Coral reefs as world heritage

7  Coral reefs as world

1 Introduction

On 17 December 1975, the Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC) entered into force.1 The text, which had been adopted just over three years previously at the General Assembly of UNESCO, and shortly after the United Nations Conference on the Human Environment held in Stockholm, was the result of campaigns by UNESCO and IUCN.

In 1960, the construction of the Aswan High Dam threatened a number of important Egyptian monuments including the temple of Ramses II at Abu Simbel. International campaigns organised by, amongst others, UNESCO, raised enough money to support the now famous relocation and conservation plans that the Egyptian government completed for the monuments.2 In the light of this and other campaigns to save cultural properties, UNESCO took the view that the mobilisation of international assistance would benefit from a formalised, rather than ad hoc, procedure.3

Concurrently, IUCN was developing the idea that there existed throughout the world natural and cultural areas of such value, that these sites should be placed in trust for all humankind since they were a part of the heritage of everyone, not only individual nations.4 Whilst the work of UNESCO had already started to formulate a convention on cultural heritage alone, this parallel advocacy by IUCN for a joint cultural and natural heritage agreement began to have an impact.5 Ultimately this resulted in a compromise text that became the WHC, with its dual focus on both cultural and natural heritage.6

So as to act as a formalised system for the mobilisation of international responsibility and support, an identification system was introduced under the adopted treaty to determine which sites should benefit. The system introduced centres around the World Heritage List of sites that have been independently assessed as worthy of inscription. These are the properties more familiarly known around the globe as World Heritage Sites. Decisions on which sites are to be inscribed on that list are made by the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (the ‘Committee’) at their annual sessions.7

The extension of heritage to include sites of natural significance means that the WHC stands as one of the centrepiece wildlife and habitat treaties within the international environmental law project.8 As will become clear, this significance is matched by the commitments and institutional powers the contracting parties are willing to accept in return for the advantages they can garner through the branding of properties as World Heritage Sites.9 This chapter will therefore explore whether the WHC should be regarded as an equally significant agreement from the more focused perspective of the conservation of coral reef ecosystems. This question requires analysis of the convention’s operation and the way in which it is being used (if at all) to conserve these habitats. Whilst this exercise will therefore focus primarily on the protection of natural heritage, where pertinent, reference to the handling of cultural heritage under the convention will also be made.

2 An overview of the WHC’s provisions and structure

Before embarking upon an investigation into the treatment of coral reefs, some form of introduction to the treaty is useful for those less familiar with its operation. This requires consideration of the convention’s remit, the legal commitments of the parties, the World Heritage lists, the funding available to contracting parties, the agreement’s administration and the strategic directions in which the convention hopes to move in the immediate future.

2.1 Defining natural heritage

Whilst the WHC applies to both cultural and natural heritage, its jurisdiction is intentionally limited as exemplified in Article 2, which defines natural heritage as:

a) Natural features consisting of physical and biological formations of ‘outstanding universal value’ scientifically or aesthetically;

b) The habitat (which may be geophysical or physiographical) of threatened species of plants and animals that are of ‘outstanding universal value’ in terms of science, and conservation; and

c) Natural sites or areas of ‘outstanding universal value’ from the point of view of science, conservation or natural beauty.

The authority for identifying and delineating the sites that meet this definition is left to the contracting party and is limited to areas situated within that state’s territory.10

The definition of natural heritage may be considered as twofold: (a) that a property or site meets one of the typologies of natural heritage; and (b) the property exhibits particular significance; being of ‘outstanding universal value’.11 Thus, the idea of ‘outstanding universal value’ is of crucial importance to the jurisdictional limits of the treaty. However, this phrase and the typologies described in (a) were not explored in any greater detail in the WHC text. Instead, this has been provided by the Operational Guidelines for the Implementation of the World Heritage Convention (the ‘Guidelines’).12 These ever-evolving Guidelines are chiefly intended to inform contracting parties about the principles that guide the way the regime operates. They are not legally binding, although their practical importance for implementation should not be underestimated.13

With respect to the typologies of natural heritage, the Guidelines list four:

1  Outstanding examples of the earth’s historical and ongoing development in geological terms, such as glaciated or volcanic landscapes, as well as the record of life on earth, such as landscapes rich in fossil deposits;

2  Outstanding examples of significant ongoing ecological and biological processes which support the development of ecosystems;

3  Areas of superlative natural phenomena or exceptional natural beauty; and

4  The most important and significant habitat for in situ conservation of biodiversity and threatened species of outstanding universal value to science or conservation.14

Of course, it is possible for an area to exhibit a number of these, and in the case of coral reefs it is quite likely that an area might fit in all of the last three. Most importantly, though, it can be seen that the drafting of Article 2 is broad enough to include coral reefs, provided individual sites satisfy the requirements of outstanding universal value, and are recognised as such by the contracting party concerned.

With respect to outstanding universal value, the Guidelines define this as ‘natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.’15 This underlines one of the most significant, albeit intentional, limitations of the WHC. The exclusivity of the habitats or areas to be included, limited to the ‘best of the best’. Indeed, through the outstanding universal value test, most natural areas are excluded from the treaty’s remit. As the Guidelines confirm:

The Convention is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint. It is not to be assumed that a property of national and/or regional importance will automatically be inscribed on the World Heritage List.16

Consequently, the WHC could not on its own be relied upon by the international community to promote the conservation of all coral reefs; irrespective of any particular conservation strategy adopted by the agreement. This is a fundamental limitation in comparison to other MEAs that are considered in this book. This must be continually born in mind, even though later discussions will commend the convention for the advantages it offers those reef sites that have met these standards.

2.2 Obligations of the contracting parties

Once a property has been identified by an endowed state as meeting the definition of cultural or natural heritage, obligations attach to the site. These obligations operate irrespective of, and independently from, any possible future inscription on the World Heritage List; states need not seek inscription of a heritage site but they must still meet the WHC obligations for that property.17 Article 4 describes the obligation owed by the endowed state to its heritage sites:

Each State Party to this Convention recognises that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to the State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

This obligation is further elaborated in Article 5 whereby states must ‘in so far as possible, and as appropriate’ endeavour to, inter alia, adopt a policy for giving natural heritage a function in the life of the community and planning programmes, and set up or ensure that there exists a responsible agency with appropriate staff and means to protect, conserve and present the natural heritage.

Article 6 of the WHC is also relevant as it relates to the obligations owed by all contracting parties to the heritage sites situated outside their territory. Thus, Article 6(3) obliges state parties to refrain from measures that might directly or indirectly damage the cultural and natural heritage situated in the territory of another participating state. In addition, Article 6(2) obliges state parties to assist other state parties with sites inscribed in the World Heritage List and the List of World Heritage in Danger.18

Unfortunately, these provisions lead to indeterminacy with the potential to affect the conservation of coral reef properties. The first concerns definitively identifying the properties to which these obligations attach. This is significant since it determines the extent of coral reefs that can benefit from the obligations. The second issue concerns the meaning of ‘protection’ and ‘conservation’.

2.2.1 Identifying the relevant properties

This might initially appear a non-concern. With the exception of Article 6(2), all of the obligations under the convention are expressed to be applicable to properties forming part of the world heritage (i.e. as defined in Article 2), irrespective of listing.19 Complications arise, nevertheless, when it is observed that the sites referred to in Article 2 are a far larger group than those inscribed on the widely publicised World Heritage List. To explain this it is important to first recall that it is for the endowed state to identify sites that it regards as falling within the definition of natural heritage. As Simon Lyster observes, the convention:

does not give a Party (or the World Heritage Committee) the right to say to another Party ‘X site on your territory is obviously part of the cultural or natural heritage as defined in Articles 1 and 2, and you are therefore obliged by Articles 4 and 5 to protect it even though it is not on the World Heritage List’ . . . Therefore, unless a Party decides that a site on its territory is part of the cultural or natural heritage as defined by Article 1 and 2, Articles 4 and 5 will not apply to the site.20

Thereafter having identified the properties falling within Article 2, they will not instantly or necessarily move onto the list. The contracting party is simply not obliged to nominate all of the sites for listing. Nevertheless, the obligations as referred to above (with the exception of Article 6(2)) still attach to all identified properties.21

The central question then becomes, what evidence is sufficient to establish that a state has made such a decision and identified a natural property as falling within Article 2? The answer to this, which may vary from state to state, will be important for a range of stakeholders, such as non-governmental organisations, activists, the administrative bodies under the convention, and other contracting parties keen to see that all states are meeting their obligations. Further, in federal systems, competence to deal with environmental matters may be divided between the central and regional governments according to whether a site falls under international law or only national law. There is then a need to identify Article 2 natural properties in order to determine the responsibilities of the two levels of government. Finally, other contracting state parties must be able to identify the properties that they are obliged to refrain from deliberately damaging in accordance with Article 6(3). Beyond the World Heritage List itself,22 what are the likely sources of such evidence?

The most obvious evidence would be tentative lists.23 These, after all, are the inventories of properties that, in the contracting parties’ opinions, form the natural heritage as defined in the WHC, and that they hope will be included in the World Heritage List. However, there are two problems with tentative lists as evidence. First, not all state parties have submitted these lists.24 While capacity to produce them may be a large factor in this state of affairs, if tentative lists are also the evidentiary basis for attaching obligations to a property (and the benefits of World Heritage listing may not ultimately accrue), then this could discourage states from producing one. The second problem lies in resolving the position of a property found on an existing list, but whose nomination to the World Heritage List has been unsuccessful. WHC Article 12 states:

The fact that a property belonging to the cultural or natural heritage has not been included in either [the World Heritage List or the Danger 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.

Thus, a site could still be regarded by the unsuccessful nominating state as having outstanding universal value for one of those other purposes; most notably for the definition of natural heritage. In such circumstances the obligations under Articles 4, 5 and 6 would continue to apply.25 Yet despite this, there remains no clear procedure to determine if a state does indeed continue to regard the unlisted property as being part of the natural heritage. This lack of determinacy in relation to the fundamental issue of which sites are caught by Article 4 seems an unnecessary shortcoming. A form of official pronouncement from the state party involved seems a simple solution.

Beyond tentative lists, it is conceivable that documents or records produced for internal circulation at the national level might also be clear evidence. For example, state parties are supposed to produce national inventories of properties regarded as reflecting their cultural and natural heritage as a precursor to the creation of tentative lists. Additionally, announcements regarding the status of important sites may be made by governments. Again, given the potential for these lists and announcements to identify the properties to which the obligations policed by the Committee under the WHC attach, clear procedures need to be in place for these to be made available to all relevant and concerned parties.

Shortcomings within the current structure of the regime hinder attempts to list with certainty coral reef ecosystems that benefit from the undertakings of contracting parties to the WHC. However, this indeterminacy relating to the obligations is not isolated. Further problems surround the notions of ‘protection’ and ‘conservation’ of natural heritage.

2.2.2 Protection and conservation

As Catherine Redgwell observes, the WHC expressly provides for the global and intergenerational interests of humankind in the world’s heritage.26 This can be seen in the obligation to transmit heritage to future generations; an obligation that at its most basic demands the maintenance of the outstanding universal value that set the property apart. Unfortunately, however, the content of the obligations to protect and conserve that heritage are less certain, and the WHC does not provide further definition. This shortcoming is compounded by both ‘protection’ and ‘conservation’ as terms being used freely in convention documents, along with ‘preservation’. However, whilst these phrases may not in the past have been used as terms of art, particularly during the first 20 years of the WHC, it has to be noted that:

. . . in the development of nature protection law, each of these concepts come [sic] to have its own meaning and that meaning can be significant for the legal scope of the provisions of the international documents in which these concepts are to be found.27

Thus, these terms do have particular associations. Protection suggests a duty to prevent a specific threat that may cause damage, although it does not cover the future use of the subject once the threat is removed.28 Protection has also been used to denote a concern for the welfare of animals, thus carrying more ethical connotations.29 Preservation and conservation, conversely, are concerned with the future management of a subject. Preservation has been defined as setting a subject aside and guarding it so as to maintain its natural characteristics in a manner unaffected by human activity.30 This may therefore imply that commercial utilisation is not permitted under an obligation to preserve a natural area or object.31 On the other hand, conservation has been linked to sustainable use of a resource so that it may be enjoyed by present generations while maintaining its potential to meet the needs of future generations.32 Therefore, commercial utilisation is, in theory, permitted so long as it is sustainable. Of course in order to maintain a resource’s potential for future generations, short-term protective measures, or longer-term preservationist management levels may be needed. Thus, conservation can include protection and preservation.33

WHC practice seems to suggest commercial sustainable utilisation is allowed. Jim Thorsell has noted that, ‘listing does not preclude extractive use’,34 whilst such extraction is permitted, for example, within the Great Barrier Reef World Heritage Site in zones allowing sport fishing. However, it may be that the standard of management is a bespoke form of sustainable development for the WHC in that the sites must be managed in a way that also maintains their heritage values. In 2005, such a stance received general support when the Guidelines stated:

World Heritage Properties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable. The State Party and partners must ensure that such sustainable use does not adversely impact the outstanding universal value, integrity and/or authenticity of the property.35

The listing process of Gough Island is consistent with these developments. In relation to this island, the UK government was called upon to operate the local fishery in a sustainable manner and so as to respect the island’s world heritage values. This suggested that yields from the nearby fisheries needed to be calculated on the additional basis of maintaining world heritage values of the entire island (e.g. to support the seabird populations) and not just maintaining the marine resources themselves.36

Despite this, the current imprecise use of these terms under the WHC without due consideration of the implications of such use is problematic. As noted by Christina Cameron, ‘If the international community is to monitor World Heritage Sites, it must have access to universally agreed-upon standards of conservation – or, more accurately, standards for the acceptable limits of change – against which to monitor.’37

Formulating and disseminating clearer guidelines on the acceptable limits of change would put the Committee in a more legitimate position to hold national governments accountable for their obligations. This would then reinforce the monitoring efforts of the Committee mentioned later in this chapter. Unfortunately only recently has it even been suggested that such guidance should be produced for the WHC.38

2.3 The World Heritage List

Article 11 of the WHC provides for the creation of a World Heritage List to be maintained by the Committee. Whilst it was noted above that a property can amount to heritage, and therefore be subject to the obligations under Article 4 without needing to be inscribed on this List, in practice few states adopt this approach. The mechanism for inscribing properties should be viewed in three stages.

First, state parties must identify sites they feel fall within the Article 1 and 2 definitions.39 Thereafter, ‘Tentative Lists’ of sites that a state would like to see included in the World Heritage List are to be created and submitted to the Committee.40 The state can then elect to begin a nomination process for inscription on the World Heritage List by collecting and submitting all the requisite documentation for any site it wishes to be considered by the Committee in a given year. Thus, the contracting parties control the early stages of the listing process.41

After the nomination process is initiated, however, the treaty introduces a mechanism that emphasises the executive authority of the Committee over the World Heritage List. The Committee therefore has control over: (1) initial admittance to the inventory; (2) officially declaring that an area of world heritage is in danger; and (3) the deletion of a site from the World Heritage List.

2.3.1 Initial inscription

The WHC provides that it is for the Committee to ‘establish, keep up to date and publish’ the World Heritage List.42 Consequently, it is the Committee that must first agree to any new inscriptions.43 Nominated sites are only inscribed if the Committee regards them as possessing outstanding universal value (comprised of significance, authenticity and/or integrity) and due protection by adequate site management.44 Initial assessments on this are prepared by IUCN for natural heritage nominees and the International Council on Monuments and Sites (ICOMOS) for cultural heritage.45 These assessments are compiled into reports for the Committee to consider and include a recommendation to inscribe, reject or refer/defer a nomination pending further work by the electing state.46 The Committee then decides, by a two-thirds majority of the members present and voting, whether the property should be inscribed on the list, rejected or referred/deferred back to the nominating state.47 Only if the site is accepted for inscription can a state call that property a World Heritage Site and reap the benefits of the brand.48

2.3.2 Sites in danger

Article 11(4) states that the Committee:

. . . shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of ‘List of World Heritage in Danger,’ a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested . . . The list may only include such property . . . as is threatened by serious and specific dangers . . .

The dangers faced by natural properties may be either ‘ascertained’ (that is ‘specific and proven imminent danger’) or ‘potential’, meaning there are ‘major threats which could have deleterious effects on its inherent characteristics’.49 Further, the danger must be one that can be corrected by human action.50

Inclusion of a property on the List of World Heritage in Danger (the ‘Danger List’) is a formal recognition of a state of affairs that calls for safeguarding measures, and also is a way to secure resources.51 Sites in danger enjoy a degree of priority when it comes to allocating funds under the WHC.52 Listing is not necessarily a sanction.

In practice, the Danger List has been received in differing ways by contracting parties. Some willingly seek listing in order to obtain such assistance and priority attention, whilst others are less receptive to the list possibly because they perceive listing as humiliating.53 Given the latter factor, the question of whether a site may be listed against the wishes of a state party has been debated since the preservation of honour may be at the expense of mobilising international assistance to the detriment of the site concerned. Whilst the matter has not been conclusively determined, advice on the matter was provided by the UNESCO legal advisor to the 26th Ordinary Session of the World Heritage Committee in 2002. That opinion suggested that the interpretation that accords best with the convention’s text is that, in the ordinary course of affairs, the fact that a request for assistance must have been made before listing, suggests that inclusion should be initiated by the contracting party making a voluntary decision. However, in the case of urgent need, a property can be included on a decision of the World Heritage Committee alone. This is because the concluding sentence of Article 11(4) states that, ‘The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicise such entry immediately.’54

Such listings have been made in the past. For example, in 1992, and following unanswered calls for information from the Indian Government, the Manas Nature Reserve was included in the Danger List without the state party’s consent or request for assistance.55 However, the interpretation of these provisions by the state parties has proved too contentious to date to allow a common position to be recognised. Nor have guidelines and practice developed sufficiently to aid interpretation of when an ‘urgent need’ will be said to arise.

2.3.3 Deleting World Heritage Sites

In the same way that the World Heritage Committee independently controls which sites should go on the list, it is for the same Committee to determine when a property should also be removed.56 Deletion is a very rare event. It has been threatened on a few occasions,57 whilst just two sites have been deleted to date. The first was a natural heritage site; the Arabian Oryx Sanctuary, located in Oman. In this instance, the sanctuary’s area had been reduced by 90 per cent to allow for petroleum extraction, thereby threatening its integrity.58 Further, the population of the Arabian oryx was in serious decline due to the decreased range, low number of breeding females, unchecked poaching and competition with domestic livestock for grazing.59 The second deletion was the Dresden and this Elbe Valley cultural heritage site in Germany in June 2009. This step was a response to the construction of a four-lane road bridge in the heart of the property over the River Elbe – called the Waldschlösschenbrücke.60 Both instances occurred in the last four years.

Deletion is permitted in two situations, namely:

1  where the property has deteriorated to the extent that it has lost those characteristics that merited its inclusion in the first place; or

2  where the intrinsic qualities were already threatened by man at the time of listing and where corrective measures outlined by the proposing state at the time of listing have not been taken within the proposed time.61

The first of these is in practice the most commonly cited for justifying actual or threatened deletion of a World Heritage Property,62 and then predominantly because the site being scrutinised has lost (or is in danger of losing) its outstanding universal value.63 Such a decision to delete must be made by a two-thirds majority of Committee members present and voting.64 There is no need for the consent of the state party affected, nor that the site should have been first inscribed on the Danger List.65 Whilst the most obvious example of the latter is the Arabian Oryx Sanctuary,66 many of the recent sites that have been considered for removal were at the time on the Danger List.67

The power of the Committee to delete properties leads to a variety of negative consequences, ranging from denial of current and possibly future benefits relating to the World Heritage brand, as well as amounting to strong evidence of a breach of the previously described legal obligation in Article 4 to transmit heritage to future generations.68

2.3.4 The WHC and MPAs as the dominant conservation strategy

The central role of the lists in the operation of the WHC leads to the dominance of enclave strategies under the regime. Indeed, UNEP recognises that MPAs are a part of the WHC’s approach to the conservation of coral reef ecosystems.69 How-ever, the promotion of such enclave strategies is not so obvious from the drafting of the agreement; there is no specific obligation or duty to promote such approaches to conservation in the convention’s text. This contrasts with other MEAs like the Ramsar Convention or CBD. Nevertheless, protected area strategies are an inherent part of the convention’s structure; further promoted through the conditions for inscription of a site onto the World Heritage List.

It was mentioned before that for a natural property to merit inscription on the list an adequate system of protection and management must be in place. The Guidelines stress that delineation of boundaries is an essential requirement for providing such adequate management and protection70 and that these boundaries may coincide with existing or proposed nationally protected areas.71 Two consequences flow from this.

First, the contracting parties have responded in different ways to the nomination process and the drawing of boundaries. As Simon Lyster notes, some have chosen to pursue a policy of nominating sites that are already managed within national, and/or international, protected areas; others nominate sites that are not so protected, with the creation or extension of existing protected areas being promised post-inscription.72 The former policy appears to dominate amongst the coral reef properties that have been inscribed on the World Heritage List, although in a few instances, such as Aldabra Atoll in the Seychelles and Sian Ka’an in Mexico, the national protected areas were only created in the year preceding nomination. It is possible this step was taken to strengthen the properties’ nomination chances. Nevertheless, like the Ramsar Convention, the WHC may be of limited help in increasing the number of MPAs for coral reefs except in a minority of cases. The real value of the agreement might therefore similarly lie in promoting better management and tackling the problem of ‘paper parks’.

Second, the drawing of boundaries, particularly in defining the property under consideration during the nomination process and which will ultimately govern the area inscribed, is itself a mechanism for guaranteeing the creation of a protected area. As was argued in the previous chapter on the Ramsar Convention, an MPA is simply a geographically defined area of the sea and/or shoreline that is designated or regulated and managed to achieve specific conservation objectives. Since contracting parties must define boundaries to the properties they nominate, this establishes an area in relation to which a state party must act consistently with their WHC obligations. These obligations, in order to be met, will require implementation at the national level through special measures particular to the World Heritage Site. The end result will inevitably be a protected area in accordance with the definition.

To place the matter in context, of the 1 per cent of the oceans contained within MPAs, 20.9 per cent of this enclosed area falls under the World Heritage List.73 This figure, however, is skewed by the Great Barrier Reef heritage site; if excluded, then just 3 per cent is recognised as World Heritage.74 Around 10 per cent of the area contained in enclaves around the world – both terrestrial and marine – is estimated to be World Heritage.75 Such a proportion probably reflects the exclusivity of World Heritage Sites. Nevertheless, the WHC’s focus on protected areas may be welcomed given the important role played by MPAs in the conservation of coral reefs.

2.4 The World Heritage Fund

The WHC provides for multilateral funding distributed from the World Heritage Fund.76 Lyster has highlighted the existence of this fund as one of the WHC’s key features.77 It is constituted from money collected through compulsory and voluntary contributions from the state parties, supplemented by gifts from other states,78 private parties or UNEP bodies, and cash from fund-raising activities.79 The contributions of the contracting parties are compulsory under Article 16(1) except where a party declares at the time of ratification, accession or acceptance, that it shall not be bound by that obligation.80 However, where such a declaration has been made, the relevant state party is still expected to make voluntary contributions equivalent to those the state would have been obligated to make had no declaration been made.81 In practice, equal pressure is brought to bear on states that are late making their payments, whether voluntary or obligatory.82 The total income generated according to this method is around US$4 million per year.83

The purpose of the World Heritage Fund is to support applications made by state parties for assistance under Article 13(1). Applications are submitted to the Committee and may be made with respect to listed sites, or to those sites that will potentially be included in either the World Heritage List or the Danger List.84 The assistance granted may support preparatory measures (such as preparing tentative lists), training, technical help or emergency action.85 For example, at the 2007 General Session of the Committee, US$59,600 was allocated to India for a regional training workshop on the conservation and management of Central Asian and Mogul architecture.86

Later in this chapter, examples of the World Heritage Fund supporting coral reefs will be given. For now it is simply worth noting that such access to assistance represents a significant incentive for developing states (in whose territories coral reefs are mostly found) to participate in the WHC and seek inscription of properties in the World Heritage List. Assistance they receive is likely to be greater in value than the contribution they are expected to make to the fund.87 In turn, developed states, which bear the main burden of sustaining the fund, are assured that the distribution of support is conducted in an independent and transparent manner by the elected Committee.

2.5 Administrative arrangements: the World Heritage Committee

2.5.1 Executive powers and effective compliance

The Committee is perhaps the key component in the WHC regime. It stands in an atypical position when compared to institutional arrangements under other MEAs. Much of the coordination and significant administration of other MEAs is conducted through COPs. Such COPs may have authority to approve work programmes, monitor implementation, and issue recommendations or resolutions. Power under these conventions therefore lies with all of the contracting parties acting in plenary.

On the other hand, under the WHC, the Committee (comprised of only 21 members)88 possesses executive power. Under the Convention, COPs do still occur (every two years during UNESCO General Conferences) but these are separate and principally concerned with setting the level of contributions to the fund, and electing new members to vacant seats on the Committee.89 This leaves the Committee with the majority of the responsibility for operating the Convention.90 The legal advisor to UNESCO recognised the distinctiveness of this delegation of power in 2000 when he advised that the World Heritage Convention is different from many other international conventions in that all the substantive powers are designated to the Committee and not to the General Assembly.91

This independence generates interesting possibilities for the capacity of the WHC to pull states towards compliance with its obligations. The Committee has a significant impact upon the interests of states in a situation where the latter ultimately have no control over their own treatment. Thus the Committee has power over initial access to benefits, the award of grants from the fund, and the power to remove access to benefits altogether. This has led to the WHC being able to set up a system for drawing states into compliance by encouraging either a real or perceived association between cooperation, performance of obligations, and furthering one’s own national interests. Such forces can then be harnessed when the Committee acts in other areas of competence, for example the production of the Guidelines and reactive monitoring. This makes effective action by state parties to protect and conserve areas of natural heritage more likely; thereby overcoming issues with the weak drafting of the Article 4 obligations.92

2.5.2 Committee membership

The substance and degree of delegated power to an executive body is, indeed, in contrast to other MEAs where significant powers reside with all contracting parties operating in plenary.93 This division of power suggests that securing a position on the Committee would be particularly advantageous. However, contrary to how Committee members conducted themselves in the early years, advocating for the inscription of your own national properties on to the World Heritage List, or for your own assistance requests, is now condemned as inappropriate conduct.94

Other concerns, nevertheless, have arisen relating to the constitution of the Committee and the consequences flowing from the range of states that have enjoyed terms of office. In 2000, figures prepared by Belgium indicated that 95 contracting parties had never been represented on the Committee, while ten parties had been elected more than three times.95 Further, those states that had not been on the Committee had few, if any, sites on the World Heritage List, while the opposite was true for those who had enjoyed multiple terms of office.96 Belgium seemed to suggest there was a correlation.97

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