UNESCO s Culture Conventions: synergies and Operational Guidelines

Transcription

1 UNESCO s Culture Conventions: synergies and Operational Guidelines A Desk study by Ascha Prins Commissioned by the Netherlands National Commission for UNESCO, 2014

2 Contents Introduction... 2 I. Operational Guidelines Operational guidelines as instrument Legal status of operational guidelines... 5 II. Synergy Culture Conventions Efforts undertaken to coordinate the protection of cultural heritage... 8 a. World Heritage Centre... 8 b. Cultural Conventions Liaison Group c. Committee for the Protection of Cultural Property in the Event of Armed Conflict Purpose and content of the operational guidelines a. Purpose b. Content Definitions Protection of cultural heritage during armed conflict Awareness raising and education International assistance Recommendations Conclusion

3 Introduction One of the central goals of UNESCO is to protect cultural heritage and foster cultural diversity 1. Legal instruments to provide for protection mechanisms have been growing in number and in scope, since the creation of the first Convention, the 1954 Hague Convention. Over the decades, UNESCO and its international instruments on culture have slowly become increasingly encompassing in terms of how culture should be protected. While in 1954 cultural property was merely protected in times of armed conflict by international legal instruments, currently also cultural heritage of outstanding universal value is protected by the 1972 World Heritage Convention, cultural property is protected from illicit traffic by the 1970 Illicit Traffic Convention and underwater cultural heritage is protected by the 2001 Underwater Heritage Convention. Because the conception of what cultural heritage is and how it ought to be protected has changed over the years, the creation of new Conventions functions to overcome the limits of the earlier Conventions. However, the accumulation of international law related to cultural heritage within UNESCO has raised several theoretical and practical issues. Although the six Culture Conventions and two additional protocols 2 are separate legal documents, with different implementation mechanisms and different States Parties, several topics, themes and ideas intersect and overlap. The possibilities for synergies between these Conventions have been recognized by many different stakeholders within and outside of UNESCO. However, as we will see, very little has been done so far to address inefficiencies in the implementation of the Conventions and the way efforts are coordinated by the bodies of the different Conventions. An example of an overarching concept that has been created by all the bodies of the Conventions separately is the concept of operational guidelines. The use of operational guidelines to provide for the implementation and application of a Convention has become a common practice within the UNESCO Conventions. Operational guidelines, as we will see, are, in contrast to Conventions, not legally binding documents and are relatively flexible and adaptable to contemporary circumstances. Therefore, they might be a useful instrument to provide for collaborative measures between the monitoring bodies of the different Conventions. The central question of this research is thus: How can operational guidelines facilitate synergies between the Culture Conventions of UNESCO? The first part of this research will briefly discuss the concept of operational guidelines as documents that support Conventions in their implementation, and the legal status of these documents. Also, the purpose and content of the operational guidelines will be compared to understand what the goal is of these documents, and the way they are structured. Then, in the second part of this report, efforts already made to streamline Conventions will be discussed. Several different themes will be addressed to explore possibilities for coordination. This analysis is done on the basis of literature research, both academic literature and official UNESCO documents, and by means of interviewing and discussing with 1 p The 1954 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; The Protocol 1954 to The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1956; The Second Protocol to the Hague Convention of 1954 For the Protection of Cultural Property in the Event of Armed Conflict 1999; The 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage; The 2001 Convention on the Protection of the Underwater Cultural Heritage; The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. 2

4 specialists in the field of international cultural heritage 3.Within the time span of three months I have gathered and analyzed information, in order to come up with several recommendations, how efforts to protect cultural heritage and promote cultural expressions can be coordinated more by the bodies of the Conventions and UNESCO by using the operational guidelines. These recommendations will be covered in the last part of this report. This research will conclude that there are several possibilities for streamlining the Conventions on Culture to protect and promote culture, but this can only be realized when the operational guidelines are standardized in terms of structure, purpose and definitions. I. Operational Guidelines Since the adoption of the first operational guidelines by the 1972 World Heritage Convention in 1977, the instrument has become increasingly used within the UNESCO Culture Conventions. In the last years, all UNESCO Conventions have created or started to create guidelines, and the 2005 Cultural Expressions Convention for the first time explicitly mentions the guidelines in the provisions of the Convention 4. However, little attention has been given to the concept of operational guidelines within the field of international law or within academics. The first section will outline a possible explanation for the consistent use of operational guidelines as an instrument of implementation and interpretation by the UNESCO Conventions. Secondly, the (legal) nature operational guidelines will be investigated. Do operational guidelines create fixed rules to provide for the implementation of the specific Convention they are made for, or are they flexible documents that can go beyond the scope of this and facilitate more coordination between the Conventions to ensure adequate protection of cultural heritage and promote cultural expressions? 1. Operational guidelines as instrument When a treaty is drafted, there are many different ways in which states can decide how to set up the institutional structure of a treaty and to what extent they wish to delegate the power to interpret and apply a treaty. This can range from retaining quite a substantial amount of political power to State Parties by setting up a Committee of State Parties, to having an entirely independent organ such as the International Court of Justice to interpret and apply treaty provisions, transferring a substantial amount of judicial power to an international organization. In the UNESCO Conventions, States Parties decided to retain this power themselves by setting up a Committee consisting of elected States Parties 3 For this research I have interviewed Kees Somer and Flora van Regteren Altena, both senior policy advisor Cultural Heritage at the Dutch Ministry of Education, Culture and Science; Dré van Marrewijk, Senior Policy Advisor/Focal Point World Heritage at the Cultural Heritage Agency of the Netherlands; Professor Yvonne Donders, Professor of International Human Rights and Cultural Diversity at the University of Amsterdam and member of the Dutch National UNESCO Commission; Benjamin Goes, Chairperson of the Committee for the Protection of Cultural Property in the Event of Armed Conflict and Councilor on the Chancellery of the Prime Minister in Belgium. Apart from these interviews my internship supervisors at the bureau of the National UNESCO Commission for UNESCO, Andrea Imhof, Koosje Spitz and Robert Quarles van Ufford, have provided me with a great deal of input and important feedback. Thank you all for your valuable input and critical opinion. 4 The Convention establishes in art... to prepare and submit for approval by the Conference of Parties, upon its request, the operational guidelines for the implementation and application of the provisions of the Convention. 3

5 representatives burdened with these tasks. On the basis of consensus between States Parties, they create documents that work out details for the implementation and interpretation of the Conventions: operational guidelines. The question arises why specifically within the UNESCO Conventions, there seems to be a relative unwillingness to delegate the authority to implement and interpret the Conventions to independent parties. Professor Donders compares the operational guidelines of the Culture Conventions with the practice of General Comments and General Recommendations within international human rights law 5. However, she elaborates, there is a significant distinction between operational guidelines and General Comments respectively: General Comments are adopted by the UN treaty bodies, which are composed of independent experts, set up to monitor the implementation of and compliance with the human rights treaties. Unlike human rights treaties, the UNESCO Conventions do not have such independent monitoring bodies. These Conventions set up conferences of parties and intergovernmental committees that conduct the monitoring of the implementation of the treaty. As a result, with regards to the UNESCO Conventions, a substantial amount of power to interpret and apply treaties is left to State Parties. The drafting process of the operational guidelines of the 1970 Illicit Traffic Convention can serve as an example of a situation where States Parties seem to be relatively unwilling to transfer decision making power to external parties on issues relating to cultural heritage. The UNESCO Secretariat had requested a specialist in the field of cultural heritage law, Professor Prott, to prepare a basis for the operational guidelines 6. Interestingly, the members of the Subsidiary Committee seemed to have largely disregarded her recommendations, and took it within their own hands to draft an entirely different version of the operational guidelines. The result, largely influenced by political considerations of some State Parties, seems to lack both structure and content and unfortunately provides relatively little clarification with regards to the interpretation or application of the treaty. In short, this example shows that the desire of States Parties to retain political influence with regards to international cultural heritage law, even when this comes at cost of the quality of the product. This is similar to the observation of Donders (2015), who notes that with regards to the UNESCO Conventions States prefer to keep the supervision of the treaty in their own hands, including the drafting and adoption of operational guidelines. The question arises why there is such reluctance within the UNESCO Culture Conventions, considering that in other cases states do seem willing to give away a significant amount of decision making power to external parties. The concept of cultural heritage and culture in general is ambiguous and difficult to define. Because the concepts at heart of the UNESCO Conventions are relatively soft itself, less precise and less demanding forms of legalization might be more suitable. Firstly, immeasurability of 5 Donders, Y.M. (2015), Cultural Rights and the UNESCO Convention: More than Meets the Eye?, Globalization, Culture and Development The UNESCO Convention on Cultural Diversity, Christiaan De Beukelaer, Miikka Pyykkönen and J. P. Singh (eds.), Palgrave MacMillian, pp C70/13/1.SC/4 Paris, June 2014, p. 2. 4

6 these concepts makes it difficult to set hard standards when it comes to protecting them. Secondly, as is the case with most international treaties, many provisions in the treaties are relatively vague and open for interpretation. They are the result of a compromise between a multitude of different parties, all with different opinions and agendas. Practical guidance as to how to implement the treaty is often essential. The adoption of additional guidelines to provide for the operationalization of the UNESCO Conventions is thus driven by necessity. Moreover, the formulation of international law relating to culture and cultural heritage can be regarded as quite controversial, because these concepts can be regarded to be at heart of a states sovereignty or within the sphere of the autonomy of a people. Although cultural heritage is often regarded as being part of the shared interest of humanity, cutting across national borders and regions, it is firmly linked to national sentiment: Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of the nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood. In the second part of the twentieth century it provided the political foundation for the right of self determination of peoples striving to form their independent State 7 As such, monuments can be seen as an objectification of national pride, just like certain rites can be seen as at heart of a certain community. In any case, the imposition of rules or regulations from the international sphere can be seen as controversial and as such, states may resist strict rules and independent adjudication them regarding matters that are inextricably linked to sovereignty. As a result, it may be the case that States like to retain the full authority to interpret and apply the UNESCO Conventions. As such, the need to create operational guidelines as consensus document to apply and interpret a Convention may be a result of the wish to keep supervision in the hands of the States Parties 2. Legal status of operational guidelines As discussed before, the operational guidelines of the 1970 Illicit Traffic Convention were largely influenced by the political considerations of the Subsidiary Committee. As a result, there are several provisions that the Netherlands does not agree with. Because decisions are made on the basis of a relatively informal consensus basis, opposition of the Netherlands will probably not block the adoption of the final draft. Therefore, the Netherlands will most likely decide to accept and sign the guidelines, but add to the signature an (oral) declaration that the Netherlands does not consider the document to be legally binding. The question that arises is why the Netherlands deems this to be necessary, given the fact that operational guidelines are guidelines by definition and not legal obligations? Do operational guidelines create fixed rules to provide for the implementation of the specific Convention they are made for, or are they flexible documents that can go beyond the scope of this? If this is the case, operational guidelines may serve as a tool to facilitate more coordination between the Conventions to ensure adequate protection of cultural heritage and promote cultural expressions. 7 F. Francioni (2004), Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, Michigan Journal of International Law, 25,

7 Treaties are adopted through a process of signing and ratification. When a state signs a treaty, it expresses its willingness to continue the treaty making process. A signatory state is therefore not legally bound by the provisions of the treaty, although it does create an obligation to refrain from acts that would defeat the object and the purpose of the treaty 8. However, only when a state ratifies the treaty, legally binding obligations arise under international law. After the treaty is signed, every state has to ensure that treaty is approved on a national level within a set timeframe and that necessary legislation is enacted to give domestic effect to a treaty. To be sure, there is an undeniable difference between operational guidelines and treaties, because, although all parties express their consent with the content of the guidelines by signing them, these documents are not ratified. Certainly the vast majority of the provisions within these guidelines are not formulated in such a way that a legal obligation could arise from it. Nevertheless, although all States Parties expressly agree upon the text of the guidelines, they do this as a document that provides for guidelines for the operationalization of the treaty concerned, instead of a document that stipulates legal obligations. Customary international law is an alternative, but equally binding source of international law. Different than in national legal systems, where laws are for example created by a Parliament, there is no unified body that produces international law. Customary law is a mirror of customary practice and it reflects a consensus between states 9. There are two basic elements that can be detected within customary international law: 1. State practice, defined as material facts, that is, the actual behavior of states, and 2. Opinio juris: the psychological or subjective belief that such behavior is law (Shaw, 2010). The subjective belief or opinio juris circumscribes the scope of what is considered to be law, because states do not confine their behavior to what is prescribed by law. A norm can thus only be regarded as customary law if a state behaves in accordance to that norm because it believes that this norm is law. There is a disagreement between scholars about the emphasis that should be given to opinio juris in the definition of customary international law (Shaw, 2010). The way to assess state practice is dependent upon several factors, such as duration, consistency, repetition and generality. For a norm to be considered international law, states have to behave with a certain measure of consistency, for a certain amount of time, with a certain measure of repetition in accordance with that norm. The International Court of Justice has declared that a customary rule must be in accordance with a constant and uniform usage by the states in question (Shaw, 2010). In a different case, the ICJ established view that some degree of uniformity amongst state practices was essential before a custom could come into existence. A customary rule can thus emerge when only the majority of states recognize a certain practice. Basic determinants for how states behave in practice are for example legislation, decisions of courts, decisions on an international level, official publications or public declarations of government officials. Also, resolutions, reservations and comments of states within international organizations such as the UN can give an important insight to determine state practice. There is a general view in customary law that the absence of protest implies agreements: where a state or states take action which they declare to be legal, the silence of other states can be used as an expression of opinion juris or concurrence in the new legal rule. This means that actual protests are called for to break the 8 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, art Shaw, M.N., International Law, Cambridge University Press,

8 legitimizing process. 10 It follows that customary rules are binding upon all states except for such states as have dissented from the start to that custom. 11 Nevertheless, the practice of a state, consisting of many individuals with many different opinions and agendas, is often not very consistent. Therefore, opinio juris is not easy to determine. If we consider the question whether provisions of the operational guidelines can be or become legally binding rules, two things need to be considered. Firstly, state practice needs to be assessed. Because the operational guidelines are created on the basis of consensus, there is a general acceptance towards the substance of the guidelines. The requirement of generality is thus satisfied. It can also be argued that because states repeatedly and consistently act in accordance with the guidelines over a longer period of time, the requirement of repetition, consistency and duration are satisfied. However, to satisfy the requirement of opinion juris, there must be some indication that states consider the operational guidelines to be legally binding documents. There is very little evidence that this might be the case. If we look at the explicit mentioning of the purpose in the operational guidelines to provide for the interpretation and application of a treaty, and to provide for an indication of best practices, it can hardly be concluded that states share the belief that the guidelines are legally binding documents. States might act in accordance with the provisions of the documents for reputational reasons or as an effort to show its best practices, but there is no indication that they do this because they believe that it is required by law to behave in accordance with the guidelines. Customary international law is flexible and evolves over time. If the majority of states at some point would agree that the provisions of the operational guidelines are in fact legally binding for states, then it could become customary law. As said, the absence of protest implies agreement. Therefore, if a state does not explicitly and consistently object to the development of a new norm as customary law, then it can be considered to have acquiesced into the new rule. The explicit mentioning of the Netherlands that it does not consider the operational guidelines to be legally binding might say nothing about the legal status of operational guidelines at this point in time, but does prevent the Netherlands from eventually being bound by it because it has been silent on the issue. To conclude, operational guidelines are essentially non legal instruments, based on the consensus of States Parties. Whether the provisions of the operational guidelines are legally binding, depends mainly upon the opinio juris of States Parties. As we have seen in the example of the 1970 Illicit Traffic Convention, the Netherlands has explicitly dissociated itself from any legal obligations that can possibly arise from the guidelines. Notwithstanding the fact that customary international law can be difficult to determine and is ever evolving, it seems like operational guidelines are not created with the intention to create formal laws. As such, operational guidelines are relatively flexible. They can be amended whenever a consensus is reached by States Parties that they need to be amended. As such, they can accommodate contemporary issues that could not have been taken into account when the Convention itself was created and they can change the way in which a treaty is interpreted and implemented. Operational guidelines might thus be a useful instrument to provide for collaborative measures between the monitoring bodies of the different Conventions. 10 Ibid, p Ibid, p. 91 7

9 II. Synergy Culture Conventions The six Culture Conventions are separate legal instruments, with different implementation mechanisms and different parties. However, as will be shown, several topics, themes or ideas intersect. The possibilities for synergies between the Culture Conventions have been recognized by many different stakeholders within and outside of UNESCO. The need to streamline the Culture Conventions has been expressed, and slowly but surely an increasing effort is being made to research these synergies. Firstly, this part of the research will briefly discuss the efforts made and research done on this topic so far. Secondly, the content of the operational guidelines of all Culture Conventions will be analyzed and compared, and recommendations will be made for standardizing of these documents 12. Lastly, within several important themes, awareness raising and education, cultural heritage in times of armed conflict and international assistance, synergies will be researched and recommendations will be made to streamline Conventions. Because the mechanisms to protect cultural heritage and promote culture are still developing, they are prone to also grow in complexity. As such, it is of central importance that the common ground between the Culture Conventions is understood so that possibilities for cooperation between monitoring bodies can be explored. 1. Efforts undertaken to coordinate the protection of cultural heritage a. World Heritage Centre During the 28 th session of the World Heritage Committee in 2004, the primary monitoring body of the World Heritage Convention, the need was expressed to enhance cooperation, strengthen ties and share information between Committees of the Conventions to streamline activities and share gained experience and expertise 13. In this meeting it was decided the World Heritage Centre should enhance coordination efforts with other sectors of UNESCO and other UNESCO Conventions. In decision 28 COM 12, the Committee requested the World Heritage Centre to prepare a document as a basis for discussion on this topic. Similarly, in the 33th session in 2009 the Committee requested the Centre to research the cooperation and exchange with other conventions of the World Heritage Convention 14. As a result, the World Heritage Centre had prepared document The World Heritage Convention and the other UNESCO Conventions in the field of culture 15 to be discussed at the Committee Meeting in The report is specifically concerned with the relationship of the World Heritage Convention with The Hague Convention and the Second Protocol, the 1970 Illicit Traffic Convention, the 2001 Underwater Cultural Heritage Convention and the 2003 Intangible Cultural Heritage Convention. Regarding The Hague Convention, the report touches upon the shared objectives of the two Conventions (to protect cultural heritage) as well as similarities in protection mechanisms (setting up intergovernmental committees and international lists). Moreover, it notes the congruence between the definition of greatest importance for humanity and outstanding universal value. Moreover, it 12 A more elaborate discussion of the concept of operational guidelines and the legal status of these documents will be reserved for the second part of this research com 12e.pdf COM 5E 8

10 touches upon similarities between the preparatory measures of the Second Protocol for safeguarding cultural heritage and the measures promoted by the World Heritage Convention, without pinpointing more specifically on how these measures exactly overlap. The report notes that in order to streamline these similarities, the Committee for the Protection of Cultural Property in the Event of Armed Conflict had requested to explore opportunities for collaboration. However, the World Heritage Centre does not come up with substantial proposals to coordinate collaboration. Concerning the relationship between the World Heritage Convention and the 1970 Convention on Illicit Traffic, the report stresses the issue of illicit traffic of cultural property from World Heritage Sites. Inscription of a site on the World Heritage List can make it more vulnerable for looting due to increased popularity and accessibility. The report recommends parties of the World Heritage Convention to make an estimate of the vulnerability of the site to illicit traffic and make adequate measures to ensure the protection of the site from looting. However, although this request seems to be quite relevant, no further efforts seem to have been made to achieve this. In relation to the 2001 Underwater Cultural Heritage Convention, the report stresses the importance of interaction between the two Conventions, because of the shared objectives and similar means of protection. According to the report, the preference for in situ protection, allowing recovery for objects only for protection, research or education, the criteria for conservation, the prohibition of using the heritage for commercial purposes and methods for training and information sharing are of substantial similarity. Although the document underlines that interaction between the two conventions is of utmost importance, the report seems to refrain from proposing any concrete measures to ensure more interaction and promote cooperation. Lastly, the report elaborately discusses the relationship between the World Heritage Convention and the 2003 Intangible Heritage Convention. The report notes the significance of communities within the Conventions, although it acknowledges that communities play a more central role with regards to intangible cultural heritage because of their engagement in formulating and defining their own cultural heritage. Moreover, both lists have cultural spaces inscribed on their lists, of which five spaces are part of both the World Heritage list and the Representative List of the Intangible Heritage Convention 16. According to the report, the double acknowledgement of these spaces seems to have a positive effect on the protection of the spaces in question. The report remarks that there is a confusion about how criterion (vi) directly or tangibly, events, living traditions, ideas, beliefs, or artistic and literary works of outstanding universal significance. corresponds to the 2003 Convention. Moreover, the report underlines the importance of ensuring that the conservation of tangible heritage is not detrimental to the preservation of intangible cultural heritage and vice versa. The report however refrains from recommending any concrete measures as to how to streamline cooperation to avoid confusion and ensure that similarities are effectively dealt with. To conclude, although the report The World Heritage Convention and the other Conventions in the field of culture pinpoints some interesting synergies between the Conventions in terms of definitions, criteria, objectives and in their practical implementation and it underlines the importance of 16 (1) Petra Jordan / The Cultural Space of the Bedu in Petra and Wadi Rum, Jordan (2) Medina of Marrakesh, Morocco / Cultural space of Jemaa el Frna, Morocco (3) The Sacred Mijikenda Forests, Kenya / The traditions and practices associated to the Kayas in the (4) Sacred Milikenda Forests, Kenya (5) The Rice Terraces of the Philippine cordilleras / The Hudhud Chants of the lfugao, Philippines (6) The Old Town of Dubrovnik, Croatia / Feast of St. Blaise, patron Saint of Dubrovnik (Source: WHC 09/34.COM/5E The World Heritage Convention and the other Conventions in the field of culture) 9

11 interaction and coordination between the treaties respectively, it seems to remain relatively on the surface by largely refraining from putting forward concrete measures as to how to realize this. The decision made by the World Heritage Committee in response to the report also seems to entail little concrete changes. It merely invites all States Parties to the 1972 Convention to become party to other standard setting instruments of UNESCO in the field of Culture, and requests an enhanced collaboration between the World Heritage Centre and the other Convention secretariats 17. b. Cultural Conventions Liaison Group Following the report of the World Heritage Centre, the secretariats of the Culture Conventions established the Cultural Conventions Liaison Group. This group meets twice a year to discuss matters concerning enhancing cooperation and coherence among the Conventions. During the World Heritage Committee in 2012, the outcomes of the first two meetings were discussed 18. The Group recommended the establishment of a common logistics unit that would be responsible for the planning and organization of meetings of the governing bodies of the Conventions. Moreover, they established working groups on Periodic Reporting, International Assistance, Capacity Building, Information Management, and Visibility and Partnership Development. However, the outcomes of these working groups seem to be absent so far. The Executive Board of UNESCO commented in 2014 on this working group that While a Cultural Convention Liaison Group (CCLG) comprising of the heads of the convention secretariat has been established to increase coordination among conventions, there is no institutional mechanism for interaction between the governing bodies of the conventions 19. Moreover, the effectiveness of the Liaison Group within the Secretariat of UNESCO remains relatively unclear, because the outcomes of these meetings are either not available to the public or entirely absent. In September 2013, the Internal Oversight Service carried out an audit of the Working Methods of Cultural Conventions 20. One of their main recommendations was the synchronization of meetings and Assemblies of Parties in order to increase efficiency and cost effectiveness. They also recommended that the current funding structure should be supplemented with a General Trust fund formed out of contributions from the Contracting Parties on compulsory or voluntary basis to cover the ordinary expenditures of the secretariats, including staffing, administrative costs, preparation and translation of documents. c. Committee for the Protection of Cultural Property in the Event of Armed Conflict Benjamin Goes, Chairperson of the Committee for the Protection of Cultural Property in the Event of Armed Conflict, has been an active advocate for streamlining the 1954 Hague Convention and its Second Protocol and the 1972 World Heritage Convention. During the 7 th session of the Committee in December 2012, the need to investigate synergies between these Conventions were highlighted in relation to the events in Mali. It was discussed that the criteria for cultural properties placed under enhanced protection partially overlap with the criteria to be inscribed on the World Heritage list. During the Committee it was discussed that a property that is regarded as being of outstanding universal value (art 11 (2) WHC) 21, can also be considered to be of greatest importance of humanity COM 5E 18 WHC 12/36.COM/INF.5A.1 Paris, 11 May FOLLOW UP TO DECISIONS AND RESOLUTIONS ADOPTED BY THE EXECUTIVE BOARD AND THE GENERAL CONFERENCE AT THEIR PREVIOUS SESSIONS 192 EX/5 Part I 20 Audit of the Working Methods of Cultural Conventions IOS/AUD/2013/06 < 19ga inf8a en.pdf> 21 World Heritage Convention (WHC) 10

12 (art. 10(a) SP) 22. In line of this observation, the Committee, on the proposal of Belgium, proposed that the form that is used for putting forward a nomination of cultural properties to be inscribed on the World Heritage List should be modified, so that the admission to be placed under Enhanced protection will be possible under the same form. On the information meeting on the 37 th session of the World Heritage Committee (May 6, 2013), Goes intervened to discuss the matter. He elaborated on the synergy between the Conventions, specifically concerning armed conflict. He stressed the fact that armed conflict is a possible cause for inclusion of a property on the World Heritage endangered list and the efforts under the Convention to strengthen the requirements relating to risk and disaster management and control plans. He underlined that also his Committee works relentlessly to optimize its action. Therefore, especially in times of armed conflict, there is a series of concrete approaches to coordinate the World Heritage Convention and The Hague Convention and Second Protocol possible. Lastly, he mentioned that there are several other possibilities for synergies exist, such as the organization of joint missions for the examination of the state of conservation of properties included on both lists. As we have seen in this section, considerable attention has already been given by several different institutions and working groups to research synergies regarding the Culture Conventions. There is a general understanding that reform needs to be accomplished to streamline the Conventions. Although some general and useful recommendations have been made, an all encompassing and in depth analysis, either from legal, economic or institutional perspective, from an independent party, has been absent so far. 2. Purpose and content of the operational guidelines Since the adoption of the first operational guidelines by the 1972 World Heritage Convention in 1977, the instrument has become increasingly used within the UNESCO Culture Conventions. The operational guidelines of the Culture Conventions are flexible and adaptable documents that provide for guidance in implementing and interpreting the Conventions. The guidelines elaborate on definitions, criteria, provide forms and recommendations for best practices. Because of their flexibility, there is substantial room in the guidelines to steer Parties towards certain (contemporary) aims. Therefore, they might be a useful tool to increase coordination and cooperation between the Culture Conventions. However, as we shall see in this chapter, the structure and content of the guidelines varies widely, causing uncertainty and confusion about the purpose and usefulness of the guidelines in their role to provide for necessary coordination and synergy. Therefore, this section of the report will provide a comparative analysis of the content of the operational guidelines of the respective UNESCO Conventions. Admittedly, the Conventions themselves are different in nature, purpose and methods of implementation. Obviously, differences between the Conventions may imply differences between the guidelines. Notwithstanding, this section will provide a general overview of the content and purpose of the operational guidelines and pinpoint differences and similarities between the respective guidelines. 22 Efforts to create synergies between these Conventions were started already in Art. 36 of the operational guidelines of the Second Protocol note that It is presumed that the Committee, subject to other relevant considerations, will consider that immovable cultural property inscribed on the World Heritage List satisfies the condition of greatest importance for humanity. 11

13 a. Purpose Most of the operational guidelines elaborate on the purpose of this document in an introductory section. However as we will see, in terms of their purpose, the operational guidelines diverge. Table 1 provides an overview of important keywords in the statement of purpose of the different guidelines (excluding the Intangible Heritage Convention and the Cultural Expressions Convention, because a statement on purpose was not included in the operational guidelines). Table 1: purpose of operational guidelines Purpose 1972 World Heritage Convention facilitate implementation of: 1954 Hague Convention & 1999 Second Protocol facilitate implementation 2001 Underwater Heritage facilitate implementation 1970 Illicit Traffic (draft) 1. strenghten implementation 1. World Heritage List practical tool practical guidance 2. facilitate implementation 2. Protection of World Heritage properties best practices with the aim to: 3. International assistance 4. mobilizing support a. minimize risks related to: (i). disputes over interpretation of Convention (ii). Litigation b. contribute towards international understanding goal Convention protect World Heritage protect cultural heritage during armed conflict safeguard underwater cultural heritage c. best practices d. further goals through strengthened cooperation to prohibit and prevent illicit traffic of cultural property The general aim of the operational guidelines of the 1972 World Heritage Convention, the 1999 Second Protocol and the 2001 Underwater Heritage Convention seems to be mainly practical. The operational guidelines of the 1972 World Heritage Convention indicate in art. 1 that they aim to:... facilitate the implementation of the Convention by setting forth: 12

14 1. The inscription of properties on the World Heritage List and the World Heritage List in Danger; 2. The protection and conservation of World Heritage properties; 3. The granting of international assistance under the World Heritage Fund; 4. The mobilization of national and international support in favor of the Convention. By distinguishing four specific topics in the primary goal of the operational guidelines, the purpose of the guidelines is relatively specific. The guidelines, through outlining practical measures, instruments, financial support mechanisms and forms, aim to provide tools to ensure the protection of cultural heritage. The primary aim of the guidelines is thus to provide tools to reach the goal of the Convention itself: to protect World Heritage. The other guidelines seem to be more general about their purpose. The Operational Guidelines for the 2001 Convention on the Protection of the Underwater Cultural Heritage states that the present Operational Guidelines can neither be understood as a subsequent agreement nor as rewriting, amending or interpreting the Convention. They merely aim to facilitate its implementation by giving practical guidance. The Operational Guidelines to the 1999 Second Protocol specify that the main purpose is to provide a concise and practical tool to facilitate the implementation of the Second Protocol... by its parties and to provide guidance to the Committee... and the Secretariat of UNESCO for the fulfilment of their functions as established by the Second Protocol (1.A.1) [1]. In addition, the Guidelines attempt to embody the best practices in the implementation of the Second Protocol. The focus of these guidelines is thus primarily practical. The draft operational guidelines of the 1970 Illicit Trade Convention are wider in scope as much as they are also more incoherent. They specify the aim of the operational guidelines to be: To strengthen and facilitate the implementation of the Convention to minimize risks related to disputes over the interpretation of the Convention as well as to litigation, and thus to contribute towards international understanding. the Operational Guidelines are intended to assist States Parties in implementing the provisions of the Convention, including by learning from the best practices of States Parties geared to enhance the effective implementation of the Convention and also to identify ways and means to further the achievement of the goals of the Convention through strengthened international cooperation [2]. Different than in the former guidelines, the draft guidelines of the 1970 Illicit Trade convention aim to facilitate, as well as strengthen the implementation of the Convention. It thus does not only serve a practical purpose, in the sense that it provides for the effective implementation of the Convention, it also invites Parties to provide for effective implementation through learning from best practices and strengthening international cooperation. Although the wording of the first sentence makes it seem like the goals of the Convention are specifically to minimize disputes and contribute towards international understanding, the actual goal of the guidelines is much wider in scope. On one hand, it aims to provide for practical information, on the other hand it encourages states to cooperate and learn from each other s best practices [3]. The purpose of the guidelines of the 1970 Illicit Trade [1] Art 3 Guidelines for the 1999 Second Protocol, CLT 09/CONF/219/3 REFV.4 art. 1b. [2] Art 8 draft operational guidelines C70/14/2.SC/5/Rev Paris, June

15 Convention specifically focusses on preventing disputes over the interpretation of the Convention, minimize risks related to litigation and strengthening international cooperation. As such the purpose of the guidelines is to provide a tool to avoid disputes about the interpretation of the Convention. To conclude, the primary goals of the operational guidelines are quite similar at first sight, to facilitate the implementation of the specific Convention, but differ significantly as to how this implementation needs to be achieved. Practical implementation is done through outlining practical measures, instruments, financial support mechanisms, and forms in order to implement treaties that primarily aim to protect cultural heritage. Regarding the more encouraging, aspirational aspects aiming to motivate States to ensure effective implementation of the Conventions, the purposes of the operational guidelines diverge. Obviously, this does not indicate that the actual operational guidelines are substantially divergent; the goal of this section is merely to point out that there is no coherent view on what the exact purpose of operational guidelines is. The central question is whether the fact that the operational guidelines of the different Conventions have varying purposes is an obstacle to achieve more synergy among the different conventions. Clearly, disunity about the purpose of operational guidelines does not necessarily mean that the content of the operational guidelines is significantly different. During my interviews, I noticed that is a substantial confusion and disagreement between professionals in the field of international cultural heritage law about the concept of operational guidelines in general, to what extent these documents are legally binding 23, and to what extent there are possibilities to use these documents to refer to other Conventions and to achieve more cooperation between the bodies of the different Conventions to protect cultural heritage. Cooperation requires consistency and transparency, also in terms of the concept of operational guidelines, of which the purpose is an essential aspect. The fact that operational guidelines have been created organically through compromises between member states and not by UNESCO Secretariat or an independent institution might go at cost of the effectiveness of the implementation of the documents. UNESCO should therefore explore possibilities to clear up the general purpose of the concept of operational guidelines. Considering that the six different Conventions are different in nature and the operational guidelines are dynamic documents that can be changed on a regular basis, the operational guidelines may turn out to have different objectives and aims. However, the fact that they are guidelines to provide for the operationalization of the Convention might already indicate that the primary goal of the operational guidelines of all Conventions is of a similar nature. To make the shared purpose of this document more explicit can create more consistency and structure. b. Content Clearly the content varies between the different Operational Guidelines. For example, as noted in table 2, not all guidelines have an introduction or table of contents. The facts section of the table shows the date that the first version and latest version of the operational guidelines were published, how often the document has been revised in the meantime, and the number of pages. All operational guidelines are revised every couple of years in their entirety, apart from the guidelines of the 2005 Cultural Expressions Convention, which over the years has published separate documents for a 23 This will be discussed more into depth in the second part of this research 14

16 provision or multiple provisions in the Convention. In total, there are now 12 different sets of operational guidelines for the Cultural Expressions Convention. The most experienced Convention in the field of operational guidelines is the 1972 World Heritage Convention. The document has been updated to account for past experience and new decisions 21 times, and is an elaborate document of 165 pages long Cultural Expressions Convention does not compile all guidelines in one single document, but uses separate documents for elaborating on specific articles of the Convention. As such, there is no table of contents nor an introductory chapter that elaborates on the purpose of the guidelines. Some guidelines provide additional information in the sidelines, refer to articles of the Convention or provide contact information, and some refer to articles in the text. The operational guidelines of the 1972 World Heritage Convention might serve as an example for the other guidelines in terms of structure. Most of the information is separated in short paragraphs, bullet points, lists and forms. Also, the language is simple and concise. Therefore, the document appears to be clear, concise, specific, practical and accessible. This might be explained by the fact that the document has existed for already more than 35 years and has been revised many times to adapt to practical experience with working with the document. From a practical perspective, this facilitates an efficient and functional operationalization of the Convention. However, there is relatively little attention, compared to the guidelines of the other Conventions, to encourage state cooperation, regional and local cooperation, community and civil society engagement and partnerships with nongovernmental organizations. Although the Convention mentions that parties are encouraged to make efforts regarding awareness raising and education, the operational guidelines do not further elaborate on these topics. This will be discussed further into depth in section 2.5 of this report. The guidelines of the 2005 Cultural Expressions are more balanced between procedural information, such as the use of the emblem and procedures for periodic reporting, and more substantive recommendations. One set of operational guidelines specifically focuses on encouraging parties to collaborate in information sharing, analysis and dissemination of information 24, another one emphasizes the crucial responsibility to undertake efforts in education and public awareness. There is also a specific set of operational guidelines to emphasize the fundamental role of civil society in protecting and promoting the diversity of cultural expressions and encourages the participation of civil society in the implementation of the Convention. Also regarding cooperation for development and preferential treatment for developing countries are separate sets available. The theme of awarenessraising and education will be discussed more into depth in section 5 of this chapter. 24 Operational guidelines on exchange, analysis and dissemination of information 15