The Arctic Series, Part II: Proposal for an Arctic Heritage Regime

Emily Tsui, 3L, Volume 78 Senior Editor

Introduction

The Arctic region is home to outstanding natural and cultural heritage places under protection by a combination of international, national, and local laws. But as the region warms at least two times faster than the global average, how adequate are these laws at protecting these sites from climate change? 

This post explores the legal regime for natural and cultural heritage protection in Canada’s Arctic and the implications that climate change has on this regime. In general, there has been a strong international regime for the protection of natural and cultural heritage. However, there exists an opportunity for further expansion of this regime in the Arctic to promote the protection and conservation of heritage in this region. This post proposes the establishment of an Arctic Heritage Regime.

Background

The United Nations Educational, Scientific, and Cultural Organisation (UNESCO)’s World Heritage Committee is the leading global agency overseeing the protection of natural and cultural heritage. Among the Committee’s many tasks are to publish the World Heritage List, a list of cultural and natural heritage properties of outstanding universal value, and a World Heritage in Danger List, a list of properties in need of major conservation activity. There is also an Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage that is responsible for publishing an Intangible Cultural Heritage List, a list of traditions or living expressions transmitted from one generation to the next. As of 8 March 2020, there is a total of 1,121 properties inscribed on the World Heritage List (869 cultural properties, 219 natural properties, and 39 mixed cultural-natural properties); 53 of which are considered in danger. There are currently 549 elements on the Intangible Cultural Heritage List; 64 are listed on the urgent safeguarding list. The benefits of inscription are many, and include increased tourism to the site, access to international assistance, and generally, greater mobilization of interest among officials within a state to act in protection of the site or tradition. 

States play an active role in the work of the World Heritage Committee. They are responsible for submitting lists of potential sites for inscription; [1] doing “all it can” for the conservation, protection, presentation and transmission of sites to future generations within their jurisdiction; [2] and reporting their activities to the organisation. [3]

Although the Arctic region is comprised of about eight percent of the world’s surface area, less than one and a half percent of inscribed World Heritage Sites are located within it. Within the Arctic Circle, there are seven World Heritage Sites: three natural, three cultural, and one mixed. In the Arctic region more broadly (as defined by the Arctic Monitoring and Assessment Program of the Arctic Council), there are a total of 16: eight natural, seven cultural, and one mixed. [4] These places include the Ilulissat Icefjord in Greenland, the Kluane National Park in Yukon, and the Vatnajökull National Park in Iceland. Prior to the introduction of three recent sites, UNESCO has noted that Arctic sites remain a gap in its World Heritage List, and states have identified several other sites for inclusion. Only one of the traditions or cultural activities of four million peoples living in the Arctic, the Yakut heroic epics in Russia, are listed on the Intangible Cultural Heritage List.

Image by Laurent Smeets

Globally, climate change poses a threat to heritage sites, and in the Arctic where its effects are amplified, there could be serious challenges. For instance, in about a fourth of the world’s natural heritage sites, glaciers are either a primary or a contributing factor for the site’s inscription of its outstanding universal value. [5] In four of the eight natural heritage sites in the Arctic, the presence of glaciers was a factor in its inscription. A 2019 study found that climate change will cause ice volume loss between 33 percent to 60 percent for World Heritage glaciers by 2100, [6] which raises questions about maintaining the status of these heritage sites and conservation. Although World Heritage Sites are rarely de-listed, they can be if “the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World Heritage List.” [7] Climate change also has potential effects for new inscriptions to the list. For example, Canada’s proposed inscription of the perennial Alpine Ice Patches in Yukon and the Northwest Territories might be at risk, if climate change continues its pace of rapidly melting these ice patches. 

Relevant Laws

Like laws governing the Arctic region, there exists a patchwork of laws that govern natural and cultural heritage sites. Internationally, the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (“1972 Convention") establishes a framework for cultural and natural heritage protection among the 193 State Parties, including Canada. This framework was followed up with the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (“2003 Convention”). 178 states are party to this 2003 Convention, excluding Canada and the United States. Articles 5 and 11 of these Conventions respectively delegate to States Parties the responsibility of safeguarding the tangible and intangible natural and cultural heritage present in its territory.

The 1972 Convention creates a duty for states to “do all it can, to the utmost of its own resources” to ensure “the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage…situated on its territory.” [8] As outlined in Article 5(4) of the Convention, this includes taking “the appropriate legal, scientific, technical, administrative, and financial measures necessary for the identification, protection, conservation, presentation, and rehabilitation of this heritage.” States submit Periodic Reports every six years to the General Conference of UNESCO detailing legislative and administrative provisions adopted in furtherance of the Convention. 

Operational Guidelines to the 1972 Convention, periodically revised, are issued to provide guidance for the implementation of this Convention. They describe the process for inscribing and monitoring properties for the World Heritage List, periodic reporting by State Parties, and international assistance. Among the many items required for nominating new properties for inscription, states must justify why the property has an outstanding universal value, and detail existing and proposed protection, management, and monitoring for the proposed property. The 1972 Convention and the Operational Guidelines do not give any enforcement powers to the World Heritage Committee, but they do have the ability to de-list properties in exceptional circumstances if the State Party does not take the necessary corrective measures to prevent the property’s deterioration. [9] The effect of de-listing can be international embarrassment, which deters states from neglecting their obligations under the 1972 Convention. [10]

In Canada, implementation of the 1972 Convention is delegated to Parks Canada, which is governed by the Parks Canada Agency Act, SC 1998, c 31. Each site is also under regulation by different territorial and provincial acts, as well agreements by Indigenous groups and other international obligations. For example, the Nahanni National Park, located in the Northwest Territories, was inscribed to the World Heritage List for its spectacular wild rivers and geologic and geomorphologic features. Environmental legislation of the Northwest Territories, such as the Environmental Protection Act, RSNWT 1988, c E-7, plays a role in ensuring the integrity of these features by regulating air, land, and water use that might have direct or spillover effects in this Park. The Park is co-operatively managed by the Dehcho First Nations, Nahʔą Dehé Dene Band and Parks Canada under the 2001 Nahʔą Dehé Interim Park Management Arrangement. This relationship is governed by broader legal obligations, including section 35 of the Constitution Act, 1982. In addition, Canada’s obligation under article 5(4) of the 1972 Convention to take appropriate scientific measures to conserve the heritage could also require it to fulfill other international obligations to enhance international scientific access to the region, as Canada is also party to the Agreement on Enhancing International Arctic Scientific Cooperation (“Arctic Science Agreement”).

The example of the Nahanni National Park makes it clear that in nominating a new property for inscription and managing existing heritage sites, many other non-heritage laws may become relevant. In designating natural heritage sites, the duty on states to “do all [they] can” also looks to international environmental norms for protection. 

Discussion

The following discussion comments on some of the key issues raised above, and suggests the creation of an Arctic Heritage Regime to build further on the international regime for cultural and natural heritage protection and conservation. 

Expansion of World Heritage List for Arctic Heritage

As mentioned above, the listing of a heritage site can generate greater conservation efforts. In times of rapid climate change, the listing of new sites could assist in motivating states to act. There is indeed potential for the World Heritage List to expand to more sites in the Arctic region, and it is ultimately a flexible mechanism that allows the international community to promote conservation of heritage in the region before it disappears. UNESCO has been seized of this issue since at least 2007, when it convened the first meeting on World Heritage and the Arctic. There has been little movement since then, however, and the acceleration of climate change puts some of the proposed inscriptions at risk. 

Another potential avenue for expansion is the Intangible Heritage List. At least two of the eight Arctic states are not parties to the 2003 Convention, and ratifying this Convention could also provide an opportunity to safeguard and achieve global recognition for traditions, such as Inuit throat singing, which has received special cultural heritage status in Québec. 

World Heritage in Danger List

While none of the 16 heritage sites in the Arctic are currently placed on the World Heritage in Danger List, increasing temperatures can directly compromise these sites. In the case of the Ilulissat Icefjord, climate change is causing the Sermeq Kujalleq glacier to retreat to land, compromising the existence of the site in the future. Article 11(4) of the 1972 Convention recognizes the dangers of climate change by enabling the World Heritage Committee to place sites on the World Heritage in Danger List where major operations are necessary and assistance is requested under the Convention for cultural and natural heritage that is “threatened by serious and specific dangers, such as the threat of disappearance caused by…serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves.” However, rising global temperatures may not be specific enough to constitute a danger under this provision, and is not explicitly listed as a threat in the Convention. Nonetheless, in recent years, the practice of states contemplates rising temperatures as a threat in its periodic reports. [11] As it stands currently, it is unclear if rising temperatures itself is sufficient to add a property to the World Heritage in Danger List, or if there is a corollary damage required, such as rising sea levels.

Including a site on this list allows the World Heritage Committee to allocate immediate assistance from the World Heritage Fund to the endangered property. Since international assistance is only allocated to states where the resources of the State are unable to meet its expenses, and all the eight Arctic states are quite wealthy, [12] it is unlikely that the placement of heritage sites in the Arctic on this list would attract any assistance funding. [13] However, placing a property on the World Heritage in Danger List has been effective at drawing rapid conservation action. If climate change does cause a significant enough threat to the heritage sites in the Arctic, placing it on the List could nonetheless attract positive conservation benefits. It would be helpful to clarify the extent to which the site’s original natural features at the time of inscription have changed as a result of rising temperatures and climate change that would place the site on the list.

Delegation of Authority Nationally

The 1972 Convention delegates protection and conservation of sites to State Parties, and obliges them to “do all [they] can, to the utmost of [their] own resources.” This gives significant flexibility to states to interpret what steps they should take to protect their heritage sites. For example, where the site is under threat by climate change on a global level, would this oblige states to take steps to reduce their own contributions to climate change? In the context of the protection and conservation of Australia’s Great Barrier Reef, there has been some suggestion that “doing all it can” under the 1972 Convention does include a state’s efforts to reduce greenhouse gas emissions to improve the health of the Reef. [14] If this were the case, then Canada, and the other Arctic states, would similarly be under an obligation to cut their carbon emissions for the protection of their existing heritage sites (among their many international obligations to do so). The federal system of Canada also means that groups and individuals wishing to propose or conserve new sites might have to navigate a myriad of regulations to assess whether or not the legislation in Canada, taken entirely, has been effective at cultural and natural heritage protection.

The Future for an Arctic Heritage Regime?

The Arctic has emerged as a region for robust co-operation among states. In search and rescue, oil spill pollution prevention, scientific co-operation, and various other thematic areas, collaboration efforts among the eight Arctic states have expanded. The Arctic has also been subject to creative legal proposals to deepen co-operation in the area, such as the creation of an Arctic Nuclear Weapons Free Zone and an Arctic Free Trade Zone.

This background for co-operation is a justification for why an Arctic Heritage Regime could be successful. An Arctic Heritage Regime would involve a legally binding framework for co-operation, similar to the other existing legally binding agreements negotiated under the auspices of the Arctic Council. Like the Arctic Science Agreement, it would help to mobilize resources among the states. An Arctic Heritage Regime would aim to deepen protection and conservation of tangible and intangible Arctic cultural and natural heritage through knowledge sharing across borders and identifying shared best practices for the region. Such a regime could help to create momentum for the expansion of the World Heritage Site list. It could also identify its own list of sites in danger from climate change. In addition, as with the Arctic Science Agreement, it could harmonize existing policies to make it easier for stakeholders to engage more actively with protection and conservation efforts.

One of the risks of creating a regional heritage regime is fragmenting the existing global cultural and natural heritage protection. However, past experiences with regional agreements show that they could serve to strengthen existing legal regimes. For example, the creation of the Polar Code regulating ships operating in the polar regions strengthens the legal regimes under the International Convention for the Safety of Life at Sea and the International Convention for the Prevention of Pollution from Ships. An Arctic Heritage Regime could also supplement and strengthen the World Heritage Committee’s work.

Conclusion

Climatic changes occurring in the Arctic region have implications for the protection and conservation of cultural and natural heritage. There is opportunity under the existing 1972 and 2003 Conventions for expansion of the benefits under the international regime governing the Arctic by inscribing more sites to the World Heritage Lists. One suggested way to do so is to create an Arctic Heritage Regime, building off robust regional co-operation. Such an approach would help to ensure the unique cultural and natural heritage of the Arctic region, and by extension, the world, is protected for the enjoyment of future generations.

Notes

[1] Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, (entry into force: 17 December 1975), art 11(1) [1972 World Heritage Convention].

[2] 1972 World Heritage Convention, art 4.

[3] 1972 World Heritage Convention, art 29.

[4] Natural Sites: 1. Kluane/ Wrangell-St. Elias/ Glacier Bay/ Tatshenshini-Alsek (Alaska); 2. Nahanni National Park (Yukon); 3. Wood Buffalo National Park (Northwest Territories); 4. Ilulissat Icefjord (Greenland); 5. Vatnajökull National Park - Dynamic Nature of Fire and Ice (Iceland); 6. Surtsey (Iceland); 7. Putorana Plateau (Russia); 8. Natural System of Wrangel Island Reserve (Russia); Cultural Sites: 1. Aasivissuit – Nipisat. Inuit Hunting Ground between Ice and Sea (Greenland); 2. Kujataa Greenland: Norse and Inuit Farming at the Edge of the Ice Cap; 3. Þingvellir National Park (Iceland); 4. Vegaøyan – The Vega Archipelago (Norway); 5. Rock Art of Alta (Norway); 6. Struve Geodetic Arc (Norway/Sweden/Russia/Finland); 7. Cultural and Historic Ensemble of the Solovetsky Islands (Russia); Mixed: 1. Laponian Area (Sweden)

[5] J.-B Bossen, M. Huss, and E. Ospiva, “Disappearing World Heritage Glaciers as a Keystone of Nature Conservation in a Changing Climate,” (2019) Earth’s Future 7 at 469-479.

[6] Bossen, Huss, and Ospiva at 474.

[7] Operational Guidelines for the Implementation of the World Heritage Convention, WHC.19/01, 10 July 2019, par 192.

[8] 1972 World Heritage Convention, art 4.

[9] Operational Guidelines for the Implementation of the World Heritage Convention, WHC.19/01, 10 July 2019, par 192.

[10] Douglas Schoch, “Whose World Heritage? Dresden’s Waldschlößchen Bridge and UNESCO’s Delisting of the Dresden Elbe Valley,” (2014) 21 Int’l J Cult Prop 2 at 199-223.

[11] “Periodic Report – Second Cycle – Section II – Ilulissat Icefjord,” 19 May 2014 at 2.

[12] These eight states are Canada, the United States, Russia, Finland, Sweden, Norway, Iceland, and Greenland.

[13] None of the Arctic states have ever received international assistance either. 1972 World Heritage Convention, art 21.

[14] World Heritage and Climate Change: The Legal Responsibility of States to Reduce Their Contributions to Climate Change – A Great Barrier Reef Case Study, EarthJustice, March 2017.