Peter Lang AG

Chapter Title: Protecting the Tangible, Safeguarding the Intangible: A Same

Conventional Model for Different Needs
Chapter Author(s): Federico Lenzerini

Book Title: Climate Change as a Threat to Peace

Book Subtitle: Impacts on Cultural Heritage and Cultural Diversity
Book Editor(s): Sabine von Schorlemer and Sylvia Maus
Published by: Peter Lang AG

Stable URL: http://www.jstor.com/stable/j.ctv2t4cvp.13

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
This content is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives
4.0 International License (CC BY-NC-ND 4.0). To view a copy of this license, visit
https://creativecommons.org/licenses/by-nc-nd/4.0/.

Peter Lang AG is collaborating with JSTOR to digitize, preserve and extend access to Climate
Change as a Threat to Peace

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Federico Lenzerini∗

Protecting the Tangible, Safeguarding the

Intangible: A Same Conventional Model for
Different Needs

Abstract The model of the World Heritage Convention, adopted by the UNESCO
General Conference in 1972, has emerged as one of the most successful ever es-
tablished by an international convention aimed at protecting a common good,
id est human rights, Cultural Heritage or environment. At present, the World
Heritage Convention has been ratified by 191 states and 1.007 properties are
inscribed on the World Heritage List,1 the keystone around which the system
established by the Convention is centred.
In light of the huge success which has characterized the World Heritage Con-
vention, UNESCO has replicated its model in other legal instruments aimed at
safeguarding Cultural Heritage in different contexts and/or of different kinds
than the World Heritage Convention itself. This has happened, in particular,
with respect to the scheme of enhanced protection established by the Second
Protocol of 1999 to the 1954 Hague Convention on the Protection of Cultural
Property in the Event of Armed Conflict as well as to the 2003 Convention for
the Safeguarding of the Intangible Cultural Heritage.
As far as the issue of climate change is concerned, both the World Heritage
Convention and the Convention for the Safeguarding of the Intangible Cultural
Heritage, through providing for general obligations for states parties to take the
necessary measures to ensure protection/safeguarding of the heritage they re-
spectively concern, as well as through establishing systems of international co-
operation to this end, in principle provide the necessary tools to face the threats
posed by climate change on tangible and intangible Cultural Heritage. In prac-
tical terms, however, no adequate attention is devoted by both conventions to

∗ Professor of Public International Law and European Union Law at the University of
Siena (Italy). Consultant to UNESCO and Legal Advisor of the Italian Ministry of
Foreign Affairs at international negotiations concerning the protection of cultural
heritage. Member of the Committee on Biotechnology of the International Law As-
sociation (ILA) and of the ILA Committee on Cultural Heritage Law, and Rapporteur
of the ILA Committee on the Rights of Indigenous Peoples.
1 As of November 2014; for dynamic reference see whc.unesco.org/en/list.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
142 Federico Lenzerini

the threats of climate change. Nevertheless, in this respect the World Heritage
Convention is certainly better equipped than the Convention for the Safeguard-
ing of the Intangible Cultural Heritage. In any event, the concrete preservation
of Cultural Heritage against the above threats ultimately depends on the willing-
ness and capacity of states parties to the respective conventions to take effective
and efficient measures in order to properly address the specific problems faced
by each manifestation of Cultural Heritage as a consequence of climate change.

I Introduction
The model of the World Heritage Convention (hereinafter WHC), adopted by
the UNESCO General Conference in 1972,2 has emerged as one of the most
successful ever established by an international convention aimed at protecting
a common good, id est human rights, Cultural Heritage or environment. At pres­
ent, the WHC has been ratified by 191 states3 and 1.007 properties are inscribed
on the World Heritage List (WHL),4 the keystone around which the system es-
tablished by the Convention revolves.
The scope of the WHC is limited to part of the world’s immovable cul­tural
property of tangible character and natural sites, namely to those properties
which are “of outstanding interest” and therefore “need to be preserved as part of
the World Heritage of mankind as a whole”.5 Consequently, adopting a list-based
system reflected the logical structure according to which a convention pursuing
such a goal should be organized. Although the WHC is organized according to
a multi-structured regulation, pursuing the goal of coordinating national6 and
international7 protection, only the latter is significantly operationalized in the
context of the practical implementation of the Convention. In addition, despite
the fact that – within the framework of the system of international protection – a
specific provision is included stressing that all properties of outstanding univer-
sal value, and not only those inscribed on the WHL, should be the object of the

2 Convention concerning the Protection of the World Cultural and Natural Heritage;
adopted 16 November 1972, entered into force 17 December 1975, 1037 UNTS 151.
3 See UNESCO, ‘Legal Instruments’ www.unesco.org/eri/la/convention.asp?KO=13055&
language=E accessed 24 November 2014.
4 As of November 2014; for dynamic reference confer UNESCO, ‘World Heritage List’
whc.unesco.org/en/list/accessed 24 November 2014.
5 See WHC, Preamble sixth recital.
6 See Articles 4–5.
7 See Articles 6 ff.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 143

general measures of protection contemplated by the WHC,8 such a provision is

in practice disregarded, attention being exclusively devoted to listed properties.9
In fact, the listing system represents the aspect making the fortune of the WHC.
States parties are eager to inscribe as more national properties as possible on the
WHL, due to the huge international visibility a property attains after being listed;
as a result of a transitive property, the more the number of national properties
inscribed on the List, the greater the degree of international visibility achieved by
the state. Also, the willingness to retain such a visibility usually persuades states
parties to adopt adequate measures of preservation for the properties concerned,
although recently exceptions have occurred leading the World Heritage Com-
mittee to delist properties in two cases,10 giving rise to a potentially dangerous
trend for the effectiveness of the WHC. This trend, however, at least for the mo-
ment, does not challenge the assumption of the WHC as one of the most success-
ful conventional models ever in the panorama of international law.

II The Right Model for the Wrong Convention

In light of the huge success which has characterized the WHC, UNESCO has
replicated its model in other legal instruments aimed at safeguarding Cultural
Heritage in different contexts and/or of different kinds than the WHC itself. This
has happened, in particular, with respect to the scheme of enhanced protection
established by the Second Protocol of 1999 to the Hague Convention of 1954 for
the Protection of Cultural Property in the Event of Armed Conflict11 as well as
to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage
(CSICH).12
The CSICH achieved extensive international support immediately after its
adoption. At the moment of this writing, it has been ratified by 161 countries.13

8 See Article 12.

9 See Federico Lenzerini, ‘Article 12. Protection of Properties Not Inscribed on the
World Heritage List’ in Francesco Francioni and Federico Lenzerini (eds), The World
Heritage Convention. A Commentary (Oxford University Press 2008) 201. On the
functioning of the lists established by Article 11 WHC see Tullio Scovazzi, ‘Arti-
cles 8–11. World Heritage Committee and World Heritage List’ ibid 147; Gionata P
­Buzzini and Luigi Condorelli, ‘Article 11. List of World Heritage in Danger’ ibid 175.
10 See notes 24 and 25 below and corresponding text.
11 Adopted 26 March 1999, entered into force 9 March 2004, 2253 UNTS 172.
12 Adopted 17 October 2003, entered into force 20 April 2006, 2368 UNTS 3.
13 See UNESCO, ‘Legal Instruments’ www.unesco.org/eri/la/convention.asp?language=
E&KO=17116 accessed 24 November 2014.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
144 Federico Lenzerini

282 elements of intangible Cultural Heritage have been inscribed so far on

the Representative List of the Intangible Cultural Heritage of Humanity (es-
tablished by Article 16 CSICH), 38 on the List of Intangible Cultural Heri­
tage in Need of Urgent Safeguarding (provided for by Article 17 CSICH), and
12 programmes, projects and activities have been inscribed on the Register of
Best Safeguarding Practices.14 In symbolic terms, the adoption of the CSICH
determined an epochal step in the context of the process of development of
international law on Cultural Heritage; in fact, it epitomized the completion of
the evolution of UNESCO standard-setting toward embracing a holistic con-
cept of Cultural Heritage, including not only the material aspects of culture
but also the intangible ones.15 The CSICH, therefore, was quite appealing for
non-Western countries, in the context of which the understanding of culture is
generally conceived, at least for a large percentage, in its intangible aspects. In
fact, since the beginning of its negotiating process, the CSICH was particularly
promoted and supported by African, Asian and Latin American countries.16
Another factor determining the huge success achieved by the CSICH is rep-
resented by the circumstance that virtually no real state obligations – in the
technical sense of the term – are included in its text. The duties of states parties
are in fact expressed in quite soft terms and the Convention looks like a sort
of manifesto proclaiming the right of states – to be recognized and blessed by
the international community – to appropriately safeguard their own intangi-
ble Cultural Heritage. Last but not least, a third reason of the success of the
CSICH is represented by the perspective that states may use the Convention
as a tool for promoting their international visibility, to an equivalent extent of
what happens with the WHC; the fact of replicating the model of the latter,
based on the listing system, actually makes such a perspective very concrete
and appealing.

14 See UNESCO, ‘Lists of Intangible Cultural Heritage and Register of Best Safeguard-
ing Practices’ www.unesco.org/culture/ich/index.php?lg=en&pg=00559 accessed 24
November 2014.
15 Generally on intangible Cultural Heritage and the CSICH see, inter alia, Federico
Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) 22 Eur
J Intl L 101; Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford
University Press 2013).
16 The very term ‘intangible Cultural Heritage’ is considered to correspond to a ‘loose
Eng- lish translation’ of the Japanese expression mukei bunkazai; see Richard Kurin,
‘Safeguarding Intangible Cultural Heritage: Key Factors in Implementing the 2003
Convention’ (2007) 2 International Journal of Intangible Heritage 9, 10.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 145

The CSICH, however, has (or should have) the purpose of safeguarding the
common good of intangible Cultural Heritage to the benefit of the international
community, rather than a state interest. In this respect, the fact of structuring the
operational part of the CSICH according to the model of the WHC appears to be
inadequate to ensure appropriate safeguarding for the specificities of intangible Cul-
tural Heritage. The present writer underlined this aspect at the second meeting of
experts, preceding the negotiations leading to the adoption of the CSIHC, taking
place in Rio de Janeiro in January 2002. He emphasized that ‘the schema of the 1972
World Heritage Convention might not be the suitable model for Intangible Cultural
Heritage … a legal approach should perhaps avoid the establishment of a List based
on selective criteria of importance. The latter might give rise to arbitrary discrim-
ination among cultures’.17 The ‘anti-lists’ position was shared by the majority of in-
dependent experts, but since the beginning, the intention within UNESCO was to
replicate the model of the WHC. This approach easily took the lead at the diplomat-
ic negotiations18 because it was shared by the most influential state delegations. In
fact, it was never seriously challenged, not even when the Norwegian delegate raised
the fact that the listing system is not appropriate for intangible Cultural Heritage.19
In objective terms, however, the fact remains that the model in point is not the
best one – to say the least – in view of appropriately safeguarding intangible Cul-
tural Heritage in light of its specificities and its cultural and spiritual significance,
particularly for the communities specifically affected. Indeed, listing intangible
Cultural Heritage betrays the inherent value of such a heritage as mirroring the
cultural identity of its creators and bearers. In factual terms, the very circum-
stance of listing inherently presupposes the taxonomy of different manifestations
of the heritage concerned; this unavoidably leads to an instinctive perception that
the listed examples are particularly valuable and in some way more important
than similar manifestations of intangible heritage not included in the same lists.
In other words, the establishment of a hierarchy among the different examples of
Cultural Heritage ultimately leads to a (mis)understanding – especially among
the general public – that certain examples of intangible Cultural Heritage are

17 See UNESCO International Meeting of Experts, ‘Intangible Cultural Heritage: Pri-

ority Domains for an International Convention’ Rio de Janeiro, Brazil (22–24 Janu-
ary 2002) Final Report www.unesco.org/culture/ich/doc/src/00074-EN.pdf accessed
23 September 2013, 8.
18 The present writer was a member of the Italian delegation throughout the whole
length of the negotiations leading to the adoption of the CSICH.
19 See Janet Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of
the Intangible Cultural Heritage (Institute of Art & Law 2006) 79.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
146 Federico Lenzerini

better than others. While this approach can be appropriate – at least partially –
for monumental heritage, it is totally improper for immaterial heritage, exactly
for the reason that its main significance rests not on its exterior qualities, but
rather on the cultural value it has for its creators and bearers. In fact, the main
objective of the CSICH, as specified by its Article 1, is ‘to ensure respect for the
intangible Cultural Heritage of the communities, groups and individuals con-
cerned’; this means that the rationale of the safeguarding of the heritage in point
is (rectius: should be) grounded on the perception of its significance as an elem-
ent of the cultural identity of such communities, groups and individuals. Fur-
thermore, one should consider that the action for the safeguarding of intangible
Cultural Heri­tage pursues the goal of preserving the inherent value of the said
heritage as a vehicle for the protection of cultural diversity. In this respect, it is
evident that whatever value judgment based on external perceptions determined
by its different elements is in principle incompatible with the value of diversity.
The ultimate danger of the approach in point is represented by the possibility that
listing intangible Cultural Heritage may implicitly lead to provoke an instinctive
classification of the different communities which create such a heritage, deter-
mining an unconscious perception in the public that the communities whose
intangible Cultural Heritage is listed are more valuable than others.
Against the reasoning just developed one could object that the Representa-
tive List of the Intangible Cultural Heritage of Humanity is contemplated only
‘(i)n order to ensure better visibility of the intangible Cultural Heritage and
awareness of its significance, and to encourage dialogue which respects cultural
diversity’; therefore, it would not imply any classification among the different el-
ements of intangible Cultural Heritage based on their quality or value. However,
even though this can be true in theory, in practice it is unlikely that the existence
of a list will not be perceived by the public as creating a value-based classifi-
cation among the existing examples of intangible Cultural Heritage, especially
among those of a similar kind (e.g. examples of music or theatre representations,
which are apparently very similar to each other but, in reality, may be profound-
ly different on account of the fact that they are part of the cultural identity of
different communities). The experience of the WHC clearly shows that this con-
clusion is hardly rebuttable; in fact, although (as previously noted) it includes a
­provision – Article 1220 – establishing that the protection accorded by the Con-
vention must not be limited to listed properties, in practice such a provision has
remained virtually unapplied and attention has been devoted only to properties

20 See note 8 above and corresponding text.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 147

inscribed on the WHL. Furthermore, it can hardly be asserted that the Repre-
sentative List of the Intangible Cultural Heritage of Humanity – around which
the safeguarding of the intangible Cultural Heritage at the international level is
centred – may represent a legal guarantee for the heritage concerned; it rather
appears as a tool for states to obtain visibility for the intangible heritage located
in their own territory.

III The Common Structure of the WHC and the CSICH

and the Threats of Climate Change
It is a fact that the two conventions under debate have many things in common.
This holds true not only with respect to their equivalent structure and content,
but also for the philosophical rationale inspiring them. Indeed, most probably,
the reason why they are almost identical in terms of structure and content is
exactly due to their equivalent rationale. While I do not want to question the fact
that the initiators of the movement leading to the adoption of the WHC were
moved by the noble intention of safeguarding the common good of Cultural
Heritage in the general interest of humanity, at the same time one may easily im-
agine that since the first rounds of negotiations state representatives perceived
its enormous potentialities in terms of raising states’ international visibility and
increasing their attractiveness under different perspectives. The same percep-
tion certainly persuaded most countries in the world to support the adoption
of the CSICH and to extensively ratify it.21 The result is two conventions which
– ­although having the huge merit of establishing very successful and efficient
legal frameworks for the protection/safeguarding of, respectively, tangible/im-
movable and intangible Cultural Heritage – pay a huge tribute to the tradition-
al idea of state sovereignty. They in fact put in the hands of states parties the
competence/power to determine which elements of heritage are to be protected/
safeguarded and the extent to which protection/safeguarding is actually to be
accorded. The text and recent practice of the WHC make it crystal clear. As for
the former, it is enough to note that no property may be inscribed on the WHL
without an explicit request in this respect by the territorial government,22 as well
as that international assistance may be activated by the World Heritage Com-
mittee only upon request of the state concerned.23 With respect to the latter, one

21 See above, text corresponding to note 13.

22 See Article 11(3), stating that ‘(t)he inclusion of a property in the World Heritage List
requires the consent of the State concerned’.
23 See Articles 13(1) and 19.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
148 Federico Lenzerini

may consider the cases of the two properties recently delisted from the WHL,
namely the Oman’s Arabian Oryx Sanctuary24 and the German Dresden Elbe
Valley.25 The first was delisted in 2007 following a decision of the state party to
reduce the area of the property by 90 per cent in order to carry out hydrocarbon
prospection in the area. The Dresden Elbe Valley was delisted in 2009 due to the
building of a four-lane bridge in the heart of the landscape. In both cases, the
decision of the World Heritage Committee was in line with the principles of the
WHC, for the reason that the properties concerned had lost their ‘outstanding
universal value’ on account of the modifications occurred with respect to their
integrity; in fact, according to Article 1 of the Convention, protection is only
granted to cultural properties having such a value (the same is established by
Article 2 with respect to natural properties). The point to be emphasized, how-
ever, is that these cases show that, when a state party decides not to comply with
its obligations pursuant to the WHC, no appropriate manner exists to prevent
or react against such behaviour. In fact, it is paradoxical that the only available
remedy is to de­list the property, because, if the rationale of the Convention is to
protect cultural (and natural) properties in the general interest of humanity, then
delisting produces the effect of creating a prejudice not for the territorial state,
but rather for humanity as a whole. It is, therefore, a sort of double injury for hu-
manity, the first being determined by the damage to the integrity of the property
determined by the territorial state, the second by the deprivation of significant
international protection for it following its delisting. It is even more paradoxical
that in the practice the two cases just described have not been treated by other
states parties as violations of the obligations established by the WHC, but ra-
ther as unfortunate adversities suffered by the territorial states concerned; this is
epitomized by the words of the Chair of the World Heritage Committee – María
Jesús San Segundo, Ambassador and Permanent Delegate of Spain to UNESCO
– following delisting of the Dresden Elbe Valley in 2009: ‘(e)very time we fail to
preserve a site, we share the pain of the State Party’.26 Such an approach discloses
a perception according to which, when a state party has other (usually econom-
ic) interests to pursue, Cultural Heritage may be legitimately sacrificed, and that
state obtains even the solidarity of its consociates. This gives a very clear idea of

24 See UNESCO, ‘Arabian Oryx Sanctuary’ whc.unesco.org/en/list/654 accessed 5 October

2013.
25 See UNESCO, ‘Dresden Elbe Valley’ whc.unesco.org/en/list/1156 accessed 5 October
2013.
26 See UNESCO, ‘Dresden is deleted from UNESCO’s World Heritage List’ whc.unesco.
org/en/news/522 accessed 5 October 2013.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 149

the manner states conceive their duty to ensure appropriate protection for Cul-
tural and Natural Heritage in the interest of humanity… As previously noted, the
CSICH imitates the approach and the model of the WHC. For both conventions,
state sovereignty is therefore the driving force governing their functioning, in a
manner which is evidently at odds with the nature of common good of Cultural
Heritage of both tangible and intangible character.
In practical terms, the approach just described implies that the two conven-
tions are much more concerned in developing the strategies states may adopt
to maximize the potentialities of Cultural Heritage under the perspective of na-
tional interests, rather than in properly facing the threats which may jeopardize
the integrity and preservation of the heritage concerned to the benefit of future
generations. Among the other issues to which such reasoning applies, climate
change is undoubtedly included.
Climate change may determine a huge detrimental impact with respect to
both tangible and intangible heritage. As regards to the former, the effects of
climate change on World Heritage properties – especially mountains, glaciers
and sea areas – over the past years are visible to everyone. For example, Mount
­Kilimanjaro, in Tanzania,27 has been surrounded by large quantities of ice for
some 10,000 years, but in the last decades the amount of ice has drastically de-
creased, of more than 85 per cent between 1912 and 2011; ice melting on the top
of the mountain is at present a constant and seemingly inexorable process, to the
point that it is expected to become ice free soon, predictions ranging from 2020
to 2060.28 Also, in 2004 several properties inscribed on the WHL were affected
by the earthquake and tsunami hitting South Asia; cultural properties include
the Old Town of Galle and its Fortifications in Sri Lanka29 as well as Group of
Monuments Mahabalipuram30 and the Sun Temple of Konârak31 in India; also

27 See UNESCO, ‘Kilimanjaro National Park’ whc.unesco.org/en/list/403 accessed

5 October 2013.
28 See Damien Gayle, ‘Kilimanjaro’s glaciers shrink and crack as scientists warn Afri-
ca’s highest mountain may soon be ice free’ Mail Online (13 November 2010) www.
dailymail.co.uk/sciencetech/article-2232195/Kilimanjaros-glaciers-shrink-crack-
scientists-warn-Africas-highest-mountain-soon-ice-free.html accessed 5 October
2013.
29 See UNESCO, ‘Old Town of Galle and its Fortifications’ whc.unesco.org/en/list/451
accessed 5 October 2013.
30 See UNESCO, ‘Group of Monuments at Mahabalipuram’ whc.unesco.org/en/list/249
accessed 5 October 2013.
31 See UNESCO, ‘Sun Temple, Konârak’ whc.unesco.org/en/list/246 accessed 5 October
2013.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
150 Federico Lenzerini

natural sites were damaged, including the Ujung Kulon National Park32 and
the Tropical Rainforest Heritage of Sumatra,33 both in Indonesia. Another ex­
ample is offered by the Everglades National Park,34 in the United States, which
in 2010 was inscribed on the List of World Heritage in Danger, upon request
of the American government, because of serious and continuing degradation
of its aquatic ecosystem. The Park had been first inscribed on the same list in
1993, due to damage caused by Hurricane Andrew and a marked deterioration
in water flows and quality resulting from agricultural and urban development.
­Although it had been removed from the List in 2007, its degradation has con­
tinued, especially in the form of drastic reduction of water inflows and incre-
ment of pollution, leading to a loss of marine habitat and decline in marine
species.35 Overall, according to a study of the World Heritage Centre – which is
quite outdated at the moment of this writing, as it was carried out in 2005 – 125
properties inscribed on the WHL, located in 59 states parties, were affected at
the time by climate change, including inter alia coastal marine sites, glaciers,
mountainous sites and terrestrial biodiversity sites.36 The climate threats jeop-
ardizing cultural properties were identified in hurricane, storms, lightening, sea
level rise, erosion, flooding, rainfall increase, drought, desertification and rise in
temperature.37 As for the impacts observed for natural properties, they were the
following: glacial r­ etreat and glacier melting, sea level rise, loss of biodiversity,
species migration and tree-line shift, rainfall pattern changes and occurrence
of droughts, fre­quency of wildfires, coral bleaching, coastal erosion, sea water
­temperature and sa­linity change, as well as hurricane, storms and cyclones.38

32 See UNESCO, ‘Ujung Kulon National Park’ whc.unesco.org/en/list/608 accessed

5 October 2013.
33 See UNESCO, ‘Tropical Rainforest Heritage of Sumatra’ whc.unesco.org/en/list/1167
accessed 5 October 2013.
34 See UNESCO, ‘Everglades National Park’ whc.unesco.org/en/list/76 accessed 5 Octo-
ber 2013.
35 For other examples of world heritage properties actually or potentially affected by
climate change see World Heritage Committee, ‘Issues Related to the State of Conser-
vation of World Heritage Properties: The Impacts of Climate Change on World Heri­
tage Properties’ (Thirtieth Session, Vilnius, Lithuania, 8–16 July 2006) (26 June 2006)
WHC- 06/30.COM/7.1, 29–33. See also, in general, UNESCO World Heritage Centre,
‘Policy Document on the Impacts of Climate Change on World Heritage Properties’
(Paris 2008).
36 Ibid 42–43.
37 Ibid 46.
38 Ibid 44.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 151

Within the WHC framework, climate change is only mentioned in the Op-
erational Guidelines for the Implementation of the World Heritage Convention
(Operational Guidelines),39 inside the Format for the nomination of properties
for inscription on the WHL;40 in particular, at the voice ‘environmental pres-
sures’, in the context of which the major sources of environmental degradation
affecting the property proposed for inscription are to be listed and summarized,
climate change is identified as a possible example of such pressures.41 Also,
among the ‘selected global conventions and programmes relating to the pro-
tection of Cultural and Natural Heritage’, the 1992 United Nations Framework
Convention on Climate Change42 is included. However, also in the Convention’s
text – even though the term climate change is not explicitly mentioned – it is
dedicated implicit attention. In fact, at Article 11(4), in describing the reasons
for which a property already included in the WHL may be inscribed on the List
of World Heritage in Danger, certain typical effects of climate change are men-
tioned, id est calamities and cataclysms, landslides, changes in water level, floods
and tidal waves. When a World Heritage property is threatened by one of these
(or other climate-change-related) phenomena, it is possible to submit a request
for international assistance to the World Heritage Committee;43 the latter may
accordingly decide the forms of assistance to be granted to prevent and/or com-
bat the actual or potential effects determined by climate change over the prop-
erty concerned.
Probably the options offered by the WHC system are still far from laying
down a satisfactory set of rules capable of properly addressing the potential
threats of climate change on World Heritage properties. However, it is self-
evident that in this respect the WHC is certainly better equipped than the
CSICH. This is due to at least two reasons. First of all, a very practical one:
the heritage object of protection under the WHC is usually much more vis-
ible than intangible heritage; therefore, it is much easier to identify, monitor
and visualize the effects of climate change – and possibly to keep them under

39 The version of the Operational Guidelines updated in 2013 is available at whc.unesco.org/

en/guidelines/accessed 5 October 2013.
40 Ibid Annex 5, 102–113.
41 Ibid 109.
42 Adopted 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107.
43 See Articles 19–26 WHC. On international assistance see Anne Lemaistre and Fede­
rico Lenzerini, ‘Articles 19–26. International Assistance’ in Francesco Francioni and
Federico Lenzerini (eds), The World Heritage Convention. A Commentary (Oxford
University Press 2008) 305.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
152 Federico Lenzerini

control – on the former than on the latter. Sometimes intangible Cultural Heri-
tage is simply invisible; consequently, it just disappears (this happens in the
world on a daily basis), and sometimes nobody realizes that, if not the com-
munities specifically concerned. Secondly, in reproducing the model of the
WHC, the CSICH has established a system which, although characterized by
equivalent provisions, is much less effective than the WHC in terms of poten-
tial action against the effects of climate change; this is due to the different na-
ture – under many perspectives – of the two categories of heritage concerned.
In fact, while tangible heritage has a material structure on which the necessary
measures may be directly put into concrete operation – id est measures ad-
dressing the property as such (e.g. restoration, application of layers of protect-
ive materials, reinforcement of the structure of a building, cleaning, etc) – this
obviously does not apply to intangible heritage, for its ethereal character. When
an element of intangible Cultural Heritage is threatened by climate change,
clearly the right remedy cannot be that of modifying the nature and character-
ization of the element concerned; this would in most cases prejudice its very
cultural significance for its creators and bearers. Therefore, the only acceptable
option is to act on the root causes of climate change with specific respect to
the heritage concerned. It is obvious that this is particularly difficult, because
intangible Cultural Heritage is by its very nature a living heritage, and, since
climate change usually forces people to modify their living conditions, habits
and traditions, it consequently forces an artificial (nonspontaneous) change
in the intangible heritage as well, leading it to lose its distinctive cultural sig-
nificance, if not to disappear. For example, when a community is forced to
leave its ancestral lands for climate-change-related reasons (one may think,
for instance, about the so-called environmental refugees, id est those who are
forced to leave an island where they lived which is being submerged due to the
increment of the sea level), all elements of intangible Cultural Heritage linked
to that specific land will inevitably disappear. Even without any need to refer
to such extreme situations, climate change may force communities and even
individuals to change their habits so as to adapt them to the new climatic real-
ity, with a consequent loss of intangible Cultural Heritage. Alternatively, it may
lead to changes in environmental conditions which are essential for an element
of intangible Cultural Heritage to properly fulfil its cultural role as well as to be
appropriately preserved and transmitted to future generations. If one takes a
look at the two lists established by the CSICH, she/he may easily pick elements
of intangible Cultural Heritage which are potentially or actually threatened by
climate change. For example, the official Web page of the Yaokwa, the Enawene
Nawe people’s ritual for the maintenance of social and cosmic order (included

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 153

in the List of Intangible Cultural Heritage in Need of Urgent Safeguarding), in

Brazil, describes such a ritual as follows:
“(t)he Enawene Nawe people … perform the Yaokwa ritual every year during the
drought period to honour the Yakairiti spirits, thereby ensuring cosmic and social order
for the different clans. The ritual links local biodiversity to a complex, symbolic cosmol-
ogy that connects the different but inseparable domains of society, culture and nature.
It is integrated into their everyday activities over the course of seven months during
which the clans alternate responsibilities: one group embarks on fishing expeditions
throughout the area while another prepares offerings of rock salt, fish and ritual food
for the spirits, and performs music and dance. The ritual combines knowledge of agri-
culture, food processing, handicrafts (costumes, tools and musical instruments) and the
construction of houses and fishing dams. Yaokwa and the local biodiversity it celebrates
represent an extremely delicate and fragile ecosystem whose continuity depends directly
on its conservation. However, both are now seriously threatened by deforestation and
invasive practices, including intensive mining and logging, extensive livestock activity,
water pollution, degradation of headwaters, unregulated processes of urban settlement,
construction of roads, waterways and dams, drainage and diversion of rivers, burning of
forests and illegal fishing and trade in wildlife”.44

While most of the causes threatening the integrity of the practice in point are
man-made (although degradation of headwaters and accidental burning of for-
ests may be effects of climate change), it is based on a fragile ecosystem which
may be easily disrupted by climate change. Similar considerations may be de-
veloped with respect to the Traditions and practices associated with the Kayas
in the sacred forests of the Mijikenda, in Kenya, oral traditions and performing
arts related to sacred forests, involving the use of natural resources regulated by
traditional knowledge and practices, which have contributed to the conservation
of local biodiversity.45 Another example of interest for the present study is offered
by the Sanké mon, collective fishing rite of the Sanké, in Mali, which was inscribed
on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding in
2009 because it is endangered by a number of factors, including degradation of
the Sanké lake due to poor rainfall,46 one of the typical effects of climate change.

44 See UNESCO, ‘Yaokwa, the Enawene Nawe people’s ritual for the maintenance of social
and cosmic order’ www.unesco.org/culture/ich/index.php?lg=en&pg=00011&USL=
00521 accessed 5 October 2013.
45 See UNESCO, ‘Traditions and practices associated with the Kayas in the sacred forests
of the Mijikenda’ www.unesco.org/culture/ich/index.php?lg=en&pg=00011&USL=
00313 accessed 5 October 2013.
46 See UNESCO, ‘Sanké mon, collective fishing rite of the Sanké’ www.unesco.org/culture/
ich/index.php?lg=en&pg=00011&USL=00289 accessed 5 October 2013.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
154 Federico Lenzerini

The two lists established by the CSICH, however, inescapably offer a very
limited picture of the infinite variety of the intangible Cultural Heritage of the
world. Many examples of the heritage in point threatened by climate change may
therefore be found outside them. It suffices to think about all ice-related trad­
itional practices; for instance, ice-melting in the Arctic is progressively forcing
the native Inuit to change their traditional way of life, implying a huge and ir-
replaceable loss of intangible Cultural Heritage.47
Threats to intangible Cultural Heritage determined by climate change are to-
day a daily reality all over the world, and the CSICH does not include any provi-
sion dealing with the problem in point. Also, unlike the Operational Guidelines
of the WHC, no mention of climate change is included in the Operational Di-
rectives for the implementation of the Convention for the Safeguarding of the
Intangible Heritage (Operational Directives).48 Certainly the Convention does
not prevent the possibility of taking action in view of safeguarding intangible
Cultural Heritage against the effects of climate change. This may be done, first
of all, through inscribing an element of such a heritage on the List of Intangible
Cultural Heritage in Need of Urgent Safeguarding, allowing the element con-
cerned to have privileged access to international assistance pursuant to Article
20(a) CSICH. Also, according to Article 11(a) states parties have the duty to ‘take
the necessary measures to ensure the safeguarding of the intangible Cul­tural
Heritage present in (their) territory’, which may well include measures having
the purpose of opposing the effects of climate change. Furthermore, the scien-
tific, technical and artistic studies, as well as research methodologies, to be fos-
tered with a view of effectively safeguarding the intangible Cultural Heritage, in
particular the intangible Cultural Heritage in danger, pursuant to Article 13(c),
may concern action against climate change. Last but not least, action against
climate change may be promoted through putting into practice the general duty
of international cooperation contemplated by Article 19,49 by virtue of which
states parties ‘undertake to cooperate at the bilateral, subregional, regional and
international levels’ in the general interest of humanity.50 These, however, are

47 See Ed Struzik, ‘As Arctic Melts, Inuit Face Tensions with Outside World’ environ-
ment360 (1 October 2012), e360.yale.edu/feature/as_arctic_melts_inuit_face_
tensions_with_outside_world/2577/accessed 5 October 2013.
48 www.unesco.org/culture/ich/index.php?lg=en&pg=00026 accessed 5 October 2013.
49 Including, inter alia, ‘the exchange of information and experience, joint initiatives,
and the establishment of a mechanism of assistance to States Parties in their efforts to
safe-guard the intangible Cultural Heritage’; see Article 19(1).
50 See Article 19(2).

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 155

very generic provisions, and their translation into effective measures aimed at
addressing the effects of climate change with respect to intangible Cultural Heri­
tage ultimately rests in the hands of states. In other words, for those effects to
be properly faced and neutralized, a particularly structured and specific action
would be necessary, which is not contemplated by the CSICH, but ultimately
depends on the willingness and capacity of states parties to voluntarily take
measures in view of properly addressing the specific problems faced by each ele-
ment of intangible Cultural Heritage as a consequence of climate change, within
the broad scope of the freedom left to them by the Convention in safeguarding
their national heritage. After all, as is well known, the correct functioning of the
CSICH as a whole depends on the willingness of states parties to make it work;
in this respect it suffices to think that (like the WHC) for international assistance
to be activated, a request from the territorial state concerned is necessary,51 even
with respect to elements inscribed on the List of Intangible Cultural Heritage in
Need of Urgent Safeguarding.
In theoretical terms, the interaction between the safeguarding of intangible
Cultural Heritage – as determined by the CSICH – and climate change might
also be seen under a totally different perspective than the one examined so far. In
particular, the hypothesis could be considered that a given element of intangible
Cultural Heritage might favour the process of climate change. Should this hap-
pen, that particular element would be excluded from the scope of application of
the Convention. This is due to the circumstance that, according to its Article 2,
‘(f)or the purposes of this Convention, consideration will be given solely to
such intangible Cultural Heritage as is compatible with existing international
human rights instruments, as well as with the requirements of mutual respect
among communities, groups and individuals, and of sustainable development’.52
In fact, in the event that one element of intangible Cultural Heritage might pro-
duce the effect of favouring climate change, it would clearly be incompatible with
the requirements of sustainable development. It is very unlikely, however, that a
situation of this kind may actually happen in practice, id est that an element of
intangible Cultural Heritage may be in itself a force contributing to the progres-
sion of climate change.

51 See Article 23 CSICH.

52 Emphasis added.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
156 Federico Lenzerini

IV Perspectives in View of Improving Action against

Cultural-Heritage-Related Threats Produced
by Climate Change
It is a fact that the model of the WHC and the CSICH is not the best possible
one in terms of protecting/safeguarding Cultural Heritage. This holds true in
particular with respect to the CSICH, since – as seen in the previous section –
the WHC system is certainly better equipped than the latter, both in terms of
substantive provisions included along its text as well as in structural terms, id est
for the fact that immovable tangible properties offer more chances to organize
targeted action against climate change than intangible heritage. This said, to be
successful one must work within the reality existing in the real world, finding
the right balance between idealism and realism in order to effectively determine
posi­tive changes. The current text and structure of the CSICH are carved in stone,
and there is no reasonable prospect to change them. At the same time, however,
since the Operational Directives are subject to regular revision and may always
be modified, they offer a formidable chance to update the global system of the
Convention in order to make it more responsive to the need of preventing and
combating the effects of climate change on intangible Cultural Heritage. In fact,
the Operational Guidelines are an integral part of the CSICH, and the inclusion
in their text of specific provisions addressing the issue of climate change would
fill the gap left open by the Convention’s text in not appropriately dealing with
such an issue.
Also, since tangible and intangible heritage often represent two indissoluble
components of the same complex cultural reality,53 promotion of contextual
management of the WHC and the CSICH – including in the field of the fight
against climate change – might result particularly appropriate and effective.
At the same time, one should not forget that alternative avenues do exist,
which, besides the CSICH, establish the conditions for a legal safeguarding of
intangible Cultural Heritage. This happens especially with respect to human
rights law, the said heritage being an essential part of the cultural identity of
communities and individuals. As I have stated in other writings of mine, the
recent developments of international law in the field of cultural rights make it
reasonable to hold that at present the most effective legal safeguard available for
intangible Cultural Heritage is outside the system of the CSICH, in light of the

53 See, in this respect, the third recital of the CSICH Preamble, emphasizing the ‘deep-
seated interdependence between the intangible Cultural Heritage and the tangible
cultural and natural heritage.’

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 157

deep interaction between the heritage in point and international human rights.54
Of course, once a human right exists establishing an international obligation
(whereas indirectly) to ensure proper safeguarding of intangible Cultural Heri­
tage of individuals and communities, as part of their cultural identity, such an
obligation includes safeguarding the said heritage against the threats of climate
change. This argument may be combined – in the form of a mutually-reinforcing
relation – with the one concerning the human right to a safe environment, af-
firmed in contemporary international practice;55 indeed, the latter right also pre-
supposes a right to be protected against the effects of climate change (although
it may be hard to be translated into practice), extended to all essential elements
of the life and environment of human beings, including elements of intangible
Cultural Heritage.
One final point: in examining the relation between intangible Cultural Heri­
tage and climate change, it is important to emphasize that it may be seen not only
under the perspective of the detrimental effects that the latter may determine
on the former. On the contrary, it is also opportune to consider that intangible
Cultural Heritage may in some cases help in preventing climate change. Many
elements of the heritage in point are in fact related to the sustainable use of
natural resources, offering lessons which might be used in order to develop a
more sustainable model of life, through replacing with long-established uses of
traditional communities certain modern habits which contribute to favour cli-
mate change.56

54 See Lenzerini (n 15) 118.

55 See e.g. the practice of the European Court of Human Rights (among others, López
Ostra v. Spain App no 16798/90 (ECHR, 9 December 1994); Guerra and Others v. Italy
App no 14967/89 (ECHR, 19 February 1998)) and of the African Commission on Hu-
man and Peoples’ Rights (in particular, The Social and Economic Rights Action Center
and the Center for Economic and Social Rights v. Nigeria, Communication no 155/96
(2001) African Human Rights Law Reports 60).
56 See, for example, Benjamin A Gyampoh et al, ‘Using traditional knowledge to cope
with climate change in rural Ghana’ FAO Corporate Document Repository (2001)
www.fao.org/docrep/011/i0670e/i0670e14.htm accessed 6 October 2013. The authors,
among other things, note that “(t)raditional knowledge – the wisdom, knowledge and
practices of indigenous people gained over time through experience and orally passed
on from generation to generation – has over the years played a significant part in
solving problems, including problems related to climate change and variability. Indi­
genous people that live close to natural resources often observe the activities around
them and are the first to identify and adapt to any changes. The appearance of cer-
tain birds, mating of certain animals and flowering of certain plants are all important

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
158 Federico Lenzerini

V Conclusion
A recent report dealing with the effects of climate change on the life of the Inuit
people of Canada notes that their ‘millennia-old traditions are already being al-
tered because of the warming Arctic, and (they) face the possibility of having to
completely reinvent what it means to be Inuit’.57 This is an example of a reality,
by virtue of which humanity is experiencing an irreplaceable loss of heritage,
knowledge and traditions, which ultimately results in a harmful impoverishment
of the Cultural Heritage of humankind as a whole. In fact, intangible Cultural
Heritage is an essential component of cultural diversity, which, in turn, is a ‘com-
mon heritage of humanity’, as it ‘is embodied in the uniqueness and plurality of
the identities of the groups and societies making up humankind. As a source of
exchange, innovation and creativity, cultural diversity is as necessary for human-
kind as biodiversity is for nature’.58 Similar observations may be developed with
respect to World Heritage, which, as emphasized by the sixth recital of the WHC
Preamble, ‘need(s) to be preserved as part of the World Heritage of mankind
as a whole’. The international community cannot further postpone setting up a
global, targeted and efficient action having the purpose of fighting the detrimen-
tal effects produced by climate change on both tangible and intangible Cultural
Heritage. Maybe the time is still right to do that; the risk is that very soon it may
be too late.

signals of changes in time and seasons that are well understood in traditional know­
ledge systems. Indigenous people have used biodiversity as a buffer against variation,
change and catastrophe; in the face of plague, if one crop fails, another will survive
[…]. In coping with risk due to excessive or low rainfall, drought and crop failure,
some traditional people grow many different crops and varieties with different suscep-
tibility to drought and floods and supplement these by hunting, fishing and gathering
wild food plants. The diversity of crops and food resources is often matched by a
similar diversity in location of fields, as a safety measure to ensure that in the face of
extreme weather some fields will survive to produce harvestable crops”.
57 See Unikkaaqatigiit, ‘Putting the Human Face on Climate Change – Perspec-
tives from the Inuit in Canada’ (2005) www.itk.ca/publication/canadian-inuit-
perspectives-climate-change-unikkaaqatigiit accessed 6 October 2013, 11.
58 See UNESCO Universal Declaration on Cultural Diversity, Resolution adopted on the
report of Commission IV at the 20th plenary meeting (2 November 2001) Records of
the General Conference 31st Session Paris, 15 October to 3 November 2001 Volume 1
Resolutions, Article 1.

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
 Protecting the Tangible, Safeguarding the Intangible 159

Bibliography
Blake, J, Commentary on the UNESCO 2003 Convention on the Safeguarding of
the Intangible Cultural Heritage (Institute of Art & Law 2006)
Buzzini, GP and L Condorelli, ‘Article 11. List of World Heritage in Danger’ in
Francioni F and F Lenzerini (eds), The World Heritage Convention. A Com-
mentary (Oxford University Press 2008) 175
Francioni, F and F Lenzerini (eds), The World Heritage Convention. A Commen-
tary (Oxford University Press 2008)
Gayle, D, ‘Kilimanjaro’s glaciers shrink and crack as scientists warn Africa’s high-
est mountain may soon be ice free’ Mail Online (13 November 2010) www.
dailymail.co.uk/sciencetech/article-2232195/Kilimanjaros-glaciers-shrink-
crack-scientists-warn-Africas-highest-mountain-soon-ice-free.html accessed
5 October 2013
Gyampoh, BA, S Amisah, M Idinoba and J Nkem, ‘Using traditional know­
ledge to cope with climate change in rural Ghana’ FAO Corporate Document
Repository (2001) www.fao.org/docrep/011/i0670e/i0670e14.htm accessed
18 March 2014
Kurin, R, ‘Safeguarding Intangible Cultural Heritage: Key Factors in Implement-
ing the 2003 Convention’ (2007) 2 International Journal of Intangible Heri­
tage 9
Lemaistre, A and F Lenzerini, ‘Articles 19–26. International Assistance’ in Fran-
cioni F and F Lenzerini (eds), The World Heritage Convention. A Commentary
(Oxford University Press 2008) 305
Lenzerini, F, ‘Article 12. Protection of Properties Not Inscribed on the World
Heritage List’ in Francioni F and F Lenzerini F (eds), The World Heritage Con-
vention. A Commentary (Oxford University Press 2008) 201
– ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) 22 Eu-
ropean Journal of International Law 101
Lixinski, L, Intangible Cultural Heritage in International Law (Oxford University
Press 2013)
Scovazzi, T, ‘Articles 8–11. World Heritage Committee and World Heritage List’
in Francioni F and F Lenzerini (eds), The World Heritage Convention. A Com-
mentary (Oxford University Press 2008) 147
Struzik, E, ‘As Arctic Melts, Inuit Face Tensions with Outside World’, environ-
ment360 (1 October 2012) http://e360.yale.edu/feature/as_arctic_melts_inuit_
face_tensions_with_outside_world/2577/accessed 5 October 2013

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms
160 Federico Lenzerini

UNESCO, ‘Intangible Cultural Heritage: Priority Domains for an International

Convention’ (International Meeting of Experts, Rio de Janeiro, Brazil, 22–
24 January 2002) Final Report www.unesco.org/culture/ich/doc/src/00074-
EN.pdf accessed 18 March 2014
UNESCO World Heritage Centre, ‘Policy Document on the Impacts of Climate
Change on World Heritage Properties’ (Paris 2008)
Unikkaaqatigiit, ‘Putting the Human Face on Climate Change – Perspectives
from the Inuit in Canada’ (2005) www.itk.ca/publication/canadian-inuit-
perspectives-climate-change-unikkaaqatigiit accessed 18 March 2014

This content downloaded from

37.63.55.59 on Mon, 15 Jan 2024 06:12:23 +00:00
All use subject to https://about.jstor.org/terms