Introduction
States have the sovereign right to pursue their social and economic development,Footnote 1 which frequently necessitates processes such as urbanization, industrialization, infrastructure development, and tourism promotion. When these endeavors are coupled with insufficient policies and inadequate planning, they often become primary contributors to the destruction or damage to the authenticity and integrity of states’ own “cultural heritage.”Footnote 2
In light of this, one might wonder whether and to what extent, under international law, the right of states to pursue their economic interests must be harmonized with the need to protect, preserve, and transmit such heritage to future generations. The 1972 World Heritage Convention (WHC)Footnote 3 provides for the safeguarding of state parties’ cultural (and natural) heritage in the face of such developmental activities.Footnote 4 Yet, as will be illustrated, despite its (almost) universal participation, its scope of application presents actual and potential limitations. At the same time, it remains unclear whether a customary international regime, universally applicable and thus binding on all states within the international community, exists for safeguarding cultural heritage “in peacetime,”Footnote 5 when much of the destruction and damage occurs “in the name of economic development and modernization.”Footnote 6 More specifically, this contribution aims to explore whether international practice indicates the existence of a customary prohibition or clear limitations for states regarding the destruction or damage to the authenticity and integrity of their cultural heritage in the pursuit of social and economic development.
From a methodological standpoint, it is essential to make three preliminary remarks.
First, the analysis will follow a “two-element approach” to determine the existence and content of customary law. Such an approach requires that, to determine the existence and content of customary law, “it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris).”Footnote 7
Second, the analysis will focus on the protection of “cultural heritage” as defined under the WHC.Footnote 8 This focus is essential to move beyond the implicit relativism surrounding what may or should be considered part of a state’s “cultural heritage,” while also refining the scope of the investigation to certain types of properties.Footnote 9 Furthermore, as will be discussed, the WHC definition of cultural heritage is limited to that which possesses “outstanding universal value.”Footnote 10 Consequently, the practice examined here refers to or involves cultural properties that can be considered of exceptional importance, and the protection of which should be of international concern and in the interest of future generations.
Third, the analysis will focus on customary law, without considering the different source of general principles of law. This is noteworthy, as it has been argued that some general principles, including self-determination, elementary considerations of humanity, and the common heritage of humankind, might orientate states’ management of their cultural heritage in peacetime.Footnote 11
As for sustainable development, the relevance of cultural heritage in achieving this goal is widely recognized.Footnote 12 However, its normative status remains debated, with some scholars viewing it more as a political ideal than a legal principle.Footnote 13 Moreover, while the concept of sustainable development may be a catalyst for further development of international norms, according to the “two elements approach,” no customary prohibition or clear limits for states to destroy or damage their cultural heritage can be established by mere deduction from such a concept alone.Footnote 14 This does not mean, however, that sustainable development cannot find reflection in customary international law.Footnote 15 Indeed, this assumption is implicit in the present discussion, as the existence of a customary obligation for states to preserve their cultural heritage, affecting the exercise of their right to pursue social and economic development, might be considered as amounting to a sustainable use of that heritage. The question is precisely whether such obligation exists and, if so, what is its content?
This contribution is structured into four parts. The first explores whether universal participation in the WHC and its subsequent practice indicate the existence of a corresponding customary regime. In the second and third parts, other elements of practice will be examined to assess the existence of a customary prohibition or clear limits for states to destroy or damage their cultural heritage for reasons of social and economic development. Finally, some conclusions will be drawn on customary international law on the protection of cultural heritage in peacetime and the ambiguous relationship that such regime has developed over time with the WHC.
The WHC and its impact on the development of a corresponding customary regime
The WHC and Baxter’s Paradox
The WHC establishes obligations for state parties to protect the cultural (and natural) heritage of “outstanding universal value” (OUV) located within their territory. Specifically, it requires state parties to recognize “the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations”Footnote 16 of such heritage and to “endeavour, in so far as possible” to take “effective and active measures” to this end.Footnote 17 Additionally, through the adoption of the WHC, state parties express their intention to establish “a system of international cooperation and assistance designed to support … their efforts to conserve and identify that heritage.”Footnote 18
The WHC has achieved (almost) universal participation (196 state parties). Moreover, although it was not the first “international charter” to acknowledge the need to protect cultural heritage (also)Footnote 19 in peacetime,Footnote 20 nor the first legally binding international instrument to do so,Footnote 21 the WHC stands out as the first to recognize a connection between culture and nature. It intends to establish a unified framework for their preservation and conservation and introduces the notion of “world heritage” to identify cultural (and natural) properties possessing OUV, thereby qualifying them for special protection.Footnote 22
Given the WHC’s universal participation and innovative content at the time of its adoption, it prompts the question of its impact on the development of customary international law concerning the protection of cultural heritage.
Treaties “that have obtained near universal acceptance may be seen as particularly indicative in determining whether particular rules set forth therein reflect customary law.”Footnote 23 However, this assessment must consider the nature of the relationship between conventional and customary sources. As exemplified by the International Court of Justice (ICJ), a treaty can serve various functions: recognition of an existing custom, crystallization of the practice and opinio juris necessary for a rule to become customary, and contribution to the formation of new customary law.Footnote 24
This last scenario “is a process that is not lightly to be regarded as having occurred,”Footnote 25 as the practice of the state parties to a treaty is, among themselves, primarily motivated by their obligations under that treaty. Consequently, it holds less significance in determining the existence or evolution of a customary rule.Footnote 26 This phenomenon, known as “Baxter’s Paradox,” can be summed up as follows: “as the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty.”Footnote 27
Some authors have argued that Baxter’s Paradox does not contain any inherent contradiction. In fact, they contend, with varying lines of reasoning, that the more states express their consent to be bound by a treaty, the easier it becomes to demonstrate that the rules within that treaty after it entered into force, have acquired customary status.Footnote 28 Regardless of the validity of Baxter’s Paradox, the system of protecting cultural heritage under the WHC raises distinct questions regarding the potential inference of the existence of a customary regime of general application. These will be addressed in the following sections.
The concept of OUV, the Lists system, and Article 12 of the WHC
The WHC links the definition of cultural heritage to that possessing OUV. In other words, for the purposes of the WHC, state parties’ cultural heritage is (only) that possessing OUV. The OGs clarify that OUV “means cultural … significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.”Footnote 29
The World Heritage Committee (WH Committee), with the support of advisory bodies, is responsible for assessing whether a submitted cultural property possesses OUV,Footnote 30 following its nomination by state parties.Footnote 31 If the assessment is affirmative and with the consent of the state party,Footnote 32 the property is included in the World Heritage List (WHL).Footnote 33 The WH Committee also has the authority to place the property already on the WHL on the List of World Heritage in Danger (IDL), including when threatened by economic activities.Footnote 34 Exceptionally, the WH Committee may also delete the property from the WHL.Footnote 35
Article 12 of the WHC specifies that “the fact that a property … has not been included in either of the[se] two lists … 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,” that is, (primarily)Footnote 36 for the purposes of implementing the obligations for state parties to protect their heritage.Footnote 37 The scope of this provision is controversial.
At first glance, Article 12 establishes that state parties’ cultural (and natural) heritage is to be considered protected according to the WHC even if not inscribed in the Lists. On the other hand, a review of the concrete application of WHC suggests that, as the General Assembly of the state parties to the WHC recently emphasized,Footnote 38 only properties included in one of the Lists would unequivocally enjoy OUV for the WHC purposes.Footnote 39 The WH Committee seldom refers to Article 12 or state parties’ heritage not listed in the WHL, IDL, or the “Tentative Lists,” that is, those inventories of cultural heritage sites that state parties intend to consider for nomination to the WHL.Footnote 40
The WH Committee consists of (twenty-one) “individuals who … do not act in their personal capacity, but as representatives of the states by which they have been appointed.”Footnote 41 The WH Committee “can be considered as representing the common interest of state parties.”Footnote 42 Decisions by the WH Committee are made by a qualified majority of two-thirds of its members present and voting.Footnote 43 As a result, there is a degree of alignment between the opinio of the WH Committee, albeit expressed “collectively,” and that of the state parties regarding the correct application/interpretation of Article 12 of the WHC.Footnote 44
Regarding international judicial practice, in the Pyramids case,Footnote 45 the arbitral tribunal interpreted WHC obligations as applicable solely to listed cultural property.Footnote 46 By contrast, in the Glamis Gold case, another arbitral tribunal mentioned Article 12 to support its conclusion that a series of administrative measures taken by the state of California and at the federal level to preserve the sacred lands of the Quechan Indian tribe did not violate the rights of a Canadian mining company.Footnote 47 This circumstance is indeed “rather extraordinary, as cultural heritage experts have repeatedly stressed that Article 12 of the WHC is an often-neglected provision.”Footnote 48
Interim conclusions
In light of the above, it is difficult to infer the existence of a customary regime on the protection of cultural heritage from the near-universal participation in the WHC and its subsequent practice.
Baxter’s Paradox complicates the task of discerning the true opinio juris of state parties regarding the safeguarding of such heritage. Moreover, even if we accept that Baxter’s Paradox is not genuinely paradoxical, a narrow interpretation of Article 12 of the WHC, as evidenced by WHC practice, suggests that, indeed, state parties consider only the properties inscribed in the Lists system to be deserving of special protection under international law.Footnote 49 This observation relates to the practical relevance of discussing the existence of a customary regime for the protection of cultural heritage in peacetime, given the almost universal participation in the WHC. It should be stressed that the WHC framework seeks to reconcile state parties’ “cultural sovereignty”Footnote 50 and the fact that “parts of the cultural and natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.”Footnote 51 As mentioned, this framework allows state parties to decide which parts of their heritage to submit for nomination and, conversely, which remain outside the Lists system. Practice shows that this often occurs when state parties embark on economic initiatives that could endanger the authenticity/integrity of their cultural properties.
For instance, in 2015 India withdrew the nomination of the “Delhi Imperial Capital Cities” likely because inscribing the site on the WHL would have posed obstacles to Delhi’s new infrastructure and development plans.Footnote 52 Similarly, China’s reluctance to nominate the ancient city of Kashgar for the WHL despite its clear historical and cultural significance might be attributed to its urban development plans in the area, which would likely conflict with obligations under the WHC to preserve the site’s authenticity and integrity.Footnote 53 Additionally, in 2020, the Chadian government requested the suspension of an application to the WHL for the Lake Chad Cultural Landscape in order to explore oil and mining opportunities in the region. In a letter addressed to UNESCO, authorities sought to “postpone the process” in order to “allow … to redefine and redesign the map to avoid any interference in the future.”Footnote 54
In light of this practice, the existence of a customary regime prohibiting or limiting states from damaging their cultural properties of OUV when pursuing social and economic development is worth exploring, as it would offer an additional and more comprehensive layer of legal protection beyond what the actual scope of the WHC currently provides. It is also important to recall that state parties may denounce the WHC without stringent limitationsFootnote 55 and that attributing the status of customary law to certain norms of international law may entail a superior standing in the hierarchy of the domestic sources of law.Footnote 56
In order to investigate the existence of such a customary regime, the following sections expand the analysis beyond mere participation in the WHC and its subsequent practice, to examine other elements of international practice.
Treaty practice, resolutions of international organizations, and states’ domestic legislation
Legal instruments considered in this section
The legal instruments considered in this section, while covering the types of cultural properties listed under Article 1 of the WHC, with one exception,Footnote 57 do not explicitly refer to the concept of OUV, to which the notion of “cultural heritage,” at least for the purposes of the present analysis, is intrinsically linked. In this regard, it may be argued that an examination of these instruments is not entirely pertinent, as they are not suitable to represent international practice concerning the protection of such heritage. However, these instruments frequently employ the notion of “heritage,”Footnote 58 which, by definition, signifies something whose value implies that it should be preserved and transmitted to future generations.Footnote 59 Moreover, they underscore the exceptional significance of this heritage by describing the cultural properties they encompass as being of “conspicuous interest,”Footnote 60 “recognized” or “special value,”Footnote 61 a “source of collective memory,”Footnote 62 and so forth.
Therefore, these legal instruments must be considered relevant when investigating the existence and content of a customary regime that prohibits or limits states from destroying or damaging the integrity or authenticity of cultural heritage of “particular value or significance” for social and economic development purposes. This heritage can be here understood as referring to cultural heritage that possesses “a higher threshold” of importance, meaning significance both nationally and internationally,Footnote 63 and which a fortiori includes the (arguably narrower) subset category of cultural heritage of OUV. In this respect, it is worth recalling that the OUV of properties not inscribed on the WHL remains inherent to the property itself and does not depend on formal recognition by the WH Committee.Footnote 64
Treaty practice
The fact that a rule is set forth in a number of treaties “may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law.”Footnote 65 The caution in evaluating this type of practice depends on the fact that treaties are often used by states to integrate/create exceptions to customary law. Thus, the existence of various international agreements establishing a given rule is hardly sufficient to show that there has been a change in customary law, as “it could equally show the contrary.”Footnote 66
Assessing treaty practice presents an additional challenge when it comes to treaties related to the protection of cultural heritage from economic activities, as these treaties often involve a relatively small number of states from specific geographical regions. These include parties to the Council of Europe (CoE)Footnote 67 and to the Organization of American States.Footnote 68 This circumstance means that such practice does not appear to be “general”; that is, sufficiently “extensive,”Footnote 69 and “uniform and widespread”Footnote 70 to substantiate the material element of a customary rule. Moreover, only a few treaties within the CoE explicitly articulate an obligation for state parties to “ensure that their economic policies respect the integrity of cultural heritage without compromising its inherent values.”Footnote 71
Other treaties, both bilateral and multilateral, provide special protection to the state parties’ cultural heritage vis-à-vis the carrying out of economic activities. However, these provisions must be applied and interpreted within specialized areas of international law, such as international investment law.Footnote 72 Consequently, they appear inconclusive for the purpose of evaluating the existence and content of customary law outside these specific normative contexts.
Resolutions of international organisations
Resolutions of international organisations, regardless of their legally binding nature, can serve as evidence to ascertain the existence and content of a rule of customary law or contribute to its development.Footnote 73 However, it is important to exercise “all due caution”Footnote 74 when attempting to infer the development and crystallization of a customary rule based on these instruments.
Over time, UNESCO,Footnote 75 the CoEFootnote 76 and ASEANFootnote 77 have adopted non-binding resolutions underscoring the importance of cultural heritage and calling for its protection in peacetime. Some of them also stressed the need to adopt a balanced approach between social and economic development and the protection of such heritage.Footnote 78 However, the language employed is typically cautious,Footnote 79 and such resolutions merely suggest that the pursuit of these potentially conflicting goals should be conducted “in liaison and on an equal footing.”Footnote 80 The 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works even acknowledges that “overriding economic or social conditions” may require that “cultural property be transferred, abandoned or destroyed” after rescue operations, including “careful study of the cultural property involved and the preparations of detailed records,”Footnote 81 have been completed.
Concerning the influence of UNESCO resolutions on the development of customary law, it is essential to highlight the 2003 Declaration concerning the Intentional Destruction of Cultural Heritage. Footnote 82 The Declaration was unanimously adopted by the UNESCO General Conference following the destruction of the Buddhas of Bamiyan in March 2001 by the Taliban.Footnote 83 It proclaims the commitment of the international community to fight against the intentional destruction of “cultural heritage,”Footnote 84 “including cultural heritage linked to a natural site,”Footnote 85 and that states should take all appropriate measures to conduct their peacetime activities “in such a manner as to protect cultural heritage.”Footnote 86
Some authors argued that the 2003 Declaration was “a relevant indicator of the sense of obligation that wilful destruction of cultural heritage … in peacetime, may entail state responsibility,”Footnote 87 while others cautioned that, due to its hortatory language, the Declaration delivers “modest progress.”Footnote 88 It has also been contended that none of the condemnations of the Taliban’s actions “unambiguously characterized it as a violation of a legal obligation, let alone a customary one,” and that, by adopting the Declaration, the General Conference did not suggest that states owe customary peacetime obligations in respect of cultural heritage situated on their territory.Footnote 89
In the context of the 2003 Declaration, “intentional destruction” denotes “an act intended to destroy in whole or in part cultural heritage … in a manner which constitutes … an unjustifiable offence to the principles of humanity and dictates of public conscience.”Footnote 90 Consequently, although the 2003 Declaration condemns the destruction of cultural heritage “in any form,”Footnote 91 even admitting that it played a role in shaping customary protection for cultural heritage in peacetime,Footnote 92 it remains challenging to argue that such a contribution would extend to the destruction or damage to the authenticity/integrity of cultural heritage for reasons of social and economic development.Footnote 93
Finally, in an unprecedented move, the European Union, through the European Parliament, adopted a resolution condemning China’s urban development plans affecting the ancient city of Kashgar.Footnote 94 However, the resolution does not characterize China’s plans or inertia as a violation of international law. Instead, it urges Chinese authorities to consider the possibility of nominating the ancient city for inclusion in the WHL.Footnote 95 Such language could, paradoxically, be interpreted as implying that it is only within the framework of the WHC and, more specifically, of the Lists system, that, human rights concerns aside, China’s urban policies affecting its cultural heritage might be deemed unlawful under international law.
Domestic legislation as an element of state practice
Domestic legislation, in the broadest sense of the term,Footnote 96 “is an important aspect of state practice.”Footnote 97
The overwhelming majority of states have enacted legislation promoting the preservation and protection of their cultural heritage in peacetime.Footnote 98 However, domestic legislation usually grants discretion to state authorities regarding the use and disposition of such heritage. It may also include exceptions to its preservation, explicitly authorizing the demolition or alteration of a site upon special permission.Footnote 99
This aspect is supported by instances in which state parties to the WHC clashed with the WH Committee over concerns that their economic activities could harm the authenticity/integrity of sites included in the Lists system.Footnote 100 In such cases, the states involved were acting in accordance with their domestic legislation. Furthermore, even if one were to consider that this practice is “counterbalanced” by the typically stringent stance of the WH Committee in urging state parties to uphold their WHC obligations, states’ practice outside the Lists system confirms that domestic legislation may prioritize social and economic development over the protection of cultural heritage.Footnote 101
Interim conclusions
International scholars hold divergent views on whether a combination of treaty practice (also including the WHC), resolutions of international organisations, and domestic legislation provide support for the existence of a customary prohibition or clear limitations on states regarding the destruction or damage to the authenticity/integrity of their cultural heritage in peacetime.Footnote 102
Following the international community’s response to the destruction of the Buddhas of Bamiyan, which culminated in the adoption of the 2003 Declaration,Footnote 103 it seems plausible to argue that customary law prohibits the most extreme acts of violence committed by states against their own cultural heritage, especially when possessing OUV, and when such acts cannot be justified on any reasonable grounds.
The existence of a comprehensive customary framework concerning the destruction or damage of cultural heritage in peacetime is more difficult to defend. Specifically concerning economic activities, only a few treaties adopted within the CoE explicitly require state parties to align their economic policies with the preservation of the integrity of their cultural heritage of particular value or significance.Footnote 104 Resolutions of international organisations and domestic legislations consistently underscore the importance of preserving and safeguarding such heritage. Nonetheless, they could hardly be viewed as proving the existence of a customary prohibition or clear constraints on states. In fact, they occasionally provide exceptions and may authorize the demolition or alteration of a site under specific conditions. At most, this practice suggests that states are expected to follow certain procedural steps in good faith before carrying out activities that could impact their cultural heritage of particular value or significance.
States’ conduct in relation to cases of destruction or damage to cultural heritage for social and economic development
Preliminary remarks
The state practice examined here encompasses acts of the executive branch, including governmental decisions and statements, diplomatic acts, as well as qualified inaction, which refers to a deliberate abstention by states from (re)acting before the other states’ destruction or damage to their own cultural properties of exceptional significance and of common importance for the international community and future generations (that is, of OUV).
As mentioned, economic activity stands out as one of the primary causes of worldwide destruction and damage to such heritage. While most of these incidents go underreported abroad, some have gained international attention, making them known or knowable by other states and international institutions. This section will briefly outline some of these cases and then analyze states’ practice in response.
Examples of state practice
In the late 1960s,Footnote 105 communist dictator Nicolae Ceausescu initiated a policy of land reform, known as “systematization.” The project resulted in the destruction of important cultural districts in many cities and towns, including Bucharest, where huge swaths of neoclassical and art nouveau groups of buildings, as well as historical churches, were razed to the ground.Footnote 106 Some states protested Ceausescu’s systematization,Footnote 107 which only ceased with the dictator’s downfall in 1989. Other examples of communist iconoclasm include Brezhnev’s personal order in 1968 to destroy the iconic Königsberg Castle, a thirteenth-century fortress and former seat of the Teutonic Order,Footnote 108 the Red Guards’ acts of violence against traditional temples and shrines in China and Tibet during the Cultural Revolution in the mid-1960s, and the Khmer Rouge’s destruction of most of Cambodia’s Buddhist heritage between 1975 and 1979.Footnote 109
In 2002, Saudi authorities announced plans to demolish the Ajyad Fortress, an eighteenth-century Ottoman citadel in Mecca, to make way for a five-star residential complex. Turkey protested and sought UNESCO’s intervention, but Saudi Arabia claimed it was an internal matter and proceeded with the destruction. No other state showed an interest in the case.Footnote 110 In 2014, a new real estate project in the area led to the erasure of more historical buildings and sites dating back to the eighth century.Footnote 111
In 2003, the Myanmar military junta ordered the construction of a 60-meter observation tower in the ancient city of Bagan, renowned for its Buddhist architecture. Despite concerns raised by UNESCO, the tower was inaugurated in 2005, followed by the construction of other facilities, including a golf club.Footnote 112 Apart from Japan, no other state protested.Footnote 113
Balancing the protection of cultural heritage with social and economic development often involves large dam construction projects.
In the 1950s, Egypt began the construction of the Aswan Dam on the Nile River to boost agricultural and energy production. The project posed a significant threat to numerous monumental archaeological sites, including the Abu Simbel Temples and the Philae Temple complex.Footnote 114 Egypt sought assistance from the international community and relocated these temples to higher ground. While this endeavor is often regarded as a success story, the construction of the Aswan Dam also resulted in the flooding of many Nubian archaeological sites of exceptional value situated along the Nile River.Footnote 115
In the 1990s, Turkey initiated the construction of the Ilisu Dam on the Tigris River. This project garnered increasing attention, particularly when it became clear that its implementation would have resulted in the submergence of the ancient city of Hasankeyf, an “open-air museum” housing archaeological ruins and religious monuments.Footnote 116 Turkey pledged to document the site and committed to relocating all movable monuments to a cultural park.Footnote 117 Despite the clear threat to Turkey’s cultural heritage, the international community’s response has been largely absent. Syria and Iraq protested against the project, primarily due to concerns about a significant reduction in their water supply.Footnote 118 The Ilisu Dam became operational in 2018, resulting in the submergence of Hasankeyf.Footnote 119
Another example is the construction of the Three Gorges Dam on the Yangtze River in China. Completed in 2012, it serves various purposes, including electricity generation and the promotion of economic development in the region. Chinese authorities conducted archaeological surveys and relocated cultural relics and artifacts to higher ground to mitigate the project’s impact.Footnote 120 Nevertheless, the construction of the dam resulted in the submergence of hundreds of archaeological sites and significantly altered the cultural landscape in the area.Footnote 121 No state formally raised concerns over the project, despite its impact on cultural heritage.
In other cases involving the construction of dams,Footnote 122 despite efforts being made to catalog artifacts and relocate historical monuments and buildings, the overall impact on states’ cultural heritage has been destructive. No state formally protested against these projects.
A frequent occurrence, lastly, is that of states granting authorization to private companies to carry out activities that have a detrimental impact on cultural heritage.Footnote 123 Recent examples include diverse instances such as a copper mining project threatening several Buddhist monastic complexes in Mes Aynak, Afghanistan,Footnote 124 and the approval granted by Irish authorities for a motorway route through the Tara-Skryne Valley, one of Ireland’s most iconic locations.Footnote 125 No state or international institution has, as yet, raised objections to these projects.
Interim conclusions
The practice outlined in the previous section suggests that the international community only occasionally responds to states’ economic projects that negatively impact their own cultural heritage.
These rare reactions warrant further examination. Upon closer inspection, they do not appear to be primarily motivated by the belief that the territorial state has violated an erga omnes customary rule,Footnote 126 but rather by reasons tangentially related to heritage protection.
For instance, West Germany and Hungary objected to Ceausescu’s “systemization” plan due to concerns about the welfare of the German and Hungarian minorities residing in Transylvania.Footnote 127 Austria, Canada, and France were also worried about potential violations of human rights within ethnic communities.Footnote 128 Only the UK seemed to be motivated by genuine concerns for cultural property.Footnote 129
In other examples, Turkey protested against Saudi Arabia’s destruction of the Ajyad Fortress primarily because it viewed it as an attack on its historical legacy in the region. Japan criticized Myanmar’s mismanagement of the ancient city of Bagan mainly due to the importance of Buddhism in Japanese culture and society. Syria and Iraq opposed the construction of the Ilisu Dam because the project would substantially reduce their water reserves.
Regarding UNESCO, unless its intervention was explicitly requested, it issued recommendations or expressed criticism concerning cultural properties listed in the Tentative Lists, such as the Bagan site (1995-2019). Such a reaction is understandable, as the inclusion in the Tentative Lists “would ipso facto produce the effect of putting that property under the attention of the international community.”Footnote 130 This circumstance, however, renders this practice less relevant to the reconstruction of a general regime on the protection of cultural heritage.
Conversely, the widespread inaction of the international community in the face of destruction or damage to the states’ own cultural heritage for social and economic development reasons is notable, particularly when compared to the backlash following the destruction of the Buddhas of Bamiyan.
Of course, not all silences produce acquiescence and thus can be regarded as a “negative practice” manifesting tacit acceptance or tolerance of the other states’ conduct.Footnote 131 It could also be contended that, at least in some of the examples provided, the cultural heritage affected, despite its particular value or significance, was not clearly perceived as possessing OUV by the international community. Nonetheless, states’ consistent reluctance to challenge the lawfulness of intentional destruction or damage carried out by other states against their own cultural heritage for reasons of social and economic development appears more readily explained by their desire to avoid the political and economic costs associated with voicing concerns about matters that do not directly affect them.Footnote 132 States may also perceive it as mutually beneficial to refrain from scrutinizing such actions, as they can expect other states to do likewise. All in all, the state practice analyzed here points to a lack of general prohibition or customary limits on such conduct in international law.
Concluding remarks
Customary international law pertaining to the protection of cultural (and natural) heritage in peacetime has undergone notable advancements over the past decades. These developments are primarily attributed to the growing acknowledgment of the multifaceted nature of such notions across various domains of international law, encompassing human rights and international environmental law.Footnote 133
However, customary law concerning the peacetime protection of cultural heritage as such remains underdeveloped. Apart from Baxter’s Paradox, the peculiarities inherent to the system of protection of state parties’ heritage under the WHC, together with its concrete application, complicate the possibility of asserting the fact that the WHC has achieved universal participation and provides evidence of the existence of a corresponding customary framework.
Moreover, with the possible exception of extreme and unjustified acts of violence against the cultural heritage of OUV, an examination of international practice, encompassing treaty practice, resolutions from international organizations, domestic legislations, and states’ mutual interactions in relation to actual incidents, does not provide a compelling basis for positing the existence of customary rules that prohibit or establish clear constraints on states when it comes to altering or disposing of their cultural heritage in the pursuit of social and economic development, including when such heritage can be considered of OUV. It is submitted that this state of affairs can perhaps be understood by considering that the “mantra of territorial sovereignty and domestic jurisdiction”Footnote 134 remains strong and permeates customary international law on the protection of cultural heritage in peacetime, especially when it comes to the sphere of states’ economic interests.Footnote 135
At most, based on the language of certain resolutions, domestic legislation, and states’ conduct in relation to the construction of large dams, one might argue for the existence of (legitimate) expectations on the part of the international community that the territorial state will undertake all necessary measures to mitigate the repercussions of its activities, while also documenting and preserving its cultural heritage as far as possible.
In addition, an ambiguous relationship between the WHC and customary international law comes to light. As illustrated, recent practice seems driven by the belief that only properties listed in the Lists system enjoy significant protection from potential destruction or damage resulting from economic activities.Footnote 136 By contrast, outside this system, international law would not impose any specific prohibitions or limits to these activities, either under customary international law or the WHC. According to this interpretation, two legal frameworks coexist, whereby only properties on the Lists enjoy significant protection from social and economic activities under international law.
A similar conviction may also underlie cases of deletion from the WHL. In fact, in the cases of the Arabian Oryx Sanctuary and the Liverpool Maritime Mercantile City, the deletion can be attributed to state parties prioritizing social and economic activities over the preservation of their cultural and natural heritage of OUVFootnote 137 – as if there were no clear limitations on such activities outside the framework of the Lists system.
This interpretation is incompatible with Article 12 of the WHC, as well as with the very essence of the WHC, which emphasizes that “deterioration or disappearance of any item of the cultural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.”Footnote 138 However, it is important to stress that “the ‘living substance’ of a legal instrument is sometimes significantly different from its written content” and that, in the case of the WHC, “it is not a mystery that, even with the presence of Article 12, the Convention is concretely and effectively implemented only with regard to the properties inscribed on the World Heritage List and/or on the List of World Heritage in Danger, and effective protection is granted almost exclusively to such properties.”Footnote 139
Future developments could strengthen or change this trend. In this regard, broadening the analysis to natural heritage could further clarify the relationship between heritage protection and states’ right to pursue their social and economic development, both in the context of customary law and the WHC.
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