Stefan Gruber Associate Professor, Kyoto University

1. Stefan GruberAssociate Professor, Kyoto University Mining or Preserving: Large-scale Energy Projects and Heritage in the Asia Pacific12th Annual Colloquium of the IUCN Academy of Environmental LawEnergy for a Fair Society and Safe Planet30 June 2014, UniversitatRovira I Virgili

2. 38th session of the World Heritage Committee, Doha, Qatar, 15 to 25 June 2014 • Request by Australia to modify the boundaries of the World Heritage property ‘Tasmanian Wilderness’ • Potential inscription of the Great Barrier Reef on the List of World Heritage in Danger

3. Cultural heritage • What is considered as valuable and as worthy of being preserved for future generations? • Heritage is a fluid and very active concept, constantly reshaped by discourses, differing interests, varying beliefs, and social, political and ideological developments at international and national levels • Tangible and intangible heritage

4. 1972 World Heritage Convention • Main aims • To identify world cultural and natural heritage • To protect world cultural and natural heritage • Protection strategies • Listing of heritage sites (World Heritage List) • Listing of heritage sites in danger (List of World Heritage in Danger) • Technical and monetary assistance to states in maintenance and restoration of sites (World Heritage Fund) • Monitoring

5. Preamble Noting that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction, Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world, […] Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong, Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole, […]

6. Types of World Heritage • Cultural heritage – monuments, groups of buildings and sites of outstanding universal value • Natural heritage – physical, biological & geological formations, habitats of threatened species and natural areas of outstanding universal value • Cultural landscapes – combined works of nature & man

7. ‘Cultural landscapes’Operational Guidelines • Operational Guidelines, s 47: • Cultural landscapes are cultural properties and represent the "combined works of nature and of man" designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.

8. The World Heritage List • The World Heritage List includes 1007 properties forming part of the cultural and natural heritage which the World Heritage Committee considers as having outstanding universal value. • These include 779 cultural, 197 natural and 31 mixed properties in 161 States Parties. • As of July 2014, 191 States Parties have ratified the World Heritage Convention.

9. World Heritage List (Article 11(1),(2),(3)) • Inclusion by consent of state on which site located • Must be of ‘outstanding universal value’ in accordance with criteria established by World Heritage Committee • If selected placed on World Heritage List

10. Article 3: • ‘It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.’ • Article 4: • ‘Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.’

11. Specific measures (Article 5) • Establishment of policies and services for the protection, conservation and presentation of cultural and natural heritage • Undertake study and research to develop methods to counteract dangers that threaten cultural or natural heritage • Undertake appropriate legal, scientific, administrative and financial measures for conservation

12. Regime for ‘international protection’ • ‘While fully respecting the sovereignty of States on whose territory the cultural and natural heritage…is situated…[that] heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to cooperate’ Article 6

13. Advisory Bodies • Two international NGOs serve as Advisory Bodies: • The International Council of Monuments and Sites (ICOMOS) • IUCN

14. Tasmanian Wilderness

15. Tony Abbott, March 2014: • “We have quite enough national parks. We have quite enough locked up forests already. In fact, in an important respect, we have too much locked up forest. […] Getting that 74,000 hectares out of World Heritage Listing, it's still going to leave half of Tasmania protected forever, but that will be an important sign to you, to Tasmanians, to the world, that we support the timber industry. […] When I look out tonight at an audience of people who work with timber, who work in forests, I don't see people who are environmental vandals; I see people who are the ultimate conservationists”

16. Australia requested the delisting of 174.000 ha of forests, claiming that it consisted mainly of previously logged, degraded trees. • IUCN found that only 10% is regenerating from logging since the 1960s and the area otherwise consists of old-growth forest • The proposed excisions would “remove attributes that were justified as contributing to Outstanding Universal Value by the previous boundary modification, including large areas of natural old growth forests; • b) reduce the integrity of the property through loss of habitat connectivity […] and adopting property boundaries that do not provide adequate protection and management to the property. The proposal may also not have the support of key stakeholders who have been supportive of the boundary as previously defined. • ICOMOS also advised against the request.

17. When are States Parties obliged to protect heritage sites to the utmost of their resources? • It has been argued by the Australian High Court that the ‘outstanding universal value’ does not flow from any inscription as such but from the identification of the property, which is why even a refusal by the World Heritage Committee does not lower the importance of the site once a State Party has identified that value: • What emerges from the terms of the Convention with clarity is that it is for a State Party to identify for itself the cultural and natural heritage on its territory. It is not a matter for the World Heritage Committee. The obligation of a State Party to protect, conserve, present and transmit to future generations the cultural and natural heritage situated on its territory does not flow from any listing upon the World Heritage List. It flows from the identification by the State Party of its cultural or natural heritage, an identification which the State Party is under a duty to make. Once identified, even if there is a refusal to enter such a property on the World Heritage List, it does not cease to be part of the cultural or natural heritage and the obligations imposed by the Convention in relation to it remain in force. The State of Queensland and Another v The Commonwealth of Australia and Another [1989] HCA 36, para 12; (1989) 167 CLR 232, 245-246.

18. World Heritage List in Danger (Article 11(4)) World Heritage Committee may list threatened sites of which major operations are necessary and for which assistance has been requested under this Convention State Party consent not necessary • Threats can be ascertained or potential • Inscription on In Danger list requires programme for corrective measures & monitoring

19. Kathmandu: world heritage in danger from encroaching development • The exceptional urban and architectural heritage of Kathmandu, Patan and Bhaktapur has been severely affected by uncontrolled urban development. The property is composed of seven Monument Zones, which, since the time of inscription in 1979, have unfortunately been seriously altered, resulting in a general loss of authenticity and integrity of the property as a whole. For these reasons the site was inscribed on the List of World Heritage in Danger in 2003. • UNESCO is working with the Nepalese authorities to help them develop a long-term management plan to conserve the remaining World Heritage values of the property and adopt corrective measures to address illegal building activities.

20. Cologne Cathedral, Germany

21. Only 2 deletions to date • Dresden Elbe Valley, Germany • Arabian Oryx Sanctuary, Oman

22. Great Barrier Reef, Australia

23. World Heritage in Australia 2012 1 Heard and McDonald Islands 2 Macquarie Island 3 Tasmanian Wilderness 4a and b Australian Fossil Mammal Sites 5 Lord Howe Island 6 Central Eastern Rainforests 7 Willandra 8 Shark Bay 9 Uluru Kata Tjuta National Park 10 Kakadu National Park 11 Fraser Island 12 Wet Tropics of Queensland 13 Great Barrier Reef 14 Greater Blue Mountains Area 15 Purnululu National Park 16 Royal Exhibition Building and Carlton Gardens 17 Sydney Opera House 18 Convict Sites 19 Ningaloo Coast 17

24. The draft Queensland Ports Strategy (QPS) (October 2013) proposes the establishment of five existing ports as Priority Port Development Areas (PPDAs), four of which overlap the property • Millions of tons of seabed to be dredged to facilitate more coal and gas ships and to be dumped in the Great Barrier Reef • Inadequate EIA • WH Committee: "Based purely on the evidence referenced by the experts, it is clear that the integrity of the site is at risk. We would wish to encourage the State Party [Australia] to urgently review its recent decisions regarding development projects.“ • Decision regarding an inclusion in the List of World Heritage in Danger was deferred to 2015

25. Morning Mist, Rock-Island Bend, Franklin River , TasmaniaPeter Dombrovskis

26. Tasmanian Dams case (1983) • Australian federal government nominated three parks in south-west Tasmania for inclusion on the WHL in November 1981 • Tasmania withdraws its support for listing • Listed in December 1982 • Tasmania authorises the construction of a hydro-electric dam • WHC recommended ‘Australian authorities take all possible measures to protect the integrity of the property’ • Federal government passes heritage legislation • High Court finds that World Heritage Convention imposes international legal obligations on Australia to take appropriate measures for the preservation of the world heritage area • Commonwealth v Tasmania (1982-83) 46 ALR 625 (‘Tasmanian Dam Case’)

27. Concluding remarks • Importance of listing to prevent short-sighted actions at domestic level • International cooperation is the most crucial element • Conservation of sites is a continuous process • The identification of heritage is often controversial and a political process • No enforcement mechanism in World Heritage Convention • Disappointing message to developing countries