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 2)

The system of measures formed for the current period at the international level to ensure the preservation of objects of natural and cultural origin that have universal planetary value is one of the most important factors contributing to the preservation of valuable natural complexes and man-made objects that have no analogues. An in-depth analysis of the problems of preserving World Heritage sites is seen as effective in studying real cases of exclusion that have taken place in the history of the development of this institution in world practice.

These studies allow us to come to conclusions about the optimal measures to be taken in order to ensure the preservation of World Heritage sites within the Russian Federation, in particular, on the Baikal natural territory. In the first part of this article, the problems of insufficient certainty and clarity in establishing the boundaries of World Heritage sites were considered, as well as ways to solve them were proposed. 

Reasons and process of exclusion from the World Heritage List of the Elbe Valley

In the period since the emergence and development of legal relations within the framework of the world Heritage institutions regulated by international documents, not so many have taken place (in comparison with the total number of World Heritage sites)  There are no precedents for exclusion from the World Heritage List.

 Among the objects that have been excluded from the World Heritage List (which is the second in the entire history of this institute after the Arabian Oryx Reserve) is the Elbe Valley near Dresden.

The Elbe Valley was included in the List in 2004 by decision 28 COM 14B.40 according to 2,3,4 and 5 criteria established by international standards for cultural objects, all of which are related to the perception of the shape of the landscape. As indicated in the conclusion of the International Council for the Preservation of Monuments and Places of Interest (hereinafter also ICOMOS) in 2004, the Valley is a cultural landscape formed in the 18th and 19th centuries, including the historical center of Dresden and the Pilnitz Palace with its gardens ^[1]. As described in the conclusion, the length of the landscape is 18 kilometers along the river, and the width is from five hundred meters to three kilometers.

The centers of the object on the river are the historical center of Dresden, the capital of the rulers of Saxony, as well as the Pilnitz Palace. ICOMOS noted the existence of a multi-level system of legal protection of the object, combining modes of protection of cultural and natural objects. Public ownership of the objects is represented by the city of Dresden, the State of Saxony and the Federal Republic of Germany. The entire landscape is included in the land use plan of the Capital of Saxony. Regarding the development plans of the territory, the ICOMOS conclusion contains an error that will become one of the main reasons for the exclusion of the object from the List. In the part describing the management of the World Heritage site, it is indicated that it is planned to build a new bridge five kilometers from the center down the river, the project of which is being developed according to the results of an international competition. Later it will turn out that the project provides for its construction in the center of the cultural landscape.

Already at the 13th session of the Committee in 2006, the Committee expressed concern about the plans for the construction of the Waldschleschen Bridge due to the fact that it will have an irreversible impact on the value of the object. In the conclusion on the condition of the object submitted for the 13th session, it is indicated that the Institute of Urban Design and Regional Planning of the Technical University of Aachen conducted a study of the visual impact of the planned construction on the object and came to the conclusion that the new bridge does not fit into the established sequence of Dresden bridges, obscures important views of Dresden and the Elbe Valley and irrevocably divides the landscape of the Elbe into two parts^[2].

Due to these circumstances, the Valley was included in the List of World Heritage in Danger, and it was indicated that the object would be subsequently removed from the List if the construction plans were implemented. The situation was complicated by the fact that the project was discussed long before the decision on the nomination was made, and a referendum was held, which was attended by 50.8% of Dresden residents who have the right to vote, of which 67.92% were in favor of the construction of the bridge. As indicated in the cited work, the referendum was held by an initiative group, which included, among others, the German automobile club. The Dresden Municipality has published a brochure with arguments for and against the construction of the bridge ^{[3, p. 55]}.

The committee asked to suspend the construction of the bridge, and in 2006 the Dresden City Council complied with this request^[4]. The issue of the need to build a bridge and the role of the referendum was subsequently resolved in a number of judicial instances (the Dresden Administrative Court, the Supreme Administrative Court of Saxony, the Constitutional Court of Saxony, the Federal Constitutional Court), which resulted in the recognition of the binding force of the referendum and the need to implement measures for the construction of the bridge.

The World Heritage Committee and its advisory bodies proposed to consider the possibility of using alternative options, in particular, the construction of a tunnel under the Elbe. Due to the fact that the decision on the construction of the bridge was made in a referendum, the decision on the application of an alternative option should also be taken as a result of a vote that was not held. Since the decision of the referendum was to be implemented within three years, the construction of the bridge began in 2007 ^{[3, p. 58]}.  The mission of ICOMOS and the World Heritage Center, which visited the site in 2008, noted that earthworks and the laying of sewer pipes are underway at the site, and the foundation should be completed in June 2008.

The decision to remove the site from the World Heritage List was taken in 2009 at the 33rd session of the World Heritage Committee (33 COM 7A.26). The Committee referred to its previous decisions, the results of the mission that visited the site in 2008, the provisions of the Convention obliging the State to ensure the protection and preservation of World Heritage sites, and expressed It is deeply regrettable that Germany was unable to ensure the fulfillment of its obligations under the Convention and to stop the implementation of the project, which caused irreversible damage to the outstanding universal value of the facility.

It should be emphasized that the Committee, in contrast to the situation with the Arabian Oryx Reserve, separately noted the state's search for all opportunities to preserve the outstanding universal value of the Elbe River Valley near Dresden, and also indicated the possibility of submitting a new nomination.  Another difference from the situation with the Reserve is the absence of the State's consent to the exclusion of the object, however, according to the prevailing opinion, such consent is not required.

History and grounds of exclusion of the City of Liverpool

 from the World Heritage List

Another case of exclusion from the World Heritage List concerned the Liverpool World Heritage Site – the city of seafarers and merchants. ICOMOS, in conclusion, based on the results of the consideration of the nomination of the object, indicates that the object is a group of buildings in the terminology of the Convention and a historical city in the terminology of the Guide ^[5]. The city is described as one of the centers of world trade in the 18th and 19th centuries, which played an important role in the growth of the British Empire. The nominated facility consists of six parts: Pier Head, Albert Dock, Stanley Dock, the historic center within the boundaries of Castle Street/Dale Street/Old Hall Street (includes prominent buildings of the eighteenth and early nineteenth centuries), William Brown Street Cultural Quarter, Lower Duke Street. A buffer zone of considerable size is provided for the object. In terms of the management regime, there are numerous owners of real estate (both public and private), and various bodies and organizations responsible for the management of the object are represented in the coordinating body. Separately, the presence of various urban planning and management plans is noted, at the time of nomination, the general management plan for the facility is under development.

Assessing the quality of management, ICOMOS indicated that the mission that visited the nominated facility was, in general, satisfied with the planning and control mechanisms. At the same time, it was noted that new construction is planned in the center of the port zone, which requires strict control over various construction parameters, including the policy for high-rise buildings.  In the section on risk analysis, the aspect of territory development is named as the main threat. The object was included in the List in 2004 by decision 28 COM 14B.49 on criteria 2,3 and 4, and the concerns expressed in the ICOMOS conclusion were reflected in it. The Committee recommended that special attention be paid to monitoring the processes of changing the territory of the World Heritage Site in order to prevent deterioration of its conditions, especially in terms of changes related to new construction. Along with this, the Committee appealed to the UK to ensure that the height of new buildings does not exceed the height of surrounding objects, that the character of new buildings corresponds to the qualities of the historical territory, so that new construction facilities in Pir Head do not dominate the historical buildings, but complement it^[6].

An analysis of the documents of the World Heritage protection system bodies in the years following the nomination shows that the concerns expressed by ICOMOS during the nomination were justified. Already in 2006, the question was raised about the construction of a new museum building on the site, the appearance of which the Committee at that time assessed as dominant, as well as three new buildings on the embankment, one of which can also be considered intrusive in the architectural sense^[7]. The museum building referred to in the Committee's decision is a large asymmetrical structure that has received a number of negative reviews. These plans were the reason for sending the ICOMOS mission to the facility, as well as the adoption of strategic plans for future construction. At the same time, the ICOMOS mission, which visited the facility, stated that there was no immediate threat to the appearance from the planned construction. The planned buildings complement the "Three Graces" complex of buildings, and also meet the necessary height requirements, although the potential for functional and visual unity may exist due to the density of the building, the urban structure and the historical character of Pir Head^[8].

At the 31st session, the Committee emphasized these conclusions of the mission, but also drew attention to a number of problems in the protection of the facility, among which were noted: the organization of general management of the development of the territory; lack of analysis and description of the characteristics of the urban landscape related to outstanding universal value^[9]; lack of clearly established maximum heights of new construction and lack of information developers, developers and the general public about the requirements for the protection of the World Heritage site. The Committee's recommendations in this part were logical and justified, since the protection of an object requires a clear and detailed definition of "what" is protected and "how" is protected. As will be shown later in the last part of this article, these recommendations can also be applied to Lake Baikal in order to increase the level of its legal protection. In the report on the state of the facility in 2007 The United Kingdom indicated the development of a revised guide on high-rise buildings.

Starting from 2011, the Committee's decisions begin to include the problem of the Liverpool Waters project implementation. As noted in the analysis of the state of the facility, the territory development project occupies 60 hectares of the facility and its buffer zone to the north of the Pier Head, extending for two kilometers along the embankment, and affects the territory of the docks^[10]. According to the "brief" permit application, the construction of the Master Plan involves the creation of about 9,000 residential premises, more than 300,000 square meters of commercial space and about 70,000 square meters of hotels, conference rooms, retail and leisure, as well as a berth for cruise ships. The project is supposed to be implemented for thirty years. It should be noted that in the British system of urban planning regulation, a planning permit is required in the case of new construction, reconstruction of a building or a change in the purpose of its use (https://www.gov.uk/planning-permission-england-wales ), a brief permit (outline planning permission) assumes that the local authorized body agrees to the principle of development of the territory, while its features will be determined later^[11].

The environmental impact assessment provided by the developer, as indicated in the analysis of the condition of the object, does not adequately reflect the impact of the proposed construction on the outstanding universal value of the object. The United Kingdom of Great Britain and Northern Ireland indicated that an independent impact assessment was conducted, organized by the British State Commission on Historic Buildings and Monuments of England, acting as a government consultant on the historical environment^[12].

According to its results, serious threats to the outstanding universal value of the object were identified, expressed, first of all, in the violation of the visual connection of the object with the river due to the construction of medium-height buildings, as well as in the change of the traditional characteristic features of the object, which will give way to modern ones. At the same time, the assessment of the state of the object specifies in detail what such a change is expressed in: low, horizontal and transverse historical accents will be replaced by high, vertical and longitudinal ones. As a result of the project, the historic buildings of the docks will be completely absorbed, and only the "water between the buildings" will be visible.

At the 35th session, the Committee reflected all these concerns and pointed out that the proposed project for the development of the territory does not correspond to either the facility management plan or the city plans for the development of the territory of Liverpool^[13].

The following year, the situation continued to worsen. The Committee pointed out that Liverpool City Council was inclined to agree to the investor's application for a permit, in connection with which the object was listed as a World Heritage in Danger. At the same time, the Committee indicated for the first time that the object could be removed from the List if the development project was approved and implemented.

In connection with the inclusion of the object in the "red" list of the World Heritage protection system, the Committee pointed out the need for the UK to prepare a document known as the "Expected state of the object", which contained indicators for the exclusion of the object from the List of World Heritage under threat, which would indicate the normalization of the situation^[14]. In the conclusion of the advisory bodies of the World Heritage Committee, it is noted that the Liverpool City Council and the investor (Peel Holdings), on the contrary, believe that the proposed construction plan, in principle, corresponds to both the management plan and the city development plan, and the UK Government has no authority to prohibit the City Council from issuing a construction permit.

In subsequent years, against the background of continuing warnings about the possibility of excluding an object from the List, the process of developing the document "Expected state of the object" took place. The World Heritage Center and its advisory bodies expressed their wishes for its content^[15]. In the final version, this document was never adopted (despite the presence of its submitted draft, important documents such as the Local Plan, neighborhood plans and high-rise buildings were not attached to it)^[16].

Over time, plans for the development of the World Heritage Site continued to expand, in particular, student dormitories (2016), but one of the most serious proposed projects was the stadium at Bramley Moor Dock, located within the boundaries of the World Heritage Site, which served as one of the triggers for the radical decision to exclude Liverpool from the List.

The decision on delisting itself was made at the 44th session of the World Heritage Committee in 2021. The Committee, as in other previously considered decisions on the exclusion of objects from the List, noted the main problems that it had previously drawn attention to, referred to article 6 of the Convention regarding the need for cooperation in order to preserve World Heritage sites, as well as the obligations of each individual State to preserve the cultural and natural heritage located on its territory.

The Committee's specific formulation of the immediate reasons for excluding an object from the List also deserves consideration. These include inadequate management processes, mechanisms and norms of new construction within the boundaries of the World Heritage Site and in its vicinity, which led to a serious deterioration of the condition of the object and the irretrievable loss of qualities that convey outstanding universal value, along with a significant loss of integrity and authenticity. The processes of further deterioration of the object, as indicated in the document under study, are irreversible, and the State (the United Kingdom) has not fulfilled its obligations under the Convention regarding the protection and preservation of the object. The Liverpool Waters project and other infrastructure projects pose an established danger to the facility. Separately, the Committee noted that the UK has openly stated that the government has no legal and other means to fulfill the Committee's requests to ensure the protection of the facility and the long-term preservation of the outstanding universal value of the facility. The eleventh paragraph of decision 44 COM 7A. The World Heritage Site Liverpool – the city of sailors and merchants was removed from the List^[17].

The commonality of the problems of preserving World Heritage sites

 The considered examples of the fulfillment by the three States of the obligations under the Convention make it possible to identify some common problems in the protection of World Heritage sites, the analysis of which will prevent the occurrence of negative consequences, such as the exclusion of an object from the World Heritage List.

The first problem, which served as the main reason for the exclusion of the Arabian Antelope Reserve from the List, as it was indicated, is the lack of certainty and clarity in establishing the boundaries of World Heritage sites. The lack of a clear and complete understanding of the boundaries of World Heritage sites as a problem has been identified in many other sites. And if in relation to the Reserve, this problem was initially largely due to shortcomings in the approaches of the Committee itself, which included an object without clearly defined borders in the List, then in a number of other cases there were problems with the national perception of the certainty of borders. For example, as follows from the analysis of documents on the state of preservation of the Belovezhsky Forest object, Belarus has long believed that the World Heritage regime applies only to the protected area of the national park, which was erroneous.

The issue of the definiteness of the boundaries of the World Heritage site of Lake Baikal received an ambiguous assessment. We have addressed this issue in various publications ^[18], in this article we will only note that the source materials presented in open access on the website of the World Heritage Center do give some reasons for doubt. However, a systematic interpretation of this issue allows us to come to an unambiguous conclusion about the coincidence of the boundaries of the World Heritage site Lake Baikal with the territory of the Central Ecological Zone of the Baikal Natural Territory (hereinafter also referred to as the BPT CEZ). And if in the World Heritage protection system the issue of the definiteness of the boundaries of the nominated objects is currently being resolved by establishing strict requirements for the submitted cartographic material, then in domestic law with respect to Lake Baikal, the issue of the boundaries of the object still causes discrepancies.

The issue of borders often becomes the subject of speculation about their uncertainty or about the need to separate the concepts of "site" and "object" of World Heritage. It seems necessary both to resolve the private issue of the boundaries of the Lake Baikal object and to strengthen the regime of legal protection of the borders of all World Heritage sites within the Russian Federation.

It seems that the regime of World Natural heritage sites should be fixed in the law "On Specially Protected Natural Territories"^[19], in the corresponding section of which the requirement to create a specially protected natural territory on the territory of the World Heritage site (hereinafter also – protected areas) of the traditional type of federal level or protected areas sui generis (special kind) should be fixed) with the mandatory formation of a unified administration (among them is the CEZ BPT, which is currently a de facto protected area). The boundaries of such a protected area should be approved and changed by an act of the Government, and when changing them, the requirements of the World Heritage Convention and the Guidelines should be taken into account.

 This approach will help to avoid situations that have developed with the objects of the Virgin Forests of Komi and Volcanoes of Kamchatka, when actions were taken by acts of the executive bodies of federal and regional authorities to change the boundaries of protected areas that ensure the fulfillment of the international obligations of the Russian Federation to protect the relevant World Heritage sites.

As it was shown by the example of the Arabian Oryx Reserve, such changes do not affect the boundaries of the World Heritage site in any way from the point of view of the international legal level of regulation and constitute a serious violation of the protection regime of the World Heritage site, which may entail the exclusion of the object from the List.

The second problem common to the two objects considered is the preservation of the appearance of cultural heritage. Despite the fact that Baikal is a World Natural Heritage site, the issue of aesthetic perception of the lake and its immediate surroundings is considered important from the point of view of fulfilling obligations under the Convention on the Protection of World Heritage, since it is recognized by the World Heritage according to all four criteria for assessing outstanding universal value. The seventh criterion for natural objects (in modern numbering) assumes that the object includes the greatest natural phenomena or places of exceptional natural beauty and aesthetic value.

In accordance with paragraph 51 of the Guidelines, when listing an object, the Committee adopts a formulation of outstanding universal value, which represents key information for effective protection and management in the future. The same meaning is given to it by paragraph 155 of the Manual, indicating that this wording "is the basis for the future protection of the object and its management." At the same time, these formulations are not static, the Committee, in consultation with the State party to the Convention, may make changes to the section of protection and management, taking into account the assessment of advisory bodies (paragraph 155).

One of the components of such a formulation is the disclosure of the criteria by which the object is included in the List. The Guide also provides for the possibility of submitting a retrospective formulation of outstanding universal value. The Committee's decision to include Lake Baikal in the List is very concise^[20]. It mentions all four criteria of outstanding universal value, describes the most general information about the lake, indicates some problems related to its protection, but does not contain a detailed description of them. This also applies to the criterion of exceptional natural beauty and aesthetic value.

The problems of protecting natural beauty are not represented at the national level either. The current legislation does not contain tools for the protection of Baikal landscapes, although the Federal Law "On the Protection of Lake Baikal" has a general provision on the need to protect the natural landscapes of the lake's water protection zone (Article 5).

Thus, the analysis of the practice of excluding World cultural and natural heritage sites from the List shows that extrapolation of the main reasons for such exclusion to the current legal status of Lake Baikal as a World Natural Heritage site leads to conclusions about the need, regardless of the relevant UNESCO events, for the state to develop and make appropriate adjustments to the legislation on the protection of Lake Baikal, and in the practice of its application.