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Final Report of the ILA Committee on Participation in Global Cultural Heritage Governance

Published online by Cambridge University Press:  29 September 2023

Sophie Starrenburg*
Affiliation:
Department of Public Law and Governance, Tilburg Law School, Tilburg University, The Netherlands
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Abstract

International cultural heritage regimes such as the World Heritage Convention have faced increasing scrutiny with regard to the impact of heritage governance on local communities. An oft-posited solution to this problem is to increase the possibilities for these communities to participate in decisions that will potentially affect the heritage they live in, with, or around. For international lawyers, this discussion is usually framed through the lens of the right to take part in cultural life guaranteed by human rights law. This case note reflects on the Final Report of the International Law Association’s Committee on Participation in Global Cultural Heritage Governance, which analyzes the current state of the law on these issues and formulates several proposals for its future development. The case note underlines the potentialities of human rights-based approaches to heritage management and the importance of adopting a cross-sectoral approach to participation in international governance.

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© The Author(s), 2023. Published by Cambridge University Press on behalf of the International Cultural Property Society

In June 2022, the International Law Association’s (ILA) Committee on Participation in Global Cultural Heritage Governance completed its mandate. The output of the committee’s four years of work has been bundled in its Final Report,Footnote 1 accompanied by a resolution adopted by the members of the ILA at its eightieth conference in Lisbon.Footnote 2 The committee, comprised of fifty-one members and chaired by Andrzej Jakubowski, with Lucas Lixinski acting as rapporteur, succeeded the previous Committee on Cultural Heritage Law, which operated from 1988 to 2016.Footnote 3 While “participation talk” abounds in discussions on cultural heritage governance,Footnote 4 international heritage lawyers have mostly refrained from entering the fray.Footnote 5 The committee’s report neatly bridges this divide, providing a welcome perspective on the practice of participation in cultural heritage governance at the international and domestic level on the basis of an analysis of 43 international governance regimes and 33 domestic jurisdictions. In examining this practice, the committee sought to “understand and substantiate to what extent the present-day global governance of cultural heritage is inclusive and participatory.”Footnote 6 The present case note summarizes the most important findings of the committee and critically reflects upon some of the consequences of its conclusions for the field at large.

Definitions and methodology

For the purposes of the report, the committee defines global cultural heritage governance as “involving a wide spectrum of regulatory, institutional and policy frameworks regarding and/or affecting cultural heritage, and operating beyond a single state.”Footnote 7 Moreover, such governance “takes place with full respect for human dignity and the observance of human rights; it does not undermine or challenge state sovereignty and sovereign cultural heritage competences; and it is built upon the rule of law.”Footnote 8 In adopting this definition, the committee captures the conflicting strands at work within the practice of heritage governance. On the one hand, it is clear that cultural heritage regimes such as the World Heritage Committee have been dogged by complaints of human rights violations, despite the fact that global cultural heritage governance seeks to commit itself to human rights standards.Footnote 9 Scholars often place the blame for this state of affairs at the feet of the other core normative element of the committee’s definition: that global cultural heritage governance “does not undermine or challenge state sovereignty and sovereign cultural heritage competences.”Footnote 10 Despite adopting a definition of cultural heritage governance that explicitly includes respect for human rights, the committee ultimately also appears to share this broader critique as the report explicitly challenges the overwhelming presence of the state in matters of global cultural heritage governance.Footnote 11

Indeed, one of the committee’s core conclusions is that “[l]egal regimes should be designed or reformed to convey clearly that heritage identification and safeguarding are not an exclusive prerogative of the state, or of some abstract international community, but instead primarily of affected heritage communities.”Footnote 12 In this sense, the preoccupation of the committee with the role of the state in cultural heritage governance illustrates its position as departing from a disciplinary perspective informed by public international law; while the role of experts is also critiqued, they are not the sole focus in the same way that they are in the work of other cultural heritage scholars where the politics of expertise often looms large.Footnote 13 By framing the central problem through the lens of the perennial anxieties of international legal scholars about the role of the state in the contemporary international legal order,Footnote 14 the report thus illustrates an additional facet of the broader debate on community participation in heritage governance.

The report adopts a fairly broad approach to the types of legal regimes it examines,Footnote 15 focusing not only on the usual suspects within the United Nations Educational, Scientific and Cultural Organization (UNESCO) (such as the 1954 Hague Convention, the 1970 UNESCO Convention, the 1972 World Heritage Convention, the 2001 Underwater Heritage Convention, the 2003 Intangible Cultural Heritage Convention, and the 2005 Cultural Diversity Convention) but also a range of human rights regimes (such as the Human Rights Council, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the reports of the Special Rapporteur in the field of cultural rights), several regional organizations (such as the Organization of Islamic Cooperation; the European Union; the Council of Europe; the Organization of African Unity; the Organization of American States; the Association of Southeast Asian Nations, and the South Asian Association for Regional Cooperation), and specialized organizations (such as the International Labour Organization, the World Trade Organization, and the World Bank).Footnote 16

The report clearly illustrates how far the topic of cultural heritage reaches in international law and how many international organizations are engaged with it in one way or another.Footnote 17 Thus, the committee notes that “[t]he examination of the practice of the various agencies of the UN has evidenced that they refer to cultural heritage as a well-established notion in the international legal vernacular,” drawing attention to the role played by UNESCO in shaping the agendas of bodies such as the United Nations (UN) Security Council with respect to cultural heritage.Footnote 18 This not only affirms that heritage law should certainly not be considered a marginal field within the broader study of public international law but also that those seeking to engage with it need to draw upon a multiplicity of legal perspectives.

For each of the international organizations that they analyzed, the committee members were asked to examine the framing of the concept of participation by the organization, being guided by three questions: “(1) Does the organization define who gets to participate? If so, in what terms?; (2) What is the nature of participation (consultation/consent/observation/other)?; (3) In what contexts does participation take place?”Footnote 19 The Final Report subsequently outlines general practices, shortcomings, and good practices along four axes of participation: the actors granted participation; the access of these actors to participatory mechanisms; the scope of participatory governance; and the effectiveness of these mechanisms.Footnote 20

At the domestic level, the committee members carried out a comparative analysis of 33 national jurisdictions.Footnote 21 The committee members were each tasked with analyzing a range of factors with respect to each jurisdiction, such as the main domestic legal frameworks that affect cultural heritage at the domestic level; which stakeholders are represented and within which frameworks; and what types of participation are made accessible to these stakeholders with respect to the various aspects of heritage governance, such as inscription decisions, safeguarding processes, or budgetary decisions.Footnote 22

The current state of participatory global cultural heritage governance

The fragmentation of international law looms large in the report; as the committee notes, “the regulatory basis for global cultural heritage governance is profoundly compartmentalized into specialized, and methodologically fragmented regimes that often lack harmony.”Footnote 23 This particular problem assumes greater proportions when it comes to the question of fostering participation in global governance as the main doctrinal developments in this area have been driven by other international legal regimes. As is noted in the committee’s report, a case in point is international environmental law, where the principle of public participation in environmental decision-making has been firmly entrenched in agreements such as the 1992 Rio Declaration and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).Footnote 24 As the committee points out, the law of culture has thus far lagged behind in these developments, with public participation in cultural heritage usually being understood in the context of “participatory forms of cultural manifestations, enabling the wider public to more actively participate in cultural activities, to access cultural goods and products”Footnote 25 rather than participation in heritage governance as such. The chief exception to this trend is the regime established by the Faro Convention of the Council of Europe, which explicitly contemplates a right to benefit from cultural heritage and establishes standards for public participation in heritage matters.Footnote 26

The fact that the most concrete elaboration of participatory rights in cultural heritage governance thus far has emerged at the regional level is not necessarily coincidental. Indeed, even within international law at large, the majority of developments with respect to the principle of public participation since the adoption of the 1992 Rio Declaration have emerged from regional organizations, such as the aforementioned Aarhus Convention (adopted under the aegis of UN Economic Commission for Europe) and, most recently, the Escazú Agreement on Access to Information, Public Participation and Justice in Environmental Matters (adopted in 2018 within the UN Economic Commission for Latin America and the Caribbean), although the latter is not mentioned in the committee’s report.Footnote 27

Numerous commentators have interpreted these developments as an indication that the future of individual and community participation in international law is to be regionally, not globally, determined.Footnote 28 For its part, the committee considers that “[r]egional organizations can set examples of optimal participation through their own standard-setting activities”; as such, “[t]he importance of regionalism is key in opening up the possibilities of imagining participation” in the law of culture.Footnote 29 While an increased emphasis on regional approaches may very well be able to break the impasse in the development of participatory principles for cultural heritage governance, it also raises further questions. How should scholars and practitioners view such approaches in light of the specter of the fragmentation of international law, for example? And is it possible (and justifiable) to adopt different regional standards of participation within global governance regimes such as the World Heritage Convention, and what place do such procedural standards hold vis-à-vis globally mandated substantive human rights such as the right to housing, the right to private and family life, or the right to take part in cultural life? These questions indicate that the committee’s report should be seen as the starting point for a broader discussion on the issue of participation in cultural heritage law.

The fragmentation of the law of culture affects not only the compartmentalization of cultural heritage governance into separate legal regimes but also the diversity of the actors involved within these regimes. The committee’s report explicitly draws attention to the wide range of actors involved in cultural heritage governance: states; international organizations such as UNESCO; experts and non-governmental organizations; and “museums, collectors, possessors, owners, dealers in cultural property, and the community in general.”Footnote 30 In light of its focus on participation, the committee zooms in on one of these groups in particular: communities. Thus, one of the committee’s core recommendations on the basis of its program of work is that “[l]egal regimes should be designed or reformed to convey clearly that heritage identification and safeguarding are not an exclusive prerogative of the state, or of some abstract international community, but instead primarily of affected heritage communities.”Footnote 31

In framing the question of whose participation in global cultural heritage governance should serve, the report places great stock in the use of the “all-affected principle,”Footnote 32 which holds that “all those who are affected by a given social structure or institution should have standing as subjects in relation to it.”Footnote 33 While the all-affected principle is a concept drawn from the political philosophy of democracy, it nonetheless provides a useful scaffolding from which to examine the question of participation in international legal regimes such as cultural heritage governance.Footnote 34 In this respect, the committee’s approach will hopefully prompt further debate on the role to be played by communities not only within scholarship on heritage law but also within other scholarship concerned with the position of communities affected by international governance.

The committee argues that “[t]here is a case to be made that international heritage law should be geared primarily at protecting the interests of heritage communities,”Footnote 35 relationally defined as “groups who are not states, nor UNESCO, and at the same time have no claim to scholarly expertise with respect to their heritage, but have expertise based on their experience with it, by living in, with, or around heritage, or practicing it as part of their cultural lives.”Footnote 36 However, the report is also quick to acknowledge that “it would be impractical (and sometimes inadvisable) to suggest that communities replace the state entirely in the governance of cultural heritage and other resources … the objective is to broaden the field of participants” rather than replacing one participant with another.Footnote 37 In doing so, the report comes full circle to its original definition of international cultural heritage governance as a form of governance that does not undermine state sovereignty. However, the main question to be answered in this regard is whether the field of participants in global cultural heritage governance can indeed be broadened in such a manner without creating insurmountable impasses in decision-making processes.

In any event, the result of the committee’s first phase of work with respect to the practice of 43 international governance regimes underlines that “there is a great inconsistency in approaches across various bodies” with regard to the ability of heritage communities to participate in these regimes, with the only constant being the continuing central role of the state.Footnote 38 Similarly, with regard to the access of these actors to participatory mechanisms, the committee emphasizes that in most cases the final decision on inscription or management at the international level remains with the state; moreover, “[t]he increasing complexity of … procedures in several UNESCO regimes, including periodic reporting and participating in developing nomination files, is being progressively recognised as posing challenges for the full participation of communities, groups and individuals.”Footnote 39

Moving to the scope of the participation modalities granted to heritage communities, the committee concludes that “participation still appears to be primarily consultative only, and to take place early in the process of decision-making,” going so far as to state that “the issue of participation being restricted to observation recurs in nearly all instances of global governance analysed by the Committee.”Footnote 40 Finally, when participation does take place, it is also often ineffective: as the committee notes, “participation is often outside of international fora and restricted to other environments which may be less effective in bringing up issues that go against state priorities, since the state will act as a filter of those participation forms when bringing them to international venues.”Footnote 41 Participation is thus often paternalistic or tokenistic rather than truly transformative.Footnote 42

The committee does note nonetheless that progress has been made in recent years with respect to fostering participatory cultural heritage governance, pointing toward good practices developed within the context of UNESCO’s World Heritage Convention and the Intangible Cultural Heritage Convention, which “provide for the engagement of local communities in the designation and management of cultural heritage” as a result of the amendment of each convention’s operational guidelines and operational directives, respectively.Footnote 43 While the report does not provide specific examples in this regard, the past two decades have indeed evinced a gradual shift not only toward the acceptance of Indigenous management systems with respect to World Heritage sites, such as at the Laponian Area site in Sweden and the Chief Roi Mata’s Domain in Vanuatu, but also toward the direct role of Indigenous peoples in initiating and preparing World Heritage nominations, such as in the case of Pimachiowin Aki in Canada and Budj Bim Cultural Landscape in Australia.Footnote 44

Simultaneously, recent practice indicates that the guarantees provided by these amendments to the conventions’ operational guidelines do not always translate to better outcomes for communities, with the contentious inscription of the Kaeng Krachan Forest Complex on the World Heritage List in 2021 being a case in point.Footnote 45 Similarly, scholars have also expressed concerns about the veracity of the claims made by states with regard to community participation in the nomination of elements on the lists established by the Intangible Cultural Heritage Convention.Footnote 46 A welcome addition to the committee’s report would have thus been to reflect further on how these drastically different outcomes remain possible and which steps can be taken to ensure that states respect existing guarantees of participation in international governance.

In its second phase of work, the committee members examined domestic practices and produced reports covering 33 jurisdictions; the report provides a concise summary of these findings, which helps to lift the veil shrouding the boundaries between international and domestic cultural heritage governance.Footnote 47 This is particularly useful, given that the domestic law of the state is usually seen as a ‘black box’ from the perspective of international lawyers. The results of the committee’s work underline the diversity of cultural heritage issues at the domestic level, with cultural heritage being included in a range of legal fields, such as constitutional law, urban or local planning legislation, criminal law, intellectual property law, Indigenous rights, and administrative law. One important finding of the committee with respect to domestic practices of cultural heritage participation is that “[w]hen heritage is framed within areas of law where participation or private agency are more common, participation is strengthened.”Footnote 48 In areas of law where state discretion is more common, such as administrative law, the report concludes that this “has a clear effect of limiting participatory governance possibilities, or at the very least relegating them to a mere advisory or consultative status.”Footnote 49 This conclusion underlines the importance of considering the interplay between domestic and international law when considering new proposals for the fostering of community participation, whether in relation to global heritage governance or beyond.

Of further interest is the question of the actors granted the ability to participate in heritage governance at the domestic level: here, the report notes that “in most countries the state holds the prerogative on deciding whether to safeguard heritage.” Subsequently, “participation of non-state actors only happens after that initial safeguarding decision, meaning it is inevitably a mediated participation.”Footnote 50 Further elaboration on this point would have been welcome as the individual reports of committee members no doubt venture further into the question of the abilities of individuals and communities within different jurisdictions to challenge such initial decisions taken by the state – for example, through the vehicle of administrative law. However, as the report acknowledges elsewhere, the state cannot simply be “imagined away” out of the process of heritage safeguarding, whether at the international or the domestic level.Footnote 51 Instead, there is a need for the development of additional mechanisms in which the prerogatives of the state can be balanced against those of communities. The report provides a number of useful examples in this regard, such as the possibility of direct democracy at the stage of listing or inscription, as can be found in countries such as Switzerland.Footnote 52 Other options proposed within the report drawn from developments at the domestic level involve the removal of boundaries with respect to the ability of communities to acquire legal personality in heritage matters or ensuring that standards for legal standing remain fairly open and, thus, accessible to community actors.Footnote 53

Committee recommendations and proposals

The report presents several options for reforming global cultural heritage governance, roughly divided into two categories. The first of these is normative reform, which focuses on whether there are certain “international legal requirements that all institutions should follow” with respect to the treatment of individuals and communities as a matter of general international law (with the implication being that such requirements would automatically be binding on all states).Footnote 54 The committee characterizes the normative reform option as de lege ferenda, although one might equally be able to argue that the outlining of certain core procedural standards could be considered as an exercise in identifying lex lata. Footnote 55 Comparisons can be drawn here with proposals to formulate such standards in the scope of work on global administrative law or human rights law.Footnote 56

The most concrete aspect of the committee’s recommendations in relation to the normative reform of global cultural heritage governance relates to the principle of free, prior, and informed consent (FPIC).Footnote 57 The committee considers that the FPIC of vulnerable communities, such as minorities or Indigenous peoples, should be required “before a community’s heritage is used internationally.”Footnote 58 In doing so, it argues that FPIC should indeed be considered as ultimately requiring the consent of these communities rather than their mere consultation – the latter being the case, for example, under ILO Convention no. 169 – thereby adopting a progressive definition of the principle of FPIC.Footnote 59 The committee justifies this choice by noting that standards focused on consultation rather than consent have historically been “used as a shield to validate decisions made by the stronger actor, which probably would have been made similarly even without consultation.”Footnote 60 Instead, it argues that the role of legal principles such as FPIC should be to “[correct] power imbalances”; providing communities with the ability to withhold consent can thus address the inherent asymmetries between local communities and the state.Footnote 61 However, the committee appears to stop short of arguing that this particular interpretation of FPIC can also be construed as a legal obligation generally applicable across all international organizations with respect to participation in global governance.

In any event, the committee’s main recommendations do not relate to normative reform but, rather, to a second category: that of institutional reform, in which mandates for the participation of affected communities are examined from the perspective of each specific international institution. It is this option that the committee focuses on in the majority of its conclusions for stakeholders within the field of heritage governance—albeit still targeting its proposals at the broadest possible level. The committee considers that “participation should not be treated as a concession on the part of states, but as a right of those affected by decisions of the relevant organization or subjected to their constitutional reach,” which aims toward establishing consent (in situations affecting “historically oppressed and marginalized minorities, including Indigenous groups”)Footnote 62 or consensus (in non-minority contexts).Footnote 63 As such, “[d]ifferent levels of participation may be accorded when doing so will assist in correcting historical disadvantage and/or ongoing power asymmetries.”Footnote 64 If consensus is not possible, the most affected stakeholder should prevail; if there are multiple stakeholders that are equally affected by a decision but that hold opposing views, then the committee considers that the status quo must be maintained in the interests of protecting the heritage at stake.Footnote 65 At a more practical level, the committee calls for uniformity of modalities and procedures of participation across the UN system, in which participation is transparent and accessible for communities.Footnote 66 This involves “due consideration of language, digital, logistical, and other barriers to participation.”Footnote 67

These points are further concretized in the resolution adopted pursuant to the committee’s report by the ILA’s eightieth conference, which proposes a number of reforms for UNESCO and the organs within the organization that oversee the implementation of international heritage treaties. Some of these proposals are furthermore echoed in a similar set of recommendations to “any other international and regional intergovernmental and non-governmental organisations and authorities with obligations in the area of cultural heritage governance”: the International Institute for the Unification of Private Law (UNIDROIT), in relation to its 1995 Convention on Stolen or Illegally Exported Cultural Objects; the UN human rights treaty bodies; and national and local authorities.Footnote 68 A number of these proposals will be examined here.

First, in relation to reforms for UNESCO and other relevant international organizations, the resolution proposes a number of amendments to the applicable operational guidelines and directives of these organizations, such as the recognition of the right to participate in decision-making about heritage governance. This right has been widely recognized with respect to environmental decision-making, including decision-making within international fora, but has yet to be concretely endorsed by the governing bodies of the cultural heritage conventions such as UNESCO.Footnote 69 A further recommendation made with respect to UNESCO and its organs is to amend the relevant operational guidelines and directives to “include greater participation of non-state actors in the definition, listing, and monitoring of heritage safeguarded by international instruments.”Footnote 70

One shortcoming of the report with regard to this point is that it is not entirely clear whether the proposed amendments should relate to participation safeguards in decision-making processes at the domestic level with respect to heritage that is safeguarded by international law or, conversely, to participation directly within these decision-making processes at the international level. Both levels of participation have a role to play in securing a stronger position of communities vis-à-vis states in global heritage governance, yet, at present, most operational guidelines and directives do not establish safeguards for participation within international fora; in this respect, developments within international environmental law could lead the way.Footnote 71 By contrast, a great deal of progress has been made in recent years in the operational directives and guidelines of UNESCO’s cultural conventions with respect to guarantees for participation at the domestic level.Footnote 72 Since the committee’s report does not explicitly distinguish between participation at the domestic, regional, or international level, the importance of these developments (and, conversely, the lack of progress with regard to the elaboration of truly international participation standards) is somewhat obscured.

The committee’s resolution also calls upon the UN human rights treaty bodies to recognize the right to participate in decision-making as extending to matters relating to cultural heritage. As discussed in the report, the existence of such a right has previously been endorsed by the Special Rapporteur on cultural rights.Footnote 73 The Special Rapporteur has thus noted that the right to take part in cultural life guaranteed by Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights “also includes the right to participate in the identification, interpretation and development of cultural heritage, as well as to the design and implementation of preservation/safeguard policies and programmes,”Footnote 74 calling upon states to establish procedures that can guarantee such participation.Footnote 75 However, it is important to note that the existence of such a right has yet to be clearly endorsed outside the setting of the work of the Special Rapporteur.

The resolution moreover proposes that organizations should adopt “measures that acknowledge the special importance of heritage to minority and Indigenous groups, and attribute considerable weight to minority and Indigenous views over those of states when minority and Indigenous heritage is under consideration.” This statement is unfortunately less ambitious than the approach of the committee in its report with respect to the principle of FPIC. By merely insisting that organizations should “attribute considerable weight” to the views of minorities and Indigenous peoples, as opposed to requiring their consent, this proposal is, furthermore, somewhat out of step with doctrinal developments with respect to the principle of FPIC in which consent is considered to be required “if the decision could result in a substantial impact on a people’s fundamental rights.”Footnote 76 That being said, some commentators remain doubtful whether this interpretation of FPIC could be considered customary international law;Footnote 77 in any event, such an obligation would mainly be directed at states and not necessarily at international organizations. Further clarification by the committee on this point would have been welcome, particularly as the operational guidelines of several cultural heritage treaties establish FPIC requirements yet provide no further guidance on what these requirements substantively entail in the context of international heritage governance.

Finally, the resolution makes several significant recommendations to national and local authorities, including the “expansion of options that allow for communities to have a greater say in how budgets are allocated to, and spent on, cultural heritage governance and safeguarding,” enhancing the presence of community stakeholders in cultural policy fora, including those that take “financial and procedural decisions affecting cultural heritage”; the “removal of procedural obstacles that impinge upon the ability of non-state actors to try and influence, politically or judicially, the governance of cultural heritage”; and, finally, the “facilitation of procedural ways and means, including via access to justice, to enable non-state actors to exercise control over their heritage and its governance.”

The future of participation in cultural heritage governance

Ultimately, the answer to the question that the committee set out to examine – whether global cultural heritage governance is inclusive and participatory – is clear on the basis of its analysis of international and domestic practice: in its current form, global cultural heritage governance is not inclusive as it is often limited to states or a select group of expert actors.Footnote 78 Even when other actors beyond this select circle are included within global heritage governance, they are often not given the tools to participate in ways that can meaningfully influence decision-making processes: as such, “[t]he embrace of participation needs to be matched by proper funding and co-design of the decision-making rules. Participation needs to be transparent and accessible, and its entry points easily identifiable.”Footnote 79

Although the report acknowledges that the state has a legitimate role to play in ordering global heritage governance and implementing heritage law within the individual sovereign sphere, it simultaneously recognizes that affected communities need to have a seat at the table, particularly in light of the growing influence of human rights within global debates on international governance.Footnote 80 In doing so, one comes full circle in the delicate balancing act between respect for human rights and state sovereignty that the committee posited in its introductory definition of global heritage governance. The report raises several fundamental questions in this regard: what kind of change is necessary to unsettle this status quo, and how can it be achieved? Furthermore, to what extent can procedural reforms facilitate radical change in existing relationships between states and affected communities and thereby rectify historical inequalities?

The committee primarily focuses on individualized institutional reforms but acknowledges that it does so at the risk of further encouraging “institutional fragmentation and regime diversity.”Footnote 81 Indeed, the problem of such a case-by-case approach to the issue of participation in global cultural heritage governance is that it can lead to different responses to similar problems, depending on the geographical location of an affected community or the legal framework within which heritage safeguarding activities are taking place. This carries an inherent risk of arbitrariness and could ultimately undermine the legitimacy of the broader project of global heritage governance.

Achieving such institutional reforms also requires wading through an additional layer of state consent in order to amend the operational guidelines or directives of the cultural treaties at stake. It is for this reason that the report’s broader focus on the right to participate in decision-making is particularly welcome as it underlines the need for cross-sectoral initiatives that can facilitate the harmonization of international heritage law with other areas of international law.Footnote 82 Human rights developments within the UN appear particularly promising in this regard, such as the work of the Special Rapporteur in the field of cultural rights highlighted within the committee’s report. More recent developments not discussed in the report also hold promise, such as the broader mobilization of several Special Rapporteurs to highlight the impact of the World Heritage inscription of Kaeng Krachan National Park in Thailand on the Karen peopleFootnote 83 or the decision of the Special Rapporteur on the rights of Indigenous peoples to dedicate his annual report to the UN General Assembly to the issue of protected areas and the rights of Indigenous peoples.Footnote 84 Such cross-fertilization of heritage issues to organizations beyond UNESCO is particularly relevant in light of the relative weakness of enforcement mechanisms within international heritage law. Indeed, the committee’s report specifically argues in favor of expanding the mandate of the UN Special Rapporteurs “to investigate modalities of participation across other human rights mechanisms and beyond in the UN system,”Footnote 85 an approach that could potentially help to bridge the enforcement gap with respect to participatory standards in UNESCO’s cultural conventions.

Fruitful work has also been carried out on similar issues in neighboring fields of international law such as international environmental law; heritage lawyers and scholars should pay heed to these broader debates in order to strengthen synergies between these areas of study and practice.Footnote 86 While the committee’s report elides the question as to whether there are certain global procedural or substantive standards that should be met with regard to participation in global governance, it nonetheless underlines the relevance of adopting a holistic approach by virtue of its wide-ranging analysis of numerous international regimes both within and beyond international heritage law. When viewed from this perspective, the fragmentation of international law also presents opportunities for those seeking to reform international heritage law: the ability to draw upon developments in neighboring fields of international law by utilizing approaches such as systemic integration.Footnote 87

It is for this reason that the committee’s report is of interest not only to those working on issues related to cultural heritage who are keen to see the issue of participation in cultural heritage governance framed through a legal lens but also for international legal scholars and practitioners working on issues of participation more broadly. Given that the purpose of the committees of the ILA is to not only clarify the current status of international law but also to outline its future development, the committee’s recommendations will hopefully form a useful point of reference, not only for academics but also for members of civil society and the representatives of the communities affected by global heritage governance.

Footnotes

1 International Law Association (ILA) Committee on Participation in Global Cultural Heritage Governance (Committee on Cultural Heritage Law), Final Report, 2022, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4220401 (accessed 11 October 2022) (henceforth Final Report). On the previous meetings of the committee, see Spence Reference Spence2018; Dachlan Reference Dachlan2019.

2 ILA, Resolution 01/2022, 2022, https://www.ila-hq.org/en_GB/documents/resolu-1-1 (accessed 11 October 2022).

3 On the work of the Committee on Cultural Heritage Law, see Nafziger Reference Nafziger2021.

6 Final Report, para. 8.

7 Final Report, para. 26.

8 Final Report.

9 On human rights and heritage governance, see Silverman and Ruggles Reference Silverman and Ruggles2007; Ekern et al. Reference Ekern, Logan, Sauge and Sinding-Larsen2012; Durbach and Lixinski Reference Durbach and Lixinski2017; Larsen Reference Larsen2018.

10 Final Report, para. 26.

11 Final Report, para. 140(2).

12 Final Report, para. 140(2). To this, the committee adds: “State entities, and experts alongside them, need to understand that heritage safeguarding is not possible or sustainable in a way that maintains its human dimension without equal input from other interested parties, thereby necessitating that state and expert actors relinquish some of their privilege in heritage governance” (para. 140(4)).

13 See Smith Reference Smith2006.

15 For a full overview, see Final Report, para. 10.

16 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231; Convention on the Protection of the Underwater Cultural Heritage, 2 November 2001, 2562 UNTS 3; Convention for the Safeguarding of Intangible Cultural Heritage, 17 October 2003, 2368 UNTS 3; Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, 2440 UNTS 311.

17 See also Final Report, paras. 22–24.

18 Final Report, para. 22.

19 Final Report, para. 13.

20 See Final Report, sections IV, VI.

21 Afghanistan, Angola, Antigua and Barbuda, Australia, Belgium, Brazil, Canada, Cape Verde, Colombia, Dominica, Germany, Guinea-Bissau, Grenada, Ireland, Italy, Japan, Malaysia, Mozambique, the Netherlands, New Zealand, Pakistan, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, São Tomé and Príncipe, Saudi Arabia, Singapore, South Africa, Spain, Switzerland, the United Kingdom, and the United States.

22 Final Report, para. 15.

23 Final Report, para. 6. On the fragmentation of international law, see Koskenniemi and Leino Reference Koskenniemi and Leino2002.

24 Final Report, para. 40. See further Raustiala Reference Raustiala1997; Ebbesson Reference Ebbesson, Rajamani and Peel2021; Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 28 June 1998, 2161 UNTS 447 (Aarhus Convention).

25 Final Report, para. 34.

26 Framework Convention on the Value of Cultural Heritage for Society, 27 October 2005, CETS no. 199, arts. 4(a), 12. See Zagato Reference Zagato, Adell, Bendix, Bortolotto and Tauschek2015; Lixinski Reference Lixinski, Waelde, Cummings and Pavis2018; see also Final Report, para. 55,

27 Escazú Agreement on Access to Information, Public Participation and Justice in Environmental Matters, 27 September 2018, Doc. LC/PUB.2018/8/Rev.1 (Escazú Agreement). See Olmos Giupponi Reference Olmos Giupponi2019; Stec and Jendrośka Reference Stec and Jendrośka2019.

29 Final Report, para. 138.

30 Final Report, para. 47.

31 Final Report, para. 140(2).

32 Näsström Reference Näsström2011.

33 Final Report, para. 31.

34 See Goodin Reference Goodin2007; Koenig-Archibugi Reference Koenig-Archibugi2017; Sändig, Von Bernstorff, and Hasenclever Reference Sändig, Von Bernstorff and Hasenclever2018.

35 Final Report, para. 34.

36 Final Report, para. 48.

37 Final Report, para. 50.

38 Final Report, para. 77.

39 Final Report, para. 82.

40 Final Report, para. 84.

41 Final Report, para. 85.

42 Final Report, paras. 131, 137. In order to achieve this goal, the committee argues that “participation should be direct and unfiltered”; true “[p]articipation both enables and assumes that values other than those for which the specialized agency were created be on the table in decision-making processes” (para. 131).

43 Final Report, para. 116. Other good practices cited by the committee include the Economic and Social Council’s Permanent Forum on Indigenous Issues and the work of the International Labour Organization’s (ILO) Committee of Experts on the Application of Conventions and Recommendations with respect to Convention no. 169 Concerning Indigenous and Tribal People in Independent Countries, 26 June1989, 1650 UNTS 383 paras. 118, 124 (ILO Convention 169).

44 UN General Assembly 2022, paras. 60, 63.

45 Office of the High Commissioner for Human Rights 2021.

47 Final Report, paras. 87–114.

48 Final Report, para. 91.

49 Final Report, para. 94.

50 Final Report, paras. 96–97.

51 Final Report, para. 50.

52 Final Report, para. 97. However, for a critique of the Swiss approach, see also Hertz Reference Hertz, Adell, Bendix, Bortolotto and Tauschek2015.

53 Final Report, paras. 98, 101.

54 Final Report, para. 60.

55 Particularly in light of the committee’s apparent emphasis that the normative approach it identifies is derived from “general international law.” Final Report, para. 60.

56 See Kingsbury, Krisch, and Stewart Reference Kingsbury, Krisch and Stewart2005; Benvenisti Reference Benvenisti2014; Stewart Reference Stewart2014; Cassese and D’Alterio Reference Cassese, D’Alterio and Cassese2016; Peters Reference Peters2016; von Bogdandy, Goldmann, and Venzke Reference Von Bogdandy, Goldmann and Venzke2017.

57 Referred to by the committee as free, prior, informed, and sustained consent.

58 Final Report, para. 61; see also para. 84.

59 Cabrera Ormaza Reference Ormaza and Victoria2018; ILO Convention 169.

60 Final Report, para. 67.

61 Final Report, para. 67.

62 Final Report, para. 140(1).

63 Final Report, paras. 132, 140(5).

64 Final Report, para. 140(1); see also para. 140(3).

65 Final Report, paras. 132, 140(1).

66 Final Report, paras. 131, 135.

67 Final Report, para. 140(6).

68 Resolution 01/2022; Convention on Stolen or Illegally Exported Cultural Objects, 24 June 1995, 2421 UNTS 457.

69 For example, in the 1992 Rio Declaration on Environment and Development, 12 August 1992, 31 ILM 874 (1992), the Aarhus Convention, and the Escazú Agreement, as discussed above; see also Ebbesson Reference Ebbesson, Rajamani and Peel2021, 364. Beyond the context of specific treaty regimes, see Human Rights Council 2013, paras. 29, 36–40; 2015, para. 42; 2018, 12.

70 Resolution 01/2022.

71 Aarhus Convention, art. 3(7); Economic Commission for Europe, Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, UN Doc. ECE/MP.PP/2005/2/Add.5, 20 June 2005, annex; Escazú Agreement, art. 7(12).

72 In relation to the World Heritage Convention, see, e.g., Operational Guidelines of the Convention, 2021, paras. 12, 64, 111, 123 (which were amended at the forty-third session of the World Heritage Committee in 2019 to include additional references to rights-based and participatory approaches to heritage management as well as the free, prior, and informed consent of Indigenous peoples).

73 Final Report, paras. 53–54.

74 Human Rights Council 2011, para. 78; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3.

75 See also Final Report, para. 81.

76 Jones Reference Jones2020, 141–42; see also Barelli Reference Barelli, Hohmann and Weller2018, 269. However, compare Rombouts Reference Rombouts2014, 220, who views FPIC as a “process of negotiation and consultation.”

77 De Moerloose Reference De Moerloose2020, 229–30.

78 Final Report, para. 131.

79 Final Report, paras. 131, 135.

80 Final Report, para. 140(3).

81 Final Report, para. 60.

82 Final Report, para. 132.

83 Office of the High Commissioner for Human Rights 2021.

84 UN General Assembly 2022; see also Office of the High Commissioner for Human Rights 2022.

85 Final Report, para. 134.

87 As established by the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 31(3)(c). See McLachlan Reference McLachlan2005.

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