The World Heritage Convention’s human rights deficit

Unlike some of the other cultural conventions adopted under the auspices of UNESCO, such as the 2003 Convention for the Safeguarding of Intangible Cultural Heritage,Footnote ²⁴ the World Heritage Convention does not contain any references to human rights or international human rights instruments, nor can any such references be found in the travaux préparatoires of the Convention.Footnote ²⁵ The Convention also does not mention the people and communities living in or around World Heritage sites, aside from a provision according to which states parties “shall endeavor … to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community” (Article 5(a)). This disregard for human rights during the elaboration of the Convention – which is surprising considering UNESCO’s purpose according to its ConstitutionFootnote ²⁶ – has had a profound and lasting impact. It has shaped the discourses and practice of the World Heritage Committee, its advisory bodies, and its Secretariat (the UNESCO World Heritage Centre) for decades and continues to be reflected in the implementation of the Convention at all levels.

During the first three decades following the World Heritage Committee’s inaugural session in 1977, human rights did not play any role in the discussions and considerations of the World Heritage Committee. No references to human rights were included in the Operational Guidelines for the Implementation of the World Heritage Convention,Footnote ²⁷ and none of the committee’s decisions mentioned human rights. The advisory bodies and the World Heritage Centre only referred to human rights in isolated cases in their advice provided to the committee,Footnote ²⁸ partly because they feared that it “could trigger a negative reaction and complete rejection of the issues by some Committee members.”Footnote ²⁹

With few exceptions, little attention was paid during this period to the concerns, needs, and priorities of Indigenous peoples affected by World Heritage sites and their participation in World Heritage processes and the management and governance of sites. References to Indigenous peoples were completely absent from the Operational Guidelines. Local communities were for the first time mentioned in the guidelines in 1994, when a sentence was included stating that “[p]articipation of local people in the nomination process [of World Heritage sites] is essential to make them feel a shared responsibility with the State Party in the maintenance of the site,” and another sentence was added saying that nominations of sites falling into the category of “cultural landscapes” should be prepared “in collaboration with and the full approval of local communities.”Footnote ³⁰ A number of additional references to local communities were added to the Operational Guidelines in 2005 – most notably, a provision “encouraging” states parties to “ensure the participation of a wide variety of stakeholders, including site managers, local and regional governments, local communities, non-governmental organizations (NGOs) and other interested parties and partners in the identification, nomination and protection of World Heritage properties.”Footnote ³¹ However, none of these provisions mentioned rights, and none of them created procedural obligations, meaning that their implementation was left entirely to the discretion of the states parties.

In July 2007, the World Heritage Committee, at the initiative of New Zealand, adopted a new Strategic Objective: “To enhance the role of communities in the implementation of the World Heritage Convention,” in recognition of the “critical importance of involving indigenous, traditional and local communities in the implementation of the Convention.”Footnote ³² Together with the UNDRIP, which was adopted a few weeks later, this fifth Strategic Objective provided an important impetus for increased attention on human rights issues in the context of the World Heritage Convention, although it would take many years for the World Heritage Committee to include references to human rights and Indigenous peoples into the Operational Guidelines and commit, at least on paper, to a human rights-based approach to World Heritage conservation.

The nature-culture divide in the World Heritage Convention

The World Heritage Convention is remarkable in that it establishes a common regime for the protection of cultural and natural heritage and is widely celebrated for its “unprecedented recognition of the close link between culture and nature.”Footnote ³³ In fact, the World Heritage Centre considers this the most significant feature of the Convention: “The most significant feature of the 1972 World Heritage Convention is that it links together in a single document the concepts of nature conservation and the preservation of cultural properties. The Convention recognizes the way in which people interact with nature, and the fundamental need to preserve the balance between the two.”Footnote ³⁴ These ideas are also reflected in the official emblem of the Convention, adopted by the World Heritage Committee in 1978, which symbolizes the interdependence of cultural and natural heritage and is supposed to convey “the essential objectives of the Convention.”Footnote ³⁵

However, the experiences of many Indigenous peoples with World Heritage sites established in their territories stand in sharp contrast to these ideas and objectives and call into question the ways in which the World Heritage Convention is being implemented. Despite its recognition and celebration of the interdependence of cultural and natural heritage, the World Heritage Committee maintains a differentiation between “cultural” and “natural” World Heritage sites that is highly problematic where Indigenous peoples’ territories and heritage are concerned. An overwhelming majority of World Heritage sites in Indigenous peoples’ territories are designated as “natural sites,” without any recognition of associated Indigenous heritage values in the justification for inscription (statement of outstanding universal value [OUV]) and in disregard of Indigenous peoples’ holistic view of their heritage.Footnote ³⁶ The former chairperson of the UNPFII, Myrna Cunningham, has noted:

The underlying reason for the World Heritage Committee’s differentiation between cultural and natural World Heritage sites lies in the fact that the Convention establishes a rigid distinction and artificial division between cultural heritage and natural heritage by defining them separately, in Articles 1 and 2 respectively.Footnote ³⁸ In accordance with Article 11.2 of the Convention, the World Heritage List is comprised of “properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established.” One of the first tasks completed by the World Heritage Committee, at its first session in 1977, was the adoption of two separate sets of criteria for the determination of OUV: six criteria related to cultural heritage (i–vi) and four related to natural heritage (i–iv).Footnote ³⁹ Depending on the criteria under which a site is inscribed on the World Heritage List, it is classified as a cultural or natural World Heritage site.

Although there is a possibility for sites to be listed as “mixed” cultural and natural heritage sites, this can only happen if they satisfy both cultural and natural criteria of OUV in the assessment of the World Heritage Committee and if they are nominated as mixed sites by the states parties in whose territory they are situated to begin with.Footnote ⁴⁰ However, there are significant practical and financial implications that may discourage states from nominating sites as mixed sites. In particular, states often prefer to nominate nature-protected areas as natural rather than mixed sites because mixed nominations are considered too complex.Footnote ⁴¹ Nominating a site as a mixed site essentially involves preparing two nominations (one for cultural criteria and one for natural criteria), which are evaluated separately by the committee’s advisory bodies (International Council on Monuments and Sites [ICOMOS] and the International Union for the Conservation of Nature [IUCN] respectively) and which can be accepted or rejected by the committee independently from each other. The number of mixed sites on the World Heritage List is therefore exceedingly small – as of 2022, only 39 out of 1,154 World Heritage sites were listed as mixed sites.Footnote ⁴²

There have been various attempts by the World Heritage Committee to bridge the divide between nature and culture and facilitate the recognition of nature-culture interlinkages in the OUV of World Heritage sites. Most significantly, in 1977, when the committee adopted the initial criteria for the determination of OUV, it included references to “man’s [sic] interaction with his natural environment” and to “exceptional combinations of natural and cultural elements” in the inscription criteria for natural World Heritage sites.Footnote ⁴³ Then, in 1992, the committee made some modifications to the cultural criteria to accommodate the listing of “cultural landscapes.”Footnote ⁴⁴ It also adopted guidelines distinguishing between three categories of cultural landscapes: designed, organically evolved, and associative cultural landscapes. Inscription of the latter on the World Heritage List is “justifiable by virtue of the powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence, which may be insignificant or even absent.”Footnote ⁴⁵ The inclusion of the category of associative cultural landscapes was a key step toward the recognition of intangible values in the context of the Convention. It has facilitated a better recognition of the cultural and spiritual values that Indigenous peoples attach to their lands and territories in several World Heritage sites, such as Tongariro National Park in New Zealand, Uluru-Kata Tjuta National Park in Australia, or, more recently, Pimachiowin Aki in Canada.

The introduction of the cultural landscapes concept had some serious drawbacks, however. Ironically, it has actually deepened the nature-culture divide in the implementation of the World Heritage Convention as the committee simultaneously deleted the references to “man’s interaction with his natural environment” and “exceptional combinations of natural and cultural elements” from the natural criteria, based on the consideration that these phrases were inconsistent with the legal definition of natural heritage in Article 2 of the Convention.Footnote ⁴⁶ These deletions have made it impossible to appropriately acknowledge Indigenous peoples’ relationship with the land in the OUV of natural World Heritage sites. Robert Layton and Sarah Titchen remarked in 1995:

Problematic application of the concept of “outstanding universal value”

The principal purpose of the World Heritage Convention is the identification and long-term protection of cultural and natural heritage sites of OUV. A main problem for Indigenous peoples is the fact that the Convention has come to be interpreted and applied in ways that often make it difficult or impossible for Indigenous peoples’ cultural heritage and values to be recognized as part of a site’s OUV. Under the current regulations, Indigenous peoples’ cultural values, including interconnections between nature and culture, only become part of the justification for inscription when they are assessed to be of OUV in their own right, which is not a realistic possibility in the context of many sites. While it is possible for Indigenous peoples’ relationship with their lands and territories, including spiritual associations, to be recognized as having OUV, the committee requires such relationships or associations to be “unique” or “exceptional,” a standard that is difficult to meet in many cases.Footnote ⁴⁸ The committee also maintains a standard of “authenticity” for cultural heritage sites, which is applied in ways that preclude World Heritage recognition of Indigenous peoples’ cultural heritage in many places.Footnote ⁴⁹ When they are not seen as “exceptional” or “unique” by conservation agencies, ICOMOS, and/or the committee, or not “intact” or “authentic” enough, Indigenous cultural values are disregarded when the OUV of World Heritage sites is established. A 2011 joint submission of Indigenous organizations to the UNPFII stated: “We are concerned that the concepts of ‘outstanding universal value,’ ‘integrity’ and ‘authenticity’ are interpreted and applied in ways that are disrespectful of Indigenous peoples and their cultures, inconsiderate of their circumstances and needs, preclude cultural adaptations and changes, and serve to undermine their human rights.”Footnote ⁵⁰

This lack of respect for Indigenous peoples’ own values attached to their lands and territories not only raises serious questions regarding the validity of the meanings attributed to the respective sites by the World Heritage Committee but can also have significant adverse effects on Indigenous peoples’ livelihoods and living cultural heritage as the justification for inscription may heavily affect conservation strategies and management priorities. According to the Operational Guidelines, the statement of OUV adopted at the time of inscription provides “the basis for the future protection and management of the property,” and states must ensure that human use within World Heritage sites “fully respects the OUV of the property.”Footnote ⁵¹ If Indigenous peoples’ perspectives, cultural values, and relationship to the land are not recognized and reflected when the OUV of a site is defined, this can significantly limit their future role in site management and decision making and can also affect their land use and their rights to their lands, territories, and resources.Footnote ⁵²

Positive experiences

Some Indigenous peoples have no doubt benefited from the establishment of World Heritage sites in their territories, particularly in countries where Indigenous peoples’ collective rights to their lands, territories, and resources are recognized and protected at the national level. Since World Heritage status provides an additional level of protection beyond domestic laws and regulations, World Heritage sites can obviously play a positive role for Indigenous peoples by helping them protect their lands and territories, as well as their cultural heritage and traditional ways of life, from development pressures such as extractive industry activities or threats posed by major infrastructure projects. World Heritage sites can also create business and employment opportunities for Indigenous peoples – for instance, in the tourism sector or directly in the management of sites and related conservation activities. If designed and managed with the inclusion and full and effective participation of Indigenous peoples and with respect for their collective rights, World Heritage sites can thus serve to support and protect Indigenous peoples’ livelihoods and self-determined development.

A number of World Heritage sites in Indigenous peoples’ territories have been nominated at the initiative of the Indigenous peoples themselves, with a view to protecting ancestral lands or creating new livelihood opportunities.Footnote ⁵⁵ Others have been nominated at the initiative of conservation organizations or government agencies but with the effective participation and free, prior, and informed consent (FPIC) of the Indigenous peoples concerned.Footnote ⁵⁶ Most of the sites that were nominated with the meaningful involvement and approval of Indigenous peoples were proposed and subsequently listed as mixed sites or cultural sites (often as cultural landscapes), in recognition of the cultural or spiritual values attached to the sites by the Indigenous peoples, meaning that their OUV is fully or partly based on Indigenous values. This not only ensures a continued consideration of Indigenous cultural values in conservation strategies, but normally also implies that Indigenous peoples must be effectively involved in site management and decision-making, so that it is ensured that the Indigenous values are safeguarded for future generations. In some cases, the recognition of Indigenous cultural values as part of the OUV of World Heritage sites has greatly assisted Indigenous peoples in their efforts to gain a greater role in the management and governance of sites.Footnote ⁵⁷

There are several World Heritage sites today that are managed by Indigenous peoples themselves or through collaborative management frameworks that provide for consensus decision making between conservation authorities and Indigenous peoples. Examples include the Laponian Area in Sweden, Kakadu National Park in Australia, SG̱ang Gwaay in Canada, and Taos Pueblo in the United States.Footnote ⁵⁸ East Rennell in the Solomon Islands is entirely under customary land ownership and management.Footnote ⁵⁹ The protection of those sites is generally based on respect for Indigenous peoples’ special relationship with their lands, territories, and resources and an integration of traditional knowledge and land management practices into conservation strategies. In most of these sites, the OUV is at least partly based on Indigenous cultural values, and often much or all of the land within the sites is legally recognized as being owned by Indigenous peoples. These sites demonstrate that the World Heritage Convention can be implemented in ways that support Indigenous peoples’ rights, livelihoods, and aspirations and help fulfill the desire of the General Assembly of States Parties that the Convention be “a global leader and standard-setter for best practice.”Footnote ⁶⁰

Negative experiences

For most Indigenous peoples, however, experiences with World Heritage sites have been not so positive. On the contrary, particularly in Africa and Asia, where recognition of Indigenous peoples’ rights is weak, the establishment of World Heritage sites has often led to a loss of control of Indigenous peoples over their lands, territories, and resources, human rights violations, and loss of cultural heritage, among many other adverse impacts. It is a well-known fact that, for many Indigenous peoples worldwide, the creation of protected areas has resulted in dispossession and alienation from their traditional lands and resources, forced evictions, restrictions on their traditional use of resources, loss of livelihoods, loss of access to sacred sites, and other injustices and human rights violations committed against them.Footnote ⁶¹ This legacy, from which many Indigenous peoples continue to suffer, is also shared by many of the protected areas inscribed on the World Heritage List. Violations of Indigenous peoples’ rights in the management of World Heritage sites are therefore often a continued legacy of the protected areas in question, many of which were declared as national parks or nature reserves a long time before they were nominated as World Heritage sites. However, the designation as World Heritage sites has in many cases aggravated or consolidated Indigenous peoples’ loss of control over their lands, led to additional restrictions on their traditional land and resource use, and further undermined their livelihoods. Many human rights violations against Indigenous peoples have also occurred as a direct result of the implementation of the World Heritage Convention and in the context of World Heritage processes, as illustrated later in this article.

At the occasion of the World Heritage Convention’s fortieth anniversary in 2012, an international expert workshop on the World Heritage Convention and Indigenous peoples therefore issued an urgent “call to action”:

Throughout the history of the Convention, Indigenous peoples have frequently raised concerns about violations of their rights in its implementation, not only at the national level in the nomination and management of specific World Heritage sites but also at the international level in the practice of the World Heritage Committee, its Secretariat, and its advisory bodies. Frequently raised human rights concerns include, inter alia, disrespect for Indigenous peoples’ right to participation and FPIC in the identification, nomination, and inscription of sites; the disregard of Indigenous peoples’ cultural heritage, values, and perspectives in defining the OUV of sites; the marginalization of Indigenous peoples in the management and governance of sites; involuntary evictions of Indigenous peoples from their ancestral lands; violations of Indigenous peoples’ customary rights to access and use their traditional lands, territories, and resources and to carry out traditional subsistence activities; violations of their rights to access religious and cultural sites; the harassment and criminalization of Indigenous individuals engaging in traditional activities; the lack of equitable access of Indigenous peoples to conservation benefits; the lack of consultation with Indigenous peoples by monitoring and site evaluation missions; and a lack of possibilities for Indigenous peoples to participate effectively in the decision-making processes of the World Heritage Committee.

A recurrent, key problem is the nomination and inscription of World Heritage sites without the FPIC of the Indigenous peoples in whose territories they are located. Most Indigenous sites inscribed on the World Heritage List were nominated without the consent or meaningful participation of the Indigenous peoples concerned – in many cases, without any consultation with the Indigenous peoples at all.Footnote ⁶³ There are also some sites that were inscribed despite strong objections from Indigenous peoples.Footnote ⁶⁴ As a result of this exclusion, most of the nomination dossiers for World Heritage sites in Indigenous peoples’ territories show little to no regard for Indigenous peoples’ land and resource rights, livelihoods, cultural heritage, and values, with significant implications for conservation strategies and site management. Most of the Indigenous World Heritage sites are inscribed as natural sites, without any recognition of Indigenous cultural values in the justification for inscription. In many cases, the statements of OUV do not even mention the existence of the Indigenous peoples. What is more, in some OUV statements, Indigenous peoples and their traditional livelihood activities are identified as current or potential threats to the OUV.Footnote ⁶⁵ The OUV of those sites therefore not only fails to reflect the heritage values attributed to the sites by Indigenous peoples but also conflicts with them in significant ways and may thus be harmful to their protection.

This lack of recognition and respect for the values attributed to World Heritage sites by Indigenous peoples reduces their relevance in conservation strategies and reinforces the marginalization of Indigenous peoples in the management and governance of the sites. In most of the Indigenous sites on the World Heritage List, Indigenous participation in site management is either absent or very limited, and Indigenous peoples are routinely excluded from decision making that has major impacts on their lives.Footnote ⁶⁶ Generally, this marginalization is a continued legacy of the protected areas in question, which were often declared decades before they were included on the World Heritage List and often have a long history of injustices and human rights violations committed against Indigenous peoples.

In many World Heritage areas, Indigenous peoples are primarily considered as threats, or potential threats, to conservation objectives. Often tight restrictions and prohibitions are imposed on Indigenous land use practices such as hunting, gathering, farming, or pastoralism in violation of Indigenous peoples’ cultural and subsistence rights.Footnote ⁶⁷ In some World Heritage areas, Indigenous communities experience high levels of violence, intimidation, and human rights abuses by rangers or army personnel enforcing the restrictions.Footnote ⁶⁸ Many of the restrictions and prohibitions on Indigenous peoples’ land and resource use in World Heritage sites are closely related to the World Heritage status of the sites and the recommendations and requests of the World Heritage Committee and its advisory bodies. In some cases, they have had severe consequences for Indigenous peoples’ food security, health, and well-being. For example, in the Ngorongoro Conservation Area (NCA) in Tanzania, a ban on subsistence cultivation has resulted in a serious situation of hunger and food insecurity that affects most of the area’s 80,000 Maasai residents. The cultivation ban can be directly linked to the interventions of UNESCO, the IUCN, and ICOMOS and forms part of a strategy to encourage the “voluntary relocation” of Indigenous communities to areas outside of the NCA.Footnote ⁶⁹

The World Heritage List contains several protected areas from which Indigenous peoples have been forcibly removed.Footnote ⁷⁰ While these relocations often happened a long time before the sites were nominated to the World Heritage List, there are also some cases where Indigenous peoples were removed from protected areas with the intention of facilitating inscription as a “natural” World Heritage site.Footnote ⁷¹ There are also instances where Indigenous peoples have been pressured to leave or forcibly removed after the inscription on the World Heritage List.Footnote ⁷² While the Operational Guidelines have recognized since 2005 that “no area is totally pristine” and that “[h]uman activities, including those of traditional societies and local communities, often occur in natural areas … [and] may be consistent with the Outstanding Universal Value of the area where they are ecologically sustainable,” there continues to be a “misconception that World Heritage nomination requires community presence and rights to be extinguished for site recognition [as a natural site].”Footnote ⁷³ Moreover, there are several examples in the history of the World Heritage Convention, including its recent history and ongoing implementation, where the World Heritage Committee, the advisory bodies, and the World Heritage Centre have actively encouraged the “voluntary relocation” of Indigenous peoples from specific World Heritage areas. For instance, in the case of Salonga National Park in the Democratic Republic of Congo, state of conservation reports from UNESCO and the IUCN as well as the decisions of the committee have repeatedly identified “Indigenous hunting, gathering and collecting” as a threat to the park and encouraged the “voluntary relocation” of Indigenous communities from the park.Footnote ⁷⁴ In the case of the Ngorongoro Conservation Area, UNESCO, the World Heritage Committee, and the advisory bodies have for many years identified the livelihood activities and growing population of the NCA’s pastoralist residents as major threats to the OUV of the site and repeatedly encouraged Tanzania to promote the “voluntary relocation” of the Indigenous communities to areas outside of the NCA.Footnote ⁷⁵

In addition to concerns about the violation of their rights at individual World Heritage sites, by national and subnational institutions and authorities, Indigenous peoples have frequently raised concerns about their exclusion from international decision-making processes related to World Heritage sites – that is, the decision making of the World Heritage Committee.Footnote ⁷⁶ Although some Indigenous peoples have managed to engage with the committee and its advisory bodies effectively,Footnote ⁷⁷ no mechanisms exist through which Indigenous peoples can reliably bring concerns regarding the nomination and management of World Heritage sites to the attention of the committee. First, there is no effective way for Indigenous peoples’ representatives to participate in the sessions of the committee. Although it is possible in principle for Indigenous representatives to participate as observers, voices from Indigenous peoples and civil society have no formal place in the committee meetings and may only be heard at the discretion of the chairperson.Footnote ⁷⁸ Speaking time for observers is limited to one or two minutes, and their interventions usually have negligible effect on the committee’s debate;Footnote ⁷⁹ in some sessions (depending on the chairperson), observers are only allowed to present statements after the committee has already adopted its decisions on particular agenda items.Footnote ⁸⁰

Second, there have been numerous complaints by Indigenous peoples about a failure of the advisory bodies and the World Heritage Centre to consult with Indigenous peoples in evaluating World Heritage nominations and monitoring the state of conservation of World Heritage sites. Accordingly, their evaluations and reports provided to the World Heritage Committee have in many cases failed to address human rights grievances of Indigenous peoples.Footnote ⁸¹ The evaluation of nominations is carried out by the IUCN (natural heritage) and ICOMOS (cultural heritage) and entails both field missions and desk reviews; the state of conservation of World Heritage sites is monitored by the World Heritage Centre and the advisory bodies (the IUCN, ICOMOS, and the International Centre for the Study of the Preservation and Restoration of Cultural Property [ICCROM]) and can also involve field missions. Representatives of the World Heritage Centre and the advisory bodies have pointed to the limitations of their financial resources as a main constraint for carrying out consultations with all affected Indigenous peoples in the evaluation and monitoring of sites as well as to time constraints during field missions and political challenges such as a lack of cooperation by governments.Footnote ⁸² However, it is also clear that the procedures of the advisory bodies are inadequate for consistently ensuring that Indigenous peoples are effectively consulted by on-site evaluation and monitoring missions.Footnote ⁸³ Moreover, as organizations focused on the conservation of nature and tangible heritage, the advisory bodies do not always have the expert capacity to appropriately address issues related to Indigenous peoples and their heritage, and there are also questions about their neutrality when it comes to balancing their institutional priorities with the rights and interests of Indigenous peoples.Footnote ⁸⁴

The proposal for a World Heritage Indigenous Peoples Council of Experts

In 2000, during the twenty-fourth session of the World Heritage Committee in Cairns, Australia, Indigenous peoples for the first time made a concerted effort to enhance their role in the implementation of the World Heritage Convention and the decision making of the committee, out of concern over the “lack of involvement of Indigenous peoples in the development and implementation of laws, policies and plans … which apply to their ancestral lands within or comprising sites now designated as World Heritage areas.”Footnote ⁸⁵ Noting the obligations of states parties to recognize, respect, promote, and protect the rights and interests of Indigenous peoples in World Heritage areas, consistent with their obligations under international law, the forum of Indigenous peoples assembled in Cairns petitioned the committee and the states parties to the Convention to establish a World Heritage Indigenous Peoples Council of Experts (WHIPCOE) as a consultative body to the committee. WHIPCOE was envisioned to “complement existing expert groups under the convention being IUCN, ICOMOS and ICCROM” by providing “expert Indigenous advice on the holistic knowledge, traditions and cultural values of Indigenous Peoples relative to the implementation of the World Heritage Convention.”Footnote ⁸⁶ It was supposed to provide advice on both “the appropriate identification, evaluation and management of ‘mixed’ properties and ‘cultural’ properties with indigenous associations and the identification, management and possible renomination of properties listed for their ‘natural’ World Heritage values that may also hold indigenous values.”Footnote ⁸⁷

At the same time, the Indigenous peoples forum in Cairns appealed to the World Heritage Committee and the states parties to recognize “the holistic nature of Indigenous natural and cultural values and traditions”; that those values and traditions were “dynamic living values rather than static historic ones”; and that the maintenance and survival of those values and traditions was “dependent upon [Indigenous peoples’] continued access to and use of traditional biological resources” and “necessary to ensure the complete conservation of the biological diversity by which many areas qualified for World Heritage Listing.”Footnote ⁸⁸ States parties were also called on to enable “effective and meaningful consultation, co-operation and involvement of Indigenous peoples … in the management of their ancestral territories that fall within World Heritage areas now” and to ensure that “traditional knowledge [is] given the same respect as any other form of knowledge” in the management of World Heritage areas.Footnote ⁸⁹

The proposal to establish WHIPCOE was discussed by the World Heritage Committee at its twenty-fifth session in 2001 in Helsinki. However, although the advisory bodies and several states parties strongly supported the proposal, the committee “did not approve the establishment of WHIPCOE as a consultative body of the Committee or as a network to report to the Committee.”Footnote ⁹⁰ The former chairperson of the IUCN’s World Commission on Protected Areas, Adrian Phillips, attributed this decision to a “dismissive attitude towards indigenous peoples’ issues” among some of the committee members.Footnote ⁹¹ The committee raised a number of concerns relating to the funding, legal status, role, and relationships (with the states parties, advisory bodies, World Heritage Committee, and World Heritage Centre), and “[s]ome members of the Committee questioned the definition of indigenous peoples and the relevance of such a distinction in different regions of the world.”Footnote ⁹² The head of Thailand’s delegation to the committee expressed the view that “indigenous issues are a domestic, national question, and are best handled on that level. It is then up to each State Party to bring site nominations to the Committee. Through the mechanism proposed, you would be introducing a political element.”Footnote ⁹³

UNPFII

In May 2002, Mirarr senior traditional owner Yvonne Margarula, from the Kakadu National Park World Heritage area in Australia, submitted a statement to the inaugural session of the UNPFII, recommending that the UNPFII undertake an independent study on Indigenous peoples and World Heritage. The statement suggested that the study should be based on case studies from Indigenous peoples living in World Heritage areas and analyze the effectiveness of the World Heritage Convention in protecting Indigenous peoples’ sacred sites and living traditions, the impact of the World Heritage Committee’s Operational Guidelines on Indigenous peoples in World Heritage areas, and the participation of Indigenous peoples in the committee’s decision-making processes.Footnote ⁹⁴ Although this recommendation was not immediately taken up by the UNPFII, the forum never lost sight of the issue as Indigenous peoples in subsequent years repeatedly raised concerns with the forum about violations of their rights in World Heritage sites and the implementation of the Convention.Footnote ⁹⁵

In 2010, the UNPFII, which has a mandate to provide advice on Indigenous issues to the UN system and to promote respect for the UNDRIP,Footnote ⁹⁶ for the first time, sent a representative to a session of the World Heritage Committee, Victoria Tauli-Corpuz, an Igorot from the Philippines. The purpose of this participation was to inform the committee about the numerous concerns related to World Heritage sites that Indigenous peoples had brought to the UNPFII’s attention.Footnote ⁹⁷ However, Tauli-Corpuz was only given one minute to speak and therefore was not able to enumerate the concerns in her statement before the committee.Footnote ⁹⁸ Instead, the UNPFII submitted its concerns and recommendations in writing. The written submission noted that the UNPFII had received complaints about “a list of indigenous sites inscribed in the World Heritage List without the adequate participation and involvement of indigenous peoples” since its first session in 2002, and it included, inter alia, the following recommendations:

• • that the initial efforts to establish a World Heritage Indigenous Peoples’ Council of Experts (WHIPCOE) be revisited, and efforts to set up an appropriate mechanism whereby Indigenous experts can provide advice to the committee and the World Heritage Center be revived;

• • that adequate consultation and participation of Indigenous peoples be ensured and their FPIC be obtained when their territories are being nominated as World Heritage sites;

• • that the involuntary displacement or relocation of Indigenous peoples from World Heritage sites be stopped;

• • that the subsistence economic activities of Indigenous peoples in World Heritage sites not be undermined or illegalized and adequate social services be provided to Indigenous peoples living in these sites;

• • that the UNDRIP and the UNDG Guidelines on Indigenous Peoples’ Issues be used as frameworks when World Heritage sites in Indigenous territories are nominated and managed as well as for missions done in these areas; and

• • that the inclusion of Indigenous experts be considered when missions are held to review the World Heritage sites located in Indigenous peoples’ territories.Footnote ⁹⁹

A year later, at the UNPFII’s tenth session in May 2011, a joint statement was presented by a broad coalition of Indigenous organizations from around the world expressing serious concern about the “continuous and ongoing disrespect of the principle of FPIC” by the World Heritage Committee when inscribing sites in Indigenous peoples’ territories on the World Heritage List.Footnote ¹⁰⁰ The statement alleged that three nominations under consideration by the committee at the time (Western Ghats, Sangha Trinational, and Kenya Lake System in the Great Rift Valley, all nominated as “natural sites”) had been prepared without meaningful involvement of affected Indigenous peoples and without giving due consideration to their cultural values and stewardship roles. It urged the UNPFII to call on the committee not to approve these nominations until the Indigenous peoples concerned had been adequately involved and had provided their FPIC.Footnote ¹⁰¹ In response, the UNPFII adopted a recommendation encouraging the committee to review existing procedures and operational guidelines with a view to ensuring Indigenous peoples’ FPIC and the protection of their livelihoods and tangible and intangible heritage in the context of World Heritage nominations. It also expressed its availability to assist in the review and revision of the Operational Guidelines. Additionally, the UNPFII called on the committee and the advisory bodies to “scrutinize current World Heritage nominations to ensure they comply with international norms and standards of free, prior and informed consent.”Footnote ¹⁰²

A representative of the UNPFII, Kanyinke Sena, attended the World Heritage Committee’s subsequent session in June 2011 and was able to present the recommendations made at the tenth session of the forum in an oral statement to the committee.Footnote ¹⁰³ A non-governmental organization (NGO) representative also read a summary version of the joint statement of Indigenous organizations, drawing attention to the concerns about the nominations of the Western Ghats, the Sangha Trinational, and the Kenya Lake System.Footnote ¹⁰⁴ However, the committee completely ignored these concerns and did not even discuss the (lack of) involvement of Indigenous peoples in the preparation of the nominations. The Kenya Lake System was immediately inscribed on the World Heritage List; the nominations of Western Ghats and the Sangha Trinational were referred back to the submitting states parties (for unrelated reasons) but soon resubmitted and approved a year later without the concerns of Indigenous peoples having been resolved.Footnote ¹⁰⁵

In September 2012, several current and former members of the UNPFII participated in an international expert workshop on the World Heritage Convention and Indigenous peoples that was organized by the Danish Agency for Culture, the Greenland government, and the International Work Group for Indigenous Affairs in Copenhagen as part of the Convention’s fortieth anniversary. The workshop resulted in a “call to action” containing recommendations on how to align the implementation of the Convention with the UNDRIP as well as a set of proposed amendments to the Operational Guidelines aimed at ensuring respect for Indigenous peoples’ right to FPIC in the context of World Heritage listing.Footnote ¹⁰⁶ At its twelfth session in 2013, the UNPFII welcomed the recommendations of the expert workshop and encouraged the committee to consider “revisions to the guidelines relating to the human rights of indigenous peoples, including the principle of FPIC,” underlining the need for UNESCO and the committee to “implement the Convention in accordance with the rights enshrined in the UNDRIP, taking an approach based on human rights.”Footnote ¹⁰⁷

African Commission on Human and Peoples’ Rights

The 2011 World Heritage designation of the Kenya Lake System without the consent of the Endorois drew sharp international criticism and prompted strong responses from human rights bodies. The Kenya Lake System includes the Lake Bogoria National Reserve, which was the subject of a landmark 2009 ruling of the African Commission on Human and Peoples’ Rights (ACHPR), the so-called Endorois decision.Footnote ¹⁰⁸ In this ruling, the ACHPR condemned the forcible eviction of the Indigenous Endorois people from their ancestral lands surrounding Lake Bogoria during the creation of the national reserve in the 1970s. The ACHPR found that the evictions and the failure to subsequently involve the Endorois in the management and benefit sharing of the reserve had violated their human rights to property, natural resources, development, culture, and religion. It ordered Kenya, among other things, to “[r]ecognise rights of ownership to the Endorois and Restitute Endorois ancestral land” and to “[p]ay adequate compensation to the community for all the loss suffered.”Footnote ¹⁰⁹ The ruling also underlined that, in the case of any development projects that would have a major impact within Endorois territory, “the State has a duty not only to consult with the community, but also to obtain their FPIC, according to their customs and traditions.”Footnote ¹¹⁰

The World Heritage listing of Lake Bogoria happened less than two years after the Endorois decision, although the Endorois community had sent several communications to UNESCO informing them both about the ruling and the fact that they had not been consulted or included in the nomination process.Footnote ¹¹¹ This provoked the ACHPR to adopt a specific resolution in which it expressed deep concern about the listing, emphasizing that the inscription of Lake Bogoria “without involving the Endorois in the decision-making process and without obtaining their FPIC contravenes the African Commission’s Endorois Decision and constitutes a violation of the Endorois’ right to development under Article 22 of the African Charter [on Human and Peoples’ Rights].”Footnote ¹¹² The resolution also noted with concern that “numerous World Heritage sites in Africa [had] been inscribed without the FPIC of the indigenous peoples in whose territories they are located and whose management frameworks are not consistent with the principles of the UNDRIP.”Footnote ¹¹³ Referencing Article 1 of UNESCO’s Constitution and the UNDRIP, the ACHPR urged the World Heritage Committee and UNESCO “to review and revise current procedures and Operational Guidelines … in order to ensure that the implementation of the World Heritage Convention is consistent with the UNDRIP and that indigenous peoples’ rights, and human rights generally, are respected, protected and fulfilled in World Heritage areas.”Footnote ¹¹⁴ It further called on the committee to “consider establishing an appropriate mechanism through which indigenous peoples can provide advice to the World Heritage Committee and effectively participate in its decision-making processes.”Footnote ¹¹⁵

Additionally, the ACHPR criticized the IUCN for having recommended the inscription of Lake Bogoria in its advice provided to the World Heritage Committee,Footnote ¹¹⁶ despite Kenya’s failure to involve the Endorois in the nomination process. It therefore urged the IUCN to “review and revise its procedures for evaluating World Heritage nominations as well as the state of conservation of World Heritage sites, with a view to ensuring that indigenous peoples are fully involved in these processes, and that their rights are respected, protected and fulfilled in these processes and in the management of World Heritage areas.”Footnote ¹¹⁷

EMRIP

The World Heritage listing of Lake Bogoria National Reserve without the FPIC of the Endorois also immediately drew the attention of EMRIP, which was at the time in the middle of preparing advice to the UN system and states on Indigenous peoples and the right to participate in decision making.Footnote ¹¹⁸ Informed about the listing by the Endorois Welfare Council and some of its partner organizations,Footnote ¹¹⁹ EMRIP addressed UNESCO directly in this 2011 advice, calling on it to “enable and ensure effective representation and participation of indigenous peoples” in decision making related to the World Heritage Convention.Footnote ¹²⁰ It underlined that “[r]obust procedures and mechanisms should be established to ensure indigenous peoples are adequately consulted and involved in the management and protection of World Heritage sites, and that their FPIC is obtained when their territories are being nominated and inscribed as World Heritage sites.”Footnote ¹²¹ A year later, following the listing of the Western Ghats and the Sangha Trinational without the FPIC of the affected Indigenous peoples,Footnote ¹²² EMRIP added to this by encouraging the World Heritage Committee to “establish a process to elaborate, with the full and effective participation of indigenous peoples, changes to the current procedures and operational guidelines and other appropriate measures to ensure that the implementation of the World Heritage Convention is consistent with the UNDRIP and that indigenous peoples can effectively participate in the World Heritage Convention’s decision-making processes.”Footnote ¹²³

A study on the rights of Indigenous peoples with respect to their cultural heritage, which was undertaken in 2015, provided an opportunity for EMRIP to delve deeper into the subject of World Heritage, including the issue of the nature-culture divide and the concept of OUV. On a general note, the study underlines that “[h]eritage policies, programmes and activities affecting indigenous peoples should be based on full recognition of the inseparability of natural and cultural heritage, and the deep-seated interconnectedness of intangible cultural heritage and tangible cultural and natural heritage” and that “[f]or indigenous peoples, cultural and natural values are inseparably interwoven and should be managed and protected in a holistic manner.”Footnote ¹²⁴ In regard to the World Heritage Convention specifically, the study notes:

EMRIP therefore issued the following advice to the committee: “The World Heritage Committee should adopt changes to the criteria and regulations for the assessment of ‘outstanding universal value’ so as to ensure that the values assigned to World Heritage sites by indigenous peoples are fully and consistently recognized as part of their outstanding universal value.”Footnote ¹²⁶

Special rapporteur on the rights of Indigenous peoples

Like EMRIP and the UNPFII, the special rapporteur on the rights of Indigenous peoples has repeatedly been approached by Indigenous peoples expressing “concerns over their lack of participation in the nomination, declaration and management of World Heritage sites, as well as concerns about the negative impact these sites have had on their substantive rights, especially their rights to lands and resources.”Footnote ¹²⁷ The special rapporteur has therefore criticized the procedures and policies of the World Heritage Committee as inadequate for safeguarding the rights of Indigenous peoples and, much like EMRIP and the UNPFII, has repeatedly called on the committee to review and revise its Operational Guidelines with a view to ensuring that the implementation of the Convention is consistent with the UNDRIP.Footnote ¹²⁸

A letter sent in 2013 by then Special Rapporteur S. James Anaya to the director of the World Heritage Centre emphasized the need for the World Heritage Committee to improve existing nomination procedures so as to “ensure that indigenous peoples’ rights and worldviews are fully valued and respected in all current and future World Heritage site designations as well as in the overall implementation of the World Heritage Convention.”Footnote ¹²⁹ In addition to reiterating the need to ensure the meaningful participation and FPIC of Indigenous peoples in the nomination of sites, he encouraged a discussion on potential reforms to the criteria for World Heritage status, as well as the advisory bodies’ evaluation processes, in order to enable a concurrent consideration of natural and cultural values and thus facilitate Indigenous-centered nominations.Footnote ¹³⁰ Additionally, he underlined the importance of transparency in nomination and implementation processes, safeguarding Indigenous peoples’ land and resource rights during the nomination process, ensuring that Indigenous peoples derive benefits from World Heritage sites that impact them,Footnote ¹³¹ and providing redress for past injustices and violations of Indigenous peoples’ rights in World Heritage sites.Footnote ¹³²

Additionally, the special rapporteur has sent several communications to the World Heritage Committee,Footnote ¹³³ the advisory bodies,Footnote ¹³⁴ and individual statesFootnote ¹³⁵ in order to denounce violations of Indigenous peoples’ rights in specific World Heritage sites and urge them to take corrective action. In 2021, Special Rapporteur Francisco Calí Tzay from Guatemala, a former member of the Committee on the Elimination of Racial Discrimination (CERD), became the first special rapporteur to participate in a session of the World Heritage Committee. The aim of his participation in the forty-fourth session of the committee was to express his mandate’s serious concerns over Thailand’s nomination of the Kaeng Krachan Forest Complex (KKFC), which was – once again – considered for inscription on the World Heritage List by the committee at that meeting. However, as described in more detail below, he was not given the opportunity to speak until after the decision to inscribe the property had already been made.

Office of the UN High Commissioner for Human Rights

First submitted by Thailand in 2013, the nomination of the KKFC had for years drawn the attention of human rights bodies, including CERD, which considered the situation of the Karen Indigenous communities in the KKFC under its urgent action and early warning procedure.Footnote ¹³⁶ The nomination process of the KKFC was accompanied by persistent human rights abuses against the Karen communities, including violent forced evictions of community members from their ancestral land, the burning of Karen houses and rice barns, attacks and harassment by conservation authorities, unlawful arrests and prosecutions, and even murder and enforced disappearance of human rights defenders working for the Karen.Footnote ¹³⁷ These human rights violations were in many ways linked to Thailand’s efforts to gain World Heritage status for the KKFC under natural criteria, due to assumptions that the presence and traditional resource use of the Karen were incompatible with World Heritage status and may jeopardize listing as a “natural” site. Never were the Karen meaningfully involved in the nomination process, and no efforts were made to recognize their cultural values and relationship with the land within the OUV of the site. On the contrary, some of the actions during the nomination process amounted to an intentional destruction of Karen cultural heritage.Footnote ¹³⁸ Significant concerns existed among the Karen that World Heritage designation might lead to the destruction of their traditional way of life, loss of land, loss of access to natural resources, problems resulting from increased tourism, and heightened tensions between the local communities and the government.Footnote ¹³⁹

In November 2014, prior to the World Heritage Committee’s thirty-ninth session in Bonn where the nomination was first considered, the Office of the UN High Commissioner for Human Rights (OHCHR) submitted a briefing paper to the committee and the IUCN, which outlined the human rights abuses being faced by the Karen and their concerns about the nomination process, and made recommendations about how to address the human rights concerns.Footnote ¹⁴⁰ Among other things, the OHCHR urged the committee to ensure that the rights of the Karen communities to remain in the KKFC would be respected and that they would not be evicted from their land; that comprehensive consultations would be held with the communities, based on full information on positive and negative effects of World Heritage listing; that the Karen communities would be able to participate in the management of the World Heritage site; that clear guidelines would be established on the use of land and natural resources by the Karen communities with the participation of the Karen; and that an impartial dispute resolution mechanism would be established that is accessible by the Karen. The OHCHR underlined that it did not object to the designation of the KKFC as a World Heritage site in principle but sought to ensure that measures were taken to protect the rights of the Karen before the nomination was approved.Footnote ¹⁴¹

2015 Amendments to the Operational Guidelines

The World Heritage Committee’ thirty-ninth session in Bonn in 2015 was highly significant for Indigenous peoples as the committee for the first time introduced references to Indigenous peoples into the Operational Guidelines. It also approved a comprehensive policy for the integration of a sustainable development perspective into the processes of the World Heritage Convention, which promotes a human rights-based approach to World Heritage conservation and emphasizes the importance of respecting, consulting, and involving Indigenous peoples in the protection of World Heritage, in line with international standards such as the UNDRIP.Footnote ¹⁴⁷ At the same time, the discussions during the session were highly illustrative of the hurdles and resistance Indigenous peoples and UN human rights mechanisms are facing in demanding respect for Indigenous peoples’ rights in the implementation of the Convention, and the dismissive, if not hostile, attitude toward human rights by many of the committee’s members.

The debate on the KKFC was a good example of these discrepancies and contradictions. The OHCHR’s intervention was successful insofar as the World Heritage Committee decided to refer the nomination back to the state party in order to “allow it to: (a) Address in full the concerns that have been raised by the OHCHR concerning Karen communities within the Kaeng Krachan National Park including the implementation of a participatory process to resolve rights and livelihoods concerns.”Footnote ¹⁴⁸ However, the committee voted against adopting a clause that would have required Thailand to “achieve a consensus of support for the nomination that is fully consistent with the principle of free, prior and informed consent.”Footnote ¹⁴⁹ This clause was contained in the draft decision prepared by the IUCN but deleted at the request of Vietnam, whose delegate declared that the reference to FPIC was “number one, not necessary, and number two, Madam Chair: we are here at a prestigious Committee of culture and heritage, we are not in Geneva on the Human Rights Council, Madam Chair.”Footnote ¹⁵⁰ Only one committee member – Portugal – spoke up against this notion. Instead of calling for the FPIC of the Karen communities, the committee asked Thailand to “reach the widest possible support of local communities, governmental, non-governmental and private organizations and other stakeholders for the nomination.”Footnote ¹⁵¹

A few days later, as a first response to the recommendations of the Copenhagen expert workshop and the persistent advocacy of UN human rights mechanisms, the World Heritage Committee approved amendments to the Operational Guidelines adding Indigenous peoples to the list of potential “partners” in the protection of World Heritage and “encouraging” states to demonstrate their FPIC when nominating sites to the World Heritage List.Footnote ¹⁵² However, although the references to Indigenous peoples and to FPIC represented a significant breakthrough, the provision on FPIC was couched in non-obligatory language and therefore did not add much in terms of ensuring respect for Indigenous peoples’ rights in the context of World Heritage nominations. This was also noted by the UNPFII representative Oliver Loode, who remarked in a statement to the committee that the language was “insufficient … because it fails to create obligations for States,” underlining that a “robust procedure” was needed ensuring that Indigenous peoples’ rights under international law are respected, that they are effectively involved in nomination processes, and that their FPIC is obtained before sites on their lands are inscribed.Footnote ¹⁵³

However, the discussions during the session revealed strong resistance by many states parties against acknowledging Indigenous peoples as rights holders and adopting regulations that would make their effective involvement in decision-making processes a mandatory requirement for states. Several states even contested the very concept of “Indigenous peoples,” including some states that had endorsed the UNDRIP, such as France or Senegal.Footnote ¹⁵⁴ The then Special Rapporteur Victoria Tauli-Corpuz commented in a statement to EMRIP: “From the reports I got, there were huge debates whether human rights is even a framework that should be used when designations of world heritage sites are done. There were even questions raised on who are indigenous peoples and suggestions that local communities be the concept used instead of indigenous peoples. How can a UN agency which is the main body dealing with questions of culture and cultural rights allow such backsliding in terms of the application of the human rights-based approach?”Footnote ¹⁵⁵

The World Heritage Committee also rejected a draft amendment to the Operational Guidelines that would have required the World Heritage Centre to make all complete nominations publicly accessible upon receipt,Footnote ¹⁵⁶ something that Indigenous peoples had been demanding for years.Footnote ¹⁵⁷ Unless nominating states publish them voluntarily (which they often do not doFootnote ¹⁵⁸), the submitted nominations are therefore still not accessible to affected Indigenous peoples or the general public before sites are listed,Footnote ¹⁵⁹ a fact that is clearly not compatible with Indigenous peoples’ right to FPIC.Footnote ¹⁶⁰ If the committee’s decision not to publish submitted nominations before their approval was inconsistent with the new reference to FPIC in the Operational Guidelines, it stood in even sharper contrast to the committee’s endorsement, also at the Bonn session, of the (then draft) World Heritage Sustainable Development Policy (WH-SDP), which emphasizes the fundamental necessity of respecting, protecting, and promoting human rights in the implementation of the World Heritage Convention.Footnote ¹⁶¹

WH-SDP

Prepared by the World Heritage Centre at the request of the World Heritage Committee, the WH-SDP was formally adopted by the General Assembly of States Parties to the Convention in November 2015. Its adoption represents a significant shift in the implementation of the Convention and a crucial step toward aligning it with the UNDRIP and UNESCO’s purpose according to Article 1 of its Constitution. The WH-SDP recognizes the need to “view conservation objectives, including those promoted by the World Heritage Convention, within a broader range of economic, social and environmental values and needs encompassed in the sustainable development concept” and is aimed at “achiev[ing] the appropriate balance, integration and harmonization between the protection of OUV and the pursuit of sustainable development objectives.”Footnote ¹⁶² The policy underlines that “[t]he human rights embedded in the UN Charter and the range of broadly ratified human rights instruments reflect fundamental values that underpin the very possibility for dignity, peace and sustainable development” and that “[r]ecognizing rights and fully involving indigenous peoples and local communities, in line with international standards is at the heart of sustainable development.”Footnote ¹⁶³ It also states that, in applying a sustainable development perspective within the implementation of the Convention, “the close links and interdependence of biological diversity and local cultures within the socio-ecological systems of many World Heritage properties” should be recognized.Footnote ¹⁶⁴

The WH-SDP makes explicit reference to the obligation to promote and protect human rights in Article 1 of the UNESCO Constitution and to UNESCO’s commitment to the mainstreaming of human rights in its work and adopting a human rights-based approach to programming.Footnote ¹⁶⁵ To ensure policy coherence in conserving and managing World Heritage properties, it calls upon states parties to “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” and to “[e]nsure that the full cycle of World Heritage processes from nomination to management is compatible with and supportive of human rights.”Footnote ¹⁶⁶ What is more, it calls upon states to “[a]dopt a rights-based approach, which promotes World Heritage properties as exemplary places for the application of the highest standards for the respect and realization of human rights.”Footnote ¹⁶⁷

In regard to Indigenous peoples specifically, the WH-SDP provides, inter alia, that states parties should respect Indigenous peoples’ rights in nominating, managing, and reporting on World Heritage properties; ensure adequate consultations, the FPIC, and equitable and effective participation of Indigenous peoples where World Heritage nomination, management, and policy measures affect them; actively promote Indigenous peoples’ initiatives to develop equitable governance arrangements, collaborative management systems, and, when appropriate, redress mechanisms; and contribute to the building of a sense of shared responsibility for heritage among Indigenous peoples by recognizing both universal and local values within management systems for World Heritage properties.Footnote ¹⁶⁸

While the policy is aimed primarily at the states parties, it does note that “the implementation of its provisions will often require the contribution and support of the secretariat, the advisory bodies and other relevant bodies.”Footnote ¹⁶⁹ Moreover, in adopting the policy, the General Assembly requested the secretariat and the advisory bodies to develop proposals for changes to the Operational Guidelines that would translate the principles of the policy into specific operational procedures.Footnote ¹⁷⁰ This necessity was also emphasized by UNPFII representative Oliver Loode, who noted in a statement to the World Heritage Committee that the effectiveness of the policy would depend on “the introduction of specific operational procedures that not only encourage but actually require States Parties to comply with international standards regarding the rights of indigenous peoples,” adding that the Secretariat should ensure the full and effective participation of Indigenous peoples when developing proposals for amendments to the Operational Guidelines to ensure consistency with the UNDRIP.Footnote ¹⁷¹

2019 Amendments to the Operational Guidelines

At the forty-third session of the World Heritage Committee in 2019 in Baku, the World Heritage Centre submitted a set of proposed amendments to the committee aimed at mainstreaming the WH-SDP into the Operational Guidelines, including a number of amendments regarding Indigenous peoples.Footnote ¹⁷² Regrettably, the center failed to involve Indigenous peoples in the development of these proposals, a fact that was criticized by Indigenous participants in the Baku session as being inconsistent with the principle of FPIC and Article 41 of the UNDRIP.Footnote ¹⁷³ However, a member of the Indigenous Peoples’ Caucus (which was exceptionally large due to the committee’s consideration of two Indigenous-led nominations), Max Ooft from Suriname, was at least allowed to participate in the committee’s working group that discussed the proposed amendments, and he successfully argued for some improvements.Footnote ¹⁷⁴

The working group, and, subsequently, the World Heritage Committee, approved a range of amendments to the Operational Guidelines that, although still mostly couched in non-obligatory language, constituted another significant step forward in the efforts to align the implementation of the World Heritage Convention with the UNESCO Constitution and the UNDRIP. Among other things, provisions were added encouraging states parties to “adopt a human rights-based approach … in the identification, nomination, management and protection processes of World Heritage properties” and to mainstream international human rights standards into their activities related to the Convention (the first ever references to human rights in the guidelines).Footnote ¹⁷⁵ In regard to Indigenous peoples, a provision was added providing that states shall seek the FPIC of Indigenous peoples before including sites in Indigenous peoples’ territories on their “Tentative Lists” (inventories of sites that states intend to nominate in the future) and another one saying that states should implement management activities for World Heritage sites in close collaboration with Indigenous peoples “by developing, when appropriate, equitable governance arrangements, collaborative management systems and redress mechanisms.”Footnote ¹⁷⁶ The committee also added a reference to the then newly adopted UNESCO Policy on Engaging with Indigenous Peoples,Footnote ¹⁷⁷ encouraging states to mainstream its principles into the Convention’s implementation.Footnote ¹⁷⁸

A first major litmus test of the World Heritage Committee’s new commitments to Indigenous rights was its renewed consideration of the KKFC nomination, which had been resubmitted by Thailand. After a highly contentious debate, the committee once again referred the nomination back to the state party due to continued concerns of the OHCHR and Indigenous organizations over the human rights situation in the site and Thailand’s continued failure to seek the FPIC of the Karen communities.Footnote ¹⁷⁹ The committee’s referral decision asked Thailand to “demonstrate that all concerns have been resolved, in full consultation with the local communities, in accordance with paragraph 123 of the Operational Guidelines [on Indigenous peoples’ FPIC].”Footnote ¹⁸⁰ Shortly thereafter, the committee approved two Indigenous-led nominations, which can both serve as examples of good faith collaboration and genuine partnership between governments and Indigenous peoples in the nomination and protection of World Heritage sites, based on mutual respect, trust, and transparency. The first of these sites – Budj Bim in south-eastern Australia – was inscribed as a living cultural landscape in recognition of the significance of the complex aquaculture system developed by the Gunditjmara people. The whole site is Aboriginal owned and/or managed and is managed to respect the customary and legal rights and obligations of the Traditional Owners, who apply customary knowledge and scientific approaches through two management regimes: a cooperative arrangement with the Victorian government for Budj Bim National Park and the Indigenous ownership of two Indigenous Protected Areas.Footnote ¹⁸¹ The other site – Writing-on-Stone / Áísínai’pi in Canada – was listed as a sacred cultural landscape that provides exceptional testimony to the living cultural traditions of the Blackfoot people. The statement of OUV notes that the Blackfoot people are “fully participating in the management of Writing-on-Stone / Áísínai’pi, while ensuring appropriate management practices and continuous access for traditional and cultural practices”Footnote ¹⁸² and that the nomination dossier contains a detailed description of Blackfoot engagement throughout the nomination process and a statement of support from the chiefs of the Blackfoot Confederacy.Footnote ¹⁸³