Dr Shlomit Wallerstein is a CUF Lecturer in Law at the University of Oxford and Fellow of St Peter’s College, Oxford.
Recently (on 29 June 2012), the United Nations Educational, Scientific and Cultural Organization (UNESCO) accepted the Palestinian application for the recognition of the Church of Nativity and the Pilgrimage Route as a world heritage site and included it in the World Heritage List. At the same time, it also added it to the list of ‘World Heritage Sites in Danger’. The site is described as located in Bethlehem. What is less known is that part of the pilgrimage route recognised as part of the site goes through East Jerusalem, which is currently under Israeli control. Israel opposed the recognition both with regards to the Church of Nativity, which is located in Bethlehem, and with regards to the pilgrimage route, which passes in part in an area under Israeli control and over which Israel claims sovereignty (a claim rejected by many in the international community). Leaving aside questions about the legitimacy of the recognition of Palestine as a state by UNESCO, the recognition of this site raises interesting questions about the relationship between the location of the site and the state that is applying tor recognition of the site as a world heritage site.
According to Art. 3 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereafter: the Convention) it is the responsibility of each state to identify and delineate the different properties situated on its territory that should be recognised as either cultural or natural world heritage. Each State Party should then submit a tentative list of all these sites to UNESCO in accordance with Art. 11(1). UNESCO will only consider sites included in these lists.
But what happens where a site is found on a disputed territory? These cases create two potential scenarios. The first is that the state that claims sovereignty over the territory and which has effective control over that territory would apply to add the site on the World Heritage List. Assuming for the sake of this argument that Palestine is a state, its application concerning the Church of Nativity is a situation of this type as the site is found in Bethlehem, which is under the control of the Palestinians. The second scenario involves applications made by any state who has a claim on the territory on which the site is found but which does not have effective control over it. The Palestinian application to include the pilgrimage route, which is found (in part) in East Jerusalem (assuming for these purposes that this is a disputed territory), is an example of this second type scenario.
The only reference in the convention to sites found on disputed territory is found in Art. 11(3) of the Convention which states:
“…The inclusion of a property situated in a territory, sovereignty or jurisdiction over which is claimed by more than one State shall in no way prejudice the rights of the parties to the dispute.”
As we can see the Article says nothing about whether applications of both types can be considered by UNESCO. It only clarifies that a decision to include a site on the list at a request of a state who has a territorial claim on the relevant territory has no implication on the legal rights of any of the parties to the territorial dispute.
Before we go on to examine the two scenarios set out above let me address one further scenario – an application by a state who has effective control over the site but which does not make any sovereignty claims over the territory (e.g. the US occupation of Iraq or Israel in Southern Lebanon). It seems clear to me that effective control over a territory, on its own, will not suffice. The text of the Convention refers several times to the state and ‘its territory’. If effective control suffices it would mean that we regard territory under effective control as territory of that State. This is not a natural construction of the term ‘its territory’ (though I accept that in other contexts we may regard territory under effective control as being territory of that state, eg. in human rights law). Furthermore, allowing the state of effective control (but which has no claims to sovereignty) to apply to add a site to the list would allow it to impose obligations on the state on whose territory the site actually is. Presumably, once the site is on the list it will remain there even if the territory shifts back to the sovereign state (there is no express provision for removal from the list. Although, the power of the sovereign state to see that it is done can perhaps be implied from Art. 11(3) in accordance with which ‘inclusion of a property in the World Heritage List requires the consent of the state concerned’, at least if one gives an expansive meaning to ‘inclusion’ which encompasses continued presence).
It is also clear, that the state that claims sovereignty over territory and which has effective control over the site should be permitted to apply to add a site to the World Heritage List. As the one controlling the territory it is best placed to protect and conserve the site and this sits well the primary duty of states, recognised in Art. 4 of the Convention to identify, protect, conserve, present and transmit to the next generation the sites that are situated in their territory.
The second scenario, however, is more problematic. Here, the application is made by a state that cannot effectively protect and conserve the site. On the one hand, there is nothing in the language of the Convention that prevents States Parties from applying to include such sites on the World Heritage List if they do not have effective control over it. The aim of the Convention is to protect and preserve cultural and natural sites which have universal heritage value. This aim may be emphasised where a site is found on a disputed territory and the danger of its destruction increases because the state controlling the territory may deliberately try to destroy those sites which are of value to other states that have a claim to that territory. Given the protective aim, so the argument goes, a declaration of a site as world heritage should not be limited only to application by the state controlling the territory. True, in such circumstances the application is made by a state that cannot in itself protect and conserve the site. But that should not detract from the usefulness of the inclusion of the site on the World Heritage List (and potentially also on the List of World Heritage Sites in Danger). After all, all states that are parties to the Convention have an obligation not to deliberately destroy world heritage sites and to cooperate in their protection and conservation (Art. 6). Thus, even if UNESCO decides to include a site found in a disputed territory at the request of a state which does not have control over the territory, the state in control of the territory is still required to uphold its obligation to cooperate with UNESCO.
The main counter argument is based on effectiveness of protection and respect of sovereignty. Article 6 and Art. 11 both refer to ‘the State on whose territory the site is situated’ and much emphasis is placed on the consent of that state at all stages of the process. It is up to that state to prepare a list of suitable sites from which sites are later considered by UNESCO. Any decision to include a site on the World Heritage List has to get the consent of that state (though it is not necessary for the inclusion on the World Heritage Sites in Danger List). Help from other states to identify, protect, conserve and present the site may be given only at the request of the state on whose territory the site is situated (Art. 6(2)). This demand only makes sense if it requires de facto control in addition to legal title. Inevitably, for the help to be meaningful it must come from the state that has effective control over the site. This requirement for consent is important in order to ensure respect for the sovereignty of the state on whose territory a site is found and ensure effective protection and conservation. It is that state that has to carry out the work, protect the site, conserve it and present it. Without the consent of that state the obligations that flow from the recognition of a site as world heritage site would be deemed as an external intervention that undermines the state’s sovereignty. In such circumstances the likelihood of getting the full cooperation of that state is reduced.
Moreover, if the protective-aim claim, on its own, was at the basis of the Convention, then why should it be limited to states who have a claim over a disputed territory? If the aim of a recognition of a site as world heritage is to protect and conserve sites of universal value especially when they are in danger, then why should the Convention not allow any state that thinks a site of such value is in danger be permitted to apply for its inclusion on the World Heritage List, regardless of the location of that site? When the Taliban destroyed the buddhas in the Bamiyan Valley in Afghanistan back in 2001, although there was an international uproar, none of the States Parties to the Convention were permitted to apply for the inclusion of the site in the World Heritage List (and subsequently the list of World Heritage Sites in Danger). It was only the new government of Afghanistan that could apply for such recognition, as it did in 2003. If there is value in a declaration of a site as world heritage even against the will of the sovereign state in whose territory the site is situated then the Convention should have allowed for this principle to take precedence in all cases, not only where a state has a claim over a disputed territory which is not in its control. Most likely, the reason is that States Parties to the Convention would not have agreed to external intervention by UNESCO without their consent. But that means that the Convention should be interpreted in line with the respect demanded by the states to their sovereignty, which usually entails control over a territory. Where the state who claims sovereignty but has no effective control of a site applies to have it added to the World Heritage List against the wishes of the state who has effective control (and claims to sovereignty) it imposes on it obligations thus undermining its sovereignty (technically, World Heritage Listing does not impose obligations on a state party above and beyond those that are already imposed by Articles 4 to 6 in relation to all properties on a state party’s ‘tentative list’. It only confers potential benefits, in the form of access to the world heritage fund. However, World Heritage Listing is a precondition for listing a site on the World Heritage Sites In Danger’ and such listing does create impose obligations on the state). At the same time, by not accepting applications of the state who does not have effective control we do not undermine its sovereignty beyond what is already undermined by the fact that it has no control over its territory.
This argument assumes that adding a site to the world heritage list creates obligations on the state who has effective control over the site, so a state claiming sovereignty but which has no effective control over the site applies to add the site on the list in effect it will create obligations on the state who has effective control over the site. If, however, this is not the case, and states can only legally bind themselves then things change. However, in such cases, the reason offered for rejecting the possibility that a state that has effective control over a territory but no claim to sovereignty over it would apply to add a site to the List would have no bite. Such an application would not create obligations to the state who claims sovereignty over that territory.
Moreover, an interpretation of the Convention as allowing applications by a State not in control of disputed territory inevitably requires UNESCO to engage in some assessment of the validity of the claims over the disputed territory. This is necessary in order to evaluate whether a state can include a site found on a territory over which it has a claim but has no control can be considered in the first place (even if UNESCO’s decision has no effect elsewhere). Yet, the Convention gives no guidance as to what counts as ‘disputed territory’ over which claims of all states parties to the dispute can make applications. This will also take the debate into areas that seems to me to be beyond the scope of UNESCO. Alternatively, it will require UNESCO to accept the claims of rights over disputed territory of all States Parties at face value. Thus, Argentina may be permitted to apply to include a site found in the Falkland Island (or Malvinas) on the World Heritage List, Syria may apply to include a site found on Lebanese Territory (claiming that it is part of ‘big Syria’) and Spain may apply to include sites found in Gibraltar.
It is also worth noting that accepting applications from State Parties concerning sites situated in disputed territory over which the applying state has no control is not a common practice by UNESCO. I found only one other example (though I am happy to be corrected on this) in which UNESCO accepted such application. This was the application made by Jordan in 1981 to include the Old City of Jerusalem and its Walls. On that occasion too, Israel who had the effective control of the relevant territory opposed the application (this, by the way, was the straw that broke the U.S. camel’s back in the 1980s, triggering its withdrawal from UNESCO for twenty or so years). I also did not find any other application made by states to list a site which was situated in a territory over which they had claims of sovereignty but had no effective control.
At the edge of this debate I wonder what are the implications of a decision to accept Palestine’s application concerning sites over which it has no control. Does it mean that Palestine can apply to include any site situated within the pre 1967 borders, the 1948 borders, or maybe any site within Israel (given that there are those who do not recognise the state of Israel and claim that Palestine should extend on the whole territory)?