UNESCO, world heritage and human rights

Abstract

This article examines the relationship between the World Heritage Convention and international human rights law. The first part of the article draws on key phrases in Article 1 of the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) Constitution, which defines its purpose to elaborate on the role of human rights to UNESCO’s mandate and how developments in international human rights law over the last 75 years have been translated into the organization’s policies and programs and the implementation of the World Heritage Convention. The second part details how human rights violations related to World Heritage properties expose significant shortcomings in UNESCO’s fulfillment of its mandate and states’ compliance with international human rights norms. The third part outlines the international responsibility of various actors in respect of serious violations of human rights related to World Heritage properties. The final part identifies possible areas of reform in the operation of the World Heritage Convention that may facilitate its alignment with international human rights law and UNESCO’s adherence to its mandate.

Introduction

The natural and cultural heritage and human rights are viewed as common goods in international law, ¹ and their promotion should be mutually reinforcing. ² However, recent jurisprudence by international, regional, and national courts and reports by human rights bodies highlight that conservation efforts can exacerbate or precipitate serious human rights violations, while contemporary scholarship emphasizes that this is not a new phenomenon. The Convention on the Protection of the World Cultural and Natural Heritage (World Heritage Convention), the “flagship” convention of the United Nations’ (UN) specialist agency in the field of culture, has come under the spotlight for its potentially adverse impact on peoples located on or near properties inscribed on the World Heritage List. ³

The year 2022 marks 50 years since the adoption of the World Heritage Convention, and it seems an opportune time to ensure that the Convention and its operational framework align with, and promote, the objectives of the UN Educational, Scientific and Cultural Organization (UNESCO) as expressed in its Constitution and the Charter of the United Nations in respect of human rights and fundamental freedoms. ⁴ As a specialized agency of the UN, UNESCO reinforces the objectives of its parent body. ⁵ Article I.1 of the UNESCO Constitution provides that its purpose is to

contribute to peace and security by promoting collaboration among nations through education, science and culture in order to further universal respect for justice, the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language, or religion, by the Charter of the United Nations. ⁶

UNESCO is charged with achieving this purpose by, inter alia, “maintain[ing], increas[ing], and diffus[ing] knowledge [b]y assuring the conservation and protection of the world’s inheritance of books, works of art, and monuments of history and science, and recommending to the nations concerned the necessary international conventions.” ⁷ Therefore, conventions adopted under the auspices of this organization must be designed and implemented to promote this singular stated purpose.

The World Heritage Convention was prepared by UNESCO and adopted by its General Conference in 1972 pursuant to this objective and function. Consequently, the promotion of human rights is foundational to the interpretation, implementation, and operation of the Convention. However, unlike other culture conventions adopted and overseen by UNESCO, ⁸ neither the preparatory work nor the final text of the World Heritage Convention makes specific reference to human rights. So, while the preamble of the Convention replicates the means outlined in Article I, paragraph 2(c), it does not allude to the purpose contained in the same provision of its Constitution. This absence is particularly unusual given that the World Heritage Convention was drafted during the adoption of key international human rights instruments. ⁹ It is compounded by the fact that the Declaration of the UN Conference on the Human Environment (Stockholm Declaration), which was also adopted in 1972 and informed the drafting of the Convention, links the enjoyment of human rights with the protection of the natural and built environment. ¹⁰ This absence was partially addressed by the Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention (WH-SDP), adopted by the General Assembly of States Parties in 2015. ¹¹ This document 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.” ¹² By comparison, recent revisions to the Operational Guidelines for the Implementation of the World Heritage Convention 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 sites. ¹³

To date, efforts to ensure implementation of these relatively modest commitments have been limited. ¹⁴ This is exacerbated by the lack of a substantive or dedicated mechanism under the existing World Heritage framework to address serious, systematic violations of international human rights and humanitarian law related to World Heritage properties. Thus, the legacy of silence on human rights in the text of the World Heritage Convention continues to date in the operation of the World Heritage governance and oversight framework, with often devastating effects. The deficiency is especially stark when compared with developments in other fora in the UN system in response to the destruction of cultural heritage on or related to World Heritage properties. ¹⁵ Resolutions by the UN Security Council and Human Rights Council were prefigured by the Declaration Concerning the Intentional Destruction of Cultural Heritage, which was adopted by UNESCO’s General Conference in 2003, following the deliberate destruction of the monumental Buddhas of Bamiyan in Afghanistan. It states that cultural heritage is important for “the cultural identity of communities, groups and individuals,” and its destruction has “adverse consequences [for] human dignity and human rights.” ¹⁶

Addressing human rights violations is complicated because of the relationship between UNESCO and the organs of the World Heritage Convention, with repeated calls for clear delineation of their roles. ¹⁷ UNESCO sponsors and adopts international instruments, like the World Heritage Convention, pursuant to Article IV.4 of its Constitution. Although adopted by UNESCO’s General Conference and the institutional cross-fertilization envisaged by the text of the Convention, it remains a treaty like any other treaty. It only binds states that have formally consented to be bound by it unless it has become customary international law in whole or part, ¹⁸ and resolutions of the General Assembly of States Parties or decisions by the World Heritage Committee only bind states parties. Likewise, the UNESCO Constitution is a treaty, and the decisions of the UNESCO General Conference and Executive Board bind member states alone. They are treaties of equal status. ¹⁹ Yet UNESCO and the World Heritage organs are enmeshed. They provide significant logistical and financial support for the operation of the World Heritage Convention. The director-general appoints the Secretariat of the World Heritage Committee, according to Article 14 of the World Heritage Convention. Since 1992, the World Heritage Centre performs the functions of the Secretariat, with staff and premises provided by UNESCO and located within its Paris headquarters. The funding provided from UNESCO’s regular program and budget is almost double that provided for the operating costs of any of the other culture conventions. ²⁰ UNESCO translates human rights developments within the UN into its policies and programs, which are filtered through to the World Heritage Convention.

This article examines the relationship between the World Heritage Convention and international human rights law. Given the context of their adoption and continuing relationship with UNESCO, the World Heritage Convention and international human rights treaties are not self-contained regimes, operating in isolation from each other. ²¹ Indeed, there is near total overlap between UNESCO’s membership and the World Heritage Convention’s states parties and with the states parties to the international human rights treaties. International human rights law (treaty and customary international law) is applicable to World Heritage properties and the operation of the Convention, including the conduct of UNESCO and the World Heritage organs, states, and non-state actors. The first part of this article draws on key phrases in Article 1 of UNESCO’s Constitution, which define its purpose to elaborate on the role of human rights within UNESCO’s mandate, and how developments in international human rights law over the last 75 years have been translated into the organization’s policies and programs, and on the implementation of the World Heritage Convention. The second part of the article details how human rights violations related to World Heritage properties expose significant shortcomings in UNESCO’s fulfillment of its mandate and in states’ compliance with international human rights norms. The third part outlines the international responsibility of various actors in respect of serious violations of human rights related to World Heritage properties. The final part identifies possible areas of reform in the operation of the World Heritage Convention that may facilitate its alignment with international human rights law and UNESCO’s adherence to its mandate.

UNESCO, the World Heritage Convention, and human rights norms

Since its formation, UNESCO has participated in the formulation and promotion of key international human rights instruments. ²² The organization was actively involved in the formulation of the cultural rights provisions contained in the international covenants on human rights during the lead-up to their adoption in 1966. ²³ Its early draft provisions clearly articulated the link between human rights and cultural heritage, often replicating or expanding the language contained in its Constitution.

As early as 1952, UNESCO started working on a mechanism for communications of human rights violations from individuals and groups. ²⁴ Under its current human rights procedures, established in 1978, large-scale, systematic violations can be examined in public by the Executive Board and the General Conference. ²⁵ However, this function has not been exercised to date. Cases of individual and specific human rights violations are examined in camera by the Committee on Conventions and Recommendations (CR Committee), which is a permanent subcommittee of the Executive Board. ²⁶ Pursuant to the Rules of the Executive Board, its proceedings and related documentation are subject to a 20-year embargo. The mechanism’s lack of transparency makes it an anomaly among UN bodies examining human rights violations. It also is inconsistent with the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Principles Relating to the Status of National Institutions (Paris Principles), which set the standard for domestic human rights bodies. ²⁷ Both sets of principles have been adopted by the UN General Assembly.

The published records of the CR Committee’s case load for the first decade of its operation reveal that, while the preponderance of cases have involved violations of cultural rights, none are related to the World Heritage Convention. ²⁸ This can, in part, be explained by the requirement that a communication is only admissible if it concerns a violation of human rights within UNESCO’s field of competence as related to the Universal Declaration of Human Rights (UDHR). ²⁹ This restriction ignores the developments in human rights law that have occurred in the intervening 70 years since the UDHR’s adoption, which have repeatedly reaffirmed the interrelation between human rights and cultural heritage. Consequently, serious human rights violations related to World Heritage properties are being brought before international and regional human rights bodies.

Human rights and fundamental freedoms

Since the adoption of the UDHR in 1948, UNESCO, like other UN specialized agencies, has responded to the subsequent human rights-driven initiatives of its parent body. These developments in turn have been reflected in amendments to the World Heritage Convention’s Operational Guidelines. Most states parties to the World Heritage Convention are also states parties to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1996, which translate the UDHR into legal binding obligations. ³⁰

The Vienna Declaration and Programme of Action of 1993 sought to coordinate and reinforce the UN’s work on the realization and enjoyment of human rights. ³¹ It recognized that specialized agencies like UNESCO “play a vital role in the formulation, promotion and implementation of human rights standards, within their respective mandates.” ³² The tenets of the Vienna Declaration were reinforced by the UN Millennium Declaration and the mainstreaming of human rights throughout the UN. ³³ This commitment was reaffirmed and updated in the secretary-general’s call to action for human rights in 2020, with the guiding principle of strengthening UN leadership in “advancing the cause of human rights” and “enhanc[ing] synergies between human rights and all pillars of the work of the United Nations.” ³⁴

In response to the Millenium Declaration, UNESCO adopted the Strategy on Human Rights in 2003 ³⁵ and signed a memorandum of understanding with the Office of the High Commissioner for Human Rights, making coordination a priority. ³⁶ Its Medium-Term Strategy (2022–29) has reaffirmed its commitment to a human rights-based approach to its mandate. ³⁷ The WH-SDP references the connection between Article 1 of UNESCO’s Constitution and the World Heritage Convention and elaborates upon a human rights-based approach to the treaty’s operation. ³⁸ The Operational Guidelines encourage states parties to adopt a “human rights based approach” to the identification, nomination, management, and protection processes of World Heritage sites. ³⁹ The advisory bodies have also adopted policies promoting a rights-based approach to conservation. ⁴⁰ By comparison, the Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH) 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.” ⁴¹

Without distinction of race

The majority of states parties to the World Heritage Convention are states parties to the International Convention on the Elimination of Discrimination of Racial Discrimination (CERD), ⁴² and the International Court of Justice has held that the prohibition against racial discrimination is an obligation erga omnes. ⁴³ Defined as UNESCO’s objective in its Constitution, the promotion of equality and prohibition of racial discrimination was elaborated in its 1978 Declaration on Racial and Racial Prejudice. ⁴⁴ It was the first principle of the 1972 Stockholm Declaration and was reaffirmed in the 1993 Vienna Declaration and Programme of Action and the 2001 Durban Declaration and Programme of Action. ⁴⁵ In response, UNESCO adopted an Integrated Strategy to Combat Racism, Discrimination, Xenophobia and Intolerance in 2003, which noted that the Durban Conference offered the organization the “opportunity to revitalize and reinforce” its cooperation with the Office of the High Commissioner for Human Rights and the Committee on Elimination of Racial Discrimination. ⁴⁶ A specific objective of this strategy is to “deepen knowledge about the development of forms of discrimination inherited from the past, notably those linked to the period of slavery and colonization and those affecting Indigenous peoples and cultural and religious minorities.” ⁴⁷ The strategy is not referenced in the Operational Guidelines.

The Durban Declaration also emphasized the importance of cultural diversity and African cultural heritage, which is reflected in the African continent being a global priority in UNESCO’s Medium-Term Strategy since 1984, its Priority Africa Operational Strategy for its Implementation, ⁴⁸ and the World Heritage Committee’s Global Strategy for a Representative, Balanced and Credible World Heritage List, prioritizing nominations from states parties in Africa, the Pacific, and the Caribbean. ⁴⁹ Nonetheless, in 2021, only 12 percent of the World Heritage List properties were located on the African continent, compared to 41.5 percent of those on the List of World Heritage in Danger. ⁵⁰

The WH-SDP indicates that states parties ensure that the conservation and management of World Heritage sites is based on the recognition of cultural diversity, inclusion, and equity, “irrespective of age, sex, disability, ethnicity, origin, religion or economic or other status.” ⁵¹ The Operational Guidelines note that “effective” management systems “could” include “a respect for diversity, equity, gender equality and human rights and the use of inclusive and participatory planning and stakeholder consultation processes.” ⁵² The policies of the advisory bodies reinforce the centrality of equal treatment and non-discrimination in a rights-based approach to conservation. ⁵³

Without distinction of race, language, or religion

In 2021, UNESCO stated that the rights of Indigenous peoples are “an integral part of efforts to upscale [its] work against racism and discrimination.” ⁵⁴ It adopted the Policy on Engaging with Indigenous Peoples in 2018, ⁵⁵ in response to the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which has been affirmed by all UN member states. ⁵⁶ The Declaration requires UN specialized agencies like UNESCO to ensure Indigenous peoples’ participation on issues affecting them, including through the provision of financial and technical assistance. ⁵⁷ The policy reaffirms the relevance of human rights and fundamental freedoms, equality and non-discrimination, and self-determination, participation, and free, prior, and informed consent (FPIC) in its fields of operation. ⁵⁸ UNESCO’s Strategy on Human Rights and the 2018 policy emphasize that the organization will coordinate its work with the UN Permanent Forum on Indigenous Issues, the special rapporteur on the rights of Indigenous peoples, and the Expert Mechanism on the Rights of Indigenous Peoples. ⁵⁹ These UN mechanisms have endeavored to engage UNESCO in respect of the human rights of Indigenous peoples vis-à-vis the World Heritage framework with limited success. ⁶⁰

The Operational Guidelines reference the Policy on Engaging with Indigenous Peoples and the UNDRIP when encouraging states parties to ensure the participation of “right-holders” including Indigenous peoples in the identification, nomination, management, and protection processes of World Heritage properties. ⁶¹ It indicates that states parties “shall consult and cooperate in good faith” with the relevant Indigenous representative organizations to obtain their FPIC prior to the nomination and inclusion of sites on the tentative list. ⁶² The WH-SDP recalls Article 5 of the World Heritage Convention, the strategic objectives (the fifth “C’), and UNDRIP when emphasizing the importance of inclusive governance. ⁶³ To this end, it calls on states parties to “ensure adequate consultations,” FPIC, and “effective participation” of Indigenous peoples in World Heritage processes that “affect their territories, lands, resources and ways of life.” In addition, they should facilitate Indigenous and local efforts to realize “equitable governance arrangements, collaborative management systems and, when appropriate, redress mechanism.” They should support initiatives fostering “shared responsibility” among Indigenous peoples and local communities and the promotion of “both universal and local values” in the management of World Heritage sites. ⁶⁴

FPIC is not defined in the 2018 policy. The only elaboration in the Operational Guidelines states that it includes, “inter alia making the nominations publicly available in appropriate languages and public consultations and hearings.” ⁶⁵ The nature of the participation is reflected in the Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage, which commits the committee to,

[i]n the interest of recognizing global cultural diversity and equitable representation, encourage interventions from observers including local communities’ and indigenous peoples’ representatives in items concerning such groups with the prior consent of the Chairperson, and in full respect of Article 6 of the 1972 Convention before decisions are made by the Committee. ⁶⁶

This concession should be contrasted with the Ethical Principles for Safeguarding Intangible Cultural Heritage guiding the CSICH’s framework and the requirement for “free, prior, sustained and informed consent” ⁶⁷ and the resolutions and policies adopted by the advisory bodies. ⁶⁸ In 2021, the UN special rapporteurs on rights of Indigenous peoples, human rights and the environment, and human rights defenders expressed concern that the World Heritage Committee “has adopted commitments towards indigenous peoples on paper but in practice does not have working methods that allow indigenous peoples to participate effectively and have their voices heard in the nomination process.” ⁶⁹ The special rapporteur on the rights of Indigenous peoples has called on the World Heritage Committee to bring its practices into line with the UNDRIP. ⁷⁰

Without distinction to sex

Promotion of gender equality is contained in UNESCO’s Constitution. A significant majority of the states parties to the World Heritage Convention are states parties to the Convention on the Elimination of Discrimination against Women (CEDAW). ⁷¹ The Human Rights Council has called on states to adopt a “gender-sensitive and inclusive approach” to cultural heritage protection and cultural rights. ⁷² UNESCO has made efforts in respect of gender mainstreaming following the Beijing Declaration on Platform for Action promoting the realization of gender equality and the human rights of women and girls ⁷³ and the subsequent UN initiatives including the Action Plan on Gender Equality and the Empowerment of Women, ⁷⁴ Sustainable Development Goal (SDG) no. 5 of the UN 2030 Agenda for Sustainable Development, ⁷⁵ and the Guiding Principle in the Secretary-General’s 2021 Call to Action for Human Rights. ⁷⁶ Gender equality is one of the two global priority areas of UNESCO’s Medium-Term Strategy and includes the promotion of the human rights of women and girls. ⁷⁷ The Gender Equality Action Plan (GEAP II) (2014–21) centers on individual and institutional capacity building, with UNESCO supporting member states and the governing bodies of its normative instruments in “establishing gender-sensitive, gender-responsive and gender-transformative policies and practices in the field of heritage.” ⁷⁸ Periodic reports by states parties are a performance indicator under the GEAP II.

Women and girls are disproportionately impacted by armed conflict and disasters, including climate change, affecting World Heritage properties. ⁷⁹ The WH-SDP requires states parties to ensure gender equality in the “full cycle” of World Heritage processes, especially the nomination process; social and social opportunities; and full and effective participation in conservation and management of sites with equal opportunities for leadership and representation. ⁸⁰ The only instance the policy references empowering women and girls is in its summary of the SDGs. It instead defaults to using the phrase “women and men” throughout when referencing gender equality. The thorny issue of “traditional practices” is addressed less than clearly. ⁸¹

The World Heritage Convention’s Operational Guidelines were amended to encourage the states parties to “ensure gender-balanced participation” in the identification, nomination, management, and protection processes of the World Heritage List and tentative list and to contribute to sustainable development objectives including “gender equality” in World Heritage processes and heritage protection and management. ⁸² Statements of outstanding universal value are “encouraged” to be prepared in gender-neutral language. ⁸³ The advisory bodies have adopted a series of policies on gender equality and the empowerment of women. ⁸⁴ By comparison, the CSICH’s Operational Directives are more detailed and nuanced in their integration of gender equality in the implementation of this Convention. ⁸⁵ Under the Operational Directives, the states parties need to “pay special attention to the role of gender” in respect of elements inscribed on the Representative List and Urgent Safeguarding List. ⁸⁶

Further universal respect for justice, the rule of law, and human rights affirmed by the UN Charter’

The UN’s 2030 Agenda on Sustainable Development reaffirms human rights and the environmental concerns expressed by the international community during the drafting of the World Heritage Convention 50 years ago and reinforces their interrelatedness. ⁸⁷ The Human Rights Council’s resolution on the right to a clean, healthy and sustainable environment recognizes that it includes the right “to participate in cultural life, for present and future generations” and calls for the promotion of effective access to justice and remedies. ⁸⁸ SDG no. 16 concerning the promotion of peaceful and inclusive societies for sustainable development includes the promotion of the rule of law and equal access to justice for all at the national and international levels and ensures “responsive, inclusive, participatory and representative” decision making at every level. ⁸⁹ The 2021 Call to Action for Human Rights likewise reaffirms this commitment to effective participation and access to justice. ⁹⁰ The Universal Declaration on Cultural Diversity, adopted by UNESCO’s General Conference in 2001, promotes the interrelationship between cultural diversity, human rights, and sustainable development and explicitly references the World Heritage Convention. ⁹¹

These initiatives have informed the World Heritage Committee’s adoption of the WH-SDP in 2015 and is reflected in the language of the Nara Document on Authenticity, which was prepared in cooperation with the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) and the International Council on Monuments and Sites (ICOMOS) in 1994. ⁹² The key objective of the WH-SDP is to ensure that states parties “recognize” that World Heritage conservation strategies that promote sustainable development “embrace … the well-being of present and future generations” and are based on the “overarching” principles of human rights, equality, and sustainability over the long term. ⁹³ It provides that states parties to the World Heritage Convention should ensure that all World Heritage processes are “compatible with and supportive of human rights” and adopt a “rights-based approach” that “promotes” World Heritage properties as “exemplary places for the application of the highest standards for the respect and realization of human rights.” ⁹⁴ In addition, they should be developed with the “equitable participation of concerned people”; use the standards, safeguards, guidance tools, and operational mechanisms for nomination, assessment, management, evaluation, and reporting processes consistent with an “effective rights-based approach” of nominated and inscribed properties; and promote technical cooperation and capacity building to this end. ⁹⁵ By contrast, the Operational Guidelines “encourage” states parties to mainstream these “principles” (together with UNESCO’s Policy on Engaging with Indigenous Peoples and “related policies and documents, including the 2030 Agenda for Sustainable Development and international human rights standards”) in their programs and activities concerning the World Heritage Convention. ⁹⁶ The World Heritage Convention has no dispute resolution mechanism, but, in appropriate circumstances, there may be recourse to UNESCO’s human rights mechanisms, flagged earlier. This process is in contrast to other treaties in the field like the Convention on Biological Diversity; ⁹⁷ the grievance mechanisms developed by advisory bodies like the International Union for Conservation of Nature (IUCN); ⁹⁸ and human rights treaties like the ICESCR and regional human rights instruments. ⁹⁹

Despite these developments in international human rights law, and the explicit recognition of their application to the work of UNESCO and the World Heritage Convention, and the commitment of the organization to cooperate with UN human rights bodies, there is no effective oversight of compliance with human rights obligations related to World Heritage properties either by UNESCO or the World Heritage framework.

World Heritage properties and human rights violations

Serious violations of human rights obligations on or related to World Heritage properties have been acknowledged by international and regional courts, UN and regional human rights bodies, and the World Heritage Committee and its advisory bodies. Violations can be precipitated or exacerbated by World Heritage nomination and inscription. They encompass a range of often interrelated circumstances including, but not limited to, armed conflict, belligerent occupation, and securitization; eviction and forced displacement; development and extractive industries; and climate change. Each circumstance has led to the adoption of normative human rights instruments relevant to the operation of the World Heritage Convention. This list is not exclusive or exhaustive. Nor are violations confined to cultural human rights. Rather, they encompass the full range of human rights and fundamental freedoms including the rights to life, housing, and self-determination and development. ¹⁰⁰ It is important to recall that most of the states parties to the World Heritage Convention have human rights obligations in respect of human rights treaties to which they are states parties or which form part of their customary international law.

Armed conflict, belligerent occupation, and securitization

International courts like the International Court of Justice, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia and international and regional human rights bodies have found that serious violations of international human rights and international humanitarian law obligations have occurred on or related to World Heritage sites because of armed conflict and belligerent occupation for several decades. These include the Temple of Preah Vihear, ¹⁰¹ the old city of Jerusalem and its walls, ¹⁰² Timbuktu, ¹⁰³ and the old city of Dubrovnik. ¹⁰⁴ Related to this are human rights violations arising from the increasing securitization and militarization of territories (by state organs and private contractors, including so-called “eco-guards”) encompassing World Heritage sites – for example, Diyarbakir, ¹⁰⁵ the Mount Hamiguitan Range, ¹⁰⁶ Virunga National Park, ¹⁰⁷ and Ngorongoro Conservation Area. ¹⁰⁸ World Heritage properties are subject to the international humanitarian law and human rights norms defined as non-derogable even during armed conflict and belligerent occupation. International courts have repeatedly found that World Heritage inscription attracts international protection for cultural and religious sites. However, it is also evident that World Heritage nomination and listing has fueled armed conflict (for example, the Temple of Preah Vihear). ¹⁰⁹

The deliberate targeting for destruction and systematic looting of World Heritage properties by combatants has exacerbated recent armed conflicts and belligerent occupation (for example, in L’viv, Aleppo, Sana’a, Timbuktu, and Dubrovnik). Intentional destruction of World Heritage sites has been condemned repeatedly by the UN Security Council. It has called for cooperation with international criminal courts to hold perpetrators accountable. ¹¹⁰ Related to this development is the deliberate killing and forced disappearance of heritage workers and the associated extension of protections afforded to these human rights defenders. ¹¹¹ Under the SDGs, UNESCO has reported responsibility for a number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention, and torture of human rights advocates. ¹¹²

The destruction at Bamiyan in 2001 led to the adoption of the 2003 Declaration on Intentional Destruction of Cultural Heritage, which states 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.” ¹¹³ The UN special rapporteur on cultural rights has defined a human rights-based approach as requiring actors to “take into account the rights of individuals and communities in relation to such object or manifestation and, in particular, to connect cultural heritage with its source of production.” ¹¹⁴ This approach also informs reparations flowing from these violations of human rights and international humanitarian law obligations, with UN human rights bodies and the International Criminal Court stressing that cultural heritage and local communities must drive post-conflict reconstruction processes. ¹¹⁵

Eviction and forced displacement

The eviction and forced displacement of Indigenous peoples and other local populations is an ongoing characteristic of several World Heritage properties and is often fueled or exacerbated by armed conflict, development, tourism, and conservation. Related to these acts are increasing numbers of forced disappearances and extrajudicial killing including persons seeking accountability and reparations. ¹¹⁶ International tribunals, regional human rights courts, and UN human rights bodies have found that Indigenous peoples and local inhabitants have been forcibly removed from nature reserves and heritage sites including World Heritage properties in ongoing violation of international human rights norms (for example, in Serengeti National Park, ¹¹⁷ Central Suriname Nature Reserve, ¹¹⁸ Chitwan National Park, ¹¹⁹ and Kaeng Krachen National Park). ¹²⁰ State of conservation reporting has been implicated in promoting national initiatives that have involved the eviction of Indigenous peoples from their land (for example, in Salonga National Park ¹²¹ and Ngorongoro Conservation Area). ¹²²

The UNDRIP specifically affirms that Indigenous peoples and individuals have a right not to be subject to forced assimilation or destruction of their culture, and, to this end, states must provide an effective mechanism for prevention and redress of “any action which has the aim or effect of dispossessing them of their lands, territories, or resources” and “any form of forced population transfer which has the aim or effect of violating or undermining any of their rights.” ¹²³ The special rapporteur on the rights of Indigenous peoples has noted that, “for over a century, conservation was carried out with the aim of vacating protected areas of all human presence, leading to cultural destruction and large-scale displacement of indigenous peoples from their ancestral lands in the name of conservation.” ¹²⁴ She further has observed that when placed under control of governmental authorities these territories are exposed to “destructive settlement, extractive industries, illegal logging, agribusiness expansion, and large-scale infrastructure development.” ¹²⁵ In 2022, in response to his participation in meetings of the World Heritage Committee and the IUCN’s World Conservation Congress, the special rapporteur on the rights of Indigenous peoples focused his annual thematic study on the obligations of states and international organizations in respect of Indigenous peoples rights and protected areas. ¹²⁶

Building on existing human rights and international humanitarian law instruments, UN human rights bodies prepared the Committee on Economic, Social and Cultural Rights’s 1997 General Comment no. 7 on Forced Eviction, ¹²⁷ the 1998 Guiding Principles on Internal Displacement, ¹²⁸ and the 2007 Basic Principles and Guidelines on Development-Based Evictions and Displacement, ¹²⁹ in addition to regional initiatives like the African Union’s 2009 Convention on the Protection and Assistance of Internally Displaced Persons, ¹³⁰ which detail the obligations of international organizations, states, and non-state actors.

Development, extractive industries, and tourism

The adverse impact of development – in particular, in extractive industries, ¹³¹ logging, ¹³² damming, ¹³³ and tourism ¹³⁴ – on the conservation of World Heritage properties has been examined by the World Heritage Committee and the advisory bodies. However, these assessments and responses do not address human rights violations arising from these activities. International courts, regional human rights courts, and international human rights bodies have found serious human rights violations on World Heritage sites relating to extractive industries (for example, in Kakadu, ¹³⁵ the Great Barrier Reef, ¹³⁶ Laponia, ¹³⁷ and the Okavango Delta); ¹³⁸ logging (for example, in Białowieża Forest ¹³⁹ and Gunung Mulu National Park), ¹⁴⁰ damming (for example, in Selous Game Reserve, ¹⁴¹ and Rio Plátano Biosphere Reserve), ¹⁴² and tourism (for example, in Kahuzi-Biega National Park, ¹⁴³ the lake system in the Great Rift Valley, ¹⁴⁴ and the volcanoes of Kamchatka). ¹⁴⁵ These activities are a reminder that human rights violations encompass non-state actors, like transnational corporations, which are often the perpetrators of such violations. The UN Guiding Principles on Businesses and Human Rights reaffirm that states must ensure that entities operating or registered on their territory comply with human rights law, while corporations must respect applicable domestic laws including human rights law. ¹⁴⁶ Peak bodies in the mining ¹⁴⁷ and tourism sectors ¹⁴⁸ have issued guidelines on human rights and culture. The World Bank’s revised Environmental and Social Framework, with guidelines for development projects, references international human rights standards. ¹⁴⁹ These initiatives, together with the SDGs <no.> have precipitated and informed the design and application of human rights and cultural impact assessments in applications and the management of projects and sites. ¹⁵⁰ The IUCN has adopted an environmental and social framework with risk assessment addressing human rights and the cultural impact of its work generally. ¹⁵¹ By contrast, the decisions of the World Heritage Committee referencing the impact assessments of proposed developments on World Heritage properties focus on their effect on outstanding universal value.

Environmental degradation and climate change

The importance of international cooperation in addressing global issues concerning the environment have been defined in the Stockholm Declaration and the World Heritage Convention. ¹⁵² The Stockholm Declaration emphasizes the centrality of the environment to human rights and equality. ¹⁵³ The principles contained in this Declaration were reaffirmed and expanded upon with the Rio Declaration on the Environment and Development and the SDGs. ¹⁵⁴ It is recognized that the global nature of climate change can only be addressed through effective international cooperation and action at the international, national, and local levels. Climate change is having a negative effect on a significant proportion of World Heritage properties, including the Great Barrier Reef, ¹⁵⁵ Lake Turkana National Parks, ¹⁵⁶ and the Central Amazon Conservation Complex. ¹⁵⁷ The adverse impact of climate change on World Heritage sites is addressed by the Policy Document on the Impacts of Climate Change on World Heritage Properties, which was adopted by the General Assembly of States Parties in 2007 and which makes no reference to human rights. ¹⁵⁸ The updated Policy Document for Climate Action for World Heritage, adopted in 2021, likewise does not reference human rights. ¹⁵⁹

UN human rights bodies and regional human rights courts have recognized that climate change is adversely impacting human rights including on protected areas. ¹⁶⁰ The deliberate targeting of environmental human rights defenders, including those campaigning in respect of World Heritage sites, has been condemned by the Human Rights Council. The Human Rights Council has underscored the significance of good practice policies at the international and regional levels. ¹⁶¹ This latter issue must be placed within the broader concerns flagged by the Stockholm Declaration, which have been repeatedly reaffirmed and elaborated in the intervening years – that is, access to information, public participation, and access to justice in respect of environmental matters. ¹⁶² It is a requirement extrapolated in respect of women and girls by the Committee on the Elimination of Discrimination against Women ¹⁶³ and of Indigenous peoples by the UN special rapporteur. ¹⁶⁴

International responsibility for serious human rights violations

With the articulation of international human rights enjoyed by persons and groups on or near World Heritage properties becoming more detailed and pronounced in recent years, the enforcement of these norms by international, regional, and national courts and tribunals has led to a corresponding emphasis on enforcing international responsibility for their violation. Serious violations of international human rights and international humanitarian law arising from or related to the operation of the World Heritage Convention can potentially engage the international responsibility of international organizations like UNESCO, states, and non-state actors like corporations, non-governmental organizations, and individuals.

UNESCO, as an international organization, has a legal personality defined by its constitutive instrument, which is distinct from its member states. ¹⁶⁵ The promotion of human rights and fundamental freedoms is the purpose of the organization and its parent body, the UN. ¹⁶⁶ In addition, normative international instruments adopted since the UDHR have defined and elaborated upon international human rights law and the actions to be taken by the UN and its specialized agencies (including UNESCO). As explained above, UNESCO has transposed these actions into its own instruments and policies. The International Law Commission’s Articles on Responsibility of International Organizations stipulated that when an international organization commits a wrongful act, its responsibility is entailed. ¹⁶⁷ The International Court of Justice has stated that the question of immunity from legal proceedings that an international organization may enjoy is distinct from the issue of compensation for damages incurred as a result of acts by an international organization or its agents acting in their official capacity and that the organization may be required to bear responsibility for such damage. ¹⁶⁸ UNESCO provides support through the World Heritage Centre as the Secretariat and offers financial support through its regular budget, which is approved by the General Conference. If the conduct aids or assists violations of human rights and international humanitarian law, it can engage its international responsibility. ¹⁶⁹ Other international organizations like the ICCROM, the World Bank, and regional development banks, which similarly provide logistical and financial support for development projects on World Heritage properties that trigger or exacerbate human rights violations, may similarly share international responsibility.

National, regional, and international courts have held states responsible for violations of human rights and international humanitarian law obligations related to World Heritage properties (whether under treaty or customary international law) and where the breach of the obligation is attributable to that state. ¹⁷⁰ As noted above, the WH-SDP adopted by the General Assembly of States Parties and the Operational Guidelines approved by the World Heritage Committee confirm the commitment to “uphold, respect and contribute to the full range of international human rights standards.” ¹⁷¹ The Declaration Concerning the Intentional Destruction of Cultural Heritage also proscribes obligations of states in respect of state responsibility, individual criminal responsibility, and cooperation for the protection of cultural heritage including World Heritage sites in respect of intentional destruction. ¹⁷² The responsibility of states parties to the World Heritage Convention may be engaged where decisions by the Convention’s organs aid or assist serious violations of human rights and international humanitarian law obligations on or related to World Heritage properties. ¹⁷³

States have a duty to ensure that business enterprises on their territory, including World Heritage properties, do not engage in conduct that is in violation of their human rights and international humanitarian law obligations under treaty and customary international law. ¹⁷⁴ Corporations have limited legal personality in international law ¹⁷⁵ and must respect applicable human rights norms in their operations. ¹⁷⁶ Corporations have been held responsible for human rights violations including on World Heritage properties before arbitral tribunals established under international investment agreements. ¹⁷⁷ The IUCN and ICOMOS, as non-governmental organizations, however, also have an obligation to adhere to international human rights standards. ¹⁷⁸

Individuals can be held individually criminally responsible in respect of serious violations of human rights and international humanitarian law related to World Heritage properties before national courts and international criminal courts. ¹⁷⁹ The International Criminal Court has found an individual criminally responsible for war crimes in respect of destruction and damage perpetrated on a World Heritage inscribed property, and, at the time of writing, another person is being prosecuted for crimes against humanity in respect of such acts. ¹⁸⁰ The Office of the Prosecutor for the International Criminal Court in its current policy on cultural heritage elaborates on how acts against World Heritage properties are relevant in the prosecution of war crimes, crimes against humanity, and genocide under the Rome Statute. ¹⁸¹

International responsibility of an international organization or State for serious violations of human rights and international humanitarian law entails an obligation to revert to compliance with these obligations, ¹⁸² (including cessation of the internationally wrongful conduct, ¹⁸³ and commitment to non-repetition), ¹⁸⁴ and make reparations (restitution, ¹⁸⁵ compensation, ¹⁸⁶ satisfaction, ¹⁸⁷ and interest) to victims of the wrongful conduct. ¹⁸⁸ These obligations have been elaborated and applied in respect of serious violations of human rights and international humanitarian law included those related to World Heritage properties by regional human rights courts and international criminal tribunals. ¹⁸⁹ Similar obligations to cease the wrongful conduct and make reparations for the harm caused apply to non-state actors, including individuals. In formulating a reparations order against persons found individually criminal responsible, the International Criminal Court draws on the jurisprudence and principles and guidelines developed in international human rights law. ¹⁹⁰ The court in the first war crimes trial concerning damage to a World Heritage property made clear that, while the site was of universal importance to humanity, “addressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community as a whole.” ¹⁹¹

Conclusion

In the early years of its operation, UNESCO was at the forefront of human rights (particularly, with respect to cultural rights) law formulation and implementation. It championed the inclusion of a detailed formulation of the right to participate in cultural life, which made explicit reference to access to cultural heritage, during the drafting of the ICESCR. Its early initiative to formulate a procedure for the investigation of large-scale human rights violations and individual communications was one of the first, if not the first, in the UN system. The World Heritage Convention was similarly groundbreaking when adopted in 1972 and was inspired and informed by the Stockholm Declaration adopted in the same year. The Stockholm Declaration promoted the centrality of the environment for the effective enjoyment of human rights. Yet, over the intervening 50 years, serious human rights violations related to World Heritage properties reveal the shortcomings of UNESCO and the operation of the World Heritage Convention in fulfilling the organization’s purpose for which it was established as well as the oft-repeated commitment of states to a human rights-based approach to world heritage.

For UNESCO, the World Heritage Convention must be a multilateral instrument for the organization to fulfill its mandate “to further universal respect for justice, the rule of law and for the human rights and fundamental freedoms.” For states parties to the Convention, World Heritage properties are not tableau rasa, devoid of human rights obligations. The human rights and international humanitarian law obligations binding those states (whether under treaty or customary international law) apply to violations on their territory including World Heritage sites. The limitations of UNESCO’s and the World Heritage system’s reporting and human rights communication procedures have inhibited efforts to properly realize a human rights-based approach in implementing the Convention. For victims of human rights violations on or related to World Heritage properties, this has meant that victims of these violations must seek justice and relief before national and regional courts and international human rights bodies.

In the fiftieth year since the adoption of the World Heritage Convention and more than 75 years since the adoption of the UDHR, it is imperative to recall that these two treaties are not self-contained regimes but, rather, mutually reinforcing entities. To ensure the credibility of UNESCO and the World Heritage Convention, repeated affirmation of the commitment to human rights by the organization and states must be backed up by effective implementation of human rights obligations. The following measures must be included as a minimum. First, there must be a human rights impact assessment audit of all properties inscribed on the World Heritage List by nominated independent human rights experts (for example, the UN Office of the High Commissioner for Human Rights or regional human rights bodies), sanctioned by the General Assembly of States Parties to the World Heritage Convention. The process of an impact assessment and audit of the existing properties is not foreign to the World Heritage framework. Impact assessment in respect of outstanding universal value and auditing of existing World Heritage properties is already in place in relation to a review of the inscription criteria. A human rights impact assessment is not foreign to the conservation of world heritage sites; the WHC-SDP flags them, and advisory bodies implement economic and social impact assessments including human rights in respect of World Heritage. States are familiar with economic and social impact assessments in respect of development funding by the World Bank and other regional development banks. The proposed audit would require states parties to provide the human rights impact assessment for assessment by the nominated human rights body. The World Heritage Convention’s Operational Guidelines should be amended to install the nominated human rights body as a standing advisory body for human rights compliance. The Operational Guidelines should be amended to require nomination for inscription on the World Heritage List to be accompanied by a satisfactory human rights impact assessment conducted by the nominated human rights body. ¹⁹² The General Assembly of States Parties and UNESCO’s General Conference should be provided with the results of the audit and assessments, with this information being made publicly accessible on the Internet.

Second, the Operational Guidelines should be amended to ensure that periodic reporting requirements by states parties under to the World Heritage Convention to the General Assembly and the UNESCO General Conference cover international human rights and international humanitarian violations on properties on the World Heritage List, the World Heritage in Danger List, and tentative lists in their jurisdiction. The WHC-SDP calls for “reporting processes compatible with an effective rights-based approach for both existing and potential new properties.” ¹⁹³ Yet the existing reporting regime and its oversight remains weak despite the text of the Convention and its current policy. Given the near universal uptake of the World Heritage Convention, the states parties to the Convention are familiar with the Universal Periodic Review (UPR), which is a periodic review of the human rights record of all UN member states by the Human Rights Council.

A similar reporting regime should be instituted within UNESCO through the existing review of the Convention’s reporting regime by a strengthened and more transparent CR Committee of the Executive Board. States’ reports covering the same human rights obligations as the UPR should be submitted and reviewed at regular intervals and be made publicly available on the Internet. The CR Committee through the Secretariat must also enable receipt and public circulation of reports by non-state actors like UN human rights bodies, non-governmental organizations, and representative organizations. The CR Committee should be empowered to issue reports with recommendations and decide on measures to be taken where there is a persistent lack of cooperation by a state party. Until these or similar changes are implemented by UNESCO, the Human Rights Council, and non-governmental organizations participating in the UPR, should ensure that human rights issues related World Heritage properties are addressed by this process. ¹⁹⁴

Third, UNESCO, the organs of the World Heritage Convention, and states must adhere to UN-mandated standards in respect of access to justice. ¹⁹⁵ The CR Committee should be reformed to bring its mode of operation in line with UN human rights bodies and regional human rights courts and the Paris Principles. UNESCO’s General Conference and Executive Board and the General Assembly of States Parties to the World Heritage Convention must ensure that states parties are in compliance with judgments and orders of international, regional, and national courts in respect of human rights violations and with recommendations of UN and regional human rights bodies. The inscription of a property on the World Heritage List should be deferred until the state party is compliant. ¹⁹⁶ UNESCO and its member states, and World Heritage bodies and states parties, must work proactively and constructively with UN, regional, and national human rights bodies and international and regional courts to ensure compliance with international human rights and international humanitarian law obligations on or related to World Heritage properties. States parties must enable country visits by UN and regional special rapporteurs and working groups investigating possible human rights violations related to World Heritage properties. The World Heritage Committee and the General Assembly must enable written and oral communications by UN and regional special rapporteurs and working groups before adopting decisions. ¹⁹⁷ The Operational Guidelines and the Declaration of Principles to Promote International Solidarity and Cooperation to Preserve World Heritage should be amended accordingly. ¹⁹⁸

On the seventy-fifth anniversary of the adoption of the UN Charter and the establishment of the UN, the secretary-general has entitled his call to action for human rights as its “highest aspiration” at a time when “disregard for human rights is widespread [and] we see egregious and systematic human rights violations” and “rampant impunity.” ¹⁹⁹ The actions to address this challenge include “making a concerted effort” to “ensure predictable and consistent UN responses thereto, including accountability mechanisms.” ²⁰⁰ UNESCO, as the UN’s specialist culture agency, and its flagship convention on culture, the World Heritage Convention, must ensure that they too fulfill this responsibility.