and Challenges - Indigenous Peoples’ Cultural Heritage: Rights, Debates and Challenges

Stefan Disko

Introduction

A substantial part of the 2015 study by the UN Expert Mechanism on the Rights of Indigenous Peoples (‘ EMRIP’) on the promotion and protection of the rights of indigenous peoples with respect to their cultural heritage 1 is dedicated to a discussion of UNESCO’s 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’, or ‘the Convention’). The study also contains several important recommendations on World Heritage, aimed at ensuring that the implementation of the Conven-tion is consistent with the UN DeclaraConven-tion on the Rights of Indigenous Peoples (‘UNDRIP’) and that the protection of World Heritage sites ‘does not under-mine indigenous peoples’ relationship with their traditional lands, territories and resources, their livelihoods and their rights to protect, exercise and de-velop their cultural heritage and expressions’.2 Related recommendations of EMRIP are contained in its 2011 Study on indigenous peoples and the right to participate in decision-making,3 and a 2012 proposal adopted on the occasion of the Convention’s 40^th anniversary. 4 The other two UN mechanisms with specifĳic mandates concerning indigenous peoples, the Permanent Forum on Indigenous Issues (‘UNPFII’) and the Special Rapporteur on the Rights of In-digenous Peoples, have also issued a number of recommendations on World Heritage in recent years. 5

1 UN Doc A/HRC/30/53.

2 Ibid, annex, para. 27.

3 UN Doc A/HRC/18/42, annex, para. 38.

4 EMRIP, Report on its fĳifth session (2011) UN Doc A/HRC/21/52, 7 (Proposal 9).

5 See, e.g., UNPFII, Report on the tenth session (2011) UN Doc E/2011/43, paras. 40-42;

UNPFII, Report on the twelfth session (2013) UN Doc. E/2013/43, para. 23; Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya (2012) UN Doc

This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.

The reason for the growing attention paid by the three UN mechanisms to the World Heritage Convention are the repeated concerns raised by indig-enous peoples about violations of their rights in the implementation of the Convention and a lack of regard for their cultural heritage, livelihoods and val-ues in the nomination and protection of World Heritage sites. Considering the increasingly large number of World Heritage sites that are fully or partially lo-cated within the traditional territories of indigenous peoples,6 the importance and urgency of this matter is evident.

The engagement of the three mechanisms with the World Heritage Con-vention is all the more important given that the ConCon-vention is not only the most widely known and ratifĳied, but also the most influential international standard-setting instrument in the fĳield of heritage. Although its application is limited to a relatively narrow range of heritage, namely immovable, tangi-ble heritage of ‘ outstanding universal value’ (i.e. World Heritage sites), it has shaped current understandings of heritage and contemporary practices of her-itage management to a greater extent than any other international instrument.

A main reason for this can be seen in the Convention’s claim to the universality of the values it seeks to protect.7 Because of this claim, it has been necessary for the World Heritage Committee (‘WHC’, or ‘the Committee’), the Conven-tion’s governing body, 8 to constantly adapt and redefĳine the notion of ‘herit-age’ under the Convention, in order to accommodate diffferent peoples’ under-standings and values and protect the Convention’s credibility as an instrument

A/67/301, paras. 33-42; Letter of the Special Rapporteur, James Anaya, to the World Herit-age Committee (18 November 2013) OTH 10/2013, UN Doc A/HRC/25/74, 127.

6 Establishing an exact number of the indigenous sites is difffĳicult. The author estimates that there are around a hundred such sites. Additionally, a large number of indigenous sites are included on States Parties’ tentative lists of potential World Heritage sites in their territories. See <http://whc.unesco.org/en/list> and <http://whc.unesco.org/en/ten-tativelists>.

7 As proclaimed in articles 1 and 2 defĳining the scope of the Convention, but also in several other places including the Preamble.

8 The WHC is an intergovernmental body consisting of 21 States Parties to the Convention.

Established ‘within’ UNESCO according to the Convention (art 8.1), the WHC is assisted by UNESCO’s World Heritage Centre, which functions as its secretariat. The WHC also has three offfĳicial advisory bodies, all of whom are mentioned in the Convention text (arts 8, 13, 14): the International Union for Conservation of Nature (IUCN), the International Council on Monuments and Sites (ICOMOS), and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM). On the roles of the Advisory Bodies, see Operational Guidelines for the Implementation of the World Herit-age Convention (2015) Doc WHC.15/01, paras. 30-37.

equally representative of all the peoples and cultures of the world. This process

‘has had a profound efffect on global practices of heritage management… and on contemporary defĳinitions of heritage’, as Rodney Harrison notes. 9

Some of the strongest criticism over the years of the concept of heritage embodied in the Convention has come from indigenous peoples and has re-lated to its separation of natural and cultural heritage and its focus on tangible aspects at the expense of intangible aspects. As emphasized in EMRIP’s study on cultural heritage, ‘for indigenous peoples, cultural heritage is holistic and encompasses their spiritual, economic and social connections to their lands and territories’. 10 Therefore, ‘[h]eritage policies, programmes and activities af-fecting indigenous peoples should be based on full recognition of the insepara-bility of natural and cultural heritage, and the deep-seated interconnectedness of intangible cultural heritage and tangible cultural and natural heritage.’11 The criticism voiced by indigenous peoples has signifĳicantly contributed to some important developments in the implementation of the notion of ‘cultural her-itage’ under the Convention. 12 However, as will be discussed in more detail be-low, these developments have not been adequate for ensuring that indigenous cultural values are consistently and adequately taken into account in the desig-nation and management of World Heritage sites, and have therefore not been efffective in resolving indigenous peoples’ concerns.

Nevertheless, the World Heritage Convention can be, and in some cases has undoubtedly been, an important tool for the promotion and protection of the rights of indigenous peoples with respect to their cultural heritage. World Heritage sites can help indigenous peoples protect their lands, territories and resources, and the associated cultural heritage, from development pressures such as extractive industry activities or threats posed by major infrastructure projects. Also, the international attention and oversight resulting from World

9 R Harrison, Heritage: Critical Approaches (Routledge 2013) 116.

10 Study on cultural heritage (n 1) para. 24. Accordingly, there is ‘strong recognition within international human rights law and jurisprudence that cultural rights for indigenous peo-ples entail rights to land and natural resources, and that there is an obligation to protect the cultural heritage of indigenous peoples through recognition of their rights to own, control and manage their ancestral territories’. J Gilbert, ‘Indigenous Peoples’ Heritage and Human Rights’ in S Disko and H Tugendhat (eds), World Heritage Sites and Indigenous Peoples’ Rights (IWGIA 2014) 55, 58.

11 Study on cultural heritage (n 1), annex, para. 6. Similarly, E-I Daes, ‘Study on the protec-tion of the cultural and intellectual property of indigenous peoples’ (1993) UN Doc E/

CN.4/Sub.2/1993/28, paras. 31, 164.

12 See Harrison (n 9) 118-39; K Whitby-Last, ‘Article 1: Cultural Landscapes’ in F Francioni (ed), The 1972 World Heritage Convention: A Commentary (OUP 2008) 51, 59.

Heritage listing can potentially be used to encourage improved indigenous par-ticipation in decision-making processes, enhanced benefĳit-sharing, or redress for past violations of indigenous rights.13 Moreover, due to its prominence and influence the World Heritage Convention has the potential to play an impor-tant role in promoting respect for indigenous rights in heritage sites and con-servation practice more generally. As noted by the IUCN14 World Conserva-tion Congress, the ConvenConserva-tion ‘can and has played a leadership role in setting standards for protected areas as a whole and… World Heritage sites with their high visibility and public scrutiny have the potential to act as “flagships” for good governance in protected areas’.15

It is clear, however, that the Convention’s potential to contribute to the pro-motion of respect for indigenous rights is largely not being realized. On the contrary, the protection of World Heritage has in many cases aggravated or consolidated indigenous peoples’ loss of control over their lands and resourc-es, led to restrictions on traditional land-use practicresourc-es, and undermined their livelihoods. In many World Heritage sites, indigenous peoples are primarily considered as threats, or potential threats, to conservation objectives. For the Convention to play a consistently positive role for indigenous peoples, several serious shortcomings in its implementation need to be rectifĳied. These short-comings include, among other things, the diffferentiation between natural and cultural heritage in World Heritage sites incorporating indigenous peoples’ ter-ritories; a highly problematic application of the concept of ‘ outstanding uni-versal value’ (‘ OUV’); and a lack of regulations and appropriate mechanisms to ensure the meaningful participation of indigenous peoples in Convention processes afffecting them.

13 See, e.g., WHC Decisions 39 COM 7B.5 (2015), para. 5 (Lake Bogoria National Reserve, Ken-ya); 37 COM 7B.30 (2013), para. 8b (Talamanca Range-La Amistad Reserves/National Park, Costa Rica/Panama); 35 COM 7B.34 (2011), para. 4d (Manu National Park, Peru); 33 COM 7B.9 (2009), para. 7 (Ngorongoro Conservation Area, Tanzania); 35 COM 12E (2011), paras.

15e, 15f (generally).

14 The International Union for Conservation of Nature (IUCN) is the world’s oldest and larg-est global environmental network, with more than 1,300 government and non-govern-mental member organizations. Its highest decision-making body is its members’ assem-bly, the quadrennial ‘World Conservation Congress’. IUCN functions as the WHC’s offfĳicial advisory body on natural heritage (see n 8).

15 IUCN World Conservation Congress, ‘Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in the context of the UNESCO World Heritage Con-vention’ Res. 5.047 (Jeju 2012) preamble.

Problematic Separation of Natural and Cultural Heritage

The World Heritage Convention is remarkable in that it establishes a common regime for the protection of natural and cultural heritage, and is widely cel-ebrated for its ‘unprecedented recognition of the close link between culture and nature’.16 In fact, UNESCO considers this the most signifĳicant feature of the Convention:

The most signifĳicant feature of the 1972 World Heritage Convention is that it links together in a single document the concepts of nature conser-vation and the preserconser-vation of cultural properties. The Convention recog-nizes the way in which people interact with nature, and the fundamental need to preserve the balance between the two.17

These ideas are also reflected in the offfĳicial emblem of the Convention (Figure 1), which symbolizes the interdependence of cultural and natural heritage.

While the central square is meant to represent the results of human skill and inspiration, the circle represents nature, ‘the two being intimately linked’.18 The emblem was adopted by the WHC in 1978 and is supposed to ‘symbolize for future generations the principles embodied in the Convention’ and

‘conve[y] the essential objectives of the Convention’.19

However, the experiences of many indige-nous peoples with World Heritage sites estab-lished in their territories stand in sharp con-trast to these ideas and objectives and throw into question the ways in which the Conven-tion is being implemented. Despite its recog-nition of the interdependence of cultural and natural heritage, the WHC maintains a sepa-ration between ‘cultural’ and ‘natural’ World Heritage sites which is highly problematic in the context of many sites, and in particular those within indigenous peoples’ territories.

16 F Francioni, ‘Introduction’ in Francioni (n 12) 3, 5.

17 UNESCO, ‘The World Heritage Convention’ <http://whc.unesco.org/en/convention> ac-cessed 21 April 2015.

18 UNESCO, Report on the second session of the WHC (Washington D.C., 1978) CC-78/

CONF.010/10 Rev, para. 51.

19 Ibid, para. 53. Also see Operational Guidelines 2015 (n 8) para. 258.

figure 1 World Heritage Emblem

The vast majority of World Heritage sites in indigenous peoples’ territories are listed as natural sites, without any recognition of associated indigenous herit-age values in the justifĳication for inscription and in contrast to indigenous peo-ples’ holistic view of their heritage. This lack of respect for indigenous peopeo-ples’

own values attached to their lands, territories and resources not only raises serious questions regarding the validity of the meanings attributed to the re-spective sites by UNESCO, but can also have signifĳicant adverse efffects on the livelihoods, living cultural heritage and well-being of the indigenous peoples concerned. Indigenous peoples have therefore repeatedly pointed to the need for concerted action by the WHC to ensure that due recognition and attention is given to indigenous values in the nomination, declaration and management of World Heritage sites. 20

The Concept of Heritage in the Convention

The underlying reason for the WHC’s diffferentiation between cultural and natural World Heritage sites lies in the text of the World Heritage Convention itself, more concretely, the defĳinition of heritage contained in the Convention.

The Convention establishes a rigid distinction between cultural and natural heritage by defĳining them separately, in Articles 1 and 2 respectively. Thus, ‘the architecture of the Convention perpetuates the dichotomy between cultural and natural heritage’, as Kathryn Whitby-Last notes.21

In accordance with Article 11(2) of the Convention, the World Heritage List is comprised of sites that fall within the defĳinitions of Articles 1 or 2 and which the WHC ‘considers as having outstanding universal value in terms of such cri-teria as it shall have established’. One of the fĳirst tasks completed by the WHC, at its fĳirst session in 1977, was the adoption of two separate sets of criteria for the determination of OUV: six criteria related to cultural heritage (i-vi) and four criteria related to natural heritage (i-iv).22 On this basis, the Committee maintains its distinction between cultural and natural World Heritage sites, the classifĳication of a given site depending on the criteria under which it is inscribed on the World Heritage List or nominated for inscription. Although there is a possibility for sites to be listed as ‘mixed’ cultural and natural heritage sites, this can only happen when they satisfy both cultural and natural criteria

20 See, e.g., the 2000/2001 proposal by indigenous peoples that a ‘World Heritage Indigenous Peoples Council of Experts (WHIPCOE)’ be established as a consultative body to the Committee. UNESCO, Report on the Proposed WHIPCOE (2001) WHC-2001/CONF.205/

WEB.3.

21 Whitby-Last (n 12) 59.

22 UNESCO, Report on the fĳirst session of the WHC (Paris, 1977) CC-77/CONF.001/9.

of OUV. 23 The number of mixed sites on the World Heritage List is therefore very small – as of the writing of this chapter, only 32 out of 1,031 World Heritage sites were listed as mixed sites. In any case, inscription as a mixed site does not necessarily reflect a recognition of a symbiosis or interplay between cultural and natural values; the recognized cultural and natural attributes may have only tangential links and may not readily coincide in spatial terms. 24

It is important to note, however, that the separation between culture and nature in the Convention’s defĳinition of heritage is not absolute. Most sig-nifĳicantly, the defĳinition of cultural heritage in Article 1 includes a reference to ‘combined works of nature and man… which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view’. As will be further discussed below, this provision provides an important basis for the recognition of interrelationships between culture and nature in the context of cultural (or mixed) World Heritage sites.

Effforts to Bridge the Divide

There have been various attempts by the WHC to bridge the divide between nature and culture and enable a recognition of nature-culture interlinkages in the implementation of the Convention. Most signifĳicantly, in 1977, when the Committee adopted the initial criteria for the determination of OUV, it in-cluded a reference to ‘man’s interaction with his natural environment’ into the criteria for natural sites (natural criterion ii), as well as a reference to ‘excep-tional combinations of natural and cultural elements’ (natural criterion iii).25 These references were invoked in the context of the nomination and inscrip-tion of some of the indigenous sites listed as natural World Heritage sites in

23 Operational Guidelines 2015 (n 8) para. 46. When nominations of mixed sites are evalu-ated, the cultural and natural values are assessed separately, ‘almost as if one would be looking at two diffferent nominations’. L Leitão and T Badman, ‘Opportunities for Integra-tion of Cultural and Natural Heritage Perspectives under the World Heritage ConvenIntegra-tion:

Towards Connected Practice’ in K Taylor, A St Clair and NJ Mitchell (eds), Conserving Cul-tural Landscapes: Challenges and New Directions (Routledge 2015) 75, 82.

24 UNESCO, ‘Reflections on processes for mixed nominations’ (2014) WHC-14/38.COM/9B, para. 20. Moreover, ‘management [of cultural and natural values] may be undertaken separately and through distinct agencies and it is not unusual to fĳind separate manage-ment plans in place’. PB Larsen and G Wijesuriya, ‘Nature-culture interlinkages in World Heritage: Bridging the gap’ (2015) 75 World Heritage 4, 10.

25 See Operational Guidelines for the Implementation of the World Heritage Convention (1977) CC-77/CONF.001/8 Rev, 4.

the 1980s, such as Uluru-Kata Tjuta National Park (Australia) or Manu National Park (Peru). 26

In 1992, the WHC made some modifĳications to the cultural criteria to ac-commodate the listing of ‘cultural landscapes’.27 In addition, a document containing guidance on defĳinitions and categories of cultural landscapes was annexed to the Operational Guidelines for the Implementation of the World Heritage Convention (‘Operational Guidelines’, or ‘the Guidelines’).28 This doc-ument clarifĳies that ‘cultural landscapes… represent the “combined works of nature and of man” designated in Article 1 of the Convention’ and distinguishes between three categories of cultural landscapes: designed, organically evolved and associative cultural landscapes.29 Inscription of the latter on the World Heritage List is ‘justifĳiable by virtue of the powerful religious, artistic or cultur-al associations of the naturcultur-al element rather than matericultur-al culturcultur-al evidence, which may be insignifĳicant or even absent’. The inclusion of the category of as-sociative cultural landscapes is noteworthy as it represents an important move towards the recognition of intangible values in the context of the World Herit-age Convention. It has facilitated a better recognition of the cultural and spir-itual values indigenous peoples attach to their lands and territories in some World Heritage sites, such as Tongariro National Park (New Zealand), Uluṟu-Kata Tjuṯa National Park and, more recently, Pimachiowin Aki (Canada).30

The introduction of the cultural landscapes concept had some serious draw-backs, however. Ironically, it has in some ways contributed to deepening the divide between culture and nature in the implementation of the Convention.

First, it can be argued that the concept of cultural landscapes ‘actually contin-ues to reinforce this dualism [of culture and nature] through its maintenance

26 For details, see R Layton and S Titchen, ‘Uluru: An Outstanding Australian Aboriginal Cultural Landscape’ in B von Droste, H Plachter and M Rössler (eds), Cultural Landscapes of Universal Value – Components of a Global Strategy (Gustav Fischer 1995) 174, 176; D Rod-riguez and C Feather, ‘A Refuge for People and Biodiversity: The Case of Manu National Park, South-East Peru’ in Disko and Tugendhat (n 10) 459, 467.

27 C Cameron and M Rössler, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate 2013) 67-68; Leitão and Badman (n 23) 78.

28 The Operational Guidelines were initially issued in 1977 and are periodically revised by the WHC to reflect new concepts, knowledge or experiences. All historic versions of the Guidelines are available at <http://whc.unesco.org/en/guidelines>. The current version

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