 100 European Commission, ‘European Framework for Action on Cultural Heritage’ (2019) . See also European Parliament resolution of 20 January 2021 on achieving an effective policy legacy for the European Year of Cultural Heritage [2021] OJ C-456/24, para 23 (‘the cultural heritage sector contributes to economic development with noteworthy spillover effects in other economic sectors; reiterates the strong correlation between cultural heritage and sustainable development’).

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Member States to protect their own culture – and, especially, cultural heritage – taking into consideration the need to mainstream sustainable development and its societal, economic and environmental components. This surely is a very welcome outcome, apparently unaffected by the lack of binding acts. What the EU can do, and is doing, is the promotion of programmes aimed at fostering the interlinkages between culture and sustainable development, through the identification of sites merging the importance of the aforementioned concepts.101 Should the Commission keep this integration trajectory – corroborated by solid data102 – it cannot be ruled out that litigation might be brought before the ECJ, for instance, in respect of the attribution of economic funds to be spent in climate-neutral projects, thereby shedding additional light on a debate that, so far, has been scarcely explored even by EU law scholars.103 All in all, different perspectives are open for the future. With the Green Deal,104 the Commission is putting forward several legislative proposals aimed at making the EU greener, using sustainable development as the principled tool to do so, especially in respect of economic development.105 However, if the Green Deal ‘is not just a potentially important passage in the history of the European integration process, but also a tentative contribution to the global ecological transition’,106 once again it will be up to the EU and the Member States, acting in sincere cooperation, to make culture and sustainable development the priority for present and future generations.

101 European Commission, ‘Linking Natura 2000 and Cultural Heritage’ (2017) . 102 Paola Monaco, ‘Exploring the Links between Culture and Development: New Challenges for Cultural Indicators in the European Union’, in Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini (eds) Cultural Heritage in the European Union. A Critical Inquiry into Law and Policy (Brill 2019) 143. 103 Notable exceptions are Christina Eckes, ‘Tackling the Climate Crisis with Counter-Majoritarian Instruments: Judges between Political Paralysis, Science and International Law’ (2021) 6 EP 1307; Aurélie Laurent, ‘Face aux déconvenues du contentieux climatique de l’Union européenne, les droits fondamentaux au secours du climat?’ (2022) 7 EP 253. Both authors refer to the two first-ever cases heard by the Tribunal and the Court on climate change, both dismissed on procedural grounds, namely, the restrictive locus standi dictated by Article 263 TFEU. Case T-330/18, Armando Carvalho and Others v European Parliament and Council of the European Union [2019] ECLI:EU:T:2019:324; Case C-565/19 P, Armando Carvalho and Others v European Parliament and Council of the European Union [2021] ECLI:EU:C:2021:252; Case T-141/19 Peter Sabo and Others v European Parliament and Council of the European Union [2020] ECLI:EU:T:2020:179; Case C-297/20 P, Peter Sabo and Others v European Parliament and Council of the European Union [2021] ECLI:EU:C:2021:24. For other relevant, still pending disputes: Case C-5/22 Green Network; Case C-94/22 Gruppo Mauro Saviola; Case C-93/22 Edison Next. 104 Communication from the Commission, ‘The European Green Deal’ COM(2019) 640 final (11 December 2019). 105 Maria Cristina Carta, ‘Il Green Deal europeo. Considerazioni critiche sulla tutela dell’ambiente e le iniziative di diritto UE’ (2020) 6 Eurojus 54. 106 Edoardo Chiti, ‘Managing the Ecological Transition of the EU: The European Green Deal as a Regulatory Process’ (2022) 59 CMLR 19, 45. The Green Deal has also been linked to the Conference on the Future of Europe. Josephine van Zeben, ‘The European Green Deal: The Future of a Polycentric Europe? (2020) 26 ELJ 300.

EU Law, Sustainable Development and Culture 127 In this sense, a potential strategy to foster the integration between culture and sustainable development, as well as to enhance the adoption of more stringent measures could be an amelioration of the so-called EU cultural diplomacy.107 In this respect, a potential accession to other UNESCO Conventions could be beneficial whereas, by contrast, the EU full membership to UNESCO is to be definitely ruled out.108 Nonetheless, as always, much rests on the political willingness of the Commission and the Council, supported by the Parliament, to proactively promote the integration of sustainable development and culture in EU policies.

107 Joint Communication to the European Parliament and the Council, ‘Towards an EU Strategy for International Cultural Relations’ JOIN(2016) 29 final (8 June 2016). See also Council Conclusions on an EU Strategic Approach to International Cultural Relations and a Framework for Action [2019] OJ C-192/6. 108 Luca Paladini, ‘La cooperazione tra l’UNESCO e l’UE: aspetti istituzionali e materiali’ (2019) 41 DPCE Online 2497.

Part III

Tangible Cultural Heritage, Sustainable Development and Human Rights

8

The 2030 Agenda for Sustainable Development Its Impact on the Implementation of the 1972 World Heritage Convention* Sabine von Schorlemer**

1

Introduction

In September 2015, the UN replaced the eight Millennium Development Goals by adopting the new milestone document “Transforming Our World: The 2030 Agenda for Sustainable Development” for the period 2015–30.1 UNESCO, its Advisory Bodies and the World Heritage Centre were actively involved in the travaux préparatoires of the 2030 Agenda.2 Culture and heritage were seen as cross-cutting issues exerting influence on all dimensions of development.3 Two years before the adoption of the 2030 Agenda, the UNESCO Hangzhou Declaration on ‘Placing Culture at the Heart of Sustainable Development Policies’, adopted on 17 May 2013, for instance, recommended ‘a specific Goal focused on culture [to] be included as part of the post-2015 UN development agenda, . . . based on heritage, diversity, creativity and the transmission of knowledge’.4 In addition, ICOMOS, at its 18th General Assembly in November 2014, called on the UN ‘to recognize the role of cultural heritage specifically, and culture in general, in sustainable development through the explicit inclusion of cultural heritage and culture

* This chapter was finalized on 30 November 2022. ** Chair of International Law, European Union Law, and International Relations at TUD (Dresden University of Technology), UNESCO Chair in International Relations. 1 UNGA, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (25 September 2015) (hereinafter: 2030 Agenda). 2 Giovanni Boccardi and Lindsay Scott, ‘A View from the Inside: An Account of the Process Leading to the Adoption of the Policy for the Integration of a Sustainable Development Perspective within the World Heritage Convention’, in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 21–36. 3 Sabine von Schorlemer and Sylvia Maus, ‘Die SDGs – Schnittstellen zur Kultur?’, in Tobias Debiel (ed) Entwicklungspolitik in Zeiten der SDGs: Essays zum 80. Geburtstag von Franz Nuscheler (Institut für Entwicklung und Frieden and Stiftung Entwicklung und Frieden 2018) 26–31; Sabine von Schorlemer, ‘Kultur in der Agenda 2030: Nachhaltige Entwicklungsziele (SDGs) und UNESCOWeltkulturerbe’, in Thomas Groh and others (eds) Verfassungsrecht, Völkerrecht, Menschenrechte – Festschrift für Ulrich Fastenrath zum 70. Geburtstag (CF Müller 2019) 223 ff. 4 UNESCO, ‘Hangzhou Declaration: Placing Culture at the Heart of Sustainable Development Policies’ (2013) 10. DOI: 10.4324/9781003357704-11

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related targets in the Sustainable Development Goals and the Post-2015 Development Agenda’.5 In the years leading to the adoption of the 2030 Agenda, several networks campaigned under the title ‘The Future We Want Includes Culture’ for the inclusion of one specific goal devoted to culture.6 Ultimately, none of the 17 Sustainable Development Goals (SDGs) focused exclusively on culture/cultural heritage. The impression is given that UNESCO’s efforts and campaigns to consider culture and cultural heritage as an enabler of sustainable development ‘cannot be deemed completely successful’.7 Nevertheless, SDG 11 requires making ‘cities and human settlements inclusive, safe, resilient and sustainable’ with its subgoal, Target 11.4, highlighting the need to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’.8 As this Target is the only one dedicated to cultural heritage, it is ‘serving as the anchor of much cultural heritage work’, as was argued in an ICOMOS publication.9 The influence of culture and specifically World Heritage, however, go far beyond SDG 11.4. Efforts are continuously renewed to strengthen the synergies between culture and sustainable development. At the forefront of these endeavours are a number of institutions spearheaded by UNESCO. Importantly, the UNESCO World Conference on Cultural Policies and Sustainable Development (MONDIACULT 2022), held from 28 to 30 September 2022 in Mexico City, called ‘for the strengthening and adaptation of our cultural policies to contemporary challenges, through the effective implementation of relevant UNESCO Culture Conventions and Recommendations’ and reiterated the ‘call for the protection of cultural heritage . . . notably in times of crisis’.10

5 ICOMOS, Resolution 18GA 2014/37, ‘Ensuring that Culture and Cultural Heritage Are Acknowledged in the Proposed Goals and Targets on Sustainable Development for the Post-2015 United Nations Development Agenda’ (2014) para 6. Last access to all links mentioned in this chapter: 28 November 2022. 6 For details of the campaign, ‘#culture2030goal’ . See also United Cities and Local Government (UCLG) and Culture 21, ‘Culture in the Sustainable Development Goals: A Guide for Local Action’ (May 2018) ; UN System Task Team on the Post-2015 UN Development Agenda, ‘Realizing the Future We Want for All: Report to the Secretary-General’ (2012) . 7 Sophia Labadi, ‘Historical, Theoretical and International Considerations on Culture, Heritage and (Sustainable) Development’, in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 46. 8 UNDESA, ‘Goal 11. Targets and Indicators’ . 9 Sophia Labadi et al, Heritage and the Sustainable Development Goals: Policy Guidance for Heritage and Development Actors (ICOMOS 2021) 13. 10 UNESCO, ‘World Conference on Cultural Policies and Sustainable Development – MONDIACULT 2022 (28–30 September, Mexico City) Final Declaration’ (2022) , paras 12, 14.

The 2030 Agenda for Sustainable Development 133 Against this backdrop, it becomes increasingly important to create an integrated approach to World Heritage and sustainable development. Particularly in light of various crises and the multiple challenges to sustainable development in relation to World Heritage Sites – including those related to investment projects, climate change and its effects (e.g. desertification, flooding, and deforestation), resources depletion/biodiversity loss, poverty, social inequalities, and last but not least, military conflicts – the question arises as to which extent World Heritage Sites can contribute to addressing the sustainability challenges the world faces at large. 2

Research Questions and Outline

‘Sustainability . . . is inherent to the spirit of the World Heritage Convention’, as the World Heritage Committee (WHC) emphasized.11 This chapter will first examine the regulatory and legal framework relevant for the interrelation between World Heritage and the SDGs, thereby laying the groundwork for the nexus between the two. Second, this contribution will explore the synergies between World Heritage and the SDGs by illuminating the impetuses and policies that shape the nexus between World Heritage and the SDGs. Third, this chapter will examine prevailing challenges and opportunities related to the nexus between World Heritage and the SDGs. This will shed some light on the current challenges that need to be overcome to ensure sustainable development for cultural heritage, but it will also highlight some synergistic opportunities that exist between the SDGs and World Heritage. An introductory part will present the 1972 WHC as the basis for the sustainable use and management of cultural heritage, including buffer zones and the wider setting of World Heritage Sites. It will then explore to what extent and in which ways the WHC, its Advisory Bodies, the World Heritage Centre and site managers are actively supporting the process of implementing the 2030 Agenda. The Policy Document strives to bring the 2030 Agenda into line with the 1972 WHC and aims at assisting States Parties, practitioners, institutions, communities, and networks, through appropriate guidance to that end.12 In addition, the “Culture 2030 Indicators” are helping to operationalize the 2030 Agenda within UNESCO.13 Valuable inputs were also given by the UNESCO World Heritage Centre to the UN High-Level Political Forum on Sustainable Development (HLPF).14

11 WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) (hereinafter: Policy Document) para 7(iii). See also Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 12 Policy Document, para 10. 13 UNESCO, ‘Thematic Indicators for Culture in the 2030 Agenda’ (2019) . 14 UNESCO, ‘Inputs from the UNESCO World Heritage Centre to the UN High Level Political Forum on the SDGs (HPLF)’ (2021) .

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Given the intersections between the 2030 Agenda and the 1972 WHC on the normative level, it will be interesting to explore the extent to which an integrated approach can be helpful in promoting the fair, equitable, and sustainable use and management of cultural heritage along the lines of the 2030 Agenda in practice. The assumption in this context is that ‘heritage-based approaches can contribute to sustainable development in more ways than conventionally assumed’.15 Although, as ICOMOS stated, ‘some SDGs may seem more relevant to heritage than others’, they all should be treated ‘consistently’.16 An integrated approach, which aims to combine the Goals of the 2030 Agenda with cultural heritage law, is seen as a way to promote the sustainable and equitable management of World Heritage, avoiding its over-exploitation and misuse. The value added of an integrated approach in implementing the 1972 WHC, it will be argued, will help to keep the 2030 Agenda process on track, especially in the light of problems arising due to the COVID-19 pandemic and the repercussions of new international conflicts. Along these lines, the chapter goes beyond a narrow definition of World Heritage conservation, discussing several practical examples of how the 2030 Agenda can be aligned with the 1972 WHC. The prevention of excessive nomination practices (“listing procedure”), the reduction of overtourism, and the role of World Heritage in relation to peace and security will be addressed, for they are major prevailing challenges for sustainable heritage governance. The examples given in this chapter, though not exhaustive, will illustrate some opportunities that the 2030 Agenda offers for World Heritage, including participatory governance, the promotion of human rights principles, and the preservation of cultural heritage for future generations. 3

SDGs and Their Linkage to World Heritage: The Legal and Regulatory Framework

In the following, the 1972 WHC is presented as a foundation for the sustainable use and management of cultural heritage. Subsequently, this chapter will explore how the 2030 Agenda intersects with World Heritage. 3.1

The World Heritage Convention as the Basis for the Sustainable Use and Management of Cultural Heritage

Opposition to bringing together heritage and development has prevailed for a long time. According to this reasoning, which was also voiced in the academic field, ‘culture and heritage were often considered as the direct opposite of economic development’, the perception being that of ‘development versus heritage’.17 Culture

15 Labadi et al (nt. 9) 8. 16 ibid. 17 Labadi (nt. 7) 37 ff.

The 2030 Agenda for Sustainable Development 135 and heritage were viewed as ‘inhibitors of development in terms of progress and modernity’.18 It is thus not surprising that neither the 1972 WHC’s wording contains any reference to sustainability or sustainable development, nor that the 1992 Rio Declaration on Environment and Development makes no mention of cultural or natural heritage.19 When the 1972 WHC was adopted, sustainable development was not yet a topic on the UN agenda. It was only after the 1972 WHC entered into force in 1975 that the environmental movement gained force, and that aspects of sustainability and sustainable development became increasingly relevant for the use and management of World Heritage. As defined by the Brundtland Commission,20 and multilaterally agreed upon by the 1992 Rio Conference on Environment and Development, “sustainable development” is development that ‘meets the need of the present without compromising the ability of future generations to meet their own needs’.21 Similar to this view, it is the duty of each State Party of the 1972 WHC to ensure ‘the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage’ (Article 4). By including both nature and culture, the 1972 WHC offers an excellent basis ‘to address all aspects of sustainability at World Heritage sites’.22 In this respect, the 1972 WHC is ‘unique’, as Mechtild Rössler has emphasized.23 In particular, mixed sites and cultural landscapes are important categories in this respect. They bridge the conceptual differentiation between ‘culture and nature’ expressed in Article 1 of the 1972 WHC,24 and contribute to modern techniques of sustainable land use. For that reason, it is recommended that one takes into account the ‘more complex realities on the ground and a growing realization that nature and culture are inextricably linked’.25

18 ibid 38, with further references. 19 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992). 20 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987). 21 ibid para 27. 22 Mechtild Rössler, ‘World Heritage and Sustainable Development: The Case of Cultural Landscapes’ in Dieter Offenhäusser, Walther Ch Zimmerli and Marie-Theres Albert (eds) World Heritage and Cultural Diversity (German Commission for UNESCO 2010) 201. 23 ibid. 24 Kathryn Whitby-Last, ‘Article 1: Cultural Landscapes’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 51 ff; Christina Cameron, ‘UNESCO and Cultural Heritage: Unexpected Consequences’, in William Logan, Mairéad Nic Craith and Ullrich Kockel (eds) A Companion to Heritage Studies (Wiley Blackwell & Sons 2016) 325; Amy Strecker, ‘Landscape as Cultural Heritage’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 280. 25 ARGUS Potsdam e.V. and World Heritage Watch (eds) The Potsdam Papers: Results of the Potsdam Conference of the Future of World Heritage (2021) 101.

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As a matter of principle, each State Party must ensure that the use of World Heritage Sites is sustainable and does not have a detrimental effect on its Outstanding Universal Value (OUV)26 and, therefore, on the integrity and authenticity of the World Heritage Site. The 1972 WHC can thus be seen as a binding starting point for the implementation of the SDGs: building on its treaty-binding obligations under international law, capacity-building, monitoring and project implementation must take place in accordance with the 2030 Agenda. 3.2

The 2030 Agenda and Intersections with Cultural Heritage

The 2030 Agenda with its 17 SDGs and 169 specific subgoals (Targets) for sustainable development, adopted by heads of state and government on 25 September 2015 in New York, contains several intersections with UNESCO cultural law,27 which – if used systematically – can be beneficial for the preservation of World Heritage and its transmission to future generations. The SDGs that are relevant to the preservation of World Heritage, and people living on the sites, in the buffer zones or in the wider setting concern, among others: ensuring the promotion of healthy lives and well-being, including of those communities living at World Heritage Sites (SDG 3); making cities and settlements sustainable, which includes enhancing environmental resilience (SDGs 11, 14, 15); furthering climate action through World Heritage (SDG 13); enabling poverty alleviation and sustainable livelihoods for local communities (SDGs 1, 8, 12); and enhancing knowledge and skills (SDG 4). Equally important is the promotion of social inclusion and the empowerment of local communities, including youth, women, and Indigenous peoples (SDGs 5, 10). Regarding the 1972 WHC, several Targets of the 2030 Agenda are specifically relevant as well.28 The implementation of the Convention, it is hoped, will contribute to, and promote, inter alia:29 • environmental sustainability (by protecting natural resources such as water, biological diversity [Targets 6.6, 14.5 and 15.1] and supporting heritage resilience [Targets 2.4 and 11.4]); • inclusive social development (by contributing to well-being and equity [Target 10.2], the respect of fundamental rights [Targets 16.10], communities’ involvement [Target 16.7] and gender equality [Target 5.5]);

26 WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) (hereinafter: WHC Operational Guidelines) paras 49, 77 ff. 27 For direct references using the word “culture/cultural” and indirect references using concepts associated with culture and/or heritage in the 2030 Agenda, Labadi et al (nt. 9) 13 ff. 28 von Schorlemer, ‘Kultur’ (nt. 3) 223–258. 29 UNESCO, ‘Thematic Indicators’ (nt. 13) 14.

The 2030 Agenda for Sustainable Development 137 • inclusive economic development (in driving forward equitable growth and the generation of decent employment [Target 8.3] and sustainable tourism [Targets 8.9 and 12(b)]); • training for skills and innovation [Targets 4.4 and 4.7]; and • peace and security (by facilitating conflict prevention and resolution [Target 16(a)]). Clearly, numerous intersections of the 2030 Agenda and culture/cultural heritage can be identified. This reflects the understanding of culture as a powerful, transformative source, supporting the necessary processes of adaptation in the 21st century. The link between sustainable development and the preservation of cultural heritage exists ‘in the sense that sustainable growth can lead to the preservation of the tangible heritage’30 while promoting the inclusion, participation, and well-being of individuals and communities at the same time.31 In this light, it is a major objective of UNESCO to integrate sustainabilityrelated Goals and Targets into existing treaty law and programmes. 4

Consolidation of SDGs and World Heritage Policies and Impetuses: The Institutional Framework

Against the backdrop of the regulatory and legal framework as outlined above, the institutional setting for the continuous development of sustainable development and World Heritage will be analyzed. 4.1

Impetuses of the Advisory Bodies Regarding Cultural Heritage and the 2030 Agenda

The process of integrating sustainability-related goals and targets into existing Cultural Conventions and UNESCO programmes started right after the adoption of the 2030 Agenda by UN Member States in New York on 25 September 2015. With Resolution 20 GA 13 of 20 November 2015,32 the Assembly of States Parties to the 1972 WHC aimed at supporting States Parties, practitioners, institutions, communities, and networks in realizing the potential of the 1972 WHC to achieve sustainable development. The World Heritage Centre and Advisory Bodies were requested to ensure that proposals were made for necessary changes to

30 Lucas Lixinski, ‘Sustainable Development in International Heritage Law: Embracing a Backwards Look for the Sake of Forwardness?’ (2014) 32 AYIL 65, 65; Alessandro Chechi, ‘Non-State Actors and the Implementation of the World Heritage Convention in Asia: Achievements, Problems, and Prospects’ (2018) 8 ASJIL 461, 485. 31 von Schorlemer, ‘Kultur’ (nt. 3) 257. 32 WHC, ‘Resolutions adopted by the General Assembly of State Parties to the World Heritage Convention at its 20th Session (UNESCO, 2015)’ WHC-15/20.GA/15 (20 November 2015) 7 ff.

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the Operational Guidelines, for indicators to measure progress, and for capacitybuilding initiatives.33 In its Concept Note for the 2030 Agenda, called “Cultural Heritage, the UN Sustainable Development Goals, and the New Urban Agenda” of 15 February 2016, ICOMOS argued ‘for the positive integration of culture and cultural heritage into urban development plans and policies as a way to enhance sustainability of urban areas through heritage’,34 thus emphasizing an integrative approach. The underlying assumption was that culture and cultural heritage act as ‘an enabler for social cohesion, inclusion and equity; and in promoting the livability and sustainability of urban areas’.35 The subsequent ICOMOS Action Plan ‘Cultural Heritage and Localizing the UN Sustainable Development Goals’, as of July 2017 focused on the means of implementation, e.g., building visibility and awareness at the national and local level, partnering with stakeholders, and seeking funds. In addition, an improved monitoring method for Target 11.4, including the application of refined indicators for reporting and reviewing, was developed.36 As ICOMOS underlined, cultural heritage ‘can improve livability, resilience and sustainability’ and acts as a driver for inclusive sustainable development.37 As far as ICCROM is concerned, its commitment to the SDGs regarding cultural heritage was equally firm right from the outset. As was stated in a rather idealistic way, ‘[w]e believe in the power of cultural heritage and its ability to help make the world a better place’.38 In its contribution to achieving the objectives of the 2030 Agenda, ICCROM focuses on a multitude of SDGs, mainly 3–5, 8–13, 16, and 17. Implementation activities cover a broad spectrum. Regarding SDG 11, ICCROM’s advisory role in the WHC was seen in ‘linking cultural and natural heritage’.39 With respect to SDG

33 ibid 7, para 8. 34 ICOMOS, ‘ICOMOS Concept Note for the United Nations Agenda 2030 and the Third United Nations Conference on Housing and Sustainable Urban Development (HABITAT III)’ (15 February 2016) 2. 35 ibid. For details, Jyoti Hosagrahar, ‘Inclusive Social Development and World Heritage in Urban Areas’ in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 68 ff. See also Jyoti Hosagrahar, ‘Urban Heritage and Sustainable Development in South Asia: A Plea for a HeritageAware Approach’, in Marie-Theres Albert (ed) Perceptions of Sustainability in Heritage Studies (De Gruyter 2015) 113 ff; UNESCO, ‘Culture: Urban Future: Global Report for Sustainable Urban Development’ (2016) . 36 ICOMOS, ‘ICOMOS Action Plan: Cultural Heritage and Localizing the UN Sustainable Development Goals’ (2017) 9 ff. 37 ibid, Appendix 1 ‘Background of the UN Agenda 2030 and the SDGs’ 12. 38 ICCROM, ‘ICCROM’s Commitment to the Sustainable Development Goals’ . 39 ibid.

The 2030 Agenda for Sustainable Development 139 3, to give another example, ICRROM’s work ‘promotes access to heritage of all types and celebrates its value for the well-being of individuals and communities’.40 Thus, with respect to World Heritage, the Advisory Bodies started some important initiatives with the aim of implementing the new global vision of sustainability within UNESCO. This process gathered pace. Additionally, a new strategic document was developed shortly after the adoption of the 2030 Agenda: the Policy Document, which addresses the integration of a sustainable development perspective into the processes of the 1972 WHC. 4.2

The UNESCO Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention

Regarding UNESCO’s efforts to make the 2030 Agenda an inherent and vibrant part of World Heritage Law, the Policy Document, adopted by the General Assembly of the States Parties to the 1972 WHC in 2015, is of particular relevance. The Policy Document recognizes that the Convention ‘is an integral part of UNESCO’s overarching mandate to foster equitable sustainable development’ (para 1). Following this line of reasoning, the document highlights that ‘States Parties should . . . recognise that, for many World Heritage properties, achieving sustainable development will require acting at a scale that is much larger than the property itself’ (para 10). This being said, there are two dimensions which are discernible. First of all, the Policy Document is a comprehensive strategy to bring the 2030 Agenda closer to the 1972 WHC and to integrate its principles in the process of the implementation of the Convention. In doing so, the Policy Document represents ‘an important shift through the embedding of concepts of sustainable development and the 2030 Agenda within the core mechanisms of the Convention’.41 Sustainable development, it is assumed, ‘may bring benefits to World Heritage properties and support their OUV, if carefully integrated within their conservation and management systems’ (para 3). Therefore, States Parties should ensure ‘that their conservation and management strategies are aligned with broader sustainable development objectives’.42 Second, there is another dimension, also reflecting an integrated approach. The perspective of the 2030 Agenda is not only to be used as a tool to preserve the OUV of World Heritage but is also beneficial for people. As Boccardi and Scott emphasized, a people-centred approach is inherent in the ‘introduction of a sustainable development perspective into World Heritage’.43

40 41 42 43

ibid. UNESCO, ‘Thematic Indicators’ (nt. 13) 14. Policy Document, para 4. Boccardi and Scott (nt. 2) 33.

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An important aspect of this wider perspective takes into consideration the human rights situation of people living at or nearby World Heritage Sites. The Policy Document emphasizes that the 1972 WHC ‘contributes significantly to sustainable development and the well-being of people’ (para 3). The explanation given is that ‘World Heritage properties themselves often play a direct role in providing food, clean water and medicinal plants and ensure measures are in place for their protection and use in an equitable way’.44 Therefore, ‘States Parties should commit to uphold, respect and contribute to the implementation of the full range of international human rights standards as a prerequisite for effectively achieving sustainable development’.45 They should adopt a ‘rights-based approach, which promotes World Heritage properties as exemplary places for the application of the highest standards for the respect and realization of human rights’.46 For example, regarding the rights of Indigenous peoples and their relevance for the 2030 Agenda, the Policy Document leaves no doubt that ‘[r]ecognising rights and fully involving indigenous peoples and local communities, in line with international standards is at the heart of sustainable development’.47 This also pays due respect to the UN Declaration on the Rights of Indigenous Peoples.48 This is a remarkable result, as it places human rights at the forefront. In implementing the 1972 WHC in light of the 2030 Agenda, it is essential ‘to respect, protect and promote . . . environmental, social, economic, and cultural rights’.49 As a result, the Policy Document not only underlines the relevance of human rights, it ‘puts an unprecedented explicit emphasis on mainstreaming human rights’, as was rightly observed.50 4.3

The “Culture 2030 Indicators”

The global 2030 Agenda requires that sustainability is taken into account in all world regions, countries and cities in the 21st century. Important legal developments have taken place in this regard. However, the general question remains: how to evaluate the progress?

44 45 46 47

Policy Document, para 19(iii). ibid para 20. ibid para 20(ii). ibid para 21. See also Stefan Disko and Max Ooft, ‘The World Heritage and Sustainable Development Policy – A Turning Point for Indigenous Peoples?’, in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 112. 48 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/Res/61/295 (13 September 2007). See also von Schorlemer, ‘Kultur’ (nt. 3) 249. 49 Policy Document, para 7(i). 50 Peter Bille Larsen, ‘Human Rights, Wrongs and Sustainable Development in World Heritage’, in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 120.

The 2030 Agenda for Sustainable Development 141 Without an international body that rigorously monitors how States Parties are implementing the 2030 Agenda, while simultaneously being able to require stricter implementation measures or even sanctions, if needed, the process of implementation will inevitably be delayed. In order to measure and monitor the progress of the contribution of culture and World Heritage to enabling the national and local implementation of the Goals and Targets of the 2030 Agenda, the “Culture 2030 Indicators”, launched in June 2020, are an important tool. Developed under the leadership of UNESCO, the “Culture 2030 Indicators” build upon various instruments, among them the UNESCO Culture Conventions (including the 1972 WHC), periodic reporting mechanisms, and methodologies specific to the 2030 Agenda. The document analyzes to what extent the UNESCO Culture Conventions, including the 1972 WHC, have incorporated relevant SDGs into their implementation and monitoring mechanisms since the adoption of the 2030 Agenda – that is to say, the identification of specific Goals or Targets integrated in their results framework, and the alignment of concepts.51 The thematic indicators were developed for an integrated approach to heritage by a large number of institutions and professionals over a two-year period from 2017 to 2019. They are grouped into four categories, focusing on environment and resilience, prosperity and livelihoods, knowledge and skills, inclusion and participation. Additionally, a transversal approach was developed regarding partnerships and gender equality. Given the fact that it is difficult to measure a direct impact, indicators serve to evaluate the inputs, outcomes and processes as elements for the longer-term monitoring of impacts.52 As the Guiding principles of the “Culture 2030 Indicators” set forth: Each thematic dimension combines these different types of indicators to measure inputs (e.g. development of cultural infrastructure), processes (e.g. governance mechanisms) or outputs (e.g. participation in cultural life).53 In this way, the “Culture 2030 Indicators” reflect a results-based management concept, with a Results-Based Management (RBM) framework viewed as a ‘key conceptual mechanism at the core of UNESCO programme delivery’.54 The indicators help to measure the realization of Targets. To give an example, as far as the first category of environment and resilience is concerned, the “Culture 2030 Indicators” incorporate the global SDG indicator 11.4.1 on heritage 51 UNESCO, ‘Thematic Indicators’ (nt. 13) 13. 52 Bojan Radej and Jelka Pirkovič, ‘Evaluation Procedure and Use of Indicators for an Integrated Approach to Heritage’ in Council of Europe (ed) European Cultural Heritage Strategy for the 21st Century (Council of Europe 2018) 54, 57. 53 UNESCO, ‘Thematic Indicators’ (nt. 13) 19. 54 ibid.

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expenditure as the principal indicator. This new ‘internationally-comparable indicator reflects the total amount per capita each country spends to protect their cultural and natural heritage’.55 The more detailed description is: Total expenditure (public and private) per capita spent on the preservation, protection and conservation of all cultural and natural heritage, by type of heritage (cultural, natural, mixed, World Heritage Centre designation), level of government (national, regional, and local/municipal), type of expenditure (operating expenditure/investment) and type of private funding (donations in kind, private non-profit sector, sponsorship).56 As a result, this indicator illustrates how financial action by several sources has a direct impact on safeguarding heritage, making cities and human settlements (Target 11) more sustainable. There is hope that the “Culture 2030 Indicators” will permit Member States of the 1972 WHC to monitor their own progress as regards the outcomes of their policies and to reinforce their national priorities relevant to the sustainable use and management of World Heritage. As the Assistant Director-General Ernesto Ottone R. set forth, the indicators aim to help decision makers in countries and cities with different capacities ‘by building a coherent and strong narrative on culture and development that is evidencebased’.57 Evidence gathered, it was expounded, ‘will inform policies and decisions as well as operational actions’.58 In addition, a knowledge base for action would be built up while good practices would help to create a better understanding of the 2030 Agenda and its impacts. These are important steps to fill the 2030 Agenda with life by measuring progress. 4.4

The World Heritage Centre’s Input to the UN High-Level Political Forum on Sustainable Development

The COVID-19 pandemic and in particular the aggravation of poverty which was related to it in the global South have presented a heavy burden on the implementation of the 2030 Agenda. The shutdown of World Heritage properties caused major socio-economic problems, ranging from reduced maintenance, protection and management on the one hand to the loss of livelihoods on the other hand. As the impacts of the COVID-19 crisis will be long-lasting, it is to be feared that the timeline of the 2030 Agenda is not on track anymore.

55 56 57 58

UNESCO, ‘Thematic Indicators’ (nt. 13) 20. ibid 36. ibid 7, ‘Foreword’ by Ernesto Ottone R. ibid 10.

The 2030 Agenda for Sustainable Development 143 In order to overcome these problems, a strong common effort of all UN Organizations, including UNESCO and its Member States, is needed in order to achieve the SDGs by 2030. Against this backdrop, the 1972 WHC focuses on practical ways in which an integrated approach might be helpful to promote a fair, equitable and sustainable use and management of World Heritage. In order to better understand COVID-19 related changes at the sites, the World Heritage Centre launched a survey in February 2021 aimed at site managers.59 In March 2021, ‘Inputs from the UNESCO World Heritage Centre to the UN High Level Political Forum on the SDGs (HLPF)’ brings together a number of key policies and measures taken by the WHC and the World Heritage Centre in the framework of the UN 2030 Agenda for Sustainable Development. Concerning Goal 11 regarding Sustainable Cities and Communities, the World Heritage Cities Programme – adopted by the WHC at its 25th session in Helsinki, 2001 – was seen as an important tool to make the integration of sustainable development with heritage conservation at the local level a major objective.60 This is reflected in the activities of site managers of more than 300 World Heritage properties through the ‘World Heritage City Dialogues’61 that have been established as a virtual platform for site managers and local authorities, and a ‘World Heritage City Lab’ aimed at developing solutions to the challenges of managing World Heritage cities.62 The UNESCO Cities platform brings together more than six different programmes on cities, including World Heritage cities, thus reinforcing ‘the linkages between all areas of action of UNESCO’.63 In addition to that, the World Heritage Centre focused on a broad methodology for implementing the 2011 Recommendation on the Historic Urban Landscape (hereinafter: HUL Recommendation) in World Heritage properties.64 As a result, the 40th UNESCO General Conference in Paris, November 2019, reaffirmed the importance of the HUL Recommendation in the context of the UN 2030 Agenda for Sustainable Development.65

59 UNESCO World Heritage Centre, ‘Tourism Survey to Analyze Impacts of COVID-19’ . 60 UNESCO, ‘Inputs’ (nt. 14) para 5. 61 UNESCO, ‘World Heritage City Dialogues Summary Outcomes 2020’ (2021) . See also UNESCO, ‘World Heritage Cities Programme’ . 62 UNESCO, ‘World Heritage City Lab Summary Report 17–26 June 2020’ (2021) . 63 UNESCO, ‘Inputs’ (nt. 14) para 5. 64 UNESCO World Heritage Centre, ‘International Experts Meeting – Heritage in Urban Contexts: Impacts of Development Projects on World Heritage Properties in Cities’ . See also UNESCO, ‘Inputs’ (nt. 14) para 5. 65 UNESCO, ‘Consolidated Report on the Implementation by Member States of the 2011 Recommendation on the Historic Urban Landscape’ (30 July 2019) para 19.

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This rather broad range of measures and projects include protecting the world’s cultural and natural heritage in line with Goal 11.4. However, they also go beyond, ‘contributing transversally across a number of other Goals and Targets’.66 In fact, SDGs relevant to World Heritage were ‘mainstreamed in the conservation and management of at least 151 World Heritage properties’ between 2017 and 2020.67 Furthermore, a World Heritage Compendium was adopted.68 Moreover, Regional Action Plans developed by the Arab State region and the Africa region include strategic objectives relating to sustainable development.69 As can be seen from this brief overview, World Heritage programmes, with support from the Centre, are seeking to establish best practices for the development and adoption of site management policies and strategies that advance the 2030 Agenda process. This is crucial because practical measures are needed to make the 1972 WHC a robust and sustainable instrument for the protection of humanity’s heritage for present and future generations. 5

Prevailing Challenges Pertaining to the Nexus between World Heritage and Sustainable Development

While the integration of sustainable development into World Heritage continues to evolve, significant challenges remain. The following section spotlights some of these challenges, including excessive nominations, tourism and armed conflict. At the same time, important positive opportunities for improvement made possible by World Heritage for sustainable development are highlighted. 5.1

Prevention of Excessive Nominations (Listing Procedure)

Given the prestigious renommée and potential economic benefits that come with the UNESCO World Heritage titles, there is a strong tendency within the State community to inscribe as many cultural heritage sites as possible. This results in a proliferation of World Heritage, in particular on the part of wealthier States Parties in Europe, giving rise to post-colonial criticism, as well.70 At times, decisions by the WHC to nominate cultural heritage can even take place against the will of local communities and/or explicit advice of the WHC’s Advisory Bodies, ICOMOS and IUCN. This was a point of contention especially in regard to Indigenous communities. Until 2015, there had been no mention of Indigenous peoples in the Operational Guidelines for the implementation of the 1972 WHC. Only then did the participation of Indigenous peoples in the nomination process become more concrete.

66 UNESCO, ‘Inputs’ (nt. 14) Introduction. 67 ibid para 2. 68 UNESCO, ‘World Heritage Policy Compendium’ . 69 UNESCO, ‘Inputs’ (nt. 14) para 2. 70 Sabine von Schorlemer, UNESCO-Weltkulturerbe und postkoloniale Diskurse (Nomos 2022) 111.

The 2030 Agenda for Sustainable Development 145 Subsequently, for the first time, the relevant State had to provide evidence that compliance with the Free, Prior and Informed Consent (FPIC) principle was guaranteed.71 This can be seen as a significant step forward also for the sustainable development of World Heritage. Concerning measures to preserve cultural heritage and secure sustainability, the interests of States Parties seem to be less distinct, however. For example, there are comparatively few decisions taken to enter World Heritage on the List of Heritage in Danger, even though this would allow for comprehensive international assistance according to Articles 21 and 22 of the 1972 WHC. Choosing quantity instead of quality, there is a risk that the World Heritage system becomes unmanageable. In 2021, the total amount of natural and cultural properties inscribed on the List was 1154 sites. The ‘total number of properties on Tentative Lists amounts to 1,723’; at the same time, meaning that in all likelihood the World Heritage list ‘will grow to almost 3,000 properties’.72 Against this backdrop, various proposals to limit nominations have been made, including an overall moratorium.73 An effective means to prevent the excessive listing of sites might consist of the modification of procedural rules.74 One way could be to raise requirements for inscription (e.g. by not examining nominations for the World Heritage List from States Parties that have a property on the List of World Heritage in Danger). Another promising avenue could be to examine nominations only under the condition that the nominating State [s]ubmits, as part of the nomination, a 10-year Integrated Protection and Sustainable Development Plan for both the nominated property and its buffer zone, including a detailed investment plan, and with the explicit objective of embedding the property and buffer zone in a wider spatial context of sustainable development.75 For that purpose, World Heritage Watch, representing a broad alliance of nongovernmental institutions and experts, suggested the insertion of a new Article 62 into the Operational Guidelines.76 The current Article 62 of the Operational Guidelines requires States Parties to ‘include, in their Tentative List, details of those sites which they consider to be of

71 UNESCO, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.15/01’ (8 July 2015) 123, para 40. 72 ARGUS Potsdam and World Heritage Watch (nt. 25) 18. 73 Vincent Henssler, ‘Wenn es nach mir ginge, würde ich die Liste erst einmal stoppen’ Der Spiegel (8 August 2021) . See also ARGUS Potsdam and World Heritage Watch (nt. 25) 19. 74 Regarding the following proposals, ARGUS Potsdam and World Heritage Watch (nt. 25) 20. 75 ibid 31. 76 ibid 21.

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potential Outstanding Universal Value and which they intend to nominate during the following years’. To link this procedural rule to exigencies of sustainable development seems feasible and also plausible. There is no doubt that excessive listing will result in negative consequences for sustainability in the longer term. As more and more sites are added to the UNESCO World Heritage List, not only are the available resources for sustainable management limited or even declining, but also the people who live at the sites are affected if States Parties do not pay due regard to the sustainable development of the local area and/or the broader region. In other words, focusing on quantity and excessively expanding the List imperils the sustainability of World Heritage Sites. 5.2

Reduction of Overtourism: The Regulation of “Sustainable Tourism” and Integration in Site Management

At various times, the WHC has acknowledged the contribution of sustainable tourism to the 2030 Agenda.77 Generally, World Heritage Sites are highly attractive tourist destinations. Therefore, the nomination format for the inscription of properties on the World Heritage List requires States Parties to ‘[d]escribe development pressures affecting the nominated property and the management response to avert impacts on the nominated property’s authenticity and/or integrity’, including from factors such as tourism.78 In addition, the nomination format sets forth that ‘[s]ustainable development principles should be integrated into the management system’.79 Surely, a nomination without a substantial and detailed sustainable tourism plan is not acceptable in the framework of the 2030 Agenda. Overtourism is certainly a serious threat to the sustainable management of World Heritage Sites. Without adequate controls, negative effects from tourism will be manifold, starting with commodification of heritage, alterations of the economic/social fabric leading to the alienation of local communities, not to mention pressure on local resources as water, land, food, and waste. The lack of binding requirements on sustainable tourism in the nomination, management and monitoring of World Heritage Sites puts them at risk of degradation or even a loss of the OUV; it also ‘entails the missing of opportunities’, as was highlighted by a broad alliance of NGOs.80 Therefore, tourism plans developed in a participatory manner should become a binding requirement for all World Heritage Sites in order to ensure a sustainable level of tourism.

77 UNESCO, ‘Decision 42 COM 7, State of Conservation of World Heritage Properties’ WHC/18/42. COM/18 (4 July 2018) 13, para 45; UNESCO, ‘Decision 43 COM 7.3, State of Conservation of World Heritage Properties’ WHC/19/43.COM/18 (23 July 2019) 14, para 10. 78 WHC Operational Guidelines, 109, para 4(b)(i). 79 ibid 111, para 5(e). 80 ARGUS Potsdam and World Heritage Watch (nt. 25) 87.

The 2030 Agenda for Sustainable Development 147 As far as the management is concerned, the Policy Document addresses the sustainable transformation of World Heritage properties following their nomination. Several proposals are made, e.g. States Parties should – ‘where appropriate’, [d]evelop and promote inclusive and equitable economic investments in and around World Heritage properties that make use of local resources and skills, preserve local knowledge systems and infrastructures, and make local communities and individuals . . . the primary beneficiaries of these investments.81 ‘Part of the revenues from tourism activities’ should be reinvested ‘in the conservation and management of heritage resources in and around World Heritage properties’.82 Moreover, adequate visitor management planning should ‘implement socio-economic impact assessment prior to the approval of tourism projects associated with World Heritage properties’.83 Better tourism planning at the state level is also considered a priority by the WHC. In the framework for the implementation of the 2030 Agenda, the Committee requested ‘States Parties to develop Visitor Management Plans that assess appropriate carrying capacity of properties for visitors and address the issue of unregulated tourism’.84 These are important ways to achieve more sustainable tourism. However, the lingering question is what level and what sort of tourism is “sustainable” in terms of preserving heritage while paying due regard to the rights of individuals and local communities living at the site or nearby. A clarification of what constitutes “sustainable tourism” is therefore needed. A broad cultural heritage alliance of civil society organizations and individuals requested that the WHC urgently adopts a definition of the term “sustainable tourism”. This could include, among others, criteria such as ‘total tourist numbers’, ‘daily and seasonal visitor flow’, ‘carrying capacity of the property’, ‘strategic objectives of tourism management’, ‘numbers of staff and budget’, ‘measures in place to prevent or mitigate tourism-related damages’ and ‘key performance indicators, including a format and timeline’.85 Therefore, it is important to tackle the regulation of sustainable development and the integration in site management at the local, national and global level. As the Policy Document rightly stresses, ‘[t]he integration of a sustainable development perspective into the processes of the World Heritage Convention will require the building of necessary capacities among practitioners, institutions, concerned communities and networks, across a wide interdisciplinary and inter-sectorial spectrum’.86

81 82 83 84 85 86

Policy Document, para 26(i). ibid para 26(iii). ibid para 26(iv). UNESCO, ‘Decision 42 COM 7’ (nt. 77) para 46. ARGUS Potsdam and World Heritage Watch (nt. 25) 53. Policy Document para 11.

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In this respect, the 2030 Agenda is certainly able to provide important impetuses for the World Heritage. 5.3

The Contribution of World Heritage to Peace and Security (Goal 16): Strengthening the “Nexus to Peace”

Despite long-standing hopes that the waging of wars will be prevented on the basis of Chapters VI, VII, and VIII of the UN Charter, armed conflicts are a cruel reality in the 21st century. As the former Special Representative for Syria, Lakhdar Brahimi, emphasized, ‘the protection of cultural heritage, both tangible and intangible, is inseparable from the protection of human lives’.87 Therefore, it is an important question as to what extent UNESCO’s sustainable development policy along the lines of the 2030 Agenda can support the safeguarding of civilians and protection of civilian objects against the dangers resulting from military action, whether by armed forces or non-state armed groups. SDG 16 of the 2030 Agenda requires the promotion of peaceful and inclusive societies for sustainable development, including the Target to significantly reduce all forms of violence and related death rates everywhere. Regarding the implementation of SDG 16, respect of the 1907 Hague Convention,88 the 1977 Protocols to the Geneva Conventions,89 but also the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict90 and its two Protocols (1954 and 1999),91 is crucial. In contrast to that, the role of the 1972 WHC in situations of armed conflicts and crises has been less obvious. For many years, the Convention was mainly considered to be an instrument applicable in peacetime, while its role in armed conflict was rather neglected.92 This has changed over time.

87 UN Press Service, ‘Statement by UN Secretary-General Ban Ki-Moon, UNESCO Director-General Irina Bokova and UN and League ofArab States Joint Special Representative for Syria Lakhdar Brahimi: The Destruction of Syria’s Cultural Heritage Must Stop’ (12 April 2014) . 88 Convention (IX) concerning Bombardment by Naval Forces in Time of War (The Hague 18 October 1907) entered into force 26 January 1910 . 89 Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (Geneva 8 June 1977) entered into force 7 December 1978 ; Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (Geneva 8 June 1977) entered into force 7 December 1978 . 90 Convention for the Protection of Cultural Property in the Event of Armed Conflicts (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240. 91 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 358; Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (The Hague 26 March 1999) entered into force 9 March 2004 2253 UNTS 172. 92 Sabine von Schorlemer, Kulturgutzerstörung (Nomos 2016) 602.

The 2030 Agenda for Sustainable Development 149 As the war of aggression against Ukraine since 2014 has shown, it is often a minor step from peacetime to wartime. This ought to be reflected in cultural heritage law as well. Meanwhile, UNESCO Member States have acknowledged the interrelatedness of the peace and security-related SDG 16 of the 2030 Agenda and the 1972 WHC. As the General Assembly of States Parties stated, ‘[t]he World Heritage Convention is an integral part of UNESCO’s established mandate to build bridges towards peace and security’.93 But how to strengthen the 1972 WHC’s contribution to the realization of SDG 16? Several responsibilities of States Parties to foster peace and security enshrined in SDG 16 can be differentiated. They include ensuring conflict prevention, protecting heritage during conflict, promoting conflict resolution, and contributing to post-conflict recovery. First of all, during armed conflict, States Parties have the legal obligation to refrain from abuse of World Heritage properties and their immediate surroundings for purposes likely to expose them to destruction or damage. Furthermore, they are to refrain from any act of hostility directed against such property. To this end, they have to ensure that the ‘management and conservation of World Heritage properties receive due consideration in military planning and training programmes’.94 These obligations have a firm basis in international humanitarian law. Second, as far as the post-conflict phase is concerned, World Heritage properties and their wider setting can make a significant contribution to recovery and socioeconomic reconstruction. The Policy Document concerning SDG 16 requests States Parties to adopt measures to support the recovery of World Heritage properties and to ensure the full participation of the local communities concerned. In particular, they should promote . . . the reinstatement of oral traditions and expressions, performing arts, social practices, rituals, and festive events, knowledge and practices concerning nature and the universe, and traditional craftsmanship associated with the World Heritage properties, which may have been disrupted by the conflict.95 In recent years, rehabilitating World Heritage and addressing related socioeconomic issues has turned into a ‘realistic option’ for UNESCO.96 As can be observed in different places around the world, UNESCO is contributing actively to the recovery of war-torn societies in the post-conflict transition phase. Among others, under the aegis of UNESCO, in Mali precious mausoleums that were wilfully destroyed by armed non-state actors have been restored with the support of local 93 94 95 96

Policy Document, para 28. ibid para 31(ii). ibid para 33(iv). Sabine von Schorlemer, ‘Fighting Terrorist Attacks against World Heritage and Global Cultural Heritage Governance’, in James Cuno and Thomas G. Weiss (eds) Cultural Heritage and Mass Atrocities (Getty 2022) 458.

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communities.97 Also, UNESCO stabilization measures concentrated on a comprehensive inventory of Mali’s rich intangible cultural heritage and a listing of the Imzad musical tradition of Tuareg communities.98 It is important to note that it is not only physical heritage that should be rehabilitated, but also intangible elements. Third, and last but not least, SDG 16 might be helpful to prevent conflict – that is to say that it may help to avoid conflicts between States Parties over World Heritage.99 In the process of implementing the 1972 WHC, conflicting interests may exist, for example, regarding the question of who has property rights to land, issues around the delineation of the site, or who should benefit from heritage related activities, such as tourism. It was a bitter lesson learned in recent years that military conflicts may arise in the wake of the inscription of World Heritage. Open hostilities broke out following the Cambodian request to inscribe the Temple of Preah Vihear on the World Heritage List was accepted in 2008,100 leading to the death of several civilians, as well as members of the Cambodian and Thai armed forces. Ahead of the listing of Preah Vihear in July 2008, tension arose when both armies sent troops to the frontier and occupied smaller temples in the area.101 In order to prevent hostilities and military action over World Heritage, States Parties shall ‘[d]evelop an inclusive approach’, promoting ‘consensus’ and ‘respect for heritage belonging to others’102 when it comes to the identification and management of properties. In particular, transboundary/transnational heritage properties are seen as helpful in that respect, because they are supposed to foster dialogue and develop responsibility for sharing a common heritage.103 These measures shall help to address what has been coined by Boccardi and Scott as a ‘conundrum of what happens when the OUV management is the cause of conflict within its surroundings’.104 To conclude, up to today, the 1972 WHC’s role for peace and security has been underestimated and underutilized. As William Logan put it, so far it ‘has not worked to maximize the mutual benefits that heritage protection and sustainable

97 Sabine von Schorlemer, ‘Military Intervention, the UN Security Council, and the Role of UNESCO: The Case of Mali’, in Anne-Marie Carstens and Elizabeth Varner (eds) Intersections in International Cultural Heritage Law (OUP 2020) 98 ff. 98 ibid 100. 99 Policy Document, para 30. 100 UNESCO, ‘Decision 32 COM 8B.102, Examination of Nominations – Sacred Site of the Temple of Preah Vihear (Cambodia)’ WHC-08/32.COM/24Rev (31 March 2009) 220 ff. 101 Danielle Breitenbücher, ‘Cambodia/Thailand, Border Conflict around the Temple Preah Vihear’ (International Committee of the Red Cross, 2013) . 102 Policy Document, para 30(ii). 103 ibid para 30. The Glossary in the Annex explains that “transboundary” applies when two or more States are contiguous and the property crosses national borders. “Transnational” covers contiguity but also situations where non-contiguous States Parties are involved in the nomination’. ibid 19. 104 Boccardi and Scott (nt. 2) 29.

The 2030 Agenda for Sustainable Development 151 development could derive from the achievement and maintenance of peace and security’.105 This should change. Given the occurrence of new armed conflicts and atrocities on a worldwide scale, the contribution of World Heritage to peace and security (SDG 16), in particular the strengthening of its nexus to peace, should be addressed with greater resolve, for the benefit of both people and heritage. 5.4

Perspective: The Relevance of “Buffer Zones” and the “Wider Setting” as a Means for Sustainable Management and Promotion of Human Rights

In exploring future ways and means for the sustainable management and promotion of human rights in the context of World Heritage Sites, the concepts of “buffer zones” and the “wider setting” come into focus. According to the Operational Guidelines, ‘[s]ustainable development principles should be integrated into the management system, for all types of natural, cultural and mixed nominated properties, including their buffer zones and wider setting’.106 A buffer zone is defined in para 104, first sentence of the Operational Guidelines as ‘an area surrounding the nominated property’, which is able to ‘to give an added layer of protection to the property’. Typically, the area has legal or customary restrictions placed on its use and development, e.g. concerning its setting, important views or other attributes that are functionally important as support to the property and its protection.107 Some control of state action by the Committee is possible – that is to say that whenever a modification of buffer zones takes place subsequent to the inscription of property on the World Heritage List, this ‘should be approved by the World Heritage Committee’.108 Similar to buffer zones, the concept of wider setting exceeds the delineated World Heritage property. The Operational Guidelines explain that the wider setting may relate, among other factors, to the property’s built environment, infrastructure and visual relations. ‘It may also include related social and cultural practices, economic processes and other intangible dimensions of heritage such as perceptions and associations’.109 It is interesting to note, therefore, that the wording of the Operational Guidelines opens up space for the integration of concerns of people living in the areas adjacent to the core of the World Heritage Site. This enhances the prospect for the sustainable use and management of the property.

105 William Logan, ‘Heritage, Sustainable Development and the Achievement of Peace and Security in Our World: Ambitions and Constraints’, in Peter Bille Larsen and William Logan (eds) World Heritage and Sustainable Development: New Directions in World Heritage Management (Routledge 2018) 140. 106 WHC Operational Guidelines, para 132.5. 107 ibid para 104. 108 ibid para 107. 109 ibid para 112.

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Whether buffer zones are useful instruments to ensure, for example, long-term ecological livelihoods to local people, depends on the way they are used. ‘Wellmanaged buffer zones can provide for sustainable resource use which benefits local communities in direct and indirect ways from the core World Heritage property’, as was explained in the World Heritage Resource Manual.110 In recent years, buffer zones have already developed from an instrument with the primary focus on offering an “additional layer” of protection to a more comprehensive and sustainable understanding, in which the buffer zone aims at protecting the World Heritage Site from broader categories of adverse effects. Badly managed buffer zones, in contrast, may have a negative impact on individuals and local communities. People are certainly affected when buffer zones in the area adjacent to the boundaries of the property are transformed in an “invasive”, non-sustainable way. The buffer zone of the Old City of Sur (Suriçi) adjacent to the Diyarbakır Fortress and Hevsel Gardens Cultural Landscape in the southeastern part of Turkey is an example in this respect.111 Large parts of the buffer zone, considered to be the collective memory of Diyarbakır, were destroyed.112 Generally, it is recommended to ‘[d]esign buffer zones in direct response to potential harm which may impact the OUV’ and to include buffer zones in field evaluations and monitoring.113 In most cases, however, buffer zones offer a chance for sustainable management: they allow for economic activities that do not harm the properties, supporting the sustainable development of the area. Against this background, the Policy Document emphasized that States Parties need to integrate conservation and management approaches for World Heritage properties within their larger regional planning frameworks and that ‘[i]n this context, the potential of buffer zones . . . should be fully harnessed’.114 To date, however, there is no legal obligation to provide for buffer zones. An ‘adequate buffer zone should be provided’ only ‘[w]herever necessary’.115 Thereby, the creation of a buffer zone is left to the discretion of the State Parties. As a result, not all existing World Heritage properties have buffer zones. For that reason, the establishment of buffer zones was suggested to be an essential requirement.116

110 UNESCO, ‘The World Heritage Resource Manual on Managing Natural World Heritage Nominations’ (2012) . 111 UNESCO, ‘Decision 39 COM 8B.32, Diyarbakır Fortress and Hevsel Gardens Cultural Landscape, Turkey’ WHC-15/39.COM/19 (8 July 2015) 208 ff. 112 Necati Pirinççioğlu, ‘The Destruction of the Old City (Suriçi) of Diyarbakir Fortress and Its Planned Expropriation’, in Stephan Doempke (ed) World Heritage Watch, Civil Society and Sustainable Development in the UNESCO World Heritage: Proceedings of the International Conference Istanbul 2016 (World Heritage Watch 2017) 34–35 with further references. 113 ARGUS Potsdam and World Heritage Watch (nt. 25) 109. 114 Policy Document, para 10. 115 WHC Operational Guidelines, para 103. 116 ARGUS Potsdam and World Heritage Watch (nt. 25) 64.

The 2030 Agenda for Sustainable Development 153 To conclude, more attention should be paid to the relevance of buffer zones and the wider setting as a means for the sustainable use and management of World Heritage. Buffer zones and, to a certain extent, also the wider setting are able to enhance mutual benefits for people living at the World Heritage Site and the preservation of property itself. This reform proposal should be considered in the post-2030 Agenda as it offers concrete possibilities of action for the purposes of safeguarding properties and promoting the well-being of people. 6

Concluding Remarks

This chapter has argued that even though the wording of the 1972 WHC does not refer to sustainability and/or sustainable development, the Convention is an important instrument, which contributes to the achievement of the 2030 Agenda on a global scale. There is a broad consensus today that the binding set of rules contained in the 1972 WHC are a global anchor for sustainable development in a rapidly changing world with complex challenges. This success is due to the fact that the World Heritage treaty bodies have been actively promoting the relevance of the 2030 Agenda in all its different facets since its adoption in 2015. When the WHC presented its report at its 44th session in Fuzhou (China), it became obvious how much energy UNESCO has devoted to developing the cultural heritage aspects of the 2030 Agenda beyond Target 11.4. This concerns not only efforts to enhance environmental resilience, enabling poverty alleviation, and sustainable livelihoods for local communities, but also to enhance knowledge and skills and to empower local communities, including youth, women, and Indigenous peoples.117 A major impact of the 2030 Agenda on the implementation of the 1972 WHC consists of the intensification and better coordination of activities for the sustainable development of existing sites. In addition, under the umbrella of the 2030 Agenda, the visibility of World Heritage and its relevance for future generations on a global scale has improved significantly. Another important aspect in the framework of the 2030 Agenda concerns the fact that sustainable World Heritage management strategies encompass not only the protection of the OUV, but also the well-being of present and future generations. Bringing the 2030 Agenda to the 1972 WHC supports the livelihoods of local communities and people living at the site, in the buffer zone or the wider setting, e.g. by creating additional income. Still, it is not all positive. We cannot ignore certain risks when discussing the impacts of the 2030 Agenda in the field of World Heritage.

117 UNESCO, ‘World Heritage Convention and Sustainable Development’ WHC/21/44.COM/5D (4 June 2021) .

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It is important that the use of the SDGs does not fuel colonialist or imperialistic prejudices, thereby exacerbating post-colonial North-South opposition.118 To the extent that the 2030 Agenda is implemented as a heritage-related instrument, this should only be done in cooperation with the countries concerned, in the view of a shared responsibility with the state community for the preservation of World Heritage.119 Indeed, it is important not to use the 2030 Agenda as a “top down-instrument”, for this would risk a failure in properly achieving the goals of heritage protection and sustainable development. Sustainable development requirements should not be imposed on local communities living in or near World Heritage Sites in ways that hamper their economic, social and cultural development120 and their self-determination. It is crucial, therefore, to seek consensus between all stakeholders in the process of achieving greater sustainability, in particular of people living in or nearby World Heritage Sites. Future efforts should focus on procedures that better involve various parts of society, including local administration, communities, creative sectors and private stakeholders, thereby promoting support at the local level. Bringing the 2030 Agenda from the global to the local stage also requires significant and long-term financing and inclusive offers for capacity-building, including a wide range of diverse stakeholders. As Boccardi and Scott seek to remind us, the application of a sustainable policy will always have to ‘provide the necessary mechanisms for the integration of a diverse range of perspectives, and actors, into a single process at various levels, notably social, institutional, technical and financial’.121 To conclude, culture, and cultural heritage in particular, can help to solve some of the major sustainability challenges of the 21st century. For that purpose, the next – and politically most important step – is to anchor culture as a “global public good” and to integrate it as a specific goal in its own right in the post-2030 Agenda for sustainable development.

118 Michael Fuchs, ‘Welterbeschutz durch SDGs?’ (2019) 41 Natur und Recht 383, 386. For a postcolonial critique in the field of World Heritage, von Schorlemer, UNESCO-Weltkulturerbe (nt. 70). 119 Fuchs (nt. 118) 386. 120 Lixinski (nt. 30) 83; Chechi (nt. 30) 487. 121 Boccardi and Scott (nt. 2) 32.

9

The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites The Venice Case Marco Gestri*

1

Introduction

The Convention for the Protection of the World Cultural and Natural Heritage celebrated its 50th anniversary in 2022.1 From a legal viewpoint, when it was adopted, the 1972 WHC distinguished itself by having a number of innovative provisions and pioneering concepts. First, was the qualification of cultural or natural heritage goods as being of outstanding interest as ‘part of the world heritage of mankind as a whole’.2 From that qualification, the Preamble to the 1972 WHC states that ‘it is incumbent on the international community as a whole to participate in the protection’ of such heritage, particularly in view of the magnitude and gravity of the dangers threatening it, by complementing the actions of the concerned territorial States. On the basis of this idea, the Convention not only provides that the

* Full Professor of International Law, Department of Law, University of Modena and Reggio Emilia (Italy). Adjunct Professor of International Law, Johns Hopkins University, SAIS Europe. 1 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). In the legal literature, see in general: Léon Pressouyre, The World Heritage Convention, Twenty Years Later (UNESCO 1996); James AR Nafziger and Tullio Scovazzi (eds) Le patrimoine culturel de l’humanité (Martinus Nijhoff 2008); Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008); Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010); Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020). See also Marco Gestri, ‘Teoria e prassi di un accordo pionieristico nella gestione di beni d’interesse generale: la Convenzione del 1972 sul patrimonio mondiale’, in Cecilia Fregni, Marco Gestri and Mariacristina Santini (eds) Tutela e valorizzazione del patrimonio culturale (Giappichelli 2021) 113 ff. 2 1972 WHC, Preamble, recital 6. See also Convention for the Protection of Cultural Property in the Event of Armed Conflicts (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240, Preamble, recital 2 (‘any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural heritage of all mankind, because every people contributes to the world’s culture’). On this instrument, see Riccardo Pavoni ‘La protezione internazionale del patrimonio culturale nei conflitti armati: stato dell’arte e nuovi sviluppi’, in Cecilia Fregni, Marco Gestri and Mariacristina Santini (eds) Tutela e valorizzazione del patrimonio culturale (Giappichelli 2021) 161 ff. DOI: 10.4324/9781003357704-12

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territorial State has conservation duties, but also provides that the other contracting parties, and more generally ‘the international community as a whole’, have a duty to cooperate. In this regard, one must underline that the 1972 WHC was one of the first international instruments concerning the management of goods and resources of general interest to establish an ad hoc trust fund (the World Heritage Fund), with the purpose of making payments to States Parties to assist them in the protection of properties forming part of the World Heritage.3 Furthermore, even if the 1972 WHC was not the first international treaty making explicit reference to the idea of inter-generational responsibility,4 that principle did find in Article 4 one of its earliest and most relevant expressions. According to that provision, each State Party recognizes the ‘duty of ensuring the transmission to future generations of the cultural and natural heritage’. The objective to secure the effective protection of that heritage for present and future generations has also been included into the Operational Guidelines for the Implementation of the 1972 WHC adopted by the World Heritage Committee (WHC).5 It is worth mentioning here that important scholars, especially in the 1980s, have argued, also on the basis of the above-mentioned provisions of the 1972 WHC, that cultural heritage would be subjected, de lege lata or at least de lege ferenda, to the legal principle of the common heritage of humankind.6 The latter principle had been developed with respect to the deep seabed through a number of UNGA resolutions and became the cornerstone of Part XI of the UN Convention on the Law of the Sea.7 The principle has also been affirmed in the framework of outer space law, notably in regard to the Moon and other celestial bodies.8 The development of international law has however demonstrated that the notion of the common heritage of mankind, in its legal-technical meaning, can hardly be

3 Marco Gestri, La gestione delle risorse naturali d’interesse generale per la comunità internazionale (Giappichelli 1996) 148; Marco Gestri, ‘Transferts internationaux pour protéger des ressources d’intérêt commun: qui doit payer pour la préservation des forêts tropicales?’, in Michael Bothe and Peter Sand (eds) La politique de l’environnement: De la réglementation aux instruments économiques (Martinus Nijhoff 2003) 297. 4 International Convention for the Regulation of Whaling (Washington 2 December 1946) entered into force 10 November 1948 161 UNTS 72, para 1 (recognizing ‘the interest of the nations of the world in safeguarding for future generations the great natural resource represented by the whale stocks’). 5 WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) (hereinafter: WHC Operational Guidelines) paras 7, 15, 49, 109. 6 See, among others, Alexandre-Charles Kiss, ‘La notion de patrimoine commun de l’humanité’ (1982) 175 RdC 99; Anneliese Monden, Geert Wils, ‘Art Objects as Common Heritage of Mankind’ (1986) 19 RBDI 327; Rudiger Wolfrum, ‘Common Heritage of Mankind’, Max Planck Encyclopedia of Public International Law (2009). See also Raymond HM Goy, ‘The International Protection of the Cultural and Natural Heritage’ (1973) 4 NYIL 117. 7 (Montego Bay 10 December 1982) entered into force 16 November 1994 1833 UNTS 3. See also Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York 28 July 1994) entered into force 16 November 1994 1836 UNTS 3. 8 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York 5 December 1979) entered into force 11 July 1984 1363 UNTS 3, Article 11.

The Impact of the 1972 World Heritage Convention: The Venice Case 157 applicable in respect of properties which, as with those covered by the 1972 WHC, are located within the territory of a State and are consequently subject to its sovereignty. The effective implementation of the common heritage principle has indeed been confined to areas or resources situated beyond State sovereignty. The prohibition of any national appropriation of the areas to which it refers and the collective management of the relative resources by an international organization have in effect become the raisons d’être of the principle. All that appears to be absolutely irreconcilable with the notion of territorial sovereignty.9 Rather, from a theoretical perspective, one could argue that the legal regime envisaged by the 1972 WHC for the cultural and natural heritage in many ways foreshadowed the notion of ‘common concern of humankind’, which emerged in the 1990s notably in the context of international environmental law.10 That notion, in effect, signals the existence of a general interest of the international community with respect to a certain issue, without, however, bringing with it the idea of taking away certain activities or assets from the sphere of national sovereignty. The concept, which has been included in a number of international instruments, found its most articulate expression in the Convention on Biological Diversity.11 On the other hand, having been adopted in 1972, the text of the WHC does not include any express reference to the principle of “sustainable development”. In that regard, one could however contend that that idea, at least in embryonic form, is inherent in the system of the 1972 WHC, as inter alia shown by the abovementioned reference to the closely akin concept of inter-generational responsibility. The sustainable development idea also permeates Article 5 of the 1972 WHC, which sets forth a duty of the States Parties to adopt a general policy aiming ‘to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes’. In any case, after the 1992 Rio Conference on Environment and Development the principle of sustainable development has been progressively incorporated into the legal system and the procedures of the 1972 WHC, in particular through the adoption, by the General Assembly of States Parties and other Convention bodies, of ad hoc policy documents and by means of amendments to the WHC Operational Guidelines. In 2002, to mark and celebrate the 30th anniversary of the 1972 WHC, 9 Gestri, La gestione (nt. 3) 415; Forrest (nt. 1) 406. See also Marco Gestri, ‘Sovereignty of States over their Natural Resources’, in Ludwig Krämer and Emanuela Orlando (eds) Principles of Environmental Law. Volume VI (EE 2018) 84–85; Natalino Ronzitti, Diritto internazionale (6th ed, Giappichelli 2019) 91. See also John E. Noyes, ‘The Common Heritage of Mankind: Past, Present, and Future’ (2011) 40 DJILP 447. Contra, still in favour of an application of the common heritage of mankind to resources located within State territory, and notably to cultural heritage, Prue Taylor, ‘Common Heritage of Mankind and Common Concern of Humankind’, in Ludwig Krämer and Emanuela Orlando (eds) Principles of Environmental Law. Volume VI (EE 2018) 303, 310. 10 Gestri, La gestione (nt. 3) 22, 140, 393. See also Francesco Francioni, ‘Thirty Years On; Is the World Heritage Convention Ready for the 21st Century?’ (2002) 12 IYIL 13, 23–24; Francesco Francioni and Ana F. Vrdoljak, ‘Introduction’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020). 11 (Rio de Janeiro 5 June 1992) entered into force 29 December 1993 1760 UNTS 79.

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the WHC adopted the Budapest Declaration on World Heritage, in which stated that it will seek to ensure an appropriate and equitable balance between conservation, sustainability and development, so that World Heritage properties can be protected through appropriate activities contributing to the social and economic development and the quality of life of our communities. Three years later, the WHC, in revising the Operational Guidelines, inserted into their introduction a paragraph which notes that since the adoption of the 1972 WHC ‘the international community has embraced the concept of sustainable development’ and affirms that ‘the protection and conservation of the natural and cultural heritage constitute a significant contribution to sustainable development’. More recently, the WHC and the General Assembly of the States Parties have considered it necessary to develop a specific policy aimed at fully integrating a sustainable development perspective within the actual processes for the implementation of the 1972 WHC. A structured document to this effect was adopted in 2015.12 The commitments envisaged by that policy have been embodied in the main documents and procedures of the 1972 WHC, particularly in the Operational Guidelines.13 Moving from theory to practice, the concrete implementation of the 1972 WHC has in recent times been subjected to widespread criticism. In particular, the case of Venice has often been regarded as the epitome of the limited effectiveness of the 1972 WHC upon the conservation or sustainable management of threatened World Heritage Sites. According to some commentators, the practice concerning Venice confirms the decisive impact of political and economic considerations on the deliberations of the WHC, often at the expense of the fundamental objective of ensuring the protection of cultural and natural heritage.14

12 WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) . 13 WHC Operational Guidelines, paras 6, 14bis, 15, 90, 112, 119, 132, and Annex V, paras 4(b) and 5(e). See also UNESCO, ‘World Heritage Policy Compendium’ . 14 Nicholas E. Brown, Claudia Liuzza and Lynn Meskell, ‘The Politics of Peril: UNESCO’s List of World Heritage in Danger’ (2019) 44 JFA 287–303; Herdis Hølleland, Evan Hamman and Jessica Phelps, ‘Naming, Shaming and Fire Alarms: The Compilation, Development and Use of the List of World Heritage in Danger’ (2019) 8 TEL 1, 15; Flavia Zorzi Giustiniani, ‘Protecting World Cultural and Natural Heritage against Climate Change and Disasters: An Assessment of the Effectiveness of the World Heritage Convention System’ (2019) 2 YIDL 233. See also Europa Nostra, ‘Baku: Europa Nostra Urges World Heritage Committee to Declare Venice and its Lagoon as a World Heritage in Danger’ (4 July 2019) . Last access to all links mentioned in this chapter: 31 March 2023.

The Impact of the 1972 World Heritage Convention: The Venice Case 159 In 2016, the non-governmental heritage organization Europa Nostra and the European Investment Bank Institute (EIBI) decided that the Venice Lagoon, considering the magnitude of the challenges posed, should be declared as the most endangered heritage site in Europe.15 On that occasion, Europa Nostra also invited the WHC to place Venice and its Lagoon on the List of World Heritage in Danger (LWHID). More particularly, the transit of large-scale cruise ships, essentially “floating skyscrapers”, through central Venetian canals (Giudecca and San Marco) has recently been in the spotlight.16 In 2021, the Italian Government and Parliament adopted new legislative measures to tackle that problem, also with a view to avoiding the inscription of Venice on the LWHID. This chapter intends to analyse the practice of the UNESCO bodies with respect to the Venice and its Lagoon site, as well as the measures adopted over the recent years by the Italian authorities to improve the state of conservation of the site. In particular, it aims at assessing the impact that the legal obligations deriving from the 1972 WHC and the decisions adopted by the WHC have concretely exerted upon the planning and the implementation of the national provisions recently adopted in respect to Venice. More generally, the chapter purports to evaluate, in light of the practice concerning Venice (and other sites of particular importance), the real impact of the 1972 WHC upon the conservation and sustainable management of cultural and natural sites. Furthermore, the recent developments regarding the Venice site offer an opportunity to reassess the issue of whether the consent of the territorial State is required for a property to be inscribed on the LWHID. As observed, the latter issue touches a raw nerve of the Convention – that is, the difficult balance between the principle of sovereignty of each State Party over the World Heritage Sites located in its territory . . . and the concept of ‘world heritage’, which presupposes the recognition of a general interest of all States Parties, and of the international community as a whole, in the safeguarding of the outstanding universal value of listed properties.17 2 Venice and the World Heritage Convention: Major Challenges and the Recent Italian Legislation on Large Cruise Ships The site ‘Venice and its Lagoon’ has been inscribed on the World Heritage List since 1987.18 15 Europa Nostra, ‘Europe’s 7 Most Endangered Heritage Sites 2016 Announced’ (16 March 2016) . 16 Salvatore Settis, If Venice Dies (André Naffis-Sahely tr, New Vessel Press 2016). 17 Francesco Francioni, ‘World Cultural Heritage’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 250, 262. 18 WHC, ‘Inscription: Venice and its Lagoon (Italy)’ SC-87/CONF.005/9 (20 January 1988). In the Italian legal order, an ad hoc statute has been adopted providing special measures for the protection,

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In 2012, the World Heritage Centre – which since 1992 carries out the functions of Secretariat to the 1972 WHC – requested the Italian Government to provide clarifications on a number of issues concerning the Venice site, with particular regard to the passage of large cruise ships in the San Marco basin and the Giudecca and San Marco channels.19 That request had been prompted by complaints raised by private individuals and organizations, pointing at the visual impact of the enormous ships, the hydrodynamic effects on the buildings of the historical city and the Lagoon ecosystem and to the air pollution arising from the emission of pollutants and particulate matter. In the wake of the Giglio Island disaster, which had highlighted the risks posed by the navigation of large cruise ships close to the coastline, on 2 March 2012 the Italian Government adopted an Inter-Ministerial Regulation dealing with the issue – the ‘Clini-Passera Decree’;20 the latter, however, envisaged only an interlocutory solution. In fact, Article 2(b) of the Decree did envisage a prohibition on the transit, through the San Marco basin and the San Marco and Giudecca canals, of ships over 40,000 GT; yet, under Article 3 of the same, the prohibition would only become effective after the identification of ‘practicable navigation channels alternative to those prohibited’, to be effected by an ad hoc provision of the Maritime Authority. In practice, that regulation led to a stalemate which lasted for 9 years, as the Maritime Authority and the other bodies concerned were unable to identify such alternative routes for the larger ships to dock in Venice.21 On the other hand, the Decree provided that, during the transitory period before the effective implementation of the transit prohibition, Maritime Authorities could adopt measures ‘to mitigate the risks’ deriving from the transit of ships through the Venetian canals. On that basis, the Capitaneria di Porto di Venezia adopted Orders in the following years introducing limitations as to the size and the number of ships allowed to transit through the San Marco and Giudecca canals and providing measures to strengthen the safety of navigation in the area (a mandatory second pilot, tug services, speed limits and

management, presentation and public enjoyment of Italian World Heritage sites. See Legge 77/2006 ‘Misure speciali di tutela e fruizione a favore dei Siti e degli Elementi UNESCO’. It is worth mentioning that a section of the Venice Lagoon, the nature reserve Valle Averto, was designated in 1989 as a Wetland of International Importance under the Convention on Wetlands of International Importance (Ramsar 2 February 1971) entered into force 21 December 1975 996 UNTS 245. 19 Notably, around 500 cruise ships per year, up to 96,000 GT, entered the Lagoon from the Adriatic via the Lido-San Nicolò port mouth, transited through the San Marco basin and the Giudecca channel and docked at the Marittima Cruise Terminal. 20 Decreto 30 aprile 2012 ‘Modifiche al decreto 2 marzo 2012, No 79 concernente disposizioni generali per limitare o vietare il transito delle navi mercantili per la protezione di aree sensibili del mare territoriale’ (hereinafter: the Decree). 21 Several options were considered, including in particular one which envisaged the use by cruise ships of the Malamocco-Marghera channel (the so-called petrol channel, used by tankers and cargo ships) and the construction of a new cruise terminal in the Port of Marghera.

The Impact of the 1972 World Heritage Convention: The Venice Case 161 minimum distances between the ships).22 Further mitigation measures were adopted after the accident which occurred to the vessel MSC Opera on 2 June 2019.23 One also must mention the conclusion of a number of successive voluntary agreements (the so-called Venice Blue Flag) between the Italian public authorities and the shipping companies operating in the Venice Lagoon, with the aim of reducing, through the implementation of best practices, the impact of atmospheric emissions from cruise ships. The first agreement of this kind was adopted in 2007; since then, these agreements have been renewed on an annual basis. In particular, shipping operators have voluntarily accepted aligning their operations with more severe fuel quality standards than those deriving from international, EU or national legal provisions. According to a 2022 agreement, the ships operated by the signatory shipping companies undertook to utilize a marine fuel having a sulfur content not exceeding 0.10% by mass, and that they would do so not only when mooring in the Port of Venice, but also before entering the Venice vessel traffic service (VTS) area and indeed throughout their entire navigation.24 Compliance with these standards allows the shipping companies to display the Venice Blue Flag, awarded by the Municipality of Venice. Despite these initiatives, the situation of Venice has remained at the centre of national and international attention. Importantly, from some quarters a more rigorous position has started to be advocated, according to which even if it was necessary to tackle the most immediate and apparent issue, the passage through central Venetian channels of the “floating skyscrapers”, that measure alone would not be per se sufficient. In particular, the protection of the delicate ecosystem of the Lagoon would more generally require, in the opinion of numerous experts, measures aimed at banning all large and dangerous vessels from the Venice Lagoon altogether. Moving in this direction, the WHC, in a Decision adopted at its 38th Session, urged in effect that Italy ‘prohibit the largest ships and tankers . . . enter[ing] the Lagoon’, also requesting that Italy adopt ‘as a matter of urgency’ the necessary legal provisions.25 Furthermore, that Decision requested Italy to invite a Reactive Monitoring

22 Capitaneria di Porto di Venezia, Orders No 23/2012, 105/2013 and 17/2018. Measures of a particularly restrictive nature had been introduced by Order No 153/2013, for the years 2014 and 2015. Yet this was annulled by a judgment of the Veneto Regional Administrative Tribunal stating that these measures could not be based on the provisions of the Decree. See Venezia Terminal Passeggeri SPA v Ministero delle Infrastrutture e dei Trasporti, TAR Veneto (Sezione Prima) No 13/2015 (26 November 2014). 23 Capitaneria di Porto di Venezia, Orders No 65 e 79/2019. The cruise ship MSC Opera hit a tourist river boat and crashed into the dock at San Basilio, on the Giudecca Canal. See ‘Venice cruise ship crash: Four injured as MSC Opera liner hits dock and tourist boat’ The Independent (2 June 2019) . 24 Venice Blue Flag 2022, Voluntary agreement for Venice aimed at reducing the impact of atmospheric emissions by ships arriving and mooring in the port of Venice, 21 June 2022. These agreements are signed by the Municipality of Venice, the North Adriatic Sea Port Authority and the Venice Harbour Master, on the one side, and the shipping companies, on the other side. 25 WHC, ‘Venice and its Lagoon (Italy)’ WHC/14/38.COM/16 Decision 7B.27 (7 July 2014) para 7.

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mission to the property in 2015, jointly carried out by UNESCO, ICOMOS and the Secretariat to the Ramsar Convention, in order to assess the current conditions of the area, and to submit to the World Heritage Centre reports on the state of conservation of the site and on the implementation of the requested measures. It is worth mentioning that the Draft decision submitted to the WHC, created in light of the recommendations of the Advisory bodies, had even included an express reference to the possibility of ‘considering, in the case of confirmation of the ascertained or potential danger to the Outstanding Universal Value, the possible inscription of the property on the LWHID’.26 However, this reference was not included in the final Decision adopted by the WHC in 2014. The Reactive Monitoring mission carried out in 2015 considered that the general state of conservation of the property was impacted upon by a number of factors, representing both proven and potential dangers to its Outstanding Universal Value (OUV) and making its authenticity and integrity very vulnerable.27 A particular emphasis was attributed in the Report to the issue of the navigation of large ships through the San Marco basin and the Giudecca and San Marco canals and more generally in the Lagoon, particularly considering the risk of accidents, which ‘would have disastrous consequences for the property with the attendant risk of an ecological disaster’.28 The Report also made reference to a number of structural problems affecting the property, notably ever-increasing tourism, which risked destroying the traditional urban society of the historical city, recurring high tide events and the development of industrial and economic activities and projects. At its 40th session, held in Istanbul in 2016, the WHC endorsed the recommendations of the mission. It reiterated its request to Italy ‘to adopt, as a matter of urgency, a legal document introducing the prohibition of the largest ships and tankers to enter the Lagoon’ and also requested to national authorities, inter alia, to halt all new projects within the property, prior to the mid-term assessment of the Management Plan, and the submission of details on the proposed developments in conformity with the WHC Operational Guidelines, para 172.29 The 2016 Decision expressly envisaged the possibility for the WHC, if no substantial progress were accomplished by the State Party by February 2017, ‘to consider inscribing the property on the [LWHID]’.30 However, at its 41st and 43rd sessions, the WHC did not proceed in that direction, confining itself to restating the “threat” of the possible inscription of Venice on the LWHID, failing a ‘significant and measurable progress in the state of

26 WHC, ‘Report on the State of Conservation of Properties Inscribed on the World Heritage List’ WHC/14/38.COM/7B.Add Paris (16 May 2014) para 13. 27 WHC, ‘Report of the Joint World Heritage Centre/ICOMOS/Ramsar Reactive Monitoring mission to the property of Venice and its Lagoon (Italy)’ WHC/16/40.COM (6 June 2016). 28 ibid. 29 WHC, ‘Venice and its Lagoon (Italy)’ WHC/16/40.COM/7B.52 (15 November 2016) paras 6, 7. On the importance of the mechanism envisaged by the Operational Guidelines, para 172, Gestri ‘Teoria’ (nt. 1) 126. 30 ibid, para 10.

The Impact of the 1972 World Heritage Convention: The Venice Case 163 conservation of the property’.31 That practice of the WHC, apparently displaying a reluctance or indecision to adopt effective measures vis-à-vis an important State Party, prompted severe criticism from numerous commentators and NGOs, according to which it would testify to an irreparable politicization of the Committee and to an evident lack of independence.32 In 2020, a joint WHC/ICOMOS/Ramsar Advisory mission to Venice and its Lagoon was carried out.33 Also taking into account the outcomes of that mission, the World Heritage Centre and the advisory bodies proposed to the WHC, in view of its 2021 session, that Venice be formally inscribed on the LWHID.34 However, the inscription was avoided by Italy, at the last minute, essentially thanks to the adoption of two Decreti Legge (Law Decrees).35 The first, Decree No 45 of 1 April 2021,36 provided that the North Adriatic Sea Port Authority would launch a call for a “concorso di idee” (creative competition) for the collection of proposals and technical and economic feasibility projects concerning the construction and management of mooring points for cruise and container ships outside the Venetian Lagoon, to be used by ships over 40,000 GT and container ships for transoceanic transport. A tender notice for such a creative competition was indeed published on 29 June 2021 by the North Adriatic Sea Port Authority offices.37 The notice set forth the requirements to be met by the proposed port infrastructure, specifying that it had to be designed and built ‘outside the protected waters of the Lagoon . . . and not beyond the national territorial waters’. Considering the particular importance and complexity of the envisaged intervention, the finalization of that procedure was articulated in two phases.38 A first phase of the competition, concerning the collection of the proposals, was indeed completed on 31 December 2021. A Commission of experts will then be asked to select three proposals, among which the winning project is to be nominated by 30 June 2023.

31 WHC, ‘Venice and its Lagoon (Italy)’ WHC/17/41.COM/7B.48 (12 July 2017); WHC, ‘Venice and its Lagoon (Italy)’ WHC/19/43.COM/7B.86 (23 July 2019). 32 See, among others, Brown, Liuzza and Meskell (nt. 14) 287. 33 WHC, ‘Report of the Joint World Heritage Centre/ICOMOS/Ramsar Advisory mission to the property of Venice and its Lagoon (Italy)’ WHC/21/44.COM (31 January 2020). 34 WHC, ‘Report on the State of Conservation of Properties inscribed on the World Heritage List’ WHC/21/44.COM/7B.Add (21 June 2021) 44–48, setting forth the conclusions of the World Heritage Centre, ICOMOS and ICCROM on the state of conservation of the property and including a Draft WHC Decision. 35 These kinds of acts, possessing the same effects of a law of the Parliament, can be adopted by the Government ‘in extraordinary cases of necessity and urgency’. The Parliament must approve the conversion into a Law of each governmental Decree within 60 days from its adoption. If a Decree is not confirmed by the Parliament, it loses effect from its inception. Italian Constitution, Article 77. 36 Decreto-Legge 1 April 2021 No 45, ‘Misure urgenti in materia di trasporti per la disciplina del traffico crocieristico e del trasporto marittimo delle merci nella laguna di Venezia’ (hereinafter: Decree 45/2021). 37 ‘Competition of ideas – realization and management of docking points outside the protected waters of the Lagoon of Venice’. 38 Decreto Legislativo 18 April 2016 No 50, Article 156 (Italian Public Contracts Code).

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The second Law Decree finally introduced a prohibition on the transit of the “large ships” through the San Marco basin and the San Marco and Giudecca canals.39 In the Preamble, reference is made to the extraordinary necessity and urgency of adopting provisions to ensure the integrity, decorum and safety of waterways of cultural interest and, more particularly, in order to protect Venice and its Lagoon by limiting the transit of ships through its urban waterways. In fact, Article 1.2 prohibits, as of 1 August 2021, the transit through the mentioned waterways of ships having at least one of the following characteristics: a Gross tonnage exceeding 25,000 GT; b Waterline length exceeding 180 metres; c Height above the waterline (air draft) exceeding 35 metres, excluding vessels with mixed sail/engine propulsion; and d Use of manoeuvring fuel with a sulphur content of 0.1% or more. Article 2 appoints the President of the North Adriatic Sea Port Authority as the Government’s Extraordinary Commissioner with a view to facilitating the urgent realization of all the necessary measures for the smooth implementation of the prohibition, including the construction of temporary moorings for larger cruise ships in Porto Marghera, the maintenance of the existing canals as well as interventions to improve nautical accessibility and navigation safety. It is worth noting that, from the viewpoint of domestic law, the prohibition is based upon a declaration of the urban waterways at issue (Bacino and Canale San Marco, Giudecca Canal) as monumenti nazionali, effected by Article 1.1.40 Such a declaration subjects these waterways to the highest protection afforded to the beni culturali (cultural property) in accordance with the Code of Cultural Heritage and Landscape.41 Indeed, Law Decree No 103/2021 has for the first time explicitly clarified that waterways can also constitute cultural property under Article 10 of the Cultural Heritage Code, whose text makes reference to ‘public squares, streets, roads and other outdoor urban spaces of artistic or historical interest’. The Decree has furthermore expressly provided that, to ensure the integrity of these waterways, Italian authorities may adopt measures aimed at restricting or prohibiting the navigation of ships possessing certain characteristics. Finally, the Decree has established a special fund through which financial support can be attributed, under certain conditions, to economic actors negatively affected by the ban, notably the

39 Decreto-Legge 20 July 2021 No 103 ‘Misure urgenti per la tutela delle vie d’acqua d’ interesse culturale e per la salvaguardia di Venezia, nonché disposizioni urgenti per la tutela del lavoro’ (hereinafter: Decree 103/2021). 40 Lorenzo Casini, ‘La salvaguardia di Venezia “città acquatica”: dall’utopia alla realtà’ in (2021) 2 Aedon 145. 41 Decreto Legislativo 22 January 2004, No 42 ‘Codice dei Beni Culturali e del Paesaggio’ (hereinafter: Cultural Heritage Code).

The Impact of the 1972 World Heritage Convention: The Venice Case 165 shipping companies and the port and harbor management company, as well as to interested workers.42 Law Decree No 103/2021 was adopted by the Italian Government during the 44th session of the WHC – taking place in Fuzhou (China) from 16 July to 31 July 2022 – and, as acknowledged in its Preamble, ‘taking into account the proposal of the [WHC] to inscribe Venice and its Lagoon on the [LWHID]’. In effect, Italy sent a letter to the Centre on 20 July 2021 to inform UNESCO bodies on the adoption of the Law Decree; the text of the latter was also circulated among delegations. In spite of these steps, the World Heritage Centre and ICOMOS decided to reaffirm the proposed Draft Decision and to recommend the inscription of Venice in the LWHID, in light of a number of considerations expressed before the adoption of the act.43 In particular, they noted that the recent legislative measures only addressed the specific issue concerning the transit of the larger ships through the heart of the city of Venice, whereas the broader objective of altogether excluding large or dangerous ships from the Lagoon was still to be implemented. Pending the finalization of the procedure envisaged by Decree 45/2001, in effect, the larger ships would still be allowed to enter the Lagoon, mooring at Porto Marghera (on the land side of the Lagoon). More generally, both the Centre and ICOMOS underlined the complexity of the challenges faced by the property, which they believed were interrelated and which had a cumulative effect. They also noted that some long-lasting crucial problems remained unresolved. First, the need to reduce the impact of mass tourism over Venice, by developing a different model of sustainable tourism and putting an end to the shrinking local population and the consequential transformation of the urban texture. Second, the necessity to better combat the phenomenon of high tide and its negative consequences. Last but not least, they underlined that Italy had on numerous occasions failed to comply with the duty of notification envisaged by the WHC Operational Guidelines, para 172 since several projects having a negative impact on the OUV had been approved or implemented without prior submission to the World Heritage Centre. Yet, in the end the WHC denied the proposal for Venice to be inscribed on the LWHID, approving by consensus an amendment submitted by the delegation of Ethiopia, which inter alia deleted the original text of para 13 of the Draft Decision. In presenting the amendment, the delegate of Ethiopia emphasized the impact of Law Decree 103/2021, which in his opinion ‘fully implements the most relevant requests of the Committee concerning the protection of the site’.44 More generally, according to Ethiopia the provisions adopted by Italy would prove its commitment to protect such an invaluable property and the excellent results that can be achieved through cooperation and dialogue between the Committee and a State Party.

42 These provisions have been implemented by the Decreti interministeriali (Interministerial Decrees) No 178 of 16 November 2021 and No 490 of 3 December 2021. 43 WHC, ‘Summary Record’ WHC/21/44.COM/INF.19 (July 2021) 197–198. 44 ibid 198.

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The final Decision adopted by the WHC, on the one hand, welcomed the provisions adopted by Italy to ban ships over 25.000 gross tons from the San Marco basin and the San Marco and Giudecca channels and acknowledged the measures envisaged by Decree 45/2021 in a long-term solution to the issue of maritime traffic, prioritizing the option for the mooring of large ships outside the Lagoon.45 On the other hand, it restated the concern of the Committee in regard to important problems affecting the property (mass tourism, high tide events, negative impacts of industrial and economic activities) and urged Italy to ensure compliance with WHC Operational Guidelines, para 172. Finally, the Decision requested that Italy submit to the World Heritage Centre, by 1 December 2022, an updated report on the state of conservation of the property and the implementation of the Decision, for examination by the WHC at its 46th session. 3

Lessons Learned from the Venice Case

From an objective assessment of the practice of UNESCO bodies and of the interested State Party regarding the site of Venice, a variegated picture emerges, which could lead to opposing interpretations. On the one hand, the legislative acts adopted by Italy in 2021 and 2022, with particular regard to the problem of the passage of large ships through the canali and the Lagoon, undoubtedly testify to the impact that the obligations deriving from the 1972 WHC exert upon the political choices and decisions of States Parties. An overview of the practice concerning the implementation of the 1972 WHC confirms that the conservation duties envisaged by Article 4 and 5, far from having a mere soft law nature, do possess legally binding force and a certain incisiveness.46 That conclusion is not contradicted by the fact that the text of these provisions qualifies the conservation obligations by specifying that the territorial State ‘will do all it can to this end, to the utmost of its own resources’ (Article 4) and shall adopt effective and active measures ‘in so far as possible, and as appropriate for each country’ (Article 5). Indeed, that language can be read as underlying the fact that the obligations envisaged by the 1972 WHC for the protection (or sustainable management) and presentation of the World Heritage must be construed as due diligence obligations: parties are required to take those measures which are appropriate and reasonable in the light of concrete circumstances.47 The case of Venice also makes evident how the legal significance of treaty obligations has been strengthened by the development

45 WHC, ‘Venice and its Lagoon (Italy)’ WHC/21/44.COM/7B.50 (31 July 2021). 46 Contra Federico Lenzerini, ‘Article 12, Protection of Properties not Inscribed on the World Heritage List’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 206–207; Alessandro Chechi ‘The 2013 Judgment of the ICJ in the Temple of Preah Vihear Case and the Protection of World Cultural Heritage Sites in Wartime’ (2016) 6 ASJIL 353. 47 Gestri, La gestione (nt. 3) 22, 446; Zorzi Giustiniani (nt. 14) 238. To determine in a given situation whether the above-mentioned obligations have been violated, one has to take into account the different level of economic development of the contracting parties. Also in this regard the 1972 WHC

The Impact of the 1972 World Heritage Convention: The Venice Case 167 of new compliance procedures, such as Reactive Monitoring, as well as by the consolidation of the competence of the WHC to adopt decisions which have a negative flavour for the State Parties concerned (notably the inscription of a property on the LWHID or even its deletion from the World Heritage List). As is well-known, the 1972 WHC, as far as monitoring compliance with its provisions is concerned, limits itself to envisaging a mechanism based on the submission by States Parties, to the UNESCO General Conference and the Committee, of periodic reports giving information on the legislative and administrative provisions adopted for the application of the treaty rules.48 However, over the years a complex and rather invasive system for assessing compliance with the 1972 WHC has developed in the implementation practice, which appears to be one of the most advanced in the context of international conventions adopted for the safeguard of goods of common interest.49 That system has been developed thanks to the progressive adoption of detailed rules in the framework of the WHC Operational Guidelines, enacted by the Committee in order to facilitate the implementation of the Convention. Among other things, the WHC Operational Guidelines have established that the periodic reports, to be submitted by a State Party every 6 years, along with information on the general measures adopted in the application of the 1972 WHC, must also include a report on the state of conservation of each World Heritage property located within the territory of the State concerned.50 Furthermore, in addition to this periodic reporting procedure, a new ad hoc process, not envisaged by the text of the 1972 WHC and called ‘Reactive Monitoring’, has been devised by the Committee to examine the actual state of conservation of individual properties which appear to be ‘under threat’.51 The WHC Operational Guidelines define Reactive Monitoring as ‘the reporting by the Secretariat, other sectors of UNESCO and the Advisory Bodies to the Committee on the state of conservation of specific World Heritage properties that are under threat’. In this context, States Parties must submit specific reports ‘each time exceptional circumstances occur or work is undertaken which may have an impact on the [OUV] of the property or its state of conservation’. Reactive Monitoring is also envisaged with regard to properties inscribed, or which are considered for inscription, on the LWHID as well as in the procedure for the deletion of a property from the World

48 49 50 51

has therefore clearly anticipated concepts which were later to become cornerstones of international environmental and sustainable development law: see Gestri, ‘Teoria’ (nt. 1) 121–124. 1972 WHC, Article 29. See Ben Boer, ‘Article 29 Reports’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 335. Véronique Guèvremont, ‘Compliance Procedure: Convention Concerning the Protection of the World Cultural and Natural Heritage’, MPEIPL (2019); Francioni, ‘World Cultural Heritage’ (nt. 17) 265. The Committee issued a request in that direction at its 1994 session. Some States initially challenged the legality of that innovation. WHC Operational Guidelines, para 206. Guèvremont (nt. 49) para 27; Christina Cameron and Mechtild Rössler, La Convention du patrimoine mondial: La vision des pionniers (PUM 2017) 140–146.

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Heritage List. The process is coordinated by the Secretariat (i.e. World Heritage Centre). Of great importance is the fact that the Centre may receive information on the state of the conservation of a property not only from the concerned Government but also from other sources, including, as attested by the significant practice (including the Venice case), from NGOs or private individuals.52 A primary role is also played by the Advisory Bodies ex 1972 WHC, Article 8 (notably by ICOMOS for cultural properties and by the IUCN for natural ones). In any case, the final decision concerning the outcome of the process is in the hands of the Committee. Within the framework of that procedure, the territorial State is required to submit successive reports on the state of conservation of the property concerned. Furthermore, in situ missions are often carried out to verify the actual conditions of the property and evaluate the effectiveness of the measures realized by the State concerned and the possibility of adopting further corrective measures. Those missions can either be organized at the invitation of the territorial State (“advisory missions”) or upon the initiative of the Committee (“Reactive Monitoring missions”). They are in general carried out jointly by the Centre and the advisory bodies and lead to a report on the mission’s finding to the Committee. Since they determine the acquisition and circulation of important information on the effective condition of a property, the evidence gathered on these kinds of missions have acquired significant weight. Once the Centre has acquired all relevant information, through the abovementioned processes, it shall submit to the Committee a “state of conservation” report for the property. On the basis of that document, the Committee will decide the steps to be taken. In particular, the Committee may decide that the property has not seriously deteriorated and no further action should be taken or, on the contrary, that the property has to be inscribed on the LWHID and even that the property is to be deleted from the World Heritage List. Inscription on the LWHID, on the one side, subjects the management of the property to an even stricter control;53 on the other side, the right of the territorial State to receive international assistance (notably through the World Heritage Fund) is also reinforced. One must however acknowledge that, in concrete terms, in danger listing may be perceived as a form of sanction vis-à-vis the territorial State concerned, according to a “naming and shaming” approach, especially when the threat on the property derives from its negligent conduct.54 As a consequence, the mere fact that the Committee is considering inscription of a given property on the LWHID may exert significant pressure upon the territorial State, leading it, as in the case of Venice, to adopt corrective measures. Even if that perception appears to somehow distort the original rationale for the establishment of the List in question, this development is

52 Gestri, ‘Teoria’ (nt. 1) 127. 53 WHC Operational Guidelines, paras 177–191. 54 Hølleland, Hamman and Phelps (nt. 14) 35.

The Impact of the 1972 World Heritage Convention: The Venice Case 169 easily understandable in the context of a treaty system which does not envisage formal sanctions for non-compliance and in which national prestige plays a key role. The Committee can even decide to delete a property from the World Heritage List, as an extreme solution and generally after inscription on the LWHID, when there is evidence that the property has deteriorated to the point where it has irretrievably lost its OUV.55 As already mentioned, the practice concerning Venice appears to confirm that the legal regime deriving from the 1972 WHC, and the complex system that has been devised for monitoring its implementation, may have a considerable influence over national policies concerning the management of World Heritage sites. On the other hand, one cannot ignore that in the present case the WHC once more adopted a decision which is not in line with the recommendations made by the Centre and Advisory bodies. From their viewpoint, the inscription of Venice and its Lagoon on the LWHID would be required, in spite of recent measures adopted by Italy, considering the structural problems still faced by the property and the inadequacy of the procedures generally provided by Italy as to the management of the site. NGOs and some scholars have called attention to the growing number of cases in which the Committee has decided not to follow the Advisory Bodies’ recommendations, arguing that that practice would represent a clear sign of an irreparable politicization of the Committee. The latter, by prioritizing the particular political-economic interests of States Parties over the technical advice put forward by Advisory Bodies, would limit the effectiveness of the 1972 WHC and undermine its credibility.56 Even if these arguments certainly have some merit and are legitimately advocated by organizations representing conservation demands, they might also appear, from the perspective of an international lawyer, to somehow reflect a maximalist approach, not completely in line with the reality of international relations. In the framework of an international treaty regime concerning assets which remain subject to State sovereignty, and in respect to deliberations adopted by an intergovernmental body, it seems hardly possible to exclude dynamics aimed at accommodating conflicting attitudes or interests; the fact that the Committee, as made clear by its full name, is composed of State representatives, and not of individuals sitting in their personal capacity, ought not to be overlooked.57

55 The Committee has so far decided to delete from the World Heritage List three properties. WHC, ‘Arabian Oryx Sanctuary, Oman’ WHC/07/31.COM/7B.11 (31 July 2007); WHC, ‘Dresden Elbe Valley, Germany’ WHC/09/33.COM/7A.26 (20 July 2009); WHC, ‘Liverpool, Maritime Mercantile City’ WHC/21/44.COM/7A.34 (31 July 2021). 56 Dalberg, ‘Our Natural World at Risk: How politicization is limiting the effectiveness of the World Heritage Convention’ (WWF 2019) 24. 57 1972 WHC, Articles 8–9. Under Article 9.3, States Members ‘shall choose as their representatives persons qualified in the field of the cultural or natural heritage’. Some commentators have however underlined an increasing tendency, on the part of many States, not to rigorously comply with that

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Inscription on the List of World Heritage in Danger and State Consent

The recent practice concerning Venice and its Lagoon is also of interest in respect to the vexata quaestio of whether, under the terms of the 1972 WHC, the territorial State’s consent is required to inscribe a World Heritage property on the LWHID. In this regard, one must note that the Italian Government, at least insofar as public statements are concerned, has never mentioned or alluded to the possibility of withdrawing its consent to, or of formally opposing the inscription of Venice on the LWHID. That fact corroborates the interpretation according to which the WHC is entitled to decide upon such inscription even in the absence of the territorial State’s consent. In that regard, Article 11.4 of the 1972 WHC provides that a property appearing in the World Heritage List shall be inscribed on the LWHID ‘for the conservation of which major operations are necessary and for which assistance has been requested under this Convention’. The norm specifies that the property in question must be ‘threatened by serious and specific dangers’, a list of which is provided. Article 11 adds that, ‘in case of urgent need’, the Committee may at any time make a new entry in the LWHID and publicize such an entry immediately. One could also underline that, whereas Article 11.3 expressly stipulates that ‘the inclusion of a property in the World Heritage List requires the consent of the State concerned’, that requirement is not envisaged by Article 11 for a successive inscription on the LWHID. An interpretation of these provisions on the basis of the criteria envisaged by the 1969 Vienna Convention on the Law of Treaties should lead to the conclusion that if, under ordinary circumstances, the listing of a site as World Heritage in Danger presupposes a request from the territorial State, in case of urgent need the Committee is entitled to proceed without the request or consent of the State concerned (and even against its will). Importantly, that is the conclusion which has emerged from a legal opinion delivered by the UNESCO Legal Adviser to the Committee in 2002,58 further to a request made by Belgium at the 24th Session of the Committee.59 The majority of the legal doctrine also shares the interpretation according to which the consent of the territorial State is not required, under the 1972 WHC, to inscribe a property on the LWHID.60

requirement. Tullio Scovazzi, ‘Articles 8–11 World Heritage Committee and World Heritage List’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 150. 58 WHC, ‘Legal Considerations concerning the Inscription of Properties on the List of World Heritage in Danger and the Deletion of Properties from the World Heritage List’ WHC-02/CONF.202/8 (24 June 2002) (hereinafter: Legal Considerations). 59 On that occasion, a divergence of opinions emerged in regard to the inscription on the LWHID of the Katmandu Valley property, which had been opposed by Nepal. Zorzi Giustiniani (nt. 14) 251. 60 ibid 248; Forrest (nt. 1) 259–260; Guèvremont (nt. 49) para 30. See also Roda Verheyen Climate Change Damage and International Law. Prevention Duties and State Responsibility (Martinus Nijhoff 2005) 217; Gionata P Buzzini and Luigi Condorelli, ‘Article 11, List of World Heritage

The Impact of the 1972 World Heritage Convention: The Venice Case 171 As for the WHC Operational Guidelines, they appear to be compatible with such an interpretation. On the one hand, para 177 reaffirms the requirements provided for inscription by Article 11.4 1972 WHC, including that ‘assistance under the Convention has been requested for the property’; on the other hand, it specifies that the Committee is of the view that its assistance in certain cases may most effectively be limited to messages of its concern, including the message sent by inscription of a property on the LWHID and that such assistance may be requested by any Committee member or the Secretariat. Moreover, para 183 envisages that the WHC, when considering the inscription of a property on the LWHID, develops and adopts a programme for corrective measures ‘as far as possible, in consultation with the State Party concerned’. The qualification ‘as far as possible’ seems to suggest that State cooperation is not absolutely necessary. Finally, para 186 provides that the Committee decides inscriptions on the LWHID by a majority of two-thirds of its members present and voting, without making any reference to the consent of the State concerned: the latter ‘shall be informed’ of the decision. The above-mentioned interpretation is generally corroborated by the relevant practice in the application of the 1972 WHC. Even if in the great majority of cases inscription of a property on the LWHID is decided further to a request of the territorial State, or at least with its consent, with a view to establishing a constructive cooperation with that State, it also appears that in numerous cases the Committee has proceeded without State’s consent. At its 15th session, the Committee decided to inscribe on the LWHID, without the consent of Yugoslavia, the Old City of Dubrovnik, gravely affected by the armed conflict then underway. The decision recalled the repeated requests of UNESCO to comply with the 1972 WHC, which had not been heeded, and ‘the state of exceptional urgency caused by the armed conflict’.61 At its 16th session, the Committee inscribed on the LWHID four properties, ‘even though there were no requests from the States concerned’: Angkor (Cambodia); Mt. Nimba Nature Reserve (Côte d’Ivoire/Guinea); Sangay National Park (Ecuador); and Manas Wildlife Sanctuary (India).62 Further examples in that direction can be found in subsequent practice.63 Of great interest is the precedent in Danger and Deletion of a Property from the World Heritage List’, in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 175; Ben Boer, ‘Article 3, Identification and Delineation of World Heritage Property’ in Francesco Francioni and Federico Lenzerini (eds) The 1972 World Heritage Convention: A Commentary (OUP 2008) 100; Tullio Scovazzi, ‘La Convenzione per la protezione del (super-)patrimonio culturale e naturale (semi-)mondiale’, in Alessandra Annoni, Serena Forlati and Pietro Franzina (eds) Il diritto internazionale come sistema di valori. Scritti in onore di Francesco Salerno (Jovene 2021) 181–82. 61 WHC, ‘Report at the Fifteenth Session’ SC-91/CONF.002/15 (12 December 1991). 62 WHC, ‘Report of the Rapporteur’ WHC-92/CONF.002/12 (7 December 1992) paras X.I.E and VIII.13. 63 WHC, ‘Report at the Twentieth Session’ WHC-96/CONF.201/21 (10 March 1997) (where the Committee decided to inscribe Ichkeul National Park, notwithstanding the contrary view of Tunisia, and

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concerning the Dresden Elbe Valley. The Committee decided at its 30th session to inscribe the property on the LWHID despite the fact that Germany had expressly suspended its position in that regard ‘pending consultations with the relevant authorities’ (notably, regional and local authorities). On that occasion, the perplexities expressed by some delegations and the objection of Peru, according to which the inscription would require ‘the previous agreement’ of the State Party concerned, were seemingly overcome on the basis of a statement of the Committee Chairperson, observing that ‘there were precedents for inscription on the LWHID without State Party consent’.64 In spite of all this, one must admit that it is still not completely clear whether the Committee can decide the inscription in the face of an express and unequivocal opposition coming from the territorial State. The precedent concerning Kakadu National Park seems to militate against such conclusion. At the end of the 1990s, the fact that Australia ‘strenuously’ opposed the inscription of the property on the LWHID, which had been proposed by the Advisory Bodies, played a decisive role.65 In a document drafted in response to a UNESCO mission report, Australia clearly asserted that the 1972 WHC provided for listing of a property on the LWHID ‘only with the request and consent of the State Party’,66 adding that inscription against the express wishes of the territorial State would place at risk fundamental principles of the Convention.67 As to the WHC Operational Guidelines, Australia underlined that in any case they are ‘secondary to’ the 1972 WHC; it also noted that the existing precedent on inscriptions without a request from the territorial State have concerned situations in which there existed an ‘apparent inability of the State Party to manage the threats and remedy the problem’, notably for reasons such as civil unrest or armed conflict.68 A highly authoritative scholar has recently observed that Kakadu ‘remains a bad precedent’ on the issue.69 In effect, as just seen, even after the opinion redacted in subiecta materia by the UNESCO Legal Adviser, some States have at times reaffirmed the restrictive interpretation put forward by Australia in 1999. In 2006, in a document prepared for the Meeting of Experts regarding climate change, the US Government pointed out that it continued to be its position that ‘inclusion of any World Heritage Site on the LWHID, even though not specifically

64 65 66 67 68 69

of Garamba National Park, albeit ‘no commitment of the Zaire authorities for such listing had been obtained’). WHC, ‘Summary Records’ WHC-06/30.COM/INF.19 (25 April 2007) 135. WHC, ‘Information Document: Australia’s Kakadu – Protecting World Heritage. Response by the Government of Australia to the UNESCO World Heritage Committee regarding Kakadu National Park (April 1999)’ WHC-99/CONF.205/INF.3B (27 May 1999) VII. ibid Chapter 7.3. ibid Chapter 4.6 (‘the respect for the sovereignty of the State Party, the safeguarding of the property rights provided for in its national legislation, and the primacy of the role of the State Party in the protection of the natural and cultural heritage’). ibid Chapter 7.3. See also S. Javed Maswood, ‘Kakadu and the Politics of World Heritage Listing’ (2000) 54 AJIA 357. Francioni, ‘World Cultural Heritage’ (nt. 17) 262–263.

The Impact of the 1972 World Heritage Convention: The Venice Case 173 articulated in Article 11.4 of the Convention, also requires consent of the State concerned’.70 In the light of the foregoing, also recalling that the Committee is composed of State representatives,71 one cannot rule out the possibility that a State, ‘strenuously opposing’ the inscription on the LWHID, could successfully invoke the Kakadu precedent, as an “emergency brake”, in order to preempt such an inscription. 5

Conclusion

It has become almost commonplace to qualify the 1972 WHC as a pioneering and visionary agreement. That at least from a theoretical perspective, taking into account the innovative principles that the 1972 text introduced, or hinted at, which have later become cornerstones of international law and the policy for sustainable development or the protection of goods of general interest. On the other hand, the actual conduct of UNESCO bodies in the application of the 1972 WHC has increasingly been the subject of criticism, with many scholars, art experts and NGOs accusing the Committee of suffering from an ever-increasing politicization, often leading it to irresolution or adoption of opaque and objectively inadequate decisions. The practice concerning the UNESCO World Heritage property ‘Venice and its Lagoon’ can certainly give rise to diverging narratives. This chapter argues that overall, notwithstanding the hesitations and contradictions undoubtedly emerging from the conduct of national authorities and UNESCO bodies, the adoption by Italy of Decrees 45/2021 and 103/2021 confirms that the legal obligations deriving from the 1972 WHC exert a significant influence over States’ policy concerning the management of World Heritage sites and by no means can be regarded as possessing a mere soft law nature.72 Conservation duties envisaged by Articles 4 and 5 of the 1972 WHC have seen their normative strength reinforced through the implementation of the periodic reporting procedure and particularly by the development of new compliance procedures (‘Reactive Monitoring’) in the practice of application of the Convention. NGOs and private individuals are enabled by the WHC Operational Guidelines to submit, in the framework of these procedures, information on the state of conservation of World Heritage Properties to the 70 United States Government, ‘Position of the United States of America on Climate Change with respect to the World Heritage Convention and World Heritage Sites’ (2006) . 71 Legal Considerations. 72 See also the answer of the Italian Minister for Culture to a parliamentary question concerning the UNESCO property Villa Adriana (Tivoli): ‘the inscription of a site on the World Heritage List does not only constitute a prestigious and coveted recognition; it also determines the subjection of the property to monitoring and compliance procedures carried out by international bodies, operating on the basis of rules and criteria not necessarily coinciding with those applied by national institutions’. Senato della Repubblica, ‘Risposte Scritte ad Interrogazioni’ XVII Legislatura, Vol 50 (15 July 2014) 1227 ff. On the binding force of the conservation obligations stemming from the 1972 WHC, Commonwealth of Australia v the State of Tasmania [1983] HCA 21, 46 ALR 625.

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UNESCO bodies. In the case of Venice, in 2012 private individuals and NGOs were, indeed, the first to draw the attention of the World Heritage Centre to the issue of large cruise ships and on other problems affecting the site. The relevance of these monitoring mechanism has been bolstered by the parallel emergence and consolidation of a competence for the WHC to inscribe a national property on the LWHID and even to delete one from the World Heritage List without the territorial State’s consent. In that connection, the practice here analysed has once again highlighted the fact that inclusion in the LWHID can be perceived as a form of sanction for the territorial State concerned, even if that somehow distorts the original rationale of in danger listing. Furthermore, the case under consideration, and more particularly the conduct of the Italian authorities, seems to corroborate the interpretation according to which the Committee can generally decide to inscribe a property on the LWHID without a request from the State concerned (and even against its wishes). As to deletion from the World Heritage List, of great interest is that all Committee decisions adopted to that end have underscored in the strongest terms that the interested State party had not ‘fulfilled its obligations defined in the Convention with respect to protecting and conserving the [OUV]’.73 Yet, the practice here examined has also shown that the action of the UNESCO bodies in subiecta materia is still characterized by some apparent “shadows”. At its 44th session the Committee once more adopted, regarding Venice, a decision which does not incorporate the “technical” recommendations issued by the Centre and the ICOMOS. Besides, the present analysis has not completely ruled out possible recourse, by a given territorial State, to an “emergency brake” based on the Kakadu precedent, to block the inscription of a property on the LWHID, when fundamental State interests are at stake. From the viewpoint of an international lawyer, these aspects might appear hardly surprising, however, considering the intergovernmental nature of the WHC and the still rudimentary development, in the actual legal order of the international community, of general normative principles of decisional transparency and rationality, as advocated by the “global administrative law” school of thought.74 In any case, and from a general perspective, if the legal regime that has developed under the 1972 WHC, notably with respect to monitoring and compliance mechanisms, is compared to those that have been established by other international agreements – those adopted at the global level for ensuring sustainable development, the protection of the environment and other common goods – one must agree that the first one is undoubtedly one of the most advanced.

73 WHC, ‘Liverpool, Maritime Mercantile City’ (nt. 55) para 6. 74 Benedict Kingsbury, Nico Krisch and Richard B. Stewart ‘The Emergence of Global Administrative Law’ (2005) 68 LCP 15. With special regard to the 1972 WHC, Stefano Battini ‘The Procedural Side of Legal Globalization: The Case of the World Heritage Convention’ (2011) 9 IJCL 340; Lorenzo Casini, Potere globale. Regole e decisioni oltre gli Stati (Il Mulino 2018) 47.

10 Restitution of Cultural Property and Decolonization of Museums Issues of Consistency Between Fulfilment of Legal Obligations, Ethical Principles and Identity Links Manlio Frigo* 1

President Macron’s Ouagadougou Declaration: The Opening of an Historical Window?

‘Je veux que d’ici cinq ans, les conditions soient réunies pour des restitutions temporaires ou définitives du patrimoine africain en Afrique’.1 The historical window opened by President Macron in Ouagadougou on 28 November 2017, during an official visit to Burkina Faso, preparing the path towards the restitution of African cultural heritage objects currently held in French national collections, has probably established a new era in cultural relations between France and Africa and, from a broader perspective, between the North and the South of the planet. These words were very likely unexpected, even though they may be considered a natural follow-up to the speech given by President Macron several months before, during a visit to Algiers – while undertaking political visits to several African countries – where he had the opportunity to declare that ‘Colonization was a significant part French history. It was a crime, a crime against humanity, a true example of barbarism’.2 Regardless of the assessments that can be made on this public position – notably if it was suggested by reasons of political expediency or politeness – it is undeniable that it has been taken after decades of what was essentially a refusal to consider the issue of responsibility for the colonial past, not only in France but in other European countries sharing a colonial experience. * Professor of International Law, University of Milan, Department of International, Legal, Historical and Political Studies. 1 ‘Starting today, and within the next five years, I want to see the conditions put in place so as to allow for the temporary or definitive restitution of African cultural heritage to Africa’. Emmanuel Macron, ‘Speech at the University of Ouaga 1 Professeur Joseph Ki-Zerbo’ (Ouagadougou, 28 November 2017) . Last access to all links mentioned in this chapter: 21 November 2022. 2 ‘Emmanuel Macron sur la colonisation’ En Marche! (21 February 2017) .

DOI: 10.4324/9781003357704-13

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Just a few months later after his address to sub-Saharan Africa, President Macron commissioned a report, today known as the “Sarr-Savoy Report”, from academics and researchers Bénédicte Savoy and Felwine Sarr, to implement the return of thousands of artworks and objects of historical, ethnographical and archaeological interest.3 The Sarr-Savoy Report aims at providing the chronological, legal, methodological and financial framework to ensure the return of African cultural heritage items back to Africa, raising several questions about the existence of the legal and moral grounds of such an approach, as well as in terms of the obstacles to its concrete achievement. It must also be added that the final Sarr-Savoy Report is the fruit of work in which experts, academics, museum professionals, jurists and collectors have been consulted. As far as its structure and basic contents are concerned, the Sarr-Savoy Report exclusively concerns sub-Saharan Africa and considers the different forms of appropriation of cultural property which took place between the second half of the 19th century and the first half of the 20th century. The historical forms of dispossession include (1) colonial spoliation stricto sensu, (2) exploratory missions and scientific raids and (3) gifts and acquisitions after 1960. More specifically, in the name of a ‘new relational ethics’,4 the Sarr-Savoy Report recommends restitution, in a swift and thorough manner and without any supplementary research regarding their provenance or origins, of any objects taken by force or through military aggressions (e.g. spoils, trophies), irrespective of whether these pieces went on directly to France, or whether they passed through the international art market; or through scientific expeditions before 1960;5 or were pieces of African origin, fruits of loans for exhibits or campaigns of restoration by African institutions to French museums. As to the timing, the Sarr-Savoy Report envisages a first phase (2018–2019), which included the submission to the African States concerned of an inventory of pieces which had come from their territories and the formal restitution of several ‘largely symbolic pieces’.6 The second phase (Spring 2019–November 2022) strengthens the ongoing process of inventorying. It also envisages the sharing of digital files, the organization of workshops to be held in France and/or in African countries, and the creation of a Franco-African joint commission (hereinafter: the Commission) charged with

3 Félwine Sarr and Bénedicte Savoy, ‘Rapport sur la restitution du patrimoine culturel africaine. Vers une nouvelle éthique relationnelle’ (November 2018) (hereinafter: Sarr-Savoy Report) . 4 ibid 39. 5 From this perspective, see the quintessential and illuminating testimony collected in the volume Michel Leiris, L’Afrique Fantôme (Gallimard 1934) describing the logic of suspicion, force and intimidation tied together with the capturing of objects of religious and cultural significance for the local people, during the Dakar-Djibouti mission between 1931 and 1933, which would go on to enrich French museums. 6 Sarr-Savoy Report 63. The States concerned in this first phase are Benin, Cameroon, Ethiopia, Mali, Nigeria, and Senegal.

Restitution of Cultural Property and Decolonization of Museums 177 examining the requests for restitution and providing relevant advice on the areas of research necessary to establish the lists of objects eligible for restitution. Lastly, the proposed third phase (November 2022–Open-ended) is aimed at assuring the African States concerned that their potential future requests for restitutions would be welcomed even after the 5 years originally mentioned by President Macron in his speech in Ouagadougou has passed. The drafters of the Sarr-Savoy Report were, of course, quite aware of the several legal, financial, and even political issues that would need to be resolved to achieve a satisfactory goal. Their awareness would go even beyond the traditional problem of bypassing the ordinary rules governing public ownership which – as is well-known – are articulated in the principle of the inalienability of public collections and frequently represent a serious obstacle to ensuring a positive solution to requests for the restitution and return of cultural objects owned by public collections. This is witnessed by the reference made in the Sarr-Savoy Report – inter alia – to the need to enter into international bilateral agreements to foster cultural cooperation with the former colonies. Furthermore, one should mention the suggested modifications of the French Code du Patrimoine and the introduction of a formal application requirement to obtain restitution by the requesting country. The above “procedure” also includes an examination of the request by the Commission, and the provision of the necessary financial support to achieve the concrete outcome of restitution, which is not limited to transportation and/or insurance costs but extended to cover wholesale financial assistance required to ensure the preparation or restoration of museums where the works will be placed and to set up exhibitions for the returned items.7 2 The Follow-up of the Declaration and the Outcome of the Sarr-Savoy Report Despite the political will expressed by the President and the strong moral drive demonstrated by the fast and substantial work of the Commission, the achievement of the objectives turned out to be a difficult and, above all, not immediate task. This conclusion is confirmed and, at the same time, summarized by the statement made by the French Minister of Culture Franck Riester who, on 1 July 2019, declared that ‘France will examine all requests presented by African Nations’, but will not ‘focus on the sole issue of restitution’.8 It is certainly not our intention to minimize the efforts made to implement the objectives of the Sarr-Savoy Report. On the contrary, it would be ungenerous not to highlight the objective difficulties of overcoming obstacles of various kinds. However, it is a fact that, the special law which – by way of derogation from the 7 Sarr-Savoy Report 81 ff. 8 Franck Riester, ‘Speech at the Forum “Patrimoine africains: réussir ensemble note nouvelle coopération culturelle”’ (Paris 4 July 2019) .

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principle of inalienability – ordered the return of a saber to Senegal and 26 plundered objects to Benin was adopted only in December 2020.9 The ceremony, held in Paris on 9 November 2021, for the restitution of the Treasure of Kingdom of Abomey, seized in the 19th century, to the Republic of Benin was certainly meant to represent an event of highly symbolic importance, as witnessed by the presence of both President Emmanuel Macron and President Patrice Talon.10 As a matter of fact, this is not a French problem and has little to do with some (unavoidable?) resistance manifested within certain sectors of the institutional apparatus of that country. What is more important to underline is, however, the effect that this complex series of events has produced in the debate that has developed in recent years, particularly, but not exclusively, in Europe and Africa. From this point of view, it would be rather ungenerous not to record the emulative effect that Macron’s declaration and the Sarr-Savoy Report have produced even before the concrete restitution initiatives, except, possibly, for Italy where a real comprehensive debate about the colonial and postcolonial issues has yet to be seriously addressed.11 3 The Current Debate and the Recent Practice in Europe: The ‘Belgian Approach’ The return of the objects seized in 1892 in what was then the Kingdom of Dahomey from the Musée du quai Branly-Jacques Chirac in Paris to the Republic of Benin was enthusiastically commented on by Bénédicte Savoy, who explained that [i]t was a historic experience to be present both at their departure after a final exhibition in Paris and at their point of arrival in Benin, where they were greeted with great ceremony, but also real joy. For me, the importance of the moment was akin to that of the Fall of the Berlin Wall.12 Apart from these perhaps too optimistic but certainly passionate reactions, the aftermath of the Sarr-Savoy Report shows an unprecedented acceleration of requests for restitution and of concrete negotiations between European public and private bodies and African countries’ authorities, aimed at redressing situations of detention of cultural assets increasingly perceived as ethically less and less 9 Loi No 2020–1673 du 24 décembre 2020 relative à la restitution de biens culturels à la République du Benin et à la République du Sénégal (O.J. No 312, 28 December 2020). See also ‘La France acte la restitution définitive d’objets d’art au Sénégal et au Bénin’ Le Monde (Paris 16 July 2020) . 10 ‘France Formally Hands Back 26 Looted Artworks to Benin’ RFI (Paris 9 November 2021) . 11 Arianna Visconti, ‘Between “Colonial Amnesia” and “Victimization Biases”: Double Standards in Italian Cultural Heritage Law’ (2021) 28 IJCP 551. 12 Bénédicte Savoy, ‘Bénédicte Savoy on Africa’s Struggle for Its Art’ (9 May 2022) .

Restitution of Cultural Property and Decolonization of Museums 179 founded on valid reasons. As we will see, there is no one-size-fits-all solution. On the contrary, current practice shows a certain flexibility and diversity of models, also in terms of the solutions adopted on a legal level. Just to mention a few examples, it is noteworthy that the British universities of Cambridge, in 2019, and Aberdeen, in 2021, returned to Nigeria bronzes looted by the British soldiers from Benin City in Southern Nigeria in 1897.13 In October 2021, Germany and Nigeria signed a pre-accord featuring the restitution of Benin bronzes (more than 1000 items) starting from the year 2022, although some artifacts will remain on loan to German museums.14 In the Fall of 2021, the Dutch Government announced its support for proposals leading to the return of looted objects from state-owned collections, based on recommendations made by a government-appointed Advisory Committee set up in 2019 to establish a national policy framework for colonial collections.15 Lastly, in February 2022, the Government of Angola started discussions with the Portuguese Government concerning the return of its cultural heritage which had been illegally removed from Angola and exhibited in Portuguese museums.16 Belgium’s approach deserves a separate mention due to both the choice of adoption of a general legal tool concerning the fate of cultural property connected with the past colonial experience, and to the substance of such regulatory intervention. In June 2022, the Chamber in plenary session approved the Projet de loi reconnaissant le caractère alienable des biens liés au passé colonial de l’État belge et determinant un cadre juridique pour leur restitution et leur retour.17 By the approval of this law, Belgium will be the first State to create a general legislative framework for the restitution of colonial collections. The “Belgian approach” is also quite interesting because the scope of application of the new bill includes

13 Titilayo Adebola, ‘The Return of Looted Benin Bronzes: Art, History and the Law’ University of Aberdeen School of Law (8 November 2021) . 14 Gareth Harris, ‘The Benin Bronzes are Returning Home: Germany and Nigeria Sign Historic Restitution Agreement’ The Art Newspaper (4 July 2022) . 15 Government of The Netherlands, ‘Redressing an Injustice by Returning Cultural Heritage Objects to their Country of Origin’ (29 January 2021) . See also Returning Heritage, ‘Dutch Recognise Colonial Injustice and Aim to Return Stolen Objects from State Collections’ (22 March 2021) . 16 Joao Carlos, ‘Angola vai discutir com Portugal retorno de obras de arte’DW(Lisbon, 9 September 2022) . 17 Chambre des Représentants de Belgique, ‘Projet de loi reconnaissant le caractère aliénable des biens liés au passé colonial de l’état belge et déterminant un cadre juridique pour leur restitution et leur retour’ (25 April 2022) Doc 55 2646/001 (hereinafter: Projet de Loi). See also ‘Passé colonial: la Chambre adopte le cadre juridique pour la restitution des biens’ RTBF (30 June 2022) .

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objects acquired during the political and administrative domination of the State of origin by Belgium, starting from the signature of the Act of the Berlin conference in 1885, up to the date of the independence of the State of origin.18 The bill aims at consolidating close cooperation with the State of origin of items of dubious or questionable provenance, and at involving the State of origin in the restitution process. For this purpose, bilateral agreements of cultural and scientific cooperation will be concluded between Belgium and the State of origin in order to define the methods of cooperation that will make it possible to establish whether the property must be returned, as well as the preservation guarantees required in order to ensure its return to the State of origin.19 Each bilateral agreement will establish a joint scientific commission which will receive the requests of restitution, confirm the origin of the objects and determine how the property was acquired, in order to assess the importance of the requested object for the heritage of the State of origin and to render its reasoned opinion concerning the fate of the object.20 The decision concerning the deaccessioning and the restitution of the object – based on the opinion rendered by the joint commission – will be adopted by the King and will result in the transfer of title of the object to the State of origin. International practice concerning the circulation of cultural goods and the fight against illicit trafficking has accustomed us to consider the difference between the notions of restitution and return, referring to two consistent and recurring definitions. Even the wording that relevant international conventions use to make a clear distinction between these two figures is based on the need to provide two different legal regimes, in accordance with distinct cases of illicit trafficking.21 Typically, restitution should be granted to the owner of a cultural property which was stolen. Conversely, the issue of return should be raised in the case of objects illegally exported from a State’s territory. In the first case, the rightful owner has been dispossessed and requests the restoration of the infringed right; in the second case, it is not the right of property which is being violated, as the person responsible for the violation arising from the illegal export may in fact be the legitimate owner.

18 19 20 21

Projet de Loi, Article 3.2. ibid Article 4. ibid Articles 5–6. Convention for the Protection of Cultural Property in the Event of Armed Conflicts (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240 (hereinafter: 1954 Hague Convention), Protocol I; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris 14 November 1970) entered into force 24 April 1972 823 UNTS 232, Articles 7, 13, 15; UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome 24 June 1995) entered into force 1 July 1998 2421 UNTS 457 (hereinafter: 1995 UNIDROIT Convention), Articles 1, 3, 4, 5, 6, 8, and 9. At a European Union level, see Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/2, Articles 2, 3, 8, and 10.

Restitution of Cultural Property and Decolonization of Museums 181 In this respect, probably the most precise and detailed separation between the two notions may be found in Article 1 of the 1995 UNIDROIT Convention, which clearly states: This Convention applies to claims of an international character for: (a) the restitution of stolen cultural objects; (b) the return of cultural objects removed from the territory of a Contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (hereinafter ‘illegally exported cultural objects’).22 In the above contexts, the common element to the two distinct terms to which we have referred is that both the restitution and the return imply the physical transfer of the objects in the hands of the owner, or in the territory of the requesting State. Unlike the current international legal practice, the “Belgian approach” inspiring the new bill under discussion includes a quite different and original characterization of the two notions of restitution and return. In fact, pursuant to Article 3 of the Belgian Projet de loi, restitution means ‘the transfer of legal ownership of the object to be restituted, decided in accordance with the present law’ (Article 3.4), while return means ‘the material transfer to the State of origin of the object to be restituted, the restitution of which has been decided in accordance with the present law’ (Article 3.5).23 In other words, the model proposed by the Belgian law makes for the first time a clear distinction between the transfer of title (propriété juridique) and the material transfer (remise matérielle), thus inaugurating the new category of the “intangible restitution” of cultural property. The logic of the above choice is clearly explained in the Exposé des motifs which is published together with the text of the law. With a view to bypassing the problems posed by the ‘material restitution’ (restitution matérielle), the law will clearly affirm that the goods which are linked to the Belgian colonial past are, under the conditions it provides, alienable exclusively with a view to restitution and return, free of charge, to the State of origin. By distinguishing between the transfer of the legal ownership of the property and the material delivery of the latter to the State of origin, this draft law deviates from the principle laid down by Article 3.50 of the Civil Code, according to which the right of ownership confers directly on the owner the right to use what is the subject of his right, to enjoy it and to dispose of it.24

22 1995 UNIDROIT Convention, Article 1. 23 Projet de Loi, Article 3.4 (defining ‘restitution’ as ‘le transfert de propriété juridique du bien restituable, décidé conformément à la présente loi’) and Article 3.5 (defining ‘retour’ as ‘la remise matérielle à l’État d’origine du bien restituable dont la restitution a été décidée conformément à la présente loi’). 24 Projet de Loi, ‘Exposé des motifs’ 7 (‘La loi affirmera clairement que les biens qui sont liés au passé colonial belge, sont, dans les conditions qu’elle prévoit, aliénables exclusivement en vue d’une restitution et d’un retour, à titre gratuit, à l’État d’origine. En distinguant le transfert de la propriété

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And even more clearly, the spirit of the new bill emerges where it is explained that [i]n this case, the material return of the property will not ‘directly’ follow the legal restitution of this property, the bilateral agreement on scientific and cultural cooperation having to provide for the methods according to which this return will operate. This process is justified by the status of goods belonging to a movable cultural heritage, which require specific protection and, therefore, to ensure in advance that they are conserved in good conditions.25 Whatever the assessment of the appropriateness of the Belgian legislator’s choice, there is no doubt that the solution proposed by splitting the ownership of the assets and their material availability constitutes a precedent on which it will be appropriate to discuss in the future. 4

Restitution and Sustainability Issues

The experience of the last few decades shows that even when (. . . and if) the awareness of the duty of the obligation to redress the wrongs of colonialism has been acquired, organizing the return of objects to their State of origin is not only a difficult task, but is also one with several facets. And it goes without saying that even if we have examined the international practice exclusively regarding the relationships between European and African countries, this is but a part of a wider reality. The question has been raised in a particular context, in relation to the duty to return goods to African countries, but it is quite clear that it concerns other continents as well. It would certainly be naïve to think that a solemn declaration such as that of President Macron was not strongly inspired, if not dictated, by reasons of political and economic expediency. And it would be, again, too simplistic to object to bad faith for not even hinting, before or after the Ouagadougou speech, of similar duties regarding former French colonies on other continents. If we want to face reality, we must admit that this is one of the various faces of the so-called “cultural diplomacy”. But from a different perspective, the issue of the restitution of cultural objects to the States of origin in the context of the arrangement of relations with the former colonies is also relevant from the point of view of sustainability.

juridique du bien et la remise matérielle de ce dernier à l’État d’origine, le présent projet de loi s’écarte du principe posé par l’article 3.50 du Code civil, selon lequel ‘le droit de propriété confère directement au propriétaire le droit d’user de ce qui fait l’objet de son droit, d’en avoir la jouissance et d’en disposer’). 25 ibid (‘En l’espèce, le retour matériel du bien ne suivra pas “directement” la restitution juridique de ce bien, l’accord bilatéral de coopération scientifique et culturelle devant prévoir les modalités selon lesquelles s’opérera ce retour. Ce procédé se justifie par le statut particulier des biens relevant d’un patrimoine culturel mobilier, qui nécessitent une protection spécifique et, donc, de s’assurer préalablement de leur conservation dans de bonnes conditions’).

Restitution of Cultural Property and Decolonization of Museums 183 As is well-known, at the core of the 2020–2030 decade is the need for action to tackle issues such as growing poverty, the empowerment of women and girls and addressing the climate emergency. If we look at the 2030 Agenda for Sustainable Development launched by the United Nations summit in September 2015,26 we do not find any direct link or reference to the restitution of objects or artifacts of cultural significance. This is absolutely coherent with the main goals of the 2030 Agenda, aimed at ending poverty in all its forms. Nevertheless, it is also true that the 2030 Agenda envisages a world of universal respect for human rights and human dignity, the rule of law, justice, equality, and non-discrimination. More generally, the 2030 Agenda sets out a vision for sustainable development grounded on international human rights standards, putting equality and non-discrimination at the center of its efforts, and encompassing not only economic and social rights, but also civil, political and cultural rights and the right to development.27 Understood in this way, sustainability could by no means be considered extraneous to the issue under discussion. Moreover, sustainability is frequently broken into three core facets: economic, environmental and social. For our purposes, this subdivision is only partially satisfactory, and it will be useful to integrate it by taking into consideration – alongside the economic and environmental profiles – the ethical and legal ones. Starting from the ethical dimension, which in this matter cannot fail to be placed first, this is the profile that presents fewer problems. And this for the obvious reason that the very history of museum collections in many European countries provides an explanation. In fact, most objects present, for instance, in European ethnographic museums were acquired within the colonial framework, mostly as a natural correlate of war, spoliation, rape or plunder. Reconstructing memory is a primary goal if we consider that the absence of cultural heritage or, at least, of the material traces of that cultural heritage, can render the memory silent and make the essential work of the history of young nations difficult. The return of emblematic objects is of great importance, particularly for the younger generations who should be considered as the inheritors of a history transmitted too frequently in absence of material traces.28 As the Sarr-Savoy Report highlights, to restitute literally means to return an item to its legitimate owner. The appropriation and enjoyment of an item to be restituted rests on a morally reprehensible act: in this case to restitute means to re-institute the cultural item to the legitimate owner and the gesture of restitution is a clear recognition of the moral illegitimacy of the appropriation. In this sense, restitution aims at re-balancing, repairing, restoring, and establishing at the same time new cultural relations based on a new ethical relationship.29 26 UNGA, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015). 27 UN Sustainable Development Group, ‘Universal Values’ . 28 Sarr-Savoy Report 35. 29 ibid 29.

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An ethical approach is, of course, not suitable for guaranteeing the legitimacy of the requests made by African countries (as, in general, former colonies) to recover a significant part of their cultural heritage and their memory. As we have seen, several objects found in museum collections were initially acquired by way of violence or some form of deceit or within iniquitous conditions notably tied to the asymmetry of the “colonial context”. The issue of the legal dimension of sustainability implies facing the problem of the consistency of restitutions with international law and domestic legislation, neither of which always provide precise answers and easy solutions. The first difficulty is that several objects found in museum collections were initially acquired by way of violence or some form of deceit or within iniquitous conditions notably tied to the asymmetry of the “colonial context”, but also, at least in part, during a period prior to the Hague Conventions of 1899 on the Law and Customs of War on Land and of 1907 concerning Bombardment by Naval Forces in Time of War,30 when the illicit character of the practice of acquiring the spoils of war or that of trophies was not clearly ascertained or, at least, was still debatable.31 Furthermore, the collection of cultural objects through scientific expeditions, financed by the State, throughout the exploration and conquest of new territories was also another mode that was largely placed into effect in parallel with military operations.32 The way and the context of acquisition will therefore play a determinant role in how one handles requests for restitution, even though, as unacceptable as these acts appear to us today, it is not plainly accepted that they qualify as crimes under international law, in contrast to the Nazi spoils for which a specific legal act was placed into effect and the plundering and destruction that happened after the 1954 Hague Convention.33 In other words, the ethical dimension of sustainability may, in this respect, not exactly coincide with the legal dimension. The conclusion of international agreements between the States concerned is accordingly needed when dealing with issues of restitution and return of cultural objects removed during colonial period to the country of origin. As in the case of the recent restitutions from France to the Republic of Benin, it will also require the rationalization and the development within a bilateral framework, on a case-by-case basis, of the diverse actions of cooperation surrounding the decision to restitute and which will then establish a new context of cultural relations between France and each of the respective African countries. Furthermore, the procedure of restitution frequently implies overcoming serious domestic legal obstacles, as in the case of domestic provisions arising from the principle of

30 Convention (II) with Respect to the Laws and Customs of War on Land and Its Annexes (The Hague 29 July 1899) entered into force 4 September 1900 (hereinafter: 1899 Hague Convention); Convention (IX) concerning Bombardment by Naval Forces in Time of War (The Hague 18 October 1907) entered into force 26 January 1910 (hereinafter: 1907 Hague Convention). 31 Sarr-Savoy Report 64. 32 ibid. 33 ibid 65.

Restitution of Cultural Property and Decolonization of Museums 185 inalienability of public collections. As is frequently the case, the best option is to institute, through national laws, a definitive road towards restitution, according to the requests, through the creation of an ad hoc procedure proposing a basis to ensure a smooth path for the return of the objects. This is exactly the path followed in the recent restitutions made by France in implementing the Sarr-Savoy Report, but also in the past in relation to the restitution of human remains (the “Maori Heads”) to New Zealand,34 as well as by Italy in 2008, in the return of the Venus of Cyrene to Libya and the obelisk of Axum to Ethiopia.35 From a concrete perspective, one may raise the question about who the restitution should be directed to. Particularly when the issue of restitution in a former colonial context is at stake and within the framework of international relations, the relevant agreement can only take place at a State-to-State level. Therefore, the problem arises of safeguarding the interests of the community of origin, which should generally be expected to be the final recipient of the restitution. This issue does not emerge exclusively in the context of relations concerning the colonial past, but also whenever the restitution concerns objects taken from entities, communities or collectivities other than the State and having main ritual, religious or historical importance for those entities, communities or collectivities. If States represent their communities at an international level and enter into international agreements, it is their duty to protect the interests of the community of origin by ensuring that the objects returned be transferred to the same. Again, recalling the French-New Zealand practice in the case of the “Maori Heads”, these were given back to New Zealand, and were transferred to the Museum of New Zealand Te Papa Tongarewa in Wellington, where they are housed in a specific room only accessible to authorized members of the community of origin. Economic sustainability also plays a major role in the return of goods removed in colonial times. In terms of financial burden, the return of these pieces requires at the very least a budget devoted to the cost of transportation, as well as the price of insurance, which can fluctuate depending on the fragility of the work in question and its value on the open market. Of course, the above problem does not arise exclusively in relation to this type of restitution. What is certain is that, in these contexts, it is a matter that weighs dramatically and can materially constitute a serious prejudice to the proliferation of such agreements and their implementation. In fact, alongside some resistance on the part of representatives of museums and public collections who might be expected to return the works, it is not difficult to imagine the concern of conservators and museum directors that would receive such works. And one could hardly deny that the financial issue strictly pertains to sustainability.

34 Sénat de France, ‘Proposition de loi visant à autoriser la restitution par la France des têtes maories’ . 35 Manlio Frigo, ‘Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des différends’ 375 RdC 101, 391; Sophie Vigneron, ‘The Repatriation of Human Remains in France: 20 Years of (Mal)practice’ (2020) 2 SA&CLR 313.

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Looking at the recent African experience, the expectation of receiving the restitution of collections and objects to be preserved and exhibited has generated the need to create new museum institutions suitable for hosting them. A couple of examples may give an idea of some recent developments in the field. A new museum located in the southwestern Senegambia region of Senegal (Bët-bi), dedicated to both exhibiting African art works and storing repatriated artifacts, is almost ready to open its doors in early 2025.36 More than a century after British troops attacked the Kingdom of Benin’s capital in what is now Southern Nigeria (1897) – exiling the Edo people’s ruler, destroying part of the city and stealing its treasures – the planned cultural institution to be built on the site of the razed city, the Edo Museum of West African Art, now promises to not only restore some of Benin City’s ruins, but also act as a home for the array of looted artifacts being returned to Nigeria by museums around the world. The Edo Museum of West African Art Initiative, led by the Legacy Restoration Trust, is estimated to have cost more than 100 million euros.37 The question is of course whether such costs are affordable, who will be eager to bear them and under what conditions. Coming to a brief and final mention of environmental sustainability, the starting point is that repatriation seems to be the only way to address the historical injustice museums have caused. According to some commentators, this is crucial ‘to restore the agency of Africans as producers of their own history’.38 Nevertheless, preservation is not the only answer to the question of what to do with the vast wealth of natural, cultural and intellectual items, including human remains, held in Western museums. It must not be denied that, against a vast movement now in favor of the “decolonization of museums”, the doubt has been raised among others about a specific kind of environmental sustainability of a large-scale repatriation. Particularly, it has been observed that, especially in some African museums, respect for optimal climatic and environmental conditions would not be always ensured by structures that appear to be inadequate to house the returned artifacts and to preserve them according to international museum standards.39 Some have

36 Tim Stone, ‘In New Senegal Museum, Albers Foundation Will Exhibit African Objects and Expand Legacy of Bauhaus’ The Art Newspaper (16 May 2022) . 37 ‘Major New Archaeology Project on Site of New Museum in Benin’ British Museum (13 November 2020) ; Livia Gershon, ‘A New Museum of West African Art Will Incorporate the Ruins of Benin City’ Smithsonian Magazine (17 November 2020) ; Catherine Hickley, ‘Una nuova casa per i bronzi del Benin’ Il Giornale dell’Arte (28 May 2021) . 38 Yirga Gelaw Woldeyes, ‘Repatriation: Why Western Museums Should Return African Artifacts’ Museum Next (15 May 2019) . 39 Lynn Maranda, ‘Decolonization within the Museum’ (2021) 49 ICOFOM Study Series 180 .

Restitution of Cultural Property and Decolonization of Museums 187 also claimed that African staff would be ‘hardly sufficiently educated’ to maintain a modern museum.40 The issue is clearly delicate and even though most of the resistance – also partly by public administrations and European museum institutions – seems in fact to be excessive and sometimes even offensive, it would be unrealistic to deny that problems of this type occur and not infrequently. This means that, beyond the basic standpoints and the statements of principle, we must not forget that repatriation will in any case be a slow and bumpy process, and that the solutions will be found case by case with patience and flexibility on the part of all subjects involved, be they States, public collections, museum directors, conservatories, curators, public officials and so on. The above being said, following repatriation, Africans should determine the worth and place of these collections. Not all artifacts need to be preserved and put on display. They are living sources of knowledge, objects of worship and expressions of life. For example, human remains, such as the “Maori Heads”, or the skulls of African ancestors, may be buried following local traditions. And eventually, it is difficult to disagree with the statement that, in any case, ‘cultural items could become sources of knowledge and storytelling’.41 5

Conclusions

At its 44th Plenary Meeting on 6 December 2021, the UNGA unanimously adopted Resolution 76/16 on the return or restitution of cultural property to the countries of origin, proposed by Greece and supported by an unprecedented 111 countries, without a vote.42 Such a resolution underlines that no region of the world remains unaffected by the illicit traffic in cultural objects and that conspicuous attacks are being carried out against cultural property in the Middle East and elsewhere. Interestingly, this is the last and most up to date version of several similar resolutions adopted by the UNGA since, at least, Resolution 3026 (XXVII) on human rights and scientific and technological developments of 18 December 1972,43 which anticipates the more significant Resolution 3187 (XXVIII) Restitution of works of art to countries victims of expropriation of 18 December 1973.44 Unlike the resolution adopted on 8 December 2021 – which omits any direct reference to the post-colonial issues – Resolution 3187 (XXVIII) directly addressed the heart of the matter

40 See the declaration by Friedrich Kussmaul, the director of Stuttgart’s Linden Museum, quoted in Nosmot Gbadamosi, ‘Africa’s Stolen Art Debate is Frozen in Time’ Foreign Policy (15 May 2022) . 41 Woldeyes (nt. 38). 42 UNGA, ‘Return or Restitution of Cultural Property to the Countries of Origin’ UN Doc A/RES/76/16 (8 December 2021). 43 UNGA, ‘Human Rights and Scientific and Technological Developments’ UN Doc A/RES/3026 (XXVII) (18 December 1972). 44 UNGA, ‘Restitution of Works of Art to Countries Victims of Expropriation’ UN Doc A/RES/3187 (XXVIII) (18 December 1973).

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in several passages of the text. Particularly, not only by ‘recalling the Declaration on the Granting of Independence to Colonial Countries and Peoples’, but also by ‘deploring the wholesale removal, virtually without payment, of objets d’art from one country to another, frequently as a result of colonial or foreign occupation’, ‘convinced that the restitution of such works would make good the serious damage suffered by countries as a result of such removal’.45 In many respects, Resolution 76/16 is more comprehensive in scope, as it aims at addressing the various facets of illicit trafficking (such as ‘looting, smuggling and illicit trafficking notably by terrorist groups’) and at invoking international cooperation to ensure restitution or return of cultural property to the States of origin, including even if not exclusively, the “new” independent States. What is also noteworthy is that, by the above more recent resolution, the UNGA not only insists on inviting Member States to join all the most relevant international conventions, but also highlights the importance of the links with sustainable development by recalling that the 2030 Agenda for Sustainable Development includes, inter alia, a pledge to foster intercultural understanding, tolerance, mutual respect and an ethic of global citizenship and shared responsibility, an acknowledgement of the natural and cultural diversity of the world and a recognition that all cultures and civilizations can contribute to, and are crucial enablers of, sustainable development, as well as targets related to the protection and return or restitution of cultural property.46 In other words, the UNGA seems to express similar concepts as those present in former resolutions but using an updated language that is more suited to the current priorities and new emergencies. If we look at the problem from a purely international law perspective, and we consider the time when large scale spoliation was effected by colonial powers (the “time factor”), it should be considered that, as mentioned, the removal took place partially prior to the above-mentioned 1899 Hague Convention and the 1907 Hague Convention, and before the entry into force of the 1954 Hague Convention. As is well-known, among the main limits of the international multilateral treaties concerning the return and restitution of cultural property, one can mention their particular and not general binding nature (i.e. they are only binding for States parties), their limited scope of application and their non-retroactive character. The fact that these conventions cannot be applied to acts committed before their entry into force is, by itself, a serious obstacle to the application of the duty of restitution and return of cultural property and therefore its implementation in practice. Of course, this limitation applies to the extent that the conventions mentioned above

45 ibid. 46 UNGA (nt. 42) 2–3.

Restitution of Cultural Property and Decolonization of Museums 189 are recognized as having only the value of treaty rules.47 Conversely, their application even to spoliation perpetrated during the colonial era would be possible if their customary nature was to be identified. This may hold some grounds, particularly for the 1899 Hague Convention and the 1907 Hague Convention. It is to be added that the question as to whether the practice of acquiring the spoils of war or that of trophies was still acceptable or not before the entry into force of the above conventions is questionable and the international practice of treaties concluded after armed conflicts after the 19th century could not confirm the theory according to which looting in time of armed conflicts was legitimate and still accepted.48 In this respect, legal doctrine has also indicated some principles emerging from international practice amounting to customary law, that may be useful in addressing some of the above limits as to the non-retroactive character of certain rules such as the prohibition of looting perpetrated during the colonial era, and the consequent duty of reparation by restitution and return of the artifacts. This is particularly the case with the emergence of a principle of non-exploitation of the weakness of another subject to get a cultural gain, which applies to situations of war and where colonial domination should be mentioned.49 Moreover, the non-retroactive character of the international conventions aimed at protecting cultural heritage and addressing the return and restitution of cultural property to the States of origin has also not prevented the UNGA from reaffirming their importance, including but not limited in Resolution 76/16, and inviting States that have already done so to consider becoming parties.50 As has been correctly pointed out, return or restitution alone are not always sufficient to repair the loss of knowledge and the other consequences of the spoliation, particularly when concerning human remains, sacred artifacts and items associated

47 Camille Labadie, ‘Decolonizing Collections: A Legal Perspective on the Restitution of Cultural Artifacts’ (2021) 49 ICOFOM Study Series 132 . 48 This thanks to the theories of Emmerich De Vattel, Le droit des gens ou principes de la loi naturelle (Guillaumin et Cie 1863) 45, para 168. See also the practice referred to in Stanislaw E. Nahlik, ‘La protection internationale des biens culturels en cas de conflit armé’ (1969) 120 RdC 89. See also Frigo (nt. 35) 116. 49 Tullio Scovazzi, ‘Diviser c’est détruire: Ethical Principles and Legal Rules in the Field of Return of Cultural Properties’ (2011) 94 RDI 341. 50 UNGA (nt. 42) para 7 (‘[The UNGA] [r]eaffirms the importance of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and the two Protocols thereto, the 1972 Convention for the Protection of the World Cultural and Natural Heritage, the 2001 Convention on the Protection of the Underwater Cultural Heritage, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, and invites Member States that have not already done so to consider becoming parties to the aforementioned conventions and protocols that specifically address the return and restitution of cultural property to the countries of origin’).

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with ancestral know-how.51 Even if not retroactive in character, the aforementioned conventions by no means confer any legitimacy on illegal transactions of whatever kind that might have taken place before their entry into force, nor limit any right or claim outside that which may be brought outside their framework. As stated above, this is not only a concern for Africa, but what is certain is that it particularly affects African States and communities, if it is true that, according to art historians, around 80%–90% of Africa’s cultural heritage is believed to be in Europe and can be found in European museums, or rather held in their storage.52 Accordingly, many African States are proving more and more proactive in their quest for repatriation of works of art, artifacts, and material expressions of their plundered cultural heritage, as well as in their participation in international conventions concerning related matters. The recent practice within the main regional organizations and the international multilateral contexts has proceeded in the same direction and confirms this trend. As an example, the Niamey Declaration on the Return or Restitution of Cultural Goods, adopted on 20 October 2019 by the ACP Ministers of Culture, makes a clear statement on issues such as the fight against climate change and the return of cultural property to their States of origin, and marks the commitment of the ACP Group of States to intensifying their cooperation and to adopting more effective policies in these areas.53 As to regional organizations, interesting examples come from both the Economic Community of West African States (ECOWAS) and the African Union. In fact, within the ECOWAS 2019/2023 Action Plan on the Return of African Cultural Property to their Countries of Origin, the Meeting of Directors of Cultural Heritage in April 2019 requested Member States to take measures to ratify the relevant conventions (namely, the 1995 UNIDROIT Convention) as soon as possible and to prepare official letters to countries in possession of African artifacts to return them.54 They were also urged to provide adequate financial resources for the imple51 Labadie (nt. 47) 8. 52 Farah Nayeri, ‘Museums in France Should Return African Treasures, Report Says’ New York Times (21 November 2018) ; Ciku Kimeria, ‘The Battle to Get Europe to Return Thousands of Africa’s Stolen Artifacts is Getting Complicated’ Quartz (29 November 2019) ; Annabelle SteffesHalmer, ‘Africa’s Art Goes Back Home’ DW (11 September 2021) . 53 ACP Group, ‘Niamey Declaration “Strengthening and Diversifying Partnerships for ACP Cultures”’ (Niamey 20 October 2019) . 54 ‘Validation of the ECOWAS 2019/2023 Action Plan for the Return of Cultural Property to their Countries of Origin’ (Nigerian Coalition for the International Criminal Court) ‘UNIDROIT Attends the First Meeting of the ECOWAS Regional Monitoring Committee on the Action Plan 2019–2023 for the Return of Cultural Property to their Countries of Origin’ (UNIDROIT 6 July 2021) . ‘First Meeting of the ECOWAS Committee on the Return of Cultural Property to their Countries of Origin Opens in Cotonou’ ECOWAS (30 June 2021) . African Union, ‘Charter for African Cultural Renaissance’ (24 January 2006) Article 26 (‘African States should take steps to put an end to the pillage and illicit traffic of African cultural property and ensure that such cultural property is returned to their countries of origin’). African Union, ‘Draft Concept Note for the Continental Consultations on the Restitution of Cultural Property and Heritage’ (29 November 2021) . See also the illuminating remarks published a few decades ago about the importance of joining the main international conventions and of harmonizing the African cultural property laws by Folarin Shyllon, ‘The Recovery of Cultural Objects by African States through the UNESCO and UNIDROIT Conventions and the Role of Arbitration’ (2000) 5 ULR 219. The European Parliament Resolution of 17 January 2019 on cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars, even though quite detailed as to the various forms and manifestations of looting and illicit trade both in peacetime and in wartime, omits any express reference to colonial plunder and spoliation. See European Parliament Resolution of 17 January 2019 on cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars [2020] (OJ C 411/125).

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representing the most serious obstacle to the composition of conflicting interests, sometimes preventing, or at least delaying the implementation of forms of cooperation already expressed positively through international norms. A leading role will certainly be played by “cultural diplomacy”, evoked this time in its noblest meaning, to find solutions that, beyond the form, may guarantee respect for a substantial composition of too often opposing interests – at least to the extent possible.

11 “Contested” Cultural Heritage Towards the Emergence of an International Duty of Transmission to Future Generations? Costanza Rizzetto* 1

Introduction

The latest measures adopted by Richmond (Virginia) authorities to dismantle the monument to General A. P. Hill and to other Confederates’ memorials show that, two years since the outbreak of the first demonstrations in Minneapolis after the murder of George Floyd in 2020, the wave of monuments being toppled as part of the Black Lives Matter (BLM) movement is far from coming to an end.1 According to the 2022 “Whose Heritage?” Report of the Southern Poverty Law Center (SPLC), since the beginning of the protests, 157 Confederate memorials have been removed from public spaces in the United States, in several municipalities of, notably, Alabama, Georgia, Mississippi, North Carolina, South Carolina, and Tennessee.2 In the same way, along with the worldwide reach of the movement, the international press has reported that a number of monuments and statues dedicated to historical figures, such as Winston Churchill, President Theodore Roosevelt and Christopher Columbus, have been toppled in Europe, as well as in Australia and India.3 Perceived as symbols of racism and oppression, the targeted monuments have been picked out by BLM demonstrators in the name of their reference, notably, to the tradition of the American white supremacy. Acknowledged as ‘purposefully * Ph.D. Candidate in Public International Law, Ethics and Economics for Sustainable Development, University of Milan (Italy). 1 Gregory S. Schneider, ‘The Last Stands: Richmond Starts Taking Down Confederate Statues’ Pedestals, Too’ Washington Post (1 February 2022) . Last access to all links mentioned in this chapter: 23 November 2022. 2 SPLC, ‘Whose Heritage? Public Symbols of the Confederacy’ (3rd ed, 2022) . 3 Claire Selvin and Tessa Solomon, ‘Toppled and Removed Monuments: A Continually Updated Guide to Statues and the Black Lives Matter Protests’ Artnews (11 June 2020) . On the outbreak of the BLM protests in Australia and India, see ‘Australia, Asia Embraces Black Lives Matter Protests’ Nikkei Asia (6 June 2020) ; Surabhi Singh, ‘Black Lives Matter Should be a Wake-up Call for India’ The Diplomat (17 June 2020) . DOI: 10.4324/9781003357704-14

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celebrating’ the values of the Confederacy by ‘ignoring the death, the enslavement and the terror that it actually stood for’,4 those elements have been considered as necessitating their removal from the public space.5 Although often placed at the heart of the public debate, these episodes of cultural heritage demolition have provoked a rather fuzzy reaction in the concerned communities. Condemned on a few occasions as despicable expressions of an emerging “cancel culture”,6 such acts have often been endorsed by the authorities competent in situ. Declaring their proximity to the BLM movement, several local governments have indeed saluted the attacks against the Confederates memorials as significant examples of the ‘erasing of public history’,7 thereby authorizing, even, the complete destruction of such contested property.8 As for the reason behind such decisions, they have acknowledged the importance of dismantling those monuments from the public space, in light of the ‘strong potential for violent clashes’ attributed to their continued presence within the social context.9 Even while recognizing the key role played by these elements in the national cultural heritage,10 in fact, local authorities have acknowledged the closer connection of such monuments to the political and historical circumstances in which they were constructed, considering them as the ultimate expression of such events. In this sense, they have admitted the ‘cathartic’ value of destroying such property,

4 See the declarations of the former mayor of New Orleans (Louisiana), Mitch Landrieu, as reported in German Lopez, ‘New Orleans Mayor: We Can’t Ignore the Death, Enslavement and Terror the Confederacy Stood for’ VOX Media (23 May 2017) . 5 ibid. 6 See the open letter signed by several representatives of US publishing industry, cultural sector and academia published in Harper’s Magazine. ‘A Letter on Justice and Open Debate’ Harper’s Magazine (7 July 2020) available at . 7 On the concept of ‘erasing history’, Daniel Abrahams, ‘Connecting Past and Present: How to Understand the Idea of Erasing History – Heritage in War’ (Heritage in War, 23 June 2020) . 8 See, for example, the demolition of a Confederate statue carried out by demonstrators without any interference from the police, which occurred in Durham (North Carolina), in August 2017. ‘Protesters Tear down Confederate Statue in Durham, North Carolina’ CBS News (15 August 2017) . 9 See the declarations of the Mayor of Norfolk, Kenneth Cooper Alexander, and of the Governor of North Carolina, Roy Cooper, released in the aftermath of the attacks against Confederate monuments and the Capitol Ground (Washington, DC) occurred in June 2020, as reported in Alisha Ebrahimji, Artemis Moshtaghian and Lauren M. Johnson, ‘Confederate statues are coming down following George Floyd’s death. Here’s what we know’ CNN (1 July 2020) . 10 On the importance to the national cultural property of Confederate monuments, Alabama Memorial Preservation Act of 2017, Act No #2017–354; Tennessee Heritage Protection Act, Tenn. Code Ann. § 4–1–412.

“Contested” Cultural Heritage 195 with the aim of collectively repudiating the expressions of ‘a past of racism and hate’.11 In light of such a scenario, dozens of memorials and statues have been toppled since May 2020, by order of or with the authorization of the competent authorities, and such a wave of “contested cultural-property eradication” shows no sign of slowing down. On the contrary, as has been reported by NGOs close to the BLM movement, an increasing number of US municipalities continue to declare their commitment to progressing the fight to remove Confederate iconography from the United States. This, even where that means discontinuing their preservation laws.12 All this, it appears, in the face of silence from the international community and, notably, of the global framework for the worldwide protection of cultural heritage. Notwithstanding the warning sounded by the UN Special Rapporteur in the field of cultural rights in her 2016 Report concerning, inter alia, the intentional destruction of ‘contested heritage’,13 no action has been carried out, at the international level, to respond to the jeopardization of such cultural property which has been repeatedly targeted within States’ territories. Nor has any declaration been adopted, notably, by UNESCO, in the aftermath of such attacks. Looking at the issue from an international law perspective, it seems this state of affairs leaves the door open to several considerations. In particular, the question remains whether it is possible to identify, in the global legal framework for cultural heritage protection, any norm that would serve to legitimize such contested-cultural heritage eradication being carried out within the territories of States, on behalf of domestic political forces. As a matter of fact, one may argue that, in certain determined conditions, domestic authorities might be authorized to destroy elements of their cultural heritage, or, on the contrary, that such acts may consist of violations of international law. This, in particular, in light of the inclusion of cultural heritage within the UN legal framework for sustainable development, which might prevent, in the name of the necessity of conserving and transmitting worldwide cultural heritage to future generations, domestic authorities from the intentional destruction of their monuments and sites.

11 ‘Richmond, we will finish the job of removing these antiquated symbols of racism and hate’. See the declarations of Mayor of Richmond Levar Stoney concerning the attacks against the General Lee memorial, as reported in Ebrahimji, Moshtaghian and Johnson (nt. 9). 12 Dwayne Fatherree, ‘Fighting the “Lost Cause”: Whose Heritage? Report Documents Progress in Battle to Remove Confederate Iconography’ SPLC (4 February 2022) . 13 Absent any official definition for ‘contested’ heritage, the Special Rapporteur in the field of cultural rights has defined it as ‘monuments celebrat[ing] the memory of past human rights violations, or promot[ing] ideas, concepts or action that are no longer acceptable, such as violence and discrimination’. OHCHR, ‘Report of the Special Rapporteur in the field of cultural rights on the intentional destruction of cultural heritage as a violation of human rights’ UN Doc A/71/317 (9 August 2016) (hereinafter: the 2016 Report) para 13.

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2 The Intentional Destruction of “Contested” Cultural Heritage and the Emerging Doctrine of the “Right to Destroy” Born as a branch of ius in bello, international cultural heritage law is built all around the idea of protecting cultural property, notably, from the consequences of armed conflicts.14 Having evolved in the aftermath of the massive destruction of the historic and artistic property which occurred during World War II, it pursues the aim of safeguarding the cultural goods and sites which might be endangered, in the territories of States, in the event of warfare or serious international crimes. Above all, the importance of preserving cultural heritage from the consequences of war is at the core of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.15 The 1954 Hague Convention sets up the general obligation to protect the cultural heritage of peoples at risk of loss, damage, or destruction in event of war. This, precisely, by establishing in its Article 4 that States Parties have the duty to protect the cultural property situated in their territory,16 by refraining from any use of such property for military purposes and from any act of hostility directed against it.17 Saluted by several authors as a customary norm of international humanitarian law,18 such an obligation has been acknowledged by the UNSC, as well as by international criminal tribunals. In the first instance, the necessity of safeguarding the cultural heritage jeopardized by armed forces or criminal groups has been tackled,19 notably, in Resolutions 2100 (2013), concerning the establishment of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA),20

14 The international obligation to protect endangered cultural property in the event of armed conflicts was originally incorporated in the Hague Conventions on the Laws and Customs of War as well as in the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments. See Convention (II) with Respect to the Laws and Customs of War on Land and Its Annexes (The Hague 29 July 1899) entered into force 4 September 1900 ; Convention (IX) concerning Bombardment by Naval Forces in Time of War (The Hague 18 October 1907) entered into force 26 January 1910 ; Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Washington 15 April 1935) entered into force 26 August 1935 . 15 Convention for the Protection of Cultural Property in the Event of Armed Conflicts (The Hague 14 May 1954) entered into force 7 August 1956 249 UNTS 240 (hereinafter: 1954 Hague Convention). 16 As well as within the territories of other contracting Parties. 1954 Hague Convention, Article 4. 17 ibid. 18 See among others, Ana F. Vrdoljak, ‘The Criminalisation of the Intentional Destruction of Cultural Heritage’, in Tiffany Bergin and Emanuela Orlando (eds) Forging a Socio-Legal Approach to Environmental Harm: Global Perspectives (Routledge 2016) 237 ff. 19 This in accordance with the prerogatives conferred to the UNSC. Charter of the United Nations (San Francisco 26 June 1945) entered into force on 24 October 1945 1 UNTS XVI, Article 39. 20 UNSC, ‘Resolution 2100 (2013)’ UN Doc S/RES/2100 (25 April 2013). See Laura Pineschi, ‘Tutela internazionale del patrimonio culturale e missioni di pace delle Nazioni Unite. Un binomio possibile? Il caso MINUSMA’ (2018) CI Rivista di Diritto Internazionale 5.

“Contested” Cultural Heritage 197 and 2347 (2017), which refers to Syria.21 As per the latter, the same need to protect the cultural heritage which is put at risk in territories of States affected by war has been recognized, pursuant to Articles 3(d) and 5(h) of its Statute, by the International Criminal Tribunal for the Former Yugoslavia (ICTY),22 as well as, according to Article 8.2(e)(iv) of its Statute, by the International Criminal Court (ICC).23 In both cases, the commission or order of attacks against the cultural heritage in situ has been acknowledged as a basis for individual criminal responsibility in international law. Indeed, the intentional destruction of cultural heritage has been qualified, in the jurisprudence of ICTY, both as a war crime and a crime against humanity.24 Likewise, the destruction of cultural heritage as a war crime has been acknowledged, notably, in the recent Al Mahdi case, by the ICC.25 For what concerns the conservation of cultural property in times of peace, the global framework for the worldwide protection of cultural heritage appears to dwell, at the current time, mostly upon the provisions of the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage.26 Representing the international core treaty for worldwide cultural property conservation, the 1972 WHC seeks to ensure the protection of cultural heritage from the consequences of the ‘changing social and economic conditions’27 provoked, above all, by human activities. As has been recalled by the UNESCO Former Gen-

21 UNSC, ‘Resolution 2347 (2017)’ UN Doc S/RES/2347 (24 March 2017). See Sabrina Urbinati, ‘La risoluzione 2347 (2017): il Consiglio di sicurezza e la difesa dei beni culturali in caso di conflitto armato. Molto rumore per nulla?!’, in Elisa Baroncini (ed) Il Diritto internazionale e la protezione del patrimonio culturale mondiale (Dipartimento di Scienze Giuridiche Bologna 2019). 22 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (September 2009) Articles 3, 5. See among others Prosecutor v Tadic (Judgment in Sentencing Appeal) IT-94–1-A and IT-94–1-A bis (26 January 2000); Prosecutor v Tihomir Blaškić (Judgment) IT-95–14-T (3 March 2000); Prosecutor v Kordić & Cerkez (Judgment) IT-95–14/2-T (26 February 2001); Prosecutor v Miodrag Jokić (Judgment on Sentencing Appeal) No IT-01–42/1-A (20 August 2005); Prosecutor v Pavle Strugar (Judgment) IT-01–42-A (17 July 2008). 23 Statute of the International Criminal Court (Rome 17 July 1998) entered into force 1 July 2002 2187 UNTS 3, Article 8. 24 In this context, it is remarkable that the ICTY has acknowledged the attacks against cultural heritage as crimes against humanity, or actions carried out in the context of ‘a widespread or systematic attacks against a civilian population’ even in the absence of armed conflict. See among others Micaela Frulli, ‘Advancing the Protection of Cultural Property through the Implementation of Individual Criminal Responsibility: The Caselaw of the International Criminal Tribunal for the Former Yugoslavia’ (2005) 15 IYIL 195; Pierfrancesco Rossi, ‘The Al-Mahdi Trial before the International Criminal Court: Attacks on Cultural Heritage between War Crimes and Crimes against Humanity’ (2017) 1 DUDI 87. 25 Case of the Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC Case No ICC01/12–01/15 (27 September 2016). See Tullio Scovazzi, ‘La prima sentenza della Corte penale internazionale in tema di distruzione di beni culturali’ (2017) 1 DUDI 77. 26 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). As of March 2022, the Convention counts 194 ratifications. The US ratified the 1972 WHC on 7 December 1973. 27 1972 WHC, Preamble, recital 2.

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eral-Director on the occasion of the 1972 WHC’s 40th anniversary, the treaty seeks to cope with the massive risk of the destruction of cultural heritage arising because of worldwide phenomena like globalization, cultural homologation and, remarkably, intentional destruction.28 In comparison with the above-mentioned framework for the protection of heritage in the event of armed conflict, the 1972 WHC does not foresee as its objective the safeguard of all cultural heritage, irrespective of its value or significance.29 On the contrary, as also established in the Preamble, Article 1 of the 1972 WHC focuses on the protection of a determined category of cultural items and sites,30 defined as having ‘outstanding universal value’ (OUV).31 Acknowledging the exceptional interest of these cultural elements for the whole of mankind,32 the 1972 WHC recognizes the necessity of providing such goods with a universal protection against potential causes of destruction or deterioration. To this end, it establishes a mechanism for their collective protection within the territories of States Parties, and it sets up, as an ad hoc monitoring body, the so-called World Heritage Committee (WHC).33

28 UNESCO, Celebrating the 40 Years of the World Heritage Convention, Proceedings, Closing Event of the Celebration of the 40th Anniversary (UNESCO, 18 November 2012). 29 Cf 1954 Hague Convention, Preamble (‘belonging to any people whatsoever’). 30 1972 WHC, Article 1 (‘shall be considered as ‘cultural heritage’: monuments: 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: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: 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’). 31 On the concept of “OUV”, Federico Lenzerini, The Culturalization of Human Rights Law (OUP 2014); Christoph Brumann, ‘The Best of the Best: Positing, Measuring and Sensing Value in the UNESCO World Heritage Arena’, in Ronald Niezen and Maria Sapignoli (eds) Palaces of Hope. The Anthropology of Global Organizations (CUP 2017). 32 1972 WHC, Preamble, recital 7. 33 The duty of taking charge of such goods depends primarily on States Parties, which are called upon to engage for the conservation of the cultural heritage of OUV situated in their territories. 1972 WHC, Articles 4, 5. Article 6 establishes a collective assistance mechanism to support States as per their cultural heritage conservation, pursuant to which all the States Members have the duty to collaborate for the international protection of the cultural heritage in situ, ‘whilst respecting the sovereignty of the [competent] States’. 1972 WHC, Article 6. As per the conferral of the OUV, the 1972 WHC provides that States Parties identify within their territory the cultural goods and sites suitable for this definition and submit their proposal to the WHC. 1972 WHC, Article 8. The WHC evaluates the proposals assisted by its Advisory Bodies and inscribes the cultural goods of OUV in the World Heritage List. 1972 WHC, Article 11. See also WHC, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ WHC.21/01 (31 July 2021) (hereinafter: WHC Operational Guidelines); UNESCO, ‘Periodic Reports on the Implementation of the World Heritage Convention’ .

“Contested” Cultural Heritage 199 On the other side, the 1972 WHC seems to overlook the issue of the protection and conservation of those cultural elements which, situated within the territories of States, have not been recognized as of OUV according to Articles 4, 8 and 11. Although declaring the importance of preserving any item of the cultural or natural heritage,34 in fact, the 1972 WHC seems not to have, within the scope of its provisions, a general duty to protect cultural heritage for its States Parties like the one established under the 1954 Hague Convention. On the contrary, the 1972 WHC seems to commit the administration of the cultural heritage in situ to the discretionary power of national authorities, which seem left largely free, apart from the obligations pending on States pursuant to its Article 4, as well as to the abovementioned international legal framework, to determine the fate of the national cultural property as they see fit.35 This, apparently, also is the case in the scenario in which State authorities or national groups decide to carry out, in the absence of international conflict, the irreversible destruction of such cultural property. As a matter of fact, this has been the case with the notorious episode of the demolition of the Buddhas of Bamiyan. Occurring in 2001 in Afghanistan, the destruction of the Buddhas was decreed by the Mullah Omar in the context of the wider ‘cultural cleansing’ policy carried out by the Taliban to eradicate cultural expressions considered as ‘deviating’ from the laws of sharia.36 Sparking the outcry of worldwide media, such an episode represented a rather problematic issue for the international community. Occurring in the absence of an armed conflict, it appeared indeed to fall outside the existing international framework for the protection of cultural heritage.37 To cope with such a normative void, UNESCO adopted, in the aftermath of these events, the 2003 Declaration Concerning the Intentional Destruction of Cultural Heritage.38 Expressing the international community’s concern about the growing episodes of the intentional destruction of cultural heritage, the 2003 Declaration recalls the principle, set out also in the 1954 Hague Convention, according to which ‘damage to cultural property belonging to any people whatsoever

34 1972 WHC, Preamble, recital 3 (emphasis added). 35 As suggested by some authors, the scope of the international cultural heritage protection pursuant to Articles 4, 8 and 11 of the 1972 WHC may not be exhaustive. This, notably, pursuant to Article 12 of the 1972 WHC, which establishes that ‘The fact that a property belonging to the cultural or natural heritage has not been included in [the World Heritage List] shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists’. See Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 EJIL 631. 36 Kanchana Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime’ (2003) 28 YJIL 183. 37 UNGA, ‘The Destruction of Relics and Monuments in Afghanistan’ UN Doc A/RES/55/234 (1 May 2001). It is worth noting that the Cultural Landscape and Archaeological Remains of the Bamiyan Valley have been inscribed in the World Heritage List in 2003. 38 UNESCO, ‘Declaration Concerning the International Destruction of Cultural Heritage’ (17 October 2003) (hereinafter: 2003 Declaration).

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means damage to the cultural heritage of all mankind’.39 In this view, the document establishes that States that intentionally destroy, or fail to prevent, any intentional destruction of cultural heritage, are responsible for such destruction, ‘to the extent provided for by international law’.40 Although representing the first instrument foreseeing the existence of a general obligation on States to conserve all the elements of cultural heritage possibly jeopardized even in the absence of armed conflict, the 2003 Declaration has been received in a rather blurred way at the international level. Criticized by some authors for its lack of enforceability,41 such an instrument is mentioned in the 2016 Report as a relevant international instrument for the protection of cultural heritage as being of crucial value. Specifically, the 2016 Report defines the 2003 Declaration as evidence of the international community’s commitment to fight against the intentional destruction of cultural heritage. In this sense, it renders States ‘unequivocally instructed to prevent, avoid, stop and suppress’ the intentional destruction of cultural heritage, in order to transmit it intact to succeeding generations.42 Concerning the scope of such a provision, the 2016 Report recalls how such a general obligation of the protection of cultural heritage should apply even in the case in which, for political, social, or historical reasons, the intentional destruction addresses elements of the national heritage considered as symbols of an avowed past. Even in this case, according to the 2016 Report, ‘the fate of such monuments should be addressed within the human rights framework’, and ‘alternatives to its destruction and the means of memorializing it’ should be found.43 As well as to the reiterated waves of damnatio memoriae spreading in various areas of the globe since the Roman age,44 it would appear that such provision may apply, in the light of the above, also to the Erasing Public History campaign accompanying the BLM demonstrations. Aiming at the complete deletion of the history of American white supremacy, in fact, the BLM movement openly aims at the systematic eradication of all monuments perceived as a symbol or expression of the Confederacy, seeking their irreversible destruction. With regard to these latter circumstances, and in spite of the aforementioned background, an increasing number of cultural heritage scholars has claimed, in the aftermath of the BLM outbreak, the gradual establishment of an international permissibility, within State jurisdiction, of cultural heritage destruction – notably, 39 1954 Hague Convention, Preamble, recital 2 (emphasis added). 40 2003 Declaration, Article VI (emphasis added). 41 Tullio Scovazzi, ‘La Dichiarazione sulla distruzione intenzionale del patrimonio culturale’ (2006) 21 RGA 551. 42 2016 Report, paras 16 and 24. 43 2016 Report, para 13. 44 The term damnatio memoriae was used for the first time in the Roman age to describe the “eradication” of symbols of neglected past authorities. Through the centuries, it has been used to define the massive cultural heritage demolition campaigns carried out by the French revolutionaries to eliminate all the traces of the ancien régime and in 1917, when the Bolsheviks ordered the destruction of all pre-revolutionary monuments. Dario Gamboni, The Destruction of Art: Iconoclasm and Vandalism since the French Revolution (Reaktion Books 2013) 31.

“Contested” Cultural Heritage 201 for political reasons. Defining such a prerogative a ‘limited exception to cultural preservation law’,45 such authors refer to the progressive emergence of a so-called right to destroy accruing to national authorities, applicable in specific circumstances. According to these authors, specifically, there are two conditions which would permit, in the absence of armed conflict, the demolition of cultural heritage: the establishment of such property in celebration of a violation of human rights law, and the express consent of the majority of the concerned population to this “cultural eradication”.46 Remarkably part of US law since the ’80s,47 the present doctrine has been recently recalled, with reference to the Confederate memorials, also by the Virginia Supreme Court in the case Taylor v Northam.48 Referring to the necessity of eradicating any expression of principles in contrast with the core values of American society, the Court authorized the removal of the General Lee monument from its pedestal in a Richmond square. As for the reasons behind such a decision, there were the fact that ‘any symbolism associated with the Lee Monument [may consist in] a message endorsed by the government’, and any reference to principles contrasting with the values at the core of the United States should be eradicated in reason of their ‘troubling presence’ on the national soil.49 Received with clamor by the concerned community, such a decision gave rise to mixed reactions. Welcomed by the supporters of BLM as a liberating act, it has been reported as attracting some criticism. This, notably, focusing on the loss of ‘an opportunity to teach about history’ implicit in such a ‘pro-removal’ approach to contested cultural property, which, although a symbol of a disgraced system, might nevertheless be considered as part of the US heritage.50 3 The Emerging UNESCO Framework for Cultural Heritage and Sustainable Development: Towards an International Duty of Transmitting “Contested” Cultural Property to Future Generations? Although acknowledging the expressive potential of the destruction of “controversial” cultural goods, it appears, the adoption of the aforementioned “pro-removal” approach towards cultural heritage may face, from an international law perspective, a series of shortcomings. In particular, it seems, the so-defined cathartic value of cultural-property destruction51 would possibly run the risk of finding itself 45 E. Perot Bissell V, ‘Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law’ (2019) 128 TYLJ 1157 (emphasis added). 46 ibid. 47 See among others Texas v Johnson, 491 U.S. 397 (1989); Virginia v Black 583 U.S. 343 (2003). 48 Taylor v Northam 862 S.E.2d 458 (2021). 49 ibid 463 and 471. 50 See the declarations of Virginia’s Governor Ralph Northam as reported in ‘Robert E. Lee Statue: Virginia Removes Contentious Memorial as Crowds Cheer’ BBC News (9 September 2021) . 51 Perot Bissell V (nt. 45).

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inconsistent with the emerging international framework progressively put in place by the UN and, notably, by UNESCO, for the conservation and transmission of cultural heritage to future generations. Recognized by UNESCO since the 1970s, the principle of preserving worldwide cultural heritage to transmit it intact to succeeding generations is at the heart of the 1997 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations.52 Recalling the necessity of strengthening the international cooperation in the preservation of worldwide cultural property, the 1997 Declaration refers to the importance of cultural heritage in the settlement of worldwide issues including poverty, underdevelopment, and discrimination. As stated in the Preamble, this in light, in particular, of the provisions of the 1989 Convention on the Rights of the Child,53 recalled by the 1997 Declaration as the most ratified human rights treaty devoted to the enhancement of the fundamental freedoms of future generations, as well as of the international framework for the protection of cultural heritage as a component of the human right to culture. Likewise, the same idea of conserving the cultural heritage of humankind from a sustainable development perspective has been progressively embraced within the 1972 WHC field of application.54 Mentioned in the WHC Operational Guidelines since 2005,55 such a principle is at the core of the “World Heritage Convention Policy for Sustainable Development”, adopted by the General Assembly of States Parties to the 1972 WHC at its 20th session on 19 November 2015.56 Defined as ‘an historical step for the preservation of the world heritage of mankind’,57 the Policy Document seeks to assist States Parties in the reinterpretation of the 1972 WHC from a sustainability-led perspective. This, pursuant to Article 31.2(a) and 31.2(b) of the Vienna 52 UNESCO, ‘Declaration on the Responsibilities of the Present Generations Towards Future Generations’ (12 November 1997) (hereinafter: the 1997 Declaration) Article 7. See also UNESCO, ‘Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It’ (26 November 1976) . 53 (New York 20 November 1989) entered into force on 2 September 1990 1577 UNTS 3. 54 See among others Andrea Cannone, ‘La Convenzione UNESCO del 1972 sulla tutela del patrimonio mondiale culturale e naturale’ in Enzo Catani, Gianluca Contaldi and Fabrizio Marongiu Buonaiuti (eds) La tutela dei beni culturali nell’ordinamento internazionale e nell’Unione Europea (EUM 2020) 86. 55 WHC Operational Guidelines, para 6 (‘Since the adoption of the Convention in 1972, the international community has embraced the concept of ‘sustainable development’. The protection and conservation of the natural and cultural heritage constitute a significant contribution to sustainable development’). See also ibid, paras 112, 214bis, 131 and 239. 56 WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) (hereinafter: Policy Document). See also WHC, ‘World Heritage Convention and Sustainable Development’ WHC-12/33.COM/5C (11 May 2012) . The adoption of the Policy Document has been supported by a large number of States. Among others, Brazil, Cote d’Ivoire, France, Philippines, Poland, Sweden, Turkey, and the United States. 57 UNESCO, ‘UNESCO moving forward the 2030 Agenda for Sustainable Development’ 1, Foreword by Irina Bokova, Director-General of UNESCO.

“Contested” Cultural Heritage 203 Convention on the Law of Treaties,58 as well as consistent with Principle 4 of the Rio Declaration establishing that, to achieve sustainable development, States shall include environmental protection as an integral part of their development processes.59 As referred in the Summary Records of the General Assembly of States Parties to the 1972 WHC, this latter should be conceived of as an integral part of UNESCO’s overarching mandate to foster equitable sustainable development. To this end, the 1972 WHC should be interpreted from a sustainable development perspective, such as to ensure the long-term conservation of world cultural heritage.60 This, in light of the norm-set progressively put in place by the UN to strengthen the relationship between cultural heritage and sustainability,61 which enhances the key contribution of cultural diversity to sustainable development62 – as it is expressed, inter alia, in the 2013 UNESCO Hangzhou Declaration.63 This, even more, consistently with the principles at the core of the UN 2030 Agenda for Sustainable Development64 which includes, notably in its Sustainable Development Goal (SDG) 11 dedicated to sustainable cities,65 a number of important references to culture and heritage preservation and intergenerational transmission.66

58 (Vienna 23 May 1969) entered into force on 27 January 1980 1155 UNTS 331, Articles 31.2(a) and 31.2(b). 59 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992). 60 WHC, ‘World Heritage Convention’ (nt. 56) 5, para 4. 61 WHC, ‘Budapest Declaration on World Heritage’ (2002) WHC-02/CONF.202/5 Article 3; UNGA, ‘Culture and Development’ UN Doc A/RES/65/166 (28 February 2011); UNGA, ‘Culture and Development. Report of the Director-General of the United Nations Educational, Scientific and Cultural Organization’ UN Doc A/66/187 (26 July 2011); UNGA, ‘Culture and Development’ UN Doc A/RES/66/208 (15 March 2012); UNGA, ‘Culture and Development. Report of the Director-General of the United Nations Educational, Scientific and Cultural Organization’UN Doc A/68/266 (5 August 2013); UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/68/223 (12 February 2014); UNGA, ‘Culture and Sustainable Development. Report of the Director-General of the United Nations Educational, Scientific and Cultural Organization’ UN Doc A/69/216 (31 July 2014); UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/69/230 (4 February 2015); UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/70/214 (26 February 2016). 62 UNGA, ‘The Future We Want’ UN Doc A/RES/66/288 (11 September 2012) para 14. 63 UNESCO, ‘Hangzhou Declaration: Placing Culture at the Heart of Sustainable Development Policies’ (2013) . See also UNESCO, ‘World Heritage and Sustainable Development’ . 64 UNGA, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015). 65 UN Conference on Housing and Sustainable Urban Development (Habitat III), ‘New Urban Agenda’ (20 October 2016) . The New Urban Agenda was endorsed by the UNGA on 23 December 2016. UNGA, ‘New Urban Agenda’ UN Doc A/ RES/71/256 (25 January 2017). According to some authors, references to the conservation of cultural heritage are also entailed in SDG 10 (reduction of inequalities), SDG 13 (climate action) and SDG 16 (inclusive societies). Jon Hawkes, The Fourth Pillar of Sustainability: Culture’s Essential Role in Public Planning (Common Ground 2001). See also UNESCO, ‘Thematic Indicators for Culture in 2030 Agenda’ . 66 Policy Document, para 12. See UNESCO, ‘Twentieth Session of the General Assembly of States Parties to the Convention Concerning the Protection of the World Cultural and Natural Heritage.

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From a human rights perspective, the same interconnection between cultural heritage and sustainable development has been highlighted by the above-mentioned 2016 Report. Specifically, the 2016 Report emphasizes the importance of preserving cultural heritage ‘not only in itself’, but also in relation to its dimension within the human identity and development process and in virtue of its significance for future generations.67 This, as affirmed in para 15 of the 2016 Report, in virtue of the necessity of ensuring the right to participate in cultural life under Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights,68 which entails the obligation to respect and protect the cultural heritage of peoples according to the General Comment No 21 of the Committee on Economic, Social and Cultural Rights (CESCR).69 Concerning the sustainable conservation of “contested” heritage, the importance of preserving sites and memorial symbols of a difficult past in the interest of future generations has been highlighted, notably, by the 2014 Report on Memorialization Processes of the former Special Rapporteur in the field of cultural rights.70 Once again, recalling the scope of the right to have access to cultural heritage enshrined in Article 15.1(a) ICESCR, the 2014 Report stresses the importance of conserving the cultural heritage of the past as an element of the fundamental freedoms of opinion and expression, peaceful assembly, and association (Articles 18 to 22 of the International Covenant on Civil and Political Rights).71 In this sense, the 2014 Report refers to the centrality of cultural heritage in intergenerational justice and reconciliation processes; it also reminds States to ensure the conservation of the memorials of parts of the history of their communities, even if these monuments are perceived as a symbol of a difficult past.72 Likewise, the same idea of conserving “Sites of Memory”,73 including in the event that they represent controversial times, has been acknowledged by the

67 68 69 70

71 72 73

Summary Records’ WHC-15/20.GA/INF.15 (18–20 November 2015) item 13. 2016 Report, paras 6 and 7. (New York 16 December 1966) entered into force 3 January 1976 993 UNTS 3 (hereinafter: ICESCR) Article 15.1(a). CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/ GC/21 (21 December 2009) (hereinafter: General Comment No 21) para 50. ‘Memorials, understood as physical representation or commemorative activities located in public spaces, that concern specific events regardless of the period of occurrence (wars and conflicts, mass or grave human rights violations) or the persons involved (soldiers, combatants)’. UN HRC, ‘Report of the Special Rapporteur in the Field of Cultural Rights. Memorialization Processes’ UN Doc A/ HRC/25/49 (23 January 2014) (hereinafter: 2014 Report) para 5. (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171 (hereinafter: ICCPR). 2014 Report, paras 62, 100 and 102. A widely accepted definition of “Sites of Memory” is ‘any significant entity, whether material or non-material in nature, which by dint of human will or the work of time has become a symbolic element of the memorial heritage of any community’, Pierre Nora (ed) Les lieux de mémoire (Gallimard 1997).

“Contested” Cultural Heritage 205 “Interpretation of Sites of Memory” report of the International Coalition of Sites of Conscience (ICSC), appointed in 2016 by the WHC.74 Stressing the uniqueness and irreplaceability of all heritage sites, the ICSC Report highlights both the central role played by all cultural heritage in the sustainable development process and the necessity to transmit it to future generations. In light of all of the above, and notwithstanding its non-binding nature, it appears that the above-mentioned norm-set for cultural heritage and sustainable development may be considered a significative improvement in the global action for the international protection of worldwide cultural property. Although not directly imposing on States a general prohibition of – and abstention from – the intentional destruction of cultural heritage, in fact, such framework appears to lay some foundations for the progressive emergence of the international duty of conserving all the elements of the cultural heritage of States, in the name of their importance to present and future generations. Consisting, at the current time, to be no more than a nascent trend, such an upand-coming principle of cultural heritage conservation appears to be progressively gaining in credibility. This, even more, if seen in the light of what has been argued by some authors since the facts of Bamiyan, to be the emergence of a customary norm acknowledging the necessity of protecting all the cultural heritage worldwide.75 Acknowledging the emergence of an opinio juris towards the existence of an international duty to conserve all the elements of the cultural heritage of humankind, these scholars refer to the raising of the threshold for States’ discretionary power upon the cultural property in situ, which needs to be ‘preserve[d], and a fortiori not deliberate[ly] destroy[ed]’.76 According to these authors, this, notably in light of the relevance of cultural heritage as a matter of public interest, is recognized as such in most of the domestic legal systems in the world.77 In addition, this conclusion can be drawn from the centrality of cultural heritage in the international legal framework for the protection of the human right to culture, as has been acknowledged in the

74 ICSC, ‘Interpretation of Sites of Memory. Study commissioned by the World Heritage Centre of UNESCO and funded by the Permanent Delegation of the Republic of Korea’ (31 January 2018) (hereinafter: ICSC Report) para 57. 75 Francioni and Lenzerini (nt. 35). See also Francesco Francioni, ‘La protezione internazionale dei beni culturali: un diritto consuetudinario in formazione?’, in Paolo Benvenuti and Rosario Sapienza (eds) La tutela internazionale dei beni culturali nei conflitti armati (Giuffrè 2007). 76 Francioni and Lenzerini (nt. 35) 635. See also Clémentine Bories, Le patrimoine culturel en droit international. Les compétences des Etats à l’égard des élements du patrimoine culturel (Pedone 2011) 147 ff. 77 Francioni and Lenzerini (nt. 35). On the role of the practice of States in the international protection of cultural heritage, Luigi Crema, ‘Is the Intention of the Parties at the Heart of Interpretation? Some News about Subsequent Practice from The Hague’ (SIDIBlog, 9 May 2014) . See also Manlio Frigo, La protezione dei beni culturali nel diritto internazionale (Giuffrè 1986); Joseph L. Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (University of Michigan Press 1999).

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2014 and 2016 Reports by the Special Rapporteur(s) in the field of cultural rights. Mentioned by Article 27 of the Universal Declaration of Human Rights78 and Article 27 of the ICCPR, the right to have access to cultural heritage is at the core of Article 15.1(a) of the ICESCR,79 which refers, as specified in General Comment No 21, to States Parties’ duty to ‘Respect and protect the cultural heritage in all its forms, in times of war and peace’, to be transmitted to future generations ‘as a record of human experience’.80 According to the CESCR, remarkably, this is given the significance of any item of worldwide cultural heritage for the enhancement of human dignity and development,81 and irrespective of the possible “controversial” meaning eventually attributed to such property for historic, social or political reasons. 4 The Re-contextualization of Cultural Heritage in a Perspective of Transitional Justice: Investigating Feasible Solutions to Transmit “Contested” Cultural Property to Future Generations Returning to the iconoclastic campaign accompanying the BLM demonstrations in the light of the above considerations, it seems that, even if justified by domestic authorities, the attacks carried out against certain cultural assets may present some outcomes from an international law perspective. As has been discussed in the above sections, in fact, it appears that the “right to destroy” supported by some scholars, notably, referring to the destruction of the Confederate memorials, may present a series of shortcomings when seen in light of the progressively emerging international legal framework for the protection of cultural heritage as a driver for sustainable development.82 Hence, a question arises as to whether and how it would be possible to identify a feasible alternative to the irreversible destruction of those elements of “contested” property which, although symbols of a controversial past, represent a common heritage to be handed down to future generations. As acknowledged by the 2014 Report, the question on how to manage monumental legacies with strong symbolic connotations may need, depending on circumstances, on a controversial issue, to be framed and interpreted on a case-by-case basis.83 Nevertheless, the 2014 Report insists that, in any case, the irreversible destruction of monuments and sites should be prevented and avoided by the concerned authorities, as it provokes a remarkable

78 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948). 79 UNESCO, ‘Recommendation on Participation’ (nt. 52). See also Lorenzo Acconciamessa, ‘PublicInterest Litigation before the ECtHR: Towards a Human Rights Approach to the “Universal” Protection of Cultural Heritage?’ (2022) 1 OIDU 189. 80 General Comment No 21, para 50 (a). See Roger O’Keefe, ‘The ‘Right to Take Part in Cultural Life’ under Article 15 of the ICESCR’ (1998) 47 ICLQ 904. 81 General Comment No 21, para 1. 82 ‘Culture is an intrinsic part of the human experience and, with the adoption of the 2030 Agenda for Sustainable Development in 2015, the international community also recognized the role of culture as a driver of sustainable development’. See the declarations of the UNESCO General Director Audrey Azoulay, as reported in UNESCO, Culture in 2030 Agenda (2018) . 83 2014 Report, paras 62 and 63.

“Contested” Cultural Heritage 207 violation of the human right to have access to a pluralistic historical narrative conceived as an element of cultural life.84 To this end, as acknowledged also in the 2016 Report, alternatives should be found to avoid the destruction of heritage, as well as adequate means of memorializing it.85 This, even more, in line with the UN norm-set for transitional justice which, as highlighted in the 2014 Report, identifies in cultural heritage a cornerstone of reconciliation processes.86 According to the Joinet-Orentlicher reports,87 as well as the Van Boven-Bassiouni reports,88 in fact, the preservation of cultural heritage represents a core element of the “duty of remembrance” in post-conflict societies. From this view, States should assume all the appropriate measures required to preserve the expressions and symbols of the collective memory to transmit them to future generations, seeking the plurality of historical narratives also through the means of cultural heritage conservation.89 In this way, post conflict societies would be saved from revisionism and negationist arguments, and they might be prevented from such violations recurring in the future.90 Existing since 2008 in the ICOMOS Charter for the Interpretation and Presentation of Cultural Heritage,91 the same idea that “contested” cultural heritage should be re-integrated within the social context, through the means of a discerning interpretation grounded on historical basis,92 has been recently acknowledged, among others, by UNESCO and the World Bank. Recognizing that the collective reconciliation of societies with their difficult past cannot be separated from the conservation of the cultural property symbol of such a legacy, the World Bank has acknowledged the pivotal role played by the cultural element in transition politics, recovery, and reconstruction processes.93 84 2014 Report, para 61. 85 2016 Report, para 13. 86 Transitional justice consists of both judicial and non-judicial processes and mechanisms and it should further seek to take account of the root causes of conflicts and the related violations of all rights, including civil, political, economic, social and cultural rights. UN, ‘Guidance Note of the Secretary-General. United Nations Approach to Transitional Justice’ (March 2010) Summary. See also 2014 Report, para 2. 87 ECOSOC, ‘Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political). Revised Final Report Prepared by Mr. Joinet’ UN Doc E/CN.4/Sub.2/1997/20/Rev.1 (2 October 1997) (hereinafter: Joinet Report); ECOSOC, ‘Promotion and Protection of Human Rights. Impunity. Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher’ UN Doc E/CN.4/2005/102/Add.1 (8 February 2005). 88 OHCHR, ‘The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms’ UN Doc E/CN.4/RES/1997/29 (11 April 1997); ECOSOC, ‘The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms. Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni’ UN Doc E/CN.4/2000/62 (18 January 2000). 89 For a definition of “post-conflict societies”, 2014 Report, para 19. 90 Joinet Report, Principle 2 and para 17. 91 ICOMOS Charter for the Interpretation and Presentation of Cultural Heritage (4 October 2008) (hereinafter: ICOMOS Charter). 92 Lucas Lixinski, Legalized Identities. Cultural Heritage Law and the Shaping of Transitional Justice (CUP 2021) 95. 93 UNESCO and World Bank, Culture in City Reconstruction and Recovery (UNESCO 2018).

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In the same way, it seems that a valuable contribution in the investigation of the feasible alternatives to “contested” cultural heritage destruction may be offered by the ICSC Report. Recognizing the key role of cultural property in shaping the identity of a community, the ICSC Report revolves around the idea of transmitting cultural heritage to future generations, also where it refers to past events seen as divisive or repressive.94 According to the ICSC Report, in fact, it is even more in such hypothesis that the “sensitive” cultural heritage should, rather than being eliminated, be maintained within the social context, in virtue of its historical value and in a perspective of the ‘right to the truth’.95 Focusing on how to re-integrate such “contested” monuments within the concerned societies, the ICSC Report refers, notably, to the principle of recontextualization. According to this principle, monuments and sites of past oppressive regimes should be retained in the public space, in view of being ‘discussed, framed and interpreted’. In other words, such cultural heritage shall be maintained within the social context; nevertheless, its message and meaning must be readdressed by means of a rigorous historical analysis and study, so as to ensure a complete and objective narrative to present and future generations.96 In this way, the ICSC Report argues, the concerned community would be able to save its cultural heritage from irreversible destruction, thereby not leading to the mystification of avowed symbols or in the violation of victims’ rights. In terms of the concrete means by which such re-contextualization might be achieved, several solutions are proposed by the ICSC Report. In particular, consistent with the principles set out in the ICOMOS Charter, the ICSC Report suggests as one of the most effective strategies the combination of contested monuments with captions or inscriptions. In this way, a critical analysis of the ideas underpinning those monuments’ edification would be provided, without questioning their significance from an historic or artistic point of view.97 To corroborate its assumptions, the ICSC Report mentions several examples of re-contextualization in which the reintegration of contested heritage within the social context has led to positive results. Inter alia, the ICSC Report refers to the “reintegration” of historical monuments and sites by the addition of explanatory plaques which has occurred in Bosnia and Herzegovina,98 as well as the case of the Budapest Memento Park. In particular, this latter case is acknowledged as a good instance of the requalification of a contested site, depriving the Soviet power of its element of threat

94 As in the case of the Jim Crow Confederate memorial in the US. ICSC Report, P-2, para 39 and P-3, para 51. 95 This, consistently with the recommendations of 2014 Report and 2016 Report. See ICSC Report, P-4, para 69. 96 This, consistently with the “public/educative purposes” of memorials and sites. 2014 Report, paras 13 and 61. 97 ‘The interpretation of a cultural heritage site should not be considered to be completed with the completion of a specific interpretive infrastructure’. ICOMOS Charter, Principle 7. 98 Tiffany Fairey and Rachel Kerr, ‘What Works? Creative Approaches to Transitional Justice in Bosnia and Herzegovina’ (2020) 14 IJTJ 142.

“Contested” Cultural Heritage 209 ‘by displaying [its monuments] in a “neutral” or neutralized fashion . . . emphasiz[ing] the dignity of democracy and the responsibility of historical thinking’.99 In the same way, significant examples of re-contextualization have been acknowledged regarding the heritage of the World War II, notably, the Auschwitz-Birkenau concentration camp100 and the Hiroshima Peace Memorial Park.101 Defined as unavoidable symbols of a past of atrocities, these elements have been saluted as a key component of the transitional justice processes, notably from the perspective of the ‘right to the truth’ and ‘guarantee of non-repetition’.102 With reference to the US context, the ICSC Report mentions as good practices of “redesignation of contested sites” the Philadelphia Eastern State Penitentiary and the New York Statue of Liberty and Ellis Island National Monument.103 In both cases, these items play a key role in the education, urban and tourism policies set up by the competent authorities, exploiting the ‘potential challenges and opportunities’ of the interpretation of “Sites of Memory” and transmitting to future generations an exhaustive and independent historical narration.104 Although representing no more than an emerging trend, such practice of “recontextualizing” “contested” cultural heritage to transmit it intact to present and future generations appears to be progressively gaining in credibility at the international level. Indeed, the importance of preserving sites and memorials from an intergenerational perspective has also been raised in the context of the recent BLM protests. In particular, the question of whether and how the necessity of conserving “contested” cultural property may apply to the specific case of the Confederate memorials has been tackled by scholars of political and legal philosophy.105 Recalling the wide-reaching common interest of the public conversation about reparation for slavery and discrimination, such authors have suggested that the preservation of ‘Slavery’s statues’ may contribute to the creation of a sense of ‘historical development’ from such events, of which perpetrators are held accountable through the lens of a critical historical analysis. This, even more, in the light of the results of the 2017–2018 Reuters/Ipsos and Winthrop polls, which have reported that the majority of Americans are in favor of the maintenance and re-contextualization of Confederate monuments within the public space.106 Acknowledging its importance

99 The Memento Park is a site where public monuments and sites erected during the Soviet period have been moved after the “re-democratization’ of Hungary”. See the declarations of former Hungarian President Arpad Goncz as reported in ‘Memento Park. The Spirit and Statues of the Communist Dictatorship. Commendation’ . 100 Added to the World Heritage List in 1979. 101 Added to the World Heritage List in 1996. 102 Lucas Lixinski (nt. 92) 62–66. 103 ICSC Report, Annex 3. 104 ICSC Report, P-4, para 74. 105 Joanna Burch Brown, ‘Should Slavery’s Statues Be Preserved? On Transitional Justice and Contested Heritage’ (2020) 39 JAPP 807. 106 In detail, 62% of Southern Blacks declared themselves in favor of the re-contextualization of Confederacy monuments through the addition of plaques or inscriptions as a feasible way to explain their presence as part of the country’s heritage. Chris Kahn, ‘A Majority of Americans Want to Preserve Confederate Monuments: Reuters/Ipsos Poll’ Reuters (21 August 2017) ; Winthrop University, ‘2018 Results, Winthrop Poll’ (December 2018) . See also Lucas Lixinski, ‘Confederate Monuments and International Law’ (2018) 35 WILJ 549.

Part IV

Intangible Cultural Heritage, Sustainable Development and Human Rights

12 Sustainable Development and Intangible Cultural Heritage Tullio Scovazzi*

1 A Balance Between Development and Environment The concept of sustainable development was a fundamental aspect of the 1987 report of the World Commission on Environment and Development (the so-called Brundtland Report), where it was understood as [development] that meets the needs of the present without compromising the ability of future generations to meet their own needs.1 In the report’s vision, sustainable development was linked to the protection of the natural environment and was intended ‘to promote harmony among human beings and between humanity and nature’.2 Accordingly, the Declaration adopted by the 1992 Rio Conference on Environment and Development envisaged the principle of sustainable development as a bridge between economic development and environmental protection and between the present and the future generations: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.3

* Former Professor of International Law in the Universities of Parma, Genoa, Milan and Milan-Bicocca (Italy). 1 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) Annex para 27. 2 ibid para 81. 3 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration) Principles 3 and 4.

DOI: 10.4324/9781003357704-16

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Since then, the principle has been restated in many related instruments and has been adapted to several contexts. For example, under the Convention on Biological Diversity ‘Sustainable use’ means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.4 Under the FAO Code of Conduct for Responsible Fisheries (1995): Fisheries management should promote the maintenance of the quality, diversity and availability of fishery resources in sufficient quantities for present and future generations in the context of food security, poverty alleviation and sustainable development. Management measures should not only ensure the conservation of target species but also of species belonging to the same ecosystem or associated with or dependent upon the target species. States should prevent overfishing and excess fishing capacity and should implement management measures to ensure that fishing effort is commensurate with the productive capacity of the fishery resources and their sustainable utilization. States should take measures to rehabilitate populations as far as possible and when appropriate.5 The principle of sustainable development finds its proper field of application where there is a need to strike a balance between the exploitation of natural resources, on the one hand, and the protection of the environment, on the other. The basic idea is that if exploitation goes beyond a certain threshold, the natural balance will be altered and the environment impaired or even destroyed. 2

Culture and Sustainable Development

Less evident is the relationship between sustainable development and culture. However, the Rio Declaration already links sustainable development and culture together in the particular case of Indigenous people and other local communities, which have a stronger link with the natural environment and its resources: Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly

4 (Rio de Janeiro 5 June 1992) entered into force 29 December 1993 1760 UNTS 79, Article 2. 5 FAO, Code of Conduct for Responsible Fisheries (1995) Articles 6.2 and 6.3.

Sustainable Development and Intangible Cultural Heritage 215 support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.6 The UN Declaration on the Rights of Indigenous Peoples recognizes in the Preamble that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.7 In more general terms, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions identifies cultural diversity as a condition for sustainable development: Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations.8 According to the Convention, ‘cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations’.9 Traditional knowledge, in particular the knowledge systems of Indigenous peoples, is a source of intangible and material wealth and brings a positive contribution to sustainable development.10 Parties ‘shall endeavour’ to integrate culture into their development policies at all levels for the creation of conditions conducive to sustainable development.11 The Council of Europe Framework Convention on the Value of Cultural Heritage for Society, emphasizing the value and potential of cultural heritage wisely used as a resource for sustainable development and quality of life in a constantly evolving society,12 includes two provisions devoted, respectively, to ‘sustainable use of the cultural heritage’ and ‘cultural heritage and economic activity’: To sustain the cultural heritage, the Parties undertake to: (a) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved;

6 Rio Declaration, Principle 22. 7 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) Preamble. 8 (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311, Article 2.6. 9 Preamble. 10 ibid. 11 Article 13. Note that ‘shall endeavour’ is a typical expression used to indicate a soft obligation. 12 (Faro 27 October 2005) entered into force 1 June 2011 CETS No 199, Preamble.

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(b) define and promote principles for sustainable management, and to encourage maintenance; (c) ensure that all general technical regulations take account of the specific conservation requirements of cultural heritage; (d) promote the use of materials, techniques and skills based on tradition, and explore their potential for contemporary applications; (e) promote high-quality work through systems of professional qualifications and accreditation for individuals, businesses and institutions. In order to make full use of the potential of the cultural heritage as a factor in sustainable economic development, the Parties undertake to: (a) raise awareness and utilise the economic potential of the cultural heritage; (b) take into account the specific character and interests of the cultural heritage when devising economic policies; and (c) ensure that these policies respect the integrity of the cultural heritage without compromising its inherent values.13 The 2030 Agenda, the outcome document of the UN Summit for the Adoption of the Post-2015 Development Agenda, emphasizes the three dimensions of sustainable development: the economic, social and environmental.14 UNGA Resolution 74/230 of 19 December 2019 (Culture and sustainable development) acknowledges that culture contributes to all three dimensions, in particular: (a) That culture contributes to inclusive economic development, as cultural heritage preservation, cultural and creative sectors, sustainable cultural tourism and cultural infrastructure, including urban regeneration, can be sources of income generation, job creation and decent work for all, including at the community level, thus improving living conditions and fostering communitybased economic growth, and contribute to the empowerment of individuals; (b) That culture contributes to inclusive social development for all, including local communities and indigenous peoples, with respect for cultural diversity, safeguarding of the cultural and natural heritage, fostering of cultural institutions and strengthening of cultural and creative sectors, in urban and rural contexts; (c) That culture contributes to environmental sustainability, since the protection of cultural and biological diversity and natural heritage is important for sustainable development, and that support for traditional systems of environmental protection, and resource management, can contribute to the increased sustainability of fragile ecosystems and the conservation, preservation and sustainable 13 ibid Articles 9 and 10. 14 UNGA, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015). See in this volume, Sabine von Schorlemer, ‘The Agenda 2030 for Sustainable Development: Its Impact on the Implementation of the 1972 World Heritage Convention’.

Sustainable Development and Intangible Cultural Heritage 217 use of biodiversity and to avoiding land degradation and addressing climate change.15 At this point, the readers risk finding themselves lost when faced with such a plethora of high-sounding expressions. It is evident that the concept of sustainable development should not remain confined to the environmental dimension and needs to be expanded to the cultural one. It could thus be assumed that, restating mutatis mutandis Principle 3 of the Rio Declaration, the right to development must be fulfilled so as to equitably meet the developmental and cultural needs of present and future generations. However, it is not completely clear how culture can contribute to sustainable development. The opposite question is also interesting, that is whether there are cases in which economic development and culture are in conflict, as happens in the relationship between development and the environment. After all, Resolution 74/230 also hints at policies responsive to cultural contexts (are there also non-responsive policies?),16 at inclusive cultural governance (can it also be exclusive?),17 and at the misappropriation of creative works.18 These questions will be discussed hereunder with reference to the kind of heritage covered by the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted within the framework of UNESCO and today in force for 180 States.19 3 The Social Component of Intangible Cultural Heritage The 2003 UNESCO Convention defines ‘intangible cultural heritage’ (ICH) as follows: the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from 15 16 17 18 19

UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/74/230 (16 January 2020) para 4. ibid para 2. ibid para 5. ibid para 16.1. (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). See Janet Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Institute of Art and Law 2006); Burra Srinivas, ‘The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage’ in James A.R. Nafziger and Tullio Scovazzi (eds) Le patrimoine culturel de l’humanité – The Cultural Heritage of Mankind (Brill 2008) 529 ff; Lucas Lixinski, Intangible Cultural Heritage in International Law (OUP 2013); Tullio Scovazzi, ‘Intangible Cultural Heritage as Defined in the 2003 UNESCO Convention’, in Gaetano M. Golinelli (ed) Cultural Heritage and Value Creation. Towards New Pathways, (Springer 2014) 105 ff; Janet Blake, ‘From Traditional Culture and Folklore to Intangible Cultural Heritage: Evolution of a Treaty’ (2017) 2 SA&CLR 41. For a general analysis of the question see Ana F. Vrdoljak, ‘The Principle of Sustainable Development and International Cultural Heritage Law’, in this volume.

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generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.20 The essential components of the concept of ICH seem to be a manifestation of such heritage (objective component) and a community of people (subjective or social component). As regards the first component, the 2003 UNESCO Convention provides examples of domains in which this kind of heritage, composed of traditions, expressions, knowledge, rites and myths, can be manifested: The ‘intangible cultural heritage’ . . . is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.21 For the purposes of sustainable development, the social component of the heritage is particularly relevant. ICH is recognized as such by ‘communities, groups and, in some cases, individuals’, which implies that the heritage must not only be manifested in relation to, but also shared with, other people. This kind of heritage provides ‘a sense of identity and continuity’ to a specific community of bearers or practitioners – the custodian community – who through this aspect distinguish themselves from the rest of the world. Practices or objects that are diffused worldwide, such as football or blue jeans, cannot be identified with any specific community and therefore do not belong to the category of ICH.22 The heritage is protected by the 2003 UNESCO Convention not only for its external characteristics, but especially because it is rooted in a given community. As suggested by the Operational Directives for the implementation of the 2003 UNESCO Convention,23 when publicizing and disseminating information on the elements inscribed on the Lists, care should be given to presenting the elements in their context and to focusing on their value and meaning for the communities concerned, rather than only on their aesthetic appeal or entertainment value.24

20 2003 UNESCO Convention, Article 2.1. 21 Article 2.2. 22 To overcome the problems posed by generic elements, the proponents of the “Mediterranean Diet” (Greece, Italy, Morocco, Spain) chose specific communities as emblematic of the element (the localities of, respectively, Koroni, Cilento, Chefchaouen and Soria). 23 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2008, as subsequently amended) (hereinafter: the Operational Directives). 24 ibid para IV.1.3.120.

Sustainable Development and Intangible Cultural Heritage 219 The strong social component explains why States parties must involve the communities and groups concerned in all activities related to ICH, such as the identification of elements,25 safeguarding and management measures,26 educational and training programmes,27 and nominations for inscription in the 2003 UNESCO Convention lists.28 The elements inscribed by the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (hereinafter: the ICH Committee) on the lists are “representative” of the ICH of humanity,29 and do not need to express an ‘outstanding universal value’, as required for inclusion in the lists established by the 1972 World Heritage Convention.30 In the 2003 UNESCO Convention, the lists serve the purpose of ensuring better visibility and encouraging dialogue among communities,31 without the aim of marking out a hierarchy between the different manifestations and communities. An element inscribed in the list is simply a part of the heritage rather than the best part of it. Provided that a specific community is identifiable, the popularity of an element does not prevent the inscription of it in the Representative List established by the 2003 UNESCO Convention: examples include “Tango” (Argentina, Uruguay),32 “Flamenco” (Spain),33 “Reggae music of Jamaica” (Jamaica).34 As indicated by the Subsidiary Body for the Examination of Nomination to the List (hereinafter: the Subsidiary Body), an element’s great popularity, even internationally, does not mean that it is of less significance to the community to which it belongs and its inscription ‘could help to increase the visibility of intangible cultural heritage in general’.35 25 26 27 28 29 30 31 32

33

34

35

2003 UNESCO Convention, Article 11(b). Article 15(a)(ii). Article 14(a)(ii). Operational Directives, paras I.1, I.2 and I.3. The lists are the Representative List of the Intangible Cultural Heritage of Humanity and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding. 2003 UNESCO Convention, Articles 16 and 17. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151. 2003 UNESCO Convention, Article 16. UNESCO, ‘Multimedia Video and Sound Collection: Tango’ (‘The Argentinian and Uruguayan tradition of the Tango, now familiar around the world, was developed by the urban lower classes in Buenos Aires and Montevideo in the Rio de la Plata basin’). Reference available on the UNESCO website. UNESCO, ‘Multimedia Video and Sound Collection: Flamenco’ (‘Flamenco is an artistic expression fusing song (cante), dance (baile) and musicianship (toque). Andalusia in southern Spain is the heartland of Flamenco, although it also has roots in regions such as Murcia and Extremadura’). Reference available on the UNESCO website. ICH Committee, ‘Decision 13.COM 10.b.18’ ITH/13.COM/Decisions (20 December 2018) para 1 (‘Having originated within a cultural space that was home to marginalized groups, mainly in Western Kingston, the Reggae music of Jamaica is an amalgam of numerous musical influences, including earlier Jamaican forms as well as Caribbean, North American and Latin strains’). ICH Committee, ‘Subsidiary Body for the Examination of Nominations to the Representative List of the Intangible Cultural Heritage of Humanity. Report by the Rapporteur’ ITH/09/4.COM/ CONF.209/INF.6 (26 August 2009) (hereinafter: Subsidiary Body Report) para 31.

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The social component of the heritage also implies its voluntary transmission from bearers to recipients. A mere exhibition of a certain skill, without any desire to transmit it, cannot qualify as ICH. Transmission can occur in various forms: in families from parents to sons and daughters, at work from masters to apprentices, at school from teachers to pupils. Transmitted from generation to generation, the ICH is ‘constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’.36 The concepts of recreation or reinterpretation imply that changes occurring with the passing of time are reflected in the heritage, as is inevitable because of its living character. For example, in the case of “The Traditional Manufacturing of Children’s Wooden Toys in Hrvatsko Zagorje” (Croatia), trains, cars, trucks and airplanes are replacing horses and carts;37 in the case of “Gule Wamkulu” (Malawi, Mozambique, Zambia), in a rather unexpected manner, dancers wearing costumes and the masks of wild animals, spirits of the dead, slave traders, motorcycles and helicopters all dance together.38 The concepts of recreation and reinterpretation involve the difficult question of determining the extent to which changes in the substance of the ICH are acceptable. Transformation does not mean artificial alteration, even though many variations can be found between one extreme and the other. With regard to modernization, the Subsidiary Body, moving from the ever-changing nature of ICH, remarked that the modernization of production methods, mechanization and electrification would not be regarded as a priori disqualifying an element of intangible cultural heritage, particularly as regards craft practices, as long as the requirements were met that emphasis remained on the human factor of the element and that mechanization duly respected the aspirations of the communities concerned.39 36 2003 UNESCO Convention, Article 2.1. 37 ICH Committee, ‘Decision 4.COM 13.35’ ITH/09/4.COM/CONF.209/Decisions (2 October 2009) para 1 (‘The whistles, horses, cars, tiny furniture, spinning dancers, jumping horses and flapping birds produced today are almost identical to those made more than a century ago – though no two toys are precisely the same, thanks to the handcrafted production process . . . They have also evolved with the times and, in addition to the traditional shapes such as horses and carts, new ones representing cars, trucks, airplanes and trains have appeared, reflecting the world surrounding modern-day children’). 38 UNESCO, ‘Silk Roads Programme: Gule Wamkulu’ (‘Gule Wamkulu is performed in the season following the July harvest, but it can also be seen at weddings, funerals, and the installation or the death of a chief. On these occasions, the Nyau dancers wear costumes and masks made of wood and straw, representing a great variety of characters, such as wild animals, spirits of the dead, slave traders as well as more recent figures such as the honda or the helicopter. Each of these figures plays a particular, often evil, character expressing a form of misbehavior, teaching the audience moral and social values. These figures perform dances with extraordinary energy, entertaining and scaring the audience as representatives of the world of the spirits and the dead’). Reference available on the UNESCO website. 39 Subsidiary Body Report, para 27.

Sustainable Development and Intangible Cultural Heritage 221 A similar, but more difficult, question relates to the “revitalization” of ICH, that is to say encouraging and supporting local communities in reactivating or reinventing social practices and representations, which are no longer in use or are falling in disuse.40 Is the heritage subject not only to transformation but also to death, like every living manifestation? The definitive loss of the heritage can be the consequence of a wide variety of events, having either a natural (e.g. deforestation or drought) or a political and social (e.g. conflicts or urbanization) character. The loss may also be the consequence of the simple indifference shown by the younger generations towards the traditions of their parents and grandparents. The 2003 UNESCO Convention includes “revitalization” among the safeguarding measures aimed at ensuring the viability of ICH,41 although the inclusion of this word was one of the most discussed issues during the negotiations. Does this mean that a manifestation of heritage that has died can be resuscitated? Should the State provide incentives to encourage indifferent people to engage in a fading practice or should it limit itself to documenting the last manifestations of the heritage for the records and the archives? Is it in conformity with the spirit of the 2003 UNESCO Convention that someone takes the initiative to restore a practice that is no longer in use because the practice might be of commercial interest to perform? Could an element, despite being in disuse, play a key role in a community’s collective memory and, when revitalized, once more fulfil its sociocultural function? There are no clearcut answers to such questions. The social component of ICH also explains why, to be protected by the 2003 UNESCO Convention, the heritage must be compatible with three conditions, including the requirement of sustainable development: For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.42 For instance, the requirement of sustainable development could prevent the inscription on the Representative List of practices which endanger the preservation of animal or vegetable species or entail the depletion of natural resources. 4

Sustainable Development in the Operational Directives and in the Practice of the ICH Committee

The relationship between ICH and sustainable development is taken into full account in Chapter VI of the Operational Directives, added in 2016.43 This heritage 40 41 42 43

Wim van Zanten (ed) Glossary – Intangible Cultural Heritage (UNESCO 2002) 6. 2003 UNESCO Convention, Article 2.3. Article 2.1, last sentence. Toshiyuki Kono, ‘UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development’, in Abdulqawi A. Yusuf (ed) Standard-Setting in UNESCO, Volume I: Normative Action in Education, Science and Culture (UNESCO 2007) 237 ff; Benedetta Ubertazzi, Intangible

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is understood as a ‘driver and guarantee’44 and a ‘strategic resource’45 for sustainable development, as well as ‘a powerful force for inclusive and equitable economic development, encompassing a diversity of productive activities with both monetary and non-monetary value, and contributing in particular to strengthening local economies’.46 The safeguarding of ICH must be integrated into national developments plans, policies and programmes.47 As such instruments may potentially affect the viability of the heritage, States parties shall endeavour to: (a) ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and involve them actively in elaboration and implementation of such plans, policies and programmes; (b) ensure that those communities, groups and, where appropriate, individuals concerned are the primary beneficiaries, both in moral and in material terms, of any such plans, policies and programmes; (c) ensure that such plans, policies and programmes respect ethical considerations and do not negatively affect the viability of the intangible cultural heritage concerned or de-contextualize or denaturalize that heritage; (d) facilitate cooperation with sustainable development experts and cultural brokers for the appropriate integration of the safeguarding of intangible cultural heritage into plans, policies and programmes, both within and outside the cultural sector.48 States Parties shall also endeavour to ensure that safeguarding plans and programmes are fully inclusive of all sectors and strata of society, including Indigenous peoples, immigrants, refugees, people of different ages and genders, persons with disabilities and members of vulnerable groups.49 ICH expresses values and life skills that contribute to sustainable development and should be transmitted through educational and training programmes that promote respect for others and do not characterize relevant communities or groups as not participating in contemporary life or harm their image.50 Particular emphasis is given in the Operational Directives to the contribution that ICH can bring to sustainable development in some specific sectors. In the case of food security, States parties should recognize and enhance farming, fishing, hunting, pastoral, food-gathering, food preparation and food preservation

44 45 46 47 48 49 50

Cultural Heritage, Sustainable Development and Intellectual Property: International and European Perspectives (Springer 2022). Operational Directives, para VI.170. ibid para VI.173. ibid para VI.2.184. ibid para VI.170. ibid para VI.171. ibid para VI.174. ibid para VI.1.3.180.

Sustainable Development and Intangible Cultural Heritage 223 knowledge and practices, including their related rituals and beliefs, which maintain agro-biodiversity and strengthen resilience to climate change.51 For example, “Traditional Mexican cuisine – Ancestral, ongoing community culture, the Michoacán paradigm” (Mexico) is a comprehensive cultural model comprising farming, ritual practices, ageold skills, culinary techniques and ancestral community customs and manners. It is made possible by collective participation in the entire traditional food chain: from planting and harvesting to cooking and eating. The basis of the system is founded on corn, beans and chili; unique farming methods such as milpas (rotating swidden fields of corn and other crops) and chinampas (man-made farming islets in lake areas); cooking processes such as nixtamalization (lime-hulling maize, which increases its nutritional value); and singular utensils including grinding stones and stone mortars. Native ingredients such as varieties of tomatoes, squashes, avocados, cocoa and vanilla augment the basic staples.52 In the case of health care, States parties should recognize and enhance healing practices, which demonstrate their functions and efficacy in meeting health needs, while respecting customary rules governing access to them.53 For example, in the case of the “Andean cosmovision of the Kallawaya” (Bolivia), this healing art derives from a deep understanding of animal, mineral and botanical pharmacopoeia and a body of ritual knowledge intimately linked to religious beliefs. The exclusively male itinerant healers treat patients using medical and pharmaceutical knowledge that revolves around a complex system of transmission and apprenticeship in which the journey plays an essential role. By travelling through widely varying ecosystems, Kallawaya healers expand their knowledge of medicinal plants. With some 980 species, their botanical pharmacopoeia rates as one of the richest in the world. Kallawaya women participate in a number of rites, care for pregnant women and children, and weave textiles with motifs and decoration relating to the Kallawaya cosmovision. Musical groups called kantus play the drum and pan flute during ritual ceremonies in order to establish contact with the world of the spirits.54 In the case of water use, States parties should ensure the viability of water management systems that promote equitable access to safe drinking water and sustainable

51 ibid para VI.1.1.178. 52 ICH Committee, ‘Decision 5.COM 6.30’ ITH/10/5.COM/CONF.202/Decisions (19 November 2010) para 1. 53 Operational Directives, para VI.1.2.179. 54 UNESCO, ‘Andean Cosmovision of the Kallawaya’. Reference available on the UNESCO website.

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water use, notably in agriculture and other subsistence activities.55 For example, the “Al Aflaj, traditional irrigation network system in the UAE, oral traditions, knowledge and skills of construction, maintenance and equitable water distribution” (United Arab Emirates) is based on inherited knowledge and practices related to nature and the universe. It also relies on traditional skills in finding water sources based on types of vegetation and other indications, as well as drilling skills for maintaining the irrigation system and ensuring the equitable distribution of water. Community members contribute to maintaining Al Aflaj and clearing the tunnels of mud; this knowledge and experience has been passed down for 3,000 years.56 In the case of the environment, States parties should recognize and enhance knowledge and practices concerning nature and the universe that contribute to the protection of biodiversity and to the sustainable management of natural resources.57 For example, “Charfia fishing in the Kerkennah Islands” (Tunisia) is a traditional, passive fishing technique that capitalises on the hydrographic conditions, seabed contours and natural resources both at sea and on land. The ‘charfia’ is a fixed fishery system consisting of palm fronds embedded in the seabed to create a triangular barrier, blocking the path of the fish pulled in by the ebb tide and channelling them into capture chambers and finally into a net or trap. Unlike bottom trawling systems that scrape the seabed, the traps keep the fish alive and fasting until raised. It is customary to install and operate the charfia only between the autumn equinox and June to ensure the marine wildlife have a biological rest period.58 In the case of resilience to natural disasters and climate change, States parties should recognize and enhance knowledge and practices concerning geoscience, particularly the climate, and harness their potential to contribute to the reduction of risk and recovery from natural disasters, particularly through the strengthening of social cohesion.59 For example, the “Art of dry stone walling, knowledge and techniques” (Croatia, Cyprus, France, Greece, Italy, Slovenia, Spain, Switzerland) concerns the knowhow related to making stone constructions by stacking stones upon each other, without using any other materials except sometimes dry soil. Dry stone structures are spread across most rural areas – mainly in

55 56 57 58 59

Operational Directives, para VI.1.5.182. ICH Committee, ‘Decision 15.COM 8.a.3’ LHE/20/15.COM/Decisions (12 January 2021) para 1. Operational Directives, para VI.3.1.189. ICH Committee, ‘Decision 15.COM 8.b.9’ LHE/20/15.COM/Decisions (12 January 2021) para 1. Operational Directives, para VI.3.3.191.

Sustainable Development and Intangible Cultural Heritage 225 steep terrains – both inside and outside inhabited spaces, though they are not unknown in urban areas. The stability of the structures is ensured through the careful selection and placement of the stones, and dry-stone structures have shaped numerous, diverse landscapes, forming various modes of dwelling, farming and husbandry. Such structures testify to the methods and practices used by people from prehistory to today to organize their living and working space by optimizing local natural and human resources. They play a vital role in preventing landslides, floods and avalanches, and in combating erosion and desertification of the land, enhancing biodiversity and creating adequate microclimatic conditions for agriculture.60 States parties shall also ensure that inscriptions in the 2003 UNESCO Convention lists are not misused to the detriment of the ICH and communities, groups or individuals concerned, in particular for short-term economic gain.61 States parties are called upon to adopt appropriate legal, technical, administrative and financial measures to promote opportunities for communities, groups and individuals to generate income and sustain their livelihood and to ensure that the latter are the primary beneficiaries of income generated and are not dispossessed of it, in particular in order to generate income for others.62 Analogous measures, including tax incentives, should be adopted to promote productive employment and decent work for communities, groups and individuals in the practice and transmission of their heritage, while extending social security protection and benefits to them.63 States parties are encouraged to assess, both in general and in specific terms, the impact of tourism on the ICH and sustainable development, with particular attention on anticipating the potential impact before activities are initiated. They are called upon to adopt appropriate measures to ensure that communities, groups and individuals concerned are the primary beneficiaries of tourism associated with their own heritage, while promoting their lead role in managing such tourism, and to ensure that tourism does not diminish or threaten the viability, social functions and cultural meaning of the heritage.64 The Operational Directives directly address the advantages and disadvantages that commercial activities, in particular tourism, can have on ICH: Commercial activities that can emerge from certain forms of intangible cultural heritage and trade in cultural goods and services related to intangible cultural heritage can raise awareness about the importance of such heritage and generate income for its practitioners. They can contribute to improving the living standards of the communities that bear and practise the heritage,

60 61 62 63 64

ICH Committee, ‘Decision 13.COM 10.b.10’ ITH/13.COM/Decisions (20 December 2018) para 1. Operational Directives, para VI.176. ibid para VI.2.1.185. ibid para VI.2.2.186. ibid para VI.2.3.187.

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enhance the local economy, and contribute to social cohesion. These activities and trade should not, however, threaten the viability of the intangible cultural heritage, and all appropriate measures should be taken to ensure that the communities concerned are their primary beneficiaries. Particular attention should be given to the way such activities might affect the nature and viability of the intangible cultural heritage, in particular the intangible cultural heritage manifested in the domains of rituals, social practices or knowledge about nature and the universe. Particular attention should be paid to avoiding commercial misappropriation, to managing tourism in a sustainable way, to finding a proper balance between the interests of the commercial party, the public administration and the cultural practitioners, and to ensuring that the commercial use does not distort the meaning and purpose of the intangible cultural heritage for the community concerned.65 As the description of several elements inscribed on the List shows, there is a risk that the commercialization of ICH, especially that done to suit the tastes of tourists or consumers, results in the alteration of its true cultural meaning. For instance, in the case of the already mentioned “Gule Wamkulu”, Gule Wamkulu dates back to the great Chewa Empire of the seventeenth century. Despite the efforts of Christian missionaries to ban this practice, it managed to survive under British colonial rule by adopting some aspects of Christianity. As a consequence, Chewa men tend to be members of a Christian church as well as a Nyau society. However, Gule Wamkulu performances are gradually losing their original function and meaning by being reduced to entertainment for tourists and for political purpose.66 In the case of the “Mevlevi Sema Ceremony” (Turkey), which is based on the whirling dances performed by members of the Mevleviye ascetic Sufi order, founded in 1273 in Konya, dancers used to receive 1,001 days of reclusive training within the mevlevihouses (mevlevihane), where they learned about ethics, codes of behaviour and beliefs by practising prayer, religious music, poetry and dance. After this training, they remained members of the order but returned to their work and families. As a result of secularization policies, all mevlevihane were closed in 1925. The Turkish government began to allow performances again, though only in public, in the 1950s, restrictions were eased in the 1990s. Some private groups are re-establishing the original spiritual and intimate character of the Sema ceremony. However, over the thirty years the tradition was practised clandestinely, transmission focused

65 ibid paras IV.1.2.116 and IV.1.2.117. 66 UNESCO, ‘Gule Wamkulu’. Reference available on the UNESCO website.

Sustainable Development and Intangible Cultural Heritage 227 rather on music and songs than on spiritual and religious traditions, which has deprived performances of part of their religious significance. Consequently, many sema ceremonies are no longer performed in their traditional context but for tourist audiences, and have been shortened and simplified to meet commercial requirements.67 In 2015, the nomination of “Traditional production of the Kranjska klobasa” (Slovenia) was withdrawn by the nominating State after having received a recommendation from the Evaluating Body that it not be inscribed on the List. Although this spiced pork– and bacon–stuffed sausage had undeniable cultural roots and a continuous transmission in local communities, the Evaluating Body concluded that the nomination focused more on the product than on the skills related to its production or the social function of its consumption. Moreover, it had been frozen in a form deemed “authentic” by the certification and codification of its manufacturing process by what appeared to be an economically motivated interest group, thus depriving bearers and practitioners of any initiative in safeguarding the sausage. This was deemed contrary to the evolving nature of ICH, which is in constant recreation.68 In 2017, the “Art of Neapolitan ‘Pizzaiuolo’” (Italy) was inscribed on the List.69 However, the ICH Committee reminded the State concerned ‘of the importance of using vocabulary and concepts that are appropriate to the Convention and to therefore avoid expressions such as “authenticity”, “counterfeit”, geographic “origin”, as well as any reference to exclusive ownership over intangible cultural heritage’ and underlined that safeguarding measures aiming at ‘preserving the authenticity’ of an element of intangible cultural heritage are not in line with the spirit of the Convention and would contradict the evolving nature of living heritage, which is by definition constantly recreated by the communities concerned.70 In fact, the risks associated with commercial activities are manifold: standardization of the heritage in a unique version, decontextualization of the heritage when removed from its natural environment, conflicting claims of authenticity, misappropriation by persons outside the community of bearers.

67 UNESCO, ‘Silk Roads Programme: Mevlevi Sema Ceremony’. Reference available on the UNESCO website. 68 ICH Committee, ‘Examination of Nominations for Inscription on the Representative List of the Intangible Cultural Heritage of Humanity. Draft Decision 10.COM 10.b.28’ ITH/15/10.COM 10.b Add (25 November 2015) para 1. 69 UNESCO, ‘The Art of Neapolitan ‘Pizzaiuolo’’ (‘The art of the Neapolitan ‘Pizzaiuolo’ is a culinary practice comprising four different phases relating to the preparation of the dough and its baking in a wood-fired oven, involving a rotatory movement by the baker. The element originates in Naples, the capital of the Campania Region, where about 3,000 Pizzaiuoli now live and perform’). Reference available on the UNESCO website. 70 ICH Committee, ‘Decision 12 COM.11.B.17’ ITH/12.COM/Decisions (21 December 2017) para 1.

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These kinds of risks are additional to others that can also affect the ICH. For instance, risks to the heritage are likely to occur if the natural environment and the related practices on which the heritage is based change and become unsustainable. Many instances can be drawn from the List of Intangible Cultural Heritage in Need of Urgent Safeguarding. In the case of “Yaokwa, the Enawene Nawe people’s ritual for the maintenance of social and cosmic order” (Brazil), the Yaokwa ritual and the local biodiversity it celebrates represent an extremely delicate and fragile ecosystem whose continuity depends directly on its conservation. However, both are now seriously threatened by deforestation and invasive practices, including intensive mining and logging, extensive livestock activity, water pollution, degradation of headwaters, unregulated processes of urban settlement, construction of roads, waterways and dams, drainage and diversion of rivers, burning of forests and illegal fishing and trade in wildlife.71 The “Manufacture of cowbells” (Portugal) is endangered by new grazing methods,72 the “Traditional design and practices for building Chinese wooden arch bridges (China)” by the scarcity of timber,73 the “Whistled language” (Turkey) by mobile telephones,74 and the “Coaxing Ritual for Camels” (Mongolia) by motorcycles.75

71 UNESCO, ‘Multimedia Video and Sound Collection: Yaokwa, the Enawene Nawe People’s Ritual for the Maintenance of Social and Cosmic Order’. Reference available on the UNESCO website. 72 ICH Committee, ‘Decision 10.COM 10.A.6’ ITH/15/10.COM/Decisions (4 December 2015) para 1 (‘This practice is increasingly becoming unsustainable due to recent socioeconomic changes. New grazing methods have largely obviated the need for shepherds and cowbells are increasingly made using cheaper industrial techniques. At present, there are only 11 surviving workshops and 13 cowbell makers, 9 of whom are over 70 years old’). 73 UNESCO, ‘Multimedia Video and Sound Collection: Design and Practices for Building Chinese Wooden Arch Bridges’ (‘The tradition has declined however in recent years due to rapid urbanization, scarcity of timber and lack of available construction space, all of which combine to threaten its transmission and survival’). Reference available on the UNESCO website. 74 UNESCO, ‘Whistled Language’ (‘Whistled language is a method of communication that uses whistling to simulate and articulate words. The practice developed as a result of the steep mountains and rugged topography of the region, which required the local population to find an alternative way to communicate across long distances. The practitioners are mainly agricultural communities who spend most of their lives outdoors . . . Although the community is aware of the importance of this practice, technological developments and socioeconomic changes have led to a decline in the number of practitioners and areas where it is spoken. One of the key threats to the practice is the use of mobile phones’). Reference available on the UNESCO website. 75 UNESCO, ‘Coaxing Ritual for Camels’ (‘Mongol herders perform the coaxing ritual to encourage a female camel to accept a new-born calf or to adopt an orphan. The mother is tied close to the calf and a singer begins a monotone song accompanied by gestures and chanting. The coaxer changes the melody depending on the mother’s behaviour, which may be initially aggressive, and slowly coaxes her into accepting the calf . . . Changes in the social and cultural environment, however, have negatively affected its viability. Today, motorcycles are preferred to camels as a means of transportation,

Sustainable Development and Intangible Cultural Heritage 229 5

ICH and Intellectual Property Rights

Particularly delicate is the relationship between ICH and intellectual property rights. On the one hand, intellectual property rights can ensure benefits, both in moral and material terms, to the bearer communities. On the other, such rights can denaturalize the heritage and facilitate its misuse by interested entities that have little or nothing to do with the heritage. During the negotiations for the 2003 UNESCO Convention, it was agreed that the elaboration of the legal tools for a better protection of intellectual property rights on ICH fell within the mandate of the World Intellectual Property Organization (WIPO). The 2003 UNESCO Convention clearly provides that nothing in the same may be interpreted as affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights or to the use of biological and ecological resources to which they are parties.76 In 2000 WIPO established the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (hereinafter: the IGC). Although the IGC produced two sets of draft provisions for the protection of traditional knowledge or traditional cultural expressions, no legal instrument has so far been adopted and the IGC is continuing its work without real prospects of concluding it in the near future. The way in which the main intellectual property rights, in particular patents and copyrights, have been conceived and formulated in the national legislation of several States and in international instruments seems to be in conflict with many of the peculiarities of the ICH and with the needs of the communities which create and transmit such heritage, especially Indigenous communities.77 For instance, the requirement of novelty cannot apply to most of the manifestations of ICH that are based on the transmission of practices and knowledge from generation to generation. The granting of intellectual property rights to a specific person seems also to be inappropriate for cultural manifestations that are often expressed in a collective way and are considered by the practitioners themselves as belonging to a whole community. In order to be protected by copyright, intellectual creations must be expressed and communicated to the public in a fixed format, which is not always the case for elements of ICH. Patents on inventions are granted if they are new, involve an inventive step and are susceptible to industrial application, which again is not always the case for elements of this kind of heritage. The temporary limits

and increasing migration to urban centres has diminished the number of young herders’). Reference available on the UNESCO website. 76 2003 UNESCO Convention, Article 3(b). 77 Toshiyuki Kono (ed) Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (Intersentia 2009). See also Francis Kariuki, ‘Traditional Governance Institutions and the Holistic Protection of Traditional Knowledge’, in this volume.

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of the rights granted to the holder of a patent or a copyright do not fit with the permanent character of cultural heritage, which often has deep social or religious roots and is not intended to fall into the public domain after the expiration of a given time. The cost itself of obtaining a patent may discourage traditional holders of ICH from starting the relevant legal procedures. More generally, the Western notion of intellectual property has strong commercial connotations, implying the temporary right of the owner to exclude others from the economic utilization of the object, while the notion of heritage implies permanent custodianship and benefit sharing among the members of a community. Today the dangers to the preservation or integrity of ICH are the product not only of disuse or abandonment by members of the communities concerned, but also of abuse or misuse by third parties.78 Intellectual property laws are mostly based on Western conceptions about protecting rights of individuals and their financial interests, rather than on the understanding of the needs of the communities concerned. Intellectual property rules put emphasis on products, rather than on the practices and processes that create them. Wide-scale copying for commercial gain of Indigenous designs, motifs, symbols and artworks has often taken place without the knowledge or permission of Indigenous artists or communities. The integrity of their creations is a major concern for Indigenous artists. As a result of granting a patent to a third party, the communities concerned with the heritage may become deprived of both their past history and present identity and can even be prevented from producing the goods that they have been making for generations. For instance, the granting of patents to traditional medicines has caused great concern in many developing countries.79 Before the granting of any intellectual property rights, free, prior and informed consent (FPIC) should be acquired from the community concerned, according to procedures that are effective, culturally appropriate, transparent and flexible.80 However, there is no consensus on the establishment of an obligation of disclosure which would bind the applicant for a patent or other intellectual property right to state from where they have taken the natural or genetic components of the invention they are asking to patent. This would be a strong tool to prevent so-called bio-piracy through the patenting of pharmaceutical, cosmetic or other products and to ensure compliance with FPIC requirements.

78 For example, the name “Rumi” and the image of a whirling Dervish is used on a bottle of vodka produced in the Netherlands, evoking the Mevlevi Sema ceremony. See Mevlevi Sema Ceremony (nt. 67). See also Ubertazzi (nt. 43) 310. 79 The patent granted in the United States for the wound-healing properties of turmeric has ultimately been revoked for a lack of novelty, as this natural element has been used for centuries in traditional healing practices in India. Ubertazzi (nt. 43) 160. 80 In some cases, the determination of the persons who have the authority to grant access to traditional knowledge is far from being an easy task, due to the lack of a clear leadership structure. See Pedro Alberto De Miguel Asensio, ‘Transnational Contracts Concerning the Commercial Exploitation of Intangible Cultural Heritage’ in Tullio Scovazzi, Benedetta Ubertazzi and Lauso Zagato (eds) Il patrimonio culturale intangibile nelle sue diverse dimensioni (Giuffré 2012) 13 ff.

Sustainable Development and Intangible Cultural Heritage 231 So far, the practice developed within the framework of the 2003 UNESCO Convention has addressed the matter of intellectual property rights in a rather uncertain manner. On the one hand, Operational Directives 104 and 173 consider such rights as a way to appropriately protect the rights of communities, groups and individuals that create, bear and transmit ICH, while raising awareness about their heritage or engaging in commercial activities. On the other hand, the ICH Committee emphasizes the risks inherent in intellectual property rights. For example, in Decision 7.COM 6 of 2012, the ICH Committee, while welcoming initiatives to implement intellectual property protections for ICH, cautioned that certificates of origin put at risk the evolving character of intangible cultural heritage while other measures such as advice on packaging and design of products and market-driven mechanisms may not sufficiently ensure that the communities concerned are the primary beneficiaries.81 In Decision 12 COM 11 of 2017, the ICH Committee reminded States parties that inscriptions on the lists do not seek to establish a system of ownership such as through geographical indication, intellectual property, professional certifications or licenses, and that the inscription of an element on one of the Lists of the Convention does not imply exclusive ownership of a cultural expression.82 Accordingly, in 2018, the ICH Committee decided not to inscribe “Strawcraft in the Bahamas” (Bahamas) on the List, ‘because instead of explaining the cultural significance of the practice, the file stresses its economic dimension and its role as a product of a creative industry’ and ‘appears to promote the element as an economic activity that involves the production and marketing of crafts’. The ICH Committee underlined that ‘the Convention does not seek to establish a system of ownership such as through geographical indication and intellectual property’.83 Different remedies to the present uncertain situation, such as collective trademarks granted to representative entities or specific clauses in contracts,84 as well as the use by practitioners of carefully selected intellectual property rights tailored to ICH,85 have been envisaged. A number of countries have already independently adopted in their legislation some form of protection against the misappropriation of traditional knowledge and cultural expressions. However,

81 ICH Committee, ‘Decision 7.COM 6’ ITH&12/7.COM/6 (16 October 2012) para 9. 82 ICH Committee, ‘Decision 12.COM 11’ ITH/17/12.COM/Decisions (21 December 2017) para 9. 83 ICH Committee, ‘Decision 13.COM 10.B.4’ ITH/18/13.COM/Decisions (20 December 2018) para 5. 84 Anastasia Telesetsky, ‘Traditional Knowledge: Protecting Communal Rights through a Sui Generis System’, in James A.R. Nafziger and Tullio Scovazzi (eds) Le patrimoine culturel de l’humanité – The Cultural Heritage of Mankind (Brill 2008) 310 ff. 85 Ubertazzi (nt. 43).

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no uniform regime has so far been adopted at the international level to address the problem. It is understandable that the States negotiating a convention within the framework of UNESCO, which is not the best equipped organization to deal with intellectual property rights, were not willing to enter into such complex and sensitive questions. It is less understandable that no adequate solutions at the international level have so far been agreed in (apparently) more appropriate contexts, such as WIPO. 6 A Concluding Remark Due to the strong social character of this kind of heritage, the relationship between the protection of ICH and development is particularly delicate. The Operational Directives to the 2003 UNESCO Convention shed some light on the way in which these two needs can be balanced in a sustainable way. However, the question of adapting intellectual property rights to the particular case of ICH still awaits addressing and solving at the international level.

13 Participation of Indigenous Peoples in the Safeguarding of Intangible Cultural Heritage A Principle at the Crossroads of Human Rights and Sustainable Development Véronique Guèvremont* 1

Introduction

The concept of sustainable development is inseparable from the principle of public participation. Enunciated in the 1992 Rio Declaration on Environment and Development,1 and reiterated in numerous environmental legal instruments, this principle is also enshrined in several UNESCO legal instruments, including the Convention for the Safeguarding of the Intangible Cultural Heritage.2 In the field of culture, however, participation in decision-making is not only a principle of sustainable development; the application of this principle is also a condition for ensuring the respect and implementation of human rights, including cultural rights. This is the case for the right of Indigenous peoples to participate in cultural life, as stated by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No 21 on the Right of everyone to take part in cultural life.3 Outlining the core obligations contained in Article 15.1(a), of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Committee made it clear that for Indigenous peoples, the fulfilment of their right to participate in cultural life requires allowing and encouraging their participation in the design and implementation of laws and policies that affect them. The CESCR also considers that ‘States parties should obtain their free and informed

* Full professor, Université Laval (Canada) and UNESCO Chair on the Diversity of Cultural Expressions. The author would like to thank Maxime Mariage and Justine Lévesque for their assistance in the research and writing of this article. 1 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration). 2 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). 3 CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/21 (21 December 2009).

DOI: 10.4324/9781003357704-17

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prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk’,4 a right also recognized by the 2007 UN Declaration on the Rights of Indigenous Peoples.5 This relationship between the principle of participation and the right to participate in the cultural life of Indigenous peoples is recognized by UNESCO, for instance in its Policy for the Integration of a sustainable development perspective into the processes of the Convention for the Protection of the World Cultural and Natural Heritage,6 or in the UNESCO Policy on Engaging with Indigenous People.7 However, it is questionable whether the 2003 UNESCO Convention reflects the sustainable development principle of participation and satisfies the rights of Indigenous peoples to participate in decision-making that may affect their cultural life. Indeed, insofar as this treaty and the decisions adopted within its bodies may affect their cultural resources, procedural gaps in the respect of the principle of participation may result in a violation of their fundamental rights. This chapter addresses this issue, first by exploring Indigenous peoples’ participation in cultural heritage as a principle of sustainable development (section 2), then by reflecting on the participation of Indigenous peoples from the perspective of their fundamental rights (section 3). Section 4 focuses on the participation of Indigenous peoples in the safeguarding of intangible cultural heritage (ICH). It explores how the 2003 UNESCO Convention succeeds, or fails, in reconciling the inter-state nature of the legal framework it constitutes with the indispensable participation of Indigenous peoples in the safeguarding of the cultural heritage they bear. 2

Participation of Indigenous Peoples as a Principle of Sustainable Development

The discourse on sustainable development and the evolution of this concept within the international legal order have led to the recognition of a set of “sustainable development principles”. One of these principles is participation, which appears in several texts, including founding instruments of environmental law. Today, participation has become inseparable from the field of environmental law and, more generally, from almost any initiative aimed at achieving sustainable development (section 2.1). Several of these instruments and initiatives also specifically address the participation of Indigenous peoples (section 2.2).

4 ibid para 55(e). 5 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP). 6 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 7 WHC, ‘INF.13: Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention’ WHC-15/20.GA/INF.13 (6 November 2015) (hereinafter: Policy Document).

Indigenous Peoples and Intangible Cultural Heritage 235 2.1

The Recognition of Participation as a Principle of Sustainable Development

Public participation provisions ‘began to appear in the planning and environmental regulations of some States during the late 1960s and 1970s’, as publics agitated for more democratic governance and stronger environmental protection’.8 In 1972, the UN organizes the first world conference on the environment, which concludes with the adoption of the Stockholm Declaration and the Action Plan for the Human Environment, requesting governments to ‘provide equal possibilities for everybody, both by training and by ensuring access to relevant means and information, to influence their own environment by themselves’.9 Adopted ten years later, the 1982 World Charter for Nature provides, as a condition for the implementation of the principles of the Charter, for the possibility for each individual to participate in the elaboration of decisions affecting their environment.10 In 1987, the Brundtland Commission states that ‘equity would be aided by political systems that secure effective citizen participation in decision making and by greater democracy in international decision making’.11 It is from this moment that public participation in decision-making becomes an ‘integral part of the sustainable development discourse’.12 With time, the conditions for exercising participation have become more precise and have turned it into a genuine procedural right.13 Broad public participation in decision-making is considered in Agenda 21 as ‘[o]ne of the fundamental prerequisites for the achievement of sustainable development’.14 Echoing this idea, Principle 10 of the Rio Declaration reflects an international consensus on this matter.15 Several other texts adopted in the following years confirm this trend. Resulting from the work of a group of experts, the 2002 New Delhi Declaration of principles of international law relating to sustainable development recognized that the principle of ‘public participation and access to information and justice’

8 Benjamin J. Richardson and Jona Razzaque, ‘Public Participation in Environmental Decision-making’, in Benjamin J. Richardson and Stepan Wood (eds) Environmental Law for Sustainability (Hart Publishing 2006) 168. 9 UNGA, ‘Action Plan for the Human Environment: Educational, Informational, Social and Cultural Aspects of Environmental Issues’ UN Doc A/CONF.48/14/Rev.1 (1972) Recommendation 7. 10 UNGA, ‘World Charter for Nature’ UN Doc A/RES/37/7 (28 October 1982) para 23. 11 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) 8. 12 Emilian Gezci, ‘Sustainability and Public Participation: Toward an Inclusive Model of Democracy’ (2007) 29(3) AT&P 375. 13 See UN Framework Convention on Climate Change (Rio de Janeiro 4 June 1992) entered into force 21 March 1994 1771 UNTS 107, art 4.1(i); UN United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris 14 October 1994) entered into force on 26 December 1996 1954 UNTS 3, art 3(a). 14 UNGA, ‘Report on the United Nations Conference on Environment and Development: Annex II Agenda 21’ UN Doc A/CONF.151/26/Rev. 1 (3–14 June 1992) 9. 15 Jonas Ebbeson, ‘Public Participation’, in Jacqueline Peel and Lavanya Rajamani (eds) The Oxford Handbook of International Environmental Law (2nd ed, OUP 2021) 354.

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is instrumental in pursuing the objective of sustainable development in an effective way.16 On the political level, the World Summit on Sustainable Development (WSSD) ‘agreed that, “good governance within each country and at the international level is essential for sustainable development”, and popular participation is the foundation of good governance’.17 The outcome of the 2012 Rio Conference on Sustainable Development (Rio+20), The Future We Want, expanded the principle by encouraging actions at the regional, national, subnational and local levels of decision-making ‘to promote access to information, public participation and access to justice in environmental matters, as appropriate’.18 However, it is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters19 that constitutes today the instrument of reference with respect to public involvement in decision-making processes as it marks the first important step in transposing the objectives of Principle 10 into binding obligations.20 In essence, public participation ‘refers to the right of members of the public to get involved in decisions’.21 It is a process intended ‘to ensure that people are accorded a role in the activities and decision-making processes that directly impact on their lives and well-being’.22 One can assume that environmental protection is not the only subject that can be covered by the principle of participation. Indeed, the principle appears in several UNESCO legal instruments, including the 2003 UNESCO Convention. The evolution of the terminology used to refer to this principle over time marks an important change in the way of thinking about “participation”, as today simply consulting civil society, while necessary, is not sufficient; it also requires that ‘participants have significant control of the decision-making process and are thus able to influence it’.23 The right of public participation contains three pillars, namely access to information, participation in decision-making and access to justice.24 Access to information can be ‘considered to be a prerequisite for meaningful public

16 ILA, ‘New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ (6 April 2002) . Last access to all links mentioned in this Chapter: 19 January 2023. 17 WHC, ‘Evaluation of the Results of the Implementation of the Committee’s Strategic Objectives’ WHC-07/31.COM/13B (23 May 2007). 18 UNGA, ‘The Future We Want’ UN Doc A/RES/66/288 (11 September 2012) para 99. 19 (Aarhus, 25 June 1998) entered into force 30 October 2001 . 20 Magali Dreyfus, ‘Retour sur l’application du principe 10 de la Déclaration de Rio, 20 ans après le Sommet de la Terre de 1992’ (2012) 9 Droits Fondamentaux 1, 3. 21 Leslie-Anne Duvic-Paoli, ‘The Status of the Right to Public Participation in International Environmental Law: An Analysis of the Jurisprudence’ (2012) 23(1) YIEL 80, 80. 22 Arron Honniball and Otto Spijkers, ‘Developing Global Public Participation (1): Global Participation at the United Nations’ (2015) 17(3) ICLR 222, 227. 23 Anne N Glucker et al, ‘Public Participation in Environmental Impact Assessment: Why, Who and How?’ (2013) EIAR 104, 105. 24 Rio Declaration, Principle 10. See also Duvic-Paoli (nt. 21) 80.

Indigenous Peoples and Intangible Cultural Heritage 237 participation in environmental decision making’,25 while participation is understood as the establishment of a partnership between members of civil society and decision-making authorities with a view to achieving the best possible outcome.26 In all cases, it is fundamental that the public is not only heard, but listened to and considered. Another subset of principles that ensures public participation is the education, awareness and training component, which is developed in Agenda 21.27 Clauses on education and public awareness are also generally incorporated into UNESCO’s cultural instruments. Above all, it is clear from all the texts that the participation of ‘all the parties concerned’ must be ensured.28 The public concerned is ultimately determined in light of the objectives pursued by the policies developed, in accordance with the principle of subsidiarity (Principle 10 of the Rio Declaration). It is understood that decisions taken at the local level require greater involvement of the public, which is then more broadly defined. Conversely, in the case of decisions taken at the national level, public involvement may be less direct. In all cases, the legitimacy of the process will depend on the ability of the public authorities to ensure the representation of all the groups involved, and not just those ‘more socially and culturally able to speak out and impose particular interests’.29 Effective participation indeed means that marginalized groups and minorities must be involved in public participation processes.30 In some cases, it is the participation of Indigenous peoples that is explicitly requested. 2.2

The Recognition of the Principle of Participation of Indigenous Peoples

The principle of public participation is ‘a key tool for the improvement of Indigenous peoples’ status in international law’, and it has gained great importance in the environmental field.31 As mentioned earlier, Principle 10 of the Rio Declaration enshrines the principle of public participation as the ‘environmental democracy principle’.32 Principle 22 specifically refers to the participation of Indigenous communities as ‘a vital role in environmental management and development because of their knowledge and traditional practices’. It encourages States to ‘recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’. This position ‘is due to the 25 Duvic-Paoli (nt. 21) 80. 26 UNECE, ‘The Aarhus Convention: An Implementation Guide’ (2014) 119. 27 Agenda 21, para 36.3. 28 ibid para 2.6. 29 Marc Mormont et al, ‘La participation composante du développement durable: quatre études de cas’ (2006) 7 Vertigo 1. 30 Kathryn S. Quick and John Bryson, ‘Theories of Public Participation in Governance’, in Jacob Torbing and Chris Ansell (eds) Handbook on Theories of Governance (EE 2016) 5. 31 Alessandro Fodella, ‘International Law and the Diversity of Indigenous Peoples’ (2006) 30 VLR 565, 582. 32 Dreyfus (nt. 20) 1.

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fact that with their knowledge and traditional practices, indigenous peoples, their communities and other local communities have a vital role in the management of the environment and development’.33 Following the Earth Summit in Rio de Janeiro, Agenda 21 elaborated further on these principles, arguing that ‘only if ordinary members of the community, particularly those in disadvantaged groups, take part in decision making processes can the outcomes of those processes be regarded as good’.34 This action plan ‘calls “broad public participation” one of the “fundamental prerequisites” of a sustainable society, and it places particular emphasis on the need to open the decision-making process to groups traditionally absent from the political arena: Indigenous people, women, and the youth’.35 An entire chapter of this program is dedicated to ‘Recognising and strengthening the role of indigenous people and their communities’ and calls for active participation to incorporate their ‘values, views and knowledge’.36 The 1992 Convention on Biological Diversity establishes an important link between the protection of biodiversity and Indigenous communities.37 It ‘makes one of the most explicit references in Article 8(j) to the role of local and indigenous communities’ knowledge and practices for preserving biodiversity’.38 This article requires each contracting party to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustained use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge. This was reiterated at the WSSD and in its plan of implementation, which ‘follows the CBD in encouraging the use of indigenous knowledge and techniques in general, the management of natural resources in particular . . ., and the participation of indigenous peoples in decisions affecting the management of such knowledge’.39 These instruments support the idea of ‘partnerships for sustainable development’, which ‘may be useful in increasing Indigenous peoples’ participation in the 33 Sabrina Urbinati, ‘The Community Participation in International Law’, in Nicolad Adell, Regina F. Bendix, Chiara Bortolotto and Markus Tauschek (eds) Between Imagined Communities of Practice: Participation, Territory and the Making of Heritage (Göttingen University Press 2015) 137. 34 Michael Jacobs and Phil Macnaghten, ‘Public Identification with Sustainable Development: Investigating Cultural Barriers to Participation’ (1997) 7 GEC 5, 6. 35 Gezci (nt. 12) 379. 36 Agenda 21, Chapter 26. 37 (Rio de Janeiro 5 June 1992) entered in to force 29 December 1993 1760 UNTS 79 (hereinafter: CBD). 38 Janet Blake, ‘UNESCO’s 2003 Convention on Intangible Cultural Heritage: The Implications of Community Involvement in ‘Safeguarding’’, in Natsuko Akagawa and Laurajane Smith (eds) Intangible Heritage (Routledge 2008) 55. 39 Fodella (nt. 31) 582.

Indigenous Peoples and Intangible Cultural Heritage 239 environmental protection and sustainable development of their natural resources at the global level’.40 The 2030 Agenda for Sustainable Development41 refers to Indigenous peoples 6 times, three times in the political declaration, two in the targets under Goal 2 on Zero Hunger (target 2.3) and Goal 4 on education (target 4.5), and one in the section on follow up and review that calls for Indigenous peoples’ participation.42 The United Nations Permanent Forum on Indigenous Issues made several suggestions in that regard, recommending in particular that Member States ‘facilitate Indigenous peoples’ participation in national-level processes to plan, implement and monitor national frameworks for the 2030 Agenda, including their capacity building’, and that partnerships ‘be built between Indigenous peoples and relevant stakeholders for the implementation of the 2030 Agenda at the national level’.43 This Forum, created in 2000, represents a major advance for Indigenous peoples’ participation in decision-making. Established ‘because the United Nations felt that the participation of Indigenous peoples in the [organization] was limited’,44 the Forum has the mandate to deal with Indigenous issues related to economic and social development, culture, the environment, education, health and human rights. In its 21st session this year, dedicated to the theme ‘Indigenous peoples, business, autonomy and the human rights principles of due diligence including free, prior and informed consent’, the Permanent Forum focused on the issue of the need for the Free, Prior and Informed Consent (FPIC) of Indigenous peoples with regard to business activities that impact them. In the outcome document, it is stated that ‘[FPIC] should be understood as their right to give or withhold consent’, which indicates that Indigenous peoples have indeed a right to participate in decisions that affect them.45 And while the Forum does not make an explicit link between the right to participate and culture, the fact that Indigenous peoples’ territories and resources ‘are seized and livelihoods destroyed to the detriment of their knowledge, cultures and languages’46 established a link between their participation in decisions that affect them and their cultural heritage. As will be argued in the next section,

40 ibid 583. 41 UNGA, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda). 42 OHCHR, ‘Indigenous Peoples and the 2030 Agenda’ < www.ohchr.org/en/indigenous-peoples/ indigenous-peoples-and-2030-agenda#:~:text=As%20a%20result%20of%20indigenous, section%20on%20follow%20up%20and>. 43 UN Permanent Forum for Indigenous Peoples, ‘Indigenous Peoples and the 2030 Agenda’ . 44 Garth Harmsworth and Nigel Jollands, ‘Participation of Indigenous Groups in Sustainable Development Monitoring: Rationale and Examples from New Zealand’ (2007) 62 Ecological Economics 716, 718. 45 Permanent Forum on Indigenous Issues. ‘Report on the Twenty-First session (25 April–6 May 2022)’ UN Doc E/2022/43-E/C.19/2022/11 (2022) para 8. 46 ibid para 5.

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the principle of participation in decision-making does apply to decisions that may affect the cultural right of Indigenous peoples. 3

Participation of Indigenous Peoples as a Fundamental Right

Participation in decision-making is more than a sustainable development principle: it is also a fundamental right explicitly recognized to Indigenous peoples (a). It specifically applies to their participation in decision-making that may affect their right to take part in cultural life (b). 3.1

The Right of Indigenous Peoples to Participate in Decision-Making

The right to take part in government has first been recognized in the Universal Declaration on Human Rights, which also states that ‘[t]he will of the people shall be the basis of the authority of government’.47 Article 25 of the International Covenant on Civil and Political Rights reinforces this right, recognizing that ‘[e]very citizen shall have the right and the opportunity . . . (a) To take part in the conduct of public affairs, directly or through freely chosen representatives’.48 According to the Human Rights Committee (HRC), this provision calls for a broad understanding of political participation, which considers that ‘[t]he conduct of public affairs . . . relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers’.49 The HRC also underlines that all aspects of public administration are covered, including ‘the formulation and implementation of policy at international, national, regional and local levels’.50 Decisions adopted and policies developed within UNESCO should therefore be covered by the right to take part in public life (see section 4 later).

47 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) (hereinafter: UDHR) Article 21 (‘1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures’). 48 International Covenant on Civil and Political Rights (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171 (hereinafter: ICCPR) Article 25. This contains two more paragraphs: ‘b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country’. A similar wording is used in Article 23 of the American Convention on Human Rights (San José 22 November 1969) entered into force 18 July 1978 1144 UNTS 123 (hereinafter: ACHR). 49 CCPR, ‘General Comment No 25: Article 25 (Participation in Public Affairs and the Right to Vote)’ UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996) para 5. See also Kristin Henrard, ‘Participation, Representation and Autonomy’ (2005) 12 IJMGR 133, 139. 50 CCPR (nt. 49) 5.

Indigenous Peoples and Intangible Cultural Heritage 241 Article 25 of the ICCPR is also considered as a legal basis for the recognition of minority participation rights, even if these groups are not explicitly identified in the wording of this provision. Indeed, it has been argued that where a minority is unrepresented or under-represented in national political processes, either because of their small numbers or because of systematic exclusion, special processes and structures for political participation must be developed to respond to the spirit or article 25(a).51 Given this interpretation by the HRC, international political processes may also be relevant for the recognition of minority participation rights. The rights recognized in Article 25 benefit Indigenous peoples. This is also the case with Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which deals with political rights, including the right to participate ‘in the conduct of public affairs at any level’.52 In the interpretation of this provision, the UN Committee for the Elimination of Racial Discrimination (CERD) stressed that States’ obligations ‘include respect for Indigenous peoples’ right to effective participation through their own representatives in state bodies and structures . . . and has affirmed that decisions directly relating to indigenous peoples’ rights shall be taken only with “their informed consent”’.53 The CERD establishes a clear link between the right of political participation and the right to consultation, calling on States to ‘ensure that members of Indigenous communities have equal rights in respect with effective participation in public life and that no decision directly related to their rights and interests should be taken without their informed consent’.54 For Indigenous peoples, this implies ‘the right to participate and being heard in decisions that affect [them]’.55 Article 5 of the UNDRIP adds a discretionary element for the benefit of Indigenous peoples. It recognizes their right ‘to participate fully, if they choose, in the political, economic, social and cultural life of the State’. Article 18 further states that ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions’, while Article 19 deals with the

51 Yash Ghai, Public Participation and Minorities (Minority Rights Group International 2001) 7. 52 (New York 7 March 1966) entered into force 4 January 1969 660 UNTS 195 (hereinafter: CERD) Article 5(c). 53 CERD ‘Guatemala’ UN Doc CERD/C/GTM/CO/11 (22 January 2007) para 16; CERD ‘Australia’ UN Doc CERD/C/304/Add.101 (19 April 2000) para 9. 54 CERD ‘General Recommendation No 23’ in ‘General Assembly Official Records Fifty-second Session Supplement No 18’ UN Doc A/52/18 (26 September 1997) para 4(d). See also Oswaldo Ruiz Chiriboga, ’The Right to Cultural Identity of Indigenous Peoples and National Minorities: Look from the Inter-American System’ (2006) 5 Sur 43, 58. 55 Marco Odello, ‘Indigenous Peoples’ Rights and Cultural Identity in the Inter-American Context’ (2012) 16 IJHR 25, 39

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obligation of States to ‘consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’. It has been argued that the right of Indigenous peoples ‘to participate in every type of decision that affects them (or could affect them) signifies a means of cultural survival to Indigenous peoples, and requires measures by the State necessary to guarantee that such participation is significant and effective’.56 This obviously raises many questions, especially when decisions are made in international organizations such as UNESCO, which also calls for respect for the right of Indigenous peoples to be consulted when such decisions may have an impact on their lives.57 The right to consultation therefore deserves to be clarified. Commenting on Indigenous peoples’ right to consultation enshrined in ILO Convention No 169,58 some authors have considered that ‘consultations’ ‘requires on the one hand that they be clearly, fully and accurately informed and on the other that they be given real and fair opportunities to be heard and to influence the decisions that will affect their lives’.59 Such requirements call for a ‘genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus’.60 Finally, another crucial element is to determine who represents Indigenous peoples. On this point, the ILO’s ad hoc tripartite committees have noted that the consultations need to be carried out with institutions ‘that are truly representative of the communities affected’.61 If this condition is not met, the consultation will

56 Chiriboga (nt. 54) 56. 57 Case of the Kichwa Indigenous People of Sarayaku v Ecuador (Judgment) IACtHR Series C No 245 (27 June 2012) para 160, where the Inter-American Court of Human Rights stated that ‘one of the fundamental guarantees to ensure the participation of indigenous peoples and communities in decisions regarding measures that affect their rights and, in particular, their right to communal property, is precisely the recognition of their right to consultation, which is established in ILO Convention No 169, and other complementary international instruments’. 58 Convention (No 169) Concerning Indigenous Peoples in Independent Countries (27 June 1989) entered into force 5 September 1991 1650 UNTS 383 (hereinafter: ILO Convention 169). 59 Athanasios Yupsanis ‘Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority/Indigenous Participatory Claims in the Case Law of the Human Rights Committee’ (2013) 26 HYIL 359, 392. 60 ILO, ‘Report of the Committee set up to Examine the Representation Alleging Non-Observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No169), made under article 24 of the ILA Constitution by the Central Unitary Workers’ Union (CUT)’ para 90. See also Yupsanis (nt. 59) 392. 61 ILO, ‘Report of the Committee set up to Examine the Representation Alleging Non-Observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No169), made under article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales libres’ para 44. See also Yupsanis (nt. 59) 392–393.

Indigenous Peoples and Intangible Cultural Heritage 243 not comply with the requirement of ILO Convention 169.62 Other requirements related to the right to consultation include ‘the duty to consult the community in an active and informed manner, and in accordance with its customs and traditions, in the context of a continuous communication between the parties’ and to undertake this consultation ‘in good faith, through culturally appropriate procedures’ and ‘in accordance with its traditions . . . during the early stages’ of the project.63 Consultation should also ‘take into account the traditional decision-making practices of the people or community’.64 Failure to comply with these conditions may compromises the international responsibility of the State.65 This shows ‘that mere consultation does not constitute a sufficient mechanism for ensuring effective participation’;66 it requires the FPIC of community members, in accordance with Article 19 of the UNDRIP.67 This should apply to decisions on all matters that concerns them,68 including decisions that affect their cultural life. 3.2

The Right of Indigenous Peoples to Participate in Decisions Affecting Their Cultural Life

It has previously been recognized that the right to participate in decision-making is closely linked to the right to self-determination. This right is recognized in Article 1 of the ICESCR, according to which ‘[a]ll peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development’. Commenting on the relationship between the right to participation and the right to self-determination, some authors argue that ‘the reference to the pursuit of economic, social and cultural development indicates that participation rights are not restricted to politics or administration’.69 Participation extends to decisions that impact cultural development, including those affecting the right to take part in cultural life. Several legal instruments recognize the right to participate in cultural life. As early as 1948, the UDHR states in its Article 27 that ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. States parties to the ICESCR also ‘recognize the right of everyone . . . to take part in cultural life’ (Article 15.1(a)). In its General Comment No 21, the CESCR clarifies the meaning and scope of this right, 62 63 64 65 66

ILO, ‘Report of the Committee on Ecuador’ (nt. 61). Kichwa Case (nt. 57) para 177. See also Yupsanis (nt. 59) 393. Kichwa Case (nt. 57) para 177. ibid. FCNM Advisory Committee, ‘Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs’ ACFC/31DOC(2008)001 (5 May 2008) 7. 67 For a more in-depth analysis of the meaning of free, prior and informed consent, see ECOSOC, ‘Report of the International Workshop on Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples’ UN Doc E/C.19/2005/3 (17 February 2005) paras 46–49. 68 Chiriboga (nt. 54) 58. 69 Ghai (nt. 51) 4.

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stating that there are ‘three interrelated main components of the right to participate or take part in cultural life: (a) participation in, (b) access to, and (c) contribution to cultural life’.70 The CESCR points out that participation and access are rights that belong to everyone, and can be exercised ‘alone, or in association with others or as a community’.71 The CESCR also clarified the interpretation of Article 15 with respect to minorities and Indigenous peoples, arguing first that for Indigenous people, cultural life ‘may be strongly communal or . . . only be expressed and enjoyed as a community’.72 Second, it specifies that the recognition of the right to take part in cultural life entails a number of obligations, including the obligation ‘[t]o allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them’.73 A similar interpretation was made of Article 27 of the ICCPR. According to this provision, [i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.74 Commenting on this article, the HRC stated that ‘the right to enjoy one’s own culture includes a right to effective participation from members of a minority population’.75 This interpretation introduces in the scope of Article 27 a participatory element, ‘recognising to members of minorities and indigenous peoples an

70 CESCR (nt. 3) para 15. 71 ibid. Cf. CESCR ‘General Comment No 17: ‘The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant)’ E/C.12/GC/17 (12 January 2006) para 8. Here, the CESCR uses slightly different words ‘[a]lthough the wording of article 15, paragraph 1 (c), generally refers to the individual creator (“everyone”, “he”, “author”), the right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary or artistic productions can, under certain circumstances, also be enjoyed by groups of individuals or by communities’. 72 CESCR (nt. 3) para 36. The CESCR adds that ‘[t]he strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’, ibid. 73 ibid para 55. 74 It should be noted that divergent views persist in the literature on the issue of the recognition of cultural rights to groups. See on this point: Ghai (nt. 51) 6; Yupsanis (nt. 59) 376. See also Dominic O’Sullivan and Alexandra Xanthaki, ‘Indigenous Participation in Elective Bodies: The Maori in New Zealand’ (2009) 16 IJMGR 181, 185; Kristin Hausler, ‘Collective Cultural Rights in the InterAmerican Human Rights System’ in Andrzej Jakubowski (ed) Cultural Rights as Collective Rights: An International Law Perspective (Brill Nijhoff 2016) 227. 75 Duvic-Paoli (nt. 21) 98. See also CCPR, ‘General Comment No 23: The Right of Minorities (Article 27)’ UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) para 7.

Indigenous Peoples and Intangible Cultural Heritage 245 ‘opportunity’ to effectively participate in decisions affecting/relating to the enjoyment of their cultural rights, that even extends to a State duty to obtain their free, prior and informed consent when their culture is seriously at risk’.76 Several provisions of UNDRIP also deal directly or indirectly with the right to participate in cultural life and to make decisions as they deem appropriate. Article 3 on the right to self-determination states at the outset that Indigenous peoples ‘freely pursue their economic, social and cultural development’, and Article 5 recognizes their right to maintain their own cultural institutions, ‘while retaining their right to participate fully . . . in the . . . cultural life of the State’. The right to practice and revitalize their culture is set out in Article 11, while the right to access their cultural sites is recognized in Article 12.1. Finally, Article 31 recognizes the right of Indigenous peoples ‘to maintain, control, protect and develop’ their cultural heritage and tradition, while enacting in the second paragraph of the same article that ‘States shall take effective measures to recognize and protect the exercise of these rights’. Thus, whether it is the right to take part in the cultural life of any individual or of minorities or Indigenous peoples, the State has the obligation to take measures to recognize and protect these cultural rights, as these measures are necessary to protect the identity of these groups.77 The State must not only refrain from actions that might threaten the culture of these groups; it must also ‘intervene proactively, by implementing legislation or programmes’.78 In addition, the CCPR specifies that the positive protection measures deployed by States must ‘ensure the effective participation of members of minority communities in decisions which affect them’.79 While remaining vague, ‘the HRC . . . has regularly confirmed that indigenous peoples are entitled to special protection of their right to public participation’,80 which must extend to all decisions concerning their cultural heritage. The last part of this chapter focuses more specifically on the participation of Indigenous peoples in decisions concerning the safeguarding of their intangible cultural heritage. 4

Participation of Indigenous Peoples in the Safeguarding of Intangible Cultural Heritage: Trying to Reconcile the Irreconcilable?

The 2003 UNESCO Convention recognizes the role of communities, groups and individuals who create, maintain and transmit the ICH. The very definition of its scope is based on these communities, groups and individuals since the ICH to be safeguarded 76 Yupsanis (nt. 59) 360. Further on, the author states: ‘the Committee introduced into the normative field of the provision, without however clarifying its thesis in detail, a participatory element, i.e. a State duty to take measures to ensure the effective participation of minority members in decisions that may affect them, which certainly cannot be deduced prima facie from the literal reading of the norm’. ibid 371–372. On the effective participation of members of minority communities in decisions which affect them, see also Ghai (nt. 51) 6–7. 77 Yupsanis (nt. 59) 368. 78 Ghai (nt. 51) 6. 79 Duvic-Paoli (nt. 21) 98. See also CCPR (nt. 75) para 7. 80 Duvic-Paoli (nt. 21) 98.

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is that which ‘provides them with a sense of identity and continuity’.81 However, insofar as it is the States – as Parties to this treaty – that determine all the modalities of involvement of these non-State actors, one may wonder whether it is really possible to reconcile the implementation of this legal instrument with the participation of those who bear and embody the living heritage intended to be safeguarded. Yet, as difficult as it may be, the principle of participation associated with sustainable development and, above all, the right to participate in decision-making that affects cultural life requires the active involvement of the communities, groups and individuals concerned. With this in mind, this final part of the chapter takes a critical look at the participation of Indigenous peoples in the negotiation (a) and implementation of the 2003 UNESCO Convention at the national and international levels (b). 4.1

The Participation of Indigenous Peoples in the Negotiation of the 2003 UNESCO Convention

Although several provisions of the 2003 UNESCO Convention address the participation of communities, groups and individuals, the treaty suffers from a hidden flaw that cannot be ignored: Indigenous peoples were not involved in the negotiation of this treaty.82 Without asserting that there is a direct causal link with the content of the text, it must be noted that, apart from a mention in the Preamble,83 the Convention never makes explicit reference to Indigenous peoples or their ICH. Yet we know that at the time the Convention was negotiated, the UNDRIP was also being negotiated – for more than two decades84 – and that rights would soon be 81 2003 UNESCO Convention, Article 2.1. 82 Marrie Henrietta, ‘The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the Protection and Maintenance of the Intangible Cultural Heritage of Indigenous Peoples’ in Natsuko Akagawa and Laurajane Smith (eds) Intangible Heritage (Routledge 2008) 174 (‘indigenous peoples were not included in the negotiation processes, either by having direct representation (for example, through the Working Group on Indigenous Populations or the UN Permanent Forum on Indigenous Issues), or by having indigenous representation in the national delegations sent to negotiate the Convention’). 83 2003 UNESCO Convention, Preamble, recital 7 (‘Recognizing that communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and recreation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity’. The 2003 UNESCO Convention does not contain a definition of the ‘communities and groups’ referred to. 84 In 1982, a Working Group on Indigenous Populations (WGIP) was established within the UN and became one of the six working groups overseen by the Sub-Commission on the Promotion and Protection of Human Rights, which at the time was the main subsidiary body of the UN Commission on Human Rights. At its first meeting, the WGIP proposed to begin work on a declaration and suggested the model of open negotiations for Indigenous delegates. The WGIP finalized a draft of a declaration in 1993. In 1995, the Sub-Commission on the Promotion and Protection of Human Rights established the Working Group on the Draft Declaration on the Rights of Indigenous Peoples (WGDD), which met for more than ten years to prepare a draft declaration. See Andrés Del Castillo, ‘Indigenous Peoples’ Contributions to Multilateral Negotiations on their Rights to Participation, Consultation, and Free, Prior and Informed Consent’ in Claire Wright and Alexandra Tomaselli (eds) The Prior Consultation of Indigenous Peoples in Latin America (Routledge 2019) 8 ff.

Indigenous Peoples and Intangible Cultural Heritage 247 specifically recognized to Indigenous peoples through a new international instrument. Although the UNDRIP had not yet been adopted in 2001 when the negotiation of the 2003 UNESCO Convention started, it would have been appropriate to reflect ongoing developments in the international legal order, especially since other treaties already made explicit reference to Indigenous communities and committed the parties to respect and protect their culture.85 The strong resistance of some influential ‘Member States with important indigenous populations and their desire to avoid pre-empting the decision taken four years later in the UNGA to adopt a Declaration on Indigenous Peoples’ Rights’ was undoubtedly a determining factor in the final outcome, namely a convention on ICH with no mention of Indigenous peoples in its body text.86 Referring to the history of the 2003 UNESCO Convention, some authors have asserted that this UNESCO treaty ‘confirms that the non-existence of indigenous peoples as subjects of international law is one of the major obstacles to any adequate protection of ICH at the international level’.87 We do not think, however, that the non-participation of Indigenous peoples in the negotiation of the 2003 UNESCO Convention is related to this specific issue. Other authors have reported that, regardless of the recognition and evolution of the status of Indigenous peoples in international law, these groups have long been involved in negotiations with sovereign States on a wide range of issues.88 Nonetheless, with regard to the negotiation of the 2003 UNESCO Convention, it has been reported that only two governmental and non-governmental meetings over ten ‘appear to have benefited from anything that might remotely be called the “active participation” of “representatives of communities and practitioners”’.89 In view of the above, the only conclusion that can be reached is that participation of Indigenous peoples, both as a principle of sustainable development and as a fundamental right, was not adequately realized in the negotiations of the 2003 UNESCO Convention. This does not necessary mean that the rights and interests of Indigenous communities have been totally ignored; some authors consider that

85 A well-known example is the CBD, whose Article 8(j) requests the Parties to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying tradition lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’. 86 Janet Blake, ‘The Preamble’, in Janet Blake and Lucas Lixinski (eds) The 2003 UNESCO Intangible Heritage Convention: A Commentary (OUP 2020) 30. 87 Christopher Beat Graber, ‘Stimulating Trade and Development of Indigenous Cultural Heritage by means of International Law: Issues of Legitimacy and Method’ (2012) International Communications and Art Law Lucerne Working Paper 2012/01 29. 88 Del Castillo (nt. 84) 306. 89 Rosemary J. Coombe and Joseph F. Turcotte, ‘Indigenous Cultural Heritage in Development and Trade: Perspectives from the Dynamics of Intangible Cultural Heritage Law and Policy’, in Christoph Beat Graber, Karolina Kuprecht and Jessica C. Lai (eds) International Trade in Indigenous Cultural Heritage: Legal and Policy Issues (EE 2012) 293.

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‘[t]he [2003 UNESCO Convention] is the product of negotiations marked by considerable political tension both between State Parties and between States and those advocating for more local interests’.90 Groups have thus had the opportunity to take part in the negotiation and defend the interests of the communities that bear ICH. However, in the specific case of Indigenous peoples, their fundamental rights have not been respected. As mentioned earlier, the right to participate in cultural life extends to the right to participate in decision-making that may affect this participation. Five conditions must be met for the right to participate in cultural life to be fully respected; one of these five conditions is acceptability, which entails that the laws, policies, strategies, programmes and measures adopted by the State party for the enjoyment of cultural rights should be formulated and implemented in such a way as to be acceptable to the individuals and communities involved. In this regard, consultations should be held with the individuals and communities concerned in order to ensure that the measures to protect cultural diversity are acceptable to them.91 In addition, ‘States parties should respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights’.92 Referring to the ACHR, some authors have also argued that the right to cultural identity – of which ‘cultural heritage is an integral part’93 – ‘as seen through article 23 (political rights) of [this treaty], is rooted in the recognition of their right to take part freely at every level of decision-making within public institutions, regarding policies and programs that concern them’,94 which includes decision-making at the international level. Not only human rights, but also the principles of sustainable development, require such participation. The foregoing comments on the negotiation do not, however, prejudge the outcome of the negotiation, which is the current text of the 2003 UNESCO Convention. The next section discusses the provisions of this treaty that provide for the participation of communities, groups and individuals, and that may benefit Indigenous peoples. 4.2

The Participation of Indigenous Peoples in the Implementation of the 2003 UNESCO Convention

The 2003 UNESCO Convention contains multiple references to the participation of communities, groups and individuals, without specifically referring to Indigenous

90 ibid 290. 91 CESCR (nt. 3) para 16(c). 92 ibid para 37. In a report on the rights of minorities, the HRC took the same position, stating that the right to exercise cultural rights ‘require[s] positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’. See CCPR (nt. 75) para 7. 93 Chiriboga (nt. 54) 45. 94 ibid 58.

Indigenous Peoples and Intangible Cultural Heritage 249 peoples.95 It is undeniable, however, that they are among the groups targeted when the definition of ICH states that this heritage is that which ‘communities, groups and, in some cases, individuals recognize as part of their cultural heritage’.96 The same applies to commitments of the parties that require the participation of communities, groups and individuals, for instance when they ‘identify and define the various elements of the intangible cultural heritage’97 or when they act in the framework of safeguarding activities.98 In this case, the parties ‘shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management’.99 The principle of participation is, in fact, ‘[o]ne of the most significant and “characterizing” principles of the [2003 UNESCO Convention]’100 and the advances in the matter compared to the original text of the 1972 WHC are undeniable.101 However, difficulties arose early on in the implementation of the Convention, starting in 2006, and in the negotiation of the operational guidelines, in particular with regard to the principle of participation.102 Several challenges related to participation were also highlighted in the Evaluation of UNESCO’s Standard-Setting Work of the Culture Sector published in 2013.103 While stressing that the 2003 UNESCO 95 For a more general analysis of the principle of participation in UNESCO’s heritage conventions, ILA, ‘Lisbon Conference: Participation in Cultural Heritage Governance at the Global Level, Final Report’ (2022) . 96 2003 UNESCO Convention, Article 2.1. 97 ibid Article 11(b), pursuant to which states are required to define safeguarding measures ‘with the participation of communities, groups and relevant non-governmental organizations’. 98 2003 UNESCO Convention, Article 15. 99 ibid. 100 Noriko Aikawa-Faure, ‘From the Proclamation of Masterpieces to the Convention for the Safeguarding of Intangible Cultural Heritage’, in Natsuko Akagawa and Laurajane Smith (eds) Intangible Heritage (Routledge 2008) 36. 101 Of course, the implementation of the 1972 WHC has evolved over the decades under the impetus of multiple revisions of its guidelines and several decisions of the WHC, in particular since 2007, which illustrates a growing evolution in the Committee’s approach to the participation of Indigenous peoples in decision-making. WHC (nt. 17). See also WHC, ‘Global State of Conservation Challenges of World Heritage Properties’ WHC-11/35.COM/20/12E (7 July 2011) paras 15(e) and 15(f); WHC, ‘Revision of the Operational Guidelines’ WHC/19/43.COM/18/11A (23 July 2019) paras 12, 64 and 119. In this last decision, the Committee adopted a proposed revision of the Operational Guidelines in which was added an explicit mention of Indigenous peoples as stakeholders whose participation ‘in the identification, nomination, management and protection processes of World Heritage properties’ must be ensured. Another explicit reference to Indigenous peoples was added in regarding participation in the preparation of tentative lists. The Policy Document also had a significant impact. See Policy Document, paras 21, 22(i-ii), 75, 77 and 98. 102 Aikawa-Faure (nt. 100) 36 (recalling that ‘[t]he issue of the mechanism of the participation of communities or their representatives, practitioners, and indigenous peoples has been one of the most difficult themes throughout the . . . negotiation of the drafting of the operational directives in the Intergovernmental Committee’). 103 UNESCO International Oversight Service (IOS), ‘Evaluation of UNESCO’s Standard‐Setting Work of the Culture Sector, Part I: 2003 Convention for the Safeguarding of the Intangible Cultural Heritage’ IOS/EVS/PI/129 REV (October 2013) (hereinafter: The 2013 Evaluation Report).

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Convention ‘introduced a number of important concepts related to ICH, such as the understanding that the community is the real bearer of ICH and that this heritage is defined in terms of the community’,104 the evaluation also underlined that ‘[c]ommunity participation needs to be enhanced in many areas related to the implementation of the Convention, including in inventorying, in the elaboration of safeguarding programmes and projects, and in the preparation of nomination files’.105 The evaluation emphasized the dangers of inadequate participation of communities, which might result in the inability of communities to have ownership of the safeguarding process, the misinterpretation and misrepresentation of the ICH and its associated meaning by other stakeholders, fossilisation of the element, over‐commercialisation, lack of transmission and the consequent loss of its viability.106 In other words, the failure to ensure adequate and effective participation of communities, groups and individuals, including Indigenous peoples, is not only a denial of the principle of participation in order to implement the 2003 UNESCO Convention in a way that ensures the sustainable development of these groups, but above all a violation of their fundamental rights. Another relevant finding of the evaluation was related to the lists of ICH. It should be recalled that the Operational Directives of the 2003 UNESCO Convention provide some clarification on the participation of communities, groups and individuals at various stages of the implementation of the Convention.107 Concerning the inscription of elements of ICH on the three lists provided by the Convention, the Operational Directives require, for each of them, a demonstration that the element ‘has been nominated following the widest possible participation of the community, group or, if applicable, individuals concerned and with their free, prior and informed consent’.108 The 2013 Evaluation Report underlined that, in some countries, the inscription process ‘remains very much top‐down and is Government‐led’,109 while relaying the concerns of several NGOs ‘over the fact that there is no way for the IGC to check if communities have really been consulted’.110 It should also be noted that the 2013 Evaluation Report does not specifically address the participation of Indigenous peoples, which is probably due to the fact that their particular situation is not considered in the text of the Convention itself.

104 105 106 107

ibid iv. ibid v and paras 178, 181–182. ibid para 184. UNESCO, ‘Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage’ (hereinafter: Operational Directives). 108 ibid para 2, criteria R.4, para 1, criteria U.4, and para 3, criteria P. 5. 109 2013 Evaluation Report, para 216. 110 ibid.

Indigenous Peoples and Intangible Cultural Heritage 251 The effect of this lack of attention is also felt in the Operational Directives, which do not address the specific case of Indigenous peoples, with the rare exception of the rather vaguely worded directives found in Chapter VI on sustainable development.111 Perhaps a slightly more significant reference is found in the 2003 UNESCO Convention’s monitoring framework, more specifically in the table listing eight thematic areas and 26 indicators that parties must take into account when preparing their periodic reports.112 With regard to the thematic areas on the ‘Role of intangible cultural heritage and its safeguarding in society’, parties must provide information on the ‘[e]xtent to which the importance of safeguarding ICH is recognized through inclusive plans and programmes that foster self-respect and mutual respect’ (indicator 16) towards ‘all sectors and strata of society, including but not limited to . . . indigenous peoples’ (Assessment factor 16.1). A reference to Indigenous peoples thus appears in one of the 86 assessment factors presented in the 2003 UNESCO Convention’s monitoring framework. Two non-binding texts could nevertheless have a positive impact on the participation of Indigenous peoples in the parties’ activities to implement the 2003 UNESCO Convention. First, the Ethical Principles for Safeguarding Intangible Cultural Heritage adopted in 2015, which ‘have been elaborated in the spirit of the 2003 UNESCO Convention . . . and existing international normative instruments protecting human rights and the rights of indigenous peoples’.113 Several of these principles are implicitly based on the rights of Indigenous peoples, for example, where it is stated that ‘[a]ll interactions with the communities, groups and, where applicable, individuals who create, safeguard, maintain and transmit intangible cultural heritage should be characterized by transparent collaboration, dialogue,

111 Operational Directives, para 174 (‘States Parties shall endeavour to ensure that their safeguarding plans and programmes are fully inclusive of all sectors and strata of society, including indigenous peoples . . . in conformity with Article 11 of the Convention’). See also ibid para 194 on social cohesion (‘States Parties should endeavour to recognize and promote the contribution of the safeguarding of intangible cultural heritage to social cohesion, overcoming all forms of discrimination and strengthening the social fabric of communities and groups in an inclusive way. To that end, States Parties are encouraged to give particular attention to those practices, expressions and knowledge that help communities, groups and individuals to transcend and address differences of gender, colour, ethnicity, origin, class and locality and to those that are broadly inclusive of all sectors and strata of society, including indigenous peoples’) and para 197 on the construction of lasting peace (‘States Parties are encouraged to: (a) ensure respect for the intangible cultural heritage of indigenous peoples’). 112 UNESCO, ‘Basic Texts of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage’ (2022) Section 8, Table 2. It is relevant to recall that the Overall Results Framework for the Convention for the Safeguarding of the Intangible Cultural Heritage is an outcome of a consultative process that originated in a recommendation by UNESCO’s IOS, as part of its 2013 Evaluation Report. In addition, the periodic reporting form was revised and aligned with the overall results framework to allow for the collection of information on core indicators. 113 Intergovernmental Committee for the Safeguarding of the ICH, ‘Ethical Principles for Safeguarding Intangible Cultural Heritage’ ITH/15/10.COM/15.a (15 October 2015). See UNESCO, ‘Basic Texts’ (nt. 112) Section 6.

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negotiation and consultation, and contingent upon their free, prior, sustained and informed consent’ (Principle 4). The second relevant text is the UNESCO Policy on Engaging with Indigenous Peoples adopted in 2018,114 which concerns not only the involvement of Indigenous peoples in the implementation of the 2003 UNESCO Convention at the national level, but also their involvement at the international level, through the activities of the governing bodies of this treaty. On this point, it should be recalled that Article 41 of the UNDRIP specifically addresses the organs and specialized agencies of the UN system and other intergovernmental organizations. Under this provision, these entities ‘shall contribute to the full realization of the provisions of [the UNDRIP] through the mobilization, inter alia, of financial cooperation and technical assistance’. In addition, ‘[w]ays and means of ensuring participation of indigenous peoples on issues affecting them shall be established’. UNESCO therefore has a particular responsibility to respect the rights of Indigenous peoples. In a 2020 report, the United Nations Permanent Forum on Indigenous Issues states that, within UNESCO, Indigenous peoples ‘benefit from the mechanisms established to facilitate collaboration with civil society members and NGOs’, which include their participation in UNESCO governing bodies as Observers, UNESCO International and Intergovernmental Bodies and UNESCO National Commissions.115 In governing bodies, there are now seven NGOs ‘whose mandates are relevant to indigenous peoples and are official partners to UNESCO’, of which six have a consultative status. Participations mechanisms can also allow Indigenous peoples to participate where their fields of competence are relevant to Indigenous peoples’ needs and concerns. This is obviously the case of the 2003 UNESCO Convention. Looking at the lists of participants in the 2003 UNESCO Convention bodies, it does not appear, however, that Indigenous peoples are adequately represented. Nor does the UN Permanent Forum on Indigenous Issues appear to take part in governing body meetings. And while some NGOs may have a mandate to advocate on behalf of Indigenous peoples and NGOs, as well as individuals, may be supported to participate in meetings of the 2003 UNESCO Convention,116 there is no mechanism in place to specifically promote the presence, consultation and participation of Indigenous peoples in the decisions that are discussed and adopted in the governing bodies of the Convention. On the one hand, it could be argued that this is consistent with the intergovernmental nature of the 2003 UNESCO Convention, and the functioning of an international organization, UNESCO, whose members are exclusively sovereign States. On the other hand, one can only observe that such a structure does not allow for the full implementation of the principle of participation and, above all,

114 UNESCO, ‘Policy on Engaging with Indigenous Peoples’ (2018). 115 UNESCO, ‘Enhancing the Participation of Indigenous Peoples’ Representatives and Institutions in Meetings of Relevant United Nations Bodies on Issues Affecting Them’ (30 March 2020) 2. 116 Operational Directives, paras 67(c) and 67(e).

Indigenous Peoples and Intangible Cultural Heritage 253 does not fully respect the fundamental rights of Indigenous peoples. As stated in General Comment No 21, Indigenous peoples ‘have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as . . . oral traditions’.117 These rights should be understood as protecting in particular the rights of individuals and groups to participate ‘in the interpretation, elaboration and development of cultural heritage and in the reformulation of their cultural identities’.118 They cannot be fully realized without specific mechanisms that allow Indigenous peoples to make their voices heard within the bodies where measures to safeguard their heritage are discussed and decisions adopted. The need to ensure an Indigenous presence is even more obvious when, due to the inaction of certain parties, their heritage is seriously threatened and subject to the risk of disappearing. Here again, only access to and participation in the organs of the Convention seems compatible with the respect of their fundamental rights. This is provided, however, that Indigenous peoples themselves consider that the 2003 UNESCO Convention can be a relevant tool to ensure the safeguarding of their intangible cultural heritage. And on this point, doubts persist.119 5

Conclusion

The 2003 UNESCO Convention is both relevant and innovative. Its adoption has restored, at least to some extent, the imbalance caused by the adoption of the 1972 WHC exclusively dedicated to tangible heritage and long denounced by many UNESCO members, in particular developing countries. It must also be recognized that the 2003 UNESCO Convention gives unprecedented importance to the participation of communities, groups and individuals. In this sense, it undeniably contributes to the respect, protection and implementation of the cultural rights of individuals and, potentially, of many cultural groups. However, in spite of all the progress it makes, this Convention might not be adapted to the specificities of the ICH of Indigenous peoples and, above all, might not fully be compatible with the respect, protection and realization of the cultural rights that are specifically recognized to them, notably under the UNDRIP.

117 CESCR (nt. 3) para 37. 118 UN HRC, ‘Report of the Special Rapporteur in the Field of Cultural Rights’ UN Doc A/HRC/31/59 (3 February 2016) para 9. 119 In fact, ‘indigenous peoples themselves remain unconvinced that an international treaty produced without their input reflects their values, and to the extent that local cultural values are determinative in evaluating the significance of ICH, and such significance is the criteria for international recognition, UNESCO may find itself at an impasse with respect to indigenous intangible cultural heritage. This impasse may only be overcome if indigenous peoples are politically recognised as the primary actors with whom UNESCO must negotiate to incorporate intangible ICH into the intangible cultural heritage internationally recognised as in need of safeguarding’. Coombe and Turcotte (nt. 89) 33.

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Reconciliation processes with Indigenous peoples are underway in several States. These peoples are demanding greater autonomy and, above all, respect for their FPIC for any decision likely to affect their identity, their way of life and their development. In other words, their fundamental rights. In this context, it is possible that Indigenous peoples see no advantage in taking part in the implementation of an international legal instrument that ensures that at all stages of the deployment of initiatives aimed at safeguarding what UNESCO calls ‘intangible cultural heritage’, government authorities have not only a say, but above all the final say. It would be understandable if Indigenous peoples wished to distance themselves from this type of approach, in various areas, but particularly in relation to their living heritage, which defines them. If this is the case, States should be ready to respect this wish, while also offering them access to means – other means – that allow Indigenous peoples to freely decide on the way they intend to safeguard of their ICH. At that point, it would no longer be a question of ensuring their ‘participation’; rather, it would be a question of recognizing their cultural sovereignty, which is probably the only guarantee of the full and effective realization of their cultural rights.

14 Traditional Governance Institutions and the Holistic Protection of Traditional Knowledge Francis Kariuki* 1

Introduction

The protection of traditional knowledge (TK) has largely been sought within prevailing intellectual property (IP) frameworks. For example, Kenya as a member of the WTO and WIPO has enacted a number of IP laws.1 Kenya is also a party to the Convention on Biological Diversity (CBD)2 and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization,3 which are implemented under the Environmental Management and Coordination Act.4 There are also policies that have specific provisions on TK protection.5 In addition, the Constitution of Kenya of 20106 and the Protection of Traditional Knowledge and Cultural Expressions Act of 20167 have explicit provisions dealing with TK. Some of the institutions whose work is relevant to TK protection are the Kenya Industrial Property Institute, which administers trademarks, patents, utility models and industrial designs;8 the Kenya Copyright Board, which administers TK9 and all matters of copyright and related rights in Kenya;10 and the Kenya Plant Health Inspectorate Service, which administers plant protection, seeds and plant breeders’ rights.11

* Lecturer, Strathmore University (Kenya). 1 See, e.g., Copyright Act, No 12 of 2001 (hereinafter: Copyright Act); Trade Marks Act, Chapter 506 of the Laws of Kenya; Industrial Property Act, No 3 of 2001; Seeds and Plant Varieties Act, Chapter 326 of the Laws of Kenya. 2 (Rio de Janeiro 5 June 1992) entered into force 29 December 1993 1760 UNTS 79 (hereinafter: CBD). 3 (Nagoya 29 October 2010) entered into force 12 October 2014 . 4 Environmental Management and Coordination Act, No 8 of 1999 as amended in 2016 (Kenya). 5 See, e.g., National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions (2009); National Policy on Culture and Heritage (2009). 6 Constitution of Kenya, 2010 (hereinafter: Kenya Constitution) Article 61.1(c). 7 Protection of Traditional Knowledge and Cultural Expressions Act, No 33 of 2016 (hereinafter: the PTK Act). 8 Industrial Property Act 2001 (Kenya), Articles 3 and 5. 9 PTK Act, Article 5(a). 10 Copyright Act, Articles 3 and 5. 11 Kenya Plant Health Inspectorate Service Act 2012 (Kenya), Article 5. DOI: 10.4324/9781003357704-18

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Whereas there is no doubt that some TK holders and Indigenous peoples have used intellectual property rights (IPRs) to protect their cultural creations like songs, arts and handicrafts,12 the IP regime has some deficiencies in protecting TK. First, the IP regime fails to acknowledge and recognize TK and the customary laws and systems developed and used by TK holders to protect, safeguard and perpetuate their heritage and knowledge.13 Thus, the IP regime fails significantly to offer robust protection to tradition-based knowledge systems with their holistic nature while ‘ensuring cultural preservation and access to knowledge’.14 Moreover, the IP regime does not offer protection to the territories, lands and resources of TK holders that are vital to the continued generation, use and transmission of TK. Second, IP vests exclusive ownership rights on the author or inventor, thus fundamentally contradicting the ethos of TK. The upshot of this is that IP models are unable to address the high social costs of TK monopolization, which include undermining and destruction of TK holders cosmovisions, cultures and heritage, theft or biopiracy of plant, animal, and human genetic materials and the knowledge around these, the increasing difficulty for millions of poor people to have the access to traditional medicines and treatments, and the increasing monopolization of control over knowledge and technologies by fewer individuals, countries and corporations.15 Third, TK is trans-generational, thus creating difficulty in identifying the relevant creator or innovator for the purposes of rewarding them for their creativity.16 This also raises the problem of the duration of protection since IPRs are protected for a limited duration of time which may not be apt for TK.17 Lastly, the reward theory which underlies IP policy is not appropriate in justifying the protection of existing knowledge like TK.18 There is a need to un-earth traditional governance institutions and to use them in protecting TK. Consequently, this chapter discusses the role of traditional governance institutions in providing holistic protection to TK. Section 1 is this general introduction.

12 Victoria Tauli-Corpuz, Biodiversity, Traditional Knowledge and Rights of Indigenous Peoples (Third World Network 2003) 21. 13 ibid 7–8. See also Deepa Varadarajan, ‘A Trade Secret Approach to Protecting Traditional Knowledge’ (2011) 36 YJIL 371, 378. 14 Pamela Andanda, ‘Striking a Balance between Intellectual Property Protection of Traditional Knowledge, Cultural Preservation and Access to Knowledge’ (2012) 17 JIPR 547, 548. See also Roger Chennells, ‘Putting Intellectual Property Rights into Practice: Experiences from the San’, in Rachel Wynberg et al (eds) Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia Case (Springer 2009) 212. 15 Tauli-Corpuz (nt. 12) 9. 16 Djims Milius, ‘Justifying Intellectual Property in Traditional Knowledge’ (2009) 2 IPQ 185, 193– 194. See also Robert P. Merges, ‘Locke for the Masses: Property Rights and the Products of Collective Creativity’ (2008) 36 HLR 1179, 1190. 17 John T. Cross, ‘Property Rights and Traditional Knowledge’ (2010) 13 PELJ 12, 21. 18 Paul J. Heald, ‘The Rhetoric of Biopiracy’ (2003) 11CJICL 519, 523 ff.

Traditional Knowledge Protection 257 Section 2 discusses the challenges in the use of the IP system in protecting TK. It highlights the epistemological, ideological, methodological and technical problems in using the IP system to protect TK. Section 3 conceptualizes traditional governance institutions to understand their nature and role in society generally. Sections 4 and 5 examine the role that traditional governance institutions can play in the holistic protection of TK and in strengthening IP institutions. Section 6 examines some of the challenges with traditional governance institutions, while section 7 presents the conclusion and recommendations. 2

Challenges in the Protection of Traditional Knowledge Using the Intellectual Property System

As mentioned above, current efforts at protecting TK have tended to place heavy reliance on the IP system. However, due to the unfathomable variances between the rationale for TK and IP protection, the use of the IP system in TK protection has generated epistemological, ideological, methodological and technical problems as discussed below. 2.1

The Methodological, Epistemological and Conceptual Problem

Protecting TK generates an epistemic, conceptual and methodological problem. This polemical portends a cultural-hierarchical divergence between Western and non-Western empiricism that creates difficulties in TK protection. While Western empiricism is unabashedly heralded as ‘scientific’ and universal in character, nonWestern empiricism has largely been rubbished as ‘folk-lore’, ‘culture-specific’, unsystematic and as belonging to the ‘realm of the natural, the mystical and the irrational’.19 TK, especially in Africa, operates on two entwined levels – the empirical and cognitive levels.20 The empirical level is unpacked further into natural,21 technological and architectural,22 and socio-cultural spheres,23 while the cognitive level delineates a structure in which theories and perceptions of both nature and culture are conceptualized. Therefore, the relationship between TK, its holders, and

19 Ikechi Mgbeoji, ‘Bio-Cultural Knowledge and the Challenges of Intellectual Property Rights Regimes for African Development’, in Chukwuemeka G. Nnona (ed) Law, Security and Development: Commemorative Essays of the University of Nigeria Law Faculty (2013) 483; Andre Lalonde, ‘African Indigenous Knowledge and its Relevance to Sustainable Development’, in Julian T Inglis (ed) Traditional Knowledge: Concepts and Cases (IDRC 1993) 57. 20 Anwar Osman, ‘Indigenous Knowledge in Africa: Challenges and Opportunities’ . Last access to all links mentioned in this chapter: 29 November 2022. 21 The natural sphere includes ecology, biodiversity, soil, agriculture, medicinal and pharmaceutical, ibid. 22 The technological and architectural sphere consists of all crafts such as metallurgy, textiles, basketry, food processing, building, etc. ibid. 23 The socio-cultural sphere consists of aspects of life, e.g., social welfare, governance, conflict resolution, music, art, etc. ibid.

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the technologies and devices used for its application are bound to an Indigenous cosmology that is about ‘the co-evolution of spiritual, natural and human worlds’.24 Because the epistemology of TK also rests on metaphysical perceptions without necessarily having proven that empirically, critics claim that it is an incomplete knowledge or at worst offers a questionable understanding or conception of knowledge.25 With such claims, TK epistemes are oftentimes denied legitimacy, scholarly recognition and legal protection. In Africa, the subordination and delegitimization of TK and epistemic frameworks is also said to be part of the colonial-cultural assault mounted on Africans through Western legal and institutional frameworks.26 These frameworks have occasioned consistent inferiorization of African TK as being unworthy of legal protection as well as concerted efforts to erase existing systems of knowledge and to replace them with Western-driven belief and knowledge systems.27 Although this inferiorization may have been necessary in view of the power embedded in knowledge systems and traditional epistemes, some dispute, for instance, that the British colonial rule was responsible for undermining the ability of the different East African Protectorate communities to organize their means of survival.28 The interface between TK and IPRs presents an interesting dichotomy of a cross-cultural relationship between a Western-liberal ideology and an Indigenous worldview.29 Oftentimes, difficulties play out at the ideological interface seeing that the objectives of TK are diametrically opposed to Western intellectual foundations of IPRs. Moreover, the interface may raise issues that straddle both legal and non-legal aspects, especially because from an Indigenous worldview, problems are not always legal or commercial in nature, but can also assume cultural, historical, spiritual, ecological and moral dimensions.30 There is thus an existing gap in the protection of TK within prevailing frameworks. A traditional framework views TK as a worldview and looks beyond its instrumental value ‘to the value systems within which it is situated, and to listen to that wisdom with our minds as well as our hearts’.31 Scholars agree that there is need to approach the IP system ‘from below’ by modifying it to ensure it takes into account

24 Osman (nt. 20). See also Lalonde (nt. 19) 56. 25 Osman (nt. 20). 26 Mgbeoji (nt. 19) 455; Lalonde (nt. 19) 57. See also Charles Takoyoh Eyong, ‘Indigenous Knowledge and Sustainable Development in Africa: Case Study on Central Africa’ in Emmanuel K. Boon & Luc Hens (eds) Indigenous Knowledge Systems and Sustainable Development: Relevance for Africa (Kamila-Raj Enterprises 2007) 131. 27 Mgbeoji (nt. 19) 469; Osman (nt. 20). 28 James T. Gathii, ‘Imperialism, Colonialism, and International Law’ (2006–2007) 54 BLR 1013, 1027. 29 Ken Chisa and Ruth Hoskins, ‘Decolonising Indigenous Intellectual and Cultural Rights in Heritage Institutions: A Survey of Policy and Protocol in South Africa’ (2015) 33 SAJIS 55, 56. 30 ibid 56–59. 31 Nancy Doubleday, ‘Finding Common Ground: Natural and Collective Wisdom’, in Julian T. Inglis (ed) Traditional Knowledge: Concepts and Cases (IDRC 1993) 52.

Traditional Knowledge Protection 259 the divergent views, histories and philosophies of developing countries and Indigenous peoples.32 Others have suggested an intercultural approach to this problem which allows for the interaction of cultures when crafting theoretical postures from which to survey phenomena. An intercultural examination of phenomena seems to reside in the examination of power relationships between people.33 Perceived power and status makes the relationship between TK and IPRs difficult because ‘power relationships dictate so much of what is right, correct, logical and reasonable. . . The limits are drawn by those who wield the economic, political, and cultural power’.34 As such in the intercultural encounters, TK holders must be allowed to define for themselves their own power and status vis-à-vis another. 2.2

Ideological and Political Conundrums in Traditional Knowledge Protection

The IP-TK interface in Africa leads to colonial and post-colonial (neo-colonial) reverberations whose articulation creates certain conundrums in the protection of TK. Some of the conundrums can be traced to the development of international law (including IP and human rights law) which consisted of a set of rules that largely had a geographical bias (European law), a religious-ethical aspiration (it was a Christian law), an economic motivation (it was a mercantilist law) and political aims (it was an imperialist law).35 First, IP law is largely Western/European, because developing countries were not participants or parties to the early international IP treaties, yet the treaty provisions were often extended to them through colonialism.36 Because the cultural values of TK holders were not taken into account, IP instruments are ill-fitted to protect TK.37 Equally, in the development of human rights frameworks, the communitarian ethos of Indigenous communities were ignored, yet they are the main claimants of

32 J. Janewa OseiTutu, ‘A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law’ (2011) 15 MIPLR 147, 203; Stephen R. Munzer and Kal Raustiala, ‘The Uneasy Case for Intellectual Property Rights in Traditional Knowledge’ (2009) 27 CA&E 37, 51. 33 Molefi Kete Asante, ‘The Ideological Significance of Afrocentricity in Intercultural Communication’ (1983) 14 JBS 3, 4. 34 ibid 5. 35 Mgbeoji (nt. 19) 473. 36 ibid 453–493. See also Ruth L. Gana, ‘The Myth of Development, The Progress of Rights: Human Rights to Intellectual Property and Development’ (1996) 18 Law & Policy 315, 329; Olufunmilayo B. Arewa, ‘TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property Frameworks’ (2006) 10 MIPLR 155, 160. 37 OseiTutu (nt. 32) 159, 201. See also Madhavi Sunder, ‘The Invention of Traditional Knowledge’ (2007) 70 LCP 97, 100; Sophia Twarog, ‘Preserving, Protecting and Promoting Traditional Knowledge: National Actions and International Dimensions’, in Sophia Twarog & Promila Kapoor (eds) Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions (UNCTAD 2004) 65.

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IP protection today.38 For example, an individualistic focus is evident in the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights both of which ‘safeguard the right to the protection of moral and material interests in intellectual creations’.39 Likewise, under the Kenyan Constitution, ‘property’ is defined as including IP,40 and IPRs are protected within the ‘right to property’.41 Chennells explains that framing and protecting IP rights within a human rights framework (as the Kenyan Constitution does) has dire consequences for TK and TK holders, as it can be used to accord strong IP protection and to create new rights.42 Similarly, it may end up removing communally held TK from its paradigm and importing it into another worldview occasioning harm to it and its holders.43 This incompatibility yields ineffectual solutions in the protection of TK44 and necessitates a search for alternative frameworks. Second, international law (and IP in particular) had a religious-ethical aspiration as Africans were viewed as uncivilized savages in immediate need of civilization and enlightenment. In the colonial encounter of the “Gods”, traditional medicine and the herbalist/ healer were the target of colonial vilification as proponents of witchcraft or sorcery.45 A good example of this is the existence of statutes that created the offence of witchcraft and criminalized activities carried out by traditional herbalists.46 This explains the trend whereby the IP regime seems to aim at accessing TK and the ‘active’ ingredients of medicinal plants without reference to the cultural and

38 International Covenant on Economic, Social and Cultural Rights (New York 16 December 1966) entered into force on 3 January 1976 993 UNTS 3, Article 15.1(c); UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) Article 27.2. These both recognise the right ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author’. See also Jacob Cornides, ‘Human Rights and Intellectual Property: Conflict or Convergence’ (2004) 7 JWIP 135, 137; Philippe Cullet, ‘Human Rights, Knowledge and Intellectual Property Protection’ (2006) 11 JIPR 7, 10; Peter K. Yu, ‘Reconceptualizing Intellectual Property Interests in a Human Rights Framework’ (2007) 40 UCDLR 1039, 1073. 39 Peter K. Yu, ‘Cultural Relics, Intellectual Property, and Intangible Heritage’ (2008) 81 TLR 433, 436. 40 Kenya Constitution, Article 260. 41 ibid Article 40.5. 42 Chennells (nt. 14) 212. 43 Doubleday (nt. 31) 51. See also Aled Dilwyn Fisher and Maria Lundberg, ‘Human Rights’ Legitimacy in the Face of the Global Ecological Crisis – Indigenous Peoples, Ecological Rights Claims and the Inter-American Human Rights System’ (2015) 6 JHRE 177 (arguing that using a human rights framework ‘as the key to all indigenous claims is unsatisfactory because such an approach does not provide comprehensive enough protection of indigenous rights’). 44 Chisa and Hoskins, ‘Decolonising’ (nt. 29). 45 Pamela Andanda and Hajjat Khademi, ‘Protecting Traditional Medical Knowledge through the Intellectual Property Regime Based on the Experiences of Iran and South Africa’ in Caroline Ncube and Elmien Du Plessis, Indigenous Knowledge and Intellectual Property: Contemporary Legal and Applied Research Series (Juta 2016) 58 (they note that in South Africa ‘the concept of African Science’ or secret knowledge is used to describe the harmful activities of witches and the healing activities of traditional healers). See also Mgbeoji (nt. 19) 478. 46 Witchcraft Act, Chapter 67 of the Laws of Kenya, dating back to 1925.

Traditional Knowledge Protection 261 belief systems amongst TK holders.47 However, in South Africa there are reports showing that traditional healers are commonly using ‘over-the-counter’ pharmaceuticals and patented drugs in their practice,48 casting doubt on the efficacy of their traditional remedies. Third, IP law has an economic motivation as it is built on principles meant to curtail monopolies, but these monopolies use IP in order to extend their monopolistic tendencies in their relationship with TK and TK holders.49 As explained earlier, the commercialization of TK and biological resources using the IP regime without respect for TK’s wider cultural and holistic context portends great challenges for TK holders.50 Be that as it may, TK’s subject matter has commercial value and TK holders are not entirely opposed to the commercialization of aspects of their TK. Fourth, IP laws had political aims achieved through repressive colonial political and ideological apparatuses. Colonial powers used law and brutal force to displace, dislocate and subjugate the African people in order to acquire full control over their lands and resources.51 Such laws and policies contributed to the estrangement of Africans, the delegitimization of TK epistemes and occasioned the loss of knowledge systems making the restoration of TK a daunting challenge today.52 It is reported, for instance, that the political context of apartheid in South Africa ‘forced the San people to hide their identity, especially with the enactment of the Coloured Registration Act of 1955 that officially erased the San communities as an identifiable ethnic group’.53 However, after the San people shared their TK on the use of the hoodia plant with a Dutch anthropologist in a book in the 1930s, the South African Council for Scientific and Industrial Research (CSIR) found that reference and began taking interest in the plant in the 1960s. It is noteworthy that the San people had not been informed by CSIR of its intentions to patent P57 (a molecule in the hoodia plant that could be commercialized into an appetite suppressant and anti-obesity drug), the subsequent successful

47 Mgbeoji (nt. 19) 478. See also Victoria Reyes-Garcia, ‘The Relevance of Traditional Knowledge Systems for Ethnopharmacological Research: Theoretical and Methodological Contributions’ (2010) 6 JEE 1, 4 (explaining that although identifying active compounds in a plant is useful in the pharmacological industry, ‘it requires the accompanying practices and beliefs that provide the medicinal ‘meaning’ to the plant’). 48 Andanda and Khademi (nt. 45) 58. 49 Mgbeoji (nt. 19) 478. 50 ibid 464. 51 ibid 455. See also HWO Okoth Ogendo, ‘The Tragic African Commons: A Century of Expropriation, Suppression and Subversion’ (2003) 1 UNLJ 107, 110–112. 52 Okoth Ogendo (nt. 51) 111; Mgbeoji (nt. 19) 454; Milius (nt. 16) 199 (commenting on the legacy of Indigenous groups’ oppression and how they were not permitted to speak their languages and were punished corporally for taking part in practices or ceremonies considered primitive by the slave masters, yet oral tradition is the mechanism through which TK is passed on from one generation to the next). 53 Tonye Marcelin Mahop, ‘Biodiversity Regulatory Options: Involvement of Rural Communities in Decision-making Processes in South Africa’ (2005) 8 JWIP 809, 815.

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patent application, or the licensing negotiations with other companies. Indeed, in the licensing negotiations over the P57 and the associated knowledge, CSIR is reported to have said to its international partners that ‘the San people had all died’.54 Nonetheless, CSIR finally recognized the TK as belonging to the San people and ended up negotiating a benefit-sharing agreement with them. Narratives such as the one used by CSIR, that the San people were all dead, explain why TK holders’ challenge of IP systems is linked to a political struggle, ‘not merely to change the existing intellectual property regime, but to pursue the self-determination and even sovereignty of indigenous peoples’.55 Withal, critics opine that TK and related systems are eroding due to the ‘acculturation of indigenous people, their assimilation into the dominant society, and the failure of elders to transmit traditional knowledge to younger generations’.56 The project of Western domination that privileges Western episteme while sabotaging TK regimes and epistemes persists in contemporary forms through post-colonial articulations in the IP, economic and political domains.57 For example, economic globalization contributes to the dispossession of local communities’ knowledge systems, resources and products while cultural globalization continues to add to the erosion and erasure of TK systems by dismissing it as undocumented and ‘unscientific’ knowledge.58 Nevertheless, developments at the international level in IP59 and the recognition of Indigenous people’s rights suggest that there is a gradual move towards privileging traditional epistemes, beliefs and practices.60

54 ibid 816. 55 Chennells (nt. 14) 216; OseiTutu (nt. 32) 155 (arguing that extending the existing IPR system to TK ‘does not rectify the inequities caused by the excesses of the current system’). 56 Erin Sherry and Heather Myers, ‘Traditional Environmental Knowledge in Practice’ (2002) 15 S&NR 345, 349. 57 Mgbeoji (nt. 19) 456; Osman (nt. 20). See also Saskia Widenhorn, ‘Towards Epistemic Justice with Indigenous Peoples’ Knowledge? Exploring the Potentials of the Convention on Biological Diversity and the Philosophy of Buen Vivir’ (2014) 56 Development 378, 380. 58 Osman (nt. 20). 59 See for example the work of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) established by WIPO in 2000, which provides a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of TK and traditional knowledge and cultural expressions (TCEs). WIPO, ‘The WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore’ (2016) Traditional Knowledge Background Briefs No 2 . 60 In addition to the CBD, see also: Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris 14 November 1970) entered into force 24 April 1972 823 UNTS 232; Convention (No 169) Concerning Indigenous Peoples in Independent Countries (Geneva 27 June 1989) entered into force 5 September 1991 1650 UNTS 383; UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/ RES/61/295 (2 October 2007).

Traditional Knowledge Protection 263 2.3

Technical and Pragmatic Problems

Because of the nature and divergent aims of TK and IP protection, there are technical and practical challenges of protecting TK within the IP regimes.61 First, due to the narrow focus of the IP regime on material interests, it fails to offer robust protection to TK which is holistic while ‘ensuring cultural preservation and access to knowledge’.62 For example, whereas products based on TK and genetic resources are protected by IP law, the underlying TK and genetic resources are not.63 Without respecting the holistic nature of TK and customary laws governing TK, current IP regimes cannot protect TK and afford fair and equitable access to it. Second, IP vests exclusive ownership rights in the author or inventor thus fundamentally contradicting the ethos of TK in a number of ways. For example, with TK it is difficult to determine who ‘owns’ the knowledge within a given community,64 as TK is collectively and communally held.65 In spite of this, however, customary law at times recognizes the ‘special status of certain individuals (like healers or medicine men)’ who are viewed as informal creators or inventors distinct from the community.66 Moreover, instead of viewing TK as property, most groups view it in terms of community and individual responsibility where the holding of TK gives rise to ‘a bundle of relationships’ rather than a ‘bundle of economic rights’.67 Essentially, TK holders are more concerned with ‘people’s obligations towards each other and the resources (nature), than with the rights of people in property’.68 In addition, TK is trans-generational, being the product of generations of Indigenous peoples’ efforts rather than the creativity of one living heir or those that contributed to it but are no longer alive.69 This creates a difficulty in identifying a creator or innovator. But some disagree, arguing that descendants of originators may serve as a ‘good enough’ kind of representative. According to Robert Merges, the current inhabitants of traditional leadership roles are assumed to adequately represent the generations past and future who have an interest in protecting and profiting from the traditional knowledge. There is no pretense that this is perfect or even procedurally fair representation. But it is assumed 61 Thomas Cottier and Marion Panizzon, ‘Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection’ (2004) 7 JIEL 371, 375–376. 62 Andanda (nt. 14) 547–558; Chennells (nt. 14) 212; Munzer and Raustiala (nt. 32) 66. 63 Kal Raustiala, ‘Density and Conflict in International Intellectual Property Law’ (2007) 40 UCDLR 1021, 1033. See also Munzer and Raustiala (nt. 32) 40. 64 Srividhya Ragavan, ‘Protection of Traditional Knowledge’ (2001) 2 MIPR 5, 35. See also Cross (nt. 17) 12, 18. 65 Ragavan (nt. 64) 35. See also Cottier and Panizzon (nt. 61) 381–383. 66 Varadarajan (nt. 13) 378. 67 Yu (nt. 39) 467. 68 Elmien du Plessis, ‘Protection of Traditional Knowledge in South Africa: The Troubled Bill, the Inoperative Act, and the Commons Solution’ in Caroline B Ncube and Elmien Du Plessis, Indigenous Knowledge and Intellectual Property: Contemporary Legal and Applied Research Series (Juta 2016) 81. 69 Milius (nt. 16) 193–194; Merges (nt. 16) 1190.

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to be the best we can do. . . What is needed in cases of dispersed creativity is to identify similar representative people or entities. They may not speak perfectly for all contributors, but they can be assumed to be good enough.70 This suggests that if TK holders are not owners, inventors or innovators, they are basically stewards, custodians or trustees, explaining why it is common to find some TK kept within the custody of a select few, along family lineages or between particular role-players on behalf of the community.71 For example, amongst the East African Maasai, specific families or individuals hold TK related to medicine as custodians of the community. Similarly, in most communities specific music composers are often rewarded for their creativity by being recognized as custodians of the compositions.72 Such custodians act as trustees of the components or aspects of TK entrusted to them.73 In giving permission to outsiders to use TK, ‘a recognised group of elders or trustees appointed by the community must determine how and with whom a part of the entirety of their traditional knowledge is to be shared’.74 Although every member of the community does not give assent to the use of TK, it is argued that it is a ‘pragmatic compromise which ensures the legitimacy of whatever decision is reached on the matter’.75 A custodianship model seems to take into account TK holders collective obligations towards their TK as it does not result in exclusion, alienation, and transfer of some of the main concerns of traditional communities without their assent.76 However, the concept of the State’s trusteeship over biological resources may pose difficulties to TK holders’ claims of custodianship over TK.77 Moreover, TK is also held in a context of the communal spirit of sharing and free exchange of resources such as seeds and related knowledge, although customary norms may ‘impose restrictions on the way traditional knowledge is shared within the community and with outsiders’.78 It is clear then that protection of TK does not necessarily mean ‘closing off links with other cultural communities – or of the related commercial domain – to exploit that knowledge’ but ‘deciding what aspects of the collective identity may be used and disseminated beyond the community, and on what terms’.79 This argument casts doubt on the assertion by IP proponents

70 Merges (nt. 16) 1190. 71 Marisella Ouma, ‘The Policy Context for a Commons-Based Approach to Traditional Knowledge in Kenya’, in Jeremy de Beer et al (eds) Innovation & Intellectual Property: Collaborative Dynamics in Africa (UCT Press 2014) 133. 72 ibid 133. 73 Milius (nt. 16) 195. 74 ibid. 75 ibid. See also Okoth Ogendo (nt. 51) 109 (clarifying that decision-making does not demand collective participation by all members within a community). 76 Yu (nt. 39) 468. 77 CBD, Article 15 (placing all biological resources within a territory under the sovereignty of the State). 78 Varadarajan (nt. 13) 378; Ouma (nt. 71) 133. 79 Milius (nt. 16) 197.

Traditional Knowledge Protection 265 that TK is in the public domain.80 According to TK proponents, TK could not have entered the public domain as it was never protected as IP, and even if it was, some of it such as herbal remedies are secret and hence not known to outsiders.81 Third, demarcating explicitly the ethnic and cultural boundaries of a people is problematic due to the dynamic nature of culture, changes over time and geographical spread across communities and nations. Where a culture has been in existence for centuries, ‘determining the “originating culture” requires herculean effort’.82 It is thus argued that the culture should not have a broad property right to ‘lock up’ knowledge and thereby exclude all other potential users but only a right to prevent wrongs directed at the culture.83 A property right designed to preserve culture may also directly contradict the policy of dissemination as it allows the owner to prevent others from using the knowledge.84 Additionally, where cultures are shared there may arise difficulties, if a joint property right is granted and one joint owner decides to allow outsiders to use the knowledge.85 This act may threaten the continued existence of the other culture thus defeating the purpose of the property right. Fourth, IPRs are protected for a limited duration of time which may not be appropriate for TK.86 For instance, how would that time be measured? Would it make sense to create rights for ancient knowledge? Some suggest that given the inter-generational nature of TK, it should be protected perpetually and possibly retroactively to protect historical works.87 However, if perpetual protection is offered to TK, access to the knowledge by outsiders would be hampered. Similarly, it is contended that granting new rights over TK would mean a retraction of knowledge that is already in the public domain, thus requiring TK holders to ‘provide a solid public policy rationale for limiting access to, and use of, such information’.88 Fifth, there are objections to IPRs in TK rooted in IP policy. Generally, the grant of a property right is viewed as ‘society’s reward to the innovator for his creative efforts’ and as ‘a financial incentive to encourage innovative activity’.89 Because the reward theory provides incentives for new creations, it is not appropriate to justify the protection of existing knowledge like TK.90 But because of the intergenerational nature of TK, it is rather difficult to justify property rights in TK under the reward theory, not because of lack of creativity, but rather because the grant

80 81 82 83 84 85 86 87 88 89

Cullet (nt. 38) 11. See also Sunder (nt. 37) 109. OseiTutu (nt. 32) 191; Mgbeoji (nt. 19), 453–493; Munzer and Raustiala (nt. 32) 53. Cross (nt. 17) 21; OseiTutu (nt. 32) 190. Cross (nt. 17) 25. ibid 39. ibid 40. See also Varadarajan (nt. 13) 374. Cross (nt. 17) 21. OseiTutu (nt. 32) 190; Munzer and Raustiala (nt. 32) 52. OseiTutu (nt. 32) 190. Cross (nt. 17) 23. Early IPRs were often granted simply as a favour to someone who had pleased the government. Today, IPRs are justified as useful tools to improve the general lot of society and a grant of exclusivity that does not further these social goals is regarded improper. 90 Heald (nt. 18) 519–546.

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of exclusive rights does not provide the right sort of reward for that creativity.91 Moreover, the inter-generational nature of TK would suggest that property rights in TK would give the reward to the wrong party,92 thus violating the basic principles of the prevailing reward theory. And even if the knowledge is of recent origin and the originator can be identified, most proposals for IP in TK would vest the rights not in the person but in the person’s culture or an agency that simply owes fiduciary duties to the culture. Therefore, a grant of IPRs in TK would run afoul of these fundamental policy concerns. Clearly, TK fits poorly within standard justifications of IP rights.93 The failure of the IP regime to pay adequate attention to the unique nature of TK and the concerns, beliefs, worldviews and customary laws and practices of Indigenous peoples encourages the continual loss of TK without attribution or compensation to the TK-generating community.94 3

Conceptualizing Traditional Governance Institutions

Traditional governance institutions (or TK holders’ institutions) are complex, multifaceted governance frameworks that deal with diverse subject matters, depending on their functions, to wit: land, livestock, labour-sharing, mutual assistance (social), health, traditional beliefs (including rituals, spiritual leaders and sacred areas), traditional leadership, recreational, and conflict resolution.95 They include customary laws and practices; family secrets; oral agreements; sharing mechanisms; community sanctions; trust; and ostracism.96 They have remained resilient, and enjoy popular legitimacy because of their ‘proximity and intimate familiarity with their communities’ which makes them ‘more effective in adjudicating disputes, allocating land, and advocating for their constituents than many MPs, local councillors, and state institutions’.97 The legitimacy also stems from the fact that they function

91 Cross (nt. 17) 24. 92 ibid 24. 93 Munzer and Raustiala (nt. 32) 40; Varadarajan (nt. 13) 374; Heald (nt. 18) 542–3 (advocating IPRs for TK is a poor rhetorical strategy for maintaining the world’s biodiversity and helping Indigenous groups that hold so much critical knowledge about plant genetic resources). 94 Saskia Vermeylen, ‘The Nagoya Protocol and Customary Law: The Paradox of Narratives in the Law’ (2013) 9 LEDJ 187, 190. See also Hans Morten Haugen, ‘Traditional Knowledge and Human Rights’ (2005) 8 JWIP 663, 667. 95 Jeremias Mowo et al, ‘The Importance of Local Traditional Institutions in the Management of Natural Resources in the Highlands of Eastern Africa’ (World Agroforestry Center 2011) Working Paper No 134 111. 96 Jeremy de Beer and Sacha Wunsch-Vincent, ‘Appropriation and Intellectual Property in the Informal Economy’, in Erica Kraemer-Mbula and Sacha Wunsch-Vincent (eds) The Informal Economy in Developing Nations. Hidden Engine of Innovation? (CUP 2016) 243; Nagla Rizk et al, ‘Towards an Alternative Assessment of Innovation in Africa’ (OpenAir 2018) Working Paper No 10 40. 97 Carolyn Logan, ‘The Roots of Resilience: Exploring Popular Support for African Traditional Authorities’ (2013) 112 African Affairs 353, 358.

Traditional Knowledge Protection 267 according to cultural norms which people are deeply familiar with, thus facilitating both access and (non-electoral) accountability,98 especially where formal State institutions have failed or had limited access. This is in consonance with studies suggesting that ‘successful engagement with rural communities should start with recognizing that they have institutions through which they can practise or organize collective action’.99 A study conducted on the Mijikenda people, confirms that ‘respect for the Indigenous institutions remains strong’ in the community.100 They are governance frameworks for TK and natural resources, and data repositories (e.g. holding knowledge, social networks, ethos, values, methods of utilizing resources and conservation).101 Additionally, they are also custodial institutions that aim at ‘the continuous use and preservation of the place, its values, and its surrounding environment, including the preservation of its symbolic and cosmological significance’.102 Traditional governance institutions generate social capital-binding and bridging social capital that is considered ‘an additional factor of production’.103 Social capital (social norms, relationships and networks) can be mobilized to address societal challenges, create positive synergies, and ensure efficient use of resources since ‘people who share a common background, language, culture, and customs’ are able to mobilize resources effectively.104 Social networks allow the formation of linkages between local knowledge and formal sciences that can have positive impacts on society.105 Withal, traditional institutions have been conceptualized within a broader set of theories of institutions, where the aim is to ‘get institutions right’ and/or strengthen institutions.106 This approach is informed by various factors. First, there 98 ibid. See also Judith Kamoto et al, ‘Doing More Harm than Good? Community Based Natural Resource Management and the Neglect of Local Institutions in Policy Development’ (2013) 35 LUP 293, 293; Heidi Wittmer, Felix Rauschmayer and Bernd Klauer, ‘How to Select Instruments for the Resolution of Environmental Conflicts?’ (2006) 23 LUP 1, 4. 99 Mowo et al (nt. 95) 2. 100 Celia Nyamweru and Elias Kimaru, ‘The Contribution of Ecotourism to the Conservation of Natural Sacred Sites: A Case Study from Coastal Kenya’ (2008) 2 JSRNC 327. 101 Sujai Shivakumar, ‘The Place of Indigenous Institutions in Constitutional Order’ (2003) 14 Constitutional Political Economy 3, 6. 102 ibid. 103 Moina Rauf, ‘Innovations and Informal Institutions: An Institutionalist Approach to the Role of Social Capital for Innovation’ (2009) 1 JARE 25, 26, 31. 104 ibid. 105 Maria-Constanza Torri and Julie Laplante, ‘Enhancing Innovation between Scientific and Indigenous Knowledge: Pioneer NGOs in India’ (2009) 5 JEE 1; Peter Drahos and Susy Frankel, ‘Indigenous Peoples’ Innovation and Intellectual Property: The Issues’, in Peter Drahos and Susy Frankel (eds) Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development (ANU Press 2012) 4. 106 Elizabeth E. Watson, ‘Examining the Potential of Indigenous Institutions for Development: A Perspective from Borana, Ethiopia’ (2003) 34 Development and Change 287, 290. See also Frances Cleaver, ‘Moral Ecological Rationality, Institutions and the Management of Common Property Resources’ (2000) 31 Development and Change 361; World Bank, ‘World Development Report 2002: Building Institutions for Markets’ (2002) .

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is a prevailing view that good governance and strong and accountable institutions are crucial for poverty reduction and developmental effectiveness.107 Second, the massive failure of formal State institutions to project their authority, especially in rural contexts, has produced a development agenda fixated on building institutional capacity.108 Consequently, the inordinate focus on formal institutions, for instance, in the context of TK protection, means that great efforts have been dedicated towards harnessing the IP regime to protect TK rather than on traditional institutions. Moreover, overemphasis on formal institutions has resulted in a negative attitude towards traditional institutions. Thus, they have been highly criticized, inter alia, for being prone to manipulation by powerful forces in the community, gender bias, and abuse of power.109 Such criticism, for instance that the institutions have a gender bias, is at times misplaced, since the roles of men and women are clearly recognized in those institutions. This limits the extent to which they can be deployed in the protection of TK and in strengthening formal institutions such as the IP institutions. Despite the focus on formal institutions, the use of some of those institutions, like the IP regime to protect TK holders’ innovations, face certain technical and practical challenges. For instance, TK and TK-based innovation may not meet the necessary criteria for IP protection. Besides which, the sort of exclusive rights granted through formal IP protection cannot offer the necessary protection and acknowledgment to TK holders’ innovations, which are mostly developed collectively. In the TK context, non-pecuniary incentives (intrinsic motivation) play a considerable role in driving innovative behaviour, unlike with IP where the ‘prospects of exclusivity and financial rewards’ are the main incentives.110 Further, the use of the IP system by TK holders is constrained by low levels of awareness of IP, challenges in accessing IP protection measures, lack of technical expertise/personnel and financial resources, low investments in R&D, the high cost of filing and challenging enforcement, and inadequate administrative infrastructure.111 Nonetheless, TK holders’ can, for instance, use the IP system (such as patent, trademark, geographical indications, or trade secret or confidential information) to protect their innovation against unauthorized usage of protected IP by competitors; help commercialize IP-protected products and services; help license inventions and create corresponding technology markets; increase brand-based enterprise

107 International Development Association, ‘IDA at Work: Building Strong Institutions for Sustained Results’ . 108 McKenzie Johnson, ‘Strong Institutions in Weak States: Institution Building, Natural Resource Governance, and Conflict in Ghana and Sierra Leone’ (PhD thesis, Duke University 2017) 12. See also Mamadou Dia, Africa’s Management in the 1990s and Beyond: Reconciling Indigenous and Transplanted Institutions (World Bank 1996). 109 Ashish Aggarwal, ‘Indigenous Institutions for Natural Resource Management: Potential and Threats’ (2008) 43 EPW 21, 23. 110 de Beer and Wunsch-Vincent (nt. 96) 242. 111 ibid 237.

Traditional Knowledge Protection 269 recognition; signal to potential venture capital in order to obtain business finance; limit the right of employees to enter employment with competitors; ensure that information is kept confidential; ensure the transfer of rights related to inventions from employees to companies; and facilitate sharing of rights in the results of cooperative projects in a manner that satisfies all contracting parties.112 Indeed, IP becomes more important as the interaction between the informal and formal sectors for joint collaborative innovation increases.113 Sometimes, too, innovation in the informal sector occurs with the help of formal sector scientific institutions, and vice versa,114 hence the need for the much-developed IP system in protecting the ensuing innovation. 4

Role of Traditional Governance Institutions in the Holistic Protection of Traditional Knowledge

The above discussion shows that traditional governance institutions have a role to play in the protection of TK.115 TK ‘goes to the core of indigenous people and local communities’ identity and right to self-determination’ and thus ‘any protection measure should be built around the existing traditional structures’.116 Traditional governance institutions are ‘flexible, socially negotiable and hence, more practical’ and ‘should not be viewed and treated as being inferior to statutory institutional structures but should be worked with in order to build systems of accountability’.117 A traditional governance approach to TK protection can secure self-determination, cultural and ecological integrity; and build systems of accountability in TK governance, especially in regulating access to the knowledge. Traditional institutions can play a crucial mediating role in governing access to TK, and benefit-sharing frameworks since they have the ‘potential to mediate external interventions into local contexts, and articulate between local and extralocal social and political processes’.118 This is so because they are ‘decision-making levels designed to respond to issues regarding allocation, use and management of resources’.119 Additionally, reliance on traditional institutions (such as customary laws and practices) by communities in the development of community bio-cultural

112 ibid 236. 113 ibid 240. 114 Jeremy de Beer, Kun Fu and Sacha Wunsch-Vincent, ‘Innovation in the Informal Economy’, in Erica Kraemer-Mbula and Sacha Wunsch-Vincent (eds) The Informal Economy in Developing Nations. Hidden Engine of Innovation? (CUP 2016) 73. 115 Ken Chisa and Ruth Hoskins, ‘African Customary Law and the Protection of Indigenous Cultural Heritage: Challenges and Issues in the Digitization of Indigenous Knowledge in South Africa’ (2016) 15 AJIKS 1, 11; Brendan Tobin, ‘Now You See It, Now You Don’t. The Rise and Fall of Customary Law in the IGC’ in Daniel F. Robinson et al (eds) Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Routledge 2019) 192–193. 116 Interview with Wanjiku Karanja, Research Fellow, Center for Intellectual Property and Information Technology (CIPIT) (Nairobi, 28 June 2018). 117 Kamoto et al (nt. 98) 300. 118 ibid 294. 119 Okoth Ogendo (nt. 51) 108.

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protocols, the grant of Free Prior Informed Consent (FPIC), and in inventorying TK and sacred natural sites suggest that, as custodial institutions, they can play a role in determining who can access TK, what type of TK is relevant, how TK is to be gathered and stored, and under what terms and conditions.120 Using traditional governance institutions to regulate access to TK supports and conforms to the principle of self-determination121 by providing an equitable access and benefit sharing framework that is anchored on customary laws, and that abhors unregulated access to TK. Moreover, anchoring all benefit sharing agreements on the customary laws of the relevant community might limit the commodification of TK. This demonstrates that the IP and traditional governance institutions can collaborate to yield a more effective form of TK protection and bridge the current protection gap. The inclusion of the FPIC and disclosure of origin requirements in some African countries (South Africa, Namibia and Botswana) before granting IP rights, illustrates that such a collaboration is indeed possible. Traditional governance institutions are also essential in the protection of the territories of TK holders which are integral to TK due to the interconnectedness between TK, TK holders and nature. Using traditional governance institutions in the management of sacred sites underscores the principle of self-determination, which requires inter alia consultations with communities through their institutions before developments take place in their territories.122 Nyamweru, writing on the kaya forests in Kenya, notes that ‘the continued survival of the groves demonstrates the contribution of local management and indigenous knowledge systems to environmental conservation’,123 illustrating that indeed traditional management institutions have a role to play, not only in protecting the territories of TK holders, but also their TK. The recognition of TK holders’ territories as Indigenous and community conserved areas, national monuments, and as World Heritage Sites confirms that indeed traditional governance institutions have a huge role to play in TK protection. The IP regime is unable to protect the territorial rights of TK holders. Aspects of TK holders’ institutions such as traditional ceremonies, rituals, prayers and legends play a critical role in the protection of TK, especially those seeking to mitigate disasters such as drought, famine, disease or bad omens to the community.124 For instance, among the Meru people of Kenya, legends are used to pass on rules against cutting trees, fishing, hunting or cultivating in the sacred sites, thus ensuring that sacred natural sites are protected and preserved.125 120 Tobin (nt. 115) 204; Chisa and Hoskins, ‘African Customary Law’ (nt. 115) 4. 121 Interview with Michael Odhiambo, Executive Director, Resource Conflict Institute (RECONCILE) (Nakuru, 11 May 2018). 122 Interview with Simon Mitambo, General Coordinator of African Biodiversity Network (ABN) (Thika, 29 May 2018). 123 Celia Nyamweru, ‘Sacred Groves of Africa’ in Bron Taylor (ed) The Encyclopedia of Religion and Nature (Continuum 2005) 1451, 1455. 124 Celia Nyamweru, Sacred Groves and Environmental Conservation (St. Lawrence University 1998) 11. 125 Institute for Culture and Ecology (ICE), ‘Documentation of Traditional and Ecological Laws of Tharaka’ 14.

Traditional Knowledge Protection 271 Since TK is holistic, with cultural (traditional ceremonies), spiritual (where protection is not only physical but supernatural traditions and prayers are done to thwart bad omens and pray for good omens like rain and good health)126 and ecological/biological aspects (where there are rules on access to, use and control of a resource), TK protection measures must capture the Indigenous cosmology within which TK exists.127 Therefore, TK ought to be protected by TK holders’ institutions, which are equally holistic. Those institutions are able to offer a socio-cultural and spiritual context, that is essential in the ‘continued existence and development’ of TK.128 Traditional governance institutions can play a role in bridging the current TK protection gap created by prevailing approaches, that is, safeguarding and protection measures. As safeguarding measures seek to identify, document, transmit, revitalize and promote TK use to ensure its continued existence and viability, they risk placing TK unintentionally in the public domain, hence the need for protection in the legal sense.129 While protection measures may be useful in protecting certain aspects of TK, creating IP-like rights over TK raises numerous technical and ideological difficulties as mentioned above. The use of traditional institutions by communities to protect and assert their cultural, self-determination and resource rights, and in the grant of FPIC before documenting TK and developing bio-cultural protocols shows that traditional institutions are at the point of convergence when it comes to safeguarding and protection approaches and can be used to bridge the existing gap in TK protection. Moreover, TK holders who are the custodians of customary laws and knowledge can play a role in the revival and restoration of lost or destroyed ecosystems and food crops, which allows the continuous use, production and transmission of TK. Thus, they can be relied on in reviving or restoring lost TK. As custodial institutions, they can help reduce contestation over ‘ownership’ and management of resources and TK, between different actors. For instance, the Kenyan government recognizes the kaya elders as the custodians and managers of the kaya forests, hence there are no conflicts over management of the resources. Traditional institutions are also relied upon by communities for ‘information, guidance, help and support and gain most from developing social capital’.130 They can provide knowledge and capacity for implementing policy initiatives and, ‘in the presence of weak state capacity’, they may ‘fill in the void created by the limited penetration of national institutions’.131 Thus, they can fill the void created by the inadequacy, deficiency and unsuitability of the IP regime in protecting TK.

126 Celia Nyamweru, ‘Questioning the Dominant Narrative: ‘Traditions’, Conservation and Development of the Kaya forests of Coastal Kenya’ (forthcoming) 3. See also Albino Pereira de Jesus Jopela, ‘Traditional Custodianship: A Useful Framework for Heritage Management in Southern Africa?’ (2011) 13 CMAS 103, 108. 127 Chisa and Hoskins, ‘African Customary Law’ (nt. 115) 3. 128 ibid 3. 129 Andanda (nt. 14) 547. 130 Kamoto et al (nt. 98) 300. 131 Stelios Michalopoulos and Elias Papaioannou, ‘Pre-Colonial Ethnic Institutions and Contemporary African Development’ (2013) 81 Econometrica 113, 117.

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Role of Traditional Governance Institutions in Strengthening Intellectual Property Institutions

The popularity, resilience and legitimacy of TK holders’ institutions suggests that there is need to interrogate how they can be harnessed to promote the building of strong institutions in view of the failure by most African governments to provide critical goods and services to communities. As custodial institutions, TK holders’ institutions can be used to regulate access to and use of natural resources (including associated TK). Among the Mijikenda, the governance of the kaya forests is through customary rules that are enforced by elders using traditional sanctions to censure misuse of resources.132 The kaya elders ‘control access to resources such as medicinal plants, sacred kaya areas, and rare species; traditional knowledge and agricultural activities’ and ‘are the ones who allocate those resources to clans and individuals’.133 Indeed, the very existence of the kaya forests is attributed to the work of elders in conservation, and not gazettement as a forest reserve, national monument or listing as a World Heritage Site.134 The demarcation, surveying, and mapping of territories, gazettement as national monuments, and listing of the kaya forests, as World Heritage Sites are done with the assistance of elders and other community members.135 Moreover, social capital contributes to the strengthening of both the TK holders’ and the formal institutions involved in the collaboration. As communities begin to work together, bonding social capital is strengthened within the group, particularly in terms of trust between members, the development of group norms, roles, and processes, and the development of a sense of ‘can-do spirit’ within the group which contributes to a growing sense of collective efficacy.136 This explains why TK holders’ institutions promote cultural unity and identity. For instance, the kaya elders and forests are seen as a significant unifying factor for the Mijikenda people. Bridging social capital within TK holders’ institutions enhances collaborations between those institutions and other institutions. In Kenya, government agencies and civil society actors are relying on these institutions in their work of protecting and preserving TK. Evidently, collaborations between TK holders’ institutions and the IP frameworks can enrich the IP regime and address the inadequacy, deficiency and unsuitability of the IP regime in protecting TK. Effectively, they can mediate interactions between the IP system and TK holders, and thus tame the misappropriation and loss of TK and genetic resources. For instance, TK holders’ institutions can be used in granting FPIC and in developing bio-cultural protocols 132 Patrick A. Kafu and Genevieve N. Simwelo, ‘Forest Conservation in Kenya: Lessons from the African Traditional/Indigenous Education’ (2015) 5 DCS 140, 142. 133 Francis Kariuki, ‘Harnessing Traditional Knowledge Holders’ Institutions in Realising Sustainable Development Goals in Kenya’ (2021) 6 JCMSD 1, 43. 134 ibid 44. 135 ibid. 136 Elizabeth Hoffecker, ‘Local Innovation: What it is and Why it Matters for Developing Economies’ (MIT D-Lab 2018) Working Paper No 12 .

Traditional Knowledge Protection 273 to govern access to TK.137 Additionally, having FPIC and disclosure of origin as a criterion for patentability would benefit TK holders since their institutions could be involved in the decision-making processes and institutions under the IP regime and vice versa. This collaboration can bridge the TK protection gap as TK holders can withhold their FPIC so as to safeguard their rights, while the grant of IP rights over TK could also be withheld by relevant authorities, if there is a non-disclosure of origin or proof of FPIC is missing. This way the TK holders’ institutions will contribute to the strengthening of IP institutions. Similarly, TK holders’ institutions are used in determining political leadership and maintenance of law and order. The kaya elders have been described ‘as a socialpolitical epicentre of the Mijikenda people that is resorted to even by local politicians for blessings before venturing into politics’.138 It is commonplace for those vying for political positions to seek the endorsement of the kaya elders. Clearly, they can play a role in strengthening political institutions, and in holding elected leaders to account. As customary governance systems, TK holders’ institutions are being used in conflict resolution among the Mijikenda people. There are customary sanctions for infringement of customary rules such as payment of customary fines called (Kadzama). The kaya elders are the first port of call wherever there are disputes (including land, family and political) in the community.139 They therefore contribute to enhanced access to justice and strengthen institutions of justice. 6

Challenges in Using Traditional Governance Institutions in Traditional Knowledge Protection

Although traditional institutions can play a role in TK governance, there has been a tendency to suffocate and delegitimize them over the last century across most of Africa.140 This suffocation has been blamed on the disruption caused by the African colonial experience; the hegemony of the rigid post-independence State-based heritage policies and management systems; changes in the wider economic, social, and cultural circumstances under which traditional systems operate; specific historical developments such as past and present land reforms, migrations, tourism and more recently globalisation.141

137 138 139 140

Francis Kariuki (nt. 133) 45. ibid 45–46. ibid 46. Chidi Oguamanam, ‘Tiered or Differentiated Approach to Traditional Knowledge and Traditional Cultural Expressions: The Evolution of a Concept’ (CIGI 2018) CIGI Papers No 185 5. See also Jopela (nt. 126) 110. 141 Jopela (nt. 126) 110.

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However, Jopela maintains that while formal heritage management systems were being imposed on local communities, ‘traditional custodianship systems neither disappeared nor remained static’, rather ‘they shifted so as to remain relevant alongside the new models’.142 The effectiveness of traditional institutions in TK protection is also undermined by factors such as leadership wrangles, which create factions among elders, each claiming to be the legitimate elder; cultural erosion; loss of Indigenous territories to pave the way for developmental projects; and the influence of modern education and religions which has contributed to the loss of traditional beliefs and values. For example, kaya elders have lamented that they are despised, and live in constant threat of attack, being labelled witchdoctors and at times killed by the community. Some kayas in Kwale County (coastal part of Kenya) have since lost the traditional touch as a result of Islam in that there are no rules on shoes before getting to kayas (even in kaya Kinondo); traditional prayers are often altered to align them with Islamic religion; and the traditional Mijikenda clothing has been abandoned in favour of the kanzu (long white robe).143 However, there are efforts being undertaken by government and civil society actors to promote and reinforce traditional institutions due to their vital role in governance. 7

Conclusion and Way Forward

Although the role of customary law in protecting TK has been recognized in numerous studies,144 these have not addressed the question of how to implement and execute those laws in protecting TK. Traditional governance institutions are both an executive, legislative and adjudicatory arm under most customary governance systems, and can be used to enforce customary laws and ensure the effective protection of TK. Unlike other models that have been proposed, including TK commons, TK databases and registers, that seek to place TK into commons, a traditional governance framework offers a truly traditional commons and gives effect to customary law which is the normative framework governing the generation, use and transmission of TK. Recommendations are presented in the following sections. 7.1

Strengthening Traditional Governance Institutions in Traditional Knowledge Protection and Natural Resources Management

Since current efforts towards TK protection have largely ignored the fact that communities have their own institutions for protecting their knowledge,145 there is a

142 143 144 145

ibid 110–111. Outcome of the workshop organised by the author with kaya elders in Kilifi on 24 April 2018. Oguamanam (nt. 140); Chisa and Hoskins, ‘African Customary Law’ (nt. 115). George S. Shemdoe and Loy Mhando, ‘National Policies and Legal Frameworks Governing Traditional Knowledge and Effective Intellectual Property Systems in Southern and Eastern Africa: The Case of Traditional Healers in Tanzania’ (African Technology Policy Studies Network 2012) Working Paper Series No 64 8.

Traditional Knowledge Protection 275 need to recognize the existence and role of TK holders’ institutions, strengthen them, and rely on them in TK governance. This requires the legal recognition of the powers and functions of traditional authorities in the protection, conservation, management and use of TK and related resources. There is also a need to rely on traditional governance institutions and to engage TK custodians in the TK and IP law reform since such efforts have often been led by natural scientists and IP experts with a limited understanding and appreciation of the holistic nature of TK and the worldviews of TK holders.146 This will require the collaboration of the traditional institutions and IP frameworks. IP practitioners, policy makers and scholars should not assume that TK holders’ institutions are nonexistent amongst communities or that they play no role in TK governance, before conducting empirical research studies. Instead, they ought to realize that the proposed approach allows for an intercultural encounter where the IP and traditional institutions are able to engage, thus allowing TK holders to define for themselves their own power and status vis-à-vis others. Moreover, rather than frame the TK issue as a trade or IP issue only, the proposed collaborative framework expects the IGC process to pursue a multidisciplinary approach in view of the holistic nature of TK. Therefore, the process must draw from human rights and environmental law frameworks and any other discipline that helps to explain TK holders’ worldviews. 7.2

The Traditional Knowledge Protection Framework Must Be Holistic

The TK protection framework must be respectful of TK holders’ cosmovisions. A holistic framework ‘should not only focus on protecting rights to TK but also rights to associated bio-genetic resources, landscapes, cultural values and customary laws, all of which are vital for sustaining TK’.147 Such a framework must be anchored on traditional institutions as they are able to ensure protection to the cultural, ecological and self-determination rights of TK holders. Some of the components of the framework are the following. First, it must be anchored on customary laws for it to be appropriate in protecting the cultural rights of TK holders. Anchoring the protection framework on customary laws does not suggest that we do away with the IP regime but instead the chapter advocates for a collaborative arrangement between traditional institutions and the IP regime. Second, due to the holistic nature of TK, the framework must ensure ecological protection, and traditional institutions ought to be used in regulating access to, use and control of natural resources. Traditional governance institutions are not only successful in conservation, but also in restoring and reviving lost TK and ecosystems. Third, the framework must allow communities to assert their right to self-determination, as they are able to use their own institutions to exercise control

146 Paul Ongugo et al, ‘Protecting Traditional Health Knowledge in Kenya: The Role of Customary Laws and Practices’ (IIED 2012) 1. 147 Krystyna Swiderska et al, ‘Protecting Community Rights over Traditional Knowledge: Implications of Customary Laws and Practices’ (IIED 2006) .

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and determine who can access and use their resources. Reliance on traditional institutions in granting FPIC, developing community bio-cultural protocols, in conflict resolution, maintenance of law and order, and in the implementation of devolved structures in Kenya, demonstrates that they can play a role in securing TK holders right to self-determination. 7.3

Recognition of TK Holders as Custodians of Traditional Knowledge in Law and Policy

There is a need for IP laws and policies to be reviewed so as to recognize and reflect the fact that TK holders are custodians of TK, vested with responsibilities towards the knowledge, nature and past and future generations, on whose behalf they hold TK. This calls for a paradigm shift in the IP regime; so that aside from ownership, custodial rights can be a basis for granting or rejecting the grant of IP rights. Such recognition is important as it can help determine the TK, the legitimate beneficiaries, and curb unauthorized access and use of TK without the FPIC of the custodians of TK. Ultimately, this could lead to a reduction in applications for IP rights over TK. 7.4

Rethinking Conventional Natural Resources Management Frameworks

Conservation efforts have largely failed to integrate existing traditional institutions, and do not benefit from TK holders’ contribution to environmental governance. There is, therefore, a need to rethink and re-orient conventional management strategies, integrate TK and engage traditional institutions for the purposes of effective environmental governance. In addition, formal managers must be open to learning about TK and TK holders’ perspectives and recognize that TK is a source of insight that can ‘synergistically with science or on its own, enhance our understanding of the natural world’.148 7.5

Bridging the Gap Between Protection and Safeguarding Measures Using Traditional Governance Institutions

Owing to the challenges that traditional governance institutions are facing, they need to be used in collaboration with the IP regime for the effective protection of TK. A traditional governance framework offers a convergence point for protection and safeguarding measures, and if used in collaboration with the IP framework, it can be the basis for granting or denying IP rights as mentioned earlier. This collaboration would require TK custodians to be involved in decision-making processes and institutions under the IP regime and vice versa. Moreover, such collaboration means that both the applicants for IP rights and IP institutions will be forced to

148 Natalie Ban et al, ‘Incorporate Indigenous Perspectives for Impactful Research and Effective Management’ (2018) 2 NE&E 1680. See also Ongugo et al (nt. 146) 23.

Traditional Knowledge Protection 277 double-check prior art. Further, collaboration will ensure that TK holders get benefits from their TK since IP institutions and the applicants for IP rights will be dealing with legitimate TK holders. However, collaboration between IP and traditional governance frameworks requires the IP regimes to recognize the existence and role of those institutions in TK governance. The success of this collaboration will require political goodwill as effective protection of TK using traditional institutions will require States to respect, promote and protect collective rights to culture, property and self-determination, since where protection of those rights is weak, traditional governance institutions are likely to be less efficacious in governance.

15 Strengthening the Protection of Intangible Cultural Heritage in Development Projects The Role of Multilateral Development Banks Berenika Drazewska* and Kristin Hausler** 1

Introduction

Development projects have often put cultural heritage sites at risk of damage or even destruction, in particular those involving the construction of infrastructure such as dams. This was for example the case with the Aswan Dam, which led to an important campaign to salvage the sites in the Upper Nile Valley.1 More recently, attempts to halt the construction of the Ilisu Dam in Turkey have failed, leading to the flooding of the ancient city of Hasankeyf.2 While the protection of tangible cultural heritage can be a daunting challenge, arguably intangible cultural heritage (ICH) is even more at risk from development projects as it is more difficult to identify and protect. Globalization and social transformation processes feature as important threats to ICH in the Preamble of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and its Operational Directives.3 According to the 2003 UNESCO Convention, ICH includes ‘practices, representations, expressions, knowledge, skills . . . that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’.4 It is dynamic as it is transmitted from generation to generation and ‘constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’, providing them ‘with a sense of identity and continuity,

* Senior Research Fellow, Singapore Management University. ** Dorset Senior Fellow and Director of the Centre for International Law, British Institute of International and Comparative Law. 1 Fekri A. Hassan, ‘The Aswan High Dam and the International Rescue Campaign’ (2007) 24 AAR 73. 2 Berenika Drazewska, ‘Hasankeyf, the Ilisu Dam, and the Existence of “Common European Standards” on Cultural Heritage Protection’ (2018) 4 SA&CLR 89. 3 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention) Preamble, recital 3. See also UNESCO, ‘Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Heritage’ (2022) I.8.29. Last access to all links mentioned in this chapter: 12 December 2022. 4 2003 UNESCO Convention, Article 2. The 2003 UNESCO Convention has been ratified by 180 States. DOI: 10.4324/9781003357704-19

Intangible Cultural Heritage and Multilateral Development Banks 279 thus promoting respect for cultural diversity and human creativity’.5 Certain specific forms of ICH have been inscribed on the UNESCO List of Intangible Cultural Heritage in Need of Urgent Safeguarding as a result of developmentrelated pressures and risks. For instance, in Venezuela, the Mapoyo community’s oral tradition and its symbolic reference points within its ancestral territory have been added to this specific list due to threats from the mining industry, among others.6 In Brazil, the Yaokwa, the Enawene Nawe people’s worship ritual for the maintenance of social and cosmic order, also faces serious risks from mining, logging, urban settlement, and the construction of roads, waterways and dams.7 While ICH may come under threat because of the danger to tangible (material) elements (‘instruments, objects, artefacts and cultural spaces’) associated with it, the 2003 UNESCO Convention protects objects only ‘because they derive from a larger cultural practice, and not the other way around’; the focus therefore is on safeguarding the cultural processes behind these objects or sites.8 Yet, a tradition or practice may be rooted in a particular site, which means that for it to survive, the tangible element associated with it must also be preserved. This could be because the site is considered sacred or contains burial grounds linked with ongoing worship practices, or has for generations been used for traditional practices such as grazing or the collecting of herbal medicines, for example. Thus, alteration or destruction of such a site may irreversibly affect the practices themselves; in that sense, ICH may raise issues for institutions supporting infrastructure projects, including Multilateral Development Banks (MDBs). This chapter seeks to fill a knowledge gap pertaining to the impact of development projects on ICH and, in particular, on the role of MDBs in this regard. In order to identify practical issues, the chapter first adopts an empirical approach through a selection of projects in which the protection of ICH has been deemed to be unsatisfactory by the relevant Banks’ accountability mechanisms. It then provides a critical analysis by reviewing some of the key applicable policies adopted by the MDBs, and offers a gap analysis vis-à-vis the existing international safeguards for the protection of ICH. Then, a human rights lens is applied to the protection of ICH and the activities of the MDBs, in order to assess whether the international human rights framework could strengthen the protection of ICH with regard to development projects. This is in line with international human rights law, but also with the 2003 UNESCO Convention, which has adopted a people-centered approach, requiring the effective participation of local communities, groups (including relevant

5 6 7 8

ibid. UNESCO, ‘Mapoyo oral tradition and its symbolic reference points within their ancestral territory’ . UNESCO, ‘Yaokwa, the Enawene Nawe people’s ritual for the maintenance of social and cosmic order’ . Lucas Lixinski, Intangible Cultural Heritage in International Law (OUP 2013) 9.

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NGOs), and individuals in its implementation.9 Finally, the chapter concludes with recommendations to increase the safeguarding of ICH, which may in turn further support the realization of the UN Sustainable Development Goals (SDGs). 2

MDB-Supported Projects and the Threats to Intangible Cultural Heritage

This section presents four infrastructure construction projects: a rural water supply and sanitation project and three hydropower projects. All of these projects have raised challenges, including with regard to their impacts on ICH. They have even led to complaints to the accountability mechanisms set up by the relevant MDBs,10 which have subsequently ascertained shortcomings and/or breaches of the relevant MDB policies. 2.1

Rural Water Supply and Sanitation Project in India

The Rural Water Supply and Sanitation Project for Low Income States project, cofinanced by India and the World Bank Group’s International Development Association (IDA) and concluded in 2020, aimed at building water supply infrastructure in four low-income Indian States, including Jharkhand. The project led to the desecration of heritage sites located in a culturally significant area of Jharkhand, thus negatively affecting the cultural and spiritual practices that had been maintained by these communities for generations.11 The infrastructure was partially constructed on the Jaher (Santal) Sthal or Than – a sacred grove and cremation/burial grounds on a hilltop, believed to be inhabited by ancestral guardian spirits and deities known as bonga. As the location of various festivals and ceremonies held to placate the spirits,12 those sacred groves hold great spiritual importance for the local Santhal and Ho (Adivasi) Indigenous groups, and strict community rules prohibit their desecration or destruction. The hilltop affected by the project was also where the local Adivasi community had collected herbs for traditional medicine, as well as clay used for many purposes, including the painting of houses. The project infrastructure was equally built on another significant site, the Shaheed Sthal – a place of remembrance for the martyrs who gave their life for the independence of Jharkhand, and of community prayer. This site was not only destroyed but also

9 2003 UNESCO Convention, Articles 11(b) and 15. 10 Although these accountability mechanisms are referred to as ‘independent’, their independence is debated. While independent of the Banks’ management, the accountability mechanism is part of the broader MDB structure, and the Board may reject its findings. Susan Park, ‘Institutional Isomorphism and the Asian Development Bank’s Accountability Mechanism: Something Old, Something New; Something Borrowed, Something Blue?’ (2014) 27 TPR 217, 228 and 232. 11 Anirudha Nagar, ‘From Juukan to Jharkhand: Demanding Accountability for Desecration of Indigenous Cultural Heritage’ The Wire (22 October 2020) . 12 V.K. Kochar, ‘Village Deities of the Santal and Associated Rituals’ (1966) 61 Anthropos 241.

Intangible Cultural Heritage and Multilateral Development Banks 281 altered through the building of monuments which do not correspond to the beliefs of the communities.13 In 2018, both Adivasi Indigenous communities, neither of which had been adequately consulted with regard to the project, lodged complaints with the Inspection Panel (the accountability mechanism of the World Bank) through their traditional leaders. They alleged a lack of freely accessible information about the project in a language they could understand; a lack of culturally appropriate, prior, inclusive and meaningful consultations, including sidestepping the consent of their authoritative body, Gram Sabha;14 and, finally, a lack of consideration of the impact on the cultural resources of the Adivasi and on their environment, which had disrupted their way of life and customs. The World Bank’s Management acknowledged that the then applicable cultural resources policy had not been applied to the project;15 that a systematic assessment of physical cultural resources had not been conducted; and that there had been “weaknesses” with regard to consultation processes.16 In 2020, the Inspection Panel submitted its compliance report to the World Bank’s Board of Directors, which has yet (at the time of writing) to accept or reject its final findings, and release the Panel’s compliance report. As a next step, the Management will need to address any issues of non-compliance raised in the Panel’s compliance report.17 2.2

Hydropower Project in Chile

The Alto Maipo Hydroelectric Project, approved in 2013 and co-financed by the Inter-American Development Bank (IADB) and the International Finance Corporation (IFC), involved the construction of two hydroelectric power plants as well as access roads, bridges and transmission lines, all situated in the Maipo Valley in the Andes, near Santiago, Chile. According to the project’s documentation, it would have no significant impacts on cultural heritage as it would not be close to places or sites where manifestations of the culture or folklore of any community or human group are carried out, and because there were no religious ceremonies, pilgrimages, celebrations or fairs in the

13 Nagar (nt. 11). 14 A deliberative body including all the adults of a village, which in light of Indian law must be consulted in matters pertaining to the development of community lands, as well as the customs and cultural identity of the Adivasi. 15 World Bank, ‘Operational Manual. Operational Policies 4.11: Physical Cultural Resources’ (2006) (hereinafter: WB 2006 Operational Policies). 16 Inspection Panel, ‘Report and Recommendation on Requests for Inspection. India: Rural Water Supply and Sanitation Project for Low Income States (P132173)’ (2019) Report No 134474-IN 8–13. 17 Daniel Bradlow, ‘Multilateral Development Banks, Their Member States and Public Accountability: A Proposal’ (2019) 11 IJIEL 21.

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area. Yet, according to the 2003 UNESCO Convention, ICH may also involve practices and skills created and cultivated in response to the natural environment and in interaction with nature, which go beyond expressions of cultural creativity and folklore. The project had not taken into consideration all manifestations of ICH, including the traditional ways of life of the local muleteers (mule drivers, also known as arrieros), even though it affected their traditional paths and the higher mountain areas which they had for generations used for cattle farming and grazing, and for the organization of guided riding trips.18 Similar to transhumance,19 muleteering is an ancient practice involving the movement of herds into different altitudes according to the weather and season, intrinsically linked to the natural environment. In another mountainous region of Chile, a community of muleteers had received the Living Human Treasures (tesoros humanos vivos) recognition awarded by the Ministry of Culture, Arts and Heritage of Chile, as part of the UNESCO listing programme which preceded the one established by the 2003 UNESCO Convention. The affected communities, represented by two NGOs, lodged formal complaints to the accountability mechanisms of the IFC and the IADB, alleging non-compliance with the Banks’ respective policies on environmental and social impacts.20 The Independent Consultation and Investigation Mechanism (MICI) of the IADB found that the project breached the Bank’s policies in numerous aspects, inter alia through failing to consider the likely impacts on ICH (the activities of the muleteers who are part of the area’s cultural tradition) in the impact assessments, and to consult that stakeholder group.21 The MICI recommended that the IADB Board of Directors consider completing the impact assessment and other project documentation, establishing a meaningful consultation process, and introducing mitigation measures, i.e., communicating with the muleteers during the construction stage to provide information on the blocked roads and trails, as well as the blasting schedules.22 While the IFC is no longer involved in the project,23 the report of the IFC Office of the Compliance Advisor Ombudsman (CAO) also highlighted the importance of a comprehensive social and environmental impact assessment at the beginning of a project, noting in particular this project’s lack of consultation with affected communities, including the muleteers.24 18 MICI, ‘Compliance Review Report: Alto Maipo Hydroelectric Power Project’ (2020) MICI-BIDCH-2017–0115, 40, para 2.111. 19 Transhumance was registered on the Representative List in 2019 by Austria, Greece and Italy, but similar practices can be found elsewhere. UNESCO, ‘List of Intangible Cultural Heritage and Register of Good Safeguarding Practices’ https://ich.unesco.org/en/lists#2019 (hereinafter: UNESCO ICH Representative List). 20 The previous policies on physical cultural resources of the World Bank and IADB were applicable to cultural heritage. WB 2006 Operational Policies. See also IADB, ‘Environment and Safeguards Compliance Policy’ (2006) . 21 MICI (nt. 18) 45. 22 ibid v-vi. 23 The IFC had an active investment in the project between 2013–2018. 24 CAO, ‘Compliance Investigation Report: Alto Maipo HPP, Complaints 01 and 02’ (8 June 2021) 11.

Intangible Cultural Heritage and Multilateral Development Banks 283 2.3

Hydropower Project in Georgia

This project seeks the construction of the Nenskra Dam in the Upper Svaneti region of north-western Georgia, a region listed as UNESCO World Heritage because of its mountain scenery and medieval architecture preserved by long isolation from outside influences.25 Planned to be co-financed by the European Investment Bank (EIB), the European Bank for Reconstruction and Development (EBRD) and possibly also the Asian Development Bank (ADB),26 it has long raised concerns among the Indigenous Svan communities living near the proposed plant,27 as well as more widely across Georgia.28 Acting on behalf of the communities, two NGOs filed complaints to the relevant Banks’ accountability mechanisms, alleging that both the EIB and EBRD had wrongly excluded the Svans from Indigenous status for the purposes of the project and bypassed them during consultations.29 They also alleged that the project’s cultural heritage impact assessment failed to consider the potentially serious adverse impact on the distinct Svan culture, including their values, traditions and language, recognized by UNESCO as an endangered language.30 While language per se is not covered by the 2003 UNESCO Convention, it is protected insofar as it is a vehicle for the transmission of ICH.31 In fact, the Svans’ complex polyphonic singing, one of the expressions of the Georgian polyphonic singing inscribed on the UNESCO ICH Representative List,32 is considered distinctive partly due to the peculiarities of the Svan language.33 Additional studies requested by the EBRD in 2017 to supplement the impact assessments highlighted the presence of 174 ICH elements in the Upper Svaneti region, including the ancient musical instrument ‘Chuniri’, the woodcutting tradition, the production of Svan hats, making Khachapuri with millet, and dancing and singing, including the ‘Svan Zari funeral ritual’, a song that must be practiced outdoors. The document further acknowledged that polyphonic

25 World Heritage Committee, ‘Report from the 20th Session’ WHC-96/CONF.201/21 (10 March 1997) 65. 26 The EIB and the EBRD signed the loans in 2018; the ADB is considering co-financing the Project. 27 Zhenya Tsoy, ‘New Wave of Protests against the Nenskra Dam’ CEE Bankwatch Network (30 April 2018) . 28 OC Media, ‘Protesters Rally against Construction of Big Dams in Georgia’ (14 March 2018) . 29 In 2018, a Svan council meeting (Lalkhor) issued a statement denying its consent for the project and protesting against the destruction of its cultural heritage and the natural environment. Manana Kochladze, ‘The Never-Ending Saga of the Nenskra HPP’ CEE Bankwatch Network (17 September 2020) . 30 EBRD Project Complaint Mechanism, ‘Nenskra HPP Compliance Review Report’(2020) Case 2018/08 52, para 4.4.1. 31 2003 UNESCO Convention, Article 2.2. 32 UNESCO, ‘Georgian Polyphonic Singing’ . 33 Nana Mzhavanadze, ‘An Articulation Phenomenon in Svan Singing Repertoire’ (2015) .

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singing (including its most archaic, three-part variation), dances, and many rituals and ceremonies specific to Svaneti are important elements of the Svans’ heritage.34 In 2020, both the EIB and EBRD complaint mechanisms found that the Banks’ policies regarding Indigenous peoples’ criteria had been violated, in particular regarding consultation on matters pertaining to ICH, in addition to substantive standards concerning the environment and the protection of ICH. The EBRD’s Project Complaint Mechanism (PCM) asserted non-compliance with the 2014 policy on Indigenous Peoples (PR7) and the policy on cultural heritage (PR8) as the impact assessment only focused on the tangible heritage in the project’s area of influence; impacts on ICH were not considered at all.35 The project-specific recommendations for the EBRD included expanding the assessment of eligibility for the PR7 policy to include research, analysis and consultation towards ‘the identification of traditions and customary laws relevant for the consultation, as well as the identification of legitimate representative bodies for the Svan community’.36 It was also recommended that the impact assessment be expanded to fully identify potential impacts on the ICH in the project area. Finally, appropriate mitigation measures, introduced in consultation with project-affected people, were recommended.37 The EIB Complaints Mechanism equally found that impacts on ICH were not considered, and recommended further risk assessment and management.38 2.4

Hydropower Project in Uganda

This project, co-financed by the African Development Bank (AfDB), the EIB and the World Bank’s IFC and IDA, involved the construction of a dam on the Nile River and the infrastructure to connect it to the national power grid. The construction of the dam caused the flooding of the Bujagali Falls, a site central to the culture and spirituality of the ancient Busoga Kingdom and the home of Budhagaali, the most important spirit in the cosmology of the Basoga,39 a distinctive ethnic minority whose Indigenous status and rights are recognized by the Constitution of Uganda.40 NGOs had long warned of the threat to the links between the community and its environment, culture and spirituality posed by the dam.41

34 SLR Consulting France, ‘Nenskra Hydropower Project: Social Impact Assessment’ (2017) para 8.2.1. 35 EBRD PCM, ‘Nenskra Compliance Report’ (nt. 30) 30, para 4.1.4 and 54–56, paras 4.4.3–4.4.4. 36 ibid 65. 37 ibid 68. 38 EIB Complaints Mechanism, ‘Conclusions Report: Nenskra HPP’ (7 February 2020) Complaint SG/E/2018/32 25. 39 Terje Oestigaard, ‘Dammed Divinities: The Water Powers at Bujagali Falls, Uganda’ (2015) 62 Current African Issues 19. 40 Constitution of the Republic of Uganda 1995 as amended 2005, Schedule 3 (List of Uganda’s Indigenous communities as of 1 February 1926). 41 Fred C Oweyegha-Afunaduula and Isaac Afunaduula, ‘Bujagali as Ethnocide: Cultural and Spiritual Death of the Indigenous Community of Basoga, Uganda’ (2005) NAPE/SBC-CSR-SD-1/2005

Intangible Cultural Heritage and Multilateral Development Banks 285 At the start of the project, the National Association of Professional Environmentalists (NAPE), a NGO based in Uganda, lodged a complaint with the AfDB’s Independent Review Mechanism (IRM), alleging the project’s incompatibility with applicable policies in a number of respects.42 These included insufficient consideration of the cultural and spiritual significance of the Bujagali Falls;43 a lack of adequate consultations with the spiritual leaders of the Basoga; and a lack of adequate compensation for the Basoga for the loss of their spiritual site. The IRM ascertained non-compliance with the Bank’s policies in a number of areas, including a failure to account for the impact on cultural property in the early project documentation and to consult all relevant stakeholders, including the spiritual leaders. Having considered the case over a total of 12 years, the IRM stated in its final report that [the p]rotection of cultural heritage and sites of sentimental and spiritual value to the local community by large-scale operations such as the Bujagali Projects is complex and can only be mitigated if project sponsors, governments, and the donors find a platform and remain engaged in consultations and reconciliation processes with affected traditional leaders and communities.44 In 2020, the IRM published a separate document discussing the lessons on cultural heritage and spiritual issues learned from the Bujagali project, ‘in accordance with its mandate to generate knowledge products for institutional learning’.45 It emphasized the need to revise the sustainability safeguards of the AfDB to include the requirement to obtain the Free, Prior and Informed Consent (FPIC) of Indigenous People adversely impacted by AfDB-financed operations.46 Equally, for projects involving complex ancestral/spiritual and cultural and decision-making dynamics such as the Bujagali project, the IRM recommended conducting socioanthropological studies to understand those dynamics early on (as part of the

42 43 44

45 46

. See also International Rivers Network, ‘The World Bank’s Big Dam Legacy’ (2007) 6. Complaints linked to the Project have also been raised before the accountability mechanisms of the other participating MDBs. At that time the AfDB did not have its own policy on addressing vulnerable groups, but it relied on the WB 2006 Operational Policies on physical (tangible) cultural resources in dealing with cultural and spiritual impacts of the project. AfDB IRM, ‘Report on Closure of the Request and Monitoring by the Independent Review Mechanism (IRM) Bujagali Hydropower Project and Bujagali Interconnection Project – Uganda’ (2019) 12. AfDB IRM, ‘Bujagali Projects in Uganda: Lessons Learned on Cultural Heritage and Spiritual Issues’ (2020) 1. ibid 19.

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impact assessment procedures) in order to ensure that the consultations are truly meaningful in the given context.47 The four projects discussed demonstrate that ICH is at risk of damage or destruction as a result of development projects financially supported by MDBs in various regions of the world. The findings of the relevant Banks’ accountability mechanisms identified implementation gaps between the policies adopted by the Banks, and their practice. The next section considers the relevant MDB policies in order to assess whether the issues result solely from a lack of application of existing policies, or whether the current policies are insufficient to safeguard ICH. 3 The MDBs’ Policies Applicable to Intangible Cultural Heritage The MDBs analyzed in this chapter (the ADB,48 the AfDB,49 the Asian Infrastructure Investment Bank (AIIB),50 the World Bank,51 the EIB,52 the EBRD53 and the IADB54) have all adopted policies that seek to avoid or mitigate the adverse impacts of the projects they finance on cultural heritage. This section discusses the extent to which those policies address intangible forms of cultural heritage, focusing on the following three key issues: definitions of ICH (if at all present); the policies’ scope of applicability; and consultation processes.55 Not all of the policies analyzed require the recognition and protection of ICH in the relevant Bank’s operations; indeed, the policies of the AIIB and the ADB formally leave it outside of their scope of application. Nevertheless, the nearly identical definitions of ‘cultural resources’ (AIIB)56 and ‘physical cultural resources’ (ADB)57 also make reference to ‘natural features and landscapes that have . . . religious, aesthetic, or other cultural significance’, and thus their protection may

47 ibid 21. 48 ADB, ‘Safeguard Policy Statement’(2009) . 49 AfDB, ‘Integrated Safeguard System: Policy Statement and Operational Safeguards’ (2013) . 50 AIIB, ‘Environmental and Social Framework’ (2022) . 51 World Bank, ‘Environmental and Social Framework’ (2016) . 52 EIB, ‘Environmental and Social Standards’ (2022) . 53 EBRD, ‘Environmental and Social Policy’ (2019) . 54 IADB, ‘Environmental and Social Policy Framework’ (2020) . 55 For more details, Berenika Drazewska and Kristin Hausler ‘The Role of Multilateral Development Banks in the Protection of Intangible Cultural Heritage’ (2021) BIICL Working Paper . 56 AIIB (nt. 50) 56, para 50. 57 ADB (nt. 48) 39, nt. 13.

Intangible Cultural Heritage and Multilateral Development Banks 287 indirectly extend to the safeguarding of intangible cultural values associated with such features and landscapes, such as a sacred river or rock formation. However, this still means that those policies do not consider ICH as such unless linked to tangible sites, which is not consistent with the understanding of ICH under international law. In turn, the current policies of the World Bank, the AfDB, the EIB, the EBRD, and the IADB all expressly cover ICH. The IADB’s definition of ICH is the most limited in scope as it only includes ‘certain instances of intangible forms of culture that are proposed to be used for commercial purposes, such as cultural knowledge, innovations, and practices of communities embodying traditional lifestyles’, seemingly leaving any other ICH outside of its scope of application.58 The other Banks’ policies base their definitions of ICH, in part or in whole, on Article 2 of the 2003 UNESCO Convention. The World Bank policy repeats the 2003 UNESCO Convention’s definition nearly verbatim, omitting only its reference to cultural identity and continuity.59 The AfDB policy also adopts the definition enshrined in the 2003 UNESCO Convention,60 only failing to acknowledge the dynamic and ever-changing character of ICH; however, it does so with regard to cultural heritage more broadly, which is defined as ‘a group of resources inherited from the past that people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’.61 Similarly, the EBRD’s policy reiterates a part of the definition set forth in the 2003 UNESCO Convention but omits ‘the instruments, objects, artefacts and cultural space’ associated with that heritage (likely to nevertheless fall into the purview of the policy’s definition of ‘tangible cultural heritage’), without separately acknowledging the dynamic character of that heritage.62 However, like the AfDB, the EBRD policy defines cultural heritage more generally in a dynamic manner.63 Additionally, none of the definitions of ICH found in the MDBs’ policies references the requirement of compatibility with international human rights instruments present in the 2003 UNESCO Convention; only the EBRD expresses its commitment to uphold international human rights elsewhere in its policy.64 It is also worth noting that, although the EIB policy includes a limited definition of ICH based on examples (e.g. ‘language, visual art, music, performance, religion, beliefs and customary practices like hunting and gathering’),65 it refers more than once to the 2003 UNESCO Convention, which suggests that the elements of such heritage may after all be identified through the more detailed definition of ICH in the Convention. The EIB policy also states that the EIB supports ‘a precautionary

58 59 60 61 62 63 64 65

IADB (nt. 54) 93, para 3(iii). World Bank (nt. 51) 85–86, para 4. AfDB (nt. 49) 27, nt. 6. ibid. EBRD (nt. 53) 42 para 6. ibid. ibid 5, para 2.4. EIB (nt. 52) 37, para 2.

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approach to the management and sustainable use of cultural heritage in line with the Rio Declaration on Environment and Development’66 – which equally means that, in accordance with the Rio Declaration, the Bank should be expected to adopt a people-centered approach.67 While none of the policies’ definitions of ICH is entirely satisfactory, most of them are largely in line with international law, except for the policies of the AIIB and the ADB, which leave it outside of their respective scope entirely, and the IADB policy, which only covers it in a particularly restrictive manner. Another, and perhaps more problematic issue, is the applicability of some of those policies with regard to the safeguarding of ICH during a project. While the EIB and AfDB policies do not limit the protection of ICH to any particular circumstances or contexts (with the EIB policy even adding that its requirements ‘apply to cultural heritage regardless of whether or not it has been legally protected or previously disturbed’),68 there are significant restrictions in the applicability of the policies of the World Bank, the EBRD and the IADB where ICH is concerned. The World Bank and EBRD policies only apply to ICH insofar as a ‘physical component of a project will have a material impact on such cultural heritage or if a project intends to use such cultural heritage for commercial purposes’,69 without explaining what is meant by the ‘material impact’ that a project must have on such heritage. The IADB policy, as already mentioned, is only applicable where there are plans to use ICH for commercial purposes. However, at the same time that policy also covers ‘unique natural features or tangible objects that embody cultural values, such as sacred groves, rocks, lakes, and waterfalls’,70 which could in practice extend to the protection of intangible values without a commercial purpose; such an approach would be more consistent with the 2003 UNESCO Convention.71 Also with regard to the World Bank and the EBRD, the protection of certain natural elements covered by the definition of tangible heritage in their policies (i.e. ‘natural features and landscapes that have archaeological, paleontological, historical, architectural, religious, aesthetic, or other cultural significance’) may entail some degree of protection of the ICH associated with those elements. Such protection would be indirect and only due to links between the ICH and a tangible site protected, for example, because of its religious or cultural significance. In addition to widely differing scopes of application as far as the safeguarding of ICH is concerned, there are also disparities in the manner in which consultation processes are shaped in the policies of the MDBs. Where Indigenous heritage is

66 ibid para 1. 67 UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration) Principle 1. 68 EIB (nt. 52) 38 para 5. 69 World Bank (nt. 51) 86, para 7; EBRD (nt. 53) 42, para 8. 70 IADB (nt. 54) 93, para 3(ii) and (iii). 71 Note that Article 2 characterizes ICH as, inter alia, ‘constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’. 2003 UNESCO Convention, Article 2.

Intangible Cultural Heritage and Multilateral Development Banks 289 concerned, most policies tend to be more outcome-oriented and detailed, insofar as there is a stronger emphasis on the stakeholders’ consent compared to consultations as such. However, some differences between the policies, as well as discrepancies vis-à-vis international standards persist. Importantly, only the policies of the World Bank, the IADB, the EIB and EBRD refer to FPIC as such. The EIB emphasizes that FPIC is different from ‘broad community support’,72 and that the Bank requires ‘a clear endorsement or rejection by the Indigenous Peoples concerned of the proposed intervention’.73 The remaining policies that refer to FPIC use terms which are up for interpretation, such as ‘collective support’.74 By contrast, other MDBs’ policies substitute the requirement of FPIC for: ‘broad support’; ‘Free, Prior and Informed Consultation’ (‘FPICon’) – also premised on ‘broad support’; or, simply, ‘consent’ – without the requirement of being ‘free, prior and informed’.75 Some of the policies place additional limitations on the applicability of the abovementioned safeguards. In light of the AIIB policy, ‘FPICon’ is required where the project is expected to affect cultural heritage, but it appears not to be the case if it proposes its commercial development; in such cases, there is only a duty of information and benefit-sharing.76 As the commercial use of ICH carries a risk of distortion, or even trivialization of such heritage, communities must maintain control over it so as to ensure its authenticity and safeguarding,77 which can only be achieved through meaningful and ongoing engagement in FPIC processes. By contrast, the ADB policy’s requirement of ‘consent’ is demanded only where cultural resources, knowledge, natural resources of ceremonial or other uses are to be developed commercially, or in the case that Indigenous Peoples are to be displaced from their lands.78 Finally, only some policies specify the consequences for the project when the requirement to obtain the FPIC of Indigenous Peoples is not met, i.e., that the project cannot proceed, in whole or in part.79 While the MDBs’ policies generally provide for consent (or at least some broad form of support) where Indigenous Peoples are the stakeholders in the heritage concerned, this is not the case when stakeholders which do not have Indigenous status, such as local communities, are involved. In most of the analyzed policies, as far as cultural heritage is concerned, such communities can only expect to be consulted with a view to identifying that heritage, and, in some 72 73 74 75

76 77 78 79

EIB (nt. 52) 75, para 5. ibid 58, paras 31–32. World Bank (nt. 51) 80, para 26; IADB (nt. 54) 88, para 15; EBRD (nt. 53) 40, para 13. See, as appropriate, AfDB (nt. 49) 27; AIIB (nt. 50) 75, paras 15–17 (the AIIB policy only requires FPIC if the laws of the host State demand it, and if the Bank has determined that the requirement of FPIC as prescribed by these laws are consistent with those of FPICon as per the AIIB policy); ADB (nt. 48) 10, para 33. AIIB (nt. 50) 73, para 10. Francesco Francioni, ‘Art.2(1): Defining Intangible Cultural Heritage’ in Janet Blake and Lucas Lixinski (eds) The 2003 UNESCO Intangible Heritage Convention: A Commentary (OUP 2020) 55. ADB (nt. 48) 60, para 30. As observed above, the ADB policy does not refer to ICH as such. World Bank (nt. 51) 80, para 27; IADB (nt. 54) 12, para 3.19; ADB (nt. 48) 60, para 30; AIIB (nt. 50) 34, para 69.3 (the last two with regard to, as appropriate, ‘consent’ and ‘FPICon’ rather than FPIC).

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of the policies, regarding the risks that the project presents for that heritage, as well as the significance of that heritage to the community.80 Moreover, while the World Bank, the IADB, the AfDB and the EBRD refer to the need for all consultations themselves to be culturally appropriate (i.e. for ICH itself to be integrated into the consultation processes),81 the EIB, the AIIB and the ADB only mention this requirement in regard to consultations involving Indigenous Peoples.82 Additionally, only some of the Banks require (albeit to a varying extent) that impact assessments cover the extent to which a project may affect the cultural life of Indigenous or local communities, even though this is a human rights matter.83 Nevertheless, it is commendable that the EIB and the EBRD policies extend the requirement of consent for the project’s use of the cultural resources and traditional knowledge beyond Indigenous Peoples and onto ‘local communities embodying traditional lifestyles’84 – a reflection of an increasing tendency in international law to treat them as equally covered by FPIC, at least as a matter of good practice.85 4

Cultural Human Rights and MDBs

This section discusses whether a human rights-based approach could fill the protection and implementation gaps relevant to ICH as identified in the preceding sections, in particular with regard to the inclusion of ICH in the Banks’ policies, and the interpretation and implementation of those policies. In order to do so, it first affirms the place of ICH within the international human rights framework, before considering the possible duty bearers, which of course include States, but potentially also the MDBs.

80 World Bank (nt. 51) 87, para 14; IADB (nt. 54) 94, para 9; EBRD (nt. 53) 42, para 9; EIB (nt. 52) 39, para 10; ADB (nt. 48) 30, para 4. See also AfDB, ‘Integrated Safeguards System Guidance Materials: Guidance on Safeguard Issues’ (2015) 30. The policies which address ICH (World Bank, IADB, AfDB, EBRD, and EIB) whether tangible or intangible heritage is concerned, usually do not differentiate when it comes to the duty to consult. 81 World Bank (nt. 51) 87, nt. 3 and 98, para 7; IADB (nt. 54) 106, para 7; AfDB, ‘Guidance’ (nt. 80) 6; EBRD (nt. 53) 48, para 20. 82 EIB (nt. 52) 58, para 27(c); AIIB (nt. 50) 74, para 12; ADB (nt. 48) para 63.C(iii). 83 EIB (nt. 52) 38–39, para 8 (with regard to communities); EBRD (nt. 53) 39, para 3 and corresponding nt. 92 and 40, para 9 (with regard to Indigenous Peoples); World Bank (nt. 51) 79, para 20 and corresponding nt. 11 (with regard to Indigenous Peoples). 84 EBRD (nt. 53) 43, para 16; EIB (nt. 52) 41, para 22. 85 Convention on Biological Diversity (Rio de Janeiro 5 June 1992) entered into force 29 December 1993 1760 UNTS 79 (hereinafter: CBD) Article 8(j); CBD Secretariat, ‘Akwé:Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments’ (2004) . See also FAO, ‘Free Prior and Informed Consent: An Indigenous Peoples’ Right and a Good Practice for Local Communities – Manual for Project Practitioners’ (2016) .

Intangible Cultural Heritage and Multilateral Development Banks 291 4.1

Intangible Cultural Heritage within the International Human Rights Framework

International human rights law includes the right to participate in cultural life.86 According to the Committee on Economic, Social and Cultural Rights (CESCR), the obligation to respect this right ‘includes the adoption of specific measures aimed at achieving respect for the right of everyone, individually or in association with others or within a community or group . . . to have access to their own cultural and linguistic heritage and to that of others’.87 As a consequence, preservation of that heritage, in all its forms and thus including ICH,88 is a matter of human rights law. Effective participation (including of local and source communities) in decision-making processes relating to cultural heritage is a necessary element of the rights of access and enjoyment of that heritage.89 The duty to consult has developed alongside Indigenous rights. According to the Special Rapporteur on the Rights of Indigenous Peoples, in order to be effective, consultation must be: (1) conducted in good faith, prior to the taking of relevant action and through Indigenous Peoples’ representative institutions; (2) continuous; (3) comprehensive; and (4) culturally appropriate and respectful, including of the Indigenous Peoples’ cultures and time frames.90 Consultation is the cornerstone of the ILO 1989 Indigenous and Tribal Peoples Convention No 169,91 as well as the UN Declaration on the Rights of Indigenous Peoples, which mentions the duty of prior consultation and cooperation with the Indigenous Peoples concerned in order to obtain the FPIC, inter alia with regard to ‘the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources’.92 This duty to consult has been enforced by regional human rights mechanisms against the primary duty-bearer (i.e. the State).93

86 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) Article 15. 87 CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/ GC/21 (21 December 2009) para 49(d). 88 ibid para 70. 89 UN HRC, ‘Report of the Independent Expert in the Field of Cultural Rights’ UN Doc A/HRC/17/38 (21 March 2011) paras 58, 60, 79. 90 UN HRC, ‘Rights of Indigenous Peoples. Report of the Special Rapporteur on the Rights of Indigenous Peoples’ UN Doc A/HRC/45/34 (18 June 2020) paras 52–57. With regard to the requirement of cultural appropriateness of consultations, see also Case of the Kichwa Indigenous People of Sarayaku v Ecuador (Judgment) IACtHR Series C No 245 (27 June 2012) para 217. 91 Convention (No 169) Concerning Indigenous Peoples in Independent Countries (Geneva 27 June 1989) entered into force 5 September 1991 1650 UNTS 383, Articles 6, 15.2 and 17.2. It should be noted that that treaty has not had many ratifications to date. 92 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) Articles 19 and 32.2. 93 Kichwa Indigenous People Case (nt. 90) paras 137 and 300. See also Kristin Hausler, ‘Cultural Rights in the Inter-American Human Rights System’ in Andrzej Jakubowski (ed) Cultural Rights as

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The realization of human rights is primarily the responsibility of States. States Parties to human right treaties that include the right to take part in cultural life must respect, protect and fulfil the right to access and enjoy cultural heritage, including ICH, with regard to all persons under their jurisdiction.94 Therefore, the State where a development project is conducted (the host State) must continue to ensure the realization of its cultural human rights obligations with regard to all those under its jurisdiction, including those who may be affected by the project. According to the UN Special Rapporteur in the Field of Cultural Rights, States have a general ‘duty not to destroy, damage or alter cultural heritage, at least not without the free, prior and informed consent of concerned communities’.95 When an international law obligation is breached, a State to which the action or omission that caused the breach is attributable can be held responsible. State attribution is not only possible when the breach was committed by an agent or organ of the State, but also when the breach was committed by a non-State actor, at least in specific circumstances.96 In addition, a State may also be held responsible if it failed in its duty of due diligence. Thus the host State may be held responsible for the breaches committed on its territory, even when the actions of the development actor such as an MDB may not be attributable to it. The CESCR also stated that ‘[i]n negotiations with international financial institutions and in concluding bilateral agreements, States parties should ensure that the enjoyment of the right [to participate in cultural life] is not impaired’97 and, as observed earlier, this right encompasses the safeguarding of ICH. Beyond the responsibility of the host State, the question is whether other States can be held responsible because of their involvement in an MDB financing a

94

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Collective Rights: An International Law Perspective (Brill 2016) 243. In the African human rights context, see, e.g., Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) AfCHPR Comm. 276/2003. International Covenant on Economic, Social and Cultural Rights (New York 16 December 1966) entered into force on 3 January 1976 993 UNTS 3 (hereinafter: ICESCR) Article 15.1; International Covenant on Civil and Political Rights (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171 (hereinafter: ICCPR) Article 27. Note that 171 States are party to ICESCR, which states that ‘The States Parties recognize the right of everyone (a) to take part in cultural life’, and that 173 States are party to the ICCPR, which states that ‘persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’. UN HRC (nt. 89) paras 80(b), 80(c) and 80(e). States can be held responsible for the actions of a non-State actor (NSA) if: the NSA exercised governmental authority; the NSA acted under perceived control of the State; the State acknowledged and adopted the conduct of the NSA; the State is complicit in the activity of the NSA; or the NSA has become the State. ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentary’, in YILC (2001) Vol. II, part 2 (hereinafter: the ILC Draft Articles on State Responsibility) Chapters II and IV. CESCR (nt. 87) para 59.

Intangible Cultural Heritage and Multilateral Development Banks 293 project in another State. As the Executive Directors of MDBs represent not only the MDBs themselves, but also the States that have appointed them,98 they must vote in line with the human rights obligations binding upon those States.99 Member States keep legislative oversight over their contribution, including the human rights consequences of their activities.100 While the Directors maintain some autonomy, they qualify as organs within the meaning of Article 4 of the ILC Draft Articles on State Responsibility, and the exercise of voting rights is consequently viewed as an act of State,101 potentially capable of incurring State responsibility. At the same time, responsibility for breaches of human rights obligations beyond the territorial jurisdiction of a State usually requires that the State in question exercised power or effective control over the relevant persons or territory. It has been argued, however, that the extraterritorial jurisdictional link should be expanded for contexts involving economic control,102 i.e., specifically to ensure the protection of economic, social and cultural rights.103 As Article 2.1 ICESCR does not have a jurisdiction clause, more lenient tests could be applied in this regard, such as one based on reasonableness.104 With particular regard to MDBs, it has been argued that ‘individuals affected by the operations of an international financial institution may fall under the (extraterritorial) jurisdiction of their member States, depending on the power of the latter to steer the organisation’s performance’.105 According to the 2011 Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights, adopted by international law experts, As a member of an international organisation, the State remains responsible for its own conduct in relation to its human rights obligations within its territory and extraterritorially. A State that transfers competences to, or

98 Willem van Genugten, ‘The World Bank Group, the IMF and Human Rights: About Direct Obligations and the Attribution of Unlawful Conduct’ in Wouter Vandenhole (ed) Challenging Territoriality in Human Rights Law: Building Blocks for a Plural and Diverse Duty-Bearer Regime (Routledge 2015) 58. 99 Leon V. Schettler, Socializing Development: Transnational Social Movement Advocacy and the Human Rights Accountability of Multilateral Development Banks (Transcript 2020) 43. 100 Gamze E. Türkelli, ‘The Best of Both Worlds or the Worst of Both Worlds? Multilateral Development Banks, Immunities and Accountability to Rights-Holders’ (2020) 12 HJRL 251, 264. See also van Genugten (nt. 98) 58–59 (discussing relevant US legislation). 101 Ana S. Barros, Governance as Responsibility: Member States as Human Rights Protectors in International Financial Institutions (CUP 2019) 112–113. 102 See however the suggestion of a novel standard of ‘effective economic control’ for international financial institutions (such as MDBs) by Smita Narula, ‘International Financial Institutions, Transnational Corporations and Duties of States’ in Malcolm Langford et al (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (CUP 2013) 125. 103 ibid 124–125. See also Barros (nt. 101) 151. 104 Cedric Ryngaert, ‘Jurisdiction: Towards a Reasonableness Test’, in Malcolm Langford et al (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (CUP 2013) 192–211. 105 Barros (nt. 101) 155 and nt. 904. See also Narula (nt. 102) 128.

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participates in, an international organisation must take all reasonable steps to ensure that the relevant organisation acts consistently with the international human rights obligations of that State.106 According to the UN Independent Expert on Foreign Debt, All States, whether acting individually or collectively (including through international and regional organizations of which they are members), have the obligations to respect, protect and fulfil human rights. They should ensure that any and all of their activities concerning their lending and borrowing decisions, those of international or national public or private institutions to which they belong or in which they have an interest . . . do not derogate from these obligations.107 According to the UN Special Representative on the issue of human rights and transnational corporations and other business enterprises, States, when acting as members of multilateral institutions that deal with business-related issues, should: (a) Seek to ensure that those institutions neither restrain the ability of their member States to meet their duty to protect nor hinder business enterprises from respecting human rights; (b) Encourage those institutions, within their respective mandates and capacities, to promote business respect for human rights and, where requested, to help States meet their duty to protect against human rights abuse by business enterprises, including through technical assistance, capacity-building and awarenessraising; (c) Draw on these Guiding Principles to promote shared understanding and advance international cooperation in the management of business and human rights challenges.108 The last point evokes the duty of cooperation under international law. Indeed, the duty to cooperate, both as an emerging principle of international law and as a duty under human rights law rooted in the UN Charter and Article 2.1 of the 106 ‘Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights’ (2011) (hereinafter: the Maastricht Principles) Principle 15. 107 UN HRC, ‘Guiding Principles on Foreign Debt and Human Rights. Report of the Independent Expert’ UN Doc A/HRC/20/23 (10 April 2011) (hereinafter: Guiding Principles on Foreign Debt) 11, para 6. 108 UN HRC, ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework’ UN Doc A/HRC/17/31 (21 March 2011) Principle 10 and accompanying commentary. Although the Principles may only apply directly to those MDBs which lend to the private sector such as the IFC due to their ‘business’ orientation, they may apply indirectly to all MDBs because their operations may involve both States and private companies.

Intangible Cultural Heritage and Multilateral Development Banks 295 ICESCR, additionally supports the expansive view of cultural human rights jurisdiction as transcending State boundaries.109 4.3

The Application of Human Rights Obligations to MDBs

While States are clearly bound by their obligations with regard to ICH stemming from their treaty or customary international law obligations, including when participating in the activities of the MDBs, do these obligations extend to MDBs themselves and, if so, could they be held directly responsible in the case of cultural human rights violations related to a project financed by them?110 MDBs do not have express human rights mandates, their main purpose being to foster economic growth in less developed countries. While their Member States are bound by their human rights’ treaty obligations, MDBs are not directly bound by these treaties as they are not directly party to them. However, as international organizations (IOs) arising out of multilateral treaties (their charters, or articles of agreement), MDBs are subjects of international law and international legal persons,111 meaning that they may assume rights and obligations under international law.112 While it is problematic to assume any ‘automatic’ transfer of the members’ treaty obligations under human rights law to an IO without its express consent,113 two ways have been identified in which human rights could be indirectly applicable to IOs’ activities: (1) the already-mentioned duty to cooperate under human rights law, which would require IOs not to interfere with the human rights obligations of their Member States;114 and (2) a ‘harmonious’ interpretation of MDBs’ charters in accordance

109 Kristin Hausler, ‘Cultural Heritage within the European Union’s External Relations: More than a Policy Objective?’, in Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini (eds) Cultural Heritage in the European Union: A Critical Inquiry into Law and Policy (Brill 2019) 388– 389. See also Barros (nt. 101) 153; Narula (nt. 102) 128. 110 Given their international legal personalities, MDBs could bear responsibility for breaches according to secondary rules. ILC, ‘Draft Articles on the Responsibility of International Organizations’, in YILC (2011) Vol II, part II (hereinafter: DARIO). See also Daniel D. Bradlow and Andria N. Fourie, ‘The Multilateral Development Banks and the Management of the Human Rights Impacts of their Operations’, in Surya Deva and David Birchall (eds) Research Handbook on Human Rights and Business (EE 2020) 317. Note that the DARIO have been the object of criticism. See International Law Discussion Group, ‘Legal Responsibility of International Organisations in International Law’ (2011) . 111 Bradlow and Fourie (nt. 110) 317; Türkelli (nt. 100) 254–255. See also Leonardo A Crippa, ‘Multilateral Development Banks and the Human Right Responsibility’ (2010) 25 AUILR 531, 543. 112 In the words of the ICJ (speaking about the United Nations), ‘the Organization is an international person . . . it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’. Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports 174, 179. 113 Gudrun M Zagel, ‘International Organisations and Human Rights: The Role of the UN Covenants in Overcoming the Accountability Gap’ (2018) 36 NJHR 74, 77. 114 ibid 84–89.

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with relevant international human rights obligations, in line with Article 31.3(c) of the Vienna Convention on the Law of Treaties to clarify the meaning of these charters.115 Additionally, it has been suggested that MDBs could be held directly responsible in case of violations of, at the minimum, the obligation to respect human rights: according to the UN Special Rapporteur on foreign debt, ‘International financial organizations and private corporations have an obligation to respect international human rights. This implies a duty to refrain from formulating, adopting, funding and implementing policies and programmes which directly or indirectly contravene the enjoyment of human rights’.116 MDBs can also be directly bound by some classes of human rights, including ius cogens obligations,117 as well as by some human rights obligations representing customary international law.118 The CESCR has also called upon the World Bank and the IMF ‘to pay enhanced attention in their activities to respect for economic, social and cultural rights, including through encouraging explicit recognition of these rights . . . and facilitating the development of appropriate remedies for responding to violations’ of those rights.119 It would be incongruous for the World Bank to encourage the recognition of rights it itself did not recognize. Finally, it should be observed that some MDBs have expressly stated their commitment to respecting human rights; including, as in the case of the EBRD, in the preamble of their charters (where it may arguably be read as an element of their object and purpose),120 or within the sustainability policies, as in the case of the World Bank.121 While there is an ongoing debate about whether the policies of the MDBs have any legal effects, it has been argued that they ‘operate as an example of international law-making by international

115 ibid 81–84. 116 Guiding Principles on Foreign Debt, 12.9. 117 DARIO, Articles 41 and 42 (discussing ‘serious breaches’ of an obligation arising under peremptory norm of general international law). As stated by the ILC, ‘[i]t is not inconceivable . . . that an international organization commits an aggression or infringes an obligation under a peremptory norm of general international law relating to the protection of human rights’, ibid 80. According to the ILA, ‘[h]uman rights obligations, which are increasingly becoming an expression of the common constitutional traditions of States, can become binding upon IO-s in different ways: through the terms of their constituent instruments; as customary international law; or as general principles of law or if an IO is authorized to become a party to a human rights treaty. The consistent practice of IO-s points to a recognition of this. Moreover, certain human rights obligations may have attained the status of peremptory norms’. ILA, ‘Final Report. Accountability of International Organizations’ (2004) 22. 118 See, e.g., van Genugten (nt. 98) 52. 119 CESCR, ‘Report on the 18th and 19th Sessions’ UN Doc E/1999/22 (1999) para 515.7. 120 The Preamble of the EBRD founding charter refers to ‘the fundamental principles of multiparty democracy, the rule of law, respect for human rights and market economics’. Agreement Establishing the European Bank for Reconstruction and Development (Paris 29 May 1990) entered into force 28 March 1991 1646 UNTS 97, Preamble, para 1. 121 World Bank (nt. 51) 2 (‘Through the projects it finances, and in a manner consistent with its Articles of Agreement, the World Bank seeks to avoid adverse impacts and will continue to support its member countries as they strive to progressively achieve their human rights commitments’).

Intangible Cultural Heritage and Multilateral Development Banks 297 institutions’,122 or even that they are not merely rules for the MDBs themselves, but have a broader impact on the international normative process.123 4.4

Cultural Human Rights, Sustainable Development and MDBs

MDBs may also be deemed to have moral responsibilities that arise from soft law instruments such as the SDGs, which enshrine the principles set out in the Rio Declaration and connecting human rights and sustainability.124 Given the various and multifaceted links between human rights and development, MDBs must engage more deeply with human rights, including cultural rights. The extent of this engagement has long been debated, with the World Bank, for example, raising the controversial argument that any engagement with human rights on its part is made impossible by the prohibition of interference in the political affairs of its members contained in the 1945 Articles of Agreement of the International Bank for Reconstruction and Development.125 However, the SDGs cannot be attained without the fulfilment of human rights, as is clear from the people-centred vision of development reflected in the 2030 UN Agenda.126 Furthermore, the SDGs, which the MDBs have committed to help realize, flesh out a vision of sustainable development which directly supports the protection of cultural heritage. Target 11.4 expressly recognizes the need to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’ as an instrument for the realization of SDG 11 which foresees making cities and human settlements inclusive, safe, resilient and sustainable. According to UNESCO, the connections between cultural heritage and sustainable development reach even further, with culture having an important role to play in the implementation of at least nine other SDGs.127 Protection of cultural heritage, including ICH, is also relevant to several of the so-called Rio Principles proclaimed at the 1992 UN Conference on Environment and Development, including Principle 4 (principle of integration); Principle 3 (inter-generational principle); Principle 10 (right to consultation and to take part in decision-making processes); Principle 15 (precautionary approach), Principle 17 (impact assessment), Principle 22 (participation of Indigenous Peoples and other communities) and last but not least, Principle 25 (peace and development).128

122 Bradlow and Fourie (nt. 110) 320. 123 Benedict Kingsbury, ‘Operational Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples’ in Guy S Goodwin-Gill and Stefan Talmon (eds) The Reality of International Law: Essays in Honour of Ian Brownlie (OUP 1999) 323. 124 Bradlow and Fourie (nt. 110) 318. 125 (Washington 27 December 1945) entered into force 27 December 1945 2 UNTS 134, Article IV Section 10. The purpose of this stipulation (which predates the rise of international human rights) was to ensure that the financing decisions made by the Bank would only be based on economic considerations. Most other MDBs have similar provisions in their founding charters. 126 UNGA, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) paras 10, 18 and 19. 127 Jyoti Hosagrahar, ‘Culture: at the Heart of SDGs’ [2017] UNESCO Courier 2, 12. 128 Rio Declaration, Principles 3, 4, 10, 15, 17, 22 and 25.

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Therefore, in addition to being possibly held accountable directly or indirectly for cultural human rights violations, the commitment of MDBs to the SDGs (and the Rio Principles) adds a moral obligation with regard to their protection of cultural heritage, including ICH. Considering the MDBs’ oft-expressed commitment to the SDGs, there is yet another reason for multilateral development to ensure the safeguarding of ICH: the link between ICH and the combat against climate change (SDG 13). Parties to the Paris Agreement acknowledge that adaptation action should be based on, as appropriate, ‘traditional knowledge, knowledge of indigenous peoples and local knowledge systems with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate’.129 The Special Rapporteur in the Field of Cultural Rights also makes clear that ICH, such as traditional knowledge and traditional cultural expressions, are “climate assets” which can help the understanding of climate impacts and inform adaptation and mitigation strategies.130 Finally, if, as suggested by Amartya Sen, poverty is better understood as the deprivation of the capability to enjoy freedom rather than lowness of income,131 the quest for its eradication (which is at the heart of the MDBs’ mandates) must go hand in hand with socio-economic rights and preservation of heritage understood as ways of life.132 5

Conclusions

There are cases in every corner of the globe that demonstrate the common problems faced by development projects where ICH is concerned, highlighting that adequate treatment of ICH remains a challenge for development actors such as MDBs. Such cases yield lessons learned which in turn can support the strengthening of the protection of ICH in future development projects supported by MDBs. For example, one key shortcoming which emerged across all the discussed cases related to stakeholder consultation; improvement of the MDBs’ track record must start with enhancing the participation of stakeholders in all activities and decisionmaking concerning their ICH. In order to abide by international standards and avoid violating international law, a good understanding of what ICH consists of and how it may be tied to a particular site or object is necessary for those involved in the development of infrastructure projects. The policies of MDBs also present shortcomings as not all clearly refer to ICH and, among those that do, there are discrepancies in terms of definition and scope 129 Paris Agreement to the United Nations Framework Convention on Climate Change (Paris 12 December 2015) entered into force 4 November 2016 3156 UNTS, Article 7.5. See also Kristin Hausler, ‘The EU Approach to Cultural Heritage in Conflict and Crisis: An Elephant in the Room?’ (2021) 7 SA&CLR 193, 198–200. 130 UNGA, ‘Field of Cultural Rights. Report of the Special Rapporteur in the Field of Cultural Rights, Karima Bennoune’ UN Doc A/75/298 (10 August 2020) paras 67–68. 131 Amartya Sen, Development as Freedom (OUP 2001) 87. 132 ibid 241 (‘lost traditions may be greatly missed. The demise of old ways of living can cause anguish, and a deep sense of loss’).

Intangible Cultural Heritage and Multilateral Development Banks 299 of application compared to international standards. Where communities lacking Indigenous status are concerned, the policies also generally foresee a lower degree of their involvement in participatory processes, such as consultation, compared to Indigenous Peoples. In addition, not every policy refers to the need for consultations to be culturally appropriate, i.e., to reflect the community’s ICH as integrated into these processes. Furthermore, despite FPIC being the generally established standard concerning Indigenous Peoples, it is not required by every MDB policy. Further, less than half of the analysed policies specify to what extent the ICH may be affected by a project, so that it does not threaten the community’s cultural survival. The limited outlook of the MDBs’ policies as far as ICH is concerned is also inconsistent with the international legal obligations assumed by the Member States of these MDBs, including the duty to realize the human right to participate in cultural life, as well as their commitments stemming from the 2003 UNESCO Convention. In addition, MDBs themselves may be directly bound by certain human rights, as well as by the duty to at least respect all human rights, i.e., not to interfere in their enjoyment. Adopting a human rights (or people-centred) approach with regard to the treatment of all matters and processes related to ICH would allow the MDBs to better align their policy and practice with international standards and to overcome the gaps left by the uneven treatment of ICH in their policies. Firstly, this translates into interpreting their policies using a human rights lens in order to bridge some of the gaps in terms of definitions and applicability of existing MDB policies. This would, for example, mean extending the protection afforded to tangible cultural heritage onto intangible heritage elements linked to them that would not normally be covered by the policy. Secondly, it could involve strengthening the policies themselves in further review processes, including expanding their scope and coverage of ICH and requiring the integration of ICH into all consultation processes to ensure their cultural appropriateness. More broadly, the gap between the standards that pertain to Indigenous and non-Indigenous communities should be bridged with regard to the protection of their ICH. MDB policies should ensure that financed projects include all stakeholders in any decision-making that may impact their ICH. Furthermore, FPIC should always be sought when ICH is to be affected by the project, as it offers a stronger safeguard for communities than the variants of consultation processes as delineated in the policies. Last but not least, both the 2003 UNESCO Convention and the UNESCO Cultural Diversity Convention make it clear that both ICH and cultural diversity (which is intrinsically liked to ICH) are primary drivers of sustainable development.133 A stronger commitment, through policy and practice, to upholding cultural rights and safeguarding ICH is therefore bound to support the MDBs in fulfilling their mandate to improve the economic conditions of developing nations and to support the achievement of the SDGs.

133 2003 UNESCO Convention, Preamble, recital 2. See also Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311, Preamble, recital 3.

16 Some Remarks on Child and Forced Marriages and Traditional Practices Harmful to Women’s Health Their Possible Implications for Sustainable Development Francesca Trombetta Panigadi* 1

Introduction

As is generally recognized, cultural practices that are clearly in conflict with international human rights norms cannot be justified as cultural rights. Their possible conflict with human rights is to be assessed on a case-by-case basis. However, certain specific practices are considered harmful by various legal instruments and UN treaty bodies. In the following pages the attention will be focused on some specific practices which are attributed to customs and traditions, such as child and forced marriages and female genital mutilation (FGM), which are barriers to the full exercise by the affected persons of the right to take part in and enjoy a cultural and social life and which violate the core of human rights values. After having examined the legal basis on which these negative and harmful practices are condemned, this chapter provides a critical analysis on the not yet coordinated or comprehensive enough approaches which have been developed and implemented during the last few decades. The chapter concludes with some remarks on the 2030 Agenda for Sustainable Development,1 which brings innovation to the strategy, considering as it does all its goals and targets indivisible, interdependent and interrelated, balancing the three dimensions of sustainable development: the economic, social and environmental ones. These goals and targets also seek to realize the human rights of all to achieve gender equality and the empowerment of all women and girls. Gender equality is not only a fundamental human right, but it is also a necessary basis for a peaceful, prosperous and sustainable world.

* Associate Professor of Private International Law, Department of Law, Politics and International Studies (Department of Excellence 2023–2027), University of Parma (Italy). 1 UNGA, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda).

DOI: 10.4324/9781003357704-20

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Child and Forced Marriages: The Universal Dimension

According to the UN High Commissioner for Human Rights (HCHR), “child marriage” is any marriage where at least one of the parties is under 18 years of age.2 Forced marriage is a marriage in which one and/or both parties have not personally expressed their full and free consent to the union. Accordingly, child marriage is in itself considered a form of forced marriage. Child and forced marriage are human rights violations and harmful practices that disproportionately affect women and girls globally, preventing them from living their lives free from all forms of violence. According to recent statistics,3 child and forced and early marriages are widespread across the world, including Europe. They concern mostly, but not only, minors of the female sex. The practice is particularly widespread in the least developed countries and in those affected by armed conflicts and humanitarian settings. Child and forced marriage threaten the lives and futures of girls and women around the world, disrupting their education, making them more vulnerable to violence, discrimination and abuse, and preventing their full participation in economic, political and social spheres. Child marriage is also often accompanied by early and frequent pregnancy and childbirth, resulting in higher-than-average maternal morbidity and mortality rates. International human rights instruments started to pay attention to this phenomenon from 1948 with the Universal Declaration of Human Rights, which declares the right of individuals to freely decide whether, when and who marry (Articles 16.1 and 16.2).4 In the same way, the International Covenant on Civil and Political Rights (Articles 23.2 and 23.3),5 as well as the International Covenant on Economic, Social and Cultural Rights (Article 10.1),6 state that no marriage shall be entered into without the free and full consent of the intending spouses. Some limited protection is also provided in treaties dealing with the related offences of enslavement and human trafficking: women and girls in situations of child and forced marriage ‘may experience conditions inside a marriage which meet “international legal definitions of slavery and slavery-like practices”, including servile

2 Child marriage is often used interchangeably with early marriage: the latter ‘can also refer to marriages where both spouses are 18 or older but other factors make them unready to consent to marriage, such as their level of physical, emotional, sexual and psychosocial development, or a lack of information regarding the person’s life options’. UN HRC, ‘Preventing and Eliminating Child, Early and Forced Marriage. Report of the Office of the United Nations High Commissioner for Human Rights’ UN Doc A/HRC/26/22 (2 April 2014) (hereinafter: the HCHR Report) 5. 3 UNODC, ‘Global Report on Trafficking in Persons’ (2022) 31–32. Last access to all links mentioned in this chapter: 15 March 2023. 4 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) (hereinafter: UDHR). 5 (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171. 6 (New York, 16 December 1966) entered into force 3 January 1976 993 UNTS 3.

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marriage, sexual slavery, child servitude, child trafficking and forced labour’.7 The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery requires States to establish ‘the minimum ages for marriages’, ensure ‘the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority’ and encourage ‘the registration of marriages’,8 in order to prevent the practice of giving women and girls in marriage in exchange for payment.9 It was only in April 2014, however, that the HCHR dedicated its HCHR Report to child, early and forced marriage.10 The report shows poverty and insecurity as the root causes of this practice. Although the proportion of child marriage has generally decreased over the last 30 years, the practice remains common in rural areas and among the poorest communities; it is also strongly associated with girls who have received little or no formal education. Moreover, in many contexts 7 HCHR Report, para 21. 8 (New York 7 September 1956) entered into force 30 April 1957 226 UNTS 3, Article 2. 9 See also Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the UN Convention against Transnational Organized Crime (New York 15 November 2000) entered into force 25 December 2003 2237 UNTS 319 (hereinafter: Palermo Protocol); Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw 16 May 2005) entered into force 1 February 2005 CETS No 197 (hereinafter: COE Convention). Both instruments do not make any explicit reference to forced marriage, but this practice certainly falls within the broad scope of the definition of ‘trafficking in persons’. See Palermo Protocol, Article 3; COE Convention, Article 4. See also Chiara Ragni, ‘Comment on Article 37 of the Istanbul Convention’, in Sara De Vido and Micaela Frulli (eds) The Istanbul Convention. A Commentary (EE, forthcoming); Nerina Boschiero, ‘Giustizia e riparazione per le vittime delle contemporanee forme di schiavitù. Una valutazione alla luce del diritto internazionale consuetudinario, del diritto internazionale privato europeo e dell’Agenda delle Nazioni Unite 2030’ (2021) 2 SCPC 1, 11; Patrizia De Cesari, ‘La schiavitù contemporanea e l’ordinamento internazionale’ in Antonello Calore and Patrizia De Cesari (eds) Schiavi: Presente e passato (Giappichelli 2021) 31; Angelica Bonfanti, ‘Matrimoni forzati, infantili e precoci e tutela dei diritti umani in Europa: considerazioni di diritto internazionale privato’ (2020) 2 GenIUS 35, 36 ff. 10 See also: UN HRC, ‘Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed’ UN Doc A/HRC/14/36 (22 March 2010) paras 34–35 (where the Independent Expert rightly stresses that ‘not all cultural practices can be considered as protected in international rights law’ and that ‘cultural rights may be subjected to limitation in certain circumstances’, taking as an example the need to achieve the elimination of prejudices and practices which are based on the idea of the inferiority of one sex or stereotyped roles for men and women). UNGA, ‘Cultural Rights. Report of the Special Rapporteur in the Field of Cultural Rights’ UN Doc A/67/287 (10 August 2012) para 25 (where Farida Shaheed again underlined the right of women to have access to, participate in and contribute to all aspect of cultural life, stressing that participation covers not only the right of an individual to act freely and to manifest one’s own cultural practices, but also the right not to participate in specific traditions, customs and practices, particularly those that infringe on human rights and dignity). See also, more recently, UNGA, ‘Development and Cultural Rights: The Principles’ UN Doc A/77/290 (15 August 2022) para 79. Here, the Special Rapporteur in the field of cultural life, Alexandra Xanthaki, emphasized the importance of the cultural sector in sustainable development, underlying that the right of everyone to take part in cultural life includes the obligation to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on one’s way of life and cultural rights.

Some Remarks on Child and Forced Marriages 303 (for example in Nepal) this is still an accepted practice (social pressure, culture and because ‘it is normal, everyone does it’),11 and it is often the way to restore family honour in cases of sexual violence or when seeking to hide sexual orientation. The HCHR Report also looks at existing measures and strategies to prevent and eliminate this practice, with a particular focus on challenges, achievements, best practices and implementation gaps. It calls on all States to undertake legislative measures to establish a minimum age of marriage of 18 years, stating that child marriage could not be justified on traditional, religious, cultural or economic grounds. The report also recommends that all States enact laws which impose criminal penalties in cases where a person forces someone to marry persons below the age of 18; strengthen national coordination among government bodies, civil society organizations and UN agencies in order to accelerate change, and also to provide support to women and girls who are affected or at risk; launch national campaigns in migrant centres, domestic violence services and child support agencies with the involvement of civil society organizations, including women’s group, religious and community leaders, and other relevant stakeholders, in order to raise awareness and sensitization on the illegality and harmful effects of child, early and forced marriage.12 In July 2015, the UN Human Rights Council (UN HRC) adopted its first substantive resolution recognizing child and forced marriage as a human rights violation.13 In this resolution, the UN HRC requested that the HCHR organize an expert workshop to review and discuss the impact of existing strategies and initiatives to address child, early and forced marriage. The reports which followed provided conclusions and recommendations towards ensuring sustained and effective efforts to eliminate this practice, further analysing the progress and achievements made towards its elimination. It also stressed with concern that the incidence and risk of child, early and forced marriage is highly exacerbated in humanitarian settings. This is due to various factors, including poverty, insecurity, gender inequality, increased risks of sexual and gender-based violence, and lack of access to education, among others.14 In July 2019, the UN HRC adopted a new resolution, expressing concern on prevailing impunity and lack of accountability, calling for the adoption of comprehensive awareness-raising campaigns to challenge cultural attitudes legitimizing early marriage and to introduce mechanisms to register all marriages, especially in rural, remote and Indigenous areas. It also noted the ‘integrated and indivisible nature of the 2030 Agenda and the range of goals, targets and indicators relevant to preventing, responding to and eliminating child, early and forced marriage, 11 HCHR Report 8. 12 ibid 7 ff. 13 UN HRC, ‘Resolution 29/8 of 2 July 2015. Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage’ UN Doc A/HRC/RES/29/8 (22 July 2015). 14 UN HRC, ‘Expert Workshop on the Impact of Existing Strategies and Initiatives to Address Child, Early and Force Marriage. Report of the High Commissioner for Human Rights’ UN Doc A/ HRC/35/5 (24 March 2017).

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including target 5.3 of the Sustainable Development Goals’.15 The resolution further requested that the HCHR organize two regional workshops on the matter. The outcome of these workshops was reflected in a report on this same topic presented to the UN HRC in 2022.16 In July 2020, the UN Secretary-General submitted to UNGA a new report on child, early and forced marriage,17 which consisted of an overview of all progress made towards ending this practice and supporting already married girls and women affected by it. It provides promising experiences with holistic programmes aimed at tackling the issue in cross and multidisciplinary manners with additional research, new comprehensive action plans and multisectoral strategies, which include measures to promote access to education, sexual and reproductive health information and services, economic opportunities and the participation of girls and women in decision-making process within their communities. The Convention on the Elimination of All Forms of Discrimination against Women granted further protection to children and women.18 Article 16.1(b) ensures that women have ‘the same right freely to choose a spouse and to enter into marriage only with their free and full consent’. Under Article 16.2, ‘[t]he betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory’. The implementation of CEDAW is monitored by the Committee on the Elimination of Discrimination against Women, which (through the UN ECOSOC) reports annually to the UNGA on its activities and makes suggestions and general recommendations based on the examination of reports and information received from States parties (Article 21). For our purposes, very important to note is the 1994 General Recommendation No 21 on equality in marriage and family relations, which well underlines that a woman’s right to choose a spouse and enter freely into marriage is central to their 15 UN HRC, ‘Resolution 41/8 of 11 July 2019. Consequences of Child, Early and Forced Marriage’ UN Doc A/HRC/RES/41/8 (19 July 2019). 16 UN HRC, ‘Report of the Human Rights Council on its Fiftieth Session’ UN Doc A/HRC/50/2 (30 August 2022). See also UN HRC, ‘Resolution 50/7 of 7 July 2022. Mandate of the Special Rapporteur on Violence against Women and girls, its Causes and Consequences’ UN Doc A/HRC/RES/50/7 18 July 2022); UN HRC, ‘Resolution 50/10 of 7 July 2022. Mandate of the Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity’ UN Doc A/HRC/RES/50/10 (15 July 2022); UN HRC, ‘Resolution 50/16 of 8 July 2022. Elimination of Female Genital Mutilation’ UN Doc A/HRC/RES/50/16 (15 July 2022). 17 UNGA, ‘Issue of child, early and forced marriage. Report of the Secretary-General’ UN Doc A/75/262 (28 July 2020). 18 (New York 18 December 1979) entered into force 3 September 1981 1249 UNTS 14 (hereinafter: CEDAW). CEDAW is the Convention which has received the most success in the field of the protection of women, at least because, as of 30 January 2023, it has been ratified from 191 Member States. The literature on CEDAW is copious. See, among others, Marsha A. Freeman, Christine Chinkin and Beate Rudolf (eds) The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (OUP 2012); Maria Clara Maffei, ‘La condizione della donna tra protezione e divieto di discriminazione’, in Laura Pineschi (ed) La tutela internazionale dei diritti umani. Norme, garanzie e prassi (2nd ed, Giuffrè 2016) 185.

Some Remarks on Child and Forced Marriages 305 lives and to their dignity and equality as a human being.19 Examining the States parties’ reports, the Recommendation discloses that, while national constitutions and laws comply with the CEDAW, custom, tradition and failure to enforce these laws in reality will still contravene it. There are countries which, on the basis of custom, religious beliefs or the ethnic origins of particular groups of people, permit forced marriages. Other countries allow a woman’s marriage to be arranged for payment and, in others, women’s poverty forces them to marry foreign nationals for financial security.20 General Recommendation No 21 well emphasizes that the responsibilities that women have to bear, in particular in terms of raising children, affect their right of access to education, employment and other activities related to personal development and also affect their physical and mental health. Coercive practices have serious consequences for women, such as forced pregnancies, abortions or sterilization. It is also very interesting to note that, in its General Recommendation No 21, the CEDAW Committee stresses that: There is general agreement that where there are freely available appropriate measures for the voluntary regulation of fertility, the health, development and well-being of all members of the family improves. Moreover, such services improve the general quality of life and health of the population, and the voluntary regulation of population growth helps preserve the environment and achieve sustainable economic and social development.21 Moreover, in the 2018 General Recommendation No 37 on the gender-related dimensions of disaster risk reduction in the context of climate change, the CEDAW Committee highlighted that early and forced marriage is more likely to occur during and following disasters. The Committee therefore recommended that training on early and forced marriage be made available to all personnel involved in disaster response activities and that mechanisms be established, within local and regional disaster management plans, to prevent, monitor and address the practice.22 In addition, other UN human rights bodies have provided further guidance in relation to this deplorable practice. In 2019, the Committee on the Rights of the Child, in its general comment on children’s rights in the child justice system, acknowledged that, when under the control of non-State armed group, including terrorist groups, children may become victims of multiple forms of violations, including child marriage.23

19 CEDAW Committee, ‘General Recommendation No 21. Equality in Marriage and Family Relations’ (UN Doc A/47/38 (1994). 20 ibid, Comment to Article 16.1(a) and (b), para 16. 21 ibid, Comment to Article 16.1(e), para 23. 22 CEDAW Committee, ‘General Recommendation No 37 (2018) on the Gender-Related Dimensions of Disaster Risk Reduction in the context of Climate Change’ UN Doc CEDAW/C/GC/37 (7 February 2018) paras 5, 57. 23 CRC, ‘General Comment No 24 (2019) on Children’s Rights in the Child Justice System’ UN Doc CRC/C/GC/24 (18 September 2019) para 98.

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It is also important to mention the UN Population Fund (UNFPA)-UNICEF Global Programme to Accelerate Action to End Child Marriage, which in 2016 launched a global programme to tackle child marriage in 12 of the most highprevalence countries, promoting the rights of girls to avert marriage and pregnancy and to enable them to achieve their aspirations through education and alternative means. This programme empowers girls to direct their own futures and strengthens the services that permit them to guarantee their access to education and to the labour market (and participation in the economic and social life of their communities). It also works to achieve results for girls by building the capacities of governments and NGOs to take harmonized action and increase accountability, bringing together the sectors of education, child protection, communication for development, health, including sexual and reproductive health.24 Lastly, it is crucial to stress that forced marriage is not expressly included among the crimes under the jurisdiction of international criminal tribunals. However, considering the gravity and widespread extent of the practice in Sierra Leone and in Cambodia, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) have made an important contribution to the definition and the classification of this practice as a crime against humanity and have uncovered significant historical evidence on the pervasiveness of this phenomenon. This is not the place to go deeper into it, but it is worth pointing out that the jurisprudence of these tribunals, over the years, has made a significant contribution to the definition of this criminal offence, which encompasses two kinds of harm: first, the harm caused by non-consensual conferral of the status of marriage on the victim and the resulting personal damage; and, second, the physical and psychological harms associated with the rape, forced pregnancy, forced labour and other duties associated with being a wife.25 The International Criminal Court (ICC) does not expressly include forced marriage as a crime within its jurisdiction.26 However, in the pronouncement on the confirmation of charges against a leader of the Lord’s Resistance Army in Uganda, Dominic Ongwen, the Court stated that the victims of forced marriage suffer separate and additional harm of those of the crime of sexual slavery, or other crimes under the Statute. Indeed, forced 24 UNFPA, ‘UNFPA-UNICEF Global Programme to End Child Marriage’ . 25 Prosecutor of the Special Court v Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (Appeal Judgment) SCSL-2004–16A (22 February 2008) paras 697, 710; Prosecutor v Nuon Chea and Khieu Samphan (Judgment) Case No 002/19–09–2007/ECCC/TC (16 November 2018) para 40. For a detailed analysis, Ragni (nt. 9) para 2. See also Micaela Frulli, ‘Advancing International Criminal Law: The Special Court of Sierra Leone Recognizes Forced Marriages as a ‘New’ Crime Against Humanity’ (2008) 6 JICI 1033; Neha Jain, ‘Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution’ (2008) 6 JICI 1013. 26 Antonia Mulvey, ‘Using International Criminal Law to Curb Discriminatory Practices Against Females’, in Indira Rosenthal, Valerie Oosterveld, and Susana Sacouto (eds) Gender and International Criminal Law (OUP 2022) 265 ff.

Some Remarks on Child and Forced Marriages 307 marriage . . . violates the independently recognized basic right to consensually marry and establish a family.27 Five years later, in the Trial judgment, the Chamber affirmed that: The central element, and underlying act of forced marriage is the imposition of this status on the victim, i.e., the imposition, regardless of the will of the victim, of duties that are associated with marriage – including in terms of exclusivity of the (forced) conjugal union imposed on the victim – as well as the consequent social stigma . . . Accordingly, the harm suffered from forced marriage can consist of being ostracized from the community, mental trauma, the serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose his or her spouse.28 3

Child and Forced Marriages: The Regional Dimension

It is worth underlining that in Europe, in 2005, the Parliamentary Assembly of the Council of Europe called upon Member States to adapt their domestic legislation so as to fix at or raise to 18 years the minimum statutory age of marriage for women and men; to refrain from recognizing forced and child marriages contracted abroad (except where recognition would be in the victims’ best interests with regard to the effects of the marriage); and to facilitate the annulment of forced marriages and possibly automatically annul such marriages.29 Moreover, in 2018, the same body adopted a new resolution on forced marriage in Europe, which urges Member States to include the fight against forced marriage in their national policies and practices, and to create specific bodies to address the issue and to support the initiatives of NGOs.30 In particular, the Assembly considers it essential for Member States: to step up their efforts to prevent and combat forced marriages and put an end to the violence and violation of rights that they entail. These efforts must include all those concerned, such as the communities in which forced marriages are practised, grassroots organisations, social and education services, the police, the justice system and health-care professionals. Awarenessraising and education campaigns must involve both women and men in the communities concerned and sever the link between these harmful practices and gender stereotypes, and culture and traditions, including the concept of so-called ‘honour’, which help ensure that they continue.31 27 The Prosecutor v Dominic Ongwen (Decision on the Confirmation of Charges) ICC-02/04–01/15 (23 March 2016) paras 91 ff. 28 The Prosecutor v Dominic Ongwen (Trial Judgment) ICC-02/02/04–01/15–1762 (4 February 2021) paras 2748–2749. 29 COE Parliamentary Assembly, ‘Forced Marriages and Child Marriages’ Resolution 1468(2005) (5 October 2005). 30 COE Parliamentary Assembly, ‘Forced Marriage in Europe’ Resolution 2233(2018) (28 June 2018). 31 ibid para 6.

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With regard to international law commitments, the Parliamentary Assembly calls on Member States of the Council of Europe to ratify and fully implement the relevant Council of Europe conventions, in particular the 2011 Convention on Preventing and Combating Violence against Women and Domestic Violence.32 The Istanbul Convention classifies forced marriage as a form of violence against women and, in Article 37, places upon States an obligation to criminalize forced marriage as an autonomous offence. It should also be stressed that, for the first time, the notion of “forced marriage” includes not only ‘the intentional forcing a person to enter into a marriage’ but also the conduct of ‘luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage’. The term “forcing” ‘refers to physical and psychological force where coercion or duress is employed. The offence is complete when a marriage is concluded to which at least one party has – due to above circumstances – not voluntary consented to’.33 Accordingly, the provision emphasizes the coercion as the distinctive element of this offence with respect to other practices, such as arranged marriage or sham marriage (i.e. marriages of convenience). The civil consequences of forced marriage are expressed in Article 32, which requires States parties to take ‘the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim’. It is worth underlining that the criminalization of behaviours that correspond to one population’s tradition and customs may be considered, in some cases, at odds with cultural rights. In this regard, Article 42 requires States Parties to ensure that in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called “honour” shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.34

32 (Istanbul 11 May 2011) entered into force 1 August 2014 CETS No 210 (hereinafter: Istanbul Convention). As of 30 January 2023, it has been ratified by 37 Member States of the Council of Europe. In the extensive literature, see De Vido and Frulli (nt. 9). See also Johanna Niemi, Lourdes Peroni, Vladislava Stoyanova (eds) International Law and Violence against Women. Europe and the Istanbul Convention (Routledge 2020); Sara De Vido, Donne, violenza e diritto internazionale. La Convenzione di Istanbul del Consiglio d’Europa del 2011 (Mimesis 2016). 33 COE, ‘Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence’ CETS No 210 (11 May 2011) 34. Arranged marriage may, therefore, fall outside this definition, provided that spouses are left free to withdraw their consent or to change their mind without suffering any form of infringement of their personal dignity. Ragni (nt. 9) para 3. 34 The Istanbul Convention further requires States to establish as an offence aiding, abetting or attempting to commit a forced marriage (Article 41), to ‘take the necessary legislative or other measures to establish jurisdiction over’ the offence (Article 44), to ‘ensure that investigations into or prosecution of [forced marriages] shall not be wholly dependent upon a report or complaint filed by a victim if the offence was committed in whole or in part on its territory, and that the proceedings may continue

Some Remarks on Child and Forced Marriages 309 Still in the European context, the EU Parliament has adopted several resolutions. Resolution “Towards an EU External Strategy against Early and Forced Marriages – Next Steps” appropriately recognizes that child, early and forced marriages are a serious violation of human rights;35 in particular, the infringement of women’s rights, including the rights to equality, autonomy and bodily integrity, access to education and freedom from exploitation and discrimination are recognized as a problem that exists not only in third countries, but might also occur in some Member States. The same resolution stresses that eliminating these practices is one of the priorities for the EU’s external action in the field of promoting women’s rights and human rights; it also points out that child, early and forced marriages have an extremely negative impact on the physical and mental health and personal development of the individuals concerned and on the children born from these marriages, and, as a result, on society as a whole. The resolution also underlines that child marriage is a form of forced marriage, since children inherently lack the ability to give their full, free and informed consent to their marriage or its timing. Moreover, the resolution remarks that these marriages must be condemned and cannot be justified on any cultural or religious grounds. In addition, child, early and forced marriages increase the risk of gender-based violence and are often at the origin of domestic and intimate partner violence and sexual, physical, psychological, emotional and financial abuse and other practices harmful to girls and women, such as FGM and so-called “honour crimes”. The number of child, early and forced marriages increases significantly in situations of instability, armed conflict, natural and humanitarian disasters, migration crises, during which medical and psychological care or access to education, as well as opportunities to make a livelihood, are often lacking and social networks and routines are disrupted. Moreover, the resolution underlines the importance of tackling the multiple causes of child, early and forced marriages, including harmful traditions, endemic poverty, conflicts, customs, consequences of natural disasters, stereotypes, a lack of regard for gender equality and women’s and girls’ rights, health and wellbeing, the lack of appropriate educational opportunities and weak legal and policy responses, with special attention to be given to children from disadvantaged communities. In that regard, the resolution calls for the EU and its Member States to work together with the relevant UN bodies and other partners to draw attention to the issue of child, early and forced marriage; and to meet the objectives of the 2030 Agenda to combat harmful practices, such as FGM, more effectively and to hold those responsible to account. It also supports increased funding from the EU and its Member States via development aid mechanisms which promote gender equality even if the victim withdraws her or his statement or complaint’ (Article 55). This provision is particularly relevant with regard to forced marriages, because the victims do not usually report their case to the authorities or even to associations because of fear or devotion (or obedience) towards their family. 35 ‘Towards an EU External Strategy against Early and Forced Marriages. European Parliament Resolution of 4 July 2018 (2017/2275(INI)’ [2020] OJ C118/57. See also ‘European Parliament Resolution of 4 October 2017 on Ending Child Marriage (2017/2663(RSP))’ P8 TA(2017)0379.

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and education, in order to improve access to education for girls and women and strengthen opportunities for them to participate in community development and in economic and political leadership, with a view to addressing the causes of child, early and forced marriages. At the regional level, it is also worth mentioning an important review of the African Union campaign to end child marriage in Africa (2014–2018) which led to the development of a new strategy for the period 2019–2023; the campaign is based on involving African leaders to adopt effective strategies and advanced laws directed to ending child marriage.36 4

Female Genital Mutilation

FGM refers to ‘all procedures involving partial or total removal of the female external genitalia or other injury to the female genital organs for non-medical reasons’.37 FGM is a violation of girls’ and women’s human rights. While the exact number of girls and women worldwide who have undergone FGM remains unknown, at least 200 million girls and women have been cut in 30 countries with representative data on prevalence.38 However, the majority of girls and women in most countries with available data think FGM should end.39 There has also been an overall decline in the prevalence of the practice over the last three decades, but not all countries have made progress and the pace of decline has been uneven.40 Available data from large-scale representative surveys show that the practice of FGM is highly concentrated in a swath of countries from the Atlantic coast to the Horn of Africa, in areas of the Middle East, such as Iraq and Yemen and in some countries in Asia, like Indonesia, with wide variations in prevalence. The practice is almost universal in Djibouti, Guinea and Somalia, with levels at around 90%. However, FGM is a human rights issue that affects girls and women worldwide.

36 UNICEF, ‘Review of the African Union Campaign to End Child Marriage 2014–2018’ . 37 The World Health Organization (WHO) classified FGM into four broad categories in 1995 and again in 2007, from partial or total removal of the clitoris and/or the prepuce, to all other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterization. WHO, ‘Fact Sheet: Female Genital Mutilation’ (31 January 2023) . 38 UNICEF, ‘Female Genital Mutilation (FGM) Statistics’ . 39 Girls’ and women’s attitudes about FGM vary widely across countries. The highest levels of support can be found in Egypt, Guinea, Mali, Sierra Leone, Somalia and The Gambia, where more than half of the female population thinks the practice should continue. However, in most countries in Africa and the Middle East with representative data on attitudes, the majority of girls and women think it should end. UNICEF (nt. 38). 40 In the 30 countries with nationally representative prevalence data, around one in three girls aged 15 to 19 today have undergone the practice versus one in two in the late-1980s. However, not all countries have made progress and the decrease of decline has been uneven. Fast decline among girls aged 15 to 19 has occurred across countries with varying levels of FGM prevalence including Burkina Faso, Egypt, Kenya, Liberia, and Togo. UNICEF (nt. 38).

Some Remarks on Child and Forced Marriages 311 Evidence suggests that FGM exists in places including Colombia, India, Malaysia, Oman, Saudi Arabia and the United Arab Emirates, with large variations in terms of the type performed, circumstances surrounding the practice and size of the affected population groups. The practice is also found in Europe, in Australia and North America which, for the last several decades, have been destinations for migrants from countries where the practice still occurs.41 FGM has no known health benefits. On the contrary, it is known to be harmful in many ways. First and foremost, it is painful and traumatic. The removal of or damage to healthy, normal genital tissue interferes with the natural functioning of the body and causes several immediate and long-term health consequences.42 Communities that practice FGM report a variety of social and religious reasons for continuing with it. Seen from a human rights perspective, the practice reflects deep-rooted inequality between the sexes and constitutes an extreme form of discrimination against women. FGM is nearly always carried out on minors and is therefore a violation of the rights of the child. The practice also violates the rights to health, security and physical integrity of the person, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death.43 In every society in which it is practised, FGM is a manifestation of gender inequality that is deeply entrenched in social, economic and political structures. Like the now abandoned foot-binding in China and the practice of child marriage, FGM represents society’s control over women. Such practices have the effect of perpetuating normative gender roles that are unequal and harm women. Analysis of international health data shows a close link between women’s ability to exercise control over their lives and their belief that FGM should be ended. Where it is widely practised, it is supported by both men and women, usually without question. As such, FGM is a social convention governed by rewards and punishments which are a powerful force for continuing the practice. In view of this conventional nature of FGM, it is difficult for families to abandon the practice without support from the wider community. In some places, FGM is considered necessary to raise a girl properly and to prepare her for adulthood and marriage. Girls themselves may desire to undergo the procedure as a result of social pressure from peers and because of fear of stigmatization and rejection by their communities if they do not follow the tradition. Thus, in cultures where it is widely practised, FGM is an important part of the cultural identity of girls and women and may also impart a sense of pride, a coming of age and a feeling of community membership.44 In many communities, the practice may also be upheld by beliefs associated with religion. Even though the

41 ibid. 42 For example, babies born to women who have undergone FGM suffer a higher rate of neonatal death compared with babies born to women who have not undergone the procedure. WHO, ‘Eliminating Female Genital Mutilation: An Interagency Statement by OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO’ (2008) 1. 43 ibid. 44 ibid 6.

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practice can be found among Christians, Jews and Muslims, none of the holy texts of any of these religions prescribes FGM and the practice pre-dates both Christianity and Islam. The role of religious leaders varies. Those who support the practice tend either to consider it a religious act, or to see efforts aimed at eliminating the practice as a threat to culture and religion; other religious leaders support and participate in efforts to eliminate the practice; when religious leaders are unclear or avoid the issue, they may be perceived as being in favour of FGM. FGM is condemned by a number of international treaties and regional human rights conventions, soft-law instruments, as well as by national legislation in many countries. Under Article 25 of the UDHR, ‘everyone has the right to a standard of living adequate for health and well-being’, and this principle implies that FGM violates the right to health and bodily integrity. With FGM considered as a form of violence against women, the already mentioned CEDAW can be invoked.45 Similarly, defining it as a form of torture brings it under the rubric of the UN Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment.46 Additionally the Committee on Economic Social and Cultural Rights (CESCR), in its General Comment No 21 on the right of everyone to take part in cultural life,47 and No 22 on the right to sexual and reproductive health,48 underlines 45 CEDAW Committee, ‘General Recommendation No 14. Female Circumcision’ UN Doc A/45/38 (1990). The Committee expressed concern about the continuation of the practice of female circumcision and other practices harmful to the health of women, ‘noting with grave concern that there are continuing cultural, traditional and economic pressures which help to perpetuate harmful practices, such as female circumcision’. It also recommended to States parties to take appropriate and effective measures and strategies with a view to eradicating the practice of female circumcision. 46 (New York 10 December 1984) entered into force 26 June 1987 1465 UNTS 85. In 2008, the Special Rapporteur on Torture, Manfred Nowak, stressed that ‘[i]t is clear that even if a law authorizes the practice, any act of FGM would amount to torture and the existence of the law by itself would constitute consent or acquiescence by the State. The ‘medicalization’ of FGM, whereby girls are cut by trained personnel rather than by traditional practitioners is on the rise in some African countries . . . from a human rights perspective, medicalization does not in any way make the practice more acceptable. Even in contexts where FGM has been recognized as a criminal offence, but where public hospitals offer this “service”, it constitutes torture or ill-treatment. Also in cases where FGM is performed in private clinics and physicians carrying out the procedure are not being prosecuted, the State de facto consents to the practice and is therefore accountable’. UN HRC, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ UN Doc A/HRC/7/3 (15 January 2008) para 53. 47 CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/ GC/21 (21 December 2009). See Joseph Powderly and Rafael Braga da Silva, ‘Cultural Heritage and Women’, in Francesco Francioni and Ana F. Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law (OUP 2020) 431 ff; Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No 21 of the Committee on Economic, Social and Cultural Rights’, in Silvia Borelli and Federico Lenzerini (eds) Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law (Martinus Nijhoff 2012) 29 ff; Francesco Francioni, ‘Culture, Heritage and Human Rights: An Introduction’, in Francesco Francioni and Martin Scheinin (eds) Cultural Human Rights (Martinus Nijhoff 2008) 1. 48 CESCR, ‘General Comment No 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/22 (2 May 2016) para 49.

Some Remarks on Child and Forced Marriages 313 that ‘female genital mutilation and allegations of the practice of witchcraft are barriers to the full exercise by the affected persons of the right enshrined in Article 15.1(a) [of the ICESCR]’ and includes in the ‘core obligations’ for States ‘to enact and enforce the legal prohibition of harmful practices and gender-based violence, including female genital mutilation, child and forced marriage and domestic and sexual violence, including marital rape’.49 Moreover, since FGM is regarded as a traditional practice detrimental for the health of children and is, in most cases, performed on minors, it violates the Convention on the Rights of the Child.50 An interesting interagency statement on FGM was issued by ten UN organizations in 2008.51 Regional treaties which condemn harmful practices include the African Charter on Human and Peoples’ Rights,52 its Protocol on the Rights of Women in Africa,53 and the African Charter on the Rights and Welfare of the Child adopted in 1990.54 In Europe, the already mentioned Istanbul Convention prohibits all forms of FGM and states that Parties shall take the necessary legislative or other measures to ensure that all forms of intentional conduct are criminalized.55 It is worth pointing out that – in the same way as child and forced marriage – culture, custom, religion, tradition or so-called honour cannot be regarded as justification for such acts (Article 42). Subsequently, the Parliamentary Assembly of the Council of Europe in 2013 adopted a resolution in which it called on Member States to publicly condemn the most harmful practices, such as FGM, and to pass legislation to ban them,56 thus providing public authorities with a mechanism to prevent and effectively fight these practices, including through the application of extraterritorial ‘legislative or other measures to establish jurisdiction’ for cases where nationals are subjected to FGM abroad, as provided for under Article 44 of the Istanbul Convention.

49 CESCR, ‘General Comment No 21’ (nt.47) para 64. 50 (New York 20 November 1989) entered into force 2 September 1990 1577 UNTS 3. 51 WHO (nt. 42). This statement is a call to all States, international and national organizations, civil society and communities to uphold the rights of girls and women, to develop, strengthen and support specific and concrete actions directed towards ending FGM. 52 (Nairobi 27 June 1981) entered into force 21 October 1986 21 ILM 58 (1982). Under Article 18.3 of the Charter, States ‘shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions’. 53 (Maputo 11 July 2003) entered into force 25 November 2005 . The States parties to the Protocol shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and shall take all necessary legislative and other measures to eliminate such practices, including the prohibition, through legislative measures backed by sanctions, of all forms of FGM (Article 5). 54 (Addis Ababa 11 July 1990) entered into force 29 November 1999 . Article 21 relates to the protection against harmful social and cultural practices. 55 Istanbul Convention, Article 38. 56 COE Parliamentary Assembly, ‘Children’s Right to Physical Integrity’ Resolution 1952(2013) (1 October 2013) para 7.5.1.

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In the EU context, during the last decade, many directives, resolutions, communications, action plans and other instruments were adopted, either seeking to develop the general protection for victims of crime, specifically mentioning victims of FGM, or having regard specifically to the eradication and ending of this brutal practice. In this context it is sufficient to mention the recent European Parliament resolution on “An EU Strategy to Put an End to Female Genital Mutilation around the World”,57 and the resolution on “The 25th Anniversary of the International Conference on Population and Development (ICPD25) (Nairobi Summit)”,58 which appropriately stresses that FGM must be tackled through a holistic and intersectional approach, addressing the root causes of gender inequality that underlie all forms of gender-based violence against all women and girls, including violations of their human rights, physical integrity and sexual and reproductive health and rights, and, in particular, linking FGM to other harmful practices such as early and forced marriage.59 Furthermore, the same resolution welcomes the European Commission’s efforts and its active promotion of the elimination of FGM through internal discussions with civil society and external policies through dialogues with partner countries, as well as its commitment to an annual assessment of the EU’s fight against FGM. It also calls on the Commission to invest more sustainable funds in research into FGM, as producing in-depth qualitative and quantitative research is the only way to promote a better understanding of the phenomenon and ensure it is targeted in a tailored and effective way.60 5

Recent Measures and Strategies: The 2030 Agenda and SDG 5

The growing resource consumption, poverty, inequality and the need to safeguard the planet are the greatest global challenges of today, which led the UN to adopt the 2030 Agenda in 2015.61

57 ‘European Parliament Resolution of 12 February 2020 on an EU Strategy to Put an End to Female Genital Mutilation around the World (2019/2988(RSP))’ [2021] OJ C-294/8 (hereinafter: the FGM Resolution). 58 ‘European Parliament Resolution of 24 June 2021 on the 25th Anniversary of the International Conference on Population and Development (ICPD25) (Nairobi Summit) (2019/2850(RSP))’ [2022] OJ C-81/63. 59 FGM Resolution, paras 1, 5, 9 and 21. 60 ibid para 26. 61 Patricia Kameri-Mbote and Nkatha Kabira, ‘SDG5: Achieve Gender Equality and Empower All Women and Girls’, in Jonas Ebbesson and Ellen Hey (eds) The Cambridge Handbook of the Sustainable Development Goals and International Law (CUP 2022) 140 ff.

Some Remarks on Child and Forced Marriages 315 The 2030 Agenda is very ambitious; it features 17 Sustainable Development Goals (SDGs) and 169 targets to be achieved by 2030. The SDGs and targets were developed to stimulate action over the next 15 years in areas of critical importance for the humanity and the planet. They are integrated and indivisible and balance the three dimensions of sustainable development: the economic, social and environmental. These goals and targets also seek to realize the human rights of all to achieve gender equality and the empowerment of all women and girls. The 2030 Agenda includes in its SDG 5 to achieve gender equality and empowerment of all women and girls; to end all forms of discrimination against all women and girls everywhere; to eliminate all forms of violence against all women and girls in the public and private spheres (including trafficking and sexual and other types of exploitation); to eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.62 Women and girls, everywhere, must have equal rights and opportunity, and must be able to live free of violence and discrimination. Women’s equality and empowerment is one of the 17 SDGs, but it is also integral to all dimensions of inclusive and sustainable development. In short, all the SDGs depend on the achievement of SDG 5. Gender equality is not only a fundamental human right, but it is also a necessary foundation for a peaceful, prosperous and sustainable world. There has been progress over the last few decades: more girls are going to school, fewer girls are forced into early marriage, more women are serving in parliament and positions of leadership, and laws are being reformed to advance gender equality. Despite these gains, many challenges remain: discriminatory laws and social norms are still pervasive, women continue to be underrepresented at all levels of political leadership and a great number of girls and women report experiencing physical or sexual violence. Undoubtedly, the effects of the COVID-19 pandemic could reverse the limited progress that has been made on gender equality and women’s rights. The coronavirus outbreak exacerbates existing inequalities for women and girls across every sphere, from health and the economy to security and social protection. The pandemic has also led to a steep increase in violence against women and girls. Available data shows that, with lockdown measures in place, violence against women and girls, and particularly domestic violence, intensified.63 As the UN SecretaryGeneral stressed in April 2020, ‘limited gains in gender equality and women’s rights made over the decades are in danger of being rolled back due to the COVID19 pandemic’, urging governments to put women and girls at the centre of their recovery efforts.64 Putting women and girls at the centre of economies will fundamentally drive better and more sustainable development outcomes for all, support 62 UNDESA, ‘Goal 5. Targets and Indicators’ . 63 UN Women, ‘Measuring the Shadow Pandemic: Violence against Women during COVID-19’ (2021) . 64 United Nations, ‘Put Women and Girls at the Centre of COVID-19 Recovery: UN-Secretary General’ (UN News, 9 April 2020) .

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a more rapid recovery and place the world on a better step to achieve the SDGs. Every COVID-19 response programme needs to address the gender impacts of this pandemic: meaning the design of socio-economic plans with an intentional focus on the lives and futures of women and girls, developing a rapid response to mitigate the impact of the COVID-19 crisis on them, ensuring that the longterm recovery benefits them by mitigating and reducing gender-based violence, including domestic violence, giving social and economic protection and practicing equal sharing of care work. The COVID-19 pandemic provides an opportunity for radical, positive action to redress long-standing inequalities in multiple areas of women’s lives and build a more just and resilient world.65 Each year, the High-Level Political Forum on Sustainable Development (HLPF) convenes for a follow-up and review of the 2030 Agenda and the SDGs. The theme of the 2022 HLPF is “Building back better from the coronavirus disease (COVID19) while advancing the full implementation of the 2030 Agenda for Sustainable Development” and includes an in-depth review of SDG5 on gender equality. In preparation for the review, UN Women has undertaken an assessment of the progress made to date.66 The findings are sobering. Progress towards achieving the gender equality goal has been slow and insufficient. The distance to equal is long and time is short. The world is currently not on track to achieve gender equality by 2030. Of the 18 indicators tracked under SDG 5, only one is close to target: the proportion of seats held by women in local governments. In three areas critical to women’s empowerment, namely equality between women and men in time spent on unpaid care and domestic work; decision-making regarding sexual and reproductive health; and having comprehensive systems in place to track and make public allocations for gender equality – the world is far or very far from the target. Progress on the other nine indicators with data stands moderately far from the target, but moderate is deeply insufficient when gender equality is a necessary foundation for progress across the 2030 Agenda.67 UN Women’s ‘Turning Promises into Action: Gender Equality in the 2030 Agenda for Sustainable Development’68 is the new flagship report which provides a comprehensive and authoritative assessment of progress, gaps and challenges in

65 UN SDGs, ‘Goal 5: Achieve Gender Equality and Empower All Women and Girls’ < www.un.org/ sustainabledevelopment/gender-equality/>. 66 For many years, the UN faced serious challenges in its efforts to promote gender equality globally, including inadequate funding and no single recognized driver to direct UN activities on gender equality issues. In July 2010, the UNGA created UN Women, the UN Entity for Gender Equality and the Empowerment of Women, to address such challenges. In doing so, UN Member States took an historic step in accelerating the Organization’s goals on gender equality and the empowerment of women. The establishment of UN Women came about as part of the UN reform agenda, bringing together resources and mandates for greater impact. 67 UN Women, ‘Are We on Track to Achieve Gender Equality by 2030’ (14 June 2022) . 68 UN Women, ‘Turning Promises into Action: Gender Equality in the 2030 Agenda for Sustainable Development’ (2018) .

Some Remarks on Child and Forced Marriages 317 the implementation of the SDGs from a gender perspective. The report monitors global and regional guidance for the implementation of gender-responsive policies and accountability processes. As a source of high-quality data and policy analysis the report is a key reference and accountability tool for policymakers, women’s organizations, the UN system, and other stakeholders. The report lays the basis for robust, gender-responsive monitoring of the 2030 Agenda by showing how gender equality is central to the achievement of all 17 SDGs, arguing for an integrated and rights-based approach to implementation and providing concrete guidance on policies to achieve two strategic targets under SDG 5 (violence and unpaid care) and outlining how these policies are in sync with other goals and targets and setting an agenda for strengthening accountability for gender equality commitments and global, regional and national levels. The Strategic Plan 2022–2025 is now guiding UN Women for the next four years, towards the 2030 deadline to achieve the SDGs.69 It articulates how UN Women will leverage its triple mandate – encompassing normative support, UN system coordination, and operational activities – to mobilize urgent and sustained action to achieve gender equality, the empowerment of all women and girls, the full enjoyment of their human rights and support the achievement of the 2030 Agenda.70 Given the interconnected nature of global challenges, UN Women will focus on integrated approaches to addressing the root causes of inequality and affect broader systems change, across its thematic focus areas: governance and participation in public life; women’s economic empowerment; ending violence against women and girls; and women, peace and security, humanitarian action and disaster risk reduction. In support of this vision, UN Women will continue its business transformation to enhance organizational effectiveness and efficiency, by further refining its business model, implementation modalities and organizational structure to equip the organisation to deliver results at scale, as a key partner in a repositioned UN development system. Lastly, a partnership between the EU and the UN has recently been created to embark on a new, global, multi-year initiative aimed at eliminating all forms of violence against women and girls: the Spotlight Initiative. The initiative brings focused attention to this issue, placing it at the centre of efforts to achieve gender

69 UN Women Executive Board, ‘United Nations Entity for Gender Equality and the Empowerment of Women. Strategic Plan 2022–2025’ UN Doc UNW/2021/6 (12 July 2021). 70 The Strategic Plan is anchored in the CEDAW, the Beijing Declaration and Platform for Action, UN Security Council resolutions on women, peace and security (WPS), the Programme of Action of the International Conference on Population and Development, and other relevant intergovernmental outcomes, such as resolutions of the UNGA and agreed conclusions of the Commission of the Status of Women. It contributes to the gender-responsive implementation of the 2030 Agenda, as well as commitments to gender equality and women’s empowerment made in other relevant UN instruments and resolutions, ibid para 4. The Integrated Results and Resources Framework, updated as of May 2022, outlines the specific results that UN-Women aims to achieve and their respective set of indicators, ibid Annex I.

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equality and women’s empowerment, in line with the 2030 Agenda.71 It is also responding to violence with a particular focus on domestic and family violence, sexual and gender-based violence and harmful practices, femicide, trafficking in human beings and sexual and economic (labour) exploitation. As a demonstration fund for action on the SDGs, this initiative reveals that a significant, concerted and comprehensive investment in gender equality and ending violence can make a transformative difference to the lives of women and girls. 6

Looking for Some Solutions to Meliorate the Current Situation and Concluding Remarks

As underlined, in recent years, many actions to prevent child and forced marriage and to eliminate FGM have markedly increased at international, regional and national levels. Specific efforts are under way to link these efforts to the implementation and monitoring of the SDGs, particularly SDG 5.3 to avert all harmful practices. Despite this, the global prevalence of these practices remains at an unacceptably high level. For example, the available data shows that to eliminate child, early and forced marriage by the globally agreed 2030 date, as set out in the 2030 Agenda, progress will need to be 12 times faster than the rate observed in the past decade.72 This means, unfortunately, that the measures put in place thus far have proved inadequate to stem these deplorable practices. Patriarchal traditions, poverty, exclusion and unequal gender norms that limit girls’ ability to exercise their choices still result in a higher risk for girls of being subjected to child, early and forced marriage and to FGM. Girls need to be equipped with the skills and competencies necessary to assert their rights and make autonomous and informed decisions and choices regarding their own lives: this to be able to overcome the social exclusion and poverty that exposes them to child marriage. Another way to promote girls’ empowerment is through better enhancing their social assets. This can be done, inter alia, through the creation of safe spaces where girls and women at risk of, or affected by, child, early and forced marriage can connect with peers, mentors, teachers and community leaders, in order to express their aspirations and concerns and participate in decisions that affect their lives. Safe spaces can be instrumental in building girls’ agency and voices and to give them the opportunity to create a peer support network. Many girls, in particular those who live in hard contexts or remote areas, still do not have access to information

71 An initial investment of 500 million Euro was made, with the EU as the main contributor. Other donors and partners were invited to join the Initiative in order to broaden its reach and scope. The method for delivery is a UN multi-stakeholder trust fund, administered by the Multi-Partner Trust Fund Office, with the support of core agencies UNDP, UNFPA and UN Women, and overseen by the Executive Office of the UN Secretary-General. See ‘Spotlight Initiative’ . In Mozambique, for instance, the Spotlight Initiative has supported thousands of gender-based violence survivors with mobile health clinics and care centres. 72 UNICEF, ‘Child Marriage: Latest Trends and Future Prospects’ (July 2018) .

Some Remarks on Child and Forced Marriages 319 about the available sexual and reproductive health services that are free from judgment and without male supervision. In the last decade, numerous countries have legislated to ensure a minimum legal age of marriage at 18 years, but several States still continue to miss adequate norms or still allow exceptions to the minimum age of marriage, such as with parental, judicial or religious consent. It is so important to ensure a comprehensive approach to national legislations by setting the minimum uniform age for marriage at 18 years and to remove all discriminatory provisions in which child marriage is condoned or encouraged, as well and norms relating to, inter alia, labour, access to credit, inheritance, and access to sexual and reproductive health services. It is also urgent that all States adopt the necessary administrative, legal and financial measures to ensure the effective implementation of this requirement, by promoting the registration of marriages and births and the activation of legislative remedies or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without civil consequences and effects.73 Various research projects have been conducted on different aspects related to child and early and forced marriage, but more effective strategies and measures must be taken, in order to promote access to education, create youth participation, more dialogue between generations, and to engage men and boys, using sports, arts and entertainment.74 Another still recurring challenge is the absence of disaggregated data, which today again affects the ability of States and other actors and entities to develop targeted policies and interventions to address the practice: information needs to be disaggregated by sex, age, geographical location, socio-economic status, education level and other factors. It is so important to implement research and promote more consistent data systems and statistics on disaggregated data, in particularly on the situation of already married girls.75 In the light of the considerations conducted of the analysis of the multitude of efforts that are continuously deployed at international and regional level in order to reach gender equality and to combat harmful and negative practices that are prejudicial to the health and well-being of women and children, we have to conclude that, regrettably, such policies, measures and efforts still need to be intensified so as to be able to improve the general quality of life and health of the entire population. 73 Bonfanti (nt. 9) para 3. 74 Plan International, ‘Time to Act! Accelerating Efforts to End Child, Early and Forced Marriage in Asia’ (Plan International Asia Hub 2018) ; Plan International, ‘The 2021 Asia-Pacific Girls Report: Voice, Choice and Power’ (2021) . 75 There is still a lack of research on already married girls whose husbands have left to fight or seek refuge internally or across borders, or who have been detained or disappeared. According to Save the Children, conflict and disaster contributes to the widowing of already married girls, who are among the most vulnerable widows. Save the Children, ‘Global Girlhood Report 2022: Girls on the Frontlines’ (2022) .

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Only by improving the voluntary regulation of fertility, health, education and well-being of all members of the family will it be possible to also help the preservation of the environment and the achievement of sustainable economic and social development. To achieve the progress we need, we must all work together, putting girls and women at the centre of the solutions, restoring their rights, and giving our planet its chance to thrive.

Part V

Cultural Heritage, Sustainable Development and Human Rights Focus on Climate Change and Natural Resources

17 Cultural Rights, Environmental Rights and Climate Rights Insights from International and EU Law Ottavio Quirico* 1

Introduction

Cultural rights aim to guarantee that people and communities can access culture and participate in the culture of their choice. They can be fundamentally divided into rights that protect tangible cultural heritage and rights that protect intangible cultural heritage (ICH). The first are protected particularly via the 1972 World Heritage Convention (WHC).1 The second are protected specifically via the 2003 Convention on the Safeguarding of Intangible Cultural Heritage.2 According to Articles 1 and 2 of the 1972 WHC, tangible cultural heritage encompasses monuments, buildings, sites, natural features and geological formations of ‘outstanding universal value’ (OUV). According to the 2003 UNESCO Convention, ICH includes representations, expressions, practices, knowledge and skills (Article 2.1) manifested through traditions, expressions, performing arts, social practices, rituals, knowledge and traditional craftsmanship (Article 2.2). By its very nature, both tangible cultural heritage and ICH are intertwined with environmental interferences and therefore with climate change. According to the Special Rapporteur to the UN General Assembly in the field of cultural rights, ‘climate change and cultural rights share a clear nexus’, as ‘culture is closely connected to ecosystems, especially for indigenous peoples, rural and “traditional” populations’, which are often ‘place-based’.3 Sustainability is indeed a priority for the preservation of cultural heritage in the European Union (EU).4 It is certainly by now undeniable

* Senior Researcher, Department of International Humanities and Social Sciences, University for Foreigners of Perugia (Italy); Associate Professor, Law School, University of New England (Australia). With the support of the Erasmus+ Programme of the European Commission: 620604-EPP-1–2020–1AU-EPPJMO-PROJECT. Contents reflect the view of the Author only. 1 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 2 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). 3 UNGA, ‘Report of the Special Rapporteur in the Field of Cultural Rights, Karima Bennoune’ UN Doc A/75/298 (10 August 2020) (hereinafter: the 2020 Report) para 18. 4 EU Council, ‘Council Conclusions on the Work Plan for Culture 2019–2022 (2018/C 460/10)’ [2018] OJ C460/12. DOI: 10.4324/9781003357704-22

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that climate change affects cultural heritage, with respect to both its tangible and intangible implications, and thus has a profound impact on fundamental cultural rights.5 The Malé Declaration on the Human Dimension of Global Climate Change acknowledges that climate change has ‘clear and immediate implications’ for the full enjoyment of human rights, including the right to take part in cultural life.6 Recent work developed by the UN Special Rapporteur on cultural rights has contributed to shedding light on the relationship between climate change and human rights, revealing deep intersections between these two regulatory areas.7 In light of the impact of climate change on tangible and intangible cultural heritage, this contribution aims to assess what the additional value can be of a human rights approach to cultural rights, particularly in light of the possible recognition of a human right to a sustainable environment or even a human right to a sustainable climate under international law, EU law and the European Convention on Human Rights.8 The analysis is grounded in a context whereby all human rights are ‘interdependent’ and ‘indivisible’.9 Furthermore, the investigation unfolds along the lines of the distinction between law-making and law-enforcement, that is, within the context of secondary rules as posited by Herbert Hart.10 Indeed, arguably climate change has different implications for cultural rights from a human rights perspective when considered from these different angles. The contribution is divided into two sections. The first section briefly assesses the impact of climate change on tangible and intangible cultural heritage, with respect to both their cultural and natural components. In light of this analysis, the research further considers the regulatory implications that climate change has for cultural rights, particularly from a human rights perspective. Based on the investigation developed in the first section, the second section of the research explores the impact that the possible recognition of a human right to a sustainable environment may have on the regulation of climate change via cultural rights as concerns decision-making and rights enforcement. Furthermore, the investigation considers relevant implications of the possible recognition of a fundamental right to a sustainable climate, de lege ferenda. 2 2.1

Cultural Rights and Climate Change Tangible and Intangible Cultural Heritage and Climate Change

It is widely considered that climate change might compel a drastic revision of the World Heritage List under Article 11 of the 1972 WHC, as it deeply affects the 5 2020 Report, para 10. 6 (Malé, 14 November 2007) Preamble. Last access to all links mentioned in this chapter: 10 March 2023. 7 2020 Report, paras 24 ff. 8 (Rome 4 November 1950) entered into force 3 September 1953 (hereinafter: ECHR). 9 World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ UN Doc A/ CONF.157/23 (12 July 1993) (hereinafter: Vienna Declaration) para 5. 10 Herbert L.A. Hart, The Concept of Law (3rd ed, OUP 2012).

Cultural Rights, Environmental Rights and Climate Rights 325 OUV of areas protected under the Convention and their significance for humanity as a whole.11 In the context of the Green Deal,12 the European Commission (EC) has underscored that cultural heritage is particularly vulnerable to climate change.13 Essentially, climate change has three main implications for tangible cultural and mixed heritage – that is, cultural heritage that has both tangible and intangible implications – because of rising temperatures, rising water levels and land alteration. Rising temperatures alter the composition of buildings, landscapes and biodiversity. For instance, warmer temperatures accelerate the decay of archaeological sites and ice caps. Rising water levels trigger flooding and aggravate events such as storms and earthquakes. The city of Venice is an emblematic example of a cultural site threatened with coastal flooding and erosion.14 A clear example of land alteration is desertification, which causes dryness negatively affecting cultural monuments and biodiversity.15 This has an impact on rights and duties under the 1972 WHC, ranging from the obligation to ensure protection, conservation, presentation and transmission of cultural and natural heritage to future generations under Article 2 to the duty to cooperate towards protection under Article 6. Global warming threatens ICH in several ways. For instance, altered chemical composition of waters affects the existence of plants and animal species, which has a devastating impact on the lifestyle of Indigenous people.16 Desertification triggers displacement; in this regard, the UN Special Rapporteur on cultural rights has underscored that ‘climate change is likely to affect cultural diversity and sociocultural interactions by forcing communities to change their work habits and ways of life, to compete for resources or to migrate elsewhere’.17 A clear example is that of people living in the low-lying island of Tuvalu, whose existence is threatened by rising sea levels with the concrete possibility of being displaced from their territory and their natural and cultural environment.18 This has implications for claims under the 2003 UNESCO Convention, spanning the duty to integrate the safeguarding of ICH into planning programmes under Article 13(a) to the obligation to cooperate in the protection of ICH under Article 19. The effects of climate change on tangible and intangible cultural heritage are strictly intertwined, as underscored by the 2021 UNESCO updating of the Policy

11 World Heritage Committee, ‘Draft Updated Policy Document on the Impacts of Climate Change on World Heritage Properties’ WHC/21/44.COM/7C (4 June 2021) (hereinafter: the Climate Change Policy Document) para 33. See also Elena Sesana et al. ‘Climate Change Impacts on Cultural Heritage: A Literature Review’ (2021) 12 WIREs Climate Change 1. 12 European Commission, ‘The European Green Deal’ COM(2019) 640 final (11 December 2019). 13 European Commission, ‘European Framework for Action on Cultural Heritage’ (27 May 2019) 12. 14 Sesana et al. (nt. 11)18. 15 UNESCO, ‘Climate Change and World Heritage’ (2007) World Heritage Reports No 22 . See also Sesana et al. (nt. 11) 4 ff. 16 ICOMOS, Indigenous Heritage, Resolution 19GA 2017/27. 17 2020 Report, para 42. 18 UNDP, ‘Climate Change Adaptation: Tuvalu’ .

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Document on the Impacts of Climate Change on World Heritage properties.19 Along these lines, as the UN Special Rapporteur on cultural rights has noted, moving people away from their homelands not only results in their removal from tangible cultural heritage, and therefore leads to the damage and disappearance of such heritage, but also threatens the maintenance of cultural practices that may be linked to certain sites or natural resources and the possibility of caring for heritage.20 2.2

Cultural Rights, Human Rights and Climate Change

Fundamentally, the debate on the relationship between climate change and cultural rights has focused on the possibility of improving mitigation and adaptation measures in light of cultural rights.21 In sum, it is definitely possible and appropriate to improve adaptation measures and on-site mitigation measures under the 1972 WHC, because this is within the remit of the convention.22 Goal 2 of the 2021 Policy Document on Climate Action for World Heritage requires that ‘[b]y 2030, States Parties [to the 1972 WHC] should establish at the national and/or other appropriate levels, and implement at the site level, robust climate adaptation frameworks’, so as to ‘demonstrate measurable progress on monitoring of climate hazards, assessing and reducing climate risks and vulnerabilities, and in doing so enhancing adaptive capacity and building climate resilience for all World Heritage properties’.23 Goal 3 provides that ‘[b]y 2030, States Parties [to the 1972 WHC] should implement at national and/or other appropriate levels, comprehensive climate mitigation frameworks that guide mitigation action for cultural, natural and mixed properties’, fostering ‘the reduction of net greenhouse gas emissions associated with World Heritage properties’.24 With respect to ICH, it is also not impossible to argue that the 2003 UNESCO Convention supports the adoption of improved general mitigation measures. Indeed, whilst World Heritage Sites involve limited areas protected because of their OUV, ICH is concerned with the lifestyle of entire populations. In practice, from the standpoint of primary norms on rule-making, the idea is that cultural rights can contribute to maximizing general mitigation measures.25 Indeed, the 19 Climate Change Policy Document. 20 2020 Report, para 38. 21 Erica Thorson, ‘On Thin Ice: The Failure of the United States and the World Heritage Committee to Take Climate Change Mitigation Pursuant to the World Heritage Convention Seriously’ (2008) 38 Environmental Law 139, 160. See also Earthjustice, ‘Climate Change and World Heritage: Relationship with the UNFCCC, State Party Obligations, Use of the List of World Heritage in Danger, and the Role of Adaptation’ (23 June 2020) . For a summary of initiatives relevant to climate change and cultural rights, see Heritage Research Hub, ‘Powering Climate Action through Heritage Policies, Organisations, Research and Public Programmes’ . 22 Climate Change Policy Document, Annex I, paras 47 ff. 23 ibid Annex I para 27. 24 ibid. 25 ibid Annex I paras 57 ff.

Cultural Rights, Environmental Rights and Climate Rights 327 2021 G20 Declaration by the Ministers of Culture embeds the concept of ‘cultureled mitigation’.26 General mitigation measures, nonetheless, remain the primary purpose of the UN Framework Convention on Climate Change,27 which is lex specialis with respect to climate change, as compared to the 2023 UNESCO Convention, along the lines of the principle of harmonisation under Articles 31.2 and 31.3 of the Vienna Convention on the Law of Treaties,28 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.29 As underscored by the EC, it is necessary to mobilize the cultural heritage and historic preservation sectors for climate action in support of the objectives under the Paris Agreement.30 Similarly, the ICOMOS European Cultural Heritage Green Paper highlights the need to ‘[i]mprove and expand modelling of the projected impacts of global warming of 1.5 v 2°C on cultural resources and utilise the results to stress urgency and guide green transition’.31 Under Article 27 of the Universal Declaration on Human Rights,32 ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights establishes that the States Parties ‘recognize the right of everyone . . . [t]o take part in cultural life’.33 Article 31 of the UN Declaration on the Rights of Indigenous Peoples provides that ‘indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions’.34 Therefore, in principle, cultural rights are human rights that aim to ensure the enjoyment of culture based on equality, human dignity and non-discrimination. From the viewpoint of decision-making, assuming that cultural rights are human rights reinforces the adoption of climate-related on-site adaptation and mitigation measures under the 1972 WHC and 2003 UNESCO Convention as well

26 Rome Declaration of the G20 Ministers of Culture (Rome, 30 July 2021) para 3.2. See also World Heritage Committee, ‘Updating of the Policy Document on Climate Action for World Heritage’ WHC/21/23.GA/INF.11 (27 October 2021) para 59. 27 (New York, 9 May 1992) entered into force 21 March 1994 1771 UNTS 107 (hereinafter: UNFCCC). 28 (Vienna, 23 May 1969) entered into force 27 January 1980 115 UNTS 332 (hereinafter: VCLT). 29 (Vienna 21 March 1986) not yet into force UN Doc A/CONF.129/15 (hereinafter: VCLTIO). See also ILC, ‘Fragmentation of International Law. Report of the Study Group of the ILC’ UN Doc A/ CN.4/L.682 (13 April 2006) 206 ff. 30 EC, ‘Framework for Action on Cultural Heritage’ (nt. 13) at 25. 31 ICOMOS, ‘European Cultural Heritage Green Paper’ (March 2021) 14. 32 UNGA, ‘Universal Declaration of Human Rights’ UN Doc Res 217 A(III) (10 December 1948) (hereinafter: UDHR). 33 New York, 19 December 1966) entered into force 3 January 1976 993 UNTS 3 (hereinafter: ICESCR). 34 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP).

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as of general mitigation measures under the UNFCCC.35 Indeed, the UN Special Rapporteur on cultural rights has underscored that, on the one hand, ‘[i]nsufficient attention is paid to culture in the United Nations Framework Convention on Climate Change, the Paris Agreement and Assessment reports of the IPCC’, and, on the other, climate change is ‘inadequately addressed by cultural instruments’, so much so that ‘dialogue and cooperation between bodies tasked with monitoring implementation’ should accelerate, based on ‘synergies between environmental, cultural rights and cultural heritage standards’.36 Therefore, according to the Rapporteur, ‘States should adopt a rights-based approach to all aspects of climate change and climate action’, including ‘consideration of cultural rights and cultural impacts’, as ‘culture has a critical role to play in humanity’s reaction to climate change’.37 Notably, the Rapporteur suggests that ‘effective remedial measures to protect tangible and natural heritage sites’, for instance, coastal heritage sites such as Kilwa Kiswani in Tanzania and Rapa Nui in Chile, which are particularly vulnerable to sea-level rises, include action such as ‘re-designing boundaries and buffer zones to facilitate migration of species’ and ‘preventively draining a glacial lake to avoid the occurrence of an outburst flood’.38 The Special Rapporteur further recommends that States ‘[i]ncorporate cultural rights, culture and cultural heritage into United Nations Framework Convention on Climate Change national adaptation plans’.39 From the standpoint of rights enforcement, the human rights nature of cultural rights allows the addition of a procedural layer to protect cultural heritage. Indeed, a State, or another individual or group, could commence action in international human rights bodies claiming that excessive greenhouse gas (GHG) emissions affect their cultural rights. Under international law, for instance, after the exhaustion of domestic remedies, an individual might act in the UN Human Rights Council (UN HRC) rather than the Committee on Economic, Social and Cultural Rights (CESCR) as well as other human rights committees under relevant UN human rights treaties.40 It remains to be seen whether such remedies can be considered

35 UNESCO, Cultural Rights as Human Rights (UNESCO 1970); Francesco Francioni, Cultural Rights as Human Rights (Martinus Nijhoff 2008); Ana F. Vrdoljak, The Cultural Dimension of Human Rights (OUP, 2013). See also UNGA, ‘Universality, Cultural Diversity and Cultural Rights. Report of the Special Rapporteur in the field of Cultural Rights’ UN Doc A/73/227 (25 July 2018). 36 2020 Report, Annex, para 32. 37 ibid paras 57–58 and para 81, recommendation (c). 38 ibid Annex paras 37–38. 39 ibid para 82, recommendation (d). 40 OHCHR, ‘The Core International Human Rights Instruments and Their Monitoring Bodies’ . See also CRC, ‘Decision adopted by the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure in respect of Communication No 104/2019’ UN Doc CRC/C/88/D/104/2019 (11 November 2021). See also Riccardo Luporini and Arpitha Kodiveri, ‘The Role of Human Rights Bodies in Climate Litigation’ (2021) EUI Working Paper 2021/12 .

Cultural Rights, Environmental Rights and Climate Rights 329 fully effective as, essentially, the UN HRC, CESCR and human rights institutions under UN human rights treaties can only deliver non-binding recommendations. Under EU law, action could be brought in the Court of Justice of the European Union (CJEU) against a State or an EU institution based on relevant rules, such as Article 37 of the Charter of Fundamental Rights of the EU (EU Charter),41 which is primary EU law binding upon its institutions and Member States since the entry into force of the Lisbon Treaty in 2009. Furthermore, action could be commenced in the European Court of Human Rights (ECtHR) against those States that are parties to the ECHR and, in the future, against the EU itself, if and when the Union accedes to the ECHR. Naturally, this action would be more effective, as both the CJEU and ECtHR can deliver binding decisions. Aside from the effectiveness of the decisions that human rights bodies may deliver on cultural rights, a human rights perspective is important but does not seem to add decisive elements to the discourse on the relationship between climate change and cultural rights. Essentially, it is certainly possible for a State or an individual to advance a claim that a State is in breach of specific on-site adaptation and mitigation measures in human rights bodies and courts under international and EU law, and this thus provides a procedural layer additional to protection afforded via non-human rights courts and institutions. For instance, internationally the Torres Strait Islanders have acted in the Human Rights Committee (HRC) under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) alleging that Australia is in breach of human rights, including cultural rights under Article 27 of the ICCPR, owing to a failure to take adequate steps to address climate change.42 Under EU law, in the people’s climate case, ten families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Saami Youth Association Sáminuorra acted in the CJEU claiming that failure to adopt adequate climate policies is in breach of their fundamental cultural rights. The Court nonetheless rejected the claim for lack of jurisdiction.43 Nonetheless, it would not be easy for a plaintiff to demonstrate that a State is in breach of specific cultural rights because of the failure to fulfil mitigation targets adequate to achieve sustainable development, as this is a complex issue that requires a difficult balancing exercise primarily based on the UNFCCC regime. Furthermore, there is a limitation ratione personarum, as human rights institutions at the international and European level only have competence over States, but do not have jurisdiction over individuals. The jurisdiction of the International Criminal Court (ICC), according to the work of the International Law Commission

41 Case C-176/03 Commission v Council [2005] ECLI:EU:C:2005:311 Opinion of AG Colomer 69. 42 Petition of Torres Strait Islanders to the United Nations Human Rights Committee (13 May 2019) . 43 Case C-565/19P Armando Ferrao Carvalho et al v the European Parliament and the Council [2021] ECLI:EU:C:2021:252, para 106.

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(ILC) on the environment, is excluded, at least for the time being.44 However, it is remarkable that a document recently adopted by the EU claims that climate change might trigger responsibility under the Statute of the ICC.45 In practice, cultural human rights have proved largely ineffective in protecting cultural heritage in the 2005 Inuit petition to the Inter-American Commission on Human Rights (IACHR). In this dispute, the Inuit, a cultural group living in the United States, Russia, Canada and Greenland claimed that average Arctic temperatures increasing at a fast rate prompted by global warming was causing a deterioration in ice conditions and thus affected their lifestyle, as the Inuit share a common culture based on subsistence harvesting in cold terrestrial and marine environments, food sharing and travel on ice.46 Indeed, among other rights, the Inuit invoked the right to culture, as enunciated in Article XIII of the American Declaration on the Rights and Duties of Man as well as other human rights instruments such as the ICCPR and ICESCR, as the primary right infringed by the excessive emissions of GHGs from the United States,47 a State that has emitted about 25% of the global amount of GHGs since 1751.48 The Inuit therefore sought the adoption of adequate mitigation measures by the United States, that is, cessation under international law, without advancing any specific claim to compensation.49 The IACHR quickly rejected the petition via a short statement, considering that the claim did not allow the Commission ‘to determine whether the alleged facts would tend to characterize a violation of rights protected in the American Declaration’.50 Whilst the statement per se is not crystal clear, scholars have interpreted it as a consideration on the impossibility of establishing a causal link between GHG emissions specifically produced in the United States, global warming, environmental damage in the Arctic, and Inuit cultural rights.51

44 ILC, ‘Document on Crimes against the Environment prepared by Mr. Christian Tomuschat, member of the Commission’ UN Doc ILC(XLVIII)/DC/CRD.3 (27 March 1996). 45 European Parliament, ‘Resolution of 19 May 2021 on the Effects of Climate Change on Human Rights and the Role of Environmental Defenders on This Matter (2020/2134(INI))’ [2022] OJ C15/111, para 11. See also Donna Minha, ‘The Possibility of Prosecuting Corporations for Climate Crimes Before the International Criminal Court: All Roads Lead to the Rome Statute?’ (2020) 41 MJIL 491. 46 Petition to the IACHR Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States’ (7 December 2005) 20 ff (hereinafter: Inuit Petition). See also 2020 Report, paras 45 ff; Inuit Circumpolar Council, ‘Cultural Rights and Climate Change: Submission to the Special Rapporteur in the Field of Cultural Rights’ (2020) . 47 Inuit Petition, 5, 73 and 93 ff. 48 2020 Report, para 11. 49 ibid 7. 50 Letter from Ariel E Dulitzky, Assistant Executive Secretary, IACHR, to Paul Crowley, Legal Representative Inuit Petition (16 November 2006). 51 Megan Chapman, ‘Climate Change and the Regional Human Rights Systems’ (2010) 10 SDLP 37, 38.

Cultural Rights, Environmental Rights and Climate Rights 331 As the UN Special Rapporteur on cultural rights underscored, climate change jeopardizes traditional livelihoods and triggers displacement that threatens cultural survival, in a context whereby some may be able to depart, whilst others cannot, leaving people with a tragic choice between remaining with their culture and departing to protect their lives and livelihoods: ‘Where can the Inuit find another Arctic environment?’52 3

De lege ferenda: Impact of the Recognition of a Fundamental Right to a Sustainable Environment and to a Sustainable Climate on the Protection of Natural and Cultural Heritage

3.1 A Human Right to a Sustainable Environment? Implications for Cultural Heritage

In the last few years, there has been an accelerated development of international law towards the recognition of a fundamental right to a sustainable environment. Notably, according to the first Independent Expert on human rights and the environment, Professor Knox, a human right to environmental protection emerges as a general principle of law, in light of domestic constitutions and regional conventions.53 Similarly, the current Special Rapporteur on human rights and the environment, Professor Boyd, has argued in favour of the recognition of a fundamental right to a safe environment.54 Along the lines of Article 1 of the Draft Global Pact for the Environment,55 in 2020, the UN Secretary-General acknowledged the right to a safe environment in a document addressing the UN HRC.56 Following these developments, in 2021 the UN HRC adopted a set of resolutions on, notably, the Human Right to Development,57 the Human Rights of Indigenous Peoples58 and the Human Right to a Safe Clean, Healthy and Sustainable Environment.59 The latter is particularly meaningful, as it recognizes ‘the right to a safe, clean, healthy and sustainable environment’ as ‘a human right’, which was later endorsed by the

52 2020 Report, para 43. 53 UNGA, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Preliminary Report’ UN Doc A/ HRC/22/43, 24 December 2012, at paras 12 and 14. 54 David Boyd, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/HRC/43/54 (23 January 2020) para 63. 55 Draft Global Pact for the Environment (2017). 56 Secretary-General’s remarks to the UN Human Rights Council, ‘The Highest Aspiration: A Call to Action for Human Rights’ (24 February 2020) . 57 UN HRC, The Right to Development UN Doc A/HRC/RES/48/10 (15 October 2021). 58 UN HRC, Human Rights and Indigenous Peoples UN Doc A/HRC/RES/48/11 (15 October 2021). 59 UN HRC, Human Rights and the Environment UN Doc A/HRC/RES/46/7 (30 March 2021).

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UNGA via Resolution 76/300 on 1 August 2022.60 These instruments are nonetheless not binding. Under EU law, it cannot be said that the recognition of a human right to a sustainable environment is accomplished either. Article 37 of the EU Charter provides that ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. This rule has been subject to different interpretations.61 Overall, however, it cannot be said that a human right to a sustainable environment already exists under EU law, as the European Parliament’s 2021 Resolution on the Effects of Climate Change on Human Rights urges the Union to ‘take action to introduce the right to a safe and healthy environment in the Charter and to fully comply with Article 37 thereof’.62 The ECHR does not yet recognize a human right to a sustainable environment per se either. Rather, it has consistently allowed environmental protection via different first- and second-generation human rights, particularly the rights to life and to private and family life extensively interpreted so as to include the right to live in a safe environment.63 However, the question has been debated in the past,64 and it is not impossible to think that the accession of the EU to the ECHR might underscore an imbalance between the EU and ECHR systems,65 thus facilitating the evolution of the ECHR in the sense of recognizing a human right to a sustainable environment per se. Indeed, whilst the EU has already undertaken the pathway leading to the recognition of a fundamental right to a sustainable environment via ECHR Article 37, the ECHR system has not, and the accession of the EU to the ECHR would unveil a paradoxical situation whereby the CJEU, which is not primarily a human rights organ, prospectively provides direct human rights protection for the environment, whereas the ECtHR only affords indirect protection via first- and second-generation human rights.66

60 UNGA, The Human Right to a Clean, Healthy and Sustainable Environment, UN Doc A/RES/76/300 (1 August 2022). 61 For a negative interpretation on the possibility that Article 37 of the EU Charter generates rights and duties, see, for instance, Elisa Morgera and Gracia Marin-Duran, ‘Article 37’, in Steve Peers et al (eds) The EU Charter of Fundamental Rights: A Commentary (OUP 2014) 995–996. See also Case C-120/10 European Air Transport SA v Collège d’Environnement de la Région de BruxellesCapitale, [2011] ECLI:EU:C:2011:94 Opinion of AG Villalón, para 78. 62 EU Parliament, Resolution 2020/2134(INI) (nt. 45) para 8. 63 See Tatar v Romania, ECtHR Application No 67021/01, Judgment (27 January 2009) paras 107 and 112. 64 Council of Europe Parliamentary Assembly, ‘Drafting an Additional Protocol to the European Convention on Human Rights Concerning the Right to a Healthy Environment’ Recommendation 1885(2009). 65 EC, ‘The EU’s Accession to the European Convention on Human Rights: Joint Statement on behalf of the Council of Europe and the European Commission’ (29 September 2020) . 66 In this regard, see Council of Europe Parliamentary Assembly, ‘Anchoring the Right to a Healthy Environment: Need for Enhanced Action by the Council of Europe’ Recommendation 2211(2021).

Cultural Rights, Environmental Rights and Climate Rights 333 The Special Rapporteur on cultural rights has acknowledged the importance of the recognition of a human right to a sustainable environment for cultural rights in his Report on Climate Change, Culture and Cultural Rights.67 From the standpoint of decision-making in relation to the impact of climate change on cultural heritage, the recognition of a human right to a sustainable environment would further emphasize the need for, and thus facilitate the adoption of, on-site mitigation and adaptation measures by States to remedy the impact of climate change on tangible and intangible cultural heritage. More importantly, from the viewpoint of rights enforcement, the recognition of a human right to a sustainable environment would simplify the causal link between excessive GHG emissions and breaches of cultural rights. This would facilitate the commencement of action against a sovereign entity in international and European human rights institutions. Indeed, the causal nexus between excessive GHG emissions and first- and second-generation human rights, such as the rights to life and health, is indirect: (1) (2) (3) (4) (5)

Excessive anthropogenic GHG emissions under the UNFCCC; Increasing atmospheric temperatures (climate change); Further environmental implications, for instance, ice melting (general causation); Legal implications: breach of cultural rights (specific causation); Action in international and EU institutions.

By contrast, the causal nexus between excessive GHG emissions and the thirdgeneration collective human right to a safe environment, including cultural implications, is direct: (1) (2) (3)

Excessive anthropogenic GHG emissions under the UNFCCC; Legal implications: breach of the right to a sustainable environment and cultural rights (specific causation); Action in international and EU institutions.

Additionally, as a group claim, the human right to a safe environment would facilitate collective action in human rights bodies at the international and EU levels. However, the recognition of a human right to a sustainable environment entails some systemic problems that have not been yet adequately considered in scholarly work and practice. Indeed, the right to a sustainable environment is a broad concept. Essentially, it is a composite notion that encompasses all other rights that are concerned with environmental protection, spanning claims such as the right to biodiversity, the protection of soils, watercourses, air and climate change. Declaring the human rights nature of the right to a sustainable environment entails a declaration on the human rights nature of all other environmental rights, and thus of the entire area of international environmental law. Whilst such a development cannot be absolutely excluded, and may even be welcome, it would be a quite sudden 67 2020 Report, Annex, para 15.

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radical shift, in contrast with the relatively slow evolution of international law.68 Such a development might be more plausible under EU law and in the Council of Europe system, which are relatively centralized jurisdictions, but also within such systems these developments would be quite sudden and meaningful. The question is not merely a nominal one but has deep systemic ramifications. One of the implications is the way in which the structure of the right to a sustainable environment is to be conceived. Indeed, for the time being, international law acknowledges the no-harm rule, which has been mostly outlined as an interstate obligation.69 Obviously, approaching the right to a sustainable environment as a human right would entail re-thinking the obligation as one primarily addressing individuals. This also applies within the sphere of EU law, where scholars have noted that Article 37 of the EU Charter is primarily formulated as a norm addressing the EU institutions, not as one primarily concerned with individuals.70 In any case, the human rights nature of the fundamental right to a sustainable environment would intrinsically entail its general scope of application, as, besides being interdependent, indivisible and interrelated, human rights are, by their very nature, universal.71 Consequently, this would imply the universal nature of all other environmental rights, such as the right to the protection of watercourses and from hazardous substances. The same reasoning applies to the possible erga omnes and jus cogens implications of the rights at issue. In other words, the notion of a human right to a sustainable environment is quite static and prevents significant flexible developments, including cultural rights to the extent that environmental protection is an essential component of culture. 3.2

Cultural Implications of the Human Right to a Sustainable Climate

There is no official recognition of a human right to a sustainable climate per se in international law and EU law. However, there have been relevant developments in the area and, besides the recognition of a human right to a sustainable environment, a complementary right to a sustainable climate sporadically emerges. In this respect, the EU seems to take a slightly more progressive approach, which might also have repercussions at the international level. As concerns international law, it is considered that the UNFCCC regime posits a substantive duty of conduct to reverse the long-term effect of GHG emissions and to stabilize global average temperature increase well below 2°C above preindustrial levels, pursuing efforts to limit the increase to 1.5°C, via adequate mitigation measures,72 particularly in light of Articles 2, 3 and 4 UNFCCC as well as

68 69 70 71 72

Hart (nt. 10). Trail Smelter (US v Canada), Award (1941) 3 UNRIAA 1907, 1965. Morgera and Marin-Duran (nt. 61) 995–96. Vienna Declaration, para 5. Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25 RECIEL 142, 146; Benoît Mayer, ‘Obligations of Conduct in the International Law on Climate Change: A Defence’ (2018) 27 RECIEL 130, 135.

Cultural Rights, Environmental Rights and Climate Rights 335 Article 2 of the Paris Agreement.73 Whether this obligation can also be considered a fundamental right is an entirely new question that requires de lege ferenda analysis. Officially, the Preamble to the Paris Agreement only affirms that climate change is ‘a common concern of humankind’ and the Parties should ‘respect, promote and consider their respective obligations on human rights’ in ‘taking action to address climate change’. In 2016, a decision of the US Court for the District of Oregon in the case of Juliana v US stated that ‘the right to a climate system capable of sustaining human life’ is ‘fundamental to a free and ordered society’.74 A Declaration on Climate Change and Human Rights adopted in 2017 by the NGO Global Network for Human Rights and the Environment recognizes that ‘everyone’ has ‘the right . . . to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below 2 degrees centigrade above preindustrial levels’ (Principle I(5)).75 This right is contextualized within the framework of the human right to a sustainable environment and entails correlated duties on State and non-State natural and legal persons. Principle II thus acknowledges the universal right of ‘all human beings’ to ‘active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the climate’, including the right to a prior human rights impact assessment and processes free from domination by powerful economic actors as well as the right of Indigenous peoples to participate in the protection of cultural heritage.76 These rights are framed within the context of the recognition of ‘the need for all cultures, faiths and traditions to play a role in the fullest development of climate and environmental stewardship, the teaching of respect for all living beings and systems and the development of climate resilient communities’ (Preamble). In 2019, the Special Rapporteur to the UN HRC on the environment and human rights, Professor Boyd, adopted a ‘climate’ report and applied to States the tripartite human rights duties to respect, protect and fulfil ‘the right to a safe climate’, particularly via mitigation and adaptation measures.77 This right emerges within the context of the clear affirmation of a more general human right to a sustainable environment.78

73 (Paris 12 December 2015) entered into force 4 November 2016 3156 UNTS. 74 Juliana v United States, 217 F. Supp. 3d, D. Or. 2016, at 1250. 75 Kirsten Davies et al, ‘The Declaration on Human Rights and Climate Change: A New Legal Tool for Global Policy Change’ (2017) 8 JHRE 217, 250. 76 This statement perfectly complements the draft Resolution on Human Rights and Indigenous People (nt. 58), which recognizes ‘the increasing impact of climate change on the enjoyment of human rights and its specific impact on the enjoyment of rights and ways of life of indigenous peoples around the world’ and recalls that ‘States should, when taking action to address climate change, respect, promote and consider their respective obligations on the rights of indigenous peoples’, acknowledging ‘the need to strengthen the role of indigenous peoples’ knowledge systems relating to mitigation and adaptation to climate change’. 77 UNGA, ‘Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’, UN Doc A/74/161 (15 July 2019) para 65. 78 ibid 13.

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At the regional level, under EU law, the EU Parliament’s Resolution on the Effect of Climate Change on Human Rights notes that ‘all people’ should be granted the ‘fundamental right to a safe, clean, healthy and sustainable environment and to a stable climate’, without discrimination, which should be implemented through ‘ambitious policies’ and should be ‘fully enforceable through the justice system at all levels’ (Principle 9). This right complements the human rights obligations for States, businesses and individuals to redress damage caused by climate change (Principle 5). Such a right is recognized within the context of a general statement acknowledging that ‘the growing phenomenon of climate-induced displacement may pose a direct threat to human rights, culture and traditional knowledge for the population concerned’ and may have ‘a significant impact on local communities in the countries and territories where they come to settle’ (Preamble, letter Q). By contrast, there are no recent developments on the matter in the ECHR. Whilst this may be justified by the fact that the Convention is still grounded in first- and second-generation human rights, it must not be forgotten that there have been some developments in this regard. Notably, in September 2009 the Parliamentary Assembly of the Council of Europe adopted a Resolution acknowledging that ‘[c]limate change raises important questions about social justice, equity and human rights across countries and across generations’.79 With respect to decision-making, the human right to a sustainable climate would probably be even more meaningful than the right to a sustainable environment in advancing action for on-site and general climate measures of adaptation and mitigation. By putting an emphasis on the human rights dimension of climate change, the right at issue would be particularly incisive in underscoring the need for action to preserve tangible and intangible cultural heritage from the disruptive implications of global warming. From the standpoint of rights enforcement, the recognition of a fundamental right to a sustainable climate would have the same effect as the recognition of a fundamental right to a sustainable environment. Indeed, the causal nexus between excessive GHG emissions and the third-generation collective human right to a safe climate, including cultural implications, would still be a direct one, instead of an indirect one, unlike first- and second-generation human rights: (1) (2) (3)

Excessive anthropogenic GHG emissions under the UNFCCC; Legal implications: breach of the right to a sustainable climate and cultural rights (specific causation); Action in international and EU institutions.

In other words, solely because of the existence of excessive GHG emissions as calculated under the UNFCCC regime, a State might be held in breach of the human right to a sustainable climate, thus triggering action in competent EU and international

79 Council of Europe Parliamentary Assembly, ‘Challenges Posed by Climate Change’ Resolution 1682(2009) para 11.

Cultural Rights, Environmental Rights and Climate Rights 337 human rights institutions aiming to protect cultural heritage and overcoming the main obstacle that emerged in the course of the Inuit petition to the IACHR. Whilst preserving the same advantages as those inherent in the recognition of a fundamental right to a safe environment, the recognition of a human right to a safe climate would present significant structural advantages. Naturally, as in the case of the fundamental right to a safe environment, the recognition of the human rights characterization of the right to a sustainable climate would also mean a shift in focus from the interstate nature of the claim and correlated obligation as currently established under the UNFCCC regime to a claim primarily addressing individuals as the right-holders, vis-à-vis all other State and non-State persons in EU and international law, possibly including not only present generations, but also future ones. Indeed, the Special Rapporteur on cultural rights has underscored that, in addition to States, businesses must be held accountable for climate-related violations of cultural rights considered as human rights.80 However, unlike the holistic right to a sustainable environment, the fundamental right to a sustainable climate is more specific, and therefore asserting the erga omnes nature of such a right would entail no specific consequences for other rights, such as the rights to the protection of soils and culture. Thus, in Certain Activities Carried Out by Nicaragua in the Border Area, Judge Dugard meaningfully observed that ‘the obligation not to engage in wrongful deforestation’, which ‘results in the release of carbon into the atmosphere and the loss of gas sequestration services’, is ‘certainly an obligation erga omnes’.81 Along these lines, it would also be possible to think about the right to a sustainable climate as a peremptory norm under general international law. Indeed, in light of the widespread consciousness of the essential importance for the international community of the need to combat climate change, it cannot be excluded that such an interest is evolving as a general non-derogable international legal norm.82 Whilst these are, of course, all de lege ferenda developments, outlining a fundamental right to a safe climate as an erga omnes (and possibly peremptory) obligation would definitely reinforce claims to on-site action and general mitigation against climate change aiming to protect cultural rights, including rights-enforcement. These implications would apply not only vis-à-vis States, but also vis-à-vis non-State natural and legal persons in international and EU law via adjudication by domestic courts. Considering the ramifications of the human right to a sustainable climate is certainly a way to systemically address climate change and its impact on culture and cultural rights, as required by the Special Rapporteur on cultural rights in the final recommendations of the 2020 Report on Climate Change, Culture and Cultural Rights.83 80 2020 Report, Annex, para 19. 81 Certain Activities Carried Out by Nicaragua in the Border Area, Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica (Costa Rica v Nicaragua) Dissenting Opinion Dugard J, 120. 82 Ottavio Quirico, ‘Towards a Peremptory Duty to Curb Greenhouse Gas Emissions?’ (2021) 44 FILJ 923. 83 2020 Report, para 83(a).

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Conclusion

Climate change is a pervasive phenomenon that has devastating effects on cultural heritage and deeply affects cultural rights, which can play an important role from the standpoint of decision-making and rights enforcement. From the viewpoint of decision-making, the impact of climate change on cultural rights must be adequately taken into account in the adoption of on-site mitigation and adaptation measures. Furthermore, cultural rights must be adequately weighed in the adoption of mitigation measures under the UNFCCC. A human rights-based approach to cultural rights cannot but strengthen the adoption of such measures. From the standpoint of rights enforcement, a failure to adopt adequate measures to protect cultural rights from the impact of climate change triggers action in relevant adjudication bodies. A human rights-based approach to cultural rights adds a protection layer, allowing the possibility of commencing proceedings in relevant human rights institutions under international law, EU law and the ECHR. The fundamental problem remains, however, that causation is indirect and difficult to demonstrate. Particularly in light of the tight relationship between the environment and cultural rights, the recognition of a human right to a sustainable environment would further strengthen the possibility of adopting mitigation and adaptation measures to protect cultural human rights from climate change. More specifically, from the standpoint of rights enforcement, the human right to a sustainable environment would simplify causation and therefore action to protect cultural heritage in human rights bodies under international law, EU law and the ECHR. The further recognition of a human right to a sustainable climate would have the same effect as the recognition of a human right to a sustainable environment. However, the recognition of a human right to a sustainable climate would avoid key systemic shortcomings that are implicit in the holistic notion of a human right to a sustainable environment and disclose additional perspectives, such as the possibility of a peremptory approach to climate change mitigation and the protection of cultural heritage.

18 A Cultural Rights-Based Approach to Climate Change? Limits and Implications of Cultural Claims in Climate Cases Before International Human Rights Monitoring Bodies Elena Carpanelli* 1

Introduction

As acknowledged by the former UN Special Rapporteur in the field of cultural rights, Karima Bennoune, in her 2020 Report on climate change, culture and cultural rights, ‘the climate emergency is the greatest of many contemporary threats to culture and cultural rights around the world’.1 Climate change is indeed having an adverse impact on cultural and natural heritage and, more generally, on the ‘conditions that allow people, without discrimination, to access, participate in and contribute to cultural life’.2 The existential threat that climate change poses to low-lying small island developing States is a case in point. In the Maldives, for instance, the sea level rise and the ocean acidification linked to climate change threatens cultural sites and natural resources that are critical to the inhabitants’ participation in cultural life. As a further example, the ecological impact of climate change on the alpine environment in Eastern Tibet jeopardizes the possibility for the Indigenous peoples living therein to continue their traditional cultural practices.3

* Assistant Professor in International Law, Department of Law, Politics and International Studies (Department of Excellence 2023–2027), Center for Studies in European and International Affairs, University of Parma (Italy). 1 UNGA, ‘Field of Cultural Rights. Report of the UN Special Rapporteur in the Field of Cultural Rights’ UN Doc A/75/298 (10 August 2020) (hereinafter: 2020 Report) para 24. 2 ibid para 2. For the purpose of this chapter, the expression ‘cultural rights’ refers to all rights in the field of culture, conceived both as an artistic product and as a way of life, provided for in human rights treaties as interpreted by the competent monitoring bodies. See UN HRC, ‘Report of the Independent Expert in the Field of Cultural Rights’ UN Doc A/HRC/14/36 (22 March 2010) para 4 ff. On the protection of cultural rights in international law see Francesco Francioni and Martin Scheinin (eds) Cultural Human Rights (Martinus Nijhoff 2008); Pok Yin S. Chow, Cultural Rights in International Law and Discourse. Contemporary Challenges and Interdisciplinary Discourse (Brill|Nijhoff 2018); Yvonne Donders, ‘Cultural Rights in International Human Rights Law: From Controversy to Celebration’ (2019) 62 JYIL 61. 3 Jan Salick and Nanci Ross, ‘Introduction. Traditional People and Climate Change’ (2009) 19 GEC 137, 138. DOI: 10.4324/9781003357704-23

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Clearly, cultural rights are not the only rights whose enjoyment is jeopardized by climate change. In the last few decades, human rights bodies have recognized on several occasions that climate change threatens the effective enjoyment of an array of human rights, which are by their very nature interrelated, interdependent and mutually reinforcing.4 Yet, cultural rights are ‘particularly drastically affected, in that they risk being simply wiped out in many cases’.5 In fact, due to the adverse effects of climate change, certain populations might not be able, in the near future, to continue living in their traditional territories and relying on environmental resources to which they attach a cultural value.6 Against this background, it is unsurprising that cultural rights have been invoked, together with other rights, such as those to life, food and health, in complaints brought before international human rights monitoring bodies in the attempt to hold States accountable for failing to reduce greenhouse gas (GHG) emissions. In the absence of the appropriate remedies provided for in relevant environmental treaties,7 cultural rights, like other human rights, can seem like a tempting tool to fill in the existing accountability gap. The present chapter focuses on the “cultural rights-based claims” that have been put forward or that could be put forward in the future in the context of climate change cases before human rights monitoring bodies in order to discuss their implications as well as the challenges they may face. Human rights-based climate litigation, including that grounded on cultural rights, is indeed meant to fill in current legal and policy gaps and, if successful, could contribute to driving State action towards more sustainable development.8 2

Setting the Scene: The Surge in Human Rights-Based Climate Litigation before International Human Rights Judicial and Quasi-judicial Bodies

Over the last few years, international judicial and quasi-judicial human rights bodies have increasingly been called upon to adjudicate petitions filed by individuals who had complained that their rights had been breached as a result of the States’ failure to comply with their policy and legal commitments to reduce

4 See, among many, UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/41/21 (23 July 2019). See also OHCHR, ‘OHCHR and Climate Change’ . Last access to all links mentioned in this chapter: 19 February 2023. 5 2020 Report, para 2. On cultural rights and climate change, Ariranga Pillay, ‘Economic, Social and Cultural Rights and Climate Change’, in Oliver Ruppel, Christian Roschmann and Katharina RuppelSchlichting (eds) Climate Change: International Law and Good Governance (Nomos 2013) 243, 246. 6 UN HRC, ‘The Impacts of Climate Change on the Human Rights of People in Vulnerable Situations’ UN Doc A/HRC/50/57 (6 May 2022) para 4. 7 See Paris Agreement (Paris 12 December 2015) entered into force 4 November 2016 3156 UNTS. 8 On climate change, sustainable development and human rights see, inter alia, David Boyle, ‘Climate Change, Sustainable Development and Human Rights’, in Markus Kaltenborn et al (eds) Sustainable Development Goals and Human Rights (Springer 2020) 171–189.

A Cultural Rights-Based Approach to Climate Change? 341 GHG emissions and tackle the adverse effects of climate change.9 At the regional level, for instance, several climate proceedings are currently pending before the European Court of Human Rights (ECtHR). The most notorious is the application filed in September 2020 by six Portuguese youths against 33 States parties to the European Convention on Human Rights (ECHR).10 The applicants complained that their rights to life and to respect for their private and family life had been violated due to those countries’ failure to take sufficient action with respect to climate change.11 Since then, several other applications have been brought before the ECtHR, all dealing, albeit with some differences, with insufficient government action against climate change.12 They include the application filed by six young climate activists against Norway, by which the Court was asked to rule that the respondent State’s plans to drill in Arctic waters violated the applicants’ human rights to life and to respect for their private and family life.13 Furthermore, one can recall the application filed by an Italian youth living close to the Dolomites against 33 States parties to the ECHR, complaining that the lack of climate action had meant a violation of her rights to life and to respect for her private and family life.14 In all the aforementioned applications, the claimants also argued that the respondent States had violated Article 14 of the ECHR, which prohibits discrimination, as young people, like other vulnerable groups, will experience the worst effects of climate change. Petitions concerning States’ inaction vis-à-vis climate change have also been brought before the Inter-American Commission of Human Rights (IACHR). In 2013, the Athabaskan Council, which represents Arctic Indigenous people, brought a petition complaining that Canada had breached their rights to health, culture and property, protected under Articles XI, XIII and XXIII of the American Declaration of the Rights and Duty of Man,15 by not adequately curbing polluting emissions with the result that it had contributed to climate change and

9 For an overview, Riccardo Luporini and Arpitha Kodiveri, ‘The Role of Human Rights Bodies in Climate Litigation’ (EUI 2021) EUI Working Paper 2021/12. 10 (Rome 4 November 1950) entered into force 3 September 1953. 11 Rights protected under Articles 2 and 8 of the ECHR. See Duarte Agostinho and Others v Portugal and 32 other States, ECtHR Application No 39371/20 (2 September 2020). 12 See KlimaSeniorinnen v Switzerland, ECtHR Application No 53600/20 (26 November 2020); Careme v France, ECtHR Application No 7189/21 (28 January 2021); Uricchio v Italy and other 32 States, ECtHR Application No 14615/21 (3 March 2021). See also Müllner v Austria, lodged on 25 March 2021, not communicated yet; Soubeste and Others v Austria and 11 other States, not communicated yet; Human Being v United Kingdom, lodged on 26 July 2022, not communicated yet; Plan B Earth and Other v United Kingdom, lodged on 11 July 2022, not communicated yet. All these complaints are available as part of the Climate Change Litigation Databases provided by the Sabin Center for Climate Change Law of Columbia Law School at the website: . 13 Greenpeace Nordic and Others v Norway, ECtHR Application No 34068/21 (15 June 2021). 14 De Conto v Italy and 32 other States, ECtHR Application No 14620/21 (3 March 2021). 15 (Bogotà 2 May 1948) (hereinafter: ADRDM).

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the adverse effects stemming therefrom.16 Remarkably, a similar petition had already been brought before the Commission in 2005 by Sheila Watt-Cloutier, President of the Inuit Circumpolar Conference, against the United States. The petitioner had complained that this State, by not preventing the adverse effects of climate change in the Arctic region, had violated Inuit rights to life, health, property and culture.17 However, on 26 November 2006, the Commission decided not to process the petition as the information it contained did not allow to determine whether the alleged facts constituted a violation of the American Declaration.18 At the universal level, the Human Rights Committee (HRC) has been called upon to adjudicate, in the case Daniel Billy et al v Australia (also known as the Torres Strait Islanders case), on whether Australia violated the rights to life, to respect for one’s privacy and family life and to culture, protected under Articles 6, 17 and 27 of the International Covenant on Civil and Political Rights (ICCPR),19 of the Torres Strait Islanders, due to its failure to adopt proper measures to reduce GHG emissions and to build barriers that could have limited the damage arising from the sea level rise. In its views adopted by majority in July 2022,20 the HRC concluded that Australia had violated the rights of the authors of the communication under Articles 17 and 27 by not taking adequate measures to protect them from the adverse effects of climate change.21 The HRC, at the same time, did not accept the authors’ claim that Australia had also violated Article 6, as it declared itself not to be in the position to conclude that the adaptation measures undertaken by the State would be insufficient and thus would represent a direct threat to the claimants’ right to live with dignity.22 Unsurprisingly, this finding has been the most debated – as proved by the several individual opinions attached to the views – and has been criticized in legal scholarship as limiting the protection that should have been afforded to those affected by the adverse impacts of climate change, in line

16 ‘Petition to the IACHR Seeking Relief from Violations of the Rights of Arctic Athabaskan People Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada’ (23 April 2013) . On this petition, Agnieszka Szpak, ‘Arctic Athabaskan Council’s Petition to the Inter-American Commission on Human Rights and Climate Change – Business as Usual or a Breakthrough?’ (2020) 162 Climatic Change 1575. 17 ‘Petition to the IACHR Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States’ (7 December 2005) . The right to life is protected under Article I of the ADRDM. 18 OAS, ‘Communication on Petition No P-1413–05’ (16 November 2006) . 19 (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171. 20 HRC, ‘Views Adopted by the Committee under Article 5.4 of the Optional Protocol, concerning Communication No 3624/2019’ UN Doc CCPR/C/135/D/3624/2019 (22 September 2022). 21 ibid para 11. 22 ibid para 8.7.

A Cultural Rights-Based Approach to Climate Change? 343 with the HRC’s previous practice.23 That notwithstanding, the HRC’s views have been generally welcomed as a landmark step forward as they represent the first “decision” at the international level tackling substantive human rights issues linked to climate change. In October 2021, the Committee on the Rights of the Child (CRC) had issued, in fact, five inadmissibility decisions in the case Sacchi and Others against Argentina, Brazil, France, Germany and Turkey.24 The petitioners, 16 youths, including the well-known activist Greta Thunberg, had alleged that the respondent States had violated their rights protected under the International Convention on the Rights of the Child (ICRC),25 including those to life (Article 6), health (Article 24) and culture (Article 30), by making insufficient efforts to reduce GHG emissions and by not encouraging the biggest emitters to curb their emissions. The CRC eventually found the claims inadmissible as the petitioners had not previously exhausted all available domestic remedies.26 The aforementioned developments fit and expand on more generalized trends which have already emerged at the national level, such as the progressive resort to litigation in the attempt to tackle the climate change crisis27 and the plaintiffs’ rising reliance on human rights norms and remedies as a legal basis for their claims.28 In the attempt to overcome the possible limits of the current international and national

23 Nicole Barret and Aishani Gupta, ‘Why Did the Human Rights Committee Refuse Broader Protections to Climate Change Victims?’Opiniojuris (5 October 2022) . 24 CRC, ‘Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning Communication No 104/2019’ UN Doc CRC/C/88/D/104/2019 (11 November 2021); CRC, ‘Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning Communication No 105/2019’ UN Doc CRC/C/88/D/105/2019 (9 November 2021); CRC, ‘Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning Communication No 106/2019’ UN Doc CRC/C/88/D/106/2019 (10 November 2021); CRC, ‘Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning Communication No 107/2019’ UN Doc CRC/C/88/D/107/2019 (11 November 2021); CRC, ‘Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning Communication No 108/2019’ UN Doc CRC/C/88/D/108/2018 (8 October 2021). 25 (New York 20 November 1989) entered into force 2 September 1990 1577 UNTS 3. 26 Laura Magi, ‘Cambiamento climatico e minori: prospettive innovative e limiti della decisione del Comitato dei diritti del fanciullo nel caso Sacchi et al.’ (2022) 16 DUDI 233. 27 Among others, Cinnamon Piñon Carlarne, ‘The Essential Role of Climate Litigation and the Courts in Averting Climate Crisis’, in Benoit Mayer and Alexander Zahar (eds) Debating Climate Law (CUP 2021) 111–127; Wolfgang Kahl and Marc-Philippe Weller (eds) Climate Change Litigation: A Handbook (Nomos 2021); Pau de Vilchez Moragues, Climate in Court. Defining States Obligations on Global Warming through Domestic Climate Litigation (EE 2022). 28 Among others, Jacqueline Peel and Hari M. Osofski, ‘A Rights Turn Climate Change Litigation?’ (2018) 7 TEL 37; Annalisa Savaresi and Juan Auz, ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9 Climate Law 244.

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legal regimes effectively and address the climate threat in a timely manner,29 litigants worldwide have generated a groundswell of climate cases with the aim of holding States and private corporations accountable for their failure to reduce GHG emissions and, as a result, to prompt the adoption of more incisive measures to combat climate change. These proceedings have involved first and mostly national courts; however, climate complaints have also been introduced at the regional and international levels.30 Whereas the identification of detectable trends clashes with the heterogenous character of climate change litigation, there is no doubt that human rights norms have increasingly played a significant role in it. Not only have litigants made arguments based on human rights, but such claims have at times had a positive outcome.31 The Supreme Court of the Netherlands’ well-known 2019 Urgenda judgment is a good example in this respect.32 The Supreme Court, in upholding the previous decisions of the District Court of the Hague and of the Hague Court of Appeal, found that the Netherlands had a positive obligation, under Articles 2 and 8 of the ECHR, to take reasonable and suitable measures to prevent climate change and, in order to comply with it, needed to reduce its emissions by 25% compared to the 1990 level by the end of 2020. The climate claims that have been brought before international human rights judicial and quasi-judicial bodies follow in the footsteps of the human rights-based climate change litigation which has flourished at the national level. Yet, they serve an additional dual purpose, namely, to overcome the “fragmentation” and legal hurdles emerging at the national level and to provide an authoritative guide concerning the scope of international human rights norms invoked before national jurisdictions in the field of climate change. Arguably, the human rights-based approach that has characterized an increasing number of climate change cases relies on – and is the result of – the progressive recognition of the nexus existing between human rights and the environment and, more specifically, between human rights and climate change. Already in 2008, the Human Rights Council (UN HRC) had adopted a resolution on human rights and

29 Challenges concern, for instance, the effective implementation of the Paris Agreement. See Annalisa Savaresi, ‘The Paris Agreement and the Future of the Climate Regime: Reflections on an International Law Odissey’, in George Ulrich and Ineta Ziemele (eds) How International Law Works in Time of Crisis (OUP 2019) 189 ff. 30 At the regional level, see also Case C-565/19P Armando Ferrao Carvalho et al v the European Parliament and the Council [2021] ECLI:EU:C:2021:252, in which the applicants argued that the European Union did not limit GHG emissions as required by EU and international law. 31 However, not all human rights-based climate claims advanced at the domestic level have been successful. For a list of these cases, the already-mentioned Greenpeace Nordic v Norway, see de Vilchez Moragues (nt. 27) 260. On the different approaches of national courts with respect to the relevance of human rights norms for climate change, Victoria Adelmant, Philip Alston and Matthew Blainey, ‘Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backward in the Irish Supreme Court’ (2021) 13 JHRP 1. 32 The State of the Netherlands v Urgenda Foundation, Judgment (20 December 2019) Case No 19/00135.

A Cultural Rights-Based Approach to Climate Change? 345 climate change, where it recognized that climate change had implications for the full enjoyment of human rights.33 Since then, the UN HRC has adopted resolutions on the same topic on an almost annual basis.34 In 2021, the UN HRC even appointed a Special Rapporteur on the promotion and protection of human rights in the context of climate change with the mandate to study and identify how the adverse effects of climate change affect the full and effective enjoyment of human rights.35 Over the years, the Office of the UN High Commissioner for Human Rights (OHCHR) has also issued thematic reports on climate change and the right to health,36 the rights of the child,37 migration,38 the rights of persons with disabilities,39 the rights of older persons,40 and people in vulnerable situations.41 Likewise, the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment has delivered specific reports concerning the impact of climate change on human rights.42 Human rights treaty bodies have also stressed the link existing between human rights and climate change.43 In 2018, the HRC found, for instance, that climate

33 UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/7/23 (28 March 2008) Recital 1. 34 See, inter alia, UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/18/22 (17 October 2011); UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/26/27 (15 July 2014); UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/32/33 (1 July 2016); UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/35/20 (7 July 2017); UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/47/24 (26 July 2021); UN HRC, ‘Human Rights and Climate Change’ UN Doc A/HRC/RES/50/9 (14 July 2022). 35 UN HRC, ‘Mandate of the Special Rapporteur on the Promotion and Protection of Human Rights in the context of Climate Change’ UN Doc A/HRC/RES/48/14 (13 October 2021). 36 OHCHR, ‘Analytical Study on the Relationship between Climate Change and the Human Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ UN Doc A/HRC/32/23 (6 May 2016). 37 OHCHR, ‘Analytical Study on the Relationship between Climate Change and the Full and Effective Enjoyment of the Rights of the Child’ UN Doc A/HRC/35/13 (4 May 2017). 38 OHCHR, ‘Addressing Human Rights Protection Gaps in the context of Migration and Displacement of Persons across International Borders resulting from the Adverse Effects of Climate Change and Supporting the Adaptation and Mitigation Plans of Developing Countries to Bridge the Protection Gaps’ UN Doc A/HRC/38/21 (23 April 2018). 39 OHCHR, ‘Analytical Study on the Promotion and Protection of the Rights of Persons with Disabilities in the Context of Climate Change’ UN Doc A/HRC/44/30 (22 April 2020). 40 OHCHR, ‘Analytical Study on the Promotion and Protection of the Rights of Older Persons in the Context of Climate Change’ UN Doc A/HRC/47/46 (30 April 2021). 41 UN HRC, ‘Impacts of Climate Change’ (nt. 6). 42 UN HRC, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ UN Doc A/HRC/31/52 (1 February 2016); UN HRC, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ UN Doc A/74/161 (15 July 2019). 43 The main exceptions are the HRC’s views in the already recalled Torres Strait Islanders case (supra nt. 20) and in the case Teitiota v New Zealand, where it acknowledged the nexus between climate change and the violation of the right to life. HRC, ‘Views adopted by the Committee under Article 5.4 of the Optional Protocol, concerning Communication No 2728/2016’ UN Doc CCPR/ C/127/D/2728/2016 (23 September 2020).

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change constitutes one of the most pressing and serious threats to the ability of present and future generations to enjoy their right to life.44 This recognition has been followed by a joint statement on climate change and human rights issued in September 2019 by five UN human rights treaty bodies, whereby they recognized that climate change poses significant risks to the enjoyment of human rights protected under international legal instruments, in particular the rights to life, to adequate food, to adequate housing, to health, to water and to culture.45 Against this background, the Report on climate change, cultural and cultural rights, issued in 2020 by the UN Special Rapporteur in the field of cultural rights, can be seen as a further recognition of the relationship between human rights and climate change. However, two considerations should be made. First, this report is not the only human rights document in which culture and climate change have been jointly taken into account. In the already recalled report on climate change and the rights of the child, for instance, the OHCHR has outlined that climate change poses a threat to children’s cultural identity and that children could be separated, as a result of climate change, from their cultural heritage.46 Moreover, in its report on climate change and people in vulnerable situations, the same Office observed how climate change can impinge, inter alia, on cultural rights.47 The UN Special Rapporteur on human rights and the environment has also related climate change, culture and cultural rights, insofar as it has recognized that ‘among the human rights being threatened and violated’ by climate change ‘are the rights to . . . culture’.48 Yet, and here comes the second notable aspect, until the 2020 Report on climate change, cultural and cultural rights, the recognition of the nexus between cultural rights and climate change had been – to say the least – timid.49 Neither of the documents recalled above have gone further than generally referring to the impact that climate change may have on the enjoyment of cultural rights. Moreover, the “cultural rights dimension” has been left out in important documents in which it could have been properly delved into, such as the UN Committee on Economic, Social and Cultural Rights (CESCR) 2018 statement on climate change and the International Covenant on Economic, Social and Cultural Rights (ICESCR).50

44 HRC, ‘General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life’ UN Doc CCPR/C/GC/36 (30 October 2018) para 62. 45 Joint statement of the Committee on the Discrimination against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrants Workers, Committee on the Rights of the Child and Committee of the Rights of Persons with Disabilities on Human Rights and Climate Change, UN Doc HRI/2019/1 (14 May 2020). 46 OHCHR, ‘Analytical Study on Climate Change and the Rights of the Child’ (nt. 37) paras 19, 27. 47 UN HRC, ‘Impacts of Climate Change’ (nt. 6) paras 7, 15. 48 UN HRC, ‘Report No A/74/161’ (nt. 42) para 26. 49 Human rights bodies have already addressed, however, the relationship between environmental degradation in general and cultural rights. See, for instance, HRC, ‘General Comment No 23’ UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) paras 7, 9. 50 (New York, 19 December 1966) entered into force 3 January 1976 993 UNTS 3. See also ECOSOC, ‘Statement on Climate Change and the ICESCR’ (8 October 2018) .

A Cultural Rights-Based Approach to Climate Change? 347 In this context, the adoption of a report specifically devoted to investigating the cultural rights dimension of the current climate emergency is praiseworthy. In particular, the 2020 Report on climate change is innovative insofar as it delves in depth into the nexus between climate change and cultural rights. Whether the clear findings contained in this Report would boost cultural rights-based claims in climate litigation, both at the national and international levels, is however still to be seen. The Special Rapporteur seemingly hoped for such a development. She indeed noted that there exists ‘a growing jurisprudence at the national and international levels around the world regarding both the human rights impact of climate change, and accountability for damage to culture related to environmental harms’ and found that ‘this needs to be expanded and to specifically address the particular question of accountability for damage to culture and cultural rights from climate change’.51 Taking this statement as a starting point, the next sections will examine the cultural rights-based claims that have been brought so far before human rights monitoring bodies, their successful outcome in the Torres Strait Islanders case, as well as those claims that could be brought in the future, and will discuss their limits and implications. 3

Climate Change Litigation and Cultural Rights: An Assessment of Current Practice

As emerged from the previous section, in its views in the Torres Strait Islanders case, the HRC upheld the petitioners’ claims that, as a result of its inaction vis-à-vis climate change, Australia had violated, inter alia, Article 27 of the ICCPR. Under this provision, persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture. The HRC, after recalling that Article 27 ‘enshrines the inalienable right of indigenous peoples to enjoy the territories and the national resources that they have traditionally used for their subsistence and cultural identity’,52 found that Australia had violated its positive obligation to protect the petitioners’ right to enjoy their minority culture. This is because it had failed to adopt in a timely manner, adequate adaptation measures, in particular the construction of a seawall on the islands where the authors of the communication live, in order to protect their ‘collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources’.53 The HRC majority’s approach has been rightly criticized by Committee member Gentian Zyberi in its concurring individual opinion, as being too focused on adaptation, rather than on mitigation measures: [The] Committee should have linked the State obligation to ‘protect the authors’ collective ability to maintain their traditional way of life, to transmit

51 2020 Report, Annex, para 29. 52 HRC, ‘Views on the Torres Strait Islanders case’ (nt. 20) para 8.13. 53 ibid para 8.14.

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to their children and future generations their culture and traditions and use of land and sea resources’ more clearly to mitigation measures, based on national commitments and international cooperation – as it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedy the effects. If no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible.54 However, through its views, the HRC has acknowledged for the first time that climate change can have a negative impact on the enjoyment of cultural rights and recognized that States should be held responsible for their inadequate action. Indeed, not all cultural rights-based claims that have been filed so far before human rights bodies have been successful. As already mentioned, in their communication to the CRC, Greta Thunberg and the other 15 youths had claimed that, as a result of their actions perpetuating the climate crisis, the respondent States had violated the cultural rights of those of them belonging to Indigenous communities, in breach of Article 30 ICRC, which states that in those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right to, in community with other members of her/his group, to enjoy his or her own culture. The petitioners, who included members of Indigenous communities in Alaska and the Sapmi, noted, in particular, that if respondents continue their current emissions pathways, the world would warm enough to decimate indigenous cultures throughout the world55 and that by recklessly perpetuating life-threatening climate change, the respondents have failed to take necessary preventive and precautionary measures to guarantee the indigenous petitioners’ right to their culture, and thus violating Article 30 of the Convention.56 However, the CRC declared this petition inadmissible due to the lack of exhaustion of domestic remedies, thus preventing any decision on the merits. This does not exclude, nonetheless, that similar claims will be advanced in the future before the

54 ibid, individual concurring opinion by Gentian Zyberi, 6. 55 Communication to the Committee on the Rights of the Child, Sacchi and Others v Argentina, Brazil, France, Germany and Turkey (23 September 2019) para 293. 56 ibid para 300.

A Cultural Rights-Based Approach to Climate Change? 349 same monitoring body, provided that the domestic remedies available are in fact exhausted. Notably, at the universal level, cultural rights are at issue also in special procedures. An example is the complaint submitted in 2020 to several UN Special Rapporteurs by the Alaska Institute for Justice on behalf of five tribes located in Louisiana and Alaska. According to the complainants, the United States violated, inter alia, the cultural rights of these Indigenous peoples by not taking adequate action to combat climate change and, as a result, by inducing their forced displacement.57 The complaint relied on several human rights bodies’ findings concerning the negative impacts that environmental degradation may have on the right to enjoy culture and on the importance of this right for Indigenous peoples.58 A violation of First Nations peoples’ cultural rights is at stake also in another pending special complaint that Environmental Justice Australia has submitted, on behalf of five youths living in the country, to the UN Special Rapporteurs on Human Rights and the Environment, on the Rights of Indigenous Peoples, and on the Rights of Persons with Disabilities.59 The complainants assert that the contribution of Australia to climate change violates young First Nations peoples’ rights to enjoy their culture and take part in cultural life, breaching multiple human rights instruments, including the ICRC, the ICRSCR and the ICCPR.60 At the regional level, an alleged breach of cultural rights has been invoked in the two petitions – already mentioned above – brought before the Inter-American Commission on Human Rights by Sheila Watt-Cloutier, in her role as President of the Inuit Circumpolar Conference, and by the Athabaskan Council. Both petitions claimed that global warming impacted negatively on the right of the Inuit and Athabaskan, respectively, to enjoy their culture. The Inuit and the Athabaskan way of life, which strictly relies on the surrounding ecosystem, could in fact cease to exist because of the effects of climate change on the Arctic ice and on weather and land conditions. Moreover, Arctic warming could prevent the transmission of traditional cultural heritage to future generations.61 As a result, according to the petitioners, the respondent States, namely Canada and the United States, by failing to regulate black carbon emissions and by not adequately tackling the climate crisis, had acted in breach of the American Declaration on the Rights and Duties of Man, whose Article XIII recognizes that ‘every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries’, and of

57 ‘Rights of Indigenous People in Addressing Climate-Forced Displacement’ (15 January 2020) . 58 ibid 41. 59 Environmental Justice Australia v Australia. The complaint, which was lodged on 25 October 2021, is available at . 60 ibid para 36. 61 Athabaskan Council Petition (nt. 16) 3.

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other international law instruments.62 While the Inter-American Commission has rejected the Inuit petition due to the lack of sufficient evidence, it is still to be seen how the Commission will adjudicate the Athabaskan case. The “cultural dimension” of the climate change emergency has also been brought to the attention of the ECtHR. Despite the lack of a specific norm in the ECHR, the Court has indeed interpreted certain provisions, such as those upholding the right to respect for private and family life (Article 8), the freedom of thought, conscience and religion (Article 9) and the prohibition of discrimination (Article 14), as protecting rights falling within “cultural rights” in their broadest meaning.63 In the already mentioned application brought by Greenpeace Nordic and others against Norway, the applicants had complained, for instance, that the respondent State allegedly violated, inter alia, Article 14 of the ECHR, as the effects of climate change, to which Norway contributed, impinge in a disproportionate way on the rights of specific groups, including the members of the Saami community, whose culture is badly affected as a result of climate inaction.64 While the above-mentioned cases show the increasing relevance that cultural rights-based claims play in the context of climate litigation before human rights monitoring bodies, especially when the rights of minorities, and in particular Indigenous peoples, are at stake, it is to stress that not all available avenues have been pursued, and not all possible claims have been made so far. To date, for instance, no communication concerning the adverse effects of climate change and their impact on cultural rights has been filed before the CESCR. Consequently, the CESCR has not been called upon to adjudicate on whether States parties to the ICRSCR, by failing to curb GHG emissions and adequately tackle the adverse impacts of climate change, violated their obligations under Article 15 of the same instrument, which requires them to recognize the right to everyone to take part in cultural life, to enjoy the benefits of scientific progress and its applications and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Any such a communication would be particularly interesting, considering the wide reach of Article 15.65 Contrary to other human rights instruments, the ICRSCR does not link, in fact, cultural rights to the protection of a minority. This means that,

62 ibid 58 ff. See also Sheila Watt-Cloutier Petition (nt. 17) 74 ff. 63 Council of Europe, ‘Cultural Rights in the Case Law of the European Court of Human Rights’ (2011) . 64 Greenpeace Nordic and Others v Norway (nt. 13) para 67 ff. 65 On this provision, Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No 21 of the Committee on Economic, Social and Cultural Rights’, in Silvia Borrelli and Federico Lenzerini (eds) Cultural Rights, Cultural Diversity: New Developments in International Law (Brill 2012) 29 ff.

A Cultural Rights-Based Approach to Climate Change? 351 taking into account the threat that climate change poses to cultural heritage sites, an individual, even if not belonging to a minority, could hypothetically try to claim that his or her right to take part in cultural life under Article 15 ICESCR, which includes the right to access and enjoy cultural heritage,66 has been breached as a result of the inaction of States parties vis-à-vis the climate emergency. Significantly, no cultural rights-based climate communication has also been filed, to date, before the UN Committee on the Elimination of Discrimination Against Women, despite the fact that Article 13 of the Convention on the Elimination of All Forms of Discrimination against Women provides that States parties should ensure, on the basis of equality between men and women, the right to participate in cultural life,67 and that the UN Special Rapporteur in the field of cultural rights has recognized how the effects of climate change on cultural rights affect women in a disproportionate way.68 Lastly, up to now, cultural rights-based claims have mostly targeted the inaction (or inadequate action) of States with respect to the adverse effects of climate change. In this sense, these rights – like others – have been used to obtain redress for cultural damage stemming from climate change and to put pressure on States so that they take more incisive steps. It is to be noted, however, that cultural rights might also play a different role with respect to climate change. One relevant example in this regard is represented by the Ilisu Dam project on the Tigris river, which the Turkish government presented as a measure to curb GHG emissions.69 A few individuals complained before the ECtHR that the project, by entailing the flooding of important cultural heritage sites, affected, inter alia, the right to knowledge of cultural heritage and to transmit cultural values to future generations.70 The application was declared inadmissible by the Court for incompatibility ratione materiae and, as a result, the merits of the case were not assessed. It cannot be ruled out, however, that in the future human rights monitoring bodies will be increasingly called upon to adjudicate the (in)compatibility of positive measures adopted by States to counter climate change with the full enjoyment of certain cultural rights. There may indeed be several instances in which proactive adaptation measures could interfere with cultural rights, such as in the case of conservation programmes that could evict Indigenous peoples from their ancestral lands.71

66 CESCR ‘General Comment No 21’ UN Doc E/C.12/GC/21 (21 December 2009). See also UNGA, ‘Report of the UN Special Rapporteur in the Field of Cultural Rights’ UN Doc A/71/317 (9 August 2016) para 8. 67 (New York, 18 December 1969) entered into force 3 September 1981 1249 UNTS 13. 68 2020 Report, para 7. 69 For details on this submission, Kevin Grecksch and Beatriz Barreiro Carril, ‘Cultural Rights and Climate Change: Inputs to the Report of the UN Special Rapporteur in the Field of Cultural Rights’ (1 May 2020) . 70 Zeynep Ahunbay and Others v Turkey, ECtHR Judgment (29 January 2019) Application No 6080/06. 71 ibid paras 57 ff.

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Climate Change Litigation and Cultural Rights: Limits and Potential

All the claims that have been mentioned in the previous section bring with them their own peculiarities, linked to the facts and the legal provisions at stake, as well as, more generally, to the specificities of the human rights protection system in which they collocate themselves. That notwithstanding, some general considerations can be made. First, climate litigation before human rights bodies may raise procedural issues that can prevent such bodies from hearing climate cases on the merits. Academic literature features countless studies concerning the procedural hurdles that human rights-based climate litigation may encounter within the context of different human rights protection systems.72 They include, apart from the issue of the previous exhaustion of domestic remedies, the questions of standing and extraterritorial jurisdiction, given that, in most climate cases, the claimants allege a risk of future transboundary environmental harm. Moreover, climate applications also raise other issues, such as the question of attribution and shared responsibility for global harm.73 The HRC has set an important precedent with respect to some of these hurdles. In the Torres Strait Islanders case it rejected the State arguments that the communication was inadmissible due either to the impossibility for the State to be held responsible for the climate change impacts at stake or due to the lack of standing of the authors of the communication, thus overcoming previously controversial admissibility issues. As to the first point, the HRC found that a State can violate the ICCPR by failing to implement both adaptation and mitigation measures. In particular, as to mitigation, it observed that Australia ranked high among global emitters of GHG, as well as on world economic and human development indicators, and, as a result, the alleged actions and omissions fell under the State party’s jurisdiction.74 Concerning the second argument, the HRC concluded that the authors of the communication held victim status as they had presented real personal predicaments owing to climate change that could possibly have compromised their ability to maintain their culture, subsistence and livelihoods. Moreover, given their limited resources and location, they would likely be unable to finance adequate adaptation measures themselves, with the consequence that the risk of the impairment of their rights linked to the serious adverse impacts that had already occurred and that were ongoing was more than a theoretical possibility.75 It remains to be seen, however, whether other human rights monitoring bodies will follow in the HRC’s footsteps.

72 Helen Keller and Abigail Pershing, ‘Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases’ (2021) 3 ECHRLR 23. 73 Helen Keller and Corina Heri, ‘The Future is Now: Climate Cases before the ECtHR’ (2022) 40 NJHR 153–174. 74 HRC, ‘Views on the Torres Strait Islanders case’ (nt. 20) paras 7.6 ff. 75 ibid paras 7.11 ff.

A Cultural Rights-Based Approach to Climate Change? 353 All the aforementioned challenges concern climate cases in general, thus including those in which the complainants allege a breach of cultural rights. Yet, cultural rights-based claims could raise additional specific challenges that can prevent them from being brought before certain human rights monitoring bodies. Whereas these hurdles do not concern current climate litigation, they do deserve to be mentioned as they could both explain why cultural rights-based claims have had limited reach so far and shed light on possible future developments. An initial limit that cultural rights-based claims may face is the issue of their justiciability. Certain human rights bodies indeed have limited (or no) jurisdiction with respect to economic, social and cultural rights. This is the case of the Inter-American Court of Human Rights, which traditionally has exercised its jurisdiction only with respect to civil and political rights. It must be outlined, however, that this same Court has recently found economic, social and cultural rights directly justiciable under Article 26 of the American Convention on Human Rights (ACHR), which upholds the requirement that States parties undertake to adopt measures aimed at achieving progressively the full realization of the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States. In particular, the Court’s decision in the Lhaka Honhat Association case represents a significant step in upholding the justiciability of cultural rights,76 as the case concerned, inter alia, an alleged violation of the right to cultural identity of Indigenous peoples. The Court found that the respondent State, by not recognizing Indigenous peoples’ ancestral lands and allowing non-Indigenous peoples to engage in activities that badly affect the environment, violated the said right, and ordered specific reparations measures. Whereas it is true that this decision was all but unanimous,77 it opens a significant door for the Court to adjudicate climate-related cultural rights-based claims in the future. A further limit on cultural rights-based climate claims is the narrow recognition of cultural rights within specific human rights protection systems. One example is the ECtHR case law. The Court has in fact so far excluded that a universal right to the protection of, and access to, cultural heritage is safeguarded under the ECHR given that the international and European consensus recognizes this right only in connection with the protection of minorities or Indigenous peoples.78 This means that any application claiming a violation of the ECHR as a result of the impact that climate change may have on the individual right to access and enjoy cultural heritage (even when he or she is not member of a minority) would hardly been successful and, rather, would be found inadmissible due to its incompatibility ratione materiae with the Convention. Interestingly, however, this stance has started to be challenged by scholars, taking into account both the possibility to include “future generations” among the specific groups of people holding this right and by taking

76 Lhaka Honhat Association v Argentina (Judgment) IACtHR Series C No 400 (6 February 2020). 77 ibid, dissenting opinions of Judges Eduardo Vio Grossi, Humberto Antonio Sierra Porto and Ricardo Pérez Manrique. 78 Ahunbay and Others v Turkey (nt. 70) para 25.

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into account the growing trend, at the international level, towards the recognition of an individual right to the protection of, and access to, cultural heritage.79 Any climate application focusing on this specific dimension of cultural rights would therefore represent an interesting test bed over the ECtHR’s approach towards what it itself describes as a ‘sujet en evolution’80 and, in case of a change of attitude, will potentially lead the same Court to delve into the issue of the existing relevant State obligations under the ECHR. Whereas it is true that some of the aforementioned hurdles may in principle preclude human rights bodies from fully considering climate complaints on the merits, there are signals that they could be overcome. As far as “general” procedural issues are concerned, scholars have stressed how human rights bodies could ensure that they do not preclude an assessment on the merits.81 Moreover, relevant practice seems to point in the same direction. In the already recalled Sacchi and Others case, for instance, the CRC found that, when transboundary harm occurs, individuals are under the jurisdiction of the State on whose territory the emissions originated if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory,82 hence “solving”, as far as the ICRC is concerned, the jurisdiction conundrum. As previously stated, the HRC’s views in the Torres Strait Islanders case represent a further positive signal in the sense of the overcoming of certain controversial admissibility issues. With respect to more specific challenges related to cultural rights-based complaints instead, it has been underlined above how recent developments pave the way to possible “turns” in the case law of the relevant human rights monitoring bodies. But what are the implications when the cultural rights-based claims that have been brought about in the context of climate cases reach, such as in the Torres Strait Islanders case, enter the merit phase? First, as a result of the cultural rights-based claims that have been developed (or that will be developed) in the context of climate change petitions, human rights monitoring bodies can clarify the scope and content of the relevant provisions, including States’ obligations stemming therefrom. As already underlined, the petitions that have been brought before human rights bodies rely on the practice of international bodies which have already recognized the importance of protecting the environment as a precondition to ensure that minorities can continue enjoying their traditional ways of life and cultural practices.83 By way of example, one could recall the practice of the HRC, which found that certain State activities negatively impacting on the environment violated the rights protected under Article 79 Lorenzo Acconciamessa, ‘Public Interest Litigation before the ECtHR: Towards a Human Rights Approach to the Protection of Cultural Heritage?’ (2022) 1 OIDU 189, 202 ff. 80 Ahunbay and Others v Turkey (nt. 70) para 22. 81 Keller and Pershing (nt. 72) 23 ff. 82 CRC, ‘Communication No 104/2019 on Sacchi and Others v Argentina’ (nt. 24) para 10.7. 83 Communication to the CRC in Sacchi and Others (nt. 55) para 292 ff.

A Cultural Rights-Based Approach to Climate Change? 355 27 ICCPR insofar as they compromised the traditional ways of life of members of local communities.84 The cultural rights-based claims brought in the context of climate “litigation” could lead the same bodies to confirm and expand on such a practice, taking into specific account climate change–related risks. The HRC’s views with respect to the Torres Strait Islanders communication are a case in point, as the Committee recalled its previous practice on Article 27 before finding that this provision poses on the States parties not only a duty of abstention but also a positive obligation to protect Indigenous peoples’ rights to enjoy their minority culture vis-à-vis the adverse effects of climate change, to be discharged, for instance, by adopting timely adaptation measures. It also recognized – albeit implicitly when addressing reparation measures – the duty of States to ensure Indigenous peoples’ free and informed participation in any decision-making process that, by addressing climate change and its impact on culture, could be relevant for the continuation of their cultural practices. As already recalled, the HRC did not link the violation of Article 27 to the lack of mitigation measures adopted by Australia, limiting the cutting-edge effects of its views as far as the protection of the environment is concerned. Yet, it is possible that, if pending applications reached the merit phase, other human rights bodies could provide different guidance on the substantive and procedural State obligations related to climate change arising under the relevant provisions upholding cultural rights. Pending petitions are mainly aimed, in fact, at persuading human rights bodies to recognize the existence of an obligation to mitigate climate change under the relevant human rights treaties. Moreover, they may trigger additional ancillary obligations specifically arising out of cultural rights provisions. An example could be the upholding of a positive duty to cooperate in order to tackle the climate change emergency and its negative impacts on the enjoyment of cultural rights, given both the “global” dimension of the problem and the iniquity underpinning it.85 The CESCR, for instance, has already stressed the importance of such an obligation with respect to climate change and cultural rights as protected under Article 15 ICESCR, even if in the context of an analysis limited to the tenet of the right to science.86 Had a climate communication involving Article 15-based claims been submitted to it, it is likely that the Committee would have expanded its findings and applied them also to State obligations vis-à-vis the right of everyone to take part in cultural life. Yet, other human rights bodies could reach the same findings. In this sense, it is not surprising that the petitioners in the already recalled Sacchi

84 HRC, ‘Views on Communication No 1457/2006 in Angela Poma Poma v Peru’ UN Doc CCPR/ C/95/D/1457/2006 (24 April 2009) para 7.7. For an analysis of the HRC’s practice, Sumudu Atapattu, ‘Environmental Rights and International Human Rights Covenants: What Standards Are Relevant?’, in Stephen J. Turner et al (eds) Environmental Rights. The Development of Standards (CUP 2019) 26 ff. 85 The UN Special Rapporteur in the field of cultural rights has stressed how climate change disproportionality affects specific people and places. 2020 Report, para 7. 86 CESCR, ‘General Comment No 20 on science and economic, social and cultural rights’ UN Doc E/C.12/GC/25 (30 April 2020) para 81.

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and Others case, filed before the CRC, alleged that the respondent States’ failure to reduce GHG was in breach of their obligation to cooperate in tackling the climate change emergency, which stems from several provisions of the ICRC, including the one protecting cultural rights.87 Moreover, human rights bodies can address the issue of remedies for cultural rights violations deriving from the inaction of States in addressing the climate change emergency. In its views in the Torres Strait Islanders case, the HRC found that the respondent State had the obligation to provide adequate compensation, to the authors for the harm that they have suffered; engage in meaningful consultations with the authors’ communities in order to conduct needs assessments; continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; and monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable. The State party is also under an obligation to take steps to prevent similar violations in the future.88 As a result, the respondent State should take mitigation measures, but also compensate the harm suffered by the authors of the communication, also in terms of the interferences which had occurred as regards their right to enjoy their culture. Pending and future petitions could lead to similar or even more substantiated statements. From this perspective, the decisions stemming from cultural rightsbased litigation could elaborate further on the findings already reached by the UN Special Rapporteur in the field of cultural rights in her 2020 Report on climate change, culture and cultural rights. The Special Rapporteur undertook in fact an “impact-potential” perspective in addressing the topic, but it neither delved into the relevant State obligations under international human rights law nor focused on the appropriate remedies in the event of violations of cultural rights linked to climate change.89 In tackling cultural rights-based claims, human rights bodies could also ensure convergence between different regimes. As underlined by the HRC in its views in the Torres Strait Islanders case, in fact, to the extent that the authors are not seeking relief for violations of the other treaties before the Committee but rather refer to them in interpreting the State party’s obligations under the Covenant, the Committee considers that the 87 Communication to the CRC in Sacchi and Others (nt. 55) para 184 ff. 88 HRC, ‘Views on the Torres Strait Islanders case’ (nt. 20) para 11. 89 In this respect, the approach of the Special Rapporteur in the field of cultural rights differs from that of other Special Rapporteurs. Cf UN HRC, ‘The Right to Privacy in the Digital Age. Report of the UN High Commissioner for Human Rights’ UN Doc A/HRC/39/29 (3 August 2018) identifying States obligations vis-à-vis the challenges to the right to privacy in the digital age.

A Cultural Rights-Based Approach to Climate Change? 357 appropriateness of such interpretations relates to the merits of the authors’ claims under the Covenant.90 The HRC did not rely on international environmental treaties when assessing the violation of Article 27 ICCPR. However, this approach could be adopted by other human rights monitoring bodies that could interpret the relevant provisions of their human rights treaties taking into account other relevant international norms,91 such as those relating to climate change and cultural heritage.92 As a result, human rights litigation could represent the privileged setting for a “de-fragmentation” and harmonization attempt between three different bodies of law (international human rights law, international climate change law and international cultural heritage law)93 as well as – to use the words of the UN Special Rapporteur in the field of cultural rights – for the adoption of a ‘holistic approach’ between environmental, cultural and human rights perspectives ‘essential for responding to the climate emergency’.94 Whilst it is true that the resort to systemic interpretation by human rights bodies has not been exempted from criticism,95 this hermeneutical criterion has already been adopted in several instances, including when the impact of environmental degradation on the full enjoyment of human rights has been at stake.96 The “adjudication” of cultural rights-based climate claims could arguably build on, and further develop, this practice. As underlined by the UN Special Rapporteur in the field of cultural rights, in fact, ‘[the] existing [cultural rights, culture and climate change] legal standard should be interpreted so as to apply fully to issues at the intersection’ of climate change, culture and cultural rights.97 The clarifications over the scope of application and normative content of cultural rights provisions, including State obligations stemming therefrom, could also impact on domestic climate litigation, where, as already recalled, international

90 HRC, ‘Views on the Torres Strait Islanders case’ (nt. 20) para 7.5. 91 Monica Feria-Tinta, ‘Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights’ EJILTalk! (27 September 2022) . 92 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) entered into force 27 January 1980 1155 UNTS 331, Article 31.3(c). 93 ILC, ‘Fragmentation of International Law. Difficulties Arising from the Diversification and Expansion of International Law. Report of the ILC Study Group’ UN Doc A/CN.4/L.682 (13 April 2006) 413–415. On the role of systemic interpretation as a de-fragmentation tool, Anne Peters, ‘The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization’ (2017) 15 IJCL 671, 692 ff. 94 2020 Report, para 21. 95 Adamantia Rachovitsa, ‘The Principle of Systemic Integration in Human Rights Law’ (2017) 66 ICLQ 557. 96 The Environment and Human Rights, Advisory Opinion OC-23/17, IACtHR Series A No 23 (15 November 2017) where it clarified the extent of State obligations under Articles 4 and 5 of the ACHR (upholding the rights to life and to personal integrity) in the event of transboundary environmental harm. 97 2020 Report, Annex, para 32.

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human rights norms have been increasingly relied on.98 It has been underlined, in fact, that the elucidation of the normative content of human rights treaty provisions stemming from communications filed with UN treaty monitoring mechanisms may exert influence – even if often according to a pick-and-choose approach – on the interpretation of those same provisions by national courts even beyond the specific case that led to their adoption.99 The same is even more true with respect to regional human rights bodies, especially if they are entrusted with binding adjudicatory powers. Remarkably, to date, climate petitions have relied only on “special status” cultural rights,100 that is those granted to members of minorities or Indigenous peoples. Where admissible under the relevant human rights treaty, the filing of claims based on “universal” cultural rights, that are ‘rights held by all people, in all places, at all times with regard to culture’,101 would represent a particularly interesting development that could further expand the “potential” of cultural rights-based claims in the context of climate change litigation. As has already been recalled in the previous section, the right to take part in cultural life set out in Article 15 ICESCR holds, for instance, this universal character, as it encompasses both an individual and collective dimension. This provision has indeed been interpreted as upholding, inter alia, everyone’s right to access to and to enjoy, individually or in association with others or within a community, one’s own cultural heritage or that of others.102 It goes without saying that climate petitions grounded on universal cultural rights, including the right of everyone to access and enjoy cultural heritage relevant to them, would allow human rights bodies to deal with the impact of climate change on cultural rights more broadly. This could imply, in turn, the identification of more general State obligations stemming from the relevant legal provisions, including, for instance, the positive duties to take appropriate measures aimed at the full realization of the right to access cultural heritage by all in the face of the climate change emergency and to ensure individuals’ participation in any decision-making process concerning the preservation or safeguard of cultural heritage from the threat posed by climate change. 5

Concluding Remarks

Climate litigation before human rights monitoring bodies raises several issues that may prevent it from unlocking its potential. Whereas most of these hurdles apply to

98 The ICESCR has been invoked, for instance, in the case Salamanca Mancera v Colombia before the Colombian Supreme Court, decided on 5 April 2018. 99 Rosanne van Alebeek and Andre Nollkaemper, ‘Legal Status of Decisions by Human Rights Treaty Bodies in National Law’, in Helen Keller and Geir Ufstein (eds) UN Human Rights Treaty Bodies (CUP 2012) 356 ff. 100 Janet Blake, International Cultural Heritage Law (OUP 2015) 291. 101 ibid 290. 102 CESCR, ‘General Comment No 21’ (nt. 66) paras 49–50. See also HRC, ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed’ UN Doc A/HRC/17/38 (21 March 2011).

A Cultural Rights-Based Approach to Climate Change? 359 climate litigation before human rights bodies generally, there are additional factors, such as the lack of justiciability or the limited recognition of cultural rights in specific human rights protection systems, that can “bar” applicants from bringing cultural rights-based claims in particular, at least before certain human rights bodies. Yet, as the HRC’s views in the Torres Strait Islanders case partially demonstrated, if cultural rights-based claims managed to reach the merits phase, they can have positive implications the relevance of which will extend beyond the specific cases in which they have been made. They can in fact lead human rights monitoring bodies to clarify not only the normative content and scope of application of cultural rights, but also the relevant States’ obligations in the context of the climate change emergency. Moreover, in doing so, human rights bodies could both promote convergence among different legal regimes and provide an authoritative guide for domestic courts called upon to adjudicate cultural rights-based climate claims. But even in the unlikely case that certain human rights bodies are prevented from assessing these claims on the merits, a cultural rights-based approach to climate change may anyhow play a role in the application and development of international climate change law. Based on the principles of systemic integration, different international rules, such as those concerning cultural rights and climate change, should be read and applied in a way that fosters harmonization within the international legal system. This means that, even beyond climate litigation, cultural rights norms should be considered when interpreting and applying international climate change norms. Moreover, it may be argued that cultural rights, if effectively implemented, could also inform future climate change decision-making processes, both at the national and global levels. The procedural dimension of cultural rights can promote, in fact, more inclusive decision-making processes, as it means the right to be involved in the adoption and implementation of policies and decisions that have an impact on the exercise of individual and collective cultural rights. It follows that cultural rights-holders should be involved in the decision-making processes aimed at tackling the climate change emergency and its negative impacts on cultural rights.

19 Gravity and Grace Sustainable Development, Foreign Investments and Cultural Heritage in International Investment Law Valentina Vadi* 1

Prelude: Gravity and Grace

Protecting cultural heritage, a public interest that is closely connected to fundamental human rights, is deemed to be among the best guarantees of international peace and security. Economic globalization and international economic governance have spurred intense dialogue and interaction among nations, potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardize cultural heritage. Foreign direct investment (FDI) in the extraction of natural resources has the potential to change cultural landscapes, destroy monuments, and erase memories. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that States promote and facilitate FDI. Does the existing legal framework adequately protect cultural heritage vis-à-vis the economic interests of foreign investors? To properly address the interplay between FDI and world cultural heritage in international investment law and arbitration, this study complements traditional tools of legal analysis with a novel, interdisciplinary, philosophical perspective. Not only can philosophy be fruitfully combined with legal research, but in some cases, it becomes indispensable, as it can ‘provide more depth to the research’.1 While philosophy and law have their own language, methods and techniques, both disciplines conduct research in the humanities to investigate human action,2 and are based on interpretation and argumentation.3 In fact, philosophy can provide ‘insights regarding central or fundamental concepts and principles, or the ideas behind the legal order’.4 It can help clarify concepts and principles used in law

* Adjunct Professor, School of Political Sciences, University of Florence (Italy). The author wishes to thank Professor Francesco Francioni, Professor Laura Pineschi, and Professor Tullio Scovazzi, for their comments on earlier drafts. 1 Sanne Taekema and Wibren van der Burg, ‘Legal Philosophy as an Enrichment of Doctrinal Research Part I: Introducing Three Philosophical Methods’ (2020) Law and Method 1. 2 ibid 3 and 5. 3 ibid 2. 4 ibid 3. DOI: 10.4324/9781003357704-24

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and reflect on what law should be.5 For legal scholars, philosophical insights are useful because ‘they are important building blocks’ for constructively criticizing the legal order, identifying future directions of the field, and building it as a coherent system.6 Until about a decade ago, philosophical inquiry related to international law was commonly limited to a few subjects, such as just war theory. Since then, however, philosophers have increasingly written about other aspects of the global political order,7 and international lawyers have increasingly adopted philosophy as a research tool for investigating their field.8 International lawyers can benefit from the insights of philosophers for several reasons. First, ‘philosophy . . . provides a set of analytical tools to [examine] core questions that underlie the structure . . . of [international law]’.9 For instance, in relation to international economic law, ‘philosophical work offers a rigorous way of arguing about who should bear the benefits and burdens of transnational economic interactions.10 Second, ‘rules that can be defended in terms of their legitimacy, fairness, or even justice stand a better chance of providing international actors good reasons to respect the rules, or good reasons to change or supplement them’.11 Third, engagement with philosophy can encourage lawyers to take ‘an ethical position on issues of global justice’.12 In light of these recent developments, this study relies on the philosophy and thought of Simone Weil (1909–1943), one of the most important thinkers of the 20th century, to examine how cultural and economic forces can be balanced in international law. A philosopher, mystic, and resistance fighter, Weil was a defining figure of the 20th century. Despite her provocative work, her thinking has remained unknown in the discipline of international law for decades.13 Her mysticism, life experience and early death have contributed to a characterization of her philosophy as impractical, mystic, and otherworldly.14 Such idealization, however, does not

5 ibid. 6 ibid 4. 7 Anna Stilz, Territorial Sovereignty. A Philosophical Exploration (OUP 2019); Serena Parekh, No Refuge: Ethics and the Global Refugee Crisis (OUP 2020). 8 Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (OUP 2010); Andrea Bianchi (ed) Theory and Philosophy of International Law (EE 2017); Anthony Carty, Philosophy of International Law (Edinburgh University Press 2017); David Lefkowitz, Philosophy and International Law: A Critical Introduction (CUP 2020). 9 Andreas Follesdal and Steven R. Ratner, ‘Introducing David Lefkowitz’s Philosophy and International Law’ EJIL: Talk! (4 November 2021) . Last access to all links mentioned in this chapter: 7 December 2022. 10 ibid. 11 ibid. 12 ibid. See also Chi Carmody, Frank J. Garcia, and John Linarelli (eds) Global Justice and International Economic Law. Opportunities and Prospects (CUP 2014). 13 For an early study, see however, Mary Dietz, Between the Human and the Divine: The Political Thought of Simone Weil (Rowman & Littlefield 1988). 14 Helen M Kinsella, ‘Simone Weil: An Introduction’ in Felix Roesch (ed) Émigré Scholars and the Genesis of American International Relations (Palgrave Macmillan 2014) 176 (reporting this mischaracterization).

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truly render ‘the complexity and range of her writing, as well as her own method of inquiry’.15 In fact, ‘in thought and in deed, Simone Weil was fundamentally engaged in, and constantly struggling to make sense of, the world in which she lived’.16 Therefore, it is time for international lawyers to investigate her philosophy and thinking in relation to their field.17 Weil’s philosophy is characterized by ‘the idea of counterweighing, of balancing out the forces’.18 The interplay of gravity and grace intended as countervailing forces is at the heart of her thought.19 Her reflection on heritage and economic development also intended as countervailing forces can influence the interpretation and application of international law and ideally its future developments. Weil reflected on the concept and meaning of art, roots, heritage, and belonging, as well as the negative consequences associated with industrialization and economic development. Therefore, her work can be used as both a starting point and a supplement to legal research on the interplay between the promotion of FDI and the safeguarding of cultural heritage, because it reflects on why it is worth safeguarding cultural heritage and how countervailing economic and cultural forces can be balanced. While many legal scholars have discussed the balance of economic and cultural interests without indicating which interests are more important or how a standard of weight can be constructed for the appraisal of such interests, Weil’s philosophical reflection answers certain questions that treaties, jurisprudence, and other legal sources cannot. She ‘pointed to a different metric of valuation, one that appreciates the entire “radiance of the spirit”, the whole [human] being’.20 In summary, it offers ‘the guiding light of a theory of values’, thus enriching ‘our understanding of the human significance of law’.21 While contradictory views persist on whether safeguarding cultural heritage should prevail over promoting economic development, Weil offers convincing arguments on why heritage should be protected. More importantly, such ideas are compatible with the existing legal framework, and can inspire its functioning in general and its implementation in particular. This chapter proposes to conceptualize the linkage between the promotion of FDI and the safeguarding of World Heritage in terms of gravity and grace. Weil used the expression ‘gravity and grace’ throughout her work and more significantly in her debut work, Gravity and Grace, and her last masterpiece, The Need for Roots, both published posthumously. After the German occupation of Paris during the World War II, Weil found refuge in Southern France, where she worked in the harvest of grapes. Before moving further to escape persecution, she entrusted some of her notebooks to the French

15 16 17 18 19 20 21

ibid 180. ibid 176–177. ibid. Seamus Heaney, The Redress of Poetry: Oxford Lectures (Faber and Faber 1996) 4. Kinsella (nt. 14) 180. ibid 189. Felix S. Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 CLR 809, 848–849.

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philosopher Gustave Thibon (1903–2001), who collected and published her writings on her behalf after her untimely death. Weil’s first publication, Gravity and Grace, has become a source of spiritual guidance and wisdom for countless individuals. In Gravity and Grace, Weil distinguishes natural ‘gravity’ (pesanteur) from supernatural ‘grace’ (grâce). Gravity is identified as ‘the forces of the natural world that subject all created beings physically, materially, and socially, and thus functions as a downward pull’, while grace is identified as attention to the essential, the divine that nourishes the soul of human beings and thus constitutes an upward pull and a counterbalance to gravity.22 For Weil, grace includes ‘home, country, traditions, [and] culture’ that ‘warm and nourish the soul and without which a human life is not possible’.23 It also encompasses cultural heritage, as beauty conveys a sense of eternity and divine.24 If FDI represents a force of gravity needed to foster development, cultural heritage expresses the grace – a bridge created by people’s roots in ‘the path towards the transcendent good’.25 In revealing the beauty of the world, cultural heritage can direct people’s attention to the divine and ‘redee[m] gravity’.26 In conclusion, for Weil, gravity (force) and grace (justice) are two primary aspects of human existence that lie at the intersection of the horizontal (necessity) and the vertical (grace).27 Some of these themes reappear in Weil’s last book, The Need for Roots, which she wrote in 1943 during her exile in London in the final and most terrible phase of World War II. A profoundly challenging read, The Need for Roots investigates how France and Europe could be rebuilt after the war. Although the book seems to focus on a unique historical and geographical moment – post-war France – it really is about something deeper and more universal. In this work, Weil focuses on people’s experience of being uprooted, that is, being unable to find a place, a role, and a life of meaning. ‘Uprootedness’ is defined as a near universal condition resulting from the destruction of ties with the past and the loss of community. Uprooted people lack a sense of their own vital place in the world. Not only did Weil refer to millions of displaced people, refugees, and asylum seekers, but also to millions of peasants and workers who found themselves uprooted by industrialization. Industrial productivity may be a force for good, but it has a high price. In an epoch characterized by worship of money and commitment to an individualistic and rights-based (mis)conception of justice, any living sense of the sacred is lost and individuals feel uprooted. The Need for Roots thus proposes some remedies for a cultural renaissance.

22 Rebecca Rozelle-Stone and Benjamin P. Davis, ‘Simone Weil’, The Stanford Encyclopedia of Philosophy (2021) . 23 Simone Weil, L’Ombra e La Grazia (Giunti 2017) 261; Simone Weil, La Pesanteur et la Grâce (Librairie Plon 1947); Simone Weil, Gravity and Grace (Routledge and Kegan Paul 1963). 24 Weil, L’Ombra e La Grazia (nt. 23) 265, 193, and 198. 25 Christine Howe, Towards a Poetics of Hope: Simone Weil, Fanny Howe and Alice Walker (University of Wollongong 2008) 21–22. 26 Weil, L’Ombra e La Grazia (nt. 23) 269 and 189 (‘la pesantezza è sconfitta solo dalla grazia’). 27 John M. Dunway and Eric O. Springsted (eds) The Beauty that Saves: Essays on Aesthetics and Language in Simone Weil (Mercer University Press 1996).

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What makes The Need for Roots particularly relevant now is its appraisal of the ethic of liberalism that had originally emerged to serve the needs of the industrial society.28 Even today, the deliberate destruction of cultural heritage often takes place in the mistaken belief that industrial projects will foster economic growth. Little, if any, attention is paid to the safeguarding of cultural heritage and the wellbeing of local communities whose heritage is affected by FDI in the mining and other industrial sectors. However, as Weil cautions, it is not the fame, the size, or the gross domestic product of a country that really matters. Instead, it is whether the country can offer people a way of life that is fully rooted. ‘A human being’, according to Weil, ‘has roots by virtue of his real, active, and natural participation in the life of a community which preserves in living shape certain particular treasures of the past and certain particular expectations for the future’.29 For Weil, human beings are social animals who need to belong to communities and places in order to flourish. Cultural heritage is a paradigmatic expression of such roots that was left by the generations that preceded us and is to be transmitted to future generations. Against this background, for Weil, the destruction of the past – traditionally associated with wars of conquest, but also the colonization processes and the Industrial Revolution – is perhaps the greatest of all crimes.30 For Weil, the destruction of a city, which serves as a metaphor for humankind, civilization, and the model of human resistance and resilience is the greatest catastrophe that might befall human beings.31 Instead, the conservation of cultural heritage ‘plays a central role in Weil’s project for creating societies . . . based on love and justice’.32 After having briefly examined the interplay between FDI and cultural heritage from a philosophical perspective and expressing it as a relationship between gravity and grace, section 2 now investigates the legal interplay between FDI and cultural heritage in international investment law and arbitration. 2

Redeeming Gravity With Grace: Foreign Investments and Cultural Heritage

For a long time, the mainstream development debate did not touch upon cultural heritage.33 Rather, an international economic culture emerged based on

28 Pankaj Mishra, ‘The Need for Roots Brought Home the Modern Era’s Disconnection with the Past and the Loss of Community’ The Guardian (18 August 2013) . 29 Simone Weil, The Need for Roots: Prelude towards a Declaration of Duties towards Mankind (Routledge 1952) 41. See also Simone Weil, L’Enracinement, Prélude à une Déclaration des Devoirs envers l’être Humain (Gallimard 1949); Simone Weil, La prima radice. Preludio ad una dichiarazione dei doveri verso l’essere umano (SE 1990). 30 Weil, La prima radice (nt. 29) 56. 31 See generally Simone Weil and James P Holoka, Simone Weil’s The Iliad, or The Poem of Force: A Critical Edition (Peter Lang 2006). 32 ibid 21. 33 UNESCO, ‘World Heritage and Sustainable Development’.

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macroeconomic notions of growth and aimed at productivity and development. An industrial culture developed, which was ‘directed towards and influenced by technical science, . . . tinged with pragmatism, extremely broken up by specialization, entirely deprived both of contact with this world and, at the same time, of any window opening onto the world beyond’.34 Development was considered ‘a transformation of society, a movement from traditional relations, traditional ways of thinking, . . . [and] traditional methods of production, to more modern ways’.35 By conceptualizing economic progress as ‘a process of successive upgrading’, economists have highlighted the pressures on societies to adopt a productive economic culture and the ‘growing convergence around the productivity paradigm’.36 For instance, the 2000 Millennium Development Goals did not even mention cultural heritage, as though culture did not belong to developmental discourse.37 However, this has started to change. Cultural heritage has increasingly been perceived as a strategic driver of sustainable development,38 that is, development that meets the needs of the present and future generations.39 Cultural heritage can be an engine of economic growth and welfare, be central in people’s lives, empower them, and enrich their existence in both a material and immaterial sense.40 In turn, development has been conceived as a broad concept inclusive of not only economic growth, but also human flourishing and well-being for which cultural elements are crucial. In the 2030 Agenda for Sustainable Development,41 Sustainable Development Goal (SDG) 11 (‘make cities and human settlements inclusive, safe, resilient, and sustainable’) expressly acknowledges, inter alia, the need to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’.42 The 2030 Agenda also includes respect for cultural diversity among its objectives,43 and ‘pledge[s] to foster intercultural understanding, tolerance, [and] mutual respect’, while ‘recogniz[ing] that all cultures and civilizations can contribute to, and are crucial enablers of, sustainable development’.44 34 Weil, The Need for Roots (nt. 29) 42. 35 Joseph E. Stiglitz, ‘Toward a New Paradigm for Development’ UNCTAD (18 October 1998) . 36 Michael E. Porter, ‘Attitudes, Values, Beliefs, and the Microeconomics of Prosperity’, in Samuel P. Huntington and Lawrence E. Harrison (eds) Culture Matters: How Values Shape Human Progress (Basic Books 2000) 20, 26. 37 United Nations, ‘Millennium Development Goals’. 38 UNGA, ‘Culture and Sustainable Development’ UN Doc A/RES/68/223 (12 February 2014). 39 UNGA, ‘Report of the World Commission on Environment and Development. Our Common Future’ UN Doc A/42/427 (4 August 1987) para 27 (noting that ‘Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs’). 40 UNESCO, ‘Universal Declaration on Cultural Diversity’ (2 November 2001) Article 3. 41 UNGA, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ UN Doc A/ RES/70/1 (21 October 2015) (hereinafter: 2030 Agenda). 42 UNDESA, ‘Goal 11. Targets and Indicators’ . 43 2030 Agenda, para 8. 44 ibid para 36.

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More recently, in 2020, architects, artists, engineers, economists, and leading thinkers signed a manifesto for a cultural renaissance of the economy in response to the ongoing pandemic. The open letter highlights the importance of culture for global prosperity and sustainable development, noting that ‘territories that successfully preserve and promote the different aspects of their original identities will enjoy a real competitive advantage’ on the global plane.45 Such cultural awareness can open the door to ‘[the] need to understand [other cultures] better’.46 The statement also endorses the idea of the purple economy – that is, an economy that considers cultural aspects and adapts to, and benefits from, cultural diversity. While there may be mutual supportiveness between the promotion of FDI and the protection of cultural heritage, this is not always the case. Although economic globalization and international economic governance have spurred more intense dialogue and interaction among nations – potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage – these phenomena can also jeopardize cultural heritage. FDI in extractive industries has the capacity to change cultural landscapes, destroy monuments, and erase memories. Moreover, a highly effective legal framework demands that States promote FDI. Under most international investment agreements (IIAs), States have agreed to grant arbitrators wide jurisdiction over what are essentially regulatory disputes. Arbitral tribunals are given the power to review the exercise of public authority and to settle disputes by determining the appropriate boundary between two conflicting values: the legitimate sphere for State regulation for protecting cultural heritage on the one hand, and the protection of private interests from State interference on the other. This chapter discusses the key features of the interplay between the protection of cultural heritage and the promotion of FDI in international investment law and arbitration and examines several arbitration proceedings that have emerged in the last few years. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. However, the interplay between the protection of cultural heritage and the promotion of FDI in international investment law and arbitration continues to pose three main problems: (1) an ontological problem concerning the essence of international investment law; (2) an epistemological problem concerning the mandate of arbitral tribunals; and (3) a normative problem concerning the emergence of general principles of law. Regarding the ontological problem, two main questions arise. Is international investment law a self-contained regime, or is it part of general international law? Is general international law a fragmented system, or are there tools to enhance its unity and mutual supportiveness between different treaty regimes? Regarding the epistemological problem, arbitral tribunals have limited jurisdiction; they

45 ‘Per un rinascimento culturale dell’economia’ Corriere della Sera (7 June 2020) (author’s translation). 46 ibid (author’s translation).

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have a limited mandate to assess State compliance with international investment law but do not have a specific mandate to ascertain the adequate protection of cultural heritage. Therefore, the key question is whether they can consider cultural concerns in the adjudication of investment disputes and, if so, to what extent. Regarding the normative problem, the question is whether general principles of law have emerged requiring the protection of cultural heritage in times of peace. This chapter addresses these questions and proceeds as follows. First, it highlights the main features of international investment law and arbitration. Second, it discusses several recent arbitration proceedings. Third, it examines whether investment treaty tribunals consider cultural interests when adjudicating investment disputes. Fourth, it proposes three main tools to better address the interplay between economic and cultural interests in international investment law and arbitration. Finally, some conclusions are drawn. 3

International Investment Law and Arbitration as a Tool of Global Cultural Governance

Once deemed to be an ‘exotic and highly specialized’ domain,47 international investment law is now becoming mainstream.48 Due to economic globalization and the rise of FDI, the regulation of the field has become a key area of international law and a well-developed field of study. As there is no single comprehensive global investment treaty, investors’ rights are defined by an array of IIAs, customary international law, and general principles of law. At the substantive level, international investment law provides extensive protection to investors’ rights in order to encourage FDI and foster economic development. Under IIAs, States Parties agree to provide a certain degree of protection to investors, who are nationals of contracting States, and/or their investments. Such protection generally includes compensation in case of expropriation, fair and equitable treatment (FET), non-discrimination, and full protection and security, among others. At the procedural level, international investment law is characterized by sophisticated dispute settlement mechanisms. Nowadays, most IIAs allow investors to directly access international arbitral tribunals. Arbitral tribunals are typically composed of three members: one arbitrator selected by the claimant, another selected by the respondent, and a third appointed by a method that attempts to ensure neutrality. All arbitrators are required to be independent and impartial. Under this mechanism, investors do not need to exhaust local remedies and do not depend on diplomatic protection to defend their interests against the host State. The internationalization 47 UNGA, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission’ UN Doc A/CN.4/L.682 (13 April 2006) para 8. 48 Stephan W. Schill, ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’ (2011) 22 EJIL 875.

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of investment disputes has been conceived of as an important valve for guaranteeing a neutral forum and depoliticizing investment disputes.49 Arbitral tribunals have reviewed host State conduct in key sectors, including cultural heritage. In fact, given the structural imbalance between the vague and non-binding dispute settlement mechanisms provided by international instruments adopted by UNESCO and the highly effective and sophisticated dispute settlement mechanisms under international investment law, a number of investment disputes related to cultural heritage have been brought before investment treaty arbitral tribunals.50 This section examines and critically assesses several recent arbitrations. Given the potential impact of arbitral awards on cultural governance and the growing number of investment arbitrations, scrutiny and critical assessment of this jurisprudence is particularly timely and important. Such scrutiny illuminates how international investment law responds to cultural concerns in its operation, thereby contributing to the ongoing investigation of the role of international investment law within its broader matrix of international law. It also shows that, although unforeseen to its makers, international investment arbitration has become an unlikely but effective tool for global cultural governance. Although this jurisprudence is heterogeneous, it can be scrutinized according to the taxonomy of the claims brought by foreign investors, including, inter alia, the notion of investment, FET, and expropriation standards. 3.1

The Notion of Investment

In Cortec v Kenya,51 an arbitral tribunal established under the 1999 Kenya-UK Bilateral Investment Treaty (BIT) held that it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The tribunal held that, in order to be protected under international investment law, the mining license at issue had to substantially comply with domestic law. Hence, the tribunal determined that the license was not an ‘investment’ for the purposes of the applicable investment treaty and was, therefore, not protected as such. Cortec planned to develop a niobium and rare earths mine at Mrima Hill in Kenya from 2007.52 Mrima Hill is ‘home to a natural forest’ (kaya) which is revered by

49 Ibrahim F.I. Shihata, ‘Toward a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA’ (1986) 1 ICSID Review 1, 5. 50 Obviously, this does not mean that these are the only available fora for this kind of dispute. Other tribunals are available, such as national courts, human rights courts, regional economic courts and traditional State-to-State courts and tribunals, such as the International Court of Justice or even inter-State arbitration. Some of these dispute settlement mechanisms may be more suitable than investor-State arbitration to address cultural concerns. However, given its scope, this study focuses on the jurisprudence of arbitral tribunals. 51 Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic of Kenya, ICSID Case No ARB/15/29, Award (22 October 2018). 52 ibid para 1.

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the local Indigenous communities as the sacred abodes of their ancestors.53 Cortec was initially granted a prospecting license for its project and subsequently granted a mining license over an area that included Mrima Hill. Following a change of government, the mining license was revoked in 2013.54 In Kenya’s view, the conditions for the mining license had not been met, and Kenyan law prohibited mining in Mrima Hill. Cortec advanced its claim on the basis that this revocation of the mining license contravened multiple provisions in the BIT. According to the government, ‘the license was void ab initio for illegality and did not exist as a matter of law’.55 In fact, as a matter of statute law, a number of key approvals and consents were required and conditions were to be satisfied before they could be allowed to obtain a valid mining license, including requirements arising out of the special protected status of Mrima Hill as a forest reserve, nature reserve, and national monument.56 The same Kenyan Mining Act has been prohibiting all prospecting and mining at Mrima Hill since 1997.57 Even domestic courts ruled that the mining license was ‘void ab initio on the basis . . . that the mining of Mrima Hill was by statute prohibited’ and that, in any event, the claimants had not complied with requirements under Kenyan law.58 The Arbitral Tribunal concluded that the applicable BIT ‘protects only lawful investments’.59 In order to be protected, a mining license must be in compliance with the domestic law that establishes and governs it.60 The alleged investment – Cortec’s mining license – was procured by the claimants’ successful lobbying but was void from the outset because it had been issued in violation of Kenyan laws.61 The tribunal held that such breach of domestic law could not be waived by politicians.62 Therefore, such a ‘license’ did not constitute a protected investment under the BIT. Since there was no mining license, there was no basis for the Tribunal’s jurisdiction under the BIT. In 2019, Cortec sought an annulment of this award, arguing that regulatory compliance was not a jurisdictional issue and that there was no express legality requirement in the Kenya-UK BIT. Therefore, according to the claimant, the reading of a legality requirement into the BIT, and the resulting conclusion that their mining

53 54 55 56 57 58 59 60 61 62

ibid para 42. ibid para 2. ibid para 4. ibid para 5. ibid para 43. ibid para 7. ibid para 9. ibid paras 222, 319, and 322. ibid paras 11, 222, 364–365. ibid para 105.

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license was not an investment, amounted to an extra-jurisdictional exercise of the Tribunal’s powers. In parallel, the company also claimed that the Tribunal failed to exercise jurisdiction over Cortec’s investments. The ad hoc Annulment Committee’s decision on the annulment application dismissed each of these arguments.63 For the Committee, reading an implicit legality requirement into the BIT is tenable; the Committee thus upheld the Tribunal’s finding that the mining license was not a protected investment on the basis that it failed to comply with Kenyan environmental law. As stated by the ad hoc Committee, ‘while international law protects property rights, the existence and scope of those rights are determined by municipal law; and in this case no such rights existed to protect’.64 3.2

Fair and Equitable Treatment

In Crystallex v Venezuela,65 a Canadian company that had invested in the Las Cristinas deposit in Venezuela, one of the largest gold deposits in the world, claimed that the conduct of the host State in relation to the mine amounted to, inter alia, a violation of FET.66 State authorities denied an environmental permit that prevented the exploitation of the mine because of concerns about the project’s environmental impact. Venezuela pointed out that ‘Las Cristinas . . . [lay] . . . in the Imataca Reserve, . . . a fragile rainforest with an extremely varied biodiversity and a significant indigenous population’.67 The Imataca Forest Reserve was declared a World Heritage Site in 1994. For Venezuela, ‘the Ministry of Environment was obliged to review the project carefully, only approving it once Crystallex had adequately demonstrated that it would not cause unacceptable environmental or social impacts’.68 Venezuela contended that because ‘the environmental and socio-cultural impact of the project proposed by Crystallex could not be mitigated, . . . its authorization would have been a violation of the Venezuelan government’s obligation to ensure protection of the environment and the population from situations that constitute imminent damages’.69 However, the claimant pointed out that the Ministry of Environment had denied the permit on the basis of ‘concerns for the environmental and indigenous people of the Imataca Forest Reserve[, that] had never been raised during the four-year

63 Mining Kenya Limited, Cortec (PTY) Limited, and Stirling Capital Limited v Republic of Kenya, ICSID Case No ARB/15/29, Decision on Application for Annulment (19 March 2021). 64 ibid para 143. 65 International Corporation v Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/11/2, Award (4 April 2016). 66 ibid para 187. 67 ibid para 214. 68 ibid para 378. 69 ibid.

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approval process’.70 The company also claimed that it had consulted Indigenous communities.71 The Tribunal found that Venezuela breached the FET standard when it denied the environmental permit. In fact, a letter from the State authorities had created legitimate expectations that the project would proceed.72 Moreover, the permit denial letter did not sufficiently elucidate reasons for the denial; rather, it ‘extend[ed] to a mere two and a half pages’ that vaguely referred to climate change and ‘serious environmental deterioration’ in the plot.73 While the Tribunal did not contest the State’s ‘right (and the responsibility) to raise concerns relating to global warming, environmental issues [regarding] the Imataca Reserve, biodiversity, and other related issues’, it held that the way the State put forward such concerns in the permit denial letter ‘present[ed] significant elements of arbitrariness’.74 In Gosling v Mauritius, a group of British property developers brought a claim against Mauritius, inter alia, alleging a breach of FET under the 1986 UK-Mauritius BIT.75 Gosling and other investors planned to develop property at Le Morne.76 ‘A peninsula of outstanding beauty, and cultural and historical significance’, Le Morne ‘had been a place of refuge for escaped slaves’ in the 19th century.77 Mauritius had pursued its inscription as a cultural landscape on UNESCO’s World Heritage List since 2003 and finally obtained it in 2008.78 To achieve this objective, the government had refused the investors permission to build on the site. The investors, inter alia, claimed that the government was in breach of the FET standard because it ‘frustrated their legitimate expectations by failing to honor specific assurances received from Government officials at the highest level’.79 The Tribunal noted that ‘the level of treatment required to breach the [FET] standard has evolved’.80 While the standard ‘is a flexible one which must be adapted to the circumstances of each case, . . . flexibility does not mean that treatment will be determined by the subjective expectations of the investors’.81 To be protected, investor’s expectations must be legitimate and reasonable.82 In fact, such standard

70 71 72 73 74 75 76 77 78 79 80 81 82

ibid para 277. ibid para 289. ibid para 588. ibid para 590. ibid para 591. Gosling, Property Partnerships Development Managers (UK), Property Partnerships Developments (Mauritius) Ltd, Property Partnerships Holdings (Mauritius) Ltd and TG Investments Ltd v Republic of Mauritius, ICSID Case No ARB/16/32, Award (18 February 2020) para 1. ibid para 41. ibid para 42. ibid. ibid para 168. ibid para 243. ibid para 244. ibid.

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must be interpreted ‘in a balanced manner’, considering ‘both state sovereignty and . . . the necessity to protect foreign investment’.83 In casu, the Tribunal noted that the investors knew of the State’s objective to inscribe Le Morne on the World Heritage List.84 As noted by the Dissenting Arbitrator, Professor Stanimir Alexandrov, it is undisputed that the inscription of Le Morne as a UNESCO World Heritage Site was in the public interest of Mauritius and its people, and that it was a noble goal consistent with the objective of preserving the history of the place, honoring the dignity of the slaves who lived and died there, creating a symbol of freedom and human dignity, and – last but not least – preserving the physical beauty of Le Morne. In sum, [the] [r]espondent was fully entitled to prohibit any development at Le Morne . . . in the interests of the people of Mauritius – and it did so.85 The government never promised or assured the claimants that their proposed development project was compatible with its overriding policy objective of inscribing Le Morne as a UNESCO World Heritage Site. Since there was no documented evidence of such an alleged promise, the Tribunal held that the investors had no legitimate expectations of proceeding with their development project at Le Morne.86 3.3

Expropriation

Several investment treaty arbitrations have dealt with the question of whether regulations allegedly aimed at protecting cultural heritage may be deemed to be an indirect expropriation. For instance, in Gosling v Mauritius, the investors contended that the denial of a building permit qualified, inter alia, as indirect expropriation of their investment in Le Morne. They claimed that such expropriation was unlawful as no compensation had been paid.87 The respondent counterargued that the investors had never acquired the right to develop the area as no permission had been granted.88 It also contended to have exercised its police powers in good faith when pursuing ‘its paramount policy objective of inscribing Le Morne as a UNESCO World Heritage Site’ and that the claimants admitted to knowing this objective before making plans to build a resort at Le Morne.89 As the State made clear, ‘it was impossible for Mauritius to have

83 ibid para 245. 84 ibid para 249. 85 Gosling and Others v Mauritius, ICSID Case No ARB/16/32, Dissenting Opinion of Arbitrator Stanimir Alexandrov (14 February 2020) para 27. 86 Gosling and Others v Mauritius, Award (nt. 75) para 286. 87 ibid paras 167–168. 88 ibid para 242. 89 ibid para 209.

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both the UNESCO inscription of Le Morne and the claimants’ project’ because ‘the World Heritage Committee requested that the government not allow more development at Le Morne’.90 Finally, for the government, there was no expropriation because the area was not deprived of its entire economic value as it retained at least a quarter of its market value. The Arbitral Tribunal held that the investors had never obtained the necessary permits and authorizations and thus did not have the rights to develop the area.91 On this basis, it dismissed the claim of indirect expropriation and did not consider the other arguments of the respondent.92 In Glamis Gold v United States of America,93 a Canadian investor claimed, inter alia, that measures requiring the backfilling of a previously extracted open-pit gold mine to preserve the skyline of ancient Indigenous cultural landscape amounted to an indirect expropriation of its investment.94 However, the Arbitral Tribunal found the claimant’s expropriation argument to be without merit. To distinguish a non-compensable regulation and a compensable expropriation, the Tribunal established a two-tiered test to ascertain (1) the extent to which the measures interfered with reasonable expectations of a stable regulatory framework and (2) the purpose and character of the governmental actions taken. First, the Tribunal found that the claimant’s investment remained profitable and that the backfilling requirements did not cause a sufficient economic impact on the investment to constitute an expropriation.95 Second, the Tribunal deemed that the measures were rationally related to their stated purpose.96 The Tribunal acknowledged that ‘some cultural artifacts will indeed be disturbed, if not buried, in the process of excavating and backfilling’ but concluded that without such legislative measures, significant pits and waste piles in the near vicinity would harm the landscape.97 Another case concerns a World Heritage Site that was inscribed on the World Heritage List in 2021. In 2015, Gabriel Resources Ltd. and Gabriel Resources (Jersey) Ltd. initiated a claim against Romania under the Romania–Canada BIT and the Romania–United Kingdom BIT.98 The claimants planned to develop a gold mine in Roşia Montană, a historic mining district that has been mined intermittently since Roman times.99 The project envisaged the exploitation of gold and silver deposits using a conventional open-pit mine with cyanide being used in the extraction

90 91 92 93 94 95 96 97 98

ibid para 210. ibid para 242. ibid para 273. Gold, Ltd. v United States of America, UNCITRAL Case, Award (8 June 2009). ibid para 359. ibid paras 366 and 536. ibid para 803. ibid para 805. Resources Ltd. and Gabriel Resources (Jersey) Ltd. v Romania, ICSID Case No ARB/15/31, Request for Arbitration (21 July 2015). 99 ibid para 4.

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process.100 However, the State reportedly did not approve the claimants’ environmental impact assessment and did not issue an environmental permit to allow exploration at the mining project. The claimant alleged that the government had breached its treaty obligations by preventing the implementation of the project without compensation and effectively depriving the investor of its investment’s value.101 In 2017, Romania applied to UNESCO to have the Roşia Montană site listed on the World Heritage List. After a short suspension of this process (reportedly pending determination in the ongoing arbitral proceedings), the Roşia Montană mining landscape was inscribed on the UNESCO World Heritage in Danger List in 2021.102 As the case is still pending, it is unclear what effects, if any, the UNESCO inscription will have on the dispute. In another pending case, Elitech and Razvoj Golf v Croatia, the investors planned the construction of a luxury resort on a hill overlooking Dubrovnik, a World Heritage Site. Reportedly, residents opposed the project, complaining that it would damage the environment and threaten Dubrovnik’s World Heritage Site status. Therefore, they filed claims before domestic administrative courts to allegedly protect the beauty of their city and limit the impact of tourism on their livelihoods. Croatian courts found that the required environmental permits had been obtained illegally and put the project on hold. The company thus filed an investor-State arbitration against Croatia under the Croatia–Netherlands BIT.103 4

Critical Assessment

What is the relevance of these and similar arbitrations to international investment law, international cultural heritage law, and international law more generally? These cases have a significance that extends beyond international investment law because of their potential impact on cultural governance and international law as a whole. From the perspective of international investment law, arbitrations related to cultural heritage demonstrate that international investment law is part of international law. International investment law is both influenced by, and can itself influence, international law. As one Tribunal explained, IIAs ‘ha[ve] to be construed in harmony with other rules of international law of which it forms part’.104 If most IIAs aim to foster development, such development must be achieved by bringing together the ‘pillars’ of economic growth, environmental/cultural heritage protection, and social development.105 Cultural concerns should not be subordinated to

100 101 102 103 104

ibid para 24. ibid paras 7 and 37. UNESCO, ‘List of World Heritage in Danger’ . B.V. and Razvoj Golf D.O.O. v Republic of Croatia, ICSID Case No ARB/17/32. S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Bizkaia Ur Partuergoa v The Argentine Republic, ICSID Case No ARB/07/26, Award (8 December 2016) para 1200. 105 ILA, ‘International Law on Sustainable Development’ (2006) .

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economic interests. Arbitral tribunals have demonstrated some qualified deference to State regulatory measures aimed at protecting cultural heritage when the host State had raised such cultural concerns.106 From the perspective of international cultural heritage law, investment arbitrations related to cultural heritage can affect the implementation of international cultural heritage law. Not only can arbitral tribunals contribute to good governance in international economic relations, but they may also contribute to good cultural governance by expressing the need to govern cultural phenomena according to due process and the rule of law.107 As Pulkowski points out, ‘cultural policies are no longer part of a sovereign domaine reservé’. Rather, States ‘must justify their domestic cultural policies . . . at the international level’.108 Such scrutiny by arbitral tribunals can prevent institutions from adopting discriminatory behavior. If private property is expropriated – whether directly or indirectly – compensation must be paid.109 As the Crystallex case demonstrates, while States have the right to protect cultural heritage, they must treat foreign companies fairly and equitably. At the same time, the interplay between the promotion of FDI and the protection of cultural heritage highlights the power imbalance between the two fields of international law, making the case for rethinking and strengthening the current regime protecting cultural heritage. Even if there are no theoretical, inherent tensions between these two subfields of international law, tensions often arise in practice. While the international investment regime is characterized by binding, effective, and timely dispute settlement mechanisms, international cultural heritage law is characterized by a complex legal framework. There is no dedicated, specialized, international court empowered to adjudicate violations of international cultural heritage law. Most UNESCO instruments lack dispute settlement or compliance mechanisms and rarely do they include a clause listing possible dispute resolution tools. Certainly, a State’s obligations to foreign investors under international investment law cannot justify violations of its other obligations under international cultural heritage law. For instance, in the Sawhoyamaxa case,110 the Inter-American Court of Human Rights clarified that the State’s investment law obligations did not exempt it from protecting and respecting the property rights of the Sawhoyamaxa.111 Rather, the IACHR noted that compliance with investment treaties

106 Gold v United States (nt. 93). 107 Valentina Vadi, ‘Global Cultural Governance by Arbitral Tribunals: The Making of a Lex Administrativa Culturalis’ (2015) 33 BUILJ101. 108 Dirk Pulkowski, The Law and Politics of International Regime Conflict (OUP 2014) 11. 109 Compañia del Desarrollo de Santa Elena S.A. v Republic of Costa Rica, ICSID Case No ARB/96/1, Award (17 February 2000) para 1317 (with regard to direct expropriation); Unglaube, Marion and Reinhard Hans Unglaube v Republic of Costa Rica, ICSID ARB No 09/20, Award (16 May 2012) (with regard to indirect expropriation). 110 Case of the Sawhoyamaxa Indigenous Community v Paraguay (Judgement on Merits, Reparations and Costs) IACHR Series C No 146 (29 March 2006). 111 ibid para 140.

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should always be compatible with the human rights obligations of the State.112 Analogously, compliance with investment treaties does not justify violations of international cultural heritage law; rather, compliance with investment treaties should be compatible with State obligations under international cultural heritage law. In parallel, compliance with international cultural heritage law does not justify State breaches of international investment law obligations. From a general international law perspective, the intersection of international investment law and international cultural heritage law constitutes a paradigmatic example of the possible interaction between different treaty regimes.113 The increased proliferation of treaties and specializations of different branches of international law makes some overlap unavoidable. General treaty rules on hierarchy – namely lex posterior derogat priori,114 and lex specialis derogat generali115 – may not be entirely adequate to govern the interplay between treaty regimes because the given bodies of law do not exactly overlap; rather, they have different scopes, aims, and objectives.116 Can investment treaty tribunals consider or apply other bodies of law in addition to international investment law? Adopting a Weilian philosophical perspective, arbitral tribunals should pay attention to human rights and the need to safeguard cultural heritage for the well-being of present and future generations. For Weil, paying attention is ‘a form of justice, for it is a method of inquiry and for reading past the presumptions and prejudices of the world to achieve deeper insight and knowledge’.117 Therefore, hearing the voice of the afflicted is the basis of all justice:118 ‘It is precisely because the afflicted are potentially us at any and all times that requires recognition and response’.119 Consequently, arbitrators should ‘[r]ecogniz[e] individuals as sacred unto themselves rather than commodities in a transactional exchange’,120 and pay attention to State obligations in the cultural field. This would realize what Weil calls ‘the spirit of justice’.121 From an international law perspective, customary norms of treaty interpretation, as restated in the VCLT require adjudicators to settle international disputes

112 ibid. 113 See generally Pulkowski (nt. 108). 114 Convention on the Law of Treaties (Vienna 23 May 1969) entered into force 27 January 1980 1155 UNTS 331 (hereinafter: VCLT) Article 30. 115 ILC, ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) YILC Vol II, part II, 2. 116 Donald McRae, ‘International Economic Law and Public International Law: The Past and the Future’ (2014) 17 JIEL 627, 635. 117 Kinsella (nt. 14) 192. 118 Robert Zaretsky, The Subversive Simone Weil (University of Chicago Press 2020) 20. 119 Helen M. Kinsella, ‘Of Colonialism and Corpses: Simone Weil on Force’ in Patricia Owens and Katharina Rietzler (eds) Women’s International Thought: A New History (CUP 2021) 90. 120 ibid 91. 121 Simone Weil, La Personne et le Sacré (Éditions Allia 2020) 57 (‘L’esprit de justice et de verité n’est pas autre chose qu’une certaine espèce d’attention’).

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‘in conformity with the principles of justice and international law’.122 Accordingly, adjudicators should consider the context of a treaty, which includes any relevant rules of international law applicable in the relations between the parties. Nonetheless, given their institutional mandate, which is to settle investment disputes, there is a risk that investment treaty tribunals water down or overlook noteworthy cultural aspects of a given case. Arbitrators may not have specific expertise in international cultural heritage law as their appointment requires expertise in international investment law. The growing cognizance of the importance of protecting cultural heritage in the jurisprudence of international courts and tribunals, including arbitral tribunals, may contribute to the gradual emergence of general principles of international law requiring the protection of cultural heritage in times of peace. 5

Policy Options

After having critically assessed the interplay between international investment law and international cultural heritage law, this section now examines three principal avenues that can facilitate a better balance between the public and private interests in international investment law: (1) a treaty-driven approach; (2) a judicially driven approach;123 and (3) counterclaims. 5.1 A Treaty-Driven Approach to Promote the Consideration of Cultural Concerns in International Investment Law

A text-driven approach suggests reform to bring international investment law better in line with cultural concerns.124 It promotes the consideration of cultural heritage in international investment law, relying on the periodic (re)negotiation of IIAs. Treaty drafters can expressly accommodate the protection of cultural heritage in the text of future IIAs or renegotiate existing ones.125 For instance, reference to the protection of cultural heritage could be inserted in preambles, exceptions, carve-outs, and annexes of IIAs.126 In abstract terms, when States sign such agreements, they do not relinquish their right to regulate; yet, including cultural clauses in the treaty text certainly facilitates the consideration of cultural concerns in investment treaty arbitration. However, State practice remains uneven. Most existing IIAs do not contain any explicit reference to cultural heritage. Moreover, IIAs generally include ‘survival

122 VCLT, Preamble, recital 4. 123 Mihail Krepchev, ‘The Problem of Accommodating Indigenous Land Rights in International Investment Law’ (2015) 6 JIDS 42, 45. 124 Stephan W. Schill and Vladislav Djanic, ‘International Investment Law and Community Interests’ (2016) SIEL Working Paper No 2016/01 4. 125 Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (2014) 277–286. 126 Schill and Djanic (nt. 124) 15.

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clauses that guarantee protection under the treaty . . . for a substantial period after the treaty has elapsed’.127 Therefore, ‘it is unrealistic to expect that treaty drafting can solve the conflict between [international investment law] and other community interests on its own’.128 While countries gradually rebalance their IIAs, it is crucial to consider other mechanisms to promote the consideration of cultural heritage in international investment law and arbitration.129 5.2 A Judicially Driven Approach to Promoting the Consideration of Cultural Heritage in International Investment Arbitration

A judicially driven approach suggests that international investment law already possesses the tools needed to address the interplay between investors’ rights and community interests.130 Such an approach promotes the consideration of cultural heritage in international investment law and arbitration by arbitral tribunals. Its implicit assumption is that ‘[w]hile [international investment law] is a highly specialized system, it is not a self-contained one, but forms part of the general system of international law’.131 Arbitral tribunals have limited jurisdiction and cannot adjudicate on the infringement of international cultural heritage law. However, according to customary rules of treaty interpretation restated in the VCLT, when interpreting a treaty, arbitrators can take other international obligations of the parties into account.132 Therefore, arbitral tribunals can and should interpret international investment law in conformity with the system to which it belongs.133 As mentioned, international investment law constitutes an important field of international law. As such, it should not frustrate the aims and objectives of the latter, which include the protection of cultural heritage. Rather, arbitral tribunals should interpret international investment law by considering ‘any relevant rules of international law applicable in the relations between the parties’.134 Therefore, international law can influence the interpretation and application of international investment law. 5.3

Counterclaims

A third way of inserting cultural concerns in the operation of investor-State arbitration is by raising defences or counterclaims for eventual violations of domestic law protecting cultural entitlements. States have increasingly tried to assert counterclaims against investors, even though their efforts have tended not to be

127 128 129 130 131 132 133 134

ibid 16. ibid. ibid. ibid 4. ibid 16. VCLT, Article 31.3(c). Schill and Djanic (nt. 124) 16. VCLT, Article 31.3(c).

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successful.135 While most treaties do not have broad enough dispute resolution clauses to encompass counterclaims, ‘drafting treaties to permit closely related counterclaims would help to rebalance investment law’.136 Some investor-State dispute settlement provisions confer on tribunals the power to hear any dispute in connection with an investment. Other investment treaties provide that the law applicable in investor-State arbitration is the domestic law. If domestic law is the applicable law, ‘international law plays a supplemental and corrective function in relation to domestic law’.137 Not only does international law ‘fill the gaps in the host state’s laws’, but in case of conflict with the latter, it prevails.138 In any case, even if the applicable law is not a domestic law, investors remain under an obligation to abide by the domestic laws of the State in which they operate, due to the international law principle of territorial sovereignty. These and similar textual hooks seem to enable counterclaims. The ICSID Convention also expressly contemplates the possibility of counterclaims, ‘provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre’.139 Analogously, the UNCITRAL Arbitration Rules 2021 also enable arbitral tribunals to hear counterclaims, provided that they have jurisdiction over them.140 In practice, arbitral tribunals have adopted diverging approaches regarding the possibility of counterclaims.141 Most tribunals have declined jurisdiction to hear counterclaims by focusing on whether these are within the scope of the consent of the parties.142 While most tribunals remain hesitant to hear counterclaims, recent arbitral tribunals have been more willing to hear such claims.143 If consent to jurisdiction is explicitly granted,144 or if it is deemed to exist implicitly, at least in those cases where the applicable law is the domestic law,145 investment tribunals can allow 135 Andrea K Bjorklund, ‘The Role of Counterclaims in Rebalancing Investment Law’ (2013) 17 LCLR 461, 464. 136 ibid 461. 137 Yaraslau Kryvoi, Counterclaims in Investor-State Arbitration (2011) LSE Law, Society and Economy Working Paper No 8/2011 17. 138 ibid. 139 Convention on the Settlement of Investment Disputes between States and Nationals of other States (Washington 18 March 1965) entered into force 14 October 1966 575 UNTS 159, Article 46. 140 UNCITRAL Arbitration Rules (2021) Article 21.3. 141 Bjorklund (nt. 135) 473. 142 Jean Kalicki, ‘Counterclaims by States in Investment Arbitration’ (Investment Treaty News, 14 June 2013) 5. 143 S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Bizkaia Ur Partuergoa v Argentina (nt. 104) para 1192 (holding that a BIT ‘[is] not a set of rules defined in isolation without consideration given to rules of international law’). See also Burlington Resources Inc. v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on Ecuador’s Counterclaim (7 February 2017) para 275 (holding Burlington liable for violating Ecuador’s domestic law implementing international standards). 144 Burlington v Ecuador (nt. 144) para 60 (affirming jurisdiction on counterclaims, as the claimant did not object to the Tribunal’s jurisdiction). 145 TM Al-Warraq v Republic of Indonesia, UNCITRAL Case, Award (15 December 2014) para 155 (allowing Indonesia to bring a counterclaim to seek compensation for the investor’s failure to comply with domestic banking law).

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States to raise breaches of cultural policies in their counterclaims against investors, and investor-State arbitration can prompt investors to comply with domestic (and international) cultural norms.146 If investors knew that they could be held liable for harm to cultural heritage in the event of a dispute, they would be more likely to develop investment projects that safeguard – or at least respect – the cultural heritage and cultural entitlements of local communities. 6

Conclusions

‘Enigmatic and elliptical’, but prioritizing human dignity over other concerns, Weil’s philosophy centered on balancing the material and the mystical, and articulated ‘the specific details of that relationship’.147 Therefore, investigating her ‘lucid analysis of the failures and the fears of her time’ enables us ‘to be better able to confront those in ours’.148 Following Weil’s powerful intuitions, this study argues that an international society in which mere economic growth is unreservedly prioritized over anything else (and thus gravity prevails over grace) cannot properly survive the winds of change.149 Rather, the protection of cultural heritage is a human necessity that enables individuals, local communities, States, and the international community as a whole to contribute a sparkle of beauty to the eternal vicissitudes of history and time.150 By inheriting vital legacies from ancestors and safeguarding them for future generations, communities can be resilient, successfully address change, and prosper. The review by an international tribunal of State cultural policies can improve good cultural governance. While each State retains the right to regulate within its own territory, international investment law poses vertical constraints on such a right. Adherence to this international regime adds a layer of external accountability, forcing States to consider the interests of the investors affected by their policies. The growing importance of such tribunals means that most governments will need to consider the impact of cultural policies on foreign investors and their investments before enacting such measures to avoid potential claims and subsequent liability.151 At the same time, international investment law is part of public international law and needs to develop in conformity with it. States can and should introduce cultural concerns in their IIAs in the form of cultural clauses or legality requirements. In parallel, arbitral tribunals should consider cultural concerns in light of customary

146 For a similar argument, Anagha Sundararajan, ‘Environmental Counterclaims: Enforcing International Environmental Law through Investor-State Arbitration’ . 147 Kinsella (nt. 14) 190. 148 ibid. 149 Weil, Gravity and Grace (nt. 23) 287. 150 ibid 321. 151 Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295.

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rules of treaty interpretation, as restated by the VCLT, and should settle investment disputes ‘in conformity with principles of justice and international law’.152 While the possibility of raising counterclaims remains debated, arbitral tribunals should not dismiss such a possibility, if they have jurisdiction on the same. Counterclaims can constitute a mechanism that allows them to not only defend but also enforce international cultural heritage law against private parties, potentially resolving some of the tension between international cultural heritage law and international investment law. To conclude, the growing jurisprudence of arbitral tribunals relating to domestic cultural policies may contribute to the emergence of general principles of law that require the protection of cultural heritage in times of peace.

152 VCLT, Preamble.

20 The Legal Protection of Biocultural Diversity Between Cultural Rights and Sustainable Development. A Comparative Perspective Pier Luigi Petrillo* 1

Case-Based Analysis: Three Decisions to Understand What We Are Talking About

Cultural heritage, biodiversity and human rights are closely related concepts. To better understand this, we can consider three cases in which the Canadian Supreme Court intervened. In the first case, decided in 1999 in the rulings R. v Marshall 1 and R. v Marshall 2,1 an Indigenous minority, the Mi’kmaq people, claimed the right to fish according to a traditional fishing technique which was no longer considered sustainable from an ecosystem perspective. The Court recognized that since that fishing technique was an expression of Mi’kmaq community’s cultural identity, a ban would have resulted in a loss of their intangible cultural heritage (ICH). Exercising a careful balancing of two fundamental rights, the collective right to the protection of the environment and the specific right to the protection of one’s cultural identity, the Court held that the latter should prevail since that ban would have aggravated the situation of the Mi’kmaq people, who were already in particularly critical situation and at risk of extinction. The second case – decided in the 2005 ruling R. v Bernard2 – concerned the cutting down and selling of trees within a national park, again by the Mi’kmaq community. In both cases, the Court pointed out that the cutting of wood in federal national parks in order to make profit is not a qualifying element of Mi’kmaq

* Full Professor of Comparative Public Law and UNESCO Chair Professor on Intangible Cultural Heritage and Comparative Law, University of Rome Unitelma Sapienza (Italy). 1 R. v Marshall (No 1) [1999] 3 SCR 456; R. v Marshall (No 2) [1999] 3 SCR 533. See Andrée Lajoie et al, ‘L’intégration des valeur et des intérêts autochtones dans les discours judiciaire et normative canadien’ (2000) 38 OHLJ 143; Robert G. Adlam, ‘Indigenous Rights, the Marshall Decision and Cultural Restoration (2003) 33 Acadiensis 108 ff; Robert Charles G. Capistrano and Anthony T. Charles, ‘Indigenous Rights and Coastal Fisheries: A Framework of Livelihoods, Rights and Equity’ (2012) 69 OCM 200; Giuseppe de Vergottini, ‘Constitutional Law and the Comparative Method’, in Javier Cremades and Cristina Hermina (eds) Encyclopedia of Contemporary Constitutionalism (Springer 2021) 71 ff. 2 Douglas C. Harris, ‘A Court Between: Aboriginal and Treaty Rights in the British Columbia Court of Appeal’ (2009) 162 BCS 137. DOI: 10.4324/9781003357704-25

The Legal Protection of Biocultural Diversity 383 culture and traditions but, at the same time, the Court thus recognized the need to balance, on the one hand, the collective right to the preservation of the ecosystem, with, on the other hand, the minorities’ right to keep alive secular traditions, an expression of their cultural identity. The third case – decided in 2008 R. v Kapp3 – concerned the federal decision to authorize certain Indian tribes, also in Canada, to fish for salmon even during the pause imposed on fishing to encourage species repopulation, since this activity was intimately connected to the cultural identity of these people. A Canadian citizen not belonging to any ethnic minority was fined for fishing during the prohibited period by way of protest. During the consequent trial, since he perceived as discriminatory the exemption granted only to native people, he asked for government decision to be constitutionally reviewed, arguing that it was an infringement of Article 15 of the Charter of Rights and Liberties on equality. The Supreme Court decided in favour of the government, recognizing the positive purposes of the exemption granted only to the Indian tribes (and not to all Canadian citizens) after a careful consideration of the balance between those needs related to biological diversity (salmon repopulation) and those of the Indian tribe’s cultural identity. Why are these three cases relevant? Let us analyse the issues brought to the judges’ attention. They all deal with essentially the same issue: balancing the right to cultural identity and keeping alive the ICH of one’s community, with the right to the environment, ecosystem protection, and biodiversity. These are two categories of rights – cultural rights and environmental rights – long conceived of as unrelated to each other. This approach has produced numerous norms, under international law and national law, aimed at protecting, in a disjointed and distinct manner, cultural diversity on the one hand and biological diversity on the other. Anthropological and socio-linguistic studies have shown, for some time now, the ways in which this approach is wrong and have forced a profound rethinking of normative models in order to integrate cultural diversity and biological diversity into the new concept of “biocultural diversity”. Starting from these considerations, this chapter will first examine the legal concept of “biocultural diversity” in the light of international law, and then examine the Canadian solution to the issue in detail. The Canadian example is by no means the only one, but it is probably the most interesting because of its wealth of cultural diversity (Indigenous Peoples, French, British and 12 other different nationalities integrated into the social and economic context of the nation), and the normative solutions adopted. In the next few pages, therefore, we will examine these normative solutions, highlighting the role of the Supreme Court, and then comparing the Canadian approach to that of the decidedly different EU approach. 3 See, with a critical point of view, Alex M. Cameron, Power without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism (McGill-QUP 2009) 63 ff and 207 ff. Contra Patricia Ochman, ‘Recent Development in Canadian Aboriginal Law: Overview of Case Law and Certain Principles of Aboriginal Law’ (2008) 3 ICLR 319. See also Pier Luigi Petrillo, Le istituzioni delle libertà: Esperimenti costituzionali canadesi (Cedam 2012).

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2 The Legal Concept of “Biocultural Diversity” In most advanced democracies, legal systems provide, even in their fundamental principles, rules for the protection, on the one hand, of the environment and the ecosystem, and on the other hand, of the cultural, religious, and linguistic rights of minorities inhabiting their territories. In this way, democratic regimes protect biodiversity and cultural diversity. The legal protection of cultural rights of different social groups cannot be hived off from that of other identities and social dimensions. In other words, more and more clearly, it is emerging that for a legal system that seeks to protect its multicultural dimension, it is necessary to introduce norms that, at the same time, will also defend the cultural and biological diversity of the community. In a world where the very concept of territorial borders seems to be disappearing, it is necessary to protect the “biocultural diversity”, meaning ‘the variety of life in all its manifestations: biological, cultural, and linguistic, all interconnected . . . into a complex socio-ecological adaptive system’.4 The same concept had its origins in Canada – and for this reason the first three cases are Canadian. It was a Canadian scholar of Italian origins, Luisa Maffi, who, in the late 1990s,5 started to reflect, mainly from a sociological and anthropological point of view, on the consequences of a unidirectional protection exclusively of biological diversity, and of the effects produced by the Canadian legislation in force at that time and by international conventions devoted to the subject, on Canadian Indigenous Populations.6 She underlined the fact that the application of regulations aimed at the preservation of certain marine species was causing devastating effects on the cultural identity and traditions of a number of native populations that inhabit the northern regions of Canada, such as the Inuit, giving way to a process of wealth and biodiversity destruction in the Canadian territories. The inextricable connection between biological and cultural diversity was at the base of the Belém Declaration, adopted by the First International Congress on Ethnobiology in 1988,7 which sought to clarify the importance of balancing cultural diversity and biodiversity. A few years later, in 1992, the UN Convention on Biological Diversity sought to affirm the same concept:8 in fact, Article 8 of the CBD defines as an essential

4 Luisa Maffi, ‘Biocultural Diversity and Sustainability’, in Jules Pretty et al (eds) The Sage Handbook of Environment and Society (Sage 2007) 267 ff. 5 Luisa Maffi (ed) On Biocultural Diversity: Linking Language, Knowledge, and the Environment (SIP 2001). 6 Luisa Maffi, ‘Language: A Resource for Nature’ (1998) 34 NAR 12. See also Luisa Maffi, ‘Linguistic, Cultural and Biological Diversity’ (2005) 34 ARA 599. 7 International Society of Ethnobiology, ‘Declaration of Belém’ (1998) . Last access to all links mentioned in this chapter: 5 January 2023. See also Darrell A. Posey and Graham Dutfield, Beyond Intellectual Property Rights: Towards Traditional Resource Rights for Indigenous Peoples and Local Communities (IDRC 1996) 66. 8 (Rio de Janeiro, 5 June 1992) entered into force 29 December 1993 1760 UNTS 79 (hereinafter: CBD).

The Legal Protection of Biocultural Diversity 385 objective of States Parties not only the protection of the biological diversity of the species, but also ‘to respect, preserve, and maintain knowledge, innovations, and practices of Indigenous and local communities, which refer to traditional ways of life relevant to the conservation and the sustainable use of biological diversity’. The concept of “biocultural diversity” encompasses ‘the diversity of life in all its manifestations: biological, cultural, and linguistic, interconnected (and probably co-evolved) within a complex socioecological adaptive system’.9 As seems clear, then, such a definition implies that studying biocultural diversity requires the integration of knowledge from different fields: anthropology, linguistics, ethnobiology, ethnoecology, biology, agriculture, ecology and many others. But one must, above all, realize that the diversity of life is not only constituted by the diversity of animal and plant species, habitats and ecosystems on the planet, but also by the diversity of human cultures and languages; these diversities do not develop in distinct and parallel worlds, but are instead different manifestations of a single and complex whole; the relationships between diversities have developed over time through the cumulative global effects of mutual adaptations – probably coevolutionary in nature – between humans and the local environment.10 The starting point on which the jurist must also reflect is, therefore, that human beings do not live in an abstract and isolated context but are an integral and interdependent part of the natural environment in which they spend their existence. Human beings have always had a close relationship with the environment that surrounds them; they have always modified it in order for it to respond to material needs, while at the same time being influenced and shaped by that same environment:11 ‘this implies that the organization, vitality and resilience of human communities are closely related to the organization, vitality and resilience of ecosystems’.12 Often, as has been effectively observed, ‘when we talk about the relationship between humans and nature we automatically consider our species as a completely different and separate entity from the rest of the living and nonliving matter on our planet’.13 In industrialized societies, the perception of an identity between humans and the environment in which they live is disappearing; in Indigenous societies, on the

9 Maffi, ‘Biocultural Diversity’ (nt. 4) 269. 10 ibid 298. 11 Darrell A. Posey, ‘Cultural and Spiritual Values of Biodiversity. A Complementary Contribution to the Global Biodiversity Assessment’, in Darrell A. Posey (ed) Cultural and Spiritual Values of Biodiversity (UNEP and Intermediate Technology Publications 1999) 1 ff. 12 Luisa Maffi, ‘La perdita della diversità biologica’, in Dietelmo Pievani and Niels Eldredge (eds) Ecosphera. Il futuro della terra. Atlante (Utet 2010) 298. 13 Matteo Buiatti, La biodiversità (Il Mulino 2007) 98.

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contrary, the link between languages, traditions, territory and ecosystem is still very strong.14 Global mapping of biodiversity and cultural diversity shows that where biodiversity is high, so is cultural diversity.15 Thus, superimposing maps of the Earth’s nighttime illumination concentration with the global distribution of biocultural diversity shows that in the most industrialized, energy-using regions of the world, biocultural diversity is, in proportion to population and geographic area, very low and decreasing. According to the IBCD-Rich index (Index of Biocultural Diversity) developed by Harmon and Loh in 2002,16 the top country in the world for biocultural diversity is Indonesia (about a 0.75-to-1 basis), followed by Papua New Guinea and, close behind, Brazil, India, China, Nigeria, the United States, Cameroon, Zaire, Colombia, Mexico, and Australia. This shows that it is not necessarily in industrialized or high economic growth realities that there is a lack of biodiversity. Equally this is evident from the 17 indicators developed by the CBD as part of the Biodiversity Indicators Partnership (BIP) 2010.17 Among these indicators, it should be noted that one of the main areas of interest selected, from whose monitoring it is possible to derive indices for measuring diversity, is that concerning the state of knowledge, innovations and traditional practices. The two indicators selected within this macro area by the CBD are the index on linguistic diversity and the index on the state of traditional knowledge. In fact, as is pointed out in the papers published by BIP 2010 regarding the individual indicators, if languages become extinct there will inevitably be an irrecoverable loss of unique cultural, historical and ecological knowledge.18 Local and Indigenous communities carry complex classification systems of the natural world, reflecting a deep understanding of flora, fauna, ecological relationships and ecosystem dynamics. This knowledge is expressed and transmitted through the Indigenous language. As this disappears, the knowledge that was conveyed through it is also lost. On the other hand, traditional knowledge can make a significant contribution to sustainable development. Most local communities are located in areas where the world’s genetic resources are significantly concentrated. Some traditional practices have improved and promoted biodiversity and have proven decisive in maintaining healthy ecosystems. However, the contribution of Indigenous and local communities to the conservation of 14 Joe Blythe and R. McKenna Brown, Making the Links: Language, Identity and the Land (Foundation for Endangered Languages 2003) 78–81. 15 John Richard Stepp et al, ‘Development of a GIS for Global Biocultural Diversity’ (2004) 13 Policy Matters 267. See also Terralingua . 16 Jonathan Loh and David Harmon, ‘A Global Index of Biocultural Diversity’ (2005) 5 Ecological Indicators 231. 17 ‘The Biodiversity Indicators Partnership’ . 18 Biodiversity Indicator Partnership, ‘Index of Linguistic Diversity’ . See also Tristan Tyrrell, ‘Biodiversity Indicators and the 2010 Target: Experiences and Lessons Learnt from the 2010 Biodiversity Indicators Partnership’ (CBD Secretariat 2010) CBD Technical Series No 53 196.

The Legal Protection of Biocultural Diversity 387 biological diversity goes far beyond their role as managers of natural resources. Their skills and techniques provide valuable information for the global community and a useful model for biodiversity policies. Letting these traditional knowledge and cultural elements disappear may mean, as a result, losing valuable elements of biological diversity as well. Not surprisingly, the institutional body identified as responsible for verifying these indicators is UNESCO. Linguistic diversity is, therefore, the representative indicator of cultural diversity.19 According to data provided by Terralingua, 6000 to 7000 different languages are spoken around the world, of which 95% are the mother tongue of less than 1 million people. If we compare the percentage data on linguistic diversity with the data on vertebrate diversity, we can see that in the top ten countries where different languages are still spoken (i.e. where there are multiple biocultural systems and ethnolinguistic groups), there is the greatest vertebrate diversity (Papua New Guinea, Indonesia, Brazil, Mexico, Australia, and the other countries mentioned above). However, linguistic diversity cannot be considered the only benchmark. Other elements pertaining to the cultural life of a community, such as traditions, folk festivals, events, rituals, social practices – all types of ICH referred to in the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage20 – also need to be analysed.21 The close relationship between biological diversity and cultural diversity is especially evident when analysing global food trends. In other words, it can be pointed out that so-called agro-biodiversity can be considered, in itself, an effective index for understanding both the causes and consequences of the loss of biocultural diversity. According to the FAO, there are about 7000 plant species used for food production, but only 30 are actually grown today, and of these, rice, wheat and corn alone cover 50% of the world’s food needs. The loss or abandonment of such crops can be explained by various factors, first and foremost cultural: in globalized times, food seems to be the main victim of dietary “fads”, not only as a matter of “appeal”. The disappearance of certain traditional foods is closely linked to the failure of parents to pass on to their children methods of production or preservation or handling of food. Certain plant species have thus disappeared or are approaching disappearance because they no longer have a place in our food culture or because they are considered excessively fatty or, on the contrary, poor, or because we no longer know how to use them, how to process them, how to cook them. The loss of such

19 Stepp et al (nt. 15) 267–270. See also Roberto Toniatti, ‘Minorities and Protected Minorities: Constitutional Models Compared’, in Tiziano Bonazzi and Michael Dunne (eds) Citizenship and Rights in Multicultural Societies (EUP 1995) 45; Valeria Piergigli, Lingue minoritarie ed identità culturali (Giuffrè 2001) 62 ff; John R. Stepp, Felice S. Wyndham and Rebecca K. Zarger, Ethnobiology and Biocultural Diversity (UGP 2002). 20 (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). 21 Pier Luigi Petrillo (ed) The Legal Protection of Intangible Cultural Heritage. A Comparative Perspective (Springer 2020).

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food culture or, worse, the homogenization of food cultures, the unbridled desire to find in every part of the world what we can enjoy at home, have made certain crops scarcely profitable so as to make them niche products, which can still be found, when one is lucky, in food jewellery stores. There is a further consequence: the loss of knowledge related to the cultivation of that plant species, which is the antechamber to their ultimate demise. The available data is alarming in this respect: immediately after the Second World War, in China, for example, 10,000 varieties of wheat were cultivated; in the 1970s there were just under 1000 and now there are about 200. In Mexico, 80% of the varieties of maize, the iconic product of Mexican cuisine, have been lost in the last 50 years. In the United States, 95% of cabbage varieties, 86% of apples, 94% of peas, and 81% of tomatoes have disappeared in the same time frame.22 Considering this renewed awareness and the certainty that it is not possible to preserve biological diversity without posing the question of how to preserve the cultural diversity of the involved communities, it is the task of jurists to try to define an adequate regulatory structure. Before the jurists, these issues are also addressed by governments and international organizations, at a regional and national level. At the international level there are different agencies, organizations, UN programs: UNESCO is responsible, among other things, for promoting and preserving cultural diversity and biological diversity; FAO was created to fight (without much success) world hunger; UNEP is the UN program for environmental protection. These bodies over the years have adopted international regulations with the aim of preserving genetic resources, biosphere reserves, and tangible and intangible cultural heritage. These standards have been joined by others, such as the CBD, or the UN Framework Convention on Climate Change,23 or the UN Convention to Combat Desertification.24 This new concept brings a new challenge for jurists and constitutional experts, who must, on the one hand, reinterpret existing laws (from the basic ones) rereading them with the lenses of biocultural diversity and, on the other, identifying further instruments for the new needs. Consequently, it is essential, as noted above, for thinking in terms of biocultural diversity and for integrating biological and cultural diversity, that lawyers must verify whether within the fundamental law (constitutional law) there are rules regarding (1) bio-cultural diversity; (2) biodiversity; (3) environment; (4) cultural diversity; (5) linguistic diversity; and (6) ethnic or religious diversity. After answering this question, lawyers will need to seek to get into specifics and to concentrate on two main areas: culture and environment. Within these main areas, jurists will need to put further questions to find out, for example, whether the 22 Buiatti (nt. 13) 109. 23 (Rio de Janeiro 4 June 1992) entered into force 21 March 1994 1771 UNTS 107 (hereinafter: UNFCCC). 24 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris 14 October 1994) entered into force on 26 December 1996 1954 UNTS 3.

The Legal Protection of Biocultural Diversity 389 legal system under analysis has introduced legal mechanisms for the protection, enhancement, promotion of cultural diversity or biodiversity. Moreover, they will need to consider whether these mechanisms have been put to widespread participation, if accountability tools are provided, and how to update them, as well as the verification of their impact, to include, for example, whether the introduced rules “talk about themselves” or respond to this new interdisciplinary context, where culture and biology interact with the same codes. So specifically, in the macro area of “culture”, jurists will need to check if the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage,25 2003 UNESCO Convention, and 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions26 were ratified, or if there are specific rules for the protection of languages and dialects, or even for the protection of folklore. For the macro area of “environment”, jurists must ask whether a country has ratified the conventions and treaties of the UN concerning the fight against climate change, desertification, biological diversity or the program of UNEP or MAB (Man and Biosphere) UNESCO, and if there are specific laws for the reduction of CO2 emissions or for the protection of biological diversity or, for example, for the development of alternative energies. 3

Back to the Cases: How to Protect Biocultural Diversity? The Canadian Model

Having given a definition of biocultural diversity, let us return to the initial cases. In all the situations described, the judge was faced with the challenge of considering two rights equally worthy of legal protection: the right to one’s own cultural identity and the right to the protection of the collective environment. It could be assumed that the judge, in each of the different cases, decided which of the two rights should prevail, to the detriment of the other; but this is a mistaken view. The judge did not create a hierarchy of rights, they did not place one above the other; the judge carried out a balancing act, “dropping” the notion of biocultural diversity into the concrete case. The judge did not try to work out how to protect biodiversity or how to protect cultural diversity but applied an integrated approach as if these two concepts were indivisible elements. This was made possible by a legal framework that, in Canada, protects biocultural diversity rights through the Constitution.27

25 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 26 (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311 (hereinafter: 2005 UNESCO Convention). 27 Canadian Charter of Rights and Freedoms, Constitution Act [1982] c 11 (hereinafter: the Charter). Giancarlo Rolla, ‘Protection of Cultural Identity and Citizenship in Multiethnic Legal System: The Canadian Experience’, in Massimo Rubboli (ed) The Canadian Charter of Rights and Freedom: The First Twenty Years (Centro di Ricerca in Studi Canadesi e Colombiani 2003) 21.

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Indeed, Canada, more than any other democratic system, is an emblematic example of the coexistence of different cultures and identities, a mosaic of identities to which corresponds a mosaic of languages and religions. In fact, the Canadian Constitution lacks explicit references to the concepts of biocultural diversity, environment, biological diversity, while there are numerous references to linguistic, religious and ethnic diversity. One must first refer to the Charter of Fundamental Rights and Freedoms enshrined in the Constitution Act of 1982.28 Articles 16 to 22 protect bilingualism, identifying English and French as official languages and, as such, confirming that they enjoy equal status and equal rights; consequently, everyone has the right to use them at institutions and to see them used by the institutions themselves. At the same time, Article 23 protects the right to education in the minority language in a given territory, in the sense that Canadian citizens are recognized as having the right to have their children receive primary and secondary education in the language they speak, even if it is the minority language in that territory. With regard to religious diversity, Article 2 guarantees everyone the fundamental right to freely profess their religion. Article 25 specifies that the Charter cannot be implemented in a way that violates the rights of native peoples, while Article 35 of the Constitution Act expressly recognizes and affirms the existing, ancestral or derived rights of Aboriginal people. But the key provision, a figurehead of Canadian society, is Article 27 of the Charter which provides for an interpretative constraint on all constitutional provisions, mandating that they be interpreted in a way that preserves and promotes the development of the multicultural heritage of Canadians. Canada’s entire multicultural policy, officially promoted since 1971 by the federal government led by then Liberal Premier Pierre Elliott Trudeau, is based on this provision. In fact, long before the term multiculturalism made its appearance in a judicial act, Canada had recognized the equal dignity of all citizens beyond ethnicity and Anglophone or Francophone origin, developing a policy based on so-called polyethnic pluralism. Since 1971, numerous regulations have been passed by the Parliament in Ottawa and the Parliaments of the Canadian provinces in order to ensure the effectiveness of Canadian multiculturalism. In truth, since Article 27 of the Charter is an interpretative rule, and since it provides that all constitutional provisions (and thus the rules subordinated to them) must be interpreted with respect to Canadian multiculturalism, there was no need for specific laws to make this rule effective, as the Supreme Court has pointed out. The first “part” of legislation implementing Article 27 of the Charter was the Multiculturalism Act 1988.29 This Act, which recognizes in its Preamble the inviolable rights of native peoples and the need to protect and enhance the multicultural heritage referred to in Articles 25 and 27 of the Charter, develops the “multicultural policy” introduced by Trudeau. It recognizes and promotes multiculturalism as the

28 Avery F. Gordon and Christopher Newfield, Mapping Multiculturalism (UMP 1996) 37 ff. 29 Canadian Multiculturalism Act (1985) [1988] RSC c 24.

The Legal Protection of Biocultural Diversity 391 foundation of the racial and cultural diversity of Canadian society and as the freedom of each individual to preserve and share his or her cultural heritage, promoting interaction between actors from different communities, as a source of confrontation and creativity; in addition, it empowers institutions to understand and value different identities. The law commits the federal government to conduct its policies in a responsible and sensitive manner to the Canadian multicultural reality. In particular, Article 4, on the implementation of the multicultural policy, while not contemplating specific measures, gives the competent Minister the power to issue measures to realize and strengthen the cultural dimension of Canadian society, also by using specific economic incentives. The Parliament and the government in Ottawa have subsequently pursued the implementation of the multicultural policy through the approval of numerous laws and measures aimed at, among other things, revising school curricula to highlight the contribution of cultural minorities, introducing training courses on cultural diversity for police forces and health workers, and dictating politically correct rules for public and private media. Following the same logic, the Canadian Parliament proceeded to revise the Official Languages Act enacted in 1969,30 following the proposal of the aforementioned Royal Commission on Bilingualism and Biculturalism. The 1969 Act, even before the enactment of the Charter of Fundamental Rights and Freedoms, recognized English and French as official languages, guaranteeing Canadian citizens the right to use them in institutions that, in turn, committed themselves in their acts to using both. As we have seen, the principles contained in the 1969 Act were transfused into the Constitution Act 1982, where Articles 16 to 22 follow the structure of the 1969 Act almost exactly. In 1988, a new Official Languages Act was enacted to ensure the implementation of the new constitutional principles, which provided, among other things, that each province could introduce provisions to protect its native language.31 Precisely for this purpose, the Legislative Assembly of Nunavut (the territory 85% populated by Inuit), a few months after it passed its constitution in 1999, passed (Nunavut’s) Official Languages Act (OLA), recognizing the Inuit languages (Chipewyan, Cree, Dogrib, Gwich’in, Inuktitut, Slavey) as having equal legal status to the two official languages of the Federation.32 According to the law, in Nunavut, any citizen can use them indiscriminately in the municipalities. If the institutions of this Province are faced with a ‘significant demand’ from the population for a service to be provided in one of the official languages, the authorities are obliged to provide it. Almost ten years later, the Nunavut Assembly introduced some changes with the Inuit Language Protection Act 2008,33 which specifically attempts to protect the traditional language of the Inuit. The ILPA’s Preamble emphasizes the importance

30 31 32 33

Official Languages Act (1969) [1970] RSC, Chapter 0–2 (hereinafter: 1969 Act). Official Languages Act (1985) [1988] RSC c 31. (Nunavut’s) Official Languages Act (OLA) [1999] S. Nu. [2008] c 17 (hereinafter: ILPA).

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of the Inuit language as cultural heritage and a continuous expression of community identity, a fundamental vehicle through which the values, history and traditions of the Aboriginal people are manifested. In particular, the law aims to promote and support the involvement of the native people in all levels of government and in the socio-economic development of the territories they inhabit, with the awareness that this language is identifiable as being for a different and specific cultural group. According to the provisions of the ILPA, the Inuit have an inextinguishable right to use their own language. In particular, the right to be taught the Inuit language in schools (Articles 8–10); to use the Inuit language in their work in territorial government institutions; and to be able to use the Inuit language in everyday public service activities (Articles 11 and 12) is recognized. The ILPA has established the role of an independent figure, the Languages Commissioner (Article 27), who is elected for a four-year term and is responsible for ensuring that the three official languages are respected; he can, in the most serious cases of violation of the provisions of the law in question, refer the matter to the Nunavut Court of Justice. At the international level, Canada has tried – admittedly with lights and shadows that are difficult to understand – to export its multicultural model, endeavouring to approve conventions and programs aimed, on the one hand, at safeguarding cultural diversity and, on the other, at protecting biological diversity. By way of example, it suffices to recall that Canada promoted the 2005 UNESCO Convention, conducting an extremely complex international negotiation that led to the introduction of the concept of “multiculturalism” into the text of the convention.34 Still within UNESCO, Canada has historically been a supporter of the 1972 WHC. Conversely, it is incomprehensible that Canada did not sign the 2003 UNESCO Convention, which aims, as mentioned in the previous paragraphs, to safeguard, also through a specific Representative List, the so-called ICH, such as traditions, practices, rites and rituals, archaic festivals, agricultural and craft techniques that have been handed down from generation to generation. In 2007 Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples by the UNGA.35 Indeed, the Canadian Government, even though sharing the principles of the UNDRIP, expressed a negative opinion on the document,36 arguing that its goals were in contrast with the Canadian Charter of Fundamental Rights and Freedoms, and in particular with Article 35.37

34 Mira Burri, ‘Cultural Diversity as a Concept of Global Law: Origins, Evolution and Prospects’ (2010) 2 Diversity 1059. 35 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP). On the Canadian statement, UNGA, ‘107th Plenary Meeting’ UN Doc A/61/PV.107 (12 September 2007) 12. 36 Federal Department of Aboriginal Affairs and Northern Development Canada (AANDC), ‘Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples’ . 37 ‘Canada Votes ‘No’ as UN Native Rights Declaration Passes’ CBS News (13 September 2007) .

The Legal Protection of Biocultural Diversity 393 In particular, Canada contested Article 19, on the mandatory previous approval by Indigenous People on public policy,38 as well as Articles 26 and 28,39 which could have reopened the inconvenient problem of the expropriation of natives’ land. Pressed by public opinion, on 12 November 2010, after having reconsidered its position, Canada officially endorsed the UNDRIP.40 Also derived from international law are the regulations adopted by Canada on environmental protection and biodiversity. Canada’s Constitution lacks an explicit reference to the environment, and nothing is said about the authority (central or peripheral) competent to regulate the matter, even though it is considered an asset to be protected and proudly defended. This “silence” of the constitutional text should not, however, be read as an oversight of the constituent fathers who, on the contrary, believed that it was the duty of all institutions to protect “environmental goods” and the ecosystem: according to this approach, it is not the duty of a single subject, at the federal level, for example, a single federal minister, to ensure the harmonious development of Canadian society, but a collective, general duty. This is also evident from certain constitutional provisions which, as interpreted by the Canadian Supreme Court, have defined a shared competence in environmental matters between the federal State and the provinces. Since the 1970s, the federal government has claimed a general competence in environmental matters for objective as well as legal reasons: firstly, because of the increasing number of international obligations (conventions, protocols, bilateral agreements), compliance with which is fully within the federal competence, and secondly, because of the need to guarantee the effective protection of the environment by resorting to “high-level” regulation that, at the very least, sets minimum standards common to all the provinces.

38 UNDRIP, Article 19 (‘States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’). 39 UNDRIP, Article 26 (‘1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned’); UNDRIP, Article 28 (‘1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress’). 40 Tim Fontaine, ‘Canada Removing Objector Status to UN Declaration on the Rights of Indigenous Peoples’ CBS News (8 May 2016) .

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In the absence of a precise constitutional reference, however, this claim has led to a conflict between the federal government and the provinces, which, in turn, considered themselves holders of exclusive power in the matter by virtue of certain constitutional provisions that incidentally also refer to the environment. Favouring the Federation’s claim, the Federal Parliament has repeatedly legislated by interpreting, extensively, various constitutional provisions that attribute competences to the Federation itself: Article 91.12 of the Constitution where it recognizes the exclusive competence of the State in matters of coastal fishing; Article 91.1 on the subject of federal State property; Article 91.24 according to which it is up to the federal bodies to legislate, on an exclusive basis, with regard to Indigenous Peoples and lands reserved for the Indians; Article 91.2 regulating industry and commerce and Article 91.10 according to which navigation and the merchant navy are of exclusive State competence; Article 91.3 recognizing State taxation power. In addition to these provisions, the two constitutional provisions principally invoked by the federal legislature to claim primacy in environmental matters were Article 91 and Article 91.27. While the latter assigns to the State the task of guaranteeing public health and sanctioning anyone who endangers it, the former introduces the oft-referenced general clause that there is State competence whenever it is necessary to guarantee ‘peace, order and good government’. To the federal bodies, the Provinces responded, especially before the Supreme Court, claiming full competence in environmental matters, on the basis of Articles 92.5 (on provincial State property), 92.13 (on the ownership of property stabilized in the Provinces), and 92(a) of the Constitution (according to which the provincial legislative assemblies have full competence, exclusively, in the areas of ‘research . . . development, maintenance and management of non-renewable natural resources and forest resources existing within the Province’). In such a complex context, the Supreme Court has played a decisive role by resolving some of the many questions of interpretation. In an early 1988 judgment, R. v Crown Zellerback Canada Ltd,41 the Court affirmed the legality of Section 4 of the federal law that prohibited the dumping of any substance into the sea and inland waters under provincial jurisdiction without prior authorization from the federal government (Ocean Dumping Control Act).42 The Court, in fact, applying Article 91 of the Canadian Constitution, noted the presence of a concrete national interest (national concern) in having uniform regulation throughout the territory, in light of the possible effects of non-regulation by some provinces. This principle was also formalized in the Preamble to the 41 R. v Crown Zellerbach Canada Ltd. [1988] 1 SCR 401. 42 Hélène Trudeau and Suzanne Lalonde, ‘Implementing the Kyoto Protocol: A Constitutional Challenge for Canada’, in Maria del Mar Campins Eritja (ed) Los retos de la aplicacion del Protocolo de Kyoto en Espana y Canada (Atelier 2005) 149 ff and 168 (‘if there is one thing demonstrated by the Supreme Court judgment, it is the difficulty in correctly identifying, within the broader field of environment protection as a whole, specific elements pertaining to the distribution of legislative jurisdictions among various levels of government’).

The Legal Protection of Biocultural Diversity 395 Canadian Environmental Protection Act of 1999, which states ‘that the risk of toxic substances in the environment is a matter of national concern and that toxic substances, once introduced into the environment, cannot always be contained within geographic boundaries’.43 In a second ruling in 1992, Friends of the Oldman River Society v Canada (Minister of Transport),44 the Court recognized the federal interest in the environmental impact assessment of projects of provincial initiative and interest. In the case at hand, the Alberta government had initiated a project to build a dam on the Oldam River, receiving the consent of the federal government’s Ministry of Transport, but without subjecting it to an environmental impact assessment, despite this being required by the Environmental Assessment and Review Process Guidelines Order set by the federal Minister of the Environment. For the Court, this regulatory provision (moreover, of a secondary nature) was fully legitimate precisely because environmental matters require competition between the federal and provincial systems. Finally, the R. v Hydro-Quebec case in 1997,45 in which the Court ruled in favour of a decree of the Federal Minister of the Environment sanctioning a Quebec company for the harmful emission of substances into the atmosphere in excess of the limits set by the federal government. In this ruling, moreover, the Court observed the “transformation” of the “right to the environment” from an individual right to a collective right, a true fundamental principle of the legal system. The Canadian Supreme Court emphasized that the environment could not be considered as a real subject, which could be divided between the centre and the periphery as if it were a concrete and defined object, but that it summarized in itself values, principles and obligations that fall on the community regardless of the formal division of competences. In this sense, environmental protection is a primary value that cannot be subordinated to other values; it is a transversal value that must always be taken into consideration and integrated with all federal and provincial government policies and actions. Although it does not recognize the exclusive competence of the Federal Government on environmental regulation – as it does with other subjects such as healthcare, education and welfare – since its values, principles and goals are indivisible among different levels of governance, the Supreme Court recognized – through the above mentioned rulings – that the definition of minimum standards of environmental protection (especially in the fields of water and air pollution) is in the best interests of the Federation. This is true both in cases of implementation of international obligations (many of them provided by the UNFCCC), and in cases in which it is impossible to effectively protect the environment at the provincial level (as is obvious, river pollution knows no borders, not to mention air pollution). These regulatory instruments, apparently distinct from each other, have been brought back into unity by the Supreme Court, which has developed the theory of

43 Canadian Environmental Protection Act, 1999) [1999] SC c 33, Preamble. 44 Friends of the Oldman River Society v Canada (Minister of Transport) [1992] 1 SCR 3. 45 R. v Hydro-Québec [1997] 3 SCR 213.

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the so-called obligation of reasonable accommodation.46 According to this theory, the Court may order the derogation of a general rule if its application would discriminate against the cultural rights of a people. This interpretative technique has been used by the Court when it comes to safeguarding the values of pluralism and different cultural identities that characterize the history and evolution of Canadian society,47 thus becoming a jurisprudential tool aimed at safeguarding identities and managing ethnic and cultural diversity. The Court has taken on the same role, as we have seen since the introduction, with regard to the protection of biocultural diversity. The Court has sought to balance the needs of the community linked to the protection of biological diversity with traditions linked to the ancestral world of native Canadian peoples, going so far as to develop “cultural tests” to verify the coherence between certain practices and the survival of the cultural group of reference.48 Thus, the Court, called upon to review the existence or non-existence of pre-existing legal rights of native peoples with regard to the timber trade or traditional fishing, has recognized as a priority the need to safeguard both the biological resources and cultural identities of ethnic minorities. 4

Biocultural Diversity: From Canada to the European Union

The decisions of the Canadian Supreme Court mentioned in the first paragraph show how, despite the silence of the Constitution, the protection of cultural biodiversity is effective, a legal reasoning having long since developed in Canada about the need to integrate cultural rights with environmental rights. This vision is completely lacking in the context of the EU. One case is emblematic in this regard. The conflict arises from the restrictions introduced by the EU Regulation No 1007/2009 in the trade of seal products.49 The Canadian Inuit minority traditionally hunts seals for their livelihood and processes seal skins by selling them on the domestic and foreign markets. This activity is the only possible one for this historically rich people, living in an ecosystem context where no other activity is feasible, particularly given the harsh climate. At the same time, it must be considered that the seals they hunt are in danger of extinction and the EU, wanting to discourage their hunting, has severely restricted the import of their skins.

46 José Woehrling, ‘L’obligation d’accommodement raisonnable et l’adaptation de la societé à la diversité religieuse’ (1998) 43 MGLJ in 325, 371–372. 47 Joseph E. Magnet, Constitutional Law of Canada: Volume II (Juriliber 1998) 949 ff; Emily Walter, R. Michael M’Gonigle and Céleste McKay, ‘Fishing Around the Law: The Pacific Salmon Management System as a “Structural Infringement” of Aboriginal Rights’ (2000) 45 MGLJ 263. 48 Chris Tollefson and K. Wipond, ‘Cumulative Environment Impacts and Aboriginal Rights’ (1998) 18 EIAR 371; Jorge M. Valades, ‘Indigenous Rights’, in Ruth Chadwick (ed) Encyclopedia of Applied Ethics (Elsevier 2012) 696 ff. 49 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L286/36 (hereinafter: Seals Products Regulation).

The Legal Protection of Biocultural Diversity 397 In our opinion, this case is of some interest, since it opposes, on the one hand, the protection of the biocultural diversity of a species facing extinction, and, on the other hand, the protection of the cultural diversity of the Inuit people, which, deprived of its sole source of livelihood, may be required to leave its land, its customs, and its identity. Trying to reconcile those two dimensions, Article 3 of the Seals Products Regulation authorizes the introduction of sealskin into the EU only in case it is the product of traditional sealing by the Inuit or other Indigenous tribes and contribute to their livelihood, specifying that those conditions only apply to the time and place of these products import. As specified by Article 2.4, “Inuit” means ‘the indigenous members of the Inuit territory, meaning the Arctic and Subarctic regions inhabited by the Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Groenlandia), and Yupik (Russia) peoples’. Such derogation, though, has been strongly criticized by the Inuit communities around the world which have appealed against the Regulation to the EU Court of Justice (ECJ).50 According to the 17 appealing organizations, the Regulation would have resulted in a dramatic reduction of the demand for seal-made products, thus destroying the only source of economic support for the Inuit people. The ECJ, by order of 6 September 2011, reaffirmed that Regulation No 1007/2009 already provides for a specific derogation to ensure the subsistence of Indigenous Peoples for whom seal hunting is a traditional cultural element. In this way, the Court rejected the appeal, stating that although it cannot be excluded that the general ban on import could have an impact on the lives of those people working at the top or at the bottom this production chain, those effects cannot be considered as the direct consequence of the above-mentioned ban. The possible economic difficulties experienced by Inuit people have no relevance, since the Court cannot consider elements other than normative ones. To the Court, in fact, the possible economic loss regards the applicants’ de facto situation, but by itself, has no influence on the legal sphere. If we consider that since Inuit people hunt seals mainly to consume their meat and sell their skin to cover the costs of hunting – continues the Court’s argument – there is no reason to believe that the Regulation would damage these populations, which, within an appropriate traceability system, as required by the EC,51 will continue to sell their products in the EU market.52 50 Case T-18/19 Inuit Tapiriit Kanatami and Others v Parliament and Council [2011] ECLI: EU:T:2011:419. 51 Commission Regulation (EU) No 737/10 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products [2010] OJ L/216/2, para 1. 52 Case C-583/11 P, Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] ECLI:EU:C:2013:625. In the ancestral Inuit requests sent and in the negative answers received, it seems to echo the words of one of the contemporary greatest intellectuals: ‘the actors diversity is defined not only from the place they have in society, but even more from the personal identity and cultural heritage, which is combined with their equality that relates to the common reference to a principle of non-social, human freedom . . . claimed in the name of a particular past, no longer in the name of the indefinite future, common to all, a final point of convergence’. Alain Touraine, Eguaglianza e diversità: I nuovi compiti della democrazia (Laterza 1997) 71 and 77 (author’s translation).

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On 3 September 2015, the ECJ dismissed the appeal against the judgment of 25 April 2013,53 in which the General Court had refused to declare the invalidity of the Seals Product Regulation pursuant to Article 277 of the Treaty on the Functioning of the EU.54 The decisions of the ECJ show a different approach to the issue of biocultural diversity, which is essentially ignored by the courts, as well as by the EU legislation. The profound diversity among the peoples of the EU does not justify such inattention; on the contrary, the “naturally” multicultural dimension of the EU should lead the institutions to adopt regulatory approaches consistent with biocultural diversity. From this point of view, the Canadian experience is clearly of interest for the EU context. The biocultural rights and freedoms which have been recognized for native populations, first with the regulations protecting Canadian multiculturalism, then with the range of complex regulations aimed at safeguarding, from an organic perspective, their biocultural diversity, represent, in fact, for the Canadian legal system a boundary within which to evolve in order not to lose the very essence of democracy. On the other hand, as the Canadian Supreme Court pointed out in the 1986 decision R. v Oakes, the foundation of a free and democratic society lies in respect for, on the one hand, every culture and group, and, on the other, trust in the social and political institutions that foster the participation of individuals and groups in society.55 As noted, in fact, by the former Canadian prime minister, Jean Chrétien, the constituent fathers ‘established a distinct Canadian Way, a distinct Canadian model’ based on ‘accommodation of cultures; recognition of diversity. A partnership between citizens and State. A balance that promotes individual freedom and economic prosperity while, at the same time, sharing risks and benefits’.56 The analysis undertaken shows how biocultural diversity is an implementation of the broader concept of sustainable development. As is well-known, when we speak of sustainable development, we are referring to three components: the environmental, the economic and the social. Although not explicitly mentioned, the cultural dimension pervades all components. In other words, it is not possible to ensure the sustainable development of the planet without taking care of the cultural environmental, economic and social dimensions. Fundamental human rights include cultural rights, which ensure protection and safeguards for what makes people different from one another: language, religion,

53 Case T-526/10 Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] ECLI: EU:T:2013:215; Case C-398/13 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2015] ECLI:EU:C:2015:535. 54 Carl Fredrik Bergström, Defending Restricted Standing for Individuals to Bring Direct Actions Against ‘Legislative’ Measures’ (2014) 10 ECLR 481; Simone Vezzani, ‘The Inuit Tapiriit Kanatami II Case and the Protection of Indigenous Peoples’ Rights: A Missed Opportunity?’ (2016) 1 European Papers 307. 55 R. v Oakes [1986] 1 SCR 103. 56 As cited in Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (Routledge 2016) 176.

The Legal Protection of Biocultural Diversity 399 identity, traditions, rituals – the ICH that represents the identity baggage of each community of people. At the same time, the right to a healthy and balanced environment, the right to biodiversity, and the right to food security are also considered human rights. Reconciling cultural rights with environmental rights is the great challenge of any policy for sustainable development. From this point of view, studies on the protection of biocultural diversity represent an important building block and one of the greatest challenges for contemporary jurists.

21 Cultural Traditional Practices Versus Protection of Wildlife Possible Solutions in the Light of the Principle of Sustainability Maria Clara Maffei* 1

Introduction

The special relationship between Indigenous peoples and the environment is wellknown.1 Respect for and the cultural value assigned to natural resources, as well as their sustainable use, partly characterize this nexus which has also been recognized at the international level.2 The contribution which, through their knowledge, Indigenous peoples and local populations may give to sustainable use of biodiversity has been stressed in various international fora and documents over a long period of time.3 The fact that several treaties protecting wildlife exempt Indigenous peoples from the observance of the protection measures provided for in those treaties may be justified not only on the need to safeguard their cultural rights,4 but also on the assumption that they would not and likely never would impair the environment where they live. Or at least that is the common view, albeit it has nevertheless been called into question by some scholars.5 * Researcher of International Law, Department of Law, Political and International Studies (Department of Excellence 2023–2027), University of Parma (Italy). 1 Anne-Marie Wilson, ‘L’utilisation traditionnelle du territoire par les Autochtones et les instruments de droit international’ (1986) 3 RQDI 231, 236. 2 For an overall survey of the position, Leena Heinämäki, ‘Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of the Global Environment?’ (2009) 11 ICLR 3, 5 ff. 3 See for instance UNGA, ‘Report on the United Nations Conference on Environment and Development: Annex II Agenda 21’ UN Doc A/CONF.151/26/Rev. 1 (3–14 June 1992) 31 ILM 874, para 26.3(a)(iv); UNGA, ‘Rio Declaration on Environment and Development’ UN Doc A/CONF.151/26 (12 August 1992) (hereinafter: Rio Declaration) Principle 22. On the beginning of the process of recognizing this role played by Indigenous people, Heinämäki (nt. 2) 12. See also Gregory F. Maggio ‘Recognizing the Vital Role of Local Communities in International Legal Instruments for Conserving Biodiversity’ (1997) 16 JELP 179; Alexander Gillespie, ‘Science, Values and People: The Three Factors that Will Define the Next Generation of International Conservation Agreements’ (2012) 1 TEL 181. 4 HRC, ‘General Comment No. 23 on Article 27 (Rights of Minorities) of the International Covenant on Civil and Political Rights’ UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) para 7. Cf CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/21 (21 December 2009) where the CESCR does not mention either hunting or fishing. 5 Alexander Gillespie, International Environmental Law Policy and Ethics (OUP 1997) 99 (‘no generic claims can be based suggesting that all indigenous cultures are environmentally benign’). See also Heinämäki (nt. 2) 37. DOI: 10.4324/9781003357704-26

Cultural Traditional Practices Versus Protection of Wildlife 401 The present chapter seeks to offer an overview of the exceptions granted to Indigenous peoples or local communities under certain selected treaties, and of the way these exceptions are limited in their scope. Dealing only with these exceptions without digressions is like slaloming among the poles of a huge amount of legal material and scientific literature concerning the rights of Indigenous peoples (in particular, the right to land, to natural resources and to cultural heritage in general). These issues are beyond the scope of this work, which will just explore whether the limitations to exceptions may be read as an application of the principle of sustainability. An evolution in this sense in the wording of treaties shall be stressed, together with the concerns about the potential for the improper use of exceptions. Some brief considerations shall also be devoted to the possibility of granting exceptions for traditional and cultural uses of natural resources outside the context of Indigenous peoples or local activities. Before starting, some preliminary clarifications on the terms used in the present chapter are necessary. First, the adjectives “traditional” and “cultural” shall be often used interchangeably. While their meaning is certainly different, it is nevertheless difficult to imagine a traditional practice with no cultural implications and cultural practices without a traditional basis.6 Second, the term “wildlife” shall be used as referring to wild fauna and flora and natural habitats. Third, the expression “Indigenous peoples” shall also be used with a certain flexibility. At the international level there are no accepted definitions of “Indigenous peoples”, but some convention definitions constitute a good benchmark;7 roughly they could be considered as ‘those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived’.8 Synonyms like tribes,

6 Some treaties define “traditional activities”. Treaty between Australia and Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters (Sydney 18 December 1978) entered into force 15 February 1985 1429 UNTS 207 (hereinafter: Torres Strait Treaty) Article 1.1(k) (which adopts a wide definition of the term). Sometimes, the adjective “customary” is also used, not necessarily referring to Indigenous peoples. Agreement on the Joint Regulations on Fauna and Flora (Enugu 3 December 1977) not yet into force Article 12 (providing that the customary rights of use enjoyed by farmers should be limited to the secondary forestry products and food products. Quite surprisingly, the Agreement contains no provisions on the customary rights concerning the use of fauna). Last access to all links mentioned in this chapter: 29 December 2022. 7 Convention (No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (Geneva 26 June 1957) entered into force 2 June 1959 328 UNTS 247 (hereinafter: ILO Convention No. 107) Article 1. The ILO Convention No. 107 was revised by Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries (Geneva 27 June 1989) entered into force 5 September 1991 1650 UNTS 383 (hereinafter: ILO Convention No. 169). See also UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ UN Doc A/RES/61/295 (2 October 2007) (hereinafter: UNDRIP) (containing no definitions of Indigenous people). See also the definition proposed by the UN Special Rapporteur, José R. Martínez Cobo. ECOSOC, ‘Study of the Problem against Indigenous Populations, Conclusions, Proposals and Recommendations’ UN Doc E/CN.4/Sub.2/1983/21/Add. 8 (30 September 1983) para 379. 8 UN Permanent Forum on Indigenous Issues, ‘Fact Sheet: Who Are Indigenous Peoples?’ (May 2007) .

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aborigines, natives, local communities (and the adjectives therefrom) are also used in the present context.9 Differences among these terms do exist but do not affect the arguments made in this chapter (at least where the contrary is not specified). The same flexibility shall be used as regards the term “subsistence” or similar expressions.10 In its “neutral” meaning, subsistence corresponds to the amount of food, money and so forth that is necessary to survive, but in the present work subsistence shall be considered as a synonym of “survival” only in few cases. The extent of the meaning depends on several factors (e.g. cultural, geographical, climatic) that are seldom defined by treaties and that can change over time. Similarly common terms like “food” may take on different meanings depending on the context.11 In the case of Indigenous peoples and local communities, usually food is not a mere combination of protein, carbohydrate, fat and other nutrients used to sustain growth and vital processes and to furnish energy.12 A whale steak may be at the same time a simple piece of meat, a traditional dietary habit proudly advocated, an element of a cultural practice with spiritual values or even a culinary reproach. Finally, this chapter shall not dwell upon the notion of cultural heritage. Notwithstanding the difficulty of defining such a notion in precise terms,13 we take it for granted that activities like hunting, fishing, collecting wild plants and so on may be included in the concept of cultural heritage when they represent culturally meaningful practices and expressions of cultural identity. 2

Exceptions and Counterbalances

Treaties provide for exceptions to measures protecting wildlife granted to Indigenous peoples or local communities in different ways. Some treaties are extremely

9 The terms used in treaties are various. Agreement between Canada and the US on the Conservation of the Porcupine Caribou Herd (Ottawa 17 July 1987) entered into force 17 July 1987 2174 UNTS 267 (hereinafter: 1987 Caribou Agreement) (referring to Indigenous people (of Canada) and to rural residents (of Alaska), with the Agreement applying to both categories). See also Maggio (nt. 3) 181 (proposing the more inclusive expression ‘long-term occupant communities’). 10 Convention between the US, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals (Washington 7 July 1911) entered into force 15 December 1911 in (1911) 4 AJIL Supplement: Official Documents 267 (hereinafter: 1911 Fur Seals Convention) Articles XII.2 and XIII.2 (providing for the possibility of suspending the killing of seals except as may be necessary for the support of the natives on the islands). 11 Allison M. Dussias, ‘Spirit Food and Sovereignty: Pathways for Protecting Indigenous Peoples’ Subsistence Rights’ (2010) 58 CSLR 273. 12 Interim Convention on Conservation of North Pacific Fur Seals (Washington 9 February 1957) entered into force 14 October 1957 314 UNTS 105, as amended by the 1976 Protocol (Washington 7 May 1976) entered into force 12 October 1976 1082 UNTS 298 (hereinafter: 1957 Interim Fur Seals Convention). This provides for the possible reduction or suspension of the harvest of seals in the event that the total number of seals falls below the level of maximum sustainable productivity, but due consideration must be given to the subsistence needs of Indigenous peoples, when it is not possible to provide sufficient seal meat for such persons from the seasonal commercial harvest or research activities, ibid Article V.2(d). The explicit reference to “seal meat”, at least in this case, seems to describe a nutritional need more than a spiritual value. 13 See in general Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49 ICLQ 61.

Cultural Traditional Practices Versus Protection of Wildlife 403 vague. This is the case, for instance, of Article VI of the Convention on Conservation of Nature in the South Pacific,14 according to which the Parties ‘may make appropriate provision for customary use of areas and species in accordance with traditional cultural practices’. It remains in the wide discretion of the Parties to decide which exceptions to grant and the (possible) limits to them.15 This huge amount of discretion is a recurring feature of this kind of provision, which confers them with the characteristic of non–self-executing norms.16 In other cases, some additional details are provided as the beneficiaries of the exceptions are identified through their name or the name of the areas where they live. Moreover, the extent of the exceptions is often limited by a more or less specific purpose. For instance, Article III.1 of the Convention between the US and Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment prohibits the taking of certain migratory birds or their eggs;17 however, exceptions may be permitted in accordance with the laws and regulations of the respective Contracting Parties as regards the taking by Eskimos, Indians, and indigenous peoples of the Trust Territory of the Pacific Islands ‘for their own food and clothing’. The reference to food and clothing could be read as for the purposes of subsistence, not necessarily a cultural one.18 The same considerations may be made for Article II of the Convention between the US and the USSR concerning the Conservation of Migratory Birds and their Environment,19 where the expression ‘nutritional and other essential needs’, as determined by the competent authority of the relevant Contracting Party, is used and the indigenous inhabitants of certain areas are identified as the beneficiaries. However, these exceptions are outweighed by the provision according to which the seasons during which such indigenous inhabitants may take the protected birds and

14 (Apia 12 June 1976) entered into force 26 June 1990 Article VI. See also Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and Related Protocols (Noumea 24 November 1986) entered into force 22 August 1990 Preamble (referring to ‘the traditions and cultures of the Pacific people as expressed in accepted customs and practices’ which are taken into account). 15 Convention relative to the Preservation of Fauna and Flora in their Natural State (London 8 November 1933) entered into force 14 January 1936 Article 8.2 (which focuses on hunting rights already possessed by native chiefs or tribes or any other persons or bodies by previous concession or permission; these rights shall not be prejudiced by the Convention provisions concerning the protection of species). 16 For instance, the 1987 Caribou Agreement explicitly refers to domestic law for the identification of the subjects to whom the Agreement applies. 17 (Tokyo 4 March 1972) entered into force 19 September 1974 979 UNTS 149. 18 One could think that the clothing derived from birds has essentially a cultural or even religious significance; there exist, however, other traditional uses of bird skin. Douglas Nakashima, ‘Inuit Women’s Knowledge of Bird Skins and its Application in Clothing Construction, Sanikiluaq, Nunavut’ (2002) 56 MCR 21. 19 (Moscow 19 November 1976) entered into force 13 October 1978 1134 UNTS 97, Article II.1.

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collect their eggs shall be set ‘so as to provide for the preservation and maintenance of stocks of migratory birds’.20 A similar counterbalance is provided for in the Agreement between Australia and Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment;21 according to Article II, exceptions to prohibitions may be granted to allow the hunting and gathering of specified birds or their eggs by the inhabitants of certain regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that adequate preservation of the species is not prejudiced. The exceptions also concern the prohibition of sale, purchase or exchange of migratory birds or their eggs. This latter exception is particularly interesting because other treaties explicitly exclude that specimens harvested on exceptional cultural grounds may constitute an object of trade.22 Sometimes the prohibition of sale is not expressed but the requisite of “local consumption” may be read a contrario as an exclusion of trade outside the area where the treaty applies.23 Article III of the Agreement on the Conservation of Polar Bears is an unusual example of a treaty which does not prohibit the sale of the specimens traditionally harvested by local people.24 While, in some cases, the skins and other items of value resulting from the taking ‘on the exceptional basis’ cannot be sold for profit, this prohibition does not apply to the specimens taken by local people using traditional methods in the exercise of their traditional rights.25 The lack of a specific prohibition of trade is however counterbalanced by the requisite that any taking on the ground of exceptions is subject inter alia to the provisions of Article II, which provides that the management of polar bear populations shall be ‘in accordance with sound conservation practices 20 ibid Article II.2. 21 (Tokyo 6 February 1974) entered into force 30 April 1981 1241 UNTS 385. 22 Convention between the US and Great Britain for the protection of migratory birds (Washington 16 August 1916) entered into force 7 December 1916 2478 UNTS 33 (hereinafter: 1916 Migratory Birds Convention) Article II. The 1987 Caribou Agreement, Article 3(h) provides, as a conservation measure, that the Parties will prohibit the commercial sale of meat from the Porcupine Caribou Herd; the Agreement, however, neither defines the terms “commercial sale” nor does it prohibit the sale of other products derived from the same animals. 23 Protocol on Regulation of Whaling (London 24 June 1938) entered into force 20 December 1938, in (1940) 34 AJIL Supplement: Official Documents 115, Article 4. This grants exemptions to prohibitions provided that the meat of the harvested whales is to be used for local consumption as human or animal food. 24 (Oslo 15 November 1973) entered into force 26 May 1976 2898 UNTS 243 (hereinafter: 1973 Polar Bears Agreement) Article III. 25 The adjective “traditional” referring to the rights of Indigenous peoples has given rise to some doubts concerning the Inuits’ sport hunting business. In particular, in Canada, part of the subsistence hunting quotas under the 1973 Polar Bears Agreement is used for recreational purposes by non-Indigenous hunters guided by aboriginal communities. See Heinämäki (nt. 2) 61 ff.

Cultural Traditional Practices Versus Protection of Wildlife 405 based on the best available scientific data’. In other words, the traditional exploitation by local people must also be sustainable.26 The prohibition of trade (lato sensu: sale, purchase, exchange, barter etc.) may be a means to reduce the number of harvested specimens, but it may clash with two other (not negligible) problems. First: what about the possibility that trade in se is the way by which Indigenous peoples make a living, a means of subsistence or an expression of their cultural identity? Second: what about the possibility that trade is a sustainable way to avoid waste of what Indigenous peoples do not use for their subsistence or for the exercise of their cultural rights? The first problem has been dealt with by a Regulation of the European Union as regards the protection of seals.27 EU Member States recognize that the Inuit communities’ identity, cultural, economic and social interests concerning sealing should not be adversely affected. Therefore, the Regulation allows the placing on the market of seal products resulting from hunts traditionally conducted by Inuit and other Indigenous communities and contributing to their subsistence (Preamble and Article 3.1). In 2015 another Regulation, amending Regulation No. 1007/2009,28 introduced the adjective “sustainable” when referring to livelihood,29 as well as further conditions for the placing of seal products on the market which signified a new sensitivity and attention to sustainability and to animal welfare.30 The problem of the economic and commercial aspects of the Indigenous culture has been dealt with by the HRC in the case of Apirana Mahuika.31 The HRC stated

26 Simon Lyster, International Wildlife Law (CUP 1985) 58. A series of bilateral cooperative arrangements involving Indigenous people have been facilitated by the cooperation of range States through the 1973 Polar Bears Agreement. See, e.g., US-Russia Bilateral Agreement for Polar Bears of the Chukchi Sea Population (Washington 16 October 2000) entered into force 23 September 2007 (hereinafter: Polar Bears Treaty) Preamble. Here, the Parties authorize the native people to hunt polar bears to satisfy their traditional subsistence needs, and to manufacture and sell handicrafts and clothing. Article V, however, prohibits any taking of polar bears inconsistent with the terms of the 1973 Polar Bears Agreement. For further considerations, see Heinämäki (nt. 2) 57 ff. 27 Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L286/36. The ratio of the Regulations is not to protect the species but the animals and their welfare. 28 Regulation (EU) 2015/1775 of the European Parliament and of the Council of 6 October 2015 amending Regulation (EC) No 1007/2009 on trade in seal products [2015] OJ L262/1. 29 According to the Preamble, seal hunting provides food and income to support the life and sustainable livelihood of the community, preserving and continuing its traditional existence. However, the exceptions granted in respect of seal products resulting from traditional hunts should be limited to hunts that contribute to the subsistence of those communities. Regulation 2015/1775 (nt. 28) Preamble. 30 Regulation No. 1007/2009 (nt. 27) Article 3.1, as amended. 31 HRC, ‘Views of the Human Rights Committee concerning Communication No. 547/1993 submitted by Apirana Mahuika et al.’ UN Doc CCPR/C/70/D/547/1993 (16 November 2000). The claimants maintained, inter alia, that the quota management system for the commercial use and exploitation of the country’s fisheries, adopted by New Zealand, would affect their tribal rights. According to the claimants, fishing was one of the main elements of their traditional culture and they had fishing interests and wanted to manifest their culture through fishing to the fullest extent of their traditional

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that it is undisputed that the use and control of fisheries is an essential element of the culture of the Maori people of New Zealand. It recalled that economic activities may come within the ambit of Article 27 ICCPR, if they are an essential element of the culture of a community. In this case, however, the Committee concluded that the facts before it did not reveal a breach of the Covenant.32 The relevance of the commercial dimension of subsistence hunting is particularly striking in the context of the International Convention for the Regulation of Whaling.33 Even if the word “sustainability” is not contained in the ICRW, the latter is (or, better, was) aimed at pursuing the maximum utilization of whale stocks without depleting the resource. The ICRW does not mention Indigenous peoples, but the Schedule, which forms an integral part of the ICRW and is amended from time to time by the International Whaling Commission (IWC),34 regulates the socalled aboriginal subsistence whaling (ASW).35 In 1982 the IWC decided a moratorium for whaling for commercial purposes, which does not apply to ASW.36 The IWC objectives for the management of the ASW are to ensure that healthy levels

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territories. Such culture does not distinguish clearly between commercial and other fishing. The claimants maintained that Article 27 of the International Covenant on Civil and Political Rights clearly protects Maori enjoyment of their fishing rights. According to New Zealand the quota system was introduced out of the need for effective measures to conserve the depleted inshore fishery. Cf International Covenant on Civil and Political Rights (New York 16 December 1966) entered into force 23 March 1976 999 UNTS 171 (hereinafter: ICCPR) Article 27. HRC, Apirana Mahuika case (nt. 31) paras 9.3 and 10. In another case, after recognizing that the claimants were members of a minority within the meaning of Article 27 ICCPR and as such had the right to enjoy their own culture, traditionally based on reindeer husbandry, the HRC reaffirmed that ‘economic activities may come within the ambit of article 27, if they are an essential element of the culture of an ethnic community’. HRC, ‘Views of the Human Rights Committee concerning Communication No. 511/1992 submitted by Ilmari Länsman et al.’ UN Doc CCPR/C/52/D/511/1992 (8 November 1992) para 9.2. The HRC, however, in the case J.G.A. Diergaardt et al. v. Namibia ‘established a distinction between purely economic activity and economic activities that are part of an indigenous culture’. Jérémie Gilbert, Indigenous Peoples’ Land Rights under International Law (Brill 2006) 131. (Washington 2 December 1946) entered into force 10 November 1948 161 UNTS 72 (hereinafter: ICRW). The last amendment was adopted by the IWC at its 68th Meeting held in Portorož, Slovenia, in October 2022. The IWC documents are available at . On Indigenous and aboriginal whaling, Nancy C. Doubleday, ‘Aboriginal Subsistance [sic] Whaling: The Right of Inuit to Hunt Whales and Implications for International Environmental Law’ (1989) 17 DJILP 373, 389 ff (explaining how Indigenous rights can be reconciled with environmental and sustainability claims); Malgosia Fitzmaurice, Whaling and International Law (CUP 2015) 234–275. The Schedule (2022) provides that catch limits for aboriginal subsistence whaling to satisfy aboriginal subsistence need shall be established in a way that takes into account the Maximum Sustainable Yield; moreover, in specifying the catch limits for aboriginal subsistence whaling, the Schedule establishes that the taking is permitted only when the meat and products of such whales are to be used exclusively for local consumption by the aborigines. Four IWC member countries conduct ASW today: Denmark, Russia, St Vincent and the Grenadines and the United States. Since the withdrawal of Japan from the ICRW in 2019, problems concerning the ASW (and the possibility of abusing of it) have lost most of their relevance.

Cultural Traditional Practices Versus Protection of Wildlife 407 of hunted whale populations are maintained or restored and to enable aboriginal people to harvest whales in perpetuity as appropriate to cultural and nutritional requirements.37 ASW catch limits are set by the IWC through amendments to the Schedule, taking into account information from the Scientific Committee regarding the sustainability of proposed hunts and safe catch limits, and information from the relevant national governments related to the cultural and subsistence needs of their Indigenous people.38 Outside the context of Indigenous/aboriginal whaling, other States claim that whale hunting and consumption is an expression of their national identities and cultural diversity. When still in the IWC, Japan, for instance, invoked the right to carry out small-scale coastal whaling based on the assumption that the needs and rights of the coastal communities which depend on whaling for subsistence are similar to those which, in the framework of the ICRW, allow aboriginal whaling. But Japan also has extended the issue of cultural rights to include the right of Japanese people to eat whale meat and thus to maintain the spiritual link with animals they eat. After its withdrawal from the ICRW, Japan is no longer required to respect the moratorium or the conditions set up by the IWC. Norway too, Party to the ICRW but not bound by the moratorium, continues whaling as a part of old traditions; as is stated on the website of the Norwegian Government, ‘the Norwegian whaling is sustainable and legal’ and is based on scientific criteria.39 “Traditional” whaling of pilot whales is also conducted by the Faroe Islands. As declared by their authorities, ‘the Faroese constantly discuss how to ensure that all fishing and hunting is sustainable’.40 Another issue which has often been raised, especially where whales or “cute” mammals are concerned regards the relevant hunting methods, which may interfere with the sustainability of the hunt. The limitation to exceptions granted to Indigenous peoples concerning the use of traditional hunting methods is sometimes

37 On nutritional needs, Heinämäki (nt. 2) 43, who, as regards the ASW in the framework of the ICRW, points out that the aboriginal peoples who wanted to practice it ‘have been required to demonstrate nutritional need using either biological criteria (hunger and lack of nutritional alternatives) or social and psychological criteria (culture and poverty), of which the first has been successful only in two cases . . . The key issue in both of these cases was that hunger would result if these ASW claims were not approved’. 38 Some States, not Parties to the ICRW, are engaged in aboriginal whaling. These States are not bound by the rules adopted by the IWC; the limits to these activities (as well as those concerning commercial whaling) may derive, if ever, from other conventions protecting endangered species, from customary law or from principles like, first of all, that of sustainability. 39 Government of Norway, ‘Whaling’ . 40 Whales and Whaling in the Faroe Islands, ‘Sustainable Whaling’ . Indeed, whaling in the Faroe Islands, and in particular the so-called grinddráp, seems not to raise an issue of sustainability, but rather one of ethics. Contrary to what is often claimed, according to the Faroese authorities ‘whale drives are not an annual festival or ritual. [They] take place to provide food, and can happen at any time of the year’. Whales and Whaling in the Faroe Islands, ‘Questions and Answers’ .

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provided for in treaties on wildlife. For instance, Article 3 of the 1931 Convention for the Regulation of Whaling provides that it does not apply to aborigines dwelling on the coasts of the territories of the High Contracting Parties provided that: (1) They only use canoes, pirogues or other exclusively native craft propelled by oars or sails; (2) They do not carry firearms; (3) They are not in the employment of persons other than aborigines; (4) They are not under contract to deliver the products of their whaling to any third person.41 Restrictions concerning hunting methods could conflict with the rights of Indigenous peoples to develop their own culture and to improve their life conditions.42 However, using more efficient methods involves the risk that there will be an increase in the number of the specimens caught, beyond that which is necessary to preserve culture. On the other side, traditional methods may be not sustainable as, for instance, sometimes it happens that animals are struck but not caught and still lost.43 Moreover, as hunting and harvesting, besides being a means of subsistence, often correspond to ancient rituals, any intervention of States concerning these methods risks affecting the cultural and spiritual values of Indigenous peoples. As mentioned above, the exceptions from prohibitions granted to Indigenous people or local populations may be restricted by specific requisites concerning beneficiaries, geographical areas, hunting methods, prohibition of sale, local use and so on.44 Sometimes treaties only require that exceptions are limited and precise, two qualities that indeed should always characterize an exceptions regime. For instance, Article III.5(c) of the Convention on the Conservation of Migratory Species of Wild Animals allows exceptions if ‘the taking is to accommodate the

41 (Geneva 24 September 1931) entered into force 16 January 1935 Article III. Similar restrictions, referring to sealing instead of whaling, are provided for in Article IV of the 1911 Fur Seals Convention and in Article VII of the 1957 Interim Fur Seals Convention. Restrictions on methods are missing in the ICRW. 42 ‘Traditional hunting method prescriptions to safeguard conservation objectives are viewed by some indigenous peoples as patronizing and discriminatory, “primitivizing” indigenous peoples and denying them a right to cultural and economic development’. L. Benjamin J. Richardson, ‘Indigenous Peoples, International Law and Sustainability’ (2001) 10 RECIEL 1, 8. See HRC, Apirana Mahuika case (nt. 31) para 9.4. According to the HRC, Article 27 ICCPR protects traditional means of livelihood of minorities and allows for adaptation of those means to the modern way of life and ensuing technology. See also HRC, Ilmari Länsman case (nt. 32) para 9.3. As regards traditional reindeer husbandry, the HRC had affirmed that the use of modern technology does not prevent the possibility of invoking Article 27. See also ILO Convention No. 169, Article 23, which widens the corresponding provision of ILO Convention No. 107 which, inter alia, did not contain any mention of hunting and fishing. 43 Traditional hunting methods could also conflict with new values concerning animal welfare and humane killing and even the possibility of prohibiting the hunting of certain animals (e.g. whales) on the ground of their (alleged) right to life. 44 All these restrictions are contained in the Polar Bears Treaty.

Cultural Traditional Practices Versus Protection of Wildlife 409 needs of traditional subsistence users of such species’.45 However, these exceptions must be ‘precise as to content and limited in space and time’ and ‘the taking should not operate to the disadvantage of the species’.46 As in some other cases mentioned above, this further condition may be considered as a counterbalance to avoid overexploitation. Sometimes, as regards the limits of exceptions, treaties provide for general indications that roughly coincide with the object and scope of the treaties themselves.47 In this regard, one may wonder whether an interpretation in the light of the object and purpose of the treaty (Article 31.1 of the Vienna Convention on the Laws of Treaties)48 always requires the taking into consideration of those elements or whether exceptions, just because they are exceptions, escape the application of that rule in order not to be thwarted in their aim. A different solution seems preferable if one considers any relevant rules of international law applicable in the relations between the Parties (Article 31.3(c) VCLT). In this case, notwithstanding their “exceptional” nature, exceptions could be interpreted taking into account also the “new” principle of sustainability.49

45 (Bonn 23 June 1979) entered into force 1 November 1983, 1651 UNTS 333 (hereinafter: Bonn Convention) Article III.5(c). 46 As regards the Agreements concluded in the framework of the Bonn Convention, this provision is reflected in the Agreement on the Conservation of Albatrosses and Petrels (Canberra 19 June 2001) entered into force 1 February 2004 2258 UNTS 257, Preamble and Article III.3(c). See also Agreement on the Conservation of African-Eurasian Migratory Waterbirds (The Hague 15 August 1996) entered into force 1 November 1999 2365 UNTS 203, Article III. Conversely, Agreement on the Conservation of Gorillas and Their Habitats (Paris 26 October 2007) entered into force 1 June 2008 2545 UNTS 55, Article III.2(a) (which seems to exclude exceptions concerning the needs of traditional subsistence users of gorillas). 47 See, e.g., Protocol to the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region concerning protected areas and wild fauna and flora in the Eastern African Region (Nairobi 21 June 1985) entered into force 30 May 1996, . According to Article 12.1, to the fullest extent possible, no exemption allowed to local populations for their traditional activities shall be such as to endanger the maintenance of ecosystems protected under the terms of the Protocol or to cause the extinction of, or any substantial reduction in, the number of individuals of the fauna and flora species or other ecologically connected species. See also Protocol concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Kingston 18 January 1990) entered into force 18 June 2000 2180 UNTS 101, Article 14. 48 (Vienna 23 May 1969) entered into force 27 January 1980 1155 UNTS 331 (hereinafter: VCLT) Article 31.1. 49 Oliver Dӧrr and Kirsten Schmalenbach (eds) Vienna Convention on the Law of Treaties (Springer 2012) 563–564. In their opinion, Article 31.3(c) ‘would even allow reference to general principles of law within the meaning of Art 38 para 1 lit c ICJ Statute’. Moreover, ‘notwithstanding the fact that ‘rules’ would imply that only legally binding instruments can play a role under lit c, parts of international judicial practice seem to apply this condition somewhat less restrictively and also consider non-binding documents as material relevant for interpretation’.

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Hints of Evolution

As the brief survey above shows, the explicit reference to the sustainable use of resources is often lacking in many treaties of the past (but which are still in force) protecting wildlife. Indeed, the relevance of the preservation of the cultural rights of Indigenous people or local populations and of the sustainable use of resources has grown over time. This is particularly evident when very old treaties are amended to take into account these issues. This is the case with the African Convention on the Conservation of Nature and Natural Resources,50 which did not contain any provision concerning the traditional rights of local populations.51 Article XVII of its revised version deals with the traditional rights of local communities and Indigenous knowledge, providing for the protection of such knowledge and intellectual property rights and for the active participation of the local communities in the management of natural resources, their conservation and sustainable use.52 Another paradigmatic example is the 1916 Migratory Birds Convention. After about 80 years it needed to be updated. In particular, it was necessary to amend the provisions on subsistence hunting consistent with the new emerging rules and sensibilities concerning both the conservation of birds (and of wildlife in general) and the cultural rights of Indigenous peoples. Thus, on 14 December 1995 a Protocol was adopted between the US and Canada amending the 1916 Migratory Birds Convention.53 The amendments are clearly illustrative of the strengthening of issues which were already historically present, at least partially, but which have now taken on much more significance in international law. Sustainable use and the protection of habitats appear among the principles to be considered to manage migratory bird populations and to ensure their long-term conservation, together with the use and respect of aboriginal and Indigenous knowledge, institutions and practices. The provisions concerning traditional subsistence hunting in Canada and Alaska reflect different domestic legal regimes and practices in a sort of subordination to conservation regimes defined in other agreements with aboriginal people and through decisions of national courts.54 Aboriginal peoples of Canada are 50 (Algiers 15 September 1968) entered into force 15 September 1969 1001 UNTS 3. 51 ibid Article XI, which generally referred to customary rights that the Parties shall reconcile with the provisions of the African Convention. 52 African Convention on the Conservation of Nature and Natural Resources (Maputo 11 July 2013) entered into force 23 July 2016 . The influence of Principle 22 of the Rio Declaration on the revised version of the African Convention is evident. Dinah Shelton, ‘Principle 22’, in Jorge E. Viñuales (ed) The Rio Declaration on Environment and Development: A Commentary (OUP 2015) 541, 546. 53 Protocol between the Government of the United States of America and the Government of Canada, amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States (Washington 14 December 1995) entered into force 7 October 1999 2473 UNTS 329 (hereinafter: 1995 Protocol) Article II (containing the most substantial amendments concerning the topic of the present chapter). 54 Letter of submittal of the US Secretary of State, Warren Christopher, to the US President, William J. Clinton (20 May 1996) (hereinafter: 1996 Letter of Submittal). As the US Secretary of State pointed

Cultural Traditional Practices Versus Protection of Wildlife 411 exempted from hunting prohibitions, but there are some restrictions concerning the barter, trade and sale of inedible by-products, birds and eggs. Non-aboriginal residents also enjoy exemptions for food with more severe restrictions. The Indigenous inhabitants of Alaska are permitted to harvest migratory birds and their eggs according to regulations implementing their non-wasteful taking and the requirement that this be consistent with the customary and traditional uses by such indigenous inhabitants for their own nutritional and other essential needs. In particular, as explained by the US Secretary of State, these provisions will be implemented so that birds are taken only for food. Non-edible byproducts of birds taken for nutritional purposes incorporated into authentic articles of handicraft by Alaska Natives may be sold in strictly limited situations and pursuant to a regulation by the competent authority in cooperation with management bodies . . . The term ‘handicraft’ does not include taxidermy items. The Protocol does not authorize the taking of migratory birds for commercial purposes.55 A specific provision of the Protocol concerns the “involvement” of the Indigenous inhabitants of Alaska in an effective role in the conservation of birds, development and implementation of regulations affecting the non-wasteful taking of migratory birds and the collection of their eggs, by participating in relevant management bodies. Sustainability being one of the principles of the 1995 Protocol, it is reasonable to conclude that the activities allowed under its Article II are also to be conducted in a sustainable manner.56 Similarly, the Convention for the Protection of Migratory Birds and Game Mammals between the US and Mexico did not contain any provision concerning Indigenous people.57 Accordingly, in 1997 the Parties concluded a Protocol amending the 1936 Convention;58 in its Preamble they acknowledged the desire of the United States ‘to provide for the customary and traditional taking of certain species of migratory birds and their eggs for subsistence use by indigenous inhabitants’ of Alaska in designated subsistence areas. Accordingly, Article I of the 1997 Protocol introduces an exception in Alaska for Indigenous inhabitants concerning

55 56 57 58

out the new provision does not override the conservation principles envisaged in Article II, 1916 Migratory Birds Convention. ibid. ‘Properly implemented, [the 1995 Protocol] will improve the health of the North American migratory bird population and protect the interests of conservationists, sports hunters, indigenous people and all others who value this important resource’. Letter from the Ambassador of Canada, Raymond Chretien, to the US Department of State (14 December 1995). (Mexico City 7 February 1936) entered into force 15 March 1937 (hereinafter: 1936 Convention). Protocol between the United States of America and Mexico amending the Convention of 7 February 1936 (Mexico City 5 May 1997) entered into force 30 December 1999 (hereinafter: 1997 Protocol).

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the harvest of wild ducks and their eggs provided that such non-wasteful taking shall be consistent with the customary and traditional uses for nutritional and other essential needs. According to the words of the US Secretary of State, the 1997 Protocol ‘represents a major step forward in the conservation and management of migratory birds on a sustainable basis’.59 The change of perspective regarding the role of Indigenous peoples – from mere beneficiaries of exceptions to subjects involved in the management and conservation60 – is particularly evident in the Convention of Biological Diversity.61 In its Preamble, the Parties recognize the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components.62 Under Article 8(j) (In situ Conservation), the rights of Indigenous and local communities are not considered as exceptions to protective measures or prohibitions, but the Parties shall, as far as possible and as appropriate, inter alia, and subject to their national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.63 Thus, the CBD seems to be more focused on the protection of rights and the equitable sharing of benefits which may derive from the traditional knowledge held 59 Letter of submittal of the US Secretary of State, Madeleine Albright, to the US President, William J. Clinton (27 August 1997) (hereinafter: 1997 Letter of Submittal). 60 Obviously, this changed inclusive position does not give Indigenous people the status of subjects of international law. Sometimes they shall be allowed to set in motion international mechanisms of judicial or semi-judicial procedures (e.g. before the Committees of the ICCPR and ICESCR) for the protection of their cultural rights. However, it is unlikely that they may claim before an international body the right to enjoy exemptions on a cultural basis. This was expressly pointed out as regards domestic law in the 1996 Letter of submittal where the US Secretary of State stressed that the 1995 Protocol did not create any private rights of action under US law and a right of persons to harvest migratory birds and their eggs. Similarly, Canada did not consider the 1995 Protocol as creating a right for Canadian aboriginal people to harvest birds (but this right was implemented by the Canadian Constitution and relevant agreements between Canada and its aboriginal groups). 61 (Rio de Janeiro 5 June 1992) entered into force 29 December 1993 1760 UNTS 79 (hereinafter: CBD). 62 CBD, Preamble. ‘The phrase “embodying traditional lifestyles” seems to preclude this paragraph from applying to people recently descended from communities “embodying traditional lifestyles”, who no longer live in that way themselves’. Lyle Glowka, Françoise Burhenne-Guilmin and Hugh Synge, A Guide to the Convention on Biological Diversity (IUCN Environmental Law Centre 1994) Environmental Policy and Law Paper No. 30 11. 63 CBD, Article 8(j).

Cultural Traditional Practices Versus Protection of Wildlife 413 by Indigenous and local communities concerning the use of genetic resources. Accordingly, in 2010, a Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the CBD was finally adopted.64 Indeed, the work of certain treaty bodies, like Meetings or Conferences of the Parties (CoP), Standing Committees and so forth, has proven to be very useful for all those treaties which do not contain any provision concerning the rights of Indigenous peoples and local communities, or for “adapting” the existing provisions to the emerging rules.65 These treaty bodies have considered the demands of Indigenous peoples and pushed for their increasing involvement in the management of natural resources, even when depleted or endangered. This is the case, for instance, with the Convention on Wetlands of International Importance especially as Waterfowl Habitat which contains no mention of Indigenous people, traditional activities and cultural rights.66 However, the CoP has adopted some resolutions and recommendations concerning these issues and the sustainable use of the resources.67 Sometimes the Parties themselves adopt soft law instruments to take into account the evolution in the role of Indigenous peoples. For instance, on the 40th anniversary of the 1973 Polar Bears Agreement, the Parties adopted a Declaration stressing the importance of the engagement of Indigenous people for the effective management, long-term conservation and survival of the polar bear.68 The Parties pointed out the value of traditional ecological knowledge and the role polar bears play in the cultural heritage and subsistence of Arctic Indigenous people. Sometimes the lack of exceptions for Indigenous peoples has been remarked upon during the meetings of the monitoring bodies of the “silent” treaties. For instance, no exceptions for Indigenous peoples or local communities are provided for under the Convention on the Conservation of European Wildlife and Natural

64 (Nagoya 29 October 2010) entered into force 12 October 2014 . 65 Bonn Convention CoP, ‘Strategic Plan for Migratory Species 2015–2023’ (2014) UNEP/CMS/ Resolution 11.2, Target 14. 66 (Ramsar 2 February 1971) entered into force 21 December 1975 996 UNTS 245, amended in 1982 and 1987 (hereinafter: Ramsar Convention). 67 Ramsar Convention CoP, ‘Resolution XIII.15: Cultural values and practices of indigenous peoples and local communities and their contribution to climate-change mitigation and adaptation in wetlands’ (2018) . See also Ramsar Convention CoP, ‘Resolution VII.8: Guidelines for establishing and strengthening local communities’ and indigenous people’s participation in the management of wetlands’ (1999) , adopted to guide the Parties in the implementation of the wise use concept of the Convention (or in other words the sustainable use of wetlands). The Guidelines recognize that local and Indigenous people benefit from participatory management arrangements through the maintenance of sustainable livelihoods, including activities such as, inter alia, fishing and hunting. See also Ramsar Convention CoP, ‘Recommendation 6.3 on the involvement of local and indigenous people in the management of Ramsar wetlands’ (1996) . 68 Declaration of the Responsible Ministers of the Polar Bear Range States (4 December 2013) .

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Habitats.69 Thus, in 2006, Russia communicated that, in case of ratification of the Convention ‘possible reservations could be considered regarding some traditional hunting species, means of their capture or killing and use of natural resources by indigenous people’.70 4 This Pond Is All Fished Out The application of the sustainability principle seems to be of the utmost importance when wildlife resources are so depleted that they cannot sustain any further use, at least until they recover. In these cases, even a very much reduced and careful harvesting could be fatal and must be avoided. If the status of the resource does not allow any exploitation, the sustainability principle imposes a prohibition on all potential users, Indigenous or not, without exceptions. It does not matter if Indigenous peoples did not contribute to the depletion,71 and it does not matter that the greatest threat to the survival of certain resources is the result of commercial or non-aboriginal and non-subsistence activities:72 the priority is to avoid the irreparable loss of a particular species. Obviously, if and when the status of the resource allows some limited exploitation, the needs of Indigenous peoples and the protection of their cultural rights shall come first. This reasoning is based on the logical assumption that when a species is lost, it is lost forever and for all; it is a loss for the whole humankind, not only for Indigenous peoples or local communities.73 When a cultural tradition or the exercise of a cultural right is temporarily suspended, such tradition or exercise of the right may be resumed. The lack of alternative to the choice which favours the survival of the species rules out that the prohibitions applied to Indigenous peoples could be considered as a deprivation of Indigenous peoples’ means of subsistence or a violation of their cultural rights. Certainly, when the resource has the double nature of spiritual/cultural and physical/nutritional sustenance, States must at least ensure adequate alternative means of subsistence – in primis food. Moreover, efforts should be made to minimize or mitigate the adverse impact on Indigenous people

69 (Bern 19 September 1979) entered into force 1 June 1982 1284 UNTS 209. 70 Standing Committee, ‘Analysis of the nature conservation legislation of the Russian Federation versus provisions of the Convention of European Wildlife and Natural Habitats’, T-PVS/Inf (2006) 20, 3. Russia is not yet a Party to the Convention. 71 Gillespie (nt. 5) 101 (‘The fact that earlier, often colonial, cultures ruthlessly exploited Nature does not give cultures with a traditional interest in the exploitation of Nature the right to finish the job’). The question of the application to Indigenous peoples of a sort of principle of “common but differentiated responsibilities” as regards the depletion of resources is outside the scope of the present chapter. 72 This could be, if ever, a question of responsibility (the resource should not have been depleted) and of identifying the subject who must bear the costs of recovery. 73 Gillespie (nt. 5) 101 (‘To kill off a species now in the name of cultural tradition is to kill off the culture. The tradition either dies completely now, or continues in a different form . . . the survival of entire species and ecosystems should override cultural considerations’).

Cultural Traditional Practices Versus Protection of Wildlife 415 and local communities of the temporary prohibition of using resources.74 Even when the needs of a certain community are merely nutritional, it is necessary to consider the possible adverse effects of the alternative non-native food and its acceptability. The considerations above are not only logical and based on common sense, but they are legally sound, in the light, once more, of the sustainability principle. The use of a depleted resource that jeopardizes the survival of a species is not sustainable. If exceptions to prohibitions are granted to Indigenous people and local communities on the ground, inter alia, that their use of natural resources is sustainable, when the use cannot be sustainable, the exceptions do not apply anymore.75 The possibility of suspending the exercise of the cultural rights of Indigenous peoples and local communities as regards the use of depleted resources raises another issue concerning the possibility of revitalizing a traditional practice after a period of suspension imposed in order to facilitate the species’ recovery.76 Dealing with this problem would require far more space than is allowed for here. Suffice it here to mention the paradigmatic case of the Makah, an Indian tribe located on the Olympic Peninsula in Washington State.77 According to the Makah, whaling and whales are central to their culture. The conduct of a whale hunt requires rituals and ceremonies which are deeply spiritual. For a variety of reasons – first and foremost the scarcity of whales – the Makah had voluntarily stopped whaling for about 70 years, resuming in 1999.78 The fact that whaling could be resumed by Makah after 70 years without losing its cultural value suggests that a mere suspension of the traditional activities involving threatened species may be imposed. By the way, while, in some contexts, continuity in a certain traditional activity is a requirement for granting exceptions (also necessary in order to avoid possible abuses),79 in most cases this restriction is lacking. 5

Other Subjects, Other Cultural Uses

Indigenous peoples or local communities are not the only subjects with a cultural interest in the use of natural resources and, more specifically, of specimens belonging to endangered species of wild fauna and flora. Sometimes these non-Indigenous uses have a cultural value protected by law, and even by international law. We

74 For instance, this is expressly provided for in Torres Strait Treaty, Article 14.4. 75 Heinämäki (nt. 2) 20 (which draws this conclusion, inter alia, from the combined provisions of Articles 8(j) and 10(c) of the CBD), ibid 67–68. See also Richardson (nt. 42) 11. 76 UNDRIP, Article 11 explicitly mentions the right of Indigenous peoples to revitalize their cultural traditions and customs. 77 For a concise reconstruction of the Makah case, Heinämäki (nt. 2) 46 ff. 78 On this issue, Jeremy Firestone and Jonathan Lilley, ‘Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs’ (2005) 8 JIWLP 177. 79 See the definition of ASW in IWC, ‘Report of the Ad Hoc Technical Committee Working Group on Development of Management Principles and Guidelines for Subsistence Catches of Whales by Indigenous (Aboriginal) Peoples’ (1981) IWC/33/14 (kindly provided by the IWC), which refers to a ‘continuing’ traditional dependence on whaling and on the use of whales.

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refer, for instance, to the activities of the so-called “living human treasures”,80 in particular activities based on artistic processing of products derived from endangered species. Some of these activities and items could fall within the definitions of intangible cultural heritage and its manifestations.81 For instance, due to the widespread application of the Convention on International Trade in Endangered Species of Wild Fauna and Flora,82 almost everywhere craftsmen using ivory or tortoiseshell are now forced to use pre-CITES specimens, which are not inexhaustible. If the “living human treasures” cannot practise their art, they cannot transmit their skill, creative genius and artistic knowledge to new generations. Accordingly, this heritage risks being lost forever for the entire humankind and not only for the holders of a certain skill. If the natural resource cannot sustain even a very limited use, the solution cannot differ from the arguments set forth above concerning the use of specimens of endangered species by Indigenous peoples. Other long-term remedies are certainly possible; UNESCO itself suggested a possible (and very basic) solution as regards forest resources:83 if craft practices are threatened by the loss of required natural resources, forests may be replanted or garden established to provide essential craft materials. Without the resources, there is no call for the knowledge or craft techniques; when raw materials are once again available, artisans’ knowledge gains renewed value. Legal measures are sometimes necessary to protect the access rights of communities to gather needed resources, while ensuring environmental protection. Obviously, depleted wildlife resources must be restored regardless of who – artisans, Indigenous peoples or indeed nobody – uses them. Moreover, notwithstanding the artistic value that non-Indigenous handicraft might have, non-Indigenous artisans cannot boast the same special (sustainable) approach to the environment which characterizes most Indigenous peoples and justifies their privileged treatment. Similar conclusions must be reached as regards the dietary habits of a group of individuals or even of an entire nation, although international law, under certain conditions and in certain contexts, protects the dietary choices of individuals.84 The same may be affirmed as regards the “artistic” circus performances exploiting 80 The Living Human Treasures programme was set up within the framework of UNESCO in 1993 and aimed at encouraging States to officially recognize talented tradition bearers and practitioners and contribute to the transmission of their knowledge and skills to the younger generations. The programme was discontinued with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris 17 October 2003) entered into force 20 April 2006 2368 UNTS 3 (hereinafter: 2003 UNESCO Convention). 81 2003 UNESCO Convention, Articles 2.1 and 2.2. 82 (Washington 3 March 1973) entered into force 1 July 1975, 993 UNTS 243 (hereinafter: CITES). 83 The past tense is used as the quotation that follows refers to Traditional craftsmanship accessed 24 May 2007, which is no longer available. 84 See, for instance, the jurisprudence of the European Court of Human Rights (ECtHR) as regards the vegetarian diet, where the freedom of thought, conscience and religion was at stake; cultural rights in se are not protected under the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 4 November 1950) entered into force 3 September 1953 213 UNTS 221.

Cultural Traditional Practices Versus Protection of Wildlife 417 animals belonging to species on the verge of extinction,85 or the “right” of hunters for recreational purpose to continue hunting.86 The case of traditional medicine deserves some further remarks.87 Traditional medicines are mentioned in the UNDRIP,88 but Indigenous peoples are not the only subjects interested in treatments with products alternative to those of socalled Western medicine.89 The WHO has recognized the importance of traditional medicine. It has promoted studies and launched strategies, the last one for the period 2014–2023.90 In such document, the importance of the sustainable use of the resources is consistently stressed, and, while the problem of the use of endangered species is not directly addressed, it seems to have been delegated to States and stakeholders.91 A more decisive position has been expressed by the CoP to the CITES in some resolutions. In one of them,92 after recognizing that continued and uncontrolled use of several endangered species in traditional medicine has been the subject of concern among range States and consumer countries in view of the potential threat to the long-term survival of these species and the development of traditional medicines on a sustainable basis and that adequate measures should be taken to conserve wild species at risk of overexploitation to avoid their becoming threatened to the point where more severe measures may be necessary as in the case of the rhinoceroses and the tiger,

85 CITES, Article VII, which provides under certain conditions for exemptions to the trade of endangered species inter alia to allow the movement, without permits or certificates, of specimens which form part of a travelling zoo, circus, menagerie, plant exhibition or other travelling exhibition. 86 ECtHR, ‘Decision as to the admissibility of Application No. 16072/06 by Brian Leonard Friend against the United Kingdom and Application No. 27809/08 by Countryside Alliance and Others against the United Kingdom’ (24 November 2009) para 44 (the Court ‘does not consider that hunting amounts to a particular lifestyle which is so inextricably linked to the identity of those who practise it that to impose a ban on hunting would be to jeopardise the very essence of their identity’). The cases before the ECtHR did not concern endangered species. 87 Traditional medicine ‘is the sum total of the knowledge, skill, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness’. WHO, ‘Traditional, Complementary and Integrative Medicine’ . See also UNEP and CBD, ‘Convention on Biological Diversity’ . 88 UNDRIP, Articles 24.1 and 31.1. 89 UNEP and CBD (nt. 87) 66 (‘Traditional medicine adopted by other populations (outside its indigenous or traditional culture) is often called alternative or complementary medicine’). 90 WHO, ‘WHO Traditional Medicine Strategy: 2014–2023’ (2013) . 91 ibid 46 (‘it is important that Member States and stakeholders are mindful of biodiversity and international treaties concerning endangered species’). 92 CITES CoP, ‘Traditional Medicine’ (1997) Resolution Conf.10.19 as amended and revised in the subsequent CoP’s meetings.

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the CoP recommended a series of measures to eliminate the illegal use of endangered species. Among these measures the CoP has indicated inter alia the use in traditional medicines of alternative ingredients to specimens of threatened wild species. It has been suggested that in some cases (e.g. as for the rhino horn) the purported health benefits are ‘simply cultural superstitions’.93 This raises a range of questions concerning the possibility of assessing the efficacy of traditional medicine according to (Western) scientific criteria, regardless of cultural considerations, including the psychological therapeutic effects that traditional medicine might have. May the efficacy – assessed in this way – constitute the dividing line between practices which do or do not deserve protection? Is this a form of cultural imperialism? Indeed, the assessment of the efficacy is not necessary: as in the case of Indigenous peoples, if the traditional/complementary medicine jeopardizes the survival of a species it must be prohibited until the recovery of the resource. If the practice does not use products derived from endangered species, the environment is not affected, but there could be problems concerning animal welfare. 6

Concluding Remarks

The role of Indigenous peoples regarding the protection of wildlife has been evolving over time. The sturdy scaffolding of customary law, treaty law, soft law, which supports the rights of Indigenous peoples94 justifies the privileged position attributed to them also by wildlife treaties in the case of restrictive measures protecting endangered species.95 Even when restrictions are inevitable, their effects on Indigenous peoples and local communities should be minimized. Positive discrimination for Indigenous peoples is generally accepted with the aim, firstly, of compensating them for the past exploitation of their rights and resources by States and,

93 Gillespie (nt. 5) 98. See also Alexander Gillespie, Conservation, Biodiversity and International Law (EE 2011) 229 ff. The author makes a distinction between ‘the taking of species for ‘cultural’ reasons of non-indigenous peoples, and the taking of species for the cultural reasons of indigenous peoples’, ibid 233. 94 Wilson (nt. 1) 244 (Article 27 ICCPR ‘potentiellement réduit vu la pauvreté du texte, pourrait tout de même s’avérer un outil précieux pour les autochtones, forçant une certaine protection de l’utilisation du territoire, en particulier des activités traditionnelles de chasse et de pêche, expressions de l’identité culturelle de ces communautés’). 95 In some rare cases, the privileged position has been excluded; for instance, referring to the 1995 Protocol amending 1916 Migratory Birds Convention, the US Secretary of State specified that ‘Any restrictions in harvest levels of migratory birds necessary for conservation shall be shared equitably between users in Alaska and users in other states taking into account nutritional needs. The Protocol is not intended to create a preference in favor of any group of users in the United States or to modify any preference that may exist’. See 1996 Letter of Submittal. Analogous considerations were expressed by the US Secretary of State as regards the 1997 Protocol amending the 1936 Convention in the 1997 Letter of Submittal. Obviously, there is no question of privileged positions or potential violations of cultural human rights when the hunting or collecting of specimens of endangered species for subsistence reasons are devoid of cultural or identity implications; such activities may be substituted with other subsistence means (different food, financial incentives or aid etc.).

Cultural Traditional Practices Versus Protection of Wildlife 419 secondly, of compensating them for their overall “weaker status” in relation to the general population.96 The privileged position appears, at least on paper, so solid that one might wonder if exceptions to prohibitions should not always be granted to Indigenous peoples and local communities (or tolerated) even in the absence of treaty provisions.97 As noted above, however, the privilege of Indigenous peoples is subordinate to the principle of sustainability that – even in the absence of explicit treaty provisions – must characterize Indigenous lifestyle. In the past, the adjective “sustainable” has been used mostly in treaties, like those on whaling or sealing, whose purpose was to reach the maximum sustainable productivity without depleting the relevant resource; accordingly, the word referred to the exploitation of the relevant resource. Now, in international law, “sustainable” is increasingly associated with expressions like “cultural diversity” and “cultural heritage” and other issues like Indigenous peoples’ rights.98 No doubt, especially when it refers to “development”, the word implies the application of other principles – in primis the principle of integration –99 which are rarely mentioned in the treaties protecting wildlife.100 In the restricted context of the present chapter – exemptions for cultural reasons – the requirement that the exemption must not affect the survival of the species may be considered a minimum “prescription” of sustainability. Finally, although important, the contribution in the management of natural resources deriving from the involvement of Indigenous peoples and their knowledge cannot be overvalued. The high demand on natural resources, due to human population numbers and consumption patterns, can jeopardize the survival of wildlife species. As regards more specifically treaty law, certainly the role of Indigenous peoples should be enhanced, for instance by consulting them during negotiations, to reach shared, fruitful and respectful solutions, but remedies cannot only be found in the sustainable approach to the use of natural resources learned from Indigenous peoples.101 96 Heinämäki (nt. 2) 56. 97 Referring to the 1997 Protocol amending the 1936 Convention, in the 1997 Letter of Submittal, the US Secretary of State acknowledged that, despite the prohibitions of the 1936 Convention, the Indigenous people in Alaska had continued their traditional hunt for subsistence and other related purposes. 98 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris 20 October 2005) entered into force 18 March 2007 2440 UNTS 311, Preamble. See also 2003 UNESCO Convention, Preamble. 99 ILA, ‘International Law and Sustainable Development’ (2006) . 100 See, despite its vagueness, 1987 Caribou Agreement, Preamble (where the Parties recognize that the Porcupine Caribou Herd should be conserved according to ‘ecological principles’). 101 See Richardson (nt. 42) 12 (‘whilst many indigenous peoples provide a model of environmental stewardship, various modern environmental problems have arisen in industrial and urban settings for which indigenous traditional knowledge and practice may hold little relevance’). See also ILA, ‘Committee on Participation in Global Cultural Heritage Governance’ (2022) .

Part VI

Conclusions

22 An Integrated Approach to Cultural Heritage, Sustainable Development and Human Rights Mission Impossible? Laura Pineschi* 1

Navigating Complexities between Old and New Challenges

The strict interrelationship between cultural heritage, sustainable development and human rights is, directly or indirectly, corroborated by all the chapters of this book. They also show, however, that conflicts between competing interests or different legal regimes and rules are not only possible, but also manifold and multifaceted. Some unresolved tensions may arise from (or are strictly interrelated with) structural barriers inherent to the international legal order, such as the centrality of States sovereignty and the persistent dominance of States in international lawmaking. Other clashes (in particular, between economic development and culture) may be the result of an inadequate legal regulation (or insufficient consideration) of the competing rights and duties between different (or within the same) legal regimes.1 More generally, economic, social, environmental and cultural conflicts, if left unaddressed, risk turning into threats for international peace and security. But values may also collide, with consequent strain arising, for instance, between the conservation of cultural heritage and human rights, if the human dimension is not properly valorized,2 or between cultural practices and human rights, if possible inconsistencies are not duly dealt with at the political, social and legal level.3 By the same token, environmental and cultural concerns may enter into conflict if

* Professor of International Law, Department of Law, Political and International Studies (Department of Excellence 2023–2027), Center for Studies in European and International Affairs, University of Parma (Italy). 1 Federica Mucci, ‘“No One May Invoke”: The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent’; Berenika Drazewska and Kristin Hausler, ‘Strengthening the Protection of Intangible Cultural Heritage in Development Projects: The Role of Multilateral Development Banks’; Valentina Vadi, ‘Gravity and Grace: Sustainable Development, Foreign Investments and Cultural Heritage in International Investment Law’, in this volume. 2 See, e.g., Federico Lenzerini, ‘The Spirit and the Substance. The Human Dimension of Cultural Heritage From the Perspective of Sustainability’, in this volume. 3 Francesca Trombetta Panigadi, ‘Some Remarks on Child and Forced Marriages and Traditional Practices Harmful to Women’s Health: Their Possible Implications for Sustainable Development’, in this volume. DOI: 10.4324/9781003357704-28

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culture (and, particularly, intangible heritage) is not considered as ‘a living heritage which is by definition constantly recreated’,4 or ‘the natural environment and the related practices on which the heritage is based change and become unsustainable’.5 Sensitive issues may also arise in the context of the restitution of cultural objects to their States of origin from former colonies6 or if certain traditional practices adversely affect wildlife conservation.7 Some questions do not lead to conflicts in a strict sense. Nevertheless, they might require the adoption of a new approach. This is the case with traditional knowledge, which is inadequately protected under the intellectual property regime if compared to the role that traditional governance institutions can play from a sustainable development and human rights perspective.8 In some instances, it is clear that the conclusion of new agreements is much needed. That is the case as concerns the preservation of the cultural heritage in areas which are not subject to an adequate protection regime, such as the outer space.9 More generally, existing rules are to be interpreted and applied taking into account new developments (such as the controversial ‘right to destroy’ sites and monuments which celebrate past human rights violations or which promote unacceptable concepts or actions),10 or the rediscovery and valorization of neglected cultural heritage (e.g. the patrimony of knowledge and intangible cultural traditions of rural populations).11 First and foremost, effective strategies are urgently required to address climate change and its dramatic implications for culture and cultural rights.12 Against this backdrop, the need for a change of pace in addressing cultural heritage, sustainable development and human rights through a comprehensive and integrated approach is beyond doubt. Could it also be argued that this process has been truly undertaken and, if so, what are the real challenges to it?

4 Tullio Scovazzi, ‘Sustainable Development and Intangible Cultural Heritage’, in this volume, 220. 5 ibid. 6 Manlio Frigo, ‘Restitution of Cultural Property and Decolonization of Museums: Issues of Consistency Between Fulfilment of Legal Obligations, Ethical Principles and Identity Links’, in this volume, section 4. 7 See Maria Clara Maffei, ‘Cultural Traditional Practices Versus Protection of Wildlife: Possible Solutions in the Light of the Principle of Sustainability’, in this volume. 8 Francis Kariuki, ‘Traditional Governance Institutions and the Holistic Protection of Traditional Knowledge’, in this volume. 9 Tullio Scovazzi, ‘Cultural Properties in Outer Space’, in this volume. 10 Costanza Rizzetto, ‘“Contested” Cultural Heritage: Towards the Emergence of an International Duty of Transmission to Future Generations?’, in this volume. 11 Francesco Francioni, ‘The Urban-Rural Divide and the Contribution of Cultural Heritage to Sustainable Development’, in this volume. 12 Ottavio Quirico, ‘Cultural Rights, Environmental Rights and Climate Rights: Insights From International and EU Law’; Elena Carpanelli, ‘A Cultural Rights-Based Approach to Climate Change? Limits and Implications of Cultural Claims in Climate Cases Before International Human Rights Monitoring Bodies’, in this volume.

An Integrated Approach: Mission Impossible? 425 To answer these questions, the previous chapters will be considered through the lens of the principle of integration13 and its application at the political, institutional, and legal level. Some final remarks will follow in the form of general conclusions. 2 Towards Political and Institutional Integration? Various contributions gathered in this book show an interesting evolution, in the field of international cultural heritage law (ICHL), with regard to the adoption of an integrated approach to cultural heritage and sustainable development. It is in fact assumed not only that culture and cultural heritage may provide a fundamental contribution to the attainment of all the 17 Sustainable Development Goals (SDGs) of the 2030 Agenda.14 But there is also convincing evidence that UNESCO and treaty bodies established under culture conventions have promoted the achievement of the SDGs and their related targets, by contributing to the integration of culture into a global vision of sustainability.15 A clear trend in this direction is shown by the steps undertaken within the framework of the 1972 Convention for the Safeguarding of the Intangible Cultural Heritage,16 through the adoption of ad hoc policy documents and Operational Guidelines by its main bodies (i.e. the General Assembly of States parties and the World Heritage Committee).17 The human dimension of cultural heritage has also played a central role in pursuing the basic requirements of sustainable development.18 By way of example, recent policies and programmes show that there has been a recognition of mistakes made in the past with regard to the application of the 1972 WHC, such as the prevalent adoption of a restricted and technical understanding of what constituted a site of Outstanding Universal Value (OUV) ‘focusing on the objects and sites rather than their context and broader community meaning’.19 The interaction between intangible cultural heritage and sustainable development is reported to be taken fully into account under Chapter VI of the Operational Guidelines of the Convention

13 See Laura Pineschi, ‘Cultural Heritage, Sustainable Development and Human Rights: The Need for an Integrated Approach’, section 2. 14 ‘Transforming our World: The 2030 Agenda for Sustainable Development’, UN Doc A/RES//70/1 (21 October 2015) (hereinafter: 2030 Agenda). See Lenzerini (nt. 2) section 3.2. 15 Lenzerini (nt. 2) section 4; Sabine von Schorlemer, ‘The 2030 Agenda for Sustainable Development: Its Impact on the Implementation of the 1972 World Heritage Convention’, in this volume, section 4. 16 (Paris 16 November 1972) entered into force 17 December 1975 1037 UNTS 151 (hereinafter: 1972 WHC). 17 See, e.g., Ana F. Vrdoljak ‘The Principle of Sustainable Development and International Cultural Heritage Law’, in this volume, section 3.1. 18 See Lenzerini (nt. 2) section 3.3. 19 Vrdoljak (nt. 17) section 3.1. On the risks arising from an indiscriminate application of sustainable development and cultural heritage protection as ideals to be pursued according to a top-down approach, Lucas Lixinski, International Heritage Law for Communities. Exclusion and Re-Imagination (OUP 2019) 168 ff.

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on the Protection and Promotion of the Diversity of Cultural Expressions20 in general and in some specific sectors (e.g. food, health, water, management of natural resources, natural disasters and climate change).21 Significant challenges, however, remain. To start with, as regards the protection of tangible cultural heritage, the warning by the UNESCO International Oversight Service in 2015 concerning the establishment and management of OUV sites under the 1972 WHC was clear: The relation between OUV and sustainable development remains an incompletely articulated issue . . . much work will be required in the future to move from the technical, site-based approach to OUV towards a more holistic, dynamic, and multi-dimensional understanding of heritage’s value for society, which may be able to encompass cultural, environmental, social, economic and peace and security elements, and to translate this into guidelines, procedures and actual implementation practice.22 It remains doubtful, however, whether concrete steps have been made in this direction. As highlighted by some authors, none of the various proposals aimed at preventing an excessive number of nominations under the World Heritage listing procedure has yet been translated into concrete actions. Something similar can be said about overtourism. Binding requirements on sustainable tourism in the nomination, management, and monitoring of World Heritage sites are still lacking, with detrimental consequences for the preservation of protected sites, natural resources and local communities.23 The establishment of buffer zones, i.e. areas surrounding sites inscribed on the World Heritage List to give them an additional protection and facilitate their sustainable development, is left to the discretion of single States parties to the 1972 WHC.24 Yet, it remains doubtful whether Indigenous peoples and local communities are genuinely involved in the various aspects of the management, conservation, and safeguarding of tangible and intangible cultural heritage, including the identification of OUV sites under the 1972 WHC or the inscription of elements of ICH under the Convention for the Safeguarding of the Intangible Cultural Heritage.25 20 (Paris, 20 October 2005) entered into force 18 March 2007 2440 UNTS 311 (hereinafter: 2005 UNESCO Convention). 21 Tullio Scovazzi, ‘Sustainable Development and Intangible Cultural Heritage’, in this volume, section 4. 22 UNESCO International Oversight Service (IOS), ‘UNESCO’s Work on Culture and Sustainable Development, Evaluation of a Policy Theme. Evaluation Office’ IOS/EVS/PI/145 REV.5 (November 2015) para 94. 23 von Schorlemer (nt. 15) section 5.2. 24 ibid section 5.4. 25 (Paris, 17 October 2003) entered into force 20 April 2006 2368 UNTS 1 (hereinafter: 2003 UNESCO Convention). See Vrdoljak (nt. 17), section 3.1; Véronique Guèvremont, ‘Participation of Indigenous Peoples in the Safeguarding of Intangible Cultural Heritage: A Principle at the Crossroads of Human Rights and Sustainable Development’, in this volume, section 4.2.

An Integrated Approach: Mission Impossible? 427 As to the management of cultural heritage during and after armed conflicts, interesting trends towards the integration of cultural heritage into policies implementing the 2030 Agenda can be observed in the practice of UNESCO.26 It has also been argued, however, that the role played by the 1972 WHC to promote peace and security27 continues to be ‘underestimated and underutilized’.28 The situation is even more complex if one considers the restitution of cultural objects to the States of origin from former colonies, an issue which is relevant for a sustainable management of cultural heritage in many respects.29 Concrete steps have been made in this direction by some European countries in recent years;30 in addition, at the global level, UN resolutions have started to address the question of colonial plundering and the duty of restitution according to a comprehensive approach, that is highlighting old problems (e.g. the limited number of ratifications of most relevant treaties), but also new priorities and emergencies in accordance with the SDGs.31 However, the restitution and return of objects removed during the colonial period to their State of origin remains a difficult task, as its concrete achievement requires the resolution of complex and interrelated issues of a legal and ethical nature, both at the domestic and international level. Stronger international co-operation should be put into motion at the global level to address some of the structural flaws of the relevant multilateral treaties, including their limited scope of application and their non-retroactive character.32 With regard to institutional integration, some developments can be detected at the inter-institutional level. In particular, a trend (albeit limited) has been highlighted towards the promotion of ‘meetings between the governing bodies (including secretariats), sharing of experiences and good practice, and efforts towards harmonization of work across culture conventions in respect of matters touching upon SDGs’.33 By contrast, serious doubts remain with regard to the meaningful involvement of Indigenous peoples and local communities within the institutional architecture of certain conventions. In particular, although public participation is both a central principle of sustainable development34 and a basic condition for ensuring the

26 See, e.g., UNESCO CPC, ‘Reinforcing Synergies between the 1954 Hague Convention and its two Protocols and the other UNESCO Cultural Conventions’ C54/20/15.COM/5 (26 November 2020); UNESCO CPC, ‘Implementation Strategy of the Thematic Programme “Heritage for Peace”’ C54/21/16.COM/INF.5.I (2 November 2021); von Schorlemer (nt. 15) section 5.3; Vrdoljak (nt. 17); Lenzerini (nt. 2) 14 and ILC, ‘Draft Principles on Protection of the Environment in Relation to Armed Conflicts’, in YILC (2022) Vol. II, part 2, in particular Principle 18, concerning the establishment of protected zones. 27 Sustainable Development Goal (SDG) 16 (Promote just, peaceful and inclusive societies). 28 von Schorlemer (nt. 15) section 5.3. 29 Frigo (nt. 6) section 4. 30 ibid sections 1–3. 31 ibid section 5. 32 ibid section 5. 33 See Vrdoljak (nt. 17) 43. 34 Alan Boyle, ‘Human Rights and the Environment. Where Next?’, in Ben Boer (ed) Environmental Law Dimensions of Human Rights (OUP 2015) 213.

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respect for and implementation of human rights, including cultural rights,35 Indigenous peoples are not adequately represented in the 2003 UNESCO Convention bodies. In addition, no mechanism adopted under the same instrument ‘specifically promote[s] the presence, consultation and participation of Indigenous peoples in the decisions that are discussed and adopted in the governing bodies of the Convention’.36 Only timid progress has also been made at the institutional level outside the culture conventions’ system. This comes to light, in particular, when considering the role that multilateral development banks (MDBs) play in the protection of cultural heritage when they provide financial support to countries for the development of their infrastructures. A comprehensive analysis based on the statutory obligations of the MDBs, their policy and the complaints brought within their accountability mechanisms shows that these organizations ‘have all adopted policies that seek to avoid or mitigate the adverse impacts of the projects they finance on cultural heritage’.37 Nevertheless, the integration of the cultural dimension within the policies of MDBs is partly inconsistent with some of the well-established standards of behavior required under ICHL, human rights treaties, and general principles on sustainable development.38 Above all, discrepancies vis-à-vis international standards persist, in particular, with regard to the right of Indigenous peoples and local communities to be consulted in the context of the decision-making processes.39 Some structural flaws can also be detected at the regional level, for instance with regard to the effective integration of the cultural heritage dimension in the sustainable development policy and action of the European Union (EU). Although it should be noted that ‘an integrated approach potentially tying culture and sustainable development is timidly arising in a number of institutions’ non-binding acts’,40 some “constitutional” constraints cannot be overlooked. Culture and environmental protection fall within different areas of EU competences and ‘the rigidity of the principle of conferral hinders a potential interpenetration of culture and sustainable development’.41 Given that situation, it can be argued that the EU Court of Justice will be the institution called upon to play a major role, in the near future, to ensure a systemic integration between culture, sustainable development and human rights protection within the EU legal order. If one shifts the focus on the areas beyond national jurisdiction, a clear gap is detectable under the international space law regime. Relevant multilateral agreements recognize a collective interest in the exploration and use of outer space for

35 36 37 38 39 40

Guèvremont (nt. 25) sections 2 and 3. ibid section 4.1. Drazewska and Hausler (nt. 1) section 3. ibid sections 3–4. ibid section 3. Marco Inglese, ‘EU Law, ‘Sustainable Development and Culture: A Controversial Encounter?’, in this volume, section 5. 41 ibid.

An Integrated Approach: Mission Impossible? 429 peaceful purposes.42 However, no measures for the protection of cultural heritage or sustainable development have been incorporated in these instruments. In addition, no ad hoc bodies monitor States’ conduct in the interest of humankind as provided for under other treaties regulating human activities in areas beyond any national jurisdiction, such as the seabed area or the Antarctic. Exploitation activities in outer space have not yet taken place, and helpful ideas for a future generally accepted regime could be drawn from various legal instruments applicable to the protection of cultural heritage.43 Nevertheless, initiatives at the legal and institutional level cannot be postponed, due to the specific nature of the risks and of the area at stake, on the one hand, and the growing interest of States and private entities in outer space activities, on the other. 3 Towards Legal Integration? Lights and shadows also emerge when assessing whether an integrated approach has been adopted at the legal level. In principle, ‘sustainable development is informing the interpretation and implementation of each culture conventions’.44 It is also positive, with regard to the management of tangible cultural heritage, that ‘the legal regime deriving from the 1972 WHC and the complex system that has been devised for monitoring its implementation, may have a considerable influence over national policies concerning the management of World Heritage sites’.45 Perplexities, however, remain with regard to ‘the limited effectiveness of the 1972 WHC in the conservation or sustainable management of threatened World Heritage sites’.46 In particular, the case of Venice and its Lagoon is paradigmatic in highlighting the controversial policy of its monitoring body – the World Heritage Committee – when paramount political and economic interests are at stake. In addition, besides providing ‘a clear sign of an irreparable politicization of the Committee’, ‘at the expense of the fundamental objective of ensuring the protection of cultural and natural heritage’,47 this case represents a departure from what a genuinely integrated approach would require. The measures ultimately taken by the Italian government – and endorsed by the World Heritage Committee against the technical advice of the Advisory bodies – are a partial and reductive solution, not the result of a comprehensive assessment of all the complex challenges faced by an OUV site, which is affected by long-standing structural problems and which

42 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Washington, Moscow and London 27 January 1967) entered into force 10 October 1967 610 UNTS 205, Preamble. 43 Scovazzi, ‘Cultural Properties’ (nt. 9) section 3. 44 Vrdoljak (nt. 17) section 1. 45 Marco Gestri, ‘The Impact of the 1972 World Heritage Convention, and of Its Related Monitoring Mechanisms, on the Sustainable Management of Sites: The Venice Case’, section 3. 46 ibid section 1. 47 ibid.

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is exposed to the cumulative impact of risks caused by various human activities, including mass tourism. As to the interrelation between different binding instruments, ad hoc clauses may be useful to prevent potential conflicts between treaties providing for the protection of cultural heritage and cultural diversity on the one hand, and human rights protection on the other. Apparently, however, the vague and ambiguous formulation or problematic interpretation of the provisions adopted for this purpose under the 2003 and the 2005 UNESCO Conventions make them of limited value in creating positive synergies and interactions with other regimes.48 Strengths and weaknesses also emerge outside the area of ICHL. In this regard, the chapter providing an in-depth review of the recent arbitral jurisprudence concerning investment disputes relating to cultural heritage and the difficult balance between ‘the legitimate sphere for State regulation for protecting cultural heritage on the one hand, and the protection of private interests from State interference on the other’ is illustrative.49 Most existing international investment agreements (IIAs) do not contain any explicit reference to cultural heritage. A renegotiation of IIAs to make them better consistent with cultural concerns is, however, an unrealistic expectation, just as it is unrealistic to think that treaty drafting may per se solve conflicts between international investment law and ICHL.50 Accordingly, a stronger commitment is required by arbitral investment tribunals to ensure that cultural heritage protection and its human dimension are fully integrated when relevant rules of international investment law are interpreted and applied, through the use of all means available under international law (first, systemic interpretation). At any rate, some positive results can be inferred from the case law which shows that arbitral tribunals may ‘contribute to good cultural governance by expressing the need to govern cultural phenomena according to due process and the rule of law’.51 Interesting developments can also be observed in the increasing role played by a human rights approach to the impact of climate change on cultural heritage and cultural traditions. From a de lege ferenda perspective, it has been argued that only the recognition of a right to a sustainable climate per se in international and EU law would lead to a substantive change both at the decision-making level and from the standpoint of rights enforcement.52 However, a number of procedural hurdles may preclude human rights bodies from hearing climate cases on the merits, in particular their justiciability, the narrow recognition of cultural rights within specific human rights protection systems, and the jurisdiction conundrum.53 It must be acknowledged, however, that the increasing number of complaints brought before national tribunals and international human rights bodies to hold States accountable for failing to reduce greenhouse gas emissions or to adopt 48 49 50 51 52 53

Mucci (nt. 1). Vadi (nt. 1) section 2. ibid section 5. ibid section 4. Quirico (nt. 12) section 3.2. Carpanelli (nt. 12) section 4.

An Integrated Approach: Mission Impossible? 431 mitigation measures has recently started to have positive outcomes, with probable developments in the near future. From the perspective of an integrated approach to sustainable development, the most relevant outcome consists in the clarification of the scope and content of relevant treaty provisions, the recognition of basic obligations of States to ensure the effective enjoyment of cultural rights (such as informed participation by local communities to the decision-making process and the obligation of States to co-operate in tackling the climate change emergency), the cross-fertilization between different international courts and human rights bodies, and the impact of international findings on States’ practice and national jurisprudence. In sum, human rights litigation could represent the privileged setting for a ‘de-fragmentation’ and harmonization attempt between three different bodies of law – international human rights law, international climate change law and international cultural heritage law – as well as . . . for the adoption of a ‘holistic approach’ between cultural and human rights perspective essential for responding to the climate emergency.54 These considerations bring us to the relationship between cultural and environmental rights, an issue which has been specifically addressed, from different perspectives, in two chapters. The first one aptly highlights the need for a holistic approach to cultural and environmental rights, according to the notion of “biocultural diversity”. Cultural and biological diversity are in fact strictly interrelated, as ‘[s]ome traditional practices have improved and promoted biodiversity and have proven decisive in maintaining healthy ecosystems . . . Letting these traditional knowledge and cultural elements disappear may mean, as a result, losing valuable elements of biological diversity as well’.55 Nevertheless, only a limited number of domestic legal orders ensure joint protection to these values both at the regulatory and case law level. By contrast, this vision is completely lacking in the EU legislation and in the jurisprudence of the EU Court of Justice.56 The complexity of the issue is well illustrated, however, by the chapter focused on possible conflicts between traditional cultural practices and wildlife protection.57 Starting from the ‘logical assumption that when a species is lost, it is lost forever and for all; it is a loss for the humankind, not only for Indigenous peoples or local communities’,58 restrictions to exemptions granted to Indigenous peoples can indeed be regarded as a necessary mean for pursuing sustainable development as a higher interest. Accordingly, where limitations to exceptions are not explicitly 54 ibid. 55 Pier Luigi Petrillo, ‘The Legal Protection of Biocultural Diversity Between Cultural Rights and Sustainable Development. A Comparative Perspective’, section 2. 56 ibid section 4. 57 Maffei (nt. 7). 58 ibid section 4.

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provided for under specific treaties, restrictions can be lawfully imposed in compliance with the sustainable development principles, first and foremost, the principle of integration. An amendment of “silent” treaties, with the meaningful participation of the Indigenous peoples directly concerned, would perhaps be the best way to achieve a balanced solution. In the absence, instead, of a renegotiation of the relevant treaty, the responsibility to find an equitable solution is remitted to the interpreter (and to their personal sensitivity and technical expertise) on a case-bycase basis. 4

Concluding Remarks

More than two decades ago, Dominic McGoldrick, starting from the assumption that sustainable development is an ‘integrationist principle’, observed that ‘the interpenetration of the concepts and principles in the three pillars of international environmental law, international human rights law and international economic law has made boundaries between them increasingly redundant’.59 If one considers the increasing acknowledgment of culture and cultural heritage as core elements (or a fourth pillar) of sustainable development,60 the above assumption should now encompass ICHL. Admittedly, significant progress has been made in this direction during the last few decades, through the adoption of useful initiatives at the world, regional, and bilateral level. Of particular note, the international law regime concerning the protection and preservation of cultural heritage has been expanded in parallel (and has promoted interactions) with other fields of public international law (in particular, human and international environmental law) to achieve sustainable development according to a human rights-based approach. This progress is limited, however. Not all culture conventions and other UN relevant initiatives are characterized by a constant and uniform advancement in this direction. Strategies and programmes do not necessarily equate to concrete actions by States or national and international bodies; their integration into operational guidelines and implementation is rather described as ‘cursory’.61 An overriding State-centric approach continues to be one of the major obstacles in safeguarding cultural heritage, according to its comprehensive notion, and as a common concern. Major gaps in the sustainable management of cultural heritage are particularly relevant when basic duties and principles – such as public participation,62 access to justice, and intergenerational and intra-generational equity – are to be fulfilled in

59 Dominic McGoldrick ‘Sustainable Development and Human Rights: An Integrated Approach’(1996) 45 ICLQ 796, 818. 60 Vrdoljak (nt. 17) section 3; Pineschi (nt. 13) section 3. 61 Vrdoljak (nt. 17) section 3.1. 62 For a comprehensive study on public participation in the governance of cultural heritage as a global concern, see ILA, ‘Lisbon Conference: Participation in Cultural Heritage Governance at the Global Level, Final Report’ (2022) . Last access to all links mentioned in this chapter: 27 May 2023.

An Integrated Approach: Mission Impossible? 433 order to safeguard cultural heritage as a common concern. More generally, there is no evidence that systemic integration is the prominent feature of decision-making processes regarding (or impinging upon) cultural heritage and its human dimension from a sustainable development perspective. Against this backdrop – and beyond any discussion about the undeniable complexity of a systemic integrated approach – two tentative conclusions may be drawn from the preceding chapters. The first one relates to the correct application of the principle of integration. As pointed out since the very beginning, this principle may become an effective tool in achieving sustainable development if it is properly applied (i.e. if it does not result in a merely formal process, with no concrete impact upon the decision-making’s final outcome).63 Generally speaking, it can hardly be concluded that all reasonable efforts have been made to this end, at the political and institutional levels. Above all, when assessing the effective application of the principle of integration within the regime of the culture conventions, doubts may arise about the subsistence of a basic precondition: is this system supported by adequate tools, at the institutional level, to ensure an effective safeguarding of cultural heritage in its expanded notion and from a sustainable development perspective? As the UN Conference of 2012 (Rio+20) emphasized in its outcome document: ‘a strengthened institutional framework for sustainable development’ is essential ‘to [respond] coherently and effectively to current and future challenges and efficiently [bridge] gaps in the implementation of the sustainable development agenda’.64 Regrettably, the institutional mechanisms established under the culture conventions in force (where envisaged) are rather weak, or do not correspond to the institutional framework model which Rio+20 referred to, i.e. ‘inclusive, transparent and effective’.65 In this context, the main doubts focus on the “compliance system” established under the 1972 WHC. As mentioned, its effective capacity to impact on contracting parties’ self-interest has attracted increasing criticism, due to the central role played by the World Heritage Committee (a restricted organ of States) and the growing politicization of its decisions in recent years.66 Concerns have also been expressed about the real involvement of Indigenous people, local communities, NGOs and other stakeholders in the implementation of the 1972 WHC projects and

63 See Pineschi (nt. 13) section 2. 64 UNGA, ‘The Future We Want’ UN Doc A/RES/66/288 (11 September 2012) para 75 (emphasis added). 65 ibid. 66 For further considerations, Gestri (nt. 45) section 2 and, more generally, Edward J. Goodwin, ‘The World Heritage Convention, the Environment, and Compliance’ (2009) 20 CJIELP 157; Véronique Guèvremont, ‘Compliance Procedure: Convention Concerning the Protection of the World Cultural and Natural Heritage’, MPEIPL (2019); Evan Hamman, ‘The Role of NGOs in Monitoring Compliance under the World Heritage Convention: Options for an Improved Tripartite Regime’, in Christina Voigt, International Judicial Practice on the Environment. Questions of Legitimacy (CUP 2019) 417.

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programmes.67 In the long run, these flaws not only risk undermining the legitimacy of the World Heritage Committee and its “compliance pull”. They may also create (or exacerbate) tensions, a result which is definitely at odds with the basic principle of prevention and with any genuine effort to achieve sustainable development. A second remark concerns the effective application of the principle of integration at the legal level. Various chapters emphasize the role that the legal and judicial reasoning may play in ensuring the systemic integration in a sustainable development framework. In particular, national and international courts, arbitral tribunals and human rights bodies may provide greater protection to cultural heritage through the effective protection of individual and collective rights, according to a comprehensive and holistic approach. Generally speaking, the application of all general rules of treaty interpretation as restated in the Vienna Convention on the Law of Treaties68 – in particular, the teleological, contextual, systemic, evolutionary and global interpretation – is considered of vital importance to facilitate better connections and compenetration of rules and principles in a fragmented legal framework. It is, however, in the area of human rights protection that the most significant developments seem to be taking place. Reference may be made, first, to the case law and practice of judicial and quasi-judicial human rights bodies, where it is clear to see how the principle of integration may be used, in certain instances, as an effective tool to review States’ conduct and to give content to States’ obligations.69 In some instances, this is still an imperfect or uncompleted process, as the troubled developments in the so-called climate justice show.70 It cannot be overlooked, however, that this is a recent evolution and that comparable results would have been simply unthinkable a few years ago. Furthermore, it cannot be overlooked that this progress would hardly have been possible without the contribution given by some UN bodies or UN treaty bodies to the evolution of human rights protection and, in particular, cultural rights and the right to a clean, healthy and sustainable environment. In this context, some general comments recently adopted by the Human Rights Committee (CCPR) and the Committee on Economic, Social and Cultural Rights (CESCR) deserve special mention.71 No less important is the active role that human rights experts and special rapporteurs appointed by the UN Human Rights Council over the years have

67 On the implementation mechanisms of the 2003 UNESCO Convention, Guèvremont, ‘Compliance Procedure’ (nt. 66) para 18 (‘the real involvement of these groups . . . has yet to be demonstrated’). 68 (Vienna, 23 May 1969) entered into force 27 January 1980 1155 UNTS 331, Articles 31. 69 See, e.g., Inter-American Court of Human Rights, Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina, Judgment of 6 February 2020 (Merits, Reparations and Costs), IACtHR Series C No. 346 (6 February 2020). 70 Carpanelli (nt. 12) sections 3–4. 71 See, e.g., CESCR, ‘General Comment No 21. Right of Everyone to Take Part in Cultural Life (Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/GC/21 (21 December 2009); CCPR, ‘General Comment No 36. Article 6: Right to Life’ UN Doc CCPR/C/GC/36 (3 September 2019).

An Integrated Approach: Mission Impossible? 435 played in highlighting the protection of cultural heritage as a human rights issue from all its possible connections and perspectives. A simple perusal of these documents clearly shows that the adoption of a holistic and comprehensive approach not only is recommended to States but that it is the very essence of the work done by their authors, acting as independent experts.72 Summing up: mission impossible? A systemic integrated approach is undoubtedly a hard undertaking, which largely cannot be separated from States’ consent and their effective co-operation. Political willingness is a basic component too, if new agreements are to be made, or if existing treaties (or institutional mechanisms) are to be amended or expanded in their scope. It would, however, be wrong to assume that the inherent limits of the international legal order are an insurmountable obstacle to the effective protection of collective rights and values according to a comprehensive and holistic approach. States are not only subject to moral obligations. They are bound to a huge number of (general and sectoral) international law obligations, including, first and foremost, the duty to co-operate in good faith. From this perspective, a closer co-operation between UNESCO, States parties to culture conventions (and, in particular, to the 1972 WHC) and their institutions with international and human rights courts and supervisory bodies would certainly strengthen the protection of cultural heritage in a way which is consistent with the respect of human rights and the world community interest.73 More generally, States can be held responsible in the event of violations of their substantive and procedural obligations to protect and preserve cultural heritage and to respect human rights within a sustainable development framework, both at the national and international level. This is certainly not an easy path, which mainly consists of a mere ex post facto remedy. It should be noted, however, that the case law and practice of judicial and quasi-judicial bodies may have implications that go well beyond the concrete case at stake, due to their potential impact on the interpretation, application, and further development of international law rules in the same or other contexts.74 From this perspective, it can thus be concluded that an appeal to ‘the intelligence of a future day’75 is not necessary; a lot can be done right now.

72 For further considerations, Kristin Hausler, ‘The UN Security Council, the Human Rights Council, and the Protection of Cultural Heritage. A Matter of Peace and Security, Human Rights, or Both?’, in Anne-Marie Carstens and Elizabeth Varner (eds) Intersections in International Cultural Heritage Law (OUP 2020) 202. 73 In this sense Francesco Francioni, ‘Cultural Heritage and Human Rights’ (2021) 25 MPYUNL 148, 162–163. 74 Mutatis mutandis see Philippe Sands, ‘Sustainable Development: Treaty, Custom and the Crossfertilization of International Law’, in Alan Boyle and David Freestone (eds) International Law and Sustainable Development. Past Achievements and Future Challenges (OUP 1999) 39. 75 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Judgment) Dissenting Opinion of Judge Jessup, [1966] ICJ Reports 6, 325.

Index

2030 Agenda for Sustainable Development 131–154, 216, 314–318, 316, 365; see also Sustainable Development Goals (SDGs) Artemis Accords 87–88 biocultural diversity 382–399; Canadian model 389–396; European Union 396–399; legal concept 384–389 biodiversity 58–63, 238, 370–371, 382–389 buffer zones 151–153 child see female genital mutilation; forced marriage; human rights cities 58, 95–99, 106 climate cases/litigation 339–340, 358–359 climate change 11–12, 58, 63, 96–98, 424– 426, 430–431; and cities 96, 98; and climate rights 323–324, 338; and cultural claims 339–340, 358–359; cultural rights-based approach 339–359; European Union 113; and human rights 328–338, 339–359, 430; and sustainable development 111–114, 119–122, 214–221; 331–337; and traditional knowledge 58, 63, 223–224, 298; and World Heritage Sites 133 contested cultural heritage 193–210; intentional destruction of 196–201; international duty of transmission to future generations 201–210; and ‘right to destroy’ 196–201 Convention Concerning the Protection of the World Cultural and Natural Heritage (1972 WHC) 29–32, 80 (nt. 36), 88–90, 131–154, 155–174, 197–199, 202–203, 249 (nt. 101),

324–325, 326, 327, 425–427; see also Sustainable Development Goals (SDGs) Convention for the Protection of Cultural Property in the Event of Armed Conflicts (1954 Hague Convention) 18, 36–37, 38 (nt. 175 and 177), 39 (nt. 180), 44, 148, 184, 196, 199; see also Sustainable Development Goals (SDGs) Convention for the Safeguarding of the Intangible Cultural Heritage (2003 UNESCO Convention) 26, 34–36, 59, 62, 69–72, 76–77, 80, 217–221, 231–232, 234, 246–253; see also Sustainable Development Goals (SDGs) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention) 19, 39–42; see also Sustainable Development Goals (SDGs) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 UNESCO Convention) 26–27, 37–39, 69–70, 72–76, 77–78, 80, 215; see also Sustainable Development Goals (SDGs) Convention on the Protection of the Underwater Cultural Heritage (Underwater Convention) 32–34, 90–91; see also Sustainable Development Goals (SDGs) crimes: see international crimes cruise ships 97; Italian legislation on 159–166

Index cultural diversity 6–10, 22–28, 36–41, 44–45, 56–57, 63–65, 66–81, 94, 365–366, 383–392, 396–398; and clauses to avoid conflict 69–74; cultural qualification 76–79; and mutual functionality 66–69; and other provisions aimed at preventing conflicts 74–76; see also cultural rights; human rights cultural heritage: and 2030 Agenda for Sustainable Development 131–154; armed conflicts 36–37, 41, 66–68, 148–151, 171–172, 189–191, 196–201; biocultural diversity 382–399; child and forced marriages/traditional practices harmful to women’s health 300–320; cities 56–58, 95–103, 106–107, 140–142, 147–151; and climate change 339–359; cultural rights-based approach 22–25, 31–32, 290–298, 339–359; cultural sites 30–32, 46–48, 52–53, 59–62, 85–88, 94–100, 132–136, 144–147, 150–154, 158–159, 195–199, 204–206, 206–210, 278–290, 323–330, 336–339, 370–374, 424–426; destruction 51–52, 66– 67, 148–149, 194–201, 205–210, 278–280, 363–364; exportation and transfer 39–40, 180–181; expropriation 367–368, 372–375; human dimension of 46–65; and human rights 9–11; and Indigenous Peoples 233–254; integrated approach 3–12, 423–435; and international duty of transmission to future generations 193–210; international and EU law 323–338; international investment law 360–381; looting 41, 189–191; and multilateral development banks 278–299; peasants 100–103, 107, 363; protection of 66–81, 331–337; restitution and return 175–192; rural areas 100–102, 105–107; rural communities 94–95, 99–100, 103–106, 280–281; stolen objects 179–181; and sustainable development 15–45, 79–81, 213–232, 303–304; and traditional knowledge 255–277; traditional practices affecting wildlife

437

400–419; urban areas or sites 85, 94, 106, 424; and urban communities 94–100, 103–106; and the urban-rural divide 93–107; see also Convention Concerning the Protection of the World Cultural and Natural Heritage (1972 WHC); cultural rights; intangible cultural heritage; outer space; tangible cultural heritage; world cultural heritage cultural identity 21–23, 46–51, 346–347, 382–384 cultural rights 9–12, 17–19, 22–28, 39–41, 48–50, 204–207, 244–245, 253–254, 291–299, 300–302, 323–338, 339–359, 382–399, 428–431; and climate change 324–331; European Union 396–399; and sustainable development 9–11, 111–114, 119–122, 214–221, 297–298; see also biocultural diversity; climate change; human rights culture see cultural heritage; cultural rights decision-making: involvement of girls and women 318–319; involvement of Indigenous peoples 410–414; on climate change 335, 355, 358; right of Indigenous Peoples/local communities to participate 144, 149, 214–215, 222, 240–245, 291, 298–299, 410, 413 (nt. 67), 426–428; see also free, prior and informed consent; principles (public participation) decolonization 175–178, 187–192; “decolonization of museums” 175–192; restitution and sustainability issues 182–187; and right to development 16–20 destruction of cultural heritage see contested cultural heritage; cultural heritage development: economic development 27–28, 97–99, 125–126, 216–217; and environment 213–214; right to development 15–18, 23–24, 101–102; social development 136–138; see also sustainable development

438

Index

development projects 278–280, 298–299; and cultural human rights 290–298; and intangible cultural heritage 286–290; MDBs-supported projects 280–286 environmental rights 323–324, 338; and climate change 324–331 European Union (EU) 108–110, 323–324, 338; and biocultural diversity 396–399; and climate change 324–331; and sustainable development 111–114, 119–122 expropriation 372–374 female genital mutilation 310–315; children 310–314; see also human rights forced marriage 300, 318–320; see also human rights foreign investments 360–364, 380–381; and cultural heritage 364–367; and global cultural governance 367–374; and policy options 377–380 free, prior and informed consent (FPIC) 270–273, 276, 285, 289–290, 299; see also decision-making; principles (public participation) future generations 36, 46, 47, 49, 51, 61, 144, 153, 193–195, 201–210, 213–214, 347–353; and international duty of transmission to 193–195, 201–210; and ‘right to destroy’ 196–201 human rights: and biocultural diversity 382–399; child and forced marriages 300–320; children’s rights 305; and climate change 326–331, 339–359; collective rights 277, 434–435; and Indigenous Peoples 233–254; integrated approach 3–11, 423–435; and international duty of transmission to future generations 193–210; international investment law 360–381; and multilateral development banks 278–299; and restitution 175–192; to a sustainable climate 334–337; to a sustainable environment 331–334; and traditional practices

70–71 (nt. 16), 79 (nt. 34); and traditional practices affecting wildlife 400–419; women’s rights 300–320; see also cultural rights Indigenous Peoples 233–234, 253–254; and exceptions to prohibitions 400–415; and fundamental rights 240–245; and safeguarding of intangible cultural heritage 245–253; and sustainable development 234–240; see also free, prior and informed consent (FPIC) institutional integration see integrated approach intangible cultural heritage 34–36; and climate change 324–326; and Indigenous Peoples 233–254; and human rights 49–51, 240–245; and multilateral development banks 278–299; and sustainable development 213–232, 233– 240, 245–254; and traditional knowledge 255–277; social component of 217–221; see also protection of intangible cultural heritage integrated approach 3–11, 122–127, 137–139, 142–144, 146–148, 423–435; institutional integration 6, 425–429; site management 146–148; sustainable development and world heritage 139–140 intellectual property rights 229–232, 257–266, 272–273; and Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage 229–232 inter-generational equity see future generations; principles international crimes 42, 184, 196, 197; international criminal tribunals 48, 67, 196–197, 306 investment law 360–364, 380–381; critical assessment 374–377; and cultural concerns in international investment law 377–378; and cultural heritage 364–367; and global cultural governance 367–374 investments 101–103, 145–147; and cultural governance 367–374;

Index notion of 368–370; see also foreign investments; investment law List of World Heritage in Danger (LWHID) 90, 97, 145, 159–169, 173–174; and State consent 170–173 Millennium Development Goals (MDGs) 25–29, 131, 365 multilateral development banks (MDBs) 278–280, 298–299; and cultural human rights 290–298; and intangible cultural heritage 286–290; MDBs-supported projects 280–286 museums: decolonization of 175–192; restitution and sustainability issues 182–187 natural heritage 29–30, 60–63, 132–135, 142–144, 155–158, 197–199, 331–337 natural resources and culture: biocultural diversity 382–399; and cultural rights-based approach 339–359; and international investment law 360–381; management of 274–275, 276; and traditional practices affecting wildlife 400–419 Ouagadougou Declaration 175–177 outer space: and cultural heritage 82–85; models for a future agreement 88–92; other relevant instruments 85–88 participation to cultural life 65, 141, 233–234, 245–253, 291; see also principles (public participation) peace and security: and world heritage 137, 148–151, 423, 426; and women 317 Peasants Declaration 101–103 precautionary approach see principles (precaution) principles 233–254; integration 4–11, 43–44, 109–112, 425–429, 432–434; inter-generational equity 7, 44, 432; precaution 5–7, 33, 112, 287–288, 297; prevention 5–7, 134, 434; public participation 21–29, 31–32, 34–36, 37–39, 57–58, 99, 104–105, 235–238, 427–428, 431–432; sustainable development

439

15–45, 108–116, 121–123, 213–214, 233–234, 240, 400–419, 432 protection of cultural heritage and human rights 79–81; clauses to avoid conflict 69–74; cultural qualification 76–79; and mutual functionality 66–69; other provisions aimed at preventing conflicts 74–76; see also cultural rights protection of intangible cultural heritage 278–280, 298–299; and cultural human rights 290–298; MDBs’ policies applicable to 286–290; MDB-supported projects 280–286; see also cultural rights; intangible cultural heritage protection of natural and cultural heritage 331–337 restitution of cultural property 175–178, 187–192; “Belgian approach” 178–182; and cultural rights 175–192; and sustainability issues 182–187 right to development 16–29; and decolonization 16–20; and environmental law 20–25; MDGs and SDGs 25–29 Rio Declaration (1992) 5–6, 20–25 103–106, 213–215, 233–237, 288 Rio+20 5, 8, 109, 236, 433 rural-urban divide see urban-rural divide Sarr-Savoy Report 176–178, 183–185 site management 146–148, 155–159, 173–174; sustainable management 155–159, 173–174; Venice case 166–169; see also buffer zones; List of World Heritage in Danger (LWHID) State responsibility: and cultural human rights violations 292–295 Stockholm Declaration (1972) 20–25, 30, 235 sustainable development: and 2030 Agenda for Sustainable Development 131–154; biocultural diversity and cultural rights 382–399; and child and forced marriages 300–310, 318–320; and climate change 339–359; cultural heritage and cultural diversity 66–81; emerging

440

Index

UNESCO framework for 201–206; and EU law 108–127; and female genital mutilation 310–314; and human dimension of cultural heritage 54–64, 203–205; and Indigenous Peoples 233–254; and intangible cultural heritage 213–232; integrated approach 3–11, 423–435; and international cultural heritage law 15–45; and international duty of transmission to future generations 193–210; and international investment law 360–381; and international law 323–338; and multilateral development banks 278–299; notion 4–7, 54–55; and restitution 175–192; and traditional knowledge 255–277; and traditional practices affecting wildlife 400–419; and urban-rural divide 93–107; and Venice case 155–174; and world heritage 139–140; see also cultural heritage; principles (sustainable development) Sustainable Development Goals (SDGs) 8, 25–29, 314–318; culture and cultural heritage 55–59; and 1954 Hague Convention 36–37; and Underwater Convention 32–34; and 1970 UNESCO Convention 39–42; and 2003 UNESCO Convention 34–36; and 2005 UNESCO Convention 37–39; and urban/rural areas 99, 106; and world heritage 29–32, 43–44, 134–144; and 1972 WHC 131–151 tangible cultural heritage: and 2030 Agenda for Sustainable Development 131–154; and climate change 324–326; and international duty of transmission to future generations 193–210; and restitution 175–192; Venice case 155–174; see also Convention Concerning the Protection of the World Cultural and Natural Heritage (1972 WHC) tourism 56–58, 63–64, 97–99, 125, 165–166, 225–226, 426; overtourism 146–148

traditional governance institutions 255–257, 374–377; law and 276; role of 269–273; safeguarding of 276–277 traditional knowledge 27–28, 57–58, 229–232, 255–277, 298, 386–387, 412–413; challenges 257–266, 273–374; conceptualizing traditional governance institutions 266–269; holistic protection of 255–257, 374–377; role of traditional governance institutions 269–273 traditional practices see female genital mutilation; Indigenous Peoples; traditional knowledge; wildlife transitional justice 206–210 UN Convention on the Law of the Sea 90–92 underwater cultural heritage see Convention on the Protection of the Underwater Cultural Heritage (Underwater Convention) UN High Level Political Forum on Sustainable Development 142–144 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 20, 104, 241–243, 245, 246–247, 252, 392–393, 417 urban-rural divide 93–95, 107; cities 95–99; rural cultural heritage 100–103 Venice case 155–159, 173–174; 1954 Hague Convention 36–37; List of World Heritage in Danger and state consent 170–173; 1995 UNIDROIT Convention 19–20, 180–181, 189–191; World Heritage Convention 159–166 wildlife: and aboriginal whaling 406–408; exceptions to prohibitions 402–410; involvement of Indigenous peoples 410–414; and limits to exceptions: 414–415; and other uses affecting wildlife 415–418; protection of 400–419; and traditional medicine 417–418; and traditional practices 400–402, 414–419; treaty evolution 410–414 world heritage: challenges 144–153; institutional framework 137–144;

Index legal and regulatory framework 134–137; see also Convention Concerning the Protection of the World Cultural and Natural Heritage (1972 WHC); World Heritage Centre 131–133, 142–144, 160–168

441

World Heritage Sites 133–136, 151–154, 158–160, 172–173, 270–272, 370–374; excessive nominations 144–146 World Heritage Sites in Danger 96–97, 158–159; List of (LWHID) 90, 97, 145, 159–169, 173–174