Problems of preserving the international legal status of Lake Baikal in the light of the analysis of the practice of excluding objects from the World Heritage List (Part 1)

Kolobov Roman Yurievich PhD in Law Associate Professor of the Department of International Law and Comparative Jurisprudence of the Irkutsk State University Law Institute; Associate Professor of the Department of Civil Law of the East Siberian Branch of the Russian State University of Justice; Head of the Fundamental Research Department of the Research Institute of Legal Protection of Lake Baikal of Irkutsk State University 664074, Russia, Irkutsk region, Irkutsk, Ivan Franko str., 23a roman.kolobov@gmail.com Other publications by this author     Ditsevich Yaroslava Borisovna PhD in Law Leading Researcher of the Department of Theory and History of State and Law, Irkutsk Law Insitute (branch) of the University of Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 yaroslavadi@mail.ru Other publications by this author     Ganeva Ekaterina Olegovna PhD in Law Associate Professor of the Department of Civil Law of the Irkutsk State University Law Institute, Coordinator of the Youth Research Center of the Research Institute of Legal Protection of Lake Baikal of Irkutsk State University 664082, Russia, Irkutskaya oblast', g. Irkutsk, ul. Ulan-Batorskaya, 10 kareva10@mail.ru Other publications by this author

Shornikov Dmitrii Vladimirovich PhD in Law Associate Professor, Head of the Department of International Law and Comparative Law of the Irkutsk State University Law Institute 664082, Russia, Irkutskaya oblast', g. Irkutsk, ul. Ulan-Batorskaya, 10 abirvalg35@mail.ru Other publications by this author

The Convention on the Protection of the World Cultural and Natural Heritage (hereinafter also the World Heritage Convention, the Convention) ^[1] has created a system of general international obligations for the protection of unique cultural and natural objects. This treaty became an expression of civilization's concern for the preservation and transmission to future generations of the common heritage of mankind. One of the central elements of this system has become the World Heritage List (hereinafter also the List), formed by the World Heritage Committee (hereinafter also the Committee) according to the submission of States.

At the time of writing this article, according to the World Heritage Center, 1,154 objects (897 objects of cultural heritage, 218 – natural and 39 – mixed kind) are included in the List. Adding an object to the List expresses the State's commitment to the principles of the Convention and readiness to take measures to protect the relevant objects (including bearing the main burden of maintaining such objects). Unfortunately, an analysis of the practice of protecting World Heritage sites shows that States do not always manage to fulfill their obligations under the Convention. The World Heritage Protection system contains various ways to respond to this situation. One of the most widely known mechanisms of this kind is the List of World Heritage in Danger, the inclusion of an object in which is a statement of a potential or real threat to its condition. Along with the specified List in the World Heritage protection system, there is another, "final" means of expressing the concern of the world community about the state of the object – exclusion from the List. There are often reports in the media about the possibility of excluding an object from the List. In Russia, the press most actively wrote about the prospects of such an exception in relation to Lake Baikal ^{[2; 3; 4]}.

Of course, the genre of such publications presupposes the presence of some features of the formulation of their titles, but the issue of excluding an object from the List has a legal "dimension", assuming the existence of appropriate grounds and procedures, as well as the practice of their application (albeit few). These questions will be the subject of this study.

During the history of the World Heritage protection system, three objects were excluded from the List: the Arabian Antelope (Oryx) Reserve in 2007, the Elbe River Valley near Dresden in 2009 and Liverpool – the city of seafarers and merchants in 2021. Despite the small number of excluded objects, it is possible to identify common features in the Committee's approaches to decision-making about delisting objects.

In this article, the regulatory and procedural bases for the exclusion of objects from the List will first be covered, then the practice of applying these norms in relation to the three excluded objects will be disclosed, and finally, the conclusions obtained will be extrapolated to the problems of the protection of World Heritage sites in Russia (first of all, in terms of the protection of the World Heritage site Lake Baikal, since awareness of the most acute, requiring immediate resolution of problems, allows to form an actual agenda of law-making and law enforcement activities) ^{[5, p. 310]}.

Legal basis for the preservation of international heritage

The normative basis for the functioning of the World Heritage protection system is primarily represented by the Convention, as well as the Guidelines for the Implementation of the Convention on the Protection of the World Cultural and Natural Heritage (hereinafter also referred to as the Guidelines).  The Convention does not contain provisions defining the grounds and procedure for excluding objects from the List. Article 11 of the Convention establishes the general rules for the compilation, updating and publication of the List and the List of World Heritage in Danger. This issue is regulated in much more detail in the Manual. The possibility of excluding an object from the World Heritage List was provided for in the very first edition of the Manual. Paragraph 4 of the fifth article of the first edition of the Manual^[6] (30.06.1977) stated that the grounds for making a decision to exclude an object from the List are, firstly, the deterioration of the condition of the object, as a result of which it lost the characteristics for which it was included in it; secondly, the lack of outstanding universal value, revealed by the results of further research. In the 1980 edition of the Manual, the second reason is changed: paragraph b of article 24 stipulates that an object may be excluded if, as a result of human activity, the object was threatened with the loss of its inherent qualities already at the time of its nomination, and the necessary corrective measures submitted by the State party to the Convention at that time were not taken within the specified period. The general procedure for resolving this issue was also fixed^[7]. Since that time, the regulation of the exclusion of an object from the List has acquired those common features that exist in the current edition of the Manual.

To date, the Management fixes: the powers of the Committee to decide which objects should be excluded from the World Heritage List (item d, item 24); the possibility of excluding an object for which corrective measures announced during the nomination have not been taken (item 116); conducting a reactive monitoring procedure for objects that are in the final exclusion procedure from the The List and its objectives (paragraphs 169, 170); the need to inform the relevant State Party to the Convention about the exclusion of the object and the need to consider its comments (paragraph d of paragraph 176); the possibility of simultaneous exclusion of the object from the List and the List of World Heritage in Danger (paragraph c of paragraph 191).

The issue of the exclusion of objects from the World Heritage List finds concentrated expression in chapter IV. C. (paragraphs 192-198). Paragraph 192 fixes the two grounds we have already mentioned for excluding an object from the List. 

In the practice of the World Heritage Committee, only the first reason was used – the loss of the characteristics that determined the inclusion of the object in the World Heritage List. Such characteristics are expressed in the concept of outstanding universal value. This concept is used in various articles of the Convention, but its content is disclosed in the Manual. Paragraph 49 of the Manual establishes that an outstanding universal value is a cultural and (or) natural significance that is so exceptional that it transcends national borders and is of universal value for present and future generations of all mankind.

This value is reflected in the formalized definition (paragraph 154). The possession of an outstanding universal value must be expressed in accordance with at least one of the criteria provided for in paragraph 77 of the Manual, as well as in the fulfillment of the conditions of integrity and (or) authenticity and the possession of a security and management system that guarantees the safety of the object disclosed in paragraphs 79-118 of the Manual (these conditions themselves are not considered in detail in this article, because go beyond its immediate subject).

A literal reading of the text of the Manual leads to the conclusion that the exclusion of an object from the World Heritage List may be caused by the non-compliance of the object with the criteria of outstanding universal value, as well as the absence of additional conditions. The Committee has repeatedly drawn attention to the insufficiency of meeting the criteria for inclusion in the List alone ^{[8; 9]}.

At the same time, the interpretation of both international treaties and documents adopted in the development of their ideas should take into account the established and emerging practice of their application. In this regard, the positions of the World Heritage Committee regarding the exclusion of objects from the List are of interest.

Arabian Antelope Reserve as the first object excluded from the World Heritage List

Chronologically, the first object to be excluded from the List is the Arabian Antelope (oryx) Reserve, located in Oman. The first nomination materials were submitted in 1992. As follows from their assessment conducted by the International Union for Conservation of Nature (hereinafter also — IUCN), the object occupies about 27,000 sq. km. and is a plateau at an altitude of 100-150 m ^[10]. The object was nominated according to all four criteria provided for natural objects, but the main reason for its inclusion in the List was the presence of the world's only herd of oryx in the wild, which was practically exterminated on the territory of the Arabian Peninsula as a result of illegal hunting. As a result of the reintroduction project, which began in 1980, the antelope population was restored in the nominated territory.

It should be noted that in the conclusion of the IUCN, existing problems in the protection of the object were also indicated, which acquired a systemic character in subsequent years. The disappearing vegetation that supports the existence of oryx does not receive special protection from livestock grazing. At the time of submission of the nomination materials, there was no clarity with the legal regime for the protection of the facility, and these problems were burdened by possible plans for the extraction of oil and sand for the production of glass. Summing up this part of the problems, the IUCN noted that the object does not meet the integrity criterion that requires adequate long-term legislative, regulatory or institutional protection.

Separately, it is necessary to mention the issue of the boundaries of the object. The IUCN also noted that the presented boundaries are approximate in nature, and it is necessary to exclude territories significantly changed by the impact of oil production. According to the advisory body, the decision on the nomination should be postponed, and representatives of Oman are also recommended to consider the possibility of using the potential of the biosphere reserve regime.

The inclusion of the object in question in the List took place in 1994 at the 18th session of the Committee. The reserve was included according to the fourth criterion for natural objects (at the time under consideration, the criteria of outstanding universal value were fixed separately for cultural and natural objects), concerning the conservation of the biodiversity of the object, including the Arabian oryx, the beauty bustard (chlamydotis undulata) and other endangered species of wild animals.

The strengthening of the legal protection of the reserve occurred due to the publication of Royal Decree No. 4/94, which, however, as indicated in the Committee's decision, was of a general nature and required the adoption of by-laws for its implementation ^[11]. It is quite reasonable that in such circumstances, the Committee made a recommendation that such acts should be adopted, as well as the preparation of a management plan that would take into account the outstanding universal value of the facility.

One of the serious problems of conservation of the Reserve was the conservation of biodiversity, and, above all, the Arabian oryx. As noted, this species was exterminated in the wild, and the population restoration project was the main reason for the inclusion of the object in the List. The analysis of the documents of the World Heritage system shows that as success in restoring the population has been achieved, the problem of poaching has become more acute again.  In 1996, the Bureau of the Committee drew attention to the killing of 13 Oryx, and already in 1999, the Bureau noted that the number of Arab Oryx fell from 400 in 1996 to 100 ^[12]. Competition for foot food with livestock, and the use of off-road vehicles that destroy vegetation have also layered on these problems.

At the same time, if the countries of the Arabian Peninsula showed determination and consistency in solving the poaching problem (for example, a coordinating committee for the conservation of the Arabian oryx was established in Abu Dhabi, dealing, among other things, with the problems of illegal animal trade)^[13], in terms of creating organizational conditions for the protection of the object, the actions of the Omani authorities were the main reason for the exclusion of the object from the List. The uncertainty of the boundaries of the Arabian Antelope Reserve, coupled with the problem of oil production on its territory, became one of the main reasons for the loss of outstanding universal value and subsequent exclusion from the List.

Attention is drawn to the fact that the Committee essentially recognized the lack of certainty of the exact boundaries at the time of the nomination of the object, pointing to the responsibilities of the consultant who will prepare the management plan, prepare a draft of such boundaries, and the IUCN to give an opinion on it. As the representative of the Federal Republic of Germany pointed out at the 21st session of the Bureau of the Committee in 1997, the situation with the Reserve clearly demonstrates the danger of being included in the List of objects without precise definition of boundaries ^[14]. Unfortunately, such problems are not unique in the World Heritage protection system, including in Russia, as will be discussed later in this article.

The materials of the bodies of the World Heritage protection system show that the determination of the exact boundaries of the object was delayed for years. In 1995, the IUCN expressed concern about this issue^[15]; in 1997, an outline of a temporary management plan was submitted, which fixed the external boundaries of the site^[14]; in 2004, the Committee asked the Omani authorities to submit a new management plan, including a detailed topographic map showing the new delimitation of the core zone and buffer zone^[16]. In 2006, the Committee was forced to note again the extremely slow progress in resolving the issue of borders^[17].

Difficulties with defining boundaries were organically connected with projects for the development of the extractive industry. In 1999, the Bureau of the Committee noted that international consultants had carried out an environmental impact assessment procedure for an oil production project, and in 2005, the submitted new facility management plan contained provisions on conditional authorization for the implementation of extractive industry projects in all areas of the facility, which received a negative assessment by the IUCN. The Advisory Body recalled the authoritative position of the International Council for Mining and Metals and Shell on the inadmissibility of mining projects in the territories of World Heritage sites.

The dramatic development of events around the definition of boundaries and the implementation of plans for oil production took place in 2007. Royal Decree 11/2007, which came into force on January 28, 2007, approved the new boundaries of the World Heritage Site: its territory was reduced to 2,824 square kilometers (almost 90 percent). At the same time, the Omani authorities informed the joint mission of the IUCN and the World Heritage Center that oil and gas production will begin in the near future on the territory directly adjacent to the 2824 sq. km site^[18].

 The situation that has developed with the change in the boundaries of the Arabian Antelope Reserve, from the point of view of international law, is nonsense. The World Heritage and all the concepts derived from it (including the boundaries of the relevant objects) are defined by the rules of the international regulatory system. Accordingly, the boundaries of World Heritage sites should be changed according to the rules of this system. The Manual provides for procedures for minor (paragraphs 163-164) and significant boundary changes (paragraph 165). At the same time, the latter procedure involves the submission of a new nomination.

Thus, an attempt to change the boundaries of a World Heritage site exclusively by national means, by definition, cannot lead to the desired result. The territory of the facility remains unchanged, but is deprived of national legal protection, which is a violation of the State's obligations under the Convention. Unfortunately, this practice is also known in modern Russian reality, as will be discussed in the second part of this article.

The further development of events was obviously largely predetermined by the position of Oman, which proposed to the Committee to exclude the object from the World Heritage List, expressing commitment to the preservation of the Arabian oryx. The exclusion of the object occurred at the 31st session of the Committee in 2007. In decision 31 COM 7B.11, the Committee recalled the provisions of Article 6 of the Convention, which enshrines the obligation of the international community to cooperate in order to protect the world heritage, pointed to the obligations of the participating States to ensure the protection and preservation of the world heritage located on their territory, and also drew attention to the serious decline in wild populations of the Arabian Oryx, which calls into question their viability.

The latter statement is based on the conclusion of the IUCN, which contained information about the total population size of 65 animals, including only one breeding herd consisting of 4 females and 4 males. The eighth paragraph of the decision states that Oman has not fulfilled its obligations under the Convention, in particular the obligation to protect and preserve the World Heritage Site. At the same time, the immediate reasons for the loss of outstanding universal value are: a decrease in the size of the Reserve in violation of the provisions of paragraphs 165 of the Manual (paragraphs 9, 12 of the Decision) and the desire to extract hydrocarbons within the boundaries of the site (paragraph 11 of the Decision)^[19]. The thirteenth paragraph of decision 31 COM 7B.11 The Arabian Antelope Reserve has been removed from the World Heritage List.

Thus, on the example considered, there is an obvious tendency for the Convention bodies to draw attention to the need to preserve the habitat of the Arabian antelope (which, in turn, contributes to the conservation of biodiversity) and eliminate factors that negatively affect the population of the animal in question. Also noteworthy is the relatively long period of adoption by the Convention bodies of less radical preventive measures aimed at leveling threats to the state of the World Heritage Site.

As a result of this balanced approach of the World Heritage Committee to the issues of finding nature objects of world value, the decision to exclude the Reserve from the World Heritage List was made only with the following reasons: a significant reduction in wild populations of the Arabian oryx; violation by the State whose territory is the habitat of the said endangered animal, obligations to protect and preserve the World Heritage site. heritage, expressed in a significant unjustified and uncoordinated reduction of the boundaries of the World Heritage Site and the initiation of mining operations on this territory.