Making use of the four elements in relation to the Congolese armed conflicts

To respond to the challenges facing the Congolese natural World Heritage Sites , as described in Section 3.2, several supportive measures have been undertaken within the project that was launched under the World Heritage Convention— thanks to the four elements. The treaty bodies of the World Heritage Convention have used their wide mandate (first element) by interpreting the loosely formulated provisions (second ele-ment) and applying the supportive compliance system (third eleele-ment) to realize the measures of the project. The project has employed a partnership approach establish-ing international cooperation of the treaty bodies with other actors (fourth element), including the UNESCO,32 other UN agencies and UN programmes, Congolese Wildlife Authority and other national governmental bodies, states, international organizations, as well as NGOs active in the DRC.33

I will analyse how the four elements have enabled the environmental protec-tion measures of the Sites under the project in the following sub- subsecprotec-tions. To this end, I  will make some general remarks on the similarities/ differences of the World Heritage Convention with the other environmental treaties, mainly with the Ramsar Convention as it also protects specific areas of international environmental importance.

30 Other serious and specific dangers listed in Art. 11(4) of the World Heritage Convention include: ‘threat of disappearance caused by accelerated deterioration, large- scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; calamities and cataclysms;

serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves’.

31 Guy Debonnet and Kes Hillman- Smith, ‘Supporting Protected Areas in a Time of Political Turmoil: the Case of World Heritage Sites in the Democratic Republic of Congo’ (2004) 14 War and Protected Areas, International Journal for Protected Areas Managers 11, at <https:// cmsdata.iucn.org/ downloads/ 14_ 1.pdf>

accessed 14 June 2017.

32 The World Heritage Convention was adopted at the General Conference of United Nations Educational, Scientific and Cultural Organization (UNESCO). Thus, UNESCO and the operation of the World Heritage Convention is intertwined.

33 The partnership consists of UNESCO‘s World Heritage Centre and Division of Ecological Sciences in cooperation with Institut Congolais pour la Conservation de la Nature (ICCN) (referred to as the Congolese Wildlife Authority in this chapter), IUCN, German Technical Cooperation (GTZ) (now GIZ), and a task force of conservation NGOs including International Rhino Foundation, International Gorilla Conservation Programme, Wildlife Conservation Society, the World Wide Fund for Nature (WWF), and the Gilman International Conservation. In addition, the European Union and states (i.e. Belgium, Italy, and Germany) as well as UN agencies or programmes (i.e. UN Development Programme, UNEP) and the UN Mission to DRC (MONUC) (later MONUSCO) collaborate with the Committee and the World Heritage Centre to address issues relating to the safeguarding of World Heritage Sites in the DRC.

A. First element: broad mandate of treaty institutions

The World Heritage Committee (‘Committee’) is the executive treaty body and has decision- making powers for applying the World Heritage Convention. The Committee has a broad mandate to ensure effective application of the World Heritage Convention, including defining and developing the provisions of the convention by adopting decisions, recommendations, and guidelines.34 The treaty bodies are central for most environmental treaties’ efficiency as they enable the instruments to be revised, developed, and adjusted to shifting conditions.35 As the bodies are empowered to direct the general goals of the treaties within the limits of the treaty provisions, they can adopt various measures guided by the circumstances and prac-tical considerations. Hence, the establishment of treaty institutions with degrees of context- based decision- making authority would enable them to adjust measures to respond to armed conflict related damage. For instance, such decision- making authority has made it possible for the Committee to instigate the specific project aimed at protecting the World Heritage Sites in relation to the armed conflicts in the DRC. Within the framework of the DRC project, the treaty institutions of the World Heritage Convention have undertaken various activities that make use of the other elements to safeguard the environment of the Sites despite the conditions of armed conflict. These include enacting green diplomacy36 between the parties of the con-flicts to advocate neutrality of the World Heritage Sites and their staff, providing sup-port and equipment to the park management, and attracting other stakeholders to endorse the project’s aim.37

Most environmental treaties have, similarly to the World Heritage Convention, established an institutional structure. While the World Heritage Convention has a General Assembly with representation of all states parties, most environmental treaties have the equivalent of a ‘Conference of the Parties’ (‘COP’).38 In contrast

34 The Committee is composed of twenty- one member states and meets at least once a year. See The Operational Guidelines for Implementation of the World Heritage Convention (‘Operational Guidelines’) (November 2011), at <whc.unesco.org/ archive/ opguide11- en.pdf> accessed 14 June 2017.

35 Nele Matz, ‘Approaches to Coordination of International Environmental Agreements’ in Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Berlin and Heidelberg: Springer, 2003), 167.

36 Green diplomacy or environmental diplomacy is described by UNEP as an activity that aims at promot-ing the shared use of natural resources or addresspromot-ing common environmental threats by establishpromot-ing a plat-form for dialogue, confidence- building, and cooperation between divided communities or states, at <http://

http:// staging.unep.org/ disastersandconflicts/ Introduction/ EnvironmentalCooperationforPeacebuilding/

EnvironmentalDiplomacy/ tabid/ 54581/ Default.aspx> accessed 14 June 2017. See also Pamela Griffin, ‘The Ramsar Convention: A  New Window for Environmental Diplomacy?’ The Institute for Environmental Diplomacy and Security (2013), at <http:// www.uvm.edu/ ieds/ sites/ default/ files/ Ramsar_ IEDSResearchSeries.

pdf> accessed 14 June 2017.

37 World Heritage Papers 17, Promouvoir et Préserver le patrimoine congolais, Lier diversité biologique et culturelle/ Proceedings and Preserving Conoglese Heritage, Linking biological and cultural diversity, Proceedings of the conference and workshops, UNESCO, 13– 17 September 2004, 110, at <http:// whc.une-sco.org/ en/ documents/ 6411> accessed 14 June 2017.

38 The General Assembly corresponds to a conference of the parties, which is usually the supreme decision- making organ in environmental treaties. See Diana Zacharias, ‘The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy- Gaining International Institution’ (2008) 9 German Law Journal 1842.

to most other environmental treaties, the World Heritage Convention has assigned all the decision- making competencies to the executive organ— the Committee— as opposed to the COP (or the General Assembly in the case of the World Heritage Convention).39 The Committee consists of twenty- one states parties, which makes decision- making smoother than if it were to go through the all the states parties in the General Assembly of the Convention. As the institutions under most environ-mental treaties share the broad mandate to develop the provisions; therefore they too may be able to instigate comparable projects to address war- torn environments, although the process has to go through the convention’s COP, which may prolong and obstruct the process.

B. Second element: open- ended provisions

The second element is closely connected to the first. The World Heritage Convention is a framework convention with open- ended provisions providing general principles and flexible obligations. Therefore, the treaty institutions must further develop the pro-visions into substantive rules by adopting secondary decisions and/ or recommenda-tions.40 For instance, Article 4 of the World Heritage Convention calls for states parties to do all they can to protect World Heritage ‘to the utmost of [their] own resources’.

Likewise, Article 5 states that each state party ‘shall endeavour, in so far as possible, and as appropriate for each country . . . to take the appropriate legal, scientific, techni-cal, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation’ of its World Heritage Sites. The wording used in both these articles does not prescribe exact conduct of the states parties but allows a degree of discretion to adapt the measures.41

This element applies to most environmental treaties. There are two underlying reasons explaining why most environmental treaties use flexibly worded provisions.

Firstly, because of the struggle to achieve political consensuses on global environmen-tal issues, the treaties replicate compromises of negotiations.42 The conventions pro-vide platforms for continued dialogue on unsettled issues putting much emphasis on the process of developing the rules, in which the treaty institutions play the key role.

Secondly, because of the particularities of environmental problems, they need to be addressed using a less formal approach that can be modified to consider specific geo-graphical, economic, and social factors of the states parties or evolution of scientific

39 See Arts. 8–14 in the World Heritage Convention.

40 Annecos Wiersema, ‘The New International Law- makers? Conferences of the Parties to Multilateral Environmental Agreements’ (2009) 31 Michigan Journal of International Law 53; Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment (Oxford: Oxford University Press, 2009), 17.

41 Guido Carducci, ‘Articles 4– 7, National and International Protection of Cultural and Natural Heritage’

in Francesco Francioni (ed.), The 1972 World Heritage Convention:  A  Commentary (Oxford:  Oxford University Press, 2008), 145.

42 Maurice Kampto, ‘Normative Uncertainties’ in Yann Kerbrat and Sandrine Maljean- Dubois (eds.), The Transformation of International Environmental Law (Paris and Oxford: Hart Publishing and Editions A. Pedone, 2011), 57. See also Churchill and Ulfstein (n 23) 628.

knowledge.43 The treaty provisions provide enough discretion so they offer an adjust-able and context- based response.44

In the case of the DRC, the flexibility incorporated in the convention provisions has enabled the Committee to interpret the measures to address specially the unse-cure situations in the DRC and the particular challenges. Because of the armed con-flicts, the World Heritage Sites as well as the park rangers are imperilled. The conflicts have partly taken place in the remote areas of the World Heritage Sites where the park rangers patrol the Sites. Thus, the rangers have ended up inside the war zone and they have been exposed to risks, in particular as they carry weapons while on duty.45 Interpreting Article 5 of the convention, the Committee has called for the state party (the DRC) to employ the Congolese Army to protect the World Heritage Sites and the park rangers as an appropriate measure. The suggested measure has been adapted to the realities and the challenges of the national context of the DRC. As a result, the Congolese Army have collaborated and performed joint patrols and exchanged information with the park rangers. It has also assisted in monitoring the Sites and has taken measures to disarm and evacuate armed groups inside the World Heritage Sites. The Committee has also requested military support for the park rangers as a measure under Article 5 of the convention, including that the park rangers must be provided with adequate arms and ammunition.46 The park rangers have received weapons and ammunition to some extent. The assistance of the army is well estab-lished, but it has not been formalized. It takes place on an ad hoc and short- term basis depending on the locations of the rebel groups as well as on the security needs of the Sites.47 A special environmental brigade was installed in the World Heritage Site of Garamba National Park. In the central sector of Virunga National Park, a mixed bri-gade consisting of both members of the Congolese Army and park rangers has been established to secure this area.48

The support of the army has been somewhat problematic. Since many Congolese Army soldiers are underpaid, if paid at all, they have been involved in illegal activi-ties harming the World Heritage Sites. Thus, there have been some violent confron-tations between the park rangers and the army. Such confronconfron-tations have resulted in the Committee demanding the Congolese Army to relocate its military posts from the Sites.49 Furthermore, it requested the DRC to prosecute its staff engaged

43 Laurence Boisson de Chazournes, ‘Features and Trends in International Environmental Law’ in Kerbrat and Maljean- Dubois (eds.), The Transformation of International Environmental Law (n 42) 10– 11.

44 Dinah Shelton, ‘Comments on the Normative Challenge of Environmental ‘Soft Law’ in Kerbrat and Maljean- Dubois (n 42) 71.

45 Interview with Ephrem Balole, Planning officer Virunga National Park, Congolese Wildlife Authority, Goma, DRC, 4 April 2015.

46 See UNESCO World Heritage Committee, Decision 30 COM 7A.4 adopted at thirtieth session on 8– 16 July 2006, Doc. WHC- 06/ 30.COM/ 19, 23 August 2006, 14.

47 Interview with Jeff Mapilanga, Director, Congolese Wildlife Authority, Kinshasa, DRC, 30 March 2015.

48 UNESCO World Heritage Committee, State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, Doc. WHC- 11/ 35.COM/ 7A.Add, 27 May 2011, 13.

49 See UNESCO World Heritage Committee, Decision 28 COM 15A.3 adopted at twenty- eighth session on 28 June– 7 July 2004, Doc. WHC- 04/ 28/ COM/ 26, 29 October 2004, 52; Decision 31 COM 7A.7 adopted at thirty- first session on 23 June– 2 July 2007, Doc. WHC- 07/ 31.COM/ 24, 31 July 2007, 11.

in wildlife poaching and illegal exploitation of natural resources.50 However, in the case with the mixed brigade in Virunga National Park, the park authority has pro-vided salaries to the brigade’s army members. Therefore, there have not been any major instances with illegal activities from the army side and, overall, this arrange-ment has functioned well.51

Other environmental treaties have also flexible provisions concerning the meas-ures that the states parties have to undertake to comply with the treaty in question.52 In addition, other treaty institutions could make similar interpretation efforts as the Committee of the World Heritage Convention in regard to the provisions to prevent the environment from being put at risk by armed conflict. For instance, Article 3 in the Ramsar Convention uses flexibly worded provisions and requires that states parties

‘formulate and implement their planning so as to promote the conservation of the wet-lands’ and ‘as far as possible the wise use of the wetlands in their territory’. Such word-ing gives the treaty bodies under the Ramsar Convention enough flexibility to adapt measures in relation to armed conflict.

C. Third element: non- confrontational compliance mechanisms

The third element concerns the non- confrontational compliance mechanism installed under the World Heritage Convention. Most other environmental treaties employ this type of compliance mechanism and it is designed as a supportive scheme seeking to facilitate states parties’ fulfilment of their obligations, rather than punishing failures.53 The non- confrontational mechanism builds from the idea that states parties are unable but willing to comply.54 The World Heritage Convention institutions, similarly to most other environmental treaty institutions, collect and share information on the implemen-tation procedure, analyse causes of non- compliance, and provide recommendations and assistance for the states parties rather than engage in robust enforcement measures.55 The purpose is to change behaviour among the states parties and not to achieve a speci-fied result. This could be achieved through establishing action plans, providing financial and technical support, implementing capacity building measures including workshops,

50 See UNESCO World Heritage Committee, Decision 34 COM 7A.4 adopted at thirty- fourth session on 25 July– 3 August 2010, Doc. WHC- 10/ 34.COM/ 20, 3 September 2010, 20; see also State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, Doc. WHC- 10/ 34. COM/ 7A, 1 June, 2010, 11– 12.

51 Interview with Ephrem Balole, Planning officer Virunga National Park, Congolese Wildlife Authority, Goma, DRC, 4 April 2015.

52 For instance, Art. 4(1) in the Ramsar Convention reads: ‘Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening’.

53 Churchill and Ulfstein (n 23)  629; Nils Goeteyn and Frank Maes, ‘Compliance Mechanisms in Multilateral Environmental Agreements:  An Effective Way to Improve Compliance?’ (2011) Chinese Journal of International Law 797– 9.

54 Goeteyn and Maes (n 53) 799.

55 Daniel Bodansky, The Art and Craft of International Environmental Law (Cambridge, MA: Harvard University Press, 2011), 226– 7, and in particular on the World Heritage Convention compliance mecha-nism, see Edward J. Goodwin, ‘World Heritage Convention, the Environment, and Compliance’ (2008) Colorado Journal International Environmental Law and Policy 157.

consultations, and training etc.56 Under the World Heritage Convention, states parties can request international assistance from the Committee for the purposes of securing the protection, conservation, presentation, or rehabilitation of the World Heritage Sites.57 International assistance can be offered in terms of studies, provision of experts, skilled labour, training of staff and specialists, supply of equipment, low- interest or interest- free loans, or the granting of non- repayable subsidies under Article 22 of the World Heritage Convention. To this end, the World Heritage Convention has also established a World Heritage Fund to finance application activities.58

Prior to the DRC project, many park rangers located in rebel- controlled areas had not received a salary for several years because they were cut off from headquarters. Due to the insecure situation and the fact that salaries were not paid to the rangers, many of them left their posts and the Sites were left uncontrolled. In the case of the DRC, the Committee has facilitated the provision of the park rangers’ salaries as international assistance to keep them at their posts to monitor the World Heritage Sites and thus help the DRC to comply with the convention.59 In addition to distributing salaries, the park stations, many of which were looted during the hostilities, have been rehabilitated and secured under the project. The park rangers received training and equipment, includ-ing trucks, pick- ups, speedboats, and even an airplane, as a part of the international assistance provided under the convention.60

The supportive measures have also consisted of green diplomacy of the treaty bod-ies to advocate for the World Heritage Sites as well as the park rangers having neutral status in relation to the Congolese armed conflicts. The background of the measure was the fact that park rangers became direct targets in the conflicts. Being employees of a Congolese state organ, the park rangers were mistrusted by the rebel groups that associate them with the government and the Congolese Army. At the same time, the Congolese Army has been suspicious towards the park rangers, as they often continue to engage in protection work in the rebel- controlled areas.61 As a result, the park rang-ers have been attacked from several sides of the conflicts. Between 1996 and 2008 more than 190 park rangers were killed.62 To protect the park rangers and to prevent further casualties, UNESCO called for immunity for the park rangers from attacks similarly

56 Goeteyn and Maes (n 53) 814.

57 The Committee grants the requests in accordance with Art 13(1) of the World Heritage Convention.

58 Art. 15 of the World Heritage Convention.

59 As the Kinshasa- based Congolese Wildlife Authority was not in contact with the four rebel con-trolled Sites in the Eastern DRC, salaries could not be provided. Therefore, it requested the World Heritage Convention Bureau and the Committee to help the park rangers in these Sites by providing assistance. The Bureau did approve the request and funds were distributed via contracts established with conservation NGOs and other partners to UNESCO that remained on the field. The Bureau approved a total sum of US$

105,000 for the four sites. See UNESCO World Heritage Committee, State of Conservation of the Properties

105,000 for the four sites. See UNESCO World Heritage Committee, State of Conservation of the Properties