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Case Study: Cultural Heritage Sites and International Obligations
In Prakash Mani Sharma & others petitioners in Nepal sought a court order to stop government construction of a police building on the banks of Rani Pokhari (Queen Pond), while simultaneously seeking orders to demolish any structures already constructed. The Rani Pokhari area, considered a symbol of the beauty of Kathmandu City, is home to temples, statues and other ancient monuments. Petitioners argued the construction destroyed the beauty of an historical and archaeological heritage with cultural and religious value.
After observing that Article 88(2) of the Constitution of the Kingdom of Nepal 1990 entitles every individual to show concern for public property and "public rights," the Court emphasized the obligation of the Nepalese government to give effect to its obligations under the World Heritage Convention. The Court then ordered the government to create a national policy regarding religious, cultural and historical places of importance.
Among its functions, the World Heritage Committee is to receive and study requests for international assistance formulated by states parties to the Convention for protection, conservation, presentation or rehabilitation of any part of the world cultural or natural heritage, i.e., property included or potentially suitable for inclusion on one of the Lists. Requests also may be submitted for purposes of identifying cultural or natural property.
The World Heritage Convention is important in part because it encompasses the idea that certain property found under the sovereignty of a state is of interest beyond territorial frontiers and concerns all humanity, leading to the conclusion that such property should, beyond the conservation interests of the territorial state, be conserved in the name and interest and by the care of the entire international community. As a counterpart to the principal responsibility of the territorial government, it is recognized that the international community itself has obligations and must assist the territorial state in the accomplishment of conservation objectives. The relevant legal concept that emerges is that of common heritage of humankind, a trust or a mandate exercised in the interest of present and future generations. Notwithstanding international concerns for or obligations with respect to World Heritage Sites, the Convention contains no power of sanction, save removal of a site from the World Heritage List if the universal values for which it was listed are no longer preserved. To date no site has ever been withdrawn from the World Heritage List. A series of international treaties tend to protect cultural heritage in general: e.g., conventions on illicit import, export and transfer of ownership of cultural property, on the protection of the underwater cultural heritage, the safeguarding of the intangible cultural heritage (2003) and the stolen or illicitly exported cultural objects. In the event of armed conflict, the 1954 Hague Convention for the Protection of Cultural Property (219 UNTS 240) specifically provides for the protection of historic monuments. Its Protocol, also adopted in 1954 (249 UNTS 358) covers the return of movable cultural property taken from occupied territory.