The benefits of legal globalization. Soft law: a case study of heritage law

Abstract

Globalization frequently attracts negative connotations in terms of legality and democracy. However, the current process of globalization also carries positive developments in terms of good governance and public participation, particularly regarding public policies for heritage. Natural and cultural heritage law has been developed by different networks during the previous decades: the natural – environmental – law was significantly renewed by the United Nations Conference on Environment and Development (Rio, 1992), which reinforced participation and provoked the affirmation of an environmental democracy. Some of the improvements associated with the environment and to the globalization process have also reached the sphere of heritage law despite the fact that the international legal framework has remained the same since the adoption of the 1972 convention on the world Heritage. This paper shows that the development of soft law and investment guidelines has improved the protection of cultural heritage.

Keywords:

• Cultural heritage
• European Investment Bank
• participation
• soft law
• standards
• sustainable development
• World Bank
• world heritage

Acknowledgements

This work results from two coincidental researches: one coordinated by Dr Sophie Vigneron, Kent Law School with the support of the UK Arts and Humanities Research Council, and the other coordinated by Prof. Susana Galera, with the support of the Spanish Government (DER 2012/39170, Rule of Law en el espacio Global). I want to thank Dr Vigneron for her support and patience during all the process.

Notes

¹ Sabino Cassese distinguishes four stages for legal and institutional complexity: Types of International Organizations (up to four with/without secondary law-making powers), Complexity of global administrative activity, Complexity of procedural rules and Different types of committees and bodies with varied functions. Cassese, Global Law, 180.

² Cassese, El Derecho Global, 41 and ff.

³ Singh, “The Potential of International Law”, 25.

⁴ Terpan, “Soft Law in the European Union”.

⁵ Stefan, Soft Law in Court, 192 and ff.

⁶ See such Guidance, for each specific environmental sector, in Farme, Sourcebook on Environmental Law.

⁷ The International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature and Natural Resources (IUCN) have a representative in the World Heritage Committee, an intergovernmental executive body governing the Convention (Article 8.3).

⁸ Available at http://whc.unesco.org/en/decisions/4403 [accessed 12 January 2016].

⁹ Directive 2011/92 introduces in Annex III the obligation of taking into account in the assessment procedure the impacts on ‘landscapes of historical, cultural or archaeological significance (paragraph viii/)’.

¹⁰ The only specific references to cultural heritage in the regulatory provisions of Directive 2014/52 are: Article 3 (1.d/), Annex III(2.c/viii) and Annex IV (4).

¹¹ Directive 2014/52/EU (Whereas 16).

¹² Specific reference at this regard can be found on the EIB Standard Number 1: notwithstanding what it is stated on paragraph 3, paragraph 7 states: ‘All operation shall comply with national legislation and regulations as well as any obligations and standards in the relevant international conventions and multilateral agreements to which the host country is party to as well as with the provisions of the following treaties and conventions … Aarhus … Biological Diversity … Climate Change … Prevention of natural and man-made disasters…’

¹³ See the origins of the WB Transparency Policy via Fox, “Framing the Inspection Panel”, xiv to xviii.

¹⁴ Fox, “Framing the Inspection Panel”, xix.

¹⁵ Available at http://go.worldbank.org/3GLI3EECP0 [accessed December 2015].

¹⁶ See a detailed explanation in Hunter et al, “The Biobío’s Legacy”.

¹⁷ The EPE Banks are as follows: the Council of Europe Bank, the European Bank for Reconstruction and Development, the European Investment Bank, the Nordic Environment Finance Corporation and the Nordic Investment Bank. Associated to this EPE Declaration is the very interesting Sourcebook on EU Environmental Law, prepared by the Institute for European Environmental Policy (last version March 2010), available at http://www.ieep.eu/assets/847/Final_sourcebook_-_March_2010.pdf [accessed December 2015].

¹⁸ Available at http://www.eib.org/attachments/strategies/eib_statement_een.pdf [accessed December 2015]. This Statement follows the EIB Environmental Statement 1996 and the EIB Statement of Environmental and Social Principles and Standards 2008.

¹⁹ Available at http://www.eib.org/infocentre/publications/all/environmental-and-social-practices-handbook.htm [accessed December 2015].

²⁰ Lostal, “Role of Specific Discipline Principles”.

²¹ Available at http://www.eib.org/infocentre/register/index.htm [accessed December 2015] where no traces of the Ombudsman decision provoking its setting up can be found. This can be found on http://www.ombudsman.europa.eu/cases/decision.faces/en/54587/html.bookmark [accessed December 2015].

²² Available at http://www.eib.org/infocentre/publications/all/financial-report-2014.htm.

²³ Available at http://www.eib.org/about/documents/eib-standard-contractual-clauses-on-environmental-information.htm [accessed December 2015].