the role of non-state actors in promoting compliance with the orld heritage convention ... ·...
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THE ROLE OF NON-STATE ACTORS IN
PROMOTING COMPLIANCE WITH THE
WORLD HERITAGE CONVENTION: AN
EMPIRICAL STUDY OF AUSTRALIA’S GREAT
BARRIER REEF
Evan Vaughan Hamman
BCom/LLB, M.Env.Sci.Law
Principal Supervisor: Professor Richard Johnstone
Associate Supervisors: Professor Bill Duncan Dr Rowena Maguire
Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy
School of Law
Faculty of Law Queensland University of Technology
2017
Abstract This thesis adopts an empirical approach to investigate the role of non-state actors in
promoting compliance with the World Heritage Convention.The study focusses on the Great
Barrier Reef and traces Australia’s interactions with the World Heritage Committee and other
relevant institutions between the years 2010 and 2015. To make sense of the empirical data,
the study draws upon theories like ‘enrolment’ and ‘compliance pull’ to show how non-state
actors can take part in regulatory activities such as monitoring and enforcement. Enrolment is
a theory that helps to explain the activities of non-state actors in ‘regulation’ (which includes
the activities of rule making, monitoring and enforcement). Compliance pull is a theory that
conceptualises the rules, relationships, behaviours and influences of governmental,
intergovernmental and non-governmental organisations in contributing to compliance. Where
a formal invitation to regulate is not forthcoming, this thesis shows how non-state actors can
nevertheless enrol themselves in the World Heritage regime. The key to understanding non-
state actor influence, it seems, is the issue of legitimacy. This study demonstrates how non-
state actors are able to construct their own legitimacy and assert their own authority by
building relationships and deploying expertise at discrete times. This study finds that certain
non-state actors can be defined as ‘regulators’ – (whether they are formally enrolled or enrol
themselves) whilst others are situated outside of the regulatory process and concern
themselves with advocacy and lobbying. We can consider the latter category of non-state
actors to be ‘agitators’ though equally capable of contributing to compliance pull under the
Convention. Overall, the findings in this thesis have relevance for the broader regulatory and
compliance literature as well as making sense of how the World Heritage Convention
operates after a site has been listed.
Keywords
World Heritage Convention, Non-State Actors, In Danger List, Great Barrier Reef,
Compliance Pull, Enrolment theory, Multilateral Environmental Agreements
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Statement of Original Authorship
Under the Copyright Act 1968, this thesis must be used only under the normal conditions of
scholarly fair dealing. In particular no results or conclusions should be extracted from it, nor
should it be copied or closely paraphrased in whole or in part without the written consent of
the author. Proper written acknowledgement should be made for any assistance obtained from
this thesis.
I certify that I have made all reasonable efforts to secure copyright permissions for third-party
content included in this thesis and have not knowingly added copyright content to my work
without the owner's permission.
This thesis contains no material which has been accepted for the award of any other degree or
diploma in any university or other institution. To the best of my knowledge, the thesis
contains no material previously published or written by another person, except where due
reference is made in the text of the thesis.
Signature: QUT Verified Signature
Date: November 2017
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Acknowledgements
I first became interested in places of global significance as a boy. I recall flipping through
images in National Geographic magazine of the Wonders of the World: the Hanging Gardens
of Babylon; the Pyramids of Giza; and the monuments of Ancient Greece, Persia and Rome.
Several years later, places of natural brilliance caught my eye: the Grand Canyon, the
Serengeti, Kakadu and the spectacular snow-capped mountains of the Himalayas. In those
formative years, as they are for many a young boy, stories and images spoke louder than
words. I had little or no interest in ideas of ‘governance’ or ‘regulation’ nor the tools used to
implement them. Perhaps more to the point, however, I had assumed, rather naively, that such
marvels of the world’s ‘Common Heritage’ were successfully managed, without conflict, for
generations to come.
Fast forward twenty years and I found myself working alongside that inspirational and
motivated bunch of barefoot lawyers at Queensland’s Environmental Defenders Office. It
was clear at the time that ‘the Reef’, Australia’s most iconic natural asset, was in dire straits.
Climate change was destroying its corals, fertiliser and sediment was polluting its waters,
and, in the face of all of this, industrialisation and port development along the coast was
ramping up. By 2012, the World Heritage Committee were considering including the Reef,
for the first time ever, on the List of World Heritage In Danger.
How could this be in a rich and developed nation such as ours? Was it indicative, for
instance, of a failure of Australia’s laws and policies? Or did it tell a broader story of global
and historic neglect? And what of the role of non-state actors in all of this? Had they dropped
the ball as well?
Though these questions changed along the way, it was ultimately the condition of the Reef
that caused me to dip my toe, as it were, in the academic world. The end result of that
excursion is this PhD thesis which investigates the role of non-state actors in promoting
compliance with the World Heritage Convention by using a case study of the Great Barrier
Reef.
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This thesis would not have been possible without the expert advice of my supervisory team:
Professor Richard Johnstone; Dr Rowena Maguire; and Professor Bill Duncan. To Richard,
Rowena and Bill, I am deeply indebted, and, in particular, to Richard, who spent many hours
explaining (and re-explaining) difficult concepts to me like the empirical method in law. To
Rowena, a true friend, thank you for encouraging me to undertake this project, and for your
support and guidance along the way. I am also grateful to the administrative staff at QUT,
Leana Sanders, Ilana Bolingford and Catherine Mackenzie, for making my ride so easy.
I wish also to express my thanks to Professor Don Anton at Griffith University, Professor
Benjamin Richardson at the University of Tasmania, and Emeritus Professor Douglas Fisher
from QUT, all of whom read earlier versions of my work and made very helpful suggestions
about how it might be improved. My thanks also to the interview participants in this study,
who remain anonymous, as well as to the various (private) library staff who helped me along
the way including: Jo Ruxton at GBRMPA; Daisy Larios at IUCN; and Alexandra Fante at
IUCN’s Environmental Law Centre in Bonn.
Lastly, this thesis is dedicated to my wife and best friend, Eibhlin, and our two sons George
and Angus. Together we have overcome yet another of life’s little obstacles. May our boys
one day experience the wonders of the world themselves, outside of the pages of National
Geographic that is, as I have been so fortunate to do.
Evan Hamman
6 November 2017
Brisbane, Australia
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List of Acronyms and Abbreviations
AC IUCN Australian Committee of the IUCN
AHD Authorised Heritage Discourse
CBD Convention on Biological Diversity
CITES Convention on International Trade in Endangered Species
EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cth)
GBRMPA Great Barrier Reef Marine Park Authority
GBRWHA Great Barrier Reef World Heritage Area
HIO Hybrid International Organisation
ICCROM International Centre for the Study of the Preservation and Restoration of Cultural Property
ICOMOS International Council on Monuments and Sites
IGO Inter-Governmental Organisation
IUCN International Union for the Conservation of Nature
MEA Multilateral Environmental Agreement
NGO Non-Government Organisation
Ramsar Ramsar Convention on Wetlands of International Importance
RMM Reactive Monitoring Mission
UNESCO United Nations Educational, Scientific and Cultural Organisation
WWF World Wildlife Fund for Nature (Australian branch)
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Table of Contents Overview and Method ..................................................................... 10
1.1 Introduction .................................................................................................................. 10
1.2 Significance of the Research ........................................................................................ 14
1.3 Existing Literature ........................................................................................................ 18
1.4 Research Question and Aims ........................................................................................ 25
1.5 Methodology and Methods ........................................................................................... 27 1.5.1 Intellectual Framework for the Research ........................................................... 27 1.5.2 Method ............................................................................................................... 30
1.6 The Case Study: The Events of 2010-2015 .................................................................. 31 1.6.1 Chronology of Events ......................................................................................... 37 1.6.2 The use of Documentary Material ...................................................................... 38 1.6.3 The use of Semi-Structured Interviews .............................................................. 39 1.6.4 Selecting the Interview Participants ................................................................... 40 1.6.5 Transcribing and Coding the Interview Data ..................................................... 42 1.6.6 Reasoning from the Data .................................................................................... 43
1.7 Outline of Chapters and Thesis Structure ..................................................................... 44
Heritage and the World Heritage Convention ............................. 47
2.1 Introduction .................................................................................................................. 47
2.2 Emerging Heritage Discourses ..................................................................................... 49 2.2.1 Identifying Heritage ........................................................................................... 49 2.2.2 Construction and Ownership of Heritage ........................................................... 51 2.2.3 Evolving Conceptions and Protections for Heritage .......................................... 53 2.2.4 The Idea of World Heritage ................................................................................ 58
2.3 The World Heritage Convention .................................................................................. 62 2.3.1 Background and Development ........................................................................... 62 2.3.2 The World Heritage Bodies ................................................................................ 63 2.3.3 The Operation of the Convention ....................................................................... 66 2.3.4 Euro-centrism and the Politics of World Heritage Listings ............................... 68 2.3.5 The List of World Heritage In Danger ............................................................... 71
2.4 Compliance with the World Heritage Convention ....................................................... 75 2.4.1 Distinguishing Compliance from Implementation ............................................. 75 2.4.2 The Inevitable Pivot towards Compliance ......................................................... 77 2.4.3 Erga Omnes obligations and the Common Heritage .......................................... 78 2.4.4 The Theory of Compliance Pull ......................................................................... 81
2.5 Conclusion .................................................................................................................... 84
Australia’s Relationship with World Heritage ............................. 86
3.1 Introduction .................................................................................................................. 86
3.2 World Heritage in Australia .......................................................................................... 90 3.2.1 Current World Heritage Sites ............................................................................. 90 3.2.2 Early History of the Convention in Australia ..................................................... 94
3.3 Legal Framework for World Heritage in Australia .................................................... 100
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3.3.1 The World Heritage Properties Conservation Act 1983 (Cth) ......................... 100 3.3.2 The Environment Protection and Biodiversity Act 1999 (Cth) ........................ 101 3.3.3 World Heritage Litigation in Australia ............................................................. 104
3.4 NGOs and Australia’s World Heritage ....................................................................... 106
3.5 Australia’s Reputation In World Heritage .................................................................. 112 3.5.1 A Reputation for Excellence ............................................................................ 112 3.5.2 Distinguishing Effective Stewardship from Procedural Compliance ............... 114 3.5.3 Australia’s ‘Diplomatisation’ of World Heritage ............................................. 119
3.6 Conclusion .................................................................................................................. 123
The Great Barrier Reef ................................................................. 124
4.1 Introduction ................................................................................................................ 124 4.1.1 About the site .................................................................................................... 125 4.1.2 Boundaries and Scale of the Site ...................................................................... 127 4.1.3 Threats to the site ............................................................................................. 131 4.1.4 Economics and Tourism ................................................................................... 134 4.1.5 The Iconic Status of the site ............................................................................. 137
4.2 The Regulatory Space of the Great Barrier Reef ........................................................ 141 4.2.1 Regulatory Space Analysis ............................................................................... 141 4.2.2 Revisiting ‘Regulation’ .................................................................................... 143
4.3 States, Non-States and Sub-States .............................................................................. 147 4.3.1 The State (Australia) ........................................................................................ 147 4.3.2 The Sub-State (Queensland) ............................................................................. 148 4.3.3 Non-States (NGOs, IUCN, UNESCO etc.,) ..................................................... 149 4.3.4 Conflicts and Partnerships between the actors ................................................. 151
4.4 Conclusion .................................................................................................................. 155
The Enrolment of the IUCN ......................................................... 157
5.1 Introduction ................................................................................................................ 157
5.2 IUCN: Background and Context ................................................................................ 160 5.2.1 What is IUCN? ................................................................................................. 160 5.2.2 BINGO, INGO, GONGO or NGO? ................................................................. 162 5.2.3 IUCN’s Influence across International Conservation ....................................... 164 5.2.4 The influence of IUCN’s Commissions and Resolutions ................................. 167 5.2.5 IUCN’s role in the development of World Heritage ........................................ 169
5.3 The Enrolment of IUCN: A Theoretical Analysis ...................................................... 171 5.3.1 About Enrolment theory ................................................................................... 172 5.3.2 Enrolment to do what? ..................................................................................... 174 5.3.3 Questions of Legitimacy .................................................................................. 178 5.3.4 What is Legitimacy? ......................................................................................... 179 5.3.5 Constructing Legitimacy by way of ‘Legitimating Assets’ .............................. 180 5.3.6 The Legitimating Assets of IUCN .................................................................... 182
5.4 Conclusion .................................................................................................................. 192
The Contribution of NGOs ........................................................... 196
6.1 Introduction ................................................................................................................ 196
6.2 NGOs in World Heritage ............................................................................................ 199 6.2.1 Defining an NGO ............................................................................................. 199 6.2.2 The Existing Literature ..................................................................................... 203
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6.2.3 The Notion of NGO Influence .......................................................................... 207
6.3 The Influence of NGOs on Compliance Pull .............................................................. 209 6.3.1 Revisiting the theory of compliance pull .......................................................... 209 6.3.2 Understanding the different roles and strategies of NGOs ............................... 212
6.4 Regulators and Agitators: Insider and Outsider Tactics ............................................. 217 6.4.1 The Inside Track: NGOs as Regulators ............................................................ 221 6.4.2 The Outside Track: NGOs as Agitators ............................................................ 234
6.5 Conclusion .................................................................................................................. 242
Major Findings and Areas for Further Research ...................... 245
7.1 Introduction ................................................................................................................ 245
7.2 Summary of Major Findings and Overall Argument .................................................. 249
7.3 Contributions to the Literature .................................................................................... 250 7.3.1 Expanding the theory of compliance pull ......................................................... 250 7.3.2 Enrolling non-state actors in global environmental governance ...................... 260 7.3.3 The inside track and non-state actor regulation ................................................ 264
7.4 Limitations of the Study and Areas for further Research ........................................... 267 7.4.1 A broader consideration of non-state actors in World Heritage ....................... 267 7.4.2 The need for more ‘comparative studies’ on compliance ................................. 268
7.5 Conclusion .................................................................................................................. 269
References ................................................................................................................ 273
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Overview and Method
1.1 INTRODUCTION
The Great Barrier Reef is in trouble. Almost two centuries of unchecked coastal
development, unsustainable farming and the recent ravages of climate change have pushed it
to the brink.1 So much so, in fact, that there are now questions about whether it will ever
recover.2 The ‘Reef,’ as it is colloquially known, is the world’s largest coral ecosystem and
contributes over six billion dollars a year to the Australian economy.3 Over the last five
decades various waves of legal and other policy initiatives have been introduced for its
conservation and ‘ecologically sustainable use.’ In the 1960s, environmentalists famously
saved it from oil and limestone mining,4 and in 1975 a Marine Park was established with an
independent statutory authority to manage it.5 By 1981, the Reef had been added to the List
of World Heritage, and, until recently, it remained the largest World Heritage site in the
world.6 In more recent times, extensive zoning work has been completed,7 shipping plans
1 For an overview of the problems, see Great Barrier Reef Marine Park Authority, Great Barrier Reef outlook report 2014 (GBRMPA, 2014). In the scientific literature, see also, for example, Brodie J and Pearson R (2016) Ecosystem health of the Great Barrier Reef: time for effective management action based on evidence’ 183 Estuarine, Coastal and Shelf Science 438; and Dale A, Vella K, Pressey R, Brodie J, Gooch M, Potts R and Eberhard R (2016) ‘Risk analysis of the governance system affecting outcomes in the Great Barrier Reef’ 183 (3) Journal of Environmental Management 712. For a recent discussion of the impacts of climate change on corals, see Heron et al, Impacts of Climate Change on World Heritage Coral Reefs: A First Global Scientific Assessment. (UNESCO, 2017). 2 Some have even questioned whether our time is better spent ‘triaging’ the parts we really wish to preserve. See Robertson, J, ‘Great Barrier Reef: government must choose which parts to save, says expert’ The Guardian (online) 9 July 2016 <https://www.theguardian.com/environment/2016/jul/09/great-barrier-reef-government-must-choose-which-parts-to-save-says-expert> 3 For an overview of the economic contribution of the Reef to the Australian and Queensland economy, see Deloitte Access Economics, Economic contribution of the Great Barrier Reef (Great Barrier Reef Marine Park Authority, 2013). 4 For an overview of these events, see Wright, J, The Coral Battleground (Spinifex Press, 2014). See also Ford, P (2011) ‘Consilience: Saving the Great Barrier Reef 1962-1975’ (Honours Thesis Submitted to University Sydney). 5 The Great Barrier Reef Marine Park Act 1975 (Cth) was passed in 1975 and established a multi-use marine park, as well as the Great Barrier Reef Marine Park Authority (GBMPRA). 6 Only two sites are larger, the Phoenix Islands Protected Area (Kiribati), and Papahānaumokuākea Marine National Monument (Hawaii). 7 See Day, J (2002) Zoning – Lessons from the Great Barrier Reef Marine Park 45 Ocean & Coastal Management 139.
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introduced,8 and detailed water quality strategies created and adapted with considerable effort
and expertise.9
In the face of all these initiatives, the Reef continues to decline.10 In 2015, it came perilously
close to being added to ‘the List of World Heritage In Danger.’ Whilst some have argued that
it should have been,11 it was only saved, as it were, by last minute commitments from the
Australian and Queensland Governments to collaborate more closely on water quality and
coastal development.12
So how did the Reef get to this point? And what does this say about our approaches to
governance? Does it, for instance, reflect a failure of the instruments of governance (laws,
policies, treaties, strategies and guidelines)? Or, does it speak more broadly to the actions of
our institutions responsible for, or capable of, more effective conservation efforts? And what
of the role of non-state actors in all of this? How do they agitate or regulate to ensure
conservation outcomes?
As Rosenau points out, governance today is more than just government.13 The dominance of
command and control regulation is over, and in international affairs, the ‘hard shell’ of the
nation state has all but been broken down.14 Non-state actors, especially non-government
organizations (NGOs), have emerged as powerful and pervasive forces – indeed sometimes
8 Australian Maritime Safety Authority, ‘North-East Shipping Management Plan’ (Australian Government, 2014) <https://www.amsa.gov.au/navigation/shipping-management/nesm/> 9 Reef Water Quality Protection Plans have been completed in 2003, 2009 and 2013. For the latest plan, see Queensland and Australian Government (2013) Reef Water Quality Protection Plan, Securing the health and resilience of the Great Barrier Reef World Heritage Area and adjacent catchments <http://www.reefplan.qld.gov.au/resources/assets/reef-plan-2013.pdf> 10 See, for instance: Ward, T.J. (2014) ‘The rapid assessment workshop to elicit expert consensus to inform the development of the Great Barrier Reef ‘, Outlook report. Report prepared by: Trevor J Ward, Greenward Consulting, Perth for the Great Barrier Reef Marine Park Authority, GBRMPA, Townsville. More specifically on water quality, see: Brodie et al (2013), Scientific Consensus Statement Land use impacts on Great Barrier Reef water quality and ecosystem condition < http://www.reefplan.qld.gov.au/about/assets/scientific-consensus-statement-2013.pdf> 11 Earth Justice and Environmental Justice Australia (2015) ‘Protecting the Great Barrier Reef: A Legal Assessment of the World Heritage Committee’s May 2015 draft decision concerning the potential inscription of the Great Barrier Reef on the List of World Heritage in Danger.’ <https://envirojustice.org.au/major-reports/protecting-the-great-barrier-reef> 12 See Decision of the World Heritage Committee, June 2015 Australia’s Great Barrier Reef (39 COM 7B.7) <http://whc.unesco.org/en/soc/3234> 13 Rosenau J, and Czempiel, E, Governance Without Government: Order and Change in World Politics (Cambridge University Press, 1992), 4. 14 Geeraerts, G (1995) ‘Analyzing Non-State Actors in World Politics.’ 1(4) Pole Paper Series <http://poli.vub.ac.be/publi/pole-papers/pole0104.htm> citing Keohane, R.O. and J.S. Nye (eds) Transnational Relations and World Politics (Harvard University Press, 1971)
12
as regulators – on the global stage.15 Their presence and influence in conservation is
particularly impressive, and many of the world’s multilateral environmental agreements
(MEAs), including the World Heritage Convention, are the result of efforts from
organizations like the International Union for the Conservation of Nature (IUCN) and the
World Wildlife Fund for Nature (WWF).16
This thesis acknowledges this trend by examining the role of non-state actors in supporting
compliance with the World Heritage Convention. By using a case study of the Great Barrier
Reef World Heritage Area (GBRWHA), it grapples with the question of what roles, strategies
and influence non-state actors exhibit in ensuring states abide by the Convention. In
particular, it focuses on the role of non-state actors in making a contribution to compliance at
the international level. Questions like these are important, because as Green points out:
Governance does not end with the signing of a treaty...[the] “Post-treaty” decisions are the
[real] nuts and bolts of global environmental governance.17
Of course, governance and regulation are not the same thing. Governance is broader than
regulation and involves the entire suite of instruments, actors and behaviors, formal or
informal, that influence (or are capable of influencing) a given social system.18 In the context
of large marine ecosystems, with which this study is concerned, governance might be best
conceived as:
The formal and informal arrangements, institutions and mores which determine how
resources or an environment are utilized; how problems and opportunities are evaluated and
15 Non-state actors are comprehensively defined in chapter 4 of this thesis. They are more than just NGOs, however, NGOs are the most pervasive of all non-state actors in this study. NGOs are defined in chapter 6. 16 The role of IUCN in the development of the World Heritage Convention is described in chapter 4. The Ramsar Convention on Wetlands is another one where NGOs formulated most of the treaty content. See Matthews, G, The Ramsar Convention on Wetlands: its History and Development (Ramsar Convention Bureau, 2013), p.6. 17 Green, J. F. (2017) ‘Transnational delegation in global environmental governance: When do non-state actors govern?’ 1 Regulation & Governance 1, 6. 18 A popular description of governance is given by Rosenau: ‘governance encompasses the activities of governments, but it also includes the many other channels through which "commands" flow in the form of goals framed, commands issued and policies pursued.’ See Rosenau, J (1995) ‘Governance in the Twenty-first Century’ Global Governance, 13, 14.
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analysed, what behaviour is deemed acceptable or forbidden, and what rules and sanctions are
applied to affect the pattern of resource and environmental use.19
The idea of regulation, on the other hand, has a far narrower ambit.20 Regulation is concerned
with the creation of goals and the establishment of measures and mechanisms for monitoring
and enforcing those goals.21 Scott provides a suitable definition as follows:
Any process or set of processes by which norms are established, the behavior of those subject
to the norms monitored or fed back into the regime, and for which there are mechanisms for
holding the behavior of regulated actors within the acceptable limits of the regime.22
Regulation is therefore a part of governance, though by no means the only part. For the
purposes of this thesis, regulation is functionally defined as having three core elements:
1. Goal setting (including setting of standards);
2. Monitoring; and
3. Enforcement.23
All three aspects are apparent in the way the World Heritage regime creates duties on states
to maintain the Outstanding Universal Value (OUV) of their sites,24 and establishes a system
for monitoring and modifying non-compliant behavior by member states.25
19 Juda, L (1999) Considerations in Developing a Functional Approach to the Governance of Large Marine Ecosystems 30 Ocean Development & International Law 89, 90. 20 For an excellent introduction to ‘regulation’, including the development of various regulatory theories, see Morgan, B., and Yeung, K., An Introduction to Law and Regulation: Text and Materials (Cambridge University Press, 2007). Regulation is indeed a contested term. See for instance: Black, J (2002) ‘Critical Reflections on Regulation’ 27 Australian Journal of Legal Philosophy 1; and Kingsford-Smith, D 'What is Regulation? A Reply to Julia Black's 'Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 37-46. It appears, however, that regulatory scholars are getting closer to settling on what it might include. See the recent discussion in Koop, C., and Lodge, M. (2017) ‘What is regulation? An interdisciplinary concept analysis’ 11 Regulation & Governance 95. 21 The concept of regulation is discussed further in chapter 4, at section 4.2.2. 22 Scott, C, (2001) ‘Analysing regulatory space: fragmented resources and institutional design’ Public Law, 283, 283. 23 These three elements seem to be common across most definitions of regulation in the literature. See for example: Levi-Faur, D. (ed) Handbook on the Politics of Regulation (Edward Elgar, 2011), 6; and Hutter, B (2006) ‘The Role of non-state actors in Regulation’ CARR Discussion Papers DP 37. Hutter refers to the third element (enforcement) as some form of ‘behaviour modification.’ 24 OUV is discussed further in chapter 2. For further discussion of the historical development of this concept (for cultural sites), see Titchen, S (1995) ‘On the construction of outstanding universal value: UNESCO's World Heritage Convention and the identification and assessment of cultural places for inclusion in the World Heritage List.’ (PhD Thesis submitted to Australian National University).
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1.2 SIGNIFICANCE OF THE RESEARCH
The World Heritage Convention is both a challenging and rewarding topic to study. The
notion of states having a ‘common heritage’ and erga omnes obligations,26 challenges the
very idea of state sovereignty, and reveals interesting and significant conflicts of control
between national, international, and local actors. There is a strange magnetism to the World
Heritage brand, both in the way it connects culture with nature, and also in its goal to instill
pride across all citizens of the world, regardless of country of origin.27 As the late
conservationist, Russell Train (often described as the ‘father of World Heritage’) wrote in his
memoirs:
The citizen of Venice … not only should take pride in the status of Venice and its lagoon as
part of the World Heritage but also should feel a similar pride in the fact that Yellowstone and
the Serengeti and the Acropolis are also part of his or her own heritage.28
Although the original goals of World Heritage were aspirational, and the mechanisms for
achieving them intended to be cooperative, the Convention has been scarred of late by
allegations of politicization and ignorance of the science. The ‘rush to inscribe sites,’ as
Meskell calls it,29 has led to the unfortunate practice of national grandstanding, where nations
often see World Heritage as a ‘badge of honor’30 or ‘cash cow for tourism,’31 rather than a
25 See for example Article 4 of the Convention which requires that each State has a ‘duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage.’ More specifically, Article 6(3) of the Convention requires that states do not ‘take any deliberate measures which might damage directly or indirectly the cultural and natural heritage.’ Article 6(3) is complimented by a reporting regime, in particular, paragraph 172 of The Operational Guidelines for the Implementation of the World Heritage Convention which requires that states inform the World Heritage Committee ‘of their intention to undertake or to authorize in an area protected under the Convention major restorations or new constructions which may affect the Outstanding Universal Value of the property.’ 26 Erga Omnes is a Latin term which translates roughly as ‘towards all’ or ‘towards everyone.’ For a discussion of erga omnes under international law, see Bassiouni, M. C. (1996). International crimes: jus cogens and obligatio erga omnes. Law & Contemp. Probs., 59; and also Tams, C.J., Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005). The concept of erga omnes is discussed and critiqued further in chapter 2. 27 On branding of World Heritage, see King, L.M., Halpenny, E.A. (2014) ‘Communicating the World Heritage brand: visitor awareness of UNESCO's World Heritage symbol and the implications for sites, stakeholders and sustainable management’ 22(5) Journal of Sustainable Tourism 768. See also: Poria, Y, Reichel, A, Cohen, R (September 2011) ‘World Heritage Site-Is It an Effective Brand Name? A Case Study of a Religious Heritage Site’ 50(5) Journal of Travel Research, 482 28 Train, R Politics, pollution, and pandas: an environmental memoir (Island Press/Shearwater Books, 2003), 143. 29 See Meskell, L (2012) ‘The rush to inscribe: Reflections on the 35th Session of the World Heritage Committee, 37(2) Journal of Field Archaeology 145. 30 See Webb, T (2000) ‘The meanings of World Heritage: a study of environmentalists and World Heritage
15
source of any significant conservation obligations. This politicization of World Heritage
decision-making has led some to describe the Convention as under attack and ‘in desperate
need of an overhaul.’32 All of this has very real repercussions for the future effectiveness of
World Heritage, as well as for our understanding of the legitimacy and authority of the
institutions in charge of making decisions.
The topic of non-state actors and their role in World Heritage is an equally inviting one. Over
the last five decades, non-state actors have exploded onto the world stage.33 Their
omnipresence in virtually all facets of international relations has added to an increasingly
complicated patchwork of state and non-state institutions at the global level. As Boardman
recognized in 1990:
The numbers of institutions that regulate, supervise, provide negotiating forums for, or merely
dabble in, some aspect of public policy transported to the international level has expanded
greatly.34
World Heritage is not particularly unique in this regard. Much like the Convention on
Wetlands of International Importance (the Ramsar Convention) and the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES), non-state
actors have increasingly been an active, though poorly understood, presence in negotiations
and implementation.35 One area where World Heritage differs, perhaps, is that it very clearly
outsources (or ‘delegates’36) authority to expert scientific institutions like the IUCN and the
International Council on Monuments and Sites (ICOMOS) to undertake regulatory work.37
managers with respect to the Great Barrier Reef World Heritage Area’ (PhD Thesis, James Cook University). 31 See Winter, T. Post-Conflict Heritage, Postcolonial Tourism: Culture, Politics and Development at Angkor (Routledge, 2007), 32. 32 Keough, E (2011) ‘Heritage in Peril: A Critique of UNESCO's World Heritage Program’ 10 Wash. U. Global Stud. L. Rev. 593, 599. 33 See for example Willets, P. Non-Governmental Organizations in World Politics: The Construction of Global Governance (Routledge, 2011). 34 Boardman, R. (1990) Global Regimes and Nation-States: Environmental Issues in Australian Politics (McGill-Queen's University Press, 1990) 1. In the past, some refer to the new inclusion of various actors as part of an emerging ‘global civil society’ in global environmental governance. See for example: Lipschutz, R and Mayer J, Global Civil Society and Global Environmental Governance (State University of New York Press, 1996). 35 Nafziger, J., ‘The World Heritage Convention and Non-State Actors’, in Prott, L.V., Redmond-Cooper, R., y Urice, S. (eds.), Realising Cultural Heritage Law. Festschrift for Patrick O’Keefe, (Institute of Art and Law, Pentre Moel, 2013). 36 See Green, above n 17. 37 The International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) is
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As the advisory body under the Convention for natural sites, IUCN is authorized to
undertake monitoring work and to influence and shape the decisions of the 21 (state) member
World Heritage Committee. As chapter 5 of this thesis shows, IUCN is thus formally
enrolled38 to play a part in World Heritage regulation, and their scientific expertise provides a
degree of credibility and legitimacy to the regime.39
This raises two important questions: first; how are non-state actors like IUCN able to do they
do what they do?; and second;what claims do non-state actors make to act with authority over
state actors? These questions cannot be addressed by looking at the text of the Convention.
Only through detailed empirical analysis, it is suggested, can we construct a picture of how
an organization like IUCN builds its legitimacy and exerts authority to draw states into
compliance. Understanding how and why they do so has relevance for making sense of other
MEAs (such as CITES and Ramsar) where IUCN play an equally significant, though poorly
understood, role.40 The answers to these questions also have relevance for making sense of
the authority and legitimacy of other non-state actors in global environmental regimes, like
the Intergovernmental Panel on Climate Change (IPCC), which relies on science and the
scientific method to exert influence.41
Quite aside from these ‘expert actors’, this research also has relevance for understanding the
tactics and influence of NGOs in other areas of global governance. While not formally
‘enrolled’ to take part in regulation like IUCN, NGOs may nevertheless form part of an
also an advisory body under the Convention framework. 38 Enrolment is a theory of regulation, principally developed by Julia Black, whereby non-state actors are used to play a role in regulation (standard-setting, monitoring and enforcement) which might otherwise be reserved for a state. It is discussed in further depth in chapters 5 and 7 of this thesis. 39 An organisation like IUCN is, however, very much a part of the Authorised Heritage Discourse (AHD) which Smith talks about. See chapter 2 for more on Smith’s critique of AHD and its relevance to World Heritage. 40 Under CITES, IUCN is considered ‘an inter-governmental observer’ and is permitted to provide technical input and expertise on conservation issues. Under Ramsar, IUCN is an ‘international organisation partner,’ which allows it to share knowledge and experience on sites. IUCN also hosts the Ramsar Convention Secretariat. 41 The IPCC was first created in 1988 to ‘to prepare, based on available scientific information, assessments on all aspects of climate change and its impacts, with a view of formulating realistic response strategies.’Whilst it was not created specifically to advise the United Nations Framework Convention on Climate Change (UNFCCC) regime, it ‘did play a decisive role in leading to the creation of the framework.’ See IPCC, ‘Organization History’ <https://www.ipcc.ch/organization/organization_history.shtml> accessed 20 October 2017. As Biermann and others point out, the legitimacy and authority of the IPCC has increasingly been called into question. See for instance: Biermann, F, and Gupta, A., (2011) ‘Accountability and legitimacy in earth system governance: a research framework." 70(11) Ecological economics 1856; and McMahon, R and Stauffacher M and Reto K (2016) ‘The scientific veneer of IPCC visuals.’ 138(3) Climatic Change 369.
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influential inner circle in global environmental decision-making.42 Chapter 6 of this thesis,
for instance, shows how WWF was able to enroll itself to carry out monitoring of Australia’s
responses during the case study. In this way, WWF played a self-described ‘filtering role’ for
the World Heritage bodies.43 Other NGOs with an interest in World Heritage were shown to
care less about the activities of regulation (as defined above) and more about agitating the
issues through advocacy and general campaign work (something WWF was also capable of
doing). Those NGOs not involved in regulation might best be described as having chosen
strategies aligned with an ‘outside track.’44
There is perhaps nothing novel about a finding that NGOs take the outside track in World
Heritage. It is indeed a tried and tested means of NGOs strategizing and exerting influence at
both the domestic and international level.45 But, on the other hand, the availability of
decision-makers to certain ‘insider’ NGOs does raise important questions about equity and
access.46 From a practical perspective, it speaks to the fact that the World Heritage system
lacks formal and transparent pathways for keeping NGOs ‘at arm’s length,’ whilst, at the
same time, being able to take advantage of their considerable public support base. These
types of ‘insider’ issues are not specific to the World Heritage Convention,47 but they do
threaten to undermine the credibility of a regime already facing pressures due to increasing
politicization48 and ‘diplomatisation.’49
42 Oberthür, S et al. Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience (Ecologic, 2002), 160. 43 Interview #10 44 The language of ‘outside track’, first alerted to the researcher by a participant in the study (interview #5), refers generally to NGO strategies that focus on campaigns and advocacy and involve the public at large (as opposed to engaging with the institutions who make the decisions). Further description of outside track (and inside track) is set out in chapter 6. 45 Several years ago, Malone and Pasternack provided comprehensive ‘guidance’ on how influence might be achieved by NGOs in the context of international environmental law. Many of these resonate with the outside-inside track distinction. See Malone L and Pasternack S Defending the Environment Civil Society Strategies to Enforce International Environmental Law (Island Press, 2006). 46 Oberthür, S et al. above n 42. 47 Ibid. 48 See Meskell, L. Liuzza, C. Bertacchini E. & Saccone D. (2015) ‘Multilateralism and UNESCO World Heritage: decision-making, States Parties and political processes.’ 21(5) International Journal of Heritage Studies, 423-440. 49 Hølleland, H., (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), 87.
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In the end, the World Heritage system needs to reinvent itself, not just in terms of improving
democratic elements,50 but more specifically by formalizing and clarifying (in writing) the
relationships between the various clusters of actors (state and non-state) who play a role in
governance. The success of the Convention in years to come will be marked not by how
many new sites it can create, but by how authoritative and effective its institutions are in
conserving existing ones. Being able to make sense of the role of non-state actors under the
regime seems crucial to addressing these issues, and hence the significance of this research.
1.3 EXISTING LITERATURE
Comprehensive and empirical studies on how the World Heritage Convention operates after a
site is listed (i.e. the compliance phase), are relatively scarce in the literature.51 Certainly, in
the area of non-state actors, and their role in World Heritage, there is little to draw upon.52
The bulk of the literature that does consider non-state actors at the global level seems to view
them as sources of influence (or at least a formidable presence) and seeks predominantly to
critique their ‘legal right’ to play a part in international relations.53 Targeted and more
comprehensive studies, however, on the role of particular non-state actors in regards to
MEAs are few and far between.54
More broadly, there is a distinct lack of empirical work into the functioning of international
environmental law, and, in particular, longer term studies on compliance with the main
conservation treaties: World Heritage, Ramsar, CITES and the CBD. At a domestic level,
some scholars argue that the deployment of empirical legal methods have in fact been
50 Affolder, N, (2007) ‘Democratising or Demonising the World Heritage Convention?’ 38(2) Victoria University of Wellington Law Review 341. 51 In the MEA and compliance literature, there is a difference between compliance and implementation which is made clear in chapter 2. 52 Two notable exceptions to this are: Chechi, A (2015) ‘Non-State Actors and Cultural Heritage: Friends or Foes?’ 19 AFDUAM 457; and Nafziger, above n 35 53 See for example Dupuy, PM and Vierucci, L (eds) NGOs in International Law Efficiency in Flexibility? (Edward Elgar, 2008). 54 One the main exceptions to this is Arts, B, The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions, (International Books, 1998) which is discussed further below. There are also a number of works related to the UNFCCC. See for example: Gulbrandsen, L.H. and Andresen, S, (2004), ‘NGO Influence in the Implementation of the Kyoto Protocol: Compliance, Flexibility Mechanisms, and Sinks’, 4(4), Global Environmental Politics, 54; and Nasiritousi, N, Hjerpe, M, Linner, B, (2016) ‘The roles of non-state actors in climate change governance: understanding agency through governance profiles’ 16(1) International Environmental Agreements: Politics, Law and Economics, 109. For a more general understanding of the role that non-state actors play across the MEA spectrum, see Green, above n 17.
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particularly strong in environmental law.55 There is some truth to this assertion, though most
of the existing empirical work on environmental law has been based around the concepts of
domestic enforcement and compliance.56 For example, throughout the 1980s and 1990s
several prominent empirical studies were undertaken in the United States around the
effectiveness of deterrence as a means of regulating private firms.57
Similarly, a substantial collection of empirical work ‘aimed at reducing environmental harm’
at the domestic level has emerged in the last 40 years, particularly in the United States.58 In
the discourse of environmental justice, a theory linking social disadvantage to the distribution
of environmental risks and benefits, dozens of significant empirical studies have been carried
out,59 although, again, most of these are from the United States and based upon domestic
concerns. Australian-based work on environmental justice is far less prevalent (though it is
growing),60 which has led Australian scholars Byrne and MacCallum to suggest that it
‘borders on neglect.’61
Likewise, the domestic implementation of MEAs (that is, the application of international laws
to a state’s system) has not been particularly well-studied using longer-term and empirical
methods.62 Commentators and policy-makers have been preoccupied, it seems, with creating
and finessing new MEAs, adopting fresh guidelines and additional protocols or declarations,
rather than turning their attention to how best to improve issues of implementation and
compliance with existing ones.63
55 See Smits, J., The Mind and Method of the Legal Academic (Edward Elgar, 2012) 28. 56 Coglianese, C and Courcy, C., ‘Environmental Regulation’ in Crane, P., and Kritzer, H., (eds) Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010). 57 See Cohen, M., ‘Empirical Research on the Deterrent Effect of Environmental Monitoring and Enforcement’ (2000) 30 Environmental Law Reporter 10245. 58 As Coglianese and Courcy remark, this work has ‘given empirical researchers excellent opportunities to study the [ongoing] relationship between law and society.’ See Coglianese and Courcy above n 56, 449. 59 For a good overview of these studies see; Bowen, W., (2002) ‘An analytical review of environmental justice research: what do we really know?’ 29(1) Environmental Management 3. 60 See for example, Kennedy, A.L., (2017) Environmental Justice and Land Use Conflict: The Governance of Mineral and Gas Resource Development, Earthscan Studies in Natural Resource Management (forthcoming). 61 Byrne, J., and MacCallum, D., (2013) ‘Bordering on Neglect: ‘Environmental Justice’ in Australian Planning.’ 50(2) Australian Planner 164. 62 Ginsburg, T, and Shaffer., G., ‘How Does International Law Work?’ in Crane, P., and Kritzer, H., (eds) Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010). 63 Only in the 1990s, did commentators start to turn their mind towards compliance with MEAs. See Cameron, J, Werksman J, and Roderick P, Improving Compliance with International Environmental Law (Earthscan, 1996); and Mitchell, R.B., ‘Compliance theory: Compliance, effectiveness, and behaviour change in international environmental law’ in Brunnée, J, Bodansky, D., and Hey, E., (eds) Oxford Handbook of
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One possible explanation for this is that environmental law is heavily value-laden and faces
the difficult challenge of ‘an embedded axiology.’64 As Martin and Kennedy argue:
The scholarship of environmental law is often concerned with converting philosophical
aspirations into tangible social arrangements … Lawyers’ suspicion of empirical methods
may reflect a visceral concern for the erosion of a philosophy of knowledge that has a real
concern for justice.65
This ‘suspicion of empirical methods’ likely also reflects, although it ought not to, the overtly
‘normative system’ that environmental law has become. Whilst all law is, as McGrath points
out, a normative system of study because it concerns rules that prescribe a course of conduct
(i.e. what ‘ought’ to happen),66 the relatively short history and deployment of environmental
principles, born largely out of NGO activism and urgency, is a special case. International
environmental law, in particular, as a body of jurisprudence has embraced generally accepted
principles, which have been developed, deployed (and re-deployed) through several hundred
different MEAs and bilateral agreements.67
Having said all that, there are some excellent and relevant studies that relate to the objectives
of this research. One of first major studies on the influence of non-state actors and their role
in MEAs was Bas Art’s study concerning the UNFCCC and the CBD.68 In that work,
published in 1998, Arts described it as ‘difficult’ to overlook the growing importance of
NGOs in international environmental law.69 He concluded, amongst other things, that it is the
International Environmental Law (Oxford University Press, 2007). For an Australian perspective, see: Rothwell, D., and Boer, B., (1998) ‘The Influence of International Environmental Law on Australian Courts’ 7(1) Review of European Community and International Environmental Law 31-39; and Rothwell, D., and Boer, B., (1995) ‘From the Franklin to Berlin: The Internationalisation of Australian Environmental Law and Policy’ 17 Sydney Law Review 242. 64 Martin, P, and Kennedy, A., Implementing Environmental Law (Edward Elgar, 2015), 35. 65 Ibid. 66 McGrath, C., Does Environmental Law Work? How to Evaluate the Effectiveness of an Environmental Legal System. (Lambert Academic Publishing, 2010), 28. 67 For a good overview of those principles, see De Sadeleer, N.. Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2005); and more recently; Kravchenko, S, Chowdhury T, and Jahid Hossain Bhuiyan. ‘Principles of Environmental Law in Alam, S., Bhuiyan Jahid Hossain, Tareq M.R Chowdhury, and Erika J. Techera, (eds) Routledge Handbook of International Environmental Law (Routledge, 2013). 68 Arts, above n 54. 69 Ibid., 16
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‘quality’ of NGO interventions (based upon their knowledge and skills) that is ultimately
determinative of their level of influence.70 Further, he surmised that ‘the implementation
phase’ of a treaty was perhaps less important to the role of NGOs in the area than the
formulation phase.71
For the most part, the findings in this thesis align with Arts’ conclusions, save for one clear
point of difference: that the compliance with the obligations of the World Heritage
Convention and the availability of a ‘higher authority’ of the World Heritage appeared very
much front and centre of NGO strategy throughout the GBRWHA study.72 Of course, Art’s
thesis was based on very different frameworks (the CBD and UNFCCC), which, at that time,
had only recently been established. Compare this, for instance, with the World Heritage
Convention, one of the world’s first MEAs.
Another note-worthy study in this area is Norwegian scholar Hølleland’s 2013 PhD thesis on
‘the changing faces of the World Heritage Convention’, which involved extensive fieldwork
and archival research at the World Heritage-listed Tongariro National Park in New Zealand
and the Greater Blue Mountains World Heritage Area in Australia.73 As part of her research,
Hølleland explored the mechanisms of compliance in World Heritage and highlighted, as this
thesis does, ‘the relatively-scarce empirical literature concerning the relationship between
domestic and international dimensions of regime compliance.’74 Like Maswood’s paper of
Australia’s Kakadu,75 Hølleland concluded that ‘it is often a combination of domestic and
international pressure from non-state actors that forces the State Party to act in an acceptable
manner [under the Convention].’76 The findings in the thesis confirm and strengthen
Hølleland’s conclusions and showcase Australia’s penchant for diplomatisation of
international agreements.77
70 Arts, above n 54, 266 71 Ibid. 72 Chapter 6, for instance, shows how NGOs used the World Heritage brand and the processes of the Convention to draw attention to lacklustre approaches to domestic governance by both the Queensland and Australian Governments. 73 Hølleland, above n 49 74 See Hølleland, H., (2014) ‘Mt Ruapehu’s looming lahar Exploring mechanisms of compliance in the World Heritage regime’ (special edition) Primitivetider 75. 75 Maswood, S., (2000), ‘Kakadu and the Politics of World Heritage Listing’ 54(3), Australian Journal of International Affairs, 357. 76 Hølleland, above n 49. 77 Ibid, 87.
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There are several other works on World Heritage worth noting here, and which are drawn on
in various parts of this thesis, particularly from the conservation, anthropological and
international relations literature.78 Some of these take aim, as Meskell does for instance, at
the politicization of Committee processes (referred to above), and ignoring the scientific
advice coming out of the advisory bodies like IUCN and ICOMOS.79 From a legal point of
view, Battini’s’ contribution seems unique as it conceives the Convention framework as
essentially a set of influential processes which aligns closely with global administrative law.
As Battini argues, the Convention works by enlarging the ‘class of interests entitled to
consideration in domestic decision-making processes.’80 This thesis picks up on Battini’s
arguments and narrows in on the class of interests entitled (or who nevertheless entitle
themselves) to be a part of the regulatory process. Other legal commentators, like Affolder81
and Keough,82 provide critiques of the democratic elements of World Heritage which are
relevant to understanding how and why the Convention is viewed so politically, and make
helpful suggestions on how to fix it.
There are several further contributions that relate specifically to World Heritage in Australia,
the country where the Convention has been embraced more than anywhere else in the
world.83 Many of these works relate to the history and impact of World Heritage litigation,84
but there are also more general contributions such as Boer and Wiffen’s discussion of
78 See for example, Leask, A, and Fyall, A (eds), Managing World Heritage Sites (Elsevier Ltd, 2006); Harrington, J and Buckley, K, (2014) ‘Marking four decades of World Heritage - The view from Australia’ 26(2) Historic Environment 16; Meskell, L., (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation.’ 54(4) Current Anthropology, 483. 79 See Meskell, L., ibid. 80 Battini, S., (2011) ‘The procedural side of legal globalization: The case of the World Heritage Convention’ 9(2) International Journal of Constitutional Law 340, 368. 81 Affolder, above n 50. 82 Keough, above n 32. 83 See for example, Lennon, J., (2006) ‘Paris down under - World Heritage impacts in Australia’ in Hoffman, B.T. (ed), Art and cultural heritage: law, policy, and practice (Cambridge University Press, 2006); Tisdell, C, and Wilson, C (2002), ‘World Heritage listing of Australian natural sites: tourism stimulus and its economic value’ 32(2) Economic analysis and policy 27. 84 These works are considered in chapter 2. See for example: Boer, B., (1992) ‘World Heritage Disputes in Australia’ 7, University of Oregon Journal of Environmental Law and Litigation, 247; Forrest, C. J. S. (2007) An Australian perspective on World Heritage sites, 27 Numero Special, Revue Juridique de L'Environnement, 123; Richardson, B (1990) ‘Australian Practice Pursuant to the World Heritage Convention’ Articles & Book Chapters 2228 <http://digitalcommons.osgoode.yorku.ca/scholarly_works/2228>; and Peek, M., and Reye, S. ‘Judicial Interpretation of the World Heritage Convention in the Australian Courts’ in Hoffmann, B (ed.), Art and Cultural Heritage (Cambridge University Press, 2006).
23
heritage law in Australia.85 Other Australian scholars have looked at the capacity of the
World Heritage system to take account of climate change impacts, something which the
framework has consistently been unable to do.86
On the historical development of World Heritage, Bolla and Batisse give a first-hand
description of how the framework was negotiated; including hinting at the politics that have
long existed between states in the implementation of the Convention.87 Cameron and RÖssler
have covered the historical development of World Heritage since the 1970s.88 Rodwell has
done likewise,89 and a helpful edited commentary on the text of the Convention (article by
article) has been produced by Francioni and Lenzerini.90 Another insightful contribution is
Claudi’s 2011 thesis which used documentary analysis and semi-structured interviews to
examine the influence and role of Brazil, Russia, India and China (the ‘BRICs’ nations)
within World Heritage system. Claudi found, as others have suggested, ‘unambiguous
indications that the [World Heritage] Committee [was] becoming more political.’91
In terms of the role of non-state actors and the objectives of this thesis, there are two recent,
though unrelated, pieces worth noting: one by Chechi,92 and the other by Nafziger.93 Chechi
and Nafziger focus on explaining the presence and influence of NGOs in heritage (Chechi in
particular to cultural heritage) but stop short of providing a comprehensive qualitative
analysis of how NGOs, as key non-state actors, are capable of constructing legitimacy and
exerting authority over states under the World Heritage system. Nafziger points out that the
influence of NGOs is a relatively recent phenomenon under the Convention, and,
85 Boer, B and Wiffen, G Heritage Law in Australia (Oxford University Press, 2006). 86 See Huggins, A., (2007) Protecting World Heritage sites from the adverse impacts of climate change : obligations for States Parties to the World Heritage Convention. 14 Australian International Law Journal 121; and Shearing, S., (2007) ‘Here Today, Gone Tomorrow? Climate Change and World Heritage’ (October 2007). Available at SSRN: https://ssrn.com/abstract=1021146 87 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005). 88 Cameron, C., and Rössler, M., Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate, 2013). 89 Rodwell, D., (2012) ‘The UNESCO World Heritage Convention, 1972–2012: Reflections and Directions’ 3(1) The Historic Environment: Policy & Practice 66. 90 Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008) 91 Claudi, I., (2011) The New Kids on the Block (Masters Thesis submitted to University of Oslo). 92 Chechi, A (2015) ‘Non-State Actors and Cultural Heritage: Friends or Foes?’ 19 AFDUAM 457. 93 See Nafziger, above n 35.
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notwithstanding the historical presence of IUCN, WWF and a few others, the findings in this
thesis concur with these remarks.
On the topic of the GBRWHA, the focus of the case study in this thesis, there are dozens of
excellent works that consider more effective domestic governance strategies.94 There are also
interesting accounts that consider the influence of NGOs using social media and language to
exert influence at the site,95 the use of crowdfunding in litigation,96 and the influence of
NGOs on project financiers with respect to developments impacting the Reef.97 It seems that
few studies, however, conceive World Heritage in terms of regulation (particularly in terms
of looking at monitoring and enforcement), and more specifically, there are few empirical
studies on the application of the Convention in Australia highlighting the roles of non-state
actors. One notable exception is to this is Webb’s thesis on the ‘meanings of World Heritage’
published in 2000.98 Webb’s focus illuminated the multitude of actors and perspectives that a
colossal and iconic site like the GBRWHA attracts, including pointing out how different
actors (both state and non-state) view the branding of World Heritage.99 Webb’s work is
drawn on throughout this thesis, in particular to show how NGOs use World Heritage as a
means of leveraging other issues (like climate change) as well as drawing on his helpful
extrapolation of past controversial events in Australia at Kakadu and the Wet Tropics.
Finally, perhaps one of the most relevant studies for this thesis, not referred to above, but
which is given further consideration in chapters 2, 6 and 7 is a paper by Goodwin in 2009
setting out how compliance operates under the Convention.100 Goodwin’s work draws on
94 See for instance: Dale et al, above n 1; Brodie and Pearson above n 1; and Grech A, et al (2013) ‘Guiding principles for the improved governance of port and shipping impacts in the Great Barrier Reef’ Marine Pollution Bulletin. 95 See Lester, L (2016) ‘Containing spectacle in the transnational public sphere’ 10(6) Environmental Communication 791-802. 96 Hamman, E., (2015) ‘Save the Reef! Civic Crowdfunding and Public Interest Environmental Litigation.’ 15(1) QUT Law Review 159. 97 Hamman, E., (2016) ‘The influence of environmental NGOs on project finance: a case study of activism, development and Australia’s Great Barrier Reef.’ 6(1) Journal of Sustainable Finance & Investment 51. 98 Webb, above n 30 99 One point on which this thesis differs from Webb’s contribution is that this thesis draws on theories from the regulatory literature like Julia Black’s concept of enrolment, and Colin Scott’s expansion of regulatory space theory. Nonetheless, Webb’s work is still highly relevant and considered throughout the thesis (in particular Chapters 2, 3 and 4). It is particularly helpful, for instance, in understanding terms how certain NGOs might view World Heritage and the GBRWHA as an additional ‘tool’ in their campaigns and strategies. 100 Goodwin, E., (2009) ‘The World Heritage Convention, the environment, and compliance’ 20(2) Colorado Journal of International Environmental Law and Policy, 157.
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Thomas Franck’s theory of compliance pull.101 Both Franck and Goodwin’s contributions are
referred to throughout this thesis to help make sense of the empirical data (see chapter 2).
Their ideas about compliance are further developed in the conclusions of this study (see
chapters 6 and 7).102
In all, most of the studies referred to above reflect general themes like the politicisation of
World Heritage especially during the nomination phases for new sites. There is also a clear
bias (or focus) on the cultural elements of the Convention and relatively few contributions,
with the possible exceptions of Hølleland, Aplin and Maswood, which tackle questions of
compliance at natural or mixed World Heritage sites in Australia.103 More specifically,
academic work on non-state actors and their role in implementing the Convention seems
scarce. Similarly, critiques of the legitimacy and authority of key regulatory bodies like
IUCN are lacking.104 In the overall context of World Heritage, therefore, we are left
wondering what role non-state actors actually play under the regime, and whether their
behavior can be accurately described as contributing to regulation, or something else
altogether.
1.4 RESEARCH QUESTION AND AIMS
The review of the existing literature above exposes the key gap that this thesis seeks to
address.105 That gap, and the research problem that this thesis addresses, concerns the role of
non-state actors in promoting and supporting compliance with the World Heritage
Convention. There is a clear absence of significant socio-legal, especially empirical, work;
that is, research which focuses not just on the legal instruments, but on the observed
101 See Franck, T., (1988), ‘Legitimacy in the International System’, 82 Am. J. Int’l L 705. Some of Franck’s later works are also detailed in this thesis. 102 For this reason, there is little need to cover them in detail here. 103 See Hølleland above n 49; Maswood, above n 75; and also Aplin, G., (2004), ‘Kakadu National Park World Heritage Site: Deconstructing the debate, 1997-2003.’ 42(2) Australian Geographical Studies 152. 104 One exception to this is Bhandari., (2012), ‘Exploring the International Union for the Conservation of Nature (IUCN's) National Program Development in Biodiversity Conservation: A Comparative Study of India, Pakistan, Nepal, and Bangladesh’ Paper 73 Sociology - Dissertations. 105 Ideally, literature reviews at the PhD level, such as this, should be focussed on all known literature on the problem as well as ‘high levels of conceptual thinking’ within and ‘across different theories’. See Hart, C., Doing a Literature Review: Realising the Social Science Research Imagination (Sage Publishing, 2006), 15. Thus regulatory literature was considered as was the compliance literature; the MEA literature and global governance literature more broadly. The case study also required reading of the GBRWHA material, mostly developed in the physical sciences (e.g. marine science) though with some contributions from the tourism and economic literature.
26
behaviour of the actors (both state and non-state) and asking how and why they do what they
do from a legal and sociological perspective.106
The research gap thus exists at the intersection between three main factors:
1. The implementation or application of the goals and standards of the World Heritage
Convention (‘post site listing’);
2. The role of non-state actors in supporting and promoting compliance with the Convention
(and MEAs more broadly); and
3. The desire for comprehensive empirical research methods which seek to address the
issues in 1. and 2. above.
With this in mind, the overarching research question in this thesis became:
Once a World Heritage site has been listed, how do non-state actors contribute to compliance,
including through regulation, but through other means as well?
This question necessarily raises a series of sub-questions that also need to be addressed,
including:
1. How do we best identify non-state actors in global environmental governance? What are
their key characteristics? And how are they distinguished from the state and various sub-
national actors?
2. What types of non-state actors are involved, or have the potential to be involved, in the
compliance and regulatory processes of the World Heritage Convention?
3. Are non-state actors being formally enrolled in World Heritage ‘regulation’? If so, how
and for what purpose?
4. If non-state actors are not enrolled to regulate, can they nevertheless ‘enrol themselves’?
If so, how might they do it?
106 There is a debate in the literature about whether socio-legal research refers to an ‘emerging discipline, a sub-discipline or a methodological approach’ in and of itself. See for instance Banakar, R., Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Later Modernity (Springer, 2015), 48. While it is acknowledged that socio-legal research can be a research methodology (otherwise referred to as ‘empirical legal studies’), this thesis uses the term ‘socio-legal’ to refer to a research framework that considers law from a broader social perspective than just legal rules or decisions, and includes examining the actors and social behaviours that make laws work (or not). It sees law as a part of governance and regulation, which, in turn, is a broader aspect of society. In this sense, ‘society’ is defined as a ‘product of collective thoughts and actions.’ See Banakar, above (this note), 21.
27
5. Are those actors that don’t take part in regulation nevertheless still relevant in supporting
and promoting compliance with the Convention’s goals?
The research question and the sub-questions are not addressed chapter-by-chapter in this
thesis, but they are answered as the broader argument unfolds. Sub-questions 1 and 2, for
instance, are considered in chapter 4 of the thesis by drawing on Bas Arts’ work of what a
non-state actor is. Sub-question 3 regarding the enrolment of non-state actors is addressed in
chapter 5 in the discussion of IUCN and its role as an advisory body under the Convention
framework. Sub-questions 4. and 5. are addressed in chapter 6, which has a specific focus on
the role and influence of NGOs in World Heritage, labelling them as either ‘regulators’ or
‘agitators’. Finally, the research question and the sub-questions are all addressed, in a holistic
way in the conclusions to this thesis (chapter 7).
The immediate aim of the research was to answer the research question by drawing on
empirical data and the literature concerning non-state actors, international law, environmental
law, compliance, regulation and World Heritage. The overall objective was to generate new
insights into how compliance with World Heritage operates ‘on the ground’ in places like
Australia, and highlight the role and influence that non-state actors have in that process. It is
suggested that there are two helpful outcomes to this:
1. It enhances our understanding of how the World Heritage Convention operates, and
presents an opportunity to propose improvements to the internal processes, institutional
relationships and overall functioning of the regime; and
2. It offers state and non-state actors a base on which to critique and reflect on their
contributions to World Heritage at the international level, so that they might learn from or
compare their experiences in other situations and adapt and improve their behaviours as a
result.
1.5 METHODOLOGY AND METHODS
1.5.1 Intellectual Framework for the Research
Addressing a complex and layered research question, and sub-questions, requires an
appropriate and justifiable method, but it also requires careful consideration of the
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ontological and epistemological approach of the researcher.107 As researchers we must
explain how we view the world, and what assumptions we make (and biases we bring) to
particular research problem. For example, as Crotty succinctly points out:
Justification of our choice and particular use of methodology and methods is something that
reaches into the assumptions about reality that we bring to our work. To ask about these
assumptions is to ask about our theoretical perspective.108
The focus of this research required the researcher to identify and explain the interactions of
state and non-state actors in a globally-connected world. The core assumption that underpins
this quest is that our world is socially complex and increasingly interconnected in both formal
and informal ways. It can, for instance, be connected by ‘formal’ instruments of governance
(laws, policies, treaties guidelines etc.) but, it can also be connected in a Foucauldian sense,
by power and influence in ways which are far less obvious but no less significant in
determining outcomes (for example in the form of human-human relationships).
This research further assumed, based largely on the literature review above, that relationships
in World Heritage are poorly understood and inherently political, but they are nevertheless
still capable of being identified, evaluated and documented in meaningful ways. It follows
(again assumed) that relevant observations can be made about those relationships which
reflect how the world operates, and which may, for instance, help to further advance our
understandings of the contribution of relationships to global environmental governance.
The theoretical framework for approaching this research aligned with a constructionist
epistemology.109 Constructionism is an epistemological stance that rejects objectivism, and
maintains that knowledge is socially constructed from the circumstances of qualitative study.
As Crotty points out, in constructivist studies such as these, ‘meaning is not discovered, but
[it is] constructed.’110 Adopting a constructivist stance also means the researcher is not an
entirely objective observer throughout the research. In this thesis, for instance, the researcher 107 Nagy Hesse-Biber, S and Leavy P., The Practice of Qualitative Research (Sage Publications, 2011), 4. 108 Crotty, M., The Foundations of Social Research: Meaning and Perspective in the Research Process (Sage Publications, 1998) 2. 109 Epistemology is the study of knowledge, and more specifically, it seeks to address the question of how we know what we know. 110 Crotty, above n 108, 9.
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‘co-constructed’ his knowledge about non-state actors and their role in the regulation of
World Heritage including drawing on his own experiences (both professional and private)
about how compliance with environmental law operates.
It is worth pausing here to clarify that the researcher in this thesis brought their own
subjective views and assumptions to answering the research question. The very nature of
qualitative research of this kind is that the researcher is not an entirely detached observer of
the primary material, as they may be, for instance, in quantitative methods.111 The vocational
background of the researcher in environmental law, including in government and non-
government work, meant that the research was carried out with certain prior knowledges and
expectations of the capabilities and roles of state and non-state actors in the promotion of
compliance. Some of those expectations were challenged by the data, whilst the empirical
material validated others held by the researcher.
Finally, an interpretivist stance was adopted as the intellectual framework for this research.112
As Blaikie remarks, interpretivism suggests that:
social reality is regarded as the product of processes by which social actors together
negotiate the meanings for actions and situations.113
This quest for negotiated meanings resonates closely with the constructionist epistemology
adopted in this project. It also reflects the desire for subjective (as opposed to objective)
meaning in the research and allows the researcher to use past events (i.e. through the case
study) to inductively generate new theory and find new ‘patterns of meaning’ from the
research.114
111 Objectivity in approach is in fact one of the main differences between quantitive and qualitative studies in the social sciences. See generally Babbie, E., The Practice of Social Research (Sage, 2015). 112 Crotty prefers the term theoretical perspective to ontology. Crotty suggests that ontology and epistemology are related concerns. See Crotty above n 108, 10. 113 Blaikie, N., Approaches to social enquiry (Polity Press, 1993), 96. 114 Creswell J., and Poth, C., Qualitative Inquiry and Research Design: Choosing Among Five Approaches (Sage Publications, 2017), 24.
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1.5.2 Method
The research question in this thesis (above) examines how non-state actors strategize, agitate,
interact and exert influence under the World Heritage Convention, in particular following the
listing of a site. The question thus required the researcher to ‘get close to the data’ and to co-
construct a close to realistic picture of how decision-making and regulation operates under
the Convention. To address this question, and the sub-questions above, a multi-method
approach was adopted.115 There were essentially two aspects to this: first, a review of the
relevant literature; and second, an in-depth case study of the Great Barrier Reef between the
years 2010 to 2015.
The first stage of the method involved an extensive analysis of the literature, including
engaging closely with the heritage, international relations, legal and regulatory literature.
There are differences in how these discourses view the role of institutions, rules and actors in
governance. Indeed, there are differences in how they view the idea governance.
Nevertheless, useful insights can be generated by stepping back and considering how and
where they might be drawn together and even synthesized. 116 The overarching purpose of
this first stage was therefore to consider the current state of knowledge about the issues posed
by the research question from a variety of perspectives, and where possible, to use them in
explaining the empirical data generated from part two of the method.117 The second stage of
the method involved a case study of the GBRWHA between the years 2010 and 2015.118 The
factual boundaries of the study were tightly controlled and the events are set out in the table
below. Case study research is not particularly new in socio-legal scholarship; however (as
noted above) the nature of such work concerning compliance under the World Heritage
Convention (not to mention other MEAs) is underdeveloped.
115 Multimethod approaches might be distinguished from ‘mixed method’ approaches. In the former, researchers employ two or more qualitative approaches to addressing the research question, for example semi structured interviews and documentary analysis. In the latter, quantitative and qualitative approaches are combined. See Hunter A., and Brewer J., ‘Multimethod research in sociology’ in Tashakkori, A., and Teddlie, C., (eds) Handbook of Mixed Methods in Social & Behavioural Research (Sage, 2003), 577. 116 For example, the international relations literature talks about ‘insider’ and ‘outsider’ strategies of NGOs, whilst the regulatory literature talks about contributions to ‘regulation’ by non-state actors. See Chapter 7 for the alignment of these notions. 117 Much of the relevant literature is summarized earlier in on this chapter, but is also drawn upon at various parts throughout this thesis to help make sense of the case data. 118 Case study analysis has been described as a form of intensive study of a single unit (or a few units) for the purpose of understanding a larger class of units. See Gerring, G., (2004) ‘What Is a Case Study and What Is It Good for?’ 98(2) American Political Science Review 341.
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In terms of the nature of the case study undertaken, various options were available to the
researcher. Robert Stake119 has distinguished between three separate types: the intrinsic
study;120 the instrumental study;121 and the collective study.122 By and large, this thesis
adopted an instrumental approach: it was concerned with the question of how non-state actors
mobilized and contributed to compliant behavior between 2010 and 2015. Adopting an
instrumental approach offers more than just an intrinsic understanding of the case itself. It
helps to generate new knowledge about a broader issue and develop or refine existing
theories about how we understand the phenomenon.123
Moreover, as Grandy notes, instrumental case studies offer a ‘thick description of a particular
site, individual, group, or occupation’,124 and their use can be particularly helpful because
they emphasize (as this research question required) depth of issues over breadth, relationships
over outcomes and a holistic view over isolated factors.125 The instrumental approach thus
aligned closely with the constructionist-interpretivist stance adopted by the researcher
(above). The boundaries of the instrumental study in this research are set out in the next
section.
1.6 THE CASE STUDY: THE EVENTS OF 2010-2015
Curtis Island is located approximately 500km northwest of Brisbane, in the Australian state
of Queensland. The island has been declared a national park under the Nature Conservation
Act 1992 (Qld) and forms part of the Gladstone State Development Area (SDA) originally
declared in 1993.126
119 Stake R., The Art of Case Study Research (Sage Publications, 1995). 120 Where the research is designed to focus in detail on a particular situation and is not designed to provide results generalizable to other situations. See Stake, Ibid., 3. 121 An in depth study, but not just for intrinsic interest, but to provide insight into an issue, theory or generalisation, for example, to apply or develop a particular theory. See Stake, above n 118, 3. 122 Where the researcher does a number of case studies – particularly when the situations are strategically different – to investigate a general phenomenon, and can test the findings of one against the other(s), and theorize inductively from them. See Stake, above n 118, 3-4. 123 See Stake., above n 118, chapter 1. 124 Grandy, G., ‘Instrumental Case Study’ in Mills, Durepos and Wiebe (Eds.), Encyclopaedia of Case Study Research (Sage, 2010). 125 Heckenberg, D., ‘What makes a good case study and what is it good for?’ in Bartels, L., and Richards K.,(eds), Qualitative Criminology: Stories from the Field (Hawkins Press, 2011), 192. 126 Declarations of SDAs are made under the under the State Development and Public Works Organisation Act
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There are approximately 1050 islands located within the boundaries of the GBRWHA. About
70 of these islands are owned by the Australian Government. The majority of these are
managed by the Department of Defence for military and security purposes. The remainder of
the islands within the GBRWHA (approximately 980 islands), including Curtis Island, are
within the jurisdiction of the Queensland Government and subject to Queensland’s
management and control. Many of the islands in the GBRWHA are inhabited, including
Curtis Island, as well as providing important habitat for migratory birdlife and terrestrial
flora. These biodiversity aspects contribute significantly to the World Heritage values of the
GBRHWA. Curtis Island, for example, is one ‘most diverse continental islands in the
GBRWHA’ and is home to about 600 species of terrestrial flora.127
In 2008, a Liquefied Natural Gas (LNG) construction project (one of four in total) was
proposed on Curtis Island. As the project was part of the Gladstone SDA, Queensland’s
Coordinator-General, a senior public servant responsible for generating economic opportunity
in the state, was authorised to oversee the environmental impact assessment (EIA) process. A
declaration of a SDA helps to facilitate the commercial expansion of activities at the site
including clustering of certain industries. In the case of the Gladstone SDA, those activities
included the exportation of LNG, which has been processed from coal seam gas (CSG)
otherwise known as coal bed methane. Most of Queensland’s CSG reserves are located inland
from Curtis Island in the Surat and Bowen Basins in the south and central parts of
Queensland. Together these basins represent more than ‘90% of the gas produced in the
state’128 and about 97% of total CSG currently being produced in Australia.129
In August 2009, UNESCO’s World Heritage Centre (as the secretariat for the Convention)
received ‘reports’ about the construction of the LNG plant on Curtis Island which was being
overseen by the Queensland Government. The reports to UNESCO did not come, as required,
from the Australian Government’s Department of Environment in Canberra.130 According to
1971 (Qld). They allow Queensland’s Coordinator General to control decision-making and land use in the area. 127 Queensland Government, GBR Coastal Zone Strategic Assessment 2014 (Appendix I – Island Management Demonstraction Case), 8. 128 Queensland Government, ‘Petroleum and Gas Resources’ <https://www.business.qld.gov.au/industries/invest/mining/resources-potential/petroleum-gas> 129 Mahoney, SA (2017) ‘The Effect of Water Occlusion on Gas Production in Coal’ (PhD thesis submitted to University of Queensland), 6. 130 UNESCO and IUCN, Reactive Monitoring Mission to Great Barrier Reef (Australia) 6th to 14th March 2012 (UNESCO, 2012) < whc.unesco.org/document/117104> 13. There is some speculation about exactly how it
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paragraph 172 of the Operational Guidelines to the Implementation of the World Heritage
Convention (the Operational Guidelines) state parties are required to notify the World
Heritage Committee where they intended to:
… undertake or to authorize in an area protected under the Convention major
restorations or new constructions which may affect the Outstanding Universal Value
of the property.
In failing to notify the World Heritage Committee about Curtis Island, Australia was thus in
clear breach of paragraph 172. Although the Curtis Island development was still very much in
the public domain at the time, the failure to report it spoke to a lack of appropriate reporting
procedures from the Australian Government. As an interview participant from the Australian
Department of Environment and Energy reflected:
[In 2009] there was no clear line of sight to the World Heritage Centre into what was
happening in Australia with our World Heritage properties in terms of potential impact on
those values…[nevertheless] there were high levels of public transparency around what was
going on [at Curtis Island], it’s just that it wasn’t being made visible to the World Heritage
Committee.131
It has been suggested that Australia’s failure to notify the World Heritage Committee was (at
least in part) due to a misunderstanding of where the jurisdictional boundaries for the
GBRWHA began and ended. Consider, for example, this exchange between the researcher
and a participant in the study:
Participant: People were arguing over lots of issues, but, honestly, I don’t think
when [the LNG plant] was first proposed that many understood that
Curtis Island was actually part of the Great Barrier Reef World Heritage
Area, because it was not part of the Marine Park…
Interviewer: [So] they thought because this is within our jurisdiction, we don’t have
to worry about the World Heritage values?
came to their attention, though an interview participant from IUCN suggested UNESCO came across a media release about the development from Arrow’s parent company (Shell). Unfortunately, UNESCO declined an invitation to be interviewed in this thesis so those circumstances cannot be clarified. 131 Interview # 12.
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Participant: Exactly. They thought that Queensland islands are Queensland. This is
an island, as long as we keep people informed and write a report, there
won’t be a problem…”132
Later in the same interview, the participant commented:
The whole area [of Curtis Island] is World Heritage, and Queensland didn’t actually
understand the complexities of World Heritage or the boundaries so that’s why I think
Queensland and then Australia got caught up in the Curtis Island kerfuffle.133
It is likely that Australia’s failure to comply with the notification requirements under the
Convention represented a miscommunication (or misunderstanding) between the Queensland
Government and the Australian Government with respect to the jurisdictional boundaries of
the GBRWHA. It is also likely, however, to reflect an administrative failure on the part of the
Australian Government to properly monitor and notify of projects which were likely to
impact the values of World Heritage sites. That oversight has since been rectified. From
November 2011, the Australian Government now responds quarterly to UNESCO about
potential developments at its World Heritage sites.134
At the time of the breach, Australia was not the only state to fail to comply with the
requirements of paragraph 172. Several incidents had occurred before, including, for
example: the Ancient city of Thebes and its Necropolis (Egypt);135 the Old Town of
Regensburg with Stadtamhof (Germany);136 Kaziranga National Park (India);137 Ibiza
(Spain)138; and the Ancient City of Nessebar (Bulgaria).139 As these examples show, a breach
of paragraph 172 can lead to threats of the site being included on the List of World Heritage
in Danger (the ‘In Danger List’). In Australia’s case, this is precisely what occurred, and the 132 Interview # 6. 133 Ibid. 134 See Australian Government, Department of Environment and Energy, ‘World Heritage Committee notification of development proposals’ <www.environment.gov.au/heritage/about/world/notification-development-proposals> 135 World Heritage Committee Decision 30 COM 7B.46 136 World Heritage Committee Decision 31 COM 7B.98 137 World Heritage Committee Decision 32 COM 7B.12 138 World Heritage Committee Decision 33 COM 7B.41 139 World Heritage Committee Decision 34 COM 7B.81
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Committee swiftly ordered a Reactive Monitoring Mission (RMM) to take place.140 In March
2012, IUCN undertook the RMM along with UNESCO’s World Heritage Centre.141
The final report from IUCN and UNESCO made a range of recommendations142 including
highlighting the connection between fossil fuels, World Heritage and the LNG development
on Curtis Island:
Whilst an LNG plant is clearly not extracting gas from anywhere within the Great Barrier
Reef, it is noted that the leading commitment to the principle of World Heritage Sites not
being subject to extractive industry is the 2003 biodiversity commitment of Shell [the parent
company for the project], which states that ‘We will not explore for, or develop, oil and gas
resources in natural World Heritage Sites.’143
The RMM report also took aim at the Queensland Government’s choice of Curtis Island for
the location of an LNG hub so close to the Reef:
Whilst the mission is not able to consider the full decision-taking process, it considers that the
Queensland Government site selection process as described to it indicates one clear potential
area for improvement, which would be to undertake assessments of the impact of declaring
State Development Areas on the OUV of the Great Barrier Reef, as part of the decision-taking
process, prior to the declaration of the State Development Area by the Queensland
Government and any associated development plans or policies.144
Three months after the RMM, in June 2012, Australia was formally made aware that the Reef
could, for the first time, be added to the In Danger List.145 In order to keep the GBRWHA off
the list, the Committee requested, on the advice of IUCN and UNESCO, that Australia
prepare a ‘Strategic Assessment’ and ‘Long Term Plan’ for the site. Between 2012 and 2015,
Australia and Queensland scrambled to prepare these documents. The Strategic
140 The formalities of the Convention are that the Committee (usually as recommended from IUCN and UNESCO) asks the State Party if they will ‘invite a RMM’ to take place. A RMM is defined in paragraph 169 of the Operational Guidelines as ‘the reporting by the Secretariat, other sectors of UNESCO and the Advisory Bodies to the Committee on the state of conservation of specific World Heritage properties that are under threat.’ 141 UNESCO and IUCN, Reactive Monitoring Mission to Great Barrier Reef (Australia) 6th to 14th March 2012 (UNESCO, 2012) < whc.unesco.org/document/117104> 142 Ibid., 6-9 143 UNESCO and IUCN, above n 139, 98. 144 Ibid. 145 See World Heritage Committee Decision 36 COM 7B.8 (June, 2012, Russia)
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(Environmental) Assessment was undertaken by both the Australian and Queensland
Governments pursuant to part 10 of the Environment Protection and Biodiversity
Conservation Act 1999 (Cth) (EPBC Act). The Queensland Government completed the
terrestrial (coastal zone) part of the assessment, whilst the Australian Government’s Great
Barrier Reef Marine Park Authority (GBRMPA) completed the marine component. The
combined assessment was completed in 2014 and eventually led into a 25 year strategic plan
for the GBRWHA known as the Reef 2050 Long-Term Sustainability Plan. The years 2014
and 2015 represented a period of intense lobbying by the Queensland and Australian
Governments of the Committee members. The aim was to persuade the Committee that
Australia had done enough to keep the site off the In Danger List. The threat of the In Danger
List was eventually lifted when the World Heritage Committee met in Bonn, Germany in July
2015, the point at which this case study ends.
At the time of writing, it is important to note that the risks to the health of the GBRWHA
continue (particularly from climate change and fertiliser run-off from agricultural activities).
Accordingly, the Queensland and Australian Governments’ ability to implement the Long
Term Plan has been called into question.146 The case study in this thesis, however, focuses on
the point in time in which the Australian Government was in breach of the Convention by
failing to comply (in 2010) with paragraph 172 up until the point in time in which the
Committee lifted the threat of an In Danger Listing (in 2015).
A chronology of events is provided in the table on the following page. Though the study is
confined to 2010-2015, the chronology also includes some of the historical information
relating to protection of the site and other parts of Australia’s World Heritage history,
including, for instance, the establishment of the GBR Marine Park (in 1975), the inscription
of the Great Barrier Reef as World Heritage (in 1981), and the RMM to Kakadu in the late
1990s. Though these events took place many years before the study period in question, they
are considered appropriate to include as they provide background to the case study years and
help to give context to the interview data as it is presented throughout this thesis. To be clear,
146 Hamman, Evan (2016) Failed changes to Queensland’s vegetation clearing laws: Implications for climate change, the Great Barrier Reef and Australian environmental policy 31(8) Australian Environment Review 303-308
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therefore, the case study period in this thesis refers to the events of 2010-2015 and not the
events from 1967-2010 which occurred prior.
1.6.1 Chronology of Events
Date Event
1967 Queensland Government proposes to mine coral and oil drilling on GBR. Proposed mining of Ellison Reef (near Innisfail) by cane farmers for limestone. 147
1969 Over forty applications from companies for permits to explore GBR for oil 1970 Queensland Government says drilling near Mackay is ‘quite safe’1972 World Heritage Convention adopted by the General Conference of UNESCO 1974 Australia becomes a party to the World Heritage Convention
1975 GBR Marine Park Act 1975 (Cth) passed – establishes an independent authority (GBRMPA) and creates a Marine Park for the site.
1979 Intergovernmental Agreement (‘Emerald Agreement’) signed between Commonwealth and Queensland. Recognises cooperation is needed.
1981 GBR inscribed on World Heritage List for the first time.
1983 World Heritage Properties Conservation Act 1983 passed by Commonwealth Government. Seeks to protect negative impacts by State Governments on World Heritage Sites. Tasmanian Dams Case decided - confirms right of Commonwealth to legislate with respect to World Heritage areas.
1996 Release of Australian Government’s ‘Inquiry into Managing Australia’s World Heritage’
1998
Expert mission of IUCN, ICOMOS and UNESCO recommends Kakadu be placed on the List of World Heritage in Danger due to threats of mining. In June 1999, the World Heritage Committee rejects their advice (due to persistent lobbying from Australia) and decides to keep Kakadu off the List of World Heritage In Danger.
August 2009 UNESCO receive ‘reports’ concerning an LNG development of Curtis Island. CASE STUDY BEGINS HERE June 2010 Committee meets in Brazil. No mention of the state of conservation of the GBR.
June 2011
Committee meets in France. Notes with extreme concern the approval of LNG plant on Curtis Island. It urges Australia to undertake a comprehensive strategic assessment of the entire property, identifying planned future development that could impact the Outstanding Universal Value. The Committee states its regret that Australia did not inform it as per paragraph 172 of the Operational Guidelines.
March 2012 Reactive Monitoring Mission (RMM) is conducted by IUCN and UNESCO. Over a dozen recommendations are made including limiting the scale of development along the Queensland Coast.
June 2012
Committee meets in Russia and notes the findings of the March 2012 RMM. Committee notes ‘with extreme caution’ the ‘unprecedented scale of coastal development currently being proposed within and affecting the property’. Raises for first time the possibility of inscription of the GBRWHA on the In Danger List.
October 2012 UNESCO informed by NGOs about approval of port development at Abbot Point (on the Queensland Coast) in addition to developments at Great Keppel Island.
June 2013
Committee meets and welcomes progress made by Australia, but is concerned about on-going coastal development. The Committee urges Australia to strengthen its efforts in order to fully implement the RMM recommendations that have not yet or only partially been implemented. The threat of an In Danger Listing still remains.
December 2013 Australian Government approves dredging and disposal of material at Abbot Point
August 2014 Strategic Assessment for the GBRWHA (undertaken pursuant to the EPBC Act) is endorsed by the Australian Government and feeds into the development of the Long Term (35 year Plan) for
147 A thorough history of the early events of the Reef (1962-1975) is set out in Ford, P., (2011) Consilience: Saving the Great Barrier Reef 1962-1975 (Honours Thesis Submitted to University Sydney).
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the site (the Reef 2050 Plan).May 2015 Australian Government ban capital dredge spoil being dumped in GBRWHA.
July 2015 Committee meets and decides not to list GBRWHA In Danger subject to strict ongoing reporting. Welcomes the creation of the Reef 2050 Long Term Plan.
1.6.2 The use of Documentary Material
A wide range of documents, both primary and secondary, were sourced and analyzed as part
of the case study.148 Many documents explaining and describing state interactions with non-
state actors were availably publicly online and/or upon request from the relevant source.
Those documents included court judgments, government, NGO reports, published
correspondence between NGOs and state actors, legislation, draft legislation, policies, draft
policies, reading speeches, explanatory memoranda, media releases, news articles and
information on websites. In addition, the researcher spent time at libraries searching for
archival material relevant to Australia’s ratification and subsequent implementation of the
World Heritage Convention (not available online or through interlibrary loans). This included
spending time at GBRMPA’s library in Townsville and IUCN’s Environmental Law Centre
in Bonn, Germany reviewing early drafts and working documents of the Convention.149
Other key documents for the study were obtained through Australia’s Freedom of
Information (FOI) laws, including correspondence between the main statutory agency
responsible for managing the Reef, the Great Barrier Reef Marine Park Authority
(GBRMPA) as well as the Australian and Queensland Governments, IUCN and the World
Heritage Committee. Those documents explained the factual events between the period 2010
and 2015 (the boundaries of the case study).150 Other ‘primary’ documents showing the
148 Rossman and Rallis describe documents such as these as ‘archival data’ which are an example of ‘material culture.’ They write that qualitative researchers often ‘supplement’ their interviewing and observations with this type of material. See Rossman, G., and Rallis, S., Learning in the Field: An Introduction to Qualitative Research (Sage Publications, 1998), 145. 149 In effect, this research was seeking to understand the phenomenon of non-state actors across a particular time period 2010-2015. Nevertheless, it was important to understand the historical context of the Convention, and how it was intended to operate. As Vitalis writes, it is crucial to take this ‘archival turn’ at some point in social science research, preferably early on. See Vitalis, R., ‘The Past is another country’ in Perecman, E., and Curran, S., (eds) A Handbook for Social Science Field Research (Sage, 2006) 6. 150 The first FOI request was made to GBRMPA on 5 February 2016 for correspondence between GBRMPA and the UNESCO, the Committee and IUCN between the dates January 2010 and December 2015). A second FOI request was made to the Department of Environment and Energy (Commonwealth) on 19 February 2016. That request sought the release of all correspondence on the management of the GBRWHA between UNESCO (on behalf of the World Heritage Centre and/or the secretariat to the World Heritage Committee in Paris, France) and the Commonwealth Environment Department and/or Minister between the time period 30 June 2011 and 31st December 2015.
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relationships between state and non-state actors were obtained freely online through existing
FOI ‘disclosure logs’, which represent information previously released to other applicants
under the FOI process and now freely available online.151 The FOI material also helped in the
development of the questions for the semi-structured interviews.
1.6.3 The use of Semi-Structured Interviews
The other major source of data for the case study was generated from semi-structured
interviews with NGOs, IUCN and Australian and Queensland government agencies.
Interviews were semi-structured in that they were based loosely on pre-prepared questions
and themes and lasted for the better part of an hour (and in many cases well over).152
Following appropriate ethical clearance,153 interviewees were asked about their experience
and/or the role of their organization in GBRWHA governance, their understanding of the
other stakeholders in Reef governance, their knowledge of World Heritage Convention
processes, their interaction and collaboration with other actors, including international actors
like IUCN, the World Heritage Centre and the World Heritage Committee.
Semi-structured interviews are only partly-structured in advance, allowing the researcher to
test and explore emerging issues in greater depth.154 The benefit of adopting semi-structured
interviews in this study was that it allowed an appropriate balance for the discussion between
formal structure and openness.155 In particular, it allowed the researcher to ‘prompt’ the
interviewee down further lines of questioning to ensure that a ‘roughly equivalent coverage’
151 Several relevant documents were obtained through the Department of Foreign Affairs and Trade’s (DFAT’s) disclosure log which holds previously released documents: <http://dfat.gov.au/about-us/corporate/freedom-of-information/pages/foi-disclosure-log.aspx> 152 A definition of semi-structured is provided as follows: A form of interview which is ‘organised around a set of predetermined open-ended questions, with other questions emerging from the dialogue between interviewer and interviewee/s. See DiCicco-Bloom, B., and Crabtree, B., (2006), ‘The qualitative research interview’ 40 Medical Education 314. 153 Good qualitative studies consider the ethics of data collection. See Creswell and Poth, above n 113, 48. In this project, ‘low risk research’ ethics clearance was obtained for semi-structured interviews from QUT’s University Human Research Ethics Committee in July 2015. Considerations in the application included identifying the risks to participants in accordance with Australia’s National Statement on Ethical Conduct in Human Research (2007) (Updated May 2015). 154 Semi-structured interviews can be distinguished from other forms of interviews such as ‘unstructured,’ ‘in-depth’ or ‘open ended interviews’ though such distinctions seem largely immaterial for the purposes of this research project. As DiCicco-Bloom and Crabtree remark: ‘[the] differentiation is [in fact] artificial and combines strategies that historically have emerged from very different disciplines and traditions.’ See DiCicco-Bloom and Crabtree, above n 149. 155 Gillham, B., Research Interviewing, the Range of Techniques (Open University Press, 2005), 79.
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could be had across all interview participants.156 As the research question was concerned with
the role and influence of non-state actors under the World Heritage Convention with a focus
on the GBRWHA, the capacity to further prompt participants was highly advantageous to
uncover the rich and complex data needed to consider the salient issues in greater depth.157
1.6.4 Selecting the Interview Participants
First and foremost, the participants in the study needed to help the researcher make sense of
the events between 2010 and 2015. Environmental NGOs who had been active in the media
and World Heritage deliberations were an obvious choice to include. In order to give depth
and context to ‘civil society’ responses (and to avoid bias), interviews were also sought with
the main governmental (i.e. state) actors involved in GBRWHA conservation. These
included: the Queensland Government; the Australian Government (Department of
Environment and Energy); and the Great Barrier Reef Marine Park Authority (GBRMPA). At
an international level, the institutions responsible for administering the Convention were also
approached, including IUCN, and the World Heritage Centre. 158
To identify the participants for the interviews, a purposive sampling approach was adopted,
to enable the researcher ‘to enhance understandings of selected individuals or groups'
experience’159 by specifically seeking out relevant people and organizations based on the
researcher’s own understanding and experience of the issues. For instance, as the study
progressed it was found that ‘certain categories of individuals’ had ‘a unique, different or
156 Ibid. 157 For example, in the study, a leading question often began with: what role do you see NGOs playing in the World Heritage Convention? Followed by, ‘that’s interesting, were all NGOs acting that way, or just a few? Why do you think that is? Thus an added benefit in the search for meaning is that it by using prompts throughout the discussion (e.g. what effect did that have on the organization? And why did you approach it that way?). In this way the interviewer was able to, with knowledge of his/her past interviews and other data, guide the participant towards topics or themes that are already emerging from the data and which will likely give greater clarity to the meaning. This also helped to more clearly and quickly identify the point of saturation for the study, that is, the point at which the interview participants are no longer contributing new knowledge to the research. 158 The reason for the wide selection of interview participants was essentially due to ‘representativeness.’ As Alvesson remarks: ‘it is important to have breadth and variation among interviewees so that they allow the covering of the social category one aims to address. A holistic selection of voices of the group being studied is vital.’ See Alvesson, M., Interpreting Interviews (Sage, 2011), 49-50. Of all the participants invited to take part in this study, only UNESCO’s World Heritage Centre declined to be interviewed instead preferring to rely on the published decisions and information on the UNESCO website. 159 Devers, K. and Frankel, R. (2000) ‘Study design in qualitative research: Sampling and data collection strategies.’ 13(2) Education for health 263.
41
important perspective on the phenomenon’160 which could not be identified by looking at the
documentary evidence alone. Snowballing was also adopted to identify some participants to
be interviewed. Snowballing is the process ‘of identifying respondents who are then used to
refer researchers on to other respondents.’ 161
In compliance with the research ethics conditions under which this research was conducted,
the identity if interviewees has been removed. Some were afforded anonymity (in the most
part, their identity was not relevant to the research question) whilst others agreed to the name
of their organization to be attributed, though with all other identifying features removed.
Those who did agree to have their organization identified (Governments, the IUCN and
WWF) were requested to do so to help the data appear more clearly about ‘who did what and
how.’ 162
There is no hard and fast rule for the numbers of interview participants in qualitative studies,
though guides are given in empirical research as ‘at least 6’ or somewhere between ‘5 and
25.’163 The final numbers of participants in this study were determined by saturation; that is,
the point at which interview participants were giving substantially the same answers and no
new knowledge was being generated.164 Though the point of saturation has been criticized by
some, in this research it proved a valuable benchmark given the number of potential
interviewees in the project was quite small (possibly only 15-20 relevant institutions), and the
questions to be asked of them rather limited, as opposed to asking: ‘what is the role for NGOs
more generally in international law?165
The table below summarizes the interviews that took place for the study.
160 Robinson, O., (2014) Sampling in Interview-Based Qualitative Research: A Theoretical and Practical Guide, 11(1) Qualitative Research in Psychology 25, 32. 161 See Atkinson R., and Flint J., (2001) ‘Accessing hidden and hard-to-reach populations: Snowball research strategies.’ 33 Social Research Update 1. 162 An NGO like WWF, for instance, emerged as playing such a crucial and integral role in the (regulatory) process of World Heritage between 2010 and 2015 (see Chapter 6). Being able to identify who they were allowed the insights about non-state actor regulation to be more specific and valuable. 163 Mason, M., (2010) Sample Size and Saturation in PhD Studies Using Qualitative Interviews.’ 11(3) Qualitative Social Research. 164 A helpful way of considering saturation is: ‘[A number which is] large enough to assure that most or all of the perceptions that might be important are uncovered, but at the same time [that the data is] too large data [and] becomes repetitive [or] superfluous.’ See Mason, ibid. 165 See Green, J., and Thorogood, N., Qualitative methods for health research (Sage, 2009).
42
1.6.5 Transcribing and Coding the Interview Data
The interview recordings were transcribed solely by the researcher. Transcribing interviews
can be a slow and painstaking process, but, it is also amongst ‘the most least appreciated
aspects of interview research’.166 Choosing to transcribe the recordings himself, the
researcher allowed himself time for the data to ‘sink in,’ to reflect on it, and to new ponder
lines of enquiry.167 Likewise, the interview data was coded solely by the researcher. Coding
is a way of ‘indexing or categorizing the text in order to establish a framework of thematic
ideas about it.’168 It is ‘not a precise science’ but ‘primarily an interpretive act.’169 This thesis
adopted what might best be described as ‘analytical coding’ which involved ‘thinking up’
from the data towards the abstract and thereby continually trying to generate new insights.170
166 Soss., J ‘Talking our way to meaningful explanations: A practice centred view of interviewing for interpretative research.’ In Yanow, D., and Schwartz-Shea, P., (eds) Interpretation and Method: Empirical Research Methods and the Interpretive Turn (Taylor Francis, 2014), 170. 167 In short, transcription is a period where ‘fruitful insights and conjectures’ can take shape.’ See Soss, Ibid. 168 Gibbs, G., Analysing Qualitative Data (Sage, 2007), 38. 169 Saldana, J., Coding Manual for Qualitative Researchers (Sage, 2009), 4. 170 See Richards, L., Handling Qualitative Data: A Practical Guide (Sage, 2005), 113.
43
In so doing, the researcher thought more deeply about what the data revealed about not only
World Heritage, but global environmental governance and the role of non-state actors.171
Whilst there is the option of either ‘manual coding’ or ‘electronic coding’ or both,172 the
researcher in this project undertook the coding manually and not with the assistance of any
software.173 Once the interviews were transcribed various parts of the interviews were cross
referenced with a collection of folders on the research containing literature and other
information labelled ‘World Heritage’; ‘Regulatory activities’; the ‘Great Barrier Reef’; the
‘IUCN’; ‘NGOs’ and so on. Several different colors of highlighters were used to categorize
the information. Several codes (letters A-F) were then written in the margins. As time passed
and more data became available, subcategories were developed and some codes were altered
or deleted.174
1.6.6 Reasoning from the Data
An inductive model of reasoning was adopted by first undertaking the research, followed by
an analysis of relevant themes, and finally exploring whether that data resonated with or
challenged existing theoretical models (such as enrolment and regulatory space). Inductive
reasoning emphasizes the movement from the ‘particular to the general’ and from a set of
specific observations towards ‘the discovery of a pattern that represents some degree of
order.’175 This approach to reasoning aligned clearly with the constructionist-interpretivist
stance that the researcher adopted throughout the study (see above).
To be more specific, an inductive grounded theory process was used in this research. First to
build up an explanation of the material, and then to develop theory by drawing deductively on
171 As Saldana remarks: one of the coder's primary goals is to find these repetitive patterns of action and consistencies in human affairs as documenting the data. See Saldana, above n 166, 5. 172 Saldana, Ibid., 28. 173 The researcher felt comfortable working off the hard copy transcripts and FOI material (and other printed material news articles etc.) which often were produced in Portable Document Format (PDF). In practice, this worked by reading through the material and underlining sentences or paragraphs that were of relevance to the research question (and sub-questions) highlighted above. The other reason for manual coding was the perceived threat that electronic coding could possible delay the project, or focus only on ‘topic coding’ (and not analysis). See Richards, above n 167, 119. 174 This process, in effect, followed Richards approach of ‘coding on’ which allowed the researcher to reconsider or extend coding as the data was collected. See Richards, above n 167. This was important, as Saldana writes, because it is rare for a researcher to get coding right the first time. See Saldana, above n 166, 10. 175 Babbie, above n 111, 23.
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the relevant literature.176 This approach allowed for the data initially to ‘speak for itself’
whilst at the same time giving the researcher the opportunity to link the empirical findings
deductively with established (and emerging) theories.
The main theoretical contributions of this thesis are set out in chapter 7, including: (1) the
‘scaling up’ of enrolment theory from the domestic to the international and; (2) the expansion
of compliance pull theory to explain the entire suite of actors and rules within the World
Heritage framework.
1.7 OUTLINE OF CHAPTERS AND THESIS STRUCTURE
The overall argument in this thesis is that non-state actors can (and do) contribute to
compliance in World Heritage, including through the practices of regulation. The argument is
drawn out chapter by chapter and synthesized in the final conclusion. Chapter 2, for instance,
shows how the convention operates, and the place of World Heritage within the broader
theoretical discourses of heritage. Importantly, chapter 2 also introduces the theory of
‘compliance pull,’ first enunciated by Thomas Franck in the late 1980s,177 and later applied to
the World Heritage Convention framework by Goodwin in 2009.178 The theory of compliance
pull proves helpful in making sense of the empirical data in this project and it is used at
various points throughout the thesis to build an argument about the contribution of non-state
actors to promoting and supporting compliance.
Chapter 3 discusses Australia’s historical (and special) relationship with World Heritage, and
argues that it is one of the major factors behind the compliance pull phenomenon. The
chapter shows that Australia has an impressive reputation for managing World Heritage,
largely because it matters to Australia. However, as this thesis shows, Australia’s reputation
allowed the system to work strongly against them. As a senior official from the Australian
Government Department of Environment and Energy revealed, it meant Australia was held to
a higher standard:
176 Grounded theory was first promulgated in the 1950s by Glaser and Stauss and suggests, amongst other things, that: (1) the study of humans can and should be ‘scientific’ and (2) grounded theorists should seek to produce theoretical observations that are ‘testable’ and ‘verifiable.’ See Travers, M., Qualitative Research Through Case Studies (Sage, 2002), 42. 177 See Franck, above n 101. 178 See Goodwin, above n 100.
45
The reality is, when you are a leader in anything you are often held to account and tested and
expected to always perform to the highest standards. That means you are continuously
scrutinized, and there are times where that feels like being held to account to a higher
standard than what other countries might be. That might be the reality, but that’s just part of
the burden of being a leader.179
Chapter 4 introduces the second major factor (in addition to Australia’s reputation for
excellence) which allowed the phenomenon of compliance pull to operate; the Great Barrier
Reef. The Reef is one of the world’s truly remarkable ecosystems and one of the World
Heritage List’s most iconic natural sites. Chapter 4 describes its iconic place in Australia, and
across the world, and details the main threats the site faces from climate change, fertilizer
run-off and overdevelopment. The complex and pluralistic arrangements for its protection
and use are also discussed in this chapter, including identifying the various state, non-state
and ‘sub-state’ (or sub-national) actors that have an interest in the site.
Chapter 5 explores the key role of IUCN in World Heritage regulation, with a focus on their
monitoring and enforcement activities throughout the GBRWHA study. Drawing on Julia
Black’s theory of enrolment,180 chapter 5 reveals how IUCN is a unique Hybrid International
Organisation (of government and non-government interests) with considerable influence in
global conservation issues, including World Heritage. Though its actual power has likely
been diminished in recent years (given the increasing politicisation of the Committee),
IUCN’s technical expertise and its scientific credibility has afforded it a special source of
legitimacy within the regulatory space of the Reef that no other institution possessed.
Chapter 6 of this thesis focusses on the role of NGOs and their contribution to compliance
pull. It shows how NGOs took either an ‘inside’ or ‘outside’ track to help the institutional
bodies secure compliance from Australia. The inside track was used by WWF to help
regulate Australia’s response to the Committee, whereas the outside track was used by other
NGOs to lobby and exert pressure externally. Whereas WWF might be described as a
‘(co)regulator’, other NGOs might be best described as ‘agitators.’ The wording of regulator
and agitator is used in chapter 6 to distinguish between NGOs involved in the regulatory
179 Interview #12 180 Black, J., (2003) 'Enrolling Actors in Regulatory Processes: Examples from UK Financial Services Regulation', Public Law 62.
46
practices of monitoring and enforcement and those involved, more generally, in campaigning
for World Heritage protection, but with no real interest in the regulatory processes of the
system.181
Finally, chapter 7 synthesises the main argument made in this thesis: that non-state actors can
and do play important roles in securing compliance from states. This final chapter also
presents the main contributions to the literature including expanding upon the theory of
compliance pull and advancing the idea that non-state actors can be enrolled (or enrol
themselves) in World Heritage. These findings have implications for how the World Heritage
regime operates and, indeed, how it might work better in the future.
181 In terms of the final contributions of this thesis, WWF’s role over the study period was by far the most interesting. Over a period of three years (2012-2015) it developed working relationships with the Committee members, IUCN and UNESCO’s World Heritage Centre. It researched and released its own ‘scorecards’ and attended briefing sessions with the Committee delegates ahead of time to audit Australia’s position.
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Heritage and the World Heritage
Convention
This chapter gives background and context for the operation of the World Heritage
Convention linking it to broader heritage, legal and international relations literature. The
chapter also covers the main provisions, institutions and principles of the Convention,
including highlighting the erga omnes nature of World Heritage obligations. Importantly, this
chapter also introduces the theory of compliance pull which helps in later chapters of this
thesis to explain how and why Australia responded to the demands of the World Heritage
Committee in the way that it did.
2.1 INTRODUCTION
In a little over 40 years, the World Heritage Convention has become one of the most widely-
ratified instruments of international environmental law. Since entering into force in
December 1975, it has amassed 192 signatories and overseen the listing over one thousand
sites about a quarter of which for their natural values.1 The World Heritage Convention
operates by creating a framework for the nomination, listing and protection of properties with
‘Outstanding Universal Value’ (OUV). Prospective sites are nominated to the World Heritage
List (the List) for either their cultural or natural attributes (or both).2 Following a World
1 The Convention distinguishes between natural sites (e.g. the Great Barrier Reef), cultural sites (e.g. the Sydney Opera House) and mixed sites which combine both cultural and natural elements (e.g. Kakadu and the Tasmanian Wilderness). The distinction is considered to be artificial. See the discussion on nature and culture later on in this chapter. There is also an additional ‘category’ known as cultural landscapes, which are cultural sites which represent the ‘combined works of nature and of man’ as stipulated in Article 1 of the Convention. As Paragraph 47 of the Operational Guidelines makes clear: Cultural landscapes are ‘illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.’ 2 Generally, sites are included on a ‘Tentative List of World Heritage’, and thereafter, may progress to full inclusion as World Heritage. A nomination cannot be considered unless it has been included on the tentative list (see Operational Guidelines, paragraph 63). Some sites, however, languish on the tentative list for many years, and indeed, may never be put forward for formal nomination.
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Heritage listing, measures are provided for access to funding and scientific expertise to assist
States in managing their properties.
In terms of empirical and academic investigation, there are two major aspects of the
Convention worthy of further attention. The first is the nomination process for proposed
World Heritage sites. During that process, properties are put forward by the state where the
site is located, and, in the case of natural sites (like the Great Barrier Reef) are evaluated by
an expert scientific body, the International Union for the Conservation of Nature (IUCN)
before being decided upon by the twenty-one member World Heritage Committee (the
Committee).3 The second major aspect of the Convention, however, and the one which this
thesis is concerned, is the ‘post-listing’ work of the Convention in ensuring states protect and
manage their sites appropriately. The literature on World Heritage refers to this as
‘conservation’, ‘monitoring’, ‘compliance’ or ‘management.’4 For example, in its formal
correspondence with State Parties, UNESCO’s World Heritage Centre uses the wording of
‘implementation.’
Though the literature acknowledges distinct differences between the wording of compliance
and implementation,5 both aspects of the Convention are fascinating to explore, not the least
because they are understudied in protected areas law (and thus poorly understood from an
academic point of view) but also because they raise a series of more practical questions
including:
o What are the procedures and strengths of the current protections in place for a
World Heritage property after it has been listed?
o How (and why) do states actually go about meeting their obligations under the
Convention framework? And;
o What is the role for other actors, outside of the Convention’s bodies, in
ensuring states comply with the Convention and its goals?
3 Cultural sites are evaluated by IUCN’s sister organisation, the International Council on Monuments and Sites (ICOMOS). Mixed sites which might contain both cultural and natural values are evaluated by both ICOMOS and IUCN. 4 Conservation is commonly used in World Heritage documentation, though often not defined. See the comments in Goodwin, E., (2009) ‘The World Heritage Convention, the environment, and compliance’ 20(2) Colorado Journal of International Environmental Law and Policy 157193 onwards. 5 See the discussion in this chapter below at 2.4.1.
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In order to address these questions, which this thesis seeks to achieve, we must first
appreciate the broader historical and theoretical context in which World Heritage exists. This
includes having an understanding of relevant discourses of heritage from the literature. In this
chapter, therefore, the phenomenon of heritage is canvassed, including pointing out the
(rather artificial) distinction between the ‘cultural’ and the ‘natural.’ The chapter also gives
background to how the World Heritage Convention operates including a summary of the
main decision-makers which is useful for understanding the case study in later chapters.
Comprehensive and detailed explanations of the operation of the World Heritage Convention
have been provided elsewhere and there is no need to repeat them here.6 What is considered
necessary, however, is to highlight the erga omnes nature of World Heritage obligations and
to begin to theorise more broadly about how the Convention seeks to ‘pull compliance’ from
its states.
2.2 EMERGING HERITAGE DISCOURSES
2.2.1 Identifying Heritage
What is heritage? Who owns and determines heritage? Can cultural and natural heritage
coexist? And what do we mean when we talk about ‘World Heritage’? These and others are
complex questions that scholars, scientists, policy and law makers have struggled to agree
upon. An extensive examination of emerging heritage discourses is outside the bounds of this
thesis,7 but nevertheless, some discussion is useful to understand how and why we come to be
talking about heritage and the special (but more limited) notion of natural World Heritage as
it appears under the Convention framework.
One of the first things to note is that heritage has a far broader meaning than just World
Heritage. There are many areas, sites, objects and practices which are not labelled as World
Heritage List, but which nevertheless form part of the rich and varied cultural and natural 6 See for instance: Hølleland, H (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo); Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008); and Webb, T (2000) ‘The meanings of World Heritage: a study of environmentalists and World Heritage managers with respect to the Great Barrier Reef World Heritage Area’ (PhD Thesis, James Cook University). 7 Comprehensive discussion has been provided elsewhere. See, for example: Boer, B., and Gruber, S., ‘Heritage Discourses’ in Rubenstein, K., and Jessup, B., (eds), Environmental Discourses in International and Public Law (Cambridge University Press, 2012). See also Smith, L, Uses of Heritage, (Routledge, 2006)
50
fabric of human and non-human existence. Accordingly, World Heritage is but one
categorisation of heritage and certainly doesn’t explain the full gamut of significant places
and things that humans value in the world.8
So, then, what do we mean by the term heritage? Unsurprisingly, most scholars find it
difficult to define.9 Harrison, for example, talks about ‘physical objects’ or ‘places of
heritage’, but also notes that there are ‘various practices of heritage’ that ought not to be
ignored.10 ‘Practices of heritage’, he says, are ‘customs and habits’ that help to ‘inform who
we are as collectives, and help to create our collective social memory.’11 On the other hand,
Boer and Gruber point out that heritage is a ‘fluid concept’ and is ‘continuously shaped by
social, political and ideological developments at international and national levels.’12
What we think of as heritage also reveals a certain way of looking at the world. Lixinski
notes that the concept of heritage can be traced to ‘a Euro-American way of imagining the
relationship between the past and the present.’13 Certainly, the notion of World Heritage, as
noted below, reflects a very Euro-Centric way of looking at human existence and our
presence on the earth. At the core of this conception, it seems, is the anthropocentric notion
that heritage has some ‘value’, ‘significance’ or ‘worth’ to humanity. Otherwise, it is
suggested, why would we be interested in its protection?
The weight of the literature on heritage suggests there is a distinction (though there perhaps
ought not to be) between ‘cultural’ and ‘natural’ heritage (the former a product of
humankind, the latter of ‘Mother Nature’). A further distinction seems to be drawn between
‘tangible’ and ‘intangible’ heritage, that is, things that we can touch, and those that we cant.14
Natural heritage, with which this thesis is concerned, is an amorphous term. It is often
thought about in ‘terms of ‘landscapes and ecological systems’, but it can also include
features such as ‘plants, animals, natural landscapes and landforms, oceans and water 8 We might also suggest, therefore, that World Heritage governance is but one form of Heritage governance. See the discussion on governance and regulation in chapter 1 of this thesis. 9 See Boer, B and Gruber, S above n 7. 10 Harrison, R., Understanding the Politics of Heritage (Manchester University Press, 2009), 9. 11 Ibid. 12 Boer, B and Gruber, S, above n 7, 375. 13 Lixinski, L., (2013) ‘International Cultural Heritage Regimes, International Law and the Politics of Expertise’ 20(4) International Journal of Cultural Property 407, 410. 14 Boer, B and Gruber, S, above n 7, 376.
51
bodies.’15 Perhaps Godden puts it most succinctly by suggesting it ‘captures the view that
there is a natural environment, selected aspects of which are to be preserved into the future.’16
By a similar token, cultural heritage is a contested notion. Blake notes that there is no
generally agreed concept of ‘cultural heritage, cultural property or cultural heritage of
[human]kind.’17 In fact, often these terms are used interchangeably, which can be problematic
in and of itself.18 To further complicate things, the notion of culture is a contested one,19 and
any definition which attempts to construe or define cultural heritage must of course take into
account the difficult notion of culture.20
2.2.2 Construction and Ownership of Heritage
In emerging heritage discourses, the construction and ownership of heritage (however it is
defined) has been subject to attack. Whilst there are differences in discourse approaches,21
some scholars, like Smith, criticise the evolution of what is called an ‘Authorized Heritage
Discourse (AHD),’ particularly in the context of cultural heritage.22 For Smith, AHD
represents:
A professional discourse that privileges expert values and knowledge about the past
and its material manifestations, and dominates and regulates professional heritage
practices.23
15 See Harrison above n 10, 13. 16 Godden, L., (1998) ‘Preserving Natural Heritage: Nature as Other’ 22(3) Melbourne University Law Review 719, 720. 17 Blake, J. (2000) ‘On Defining the Cultural Heritage’, 49(1) International and Comparative Law Quarterly, 61, 62-63. 18 See Van der Auwera, S, (2013) ‘International Law and the Protection of Cultural Property in the Event of Armed Conflict: Actual Problems and Challenges’ 43(4) The Journal Of Arts Management, Law, And Society. 19 See Jahoda, G, (2012) ‘Critical reflections on some recent definitions of “culture”’ 18(3) , Culture & Psychology, 289. 20 Blake, J., above n 17, 67-68. 21 See the differences between Chinese discourses and others. As Yan writes: scholars need to note that hegemonic inequality does not only arise from relations between the West and non-West. Rather, it has been anchored within non-Western nations. [For example, as] we see from the Fujian Tulou case, it is the Chinese experts and authorities, not the West, who impose the harmony discourse on the local community.’ Yan, H., (2015) ‘World Heritage as discourse: knowledge, discipline and dissonance in Fujian Tulou sites’ 21(1) International Journal of Heritage Studies 65, 78. 22 Smith above n 7. 23 Ibid., 4.
52
In Smith’s view, the question of how we identify and value heritage is inextricably linked to
the interests of those seeking to protect it. In other words, our current approaches to heritage
reveal a bias in the criteria or factors we rely upon for what we consider to be heritage, and it
follows, the degree of value that we place upon certain objects, monuments and natural
formations. But to extend Smith’s thinking further and apply it to this thesis, AHD appears
even broader than she suggests, and seems to have as much relevance to the natural world
(and World Heritage) as it does to the cultural realm. That is to say, the ‘privileges’ which
Smith talks about also encompass the expert values and knowledge around nature, including
the concept of natural World Heritage under the Convention framework. Accordingly,
Smith’s idea of AHD should thus not be restricted to just ‘the past’ or to ‘material
manifestations.’ It also has particular relevance to sites like the Great Barrier Reef World
Heritage Area (GBRWHA), the subject of the case study in this thesis.
The AHD that concerns natural World Heritage and places like the GBRWHA reflects a set
of privileges, influences and expertise that is predominantly Western and scientific. The
GBRWHA, for example, is listed only for its natural values, though as pointed out in the next
chapter, it also has considerable cultural value for Indigenous and Non-Indigenous
Australians. More broadly, the World Heritage List, as a whole, has traditionally been biased
in favour of European sites and values. Similarly, the administrative law processes of the
Convention itself aligns closely with Western, legal, (and democratic) values.24 We perhaps
ought not to be surprised, therefore, to discover that World Heritage is an approach to
governance that has historically ignored Indigenous voices on conservation questions,
including for cultural sites.25 Indeed, the way in which the World Heritage Committee
refused to establish an expert council of Indigenous Peoples in the past is testament to this
bias.26
24 See Battini., S, (2011) ‘The procedural side of legal globalization: The case of the World Heritage Convention’ 9(2), International Journal of Constitutional Law, 340. 25 To their credit, the advisory bodies under the Convention - IUCN, ICOMOS and the International Centre for the Study of Preservation and Restoration of Cultural Property (ICCROM) - have recognised the importance of Indigenous communities and rights-based approaches to World Heritage management. See for example their combined work since about 2011 on ‘Our Common Dignity.’ For an academic discussion of this issue, refer to Ekern, S., Logan, W., Sauge, B., and Sinding-Larsen, A., (2012), ‘Human rights and World Heritage: preserving our common dignity through rights-based approaches to site management’ 18(3) International Journal of Heritage Studies 213. 26 See, for example, Meskell, L (2013) ‘UNESCO and the Fate of the World Heritage Indigenous Peoples Council of Experts (WHIPCOE)’ 20 International Journal of Cultural Property, 155.
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Overall, we can conclude that the construction and protection of heritage, including natural
World Heritage, reveals a disconnect between the expert work (of anthropologists,
conservationists, scholars and policy-makers) and the true ‘heritage holders’ in society. Or, as
Lixinski succinctly puts it:
[Heritage] experts often fail to represent communities and other heritage holders in
the context of heritage law.27
2.2.3 Evolving Conceptions and Protections for Heritage
Conceptions of heritage have changed a great deal over the last half a century. Whereas once
heritage may have had only domestic or regional significance, as Francioni points out,
heritage is now a global phenomenon which transcends ‘the narrow concept of [domestic]
cultural property.’28 Indeed, the creation and popularity of the World Heritage Convention
speaks to this point, so too does the development of other forms of heritage including
intangible forms of heritage, and, for example, the emerging notion of ‘soundscapes.’29
The effect of this evolution has been the development of several new instruments aimed at
conserving and protecting heritage in its various forms. In addition to World Heritage, for
instance, various other conceptions of ‘heritage’ have been identified, defined and adapted to
fit a variety of causes and governance systems. Some of the more well-known instruments
include:
o The 1954 Convention for the Protection of Cultural Property in the Event of
Armed Conflict (the 1954 Hague Convention);
o The Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property 1970 (the 1970
UNESCO Convention); 27 Lixinski, above n 13, 418. 28 Francioni and Lenzerini, above n 6, 4 29 See for example, Maffei, L., Brambilla, G., Di Gabriele, M., (2015) ‘Soundscape as Part of the Cultural Heritage’ in Kang J., Schulte-Fortkamp B., (eds) Soundscape and the Built Environment (Taylor and Francis, 2015).
54
o The 2001 Convention on the Protection of the Underwater Cultural Heritage
(the 2001 Underwater Cultural Heritage Convention);
o The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage
(the 2003 Intangible Cultural Heritage Convention) and
o The 2005 Convention on the Protection and promotion of the Diversity of
Cultural Expressions (the 2005 Cultural Expressions Convention).
The creation of the 2001, 2003, and 2005 Conventions certainly speaks to the expansion of
what we consider to be heritage in the world today. For instance, we now consider it to
include cultural expressions and intangible heritage as well. Somewhat problematically,
however, each of these instruments has a separate focus, uses different language (for instance
‘cultural property’ ‘cultural sites’ etc.30) and has widely varying levels of interest and
implementation from nation states. For example, there are only 56 states which are parties to
the 2001 Underwater Cultural Heritage Convention.31 On the other hand, the 1954 Hague
Convention, one of the first global attempts to protect cultural heritage in the time of
warfare,32 has 128 signatories, though few countries have implemented legislative responses
that deal specifically with its principles. By a similar token, the 1970 UNESCO Convention
(on the illicit import, export and transfer of cultural property) has amassed 131 signatories,
but in the regions where it is arguably most important, such as the Asia-Pacific, domestic
implementation is limited.33 As Boer and others point out, Australia seems to be one of the
only countries in the region to have enacted legislation to implement it.34
The value of heritage is also offered indirect protection under other treaties such as the
procedural rights afforded to European citizens under the Aarhus Convention,35 though with
varying degrees of success. Problems have arisen, for instance, around the ‘sufficient interest’
30 See Van der Auwera, above n 18. 31 Notable absentees include the United States, Russia, China, the United Kingdom and Japan. Australia is also not a party to the Convention. 32 Blake, J, International Cultural Heritage Law (Oxford University Press, 2015), 14. 33 Boer, B., Ramsay, R., and Rothwell, D., International Environmental Law in the Asia Pacific, (Kluwer Law International, 1998), 76. 34 Ibid. 35 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental issues, adopted on 25 June 1998 in the Danish city of Aarhus (Århus) at the Fourth Ministerial Conference as part of the "Environment for Europe" process. It entered into force on 30 October 2001.
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test required under Aarhus needed to challenge a State’s duties.36 Other instruments also
seem to be relevant. The United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), for example, seeks to protect heritage referring in the preamble to a ‘Common
Heritage of Humankind’,37 and provides an explicit recognition of protection of cultural
heritage in article 31:
Indigenous peoples have the right to maintain, control, protect and develop their
cultural heritage … [and] states shall take effective measures to recognize and
protect the exercise of these rights.38
More recently, heritage has also been aligned with the overarching paradigm of global
environmental governance - sustainable development - including being given specific
reference in the Sustainable Development Goals (SDGs). This recognition eclipses a long-
term ignorance of the link between heritage and the principles of sustainable development.
For instance, as UNESCO has commented;
Heritage was long absent from the mainstream sustainable development debate
despite its crucial importance to societies and the wide acknowledgment of its great
potential to contribute to social, economic and environmental goals. Based on a strong
appeal from national and local stakeholders, the 2030 Agenda adopted by the UN
General Assembly integrates, for the first time, the role of culture, through cultural
heritage and creativity, as an enabler of sustainable development across the
Sustainable Development Goals.39
36 Strecker, A., ‘The Human Dimension to Landscape Protection in International Law’ in Lenzerini F, and Borelli, S (eds) Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Martinus Nijhoff Publishers, 2012) 342-343. 37 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Recital 3. 38 Ibid., article 31. 39 World Heritage Centre ‘Sustainable Development’ <http://whc.unesco.org/en/sustainabledevelopment> Moreover, at a meeting of the General Assembly of the States Parties in 2015 (20th Session), A Policy Document for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention was formally adopted. UNESCO’s comments do, however, warrant some scrutiny. As Boer points out, there has in fact been an evolving relationship between the concept of sustainable development and heritage protections at the international level. See Boer, B., ‘Culture, Rights and the Post-2015 Development Agenda in Durbach, A. and Lixinski, L. (eds.) Heritage, Culture and Rights: Challenging Legal Discourses (Hart, 2017, forthcoming). For example, under the 2003 Convention for the Safeguarding of Intangible Cultural Heritage, Boer, at 4, points out that ‘sustainable development was not only made an explicit element of the definition of intangible heritage, but an essential element [as well].’ This indicates that heritage, as an emerging
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The point is that there is no shortage of legal or ‘quasi-legal’ instruments aimed either
directly or indirectly at protecting heritage, particularly cultural heritage, at the international
level. The growth in legal mechanisms has been supported by, or more to the point, driven
by, an expansion of what we believe has significance or ‘value’ in society. As Boer and
Gruber write:
[The change has resulted from] a marked expansion of what is considered valuable,
which in turn reflects a shift in the discourse over how people conceive of their
relationship to the natural and cultural environment in general and what components
of human surroundings ought be conserved.40
This has also meant, in some corners at least, that the distinction between traditional
conceptions of heritage (like cultural and natural, tangible and intangible) are increasingly
becoming illusory. For example, as one interview participant in the case study noted, many
Indigenous Australians do not see the GBRWHA as part of their natural heritage; but rather,
they see it as an integral part ‘of their culture.’41 Harrison has made a similar point about
Indigenous connections to the site:
For the Indigenous Australians whose traditional country encompasses the
[GBRWHA] and islands, the natural world is created and maintained by ‘cultural’
activities and ceremonies involving some aspects of intangible action such as song
and dance, and other more practical activities such as controlled burning of the
landscape and sustainable hunting and fishing practices. It would obviously be
extremely difficult to characterise these values of the natural landscapes to Indigenous
Australians using a system that divides ‘cultural’ and ‘natural’ heritage and sees the
values of natural landscapes as being primarily ecological.42
aspect of global environmental governance, was not as ‘absent’ from the sustainable development debate as UNESCO had suggested. 40 Boer, B., and Gruber, S., above n 7, 378 41 Interview # 6. 42 Harrison, R above n 10, 11.
57
In addition, coming to terms with what heritage is, and how it should be protected, has also
become distorted through its wide and varied use across domestic regimes. Australia’s
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), for
instance, refers to no less than five separate categories of heritage: ‘Commonwealth
Heritage’, ‘World Heritage’, ‘National Heritage’, ‘Indigenous Heritage’ and ‘Historic
Heritage’. Most States and Territories in Australia also have their own heritage legislation
which further categorises and complicates heritage governance.43 Under the Torres Strait
Islander Cultural Heritage Act 2003 (Qld) for instance, heritage is defined as:
A significant Torres Strait Islander area in Queensland; or a significant Torres Strait
Islander object; or evidence, of archaeological or historic significance, of Torres Strait
Islander occupation of an area of Queensland.44
The Queensland Heritage Act 1992 (Qld), on the other hand, doesn’t define heritage, but
defines ‘cultural heritage significance’ as:
[The] aesthetic, architectural, historical, scientific, social, or other significance [of a
place] to the present generation or past or future generations.45
Australia’s EPBC Act defines heritage in similar terms, but instead focuses on the word
‘value’. ‘Heritage value’ is defined as:
[T]he place's natural and cultural environment having aesthetic, historic, scientific or
social significance, or other significance, for current and future generations of
Australians.46
43 In Queensland, for instance (home to the GBRWHA) there is a Queensland Heritage Act 1992 (Qld) which protects non-Indigenous sites (e.g. colonial buildings) as well as an Aboriginal Cultural Heritage Act 2003 (Qld) and separate Torres Strait Islander Cultural Heritage Act 2003 (Qld) which seek to protect Indigenous heritage. These laws are in addition to the Indigenous customs and practices (related to land and waters) which can also be protected under Native Title legislation in Australia. See the Native Title Act 1994 (Cth). 44 Torres Strait Islander Cultural Heritage Act 2003 (Qld), s8. 45 Queensland Heritage Act 1992 (Qld), Definition of cultural heritage significance’ in the schedule to the Act. 46 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Dictionary definition of Heritage value’.
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The reliance on words like ‘significance’ and ‘value’ in the legislation likely reflects the
difficulties with which governments struggle to identify, define and protect heritage. This is
probably unsurprising given the contest in the academic and theoretical space about what
heritage is, particularly in terms of cultural heritage.
Where we end up, then, is that heritage is a multidimensional and dynamic construct. More to
the point, it must have some form of ‘value’ or ‘significance’ lest it be unworthy of our
attention and protection. Such categorisations inevitably require subjective judgments that
align closely with the values of those who make them (e.g. the policy-makers, the scientists
and the experts). It is thus that we return to an expanded notion of the AHD that Smith
proposed (above). In short, it is the experts that define and construct heritage (cultural and
natural, tangible and intangible). Accordingly, it is they who set the criteria and boundaries
for its identification, its conservation and its use. The idea of World Heritage is no different.
2.2.4 The Idea of World Heritage
Now that we have an understanding of what heritage might mean, or at least understand the
complexities surrounding the term, what then does it mean for something to be part of the
World’s Heritage? And what significance or ‘value’ does that have for those non-state actors
who seek to protect it?
As Webb concluded in his 1999 work, World Heritage seems more than just an expression of
OUV as required under the Convention. It is in fact a ‘complex map of organisational and
individual meanings.’47 It can be a recognition of the value or quality of place,48 a ‘status
symbol’ or ‘accolade’ for the State,49 a badge of honour,50 or indeed ‘just another layer’ in an
already complex and overcrowded regulatory space.51 Whether and which of these
conceptions applies are largely empirical questions which will vary for site to site. An iconic
47 Webb, T., (2000) ‘The meanings of World Heritage: a study of environmentalists and World Heritage managers with respect to the Great Barrier Reef World Heritage Area’ (PhD Thesis, James Cook University), 6. 48 Ibid., 210 49 Ibid. 50 Ibid., 212 51 Ibid., 216. The metaphor of ‘regulatory space’ is discussed and used in chapter 4 of this thesis.
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World Heritage property like the GBRWHA, for instance, might start off as a badge of
honour, but transition over time towards a sense of obligation.52
Whether the various actors involved think about places as World Heritage is of course
another matter altogether. The perceptions and usefulness of World Heritage, in other words,
is likely to vary considerably between the stakeholders. For example, whereas an
environmentalist or an NGO might see World Heritage as an obligation or duty for a State, a
government might see World Heritage as a badge or lucrative avenue for tourism. As Meskell
argues:
As the flagship charter for the organization, [World Heritage] remains the most
desirable and prestigious badge for nation-states to secure. I would argue that such
emblematic recognition… potentially accrues tangible, site-based investment,
partnerships, tourism revenues, and development that cannot be matched by
UNESCO’s other treaties.53
That said, the tourism benefits of a World Heritage Listing are by no means a settled debate,
and indeed they are likely to vary from site to site and from region to region. Whilst some
have suggested States might consider it a ‘cash cow for development,’54 there are various
factors that influence tourist decisions about where they visit including exchange rates, travel
logistics, accommodation options, safety and so on. A recent study by Poria and others, for
instance, found that there was only ‘moderate awareness of the [UNESCO] designation/logo
barely affecting [tourist] behaviours.’55
For other stakeholders, including those who participated in the GBRWHA study, World
Heritage may have no more significance than the rest of life on planet earth. Consider this
(rather philosophical) exchange with one NGO participant during the study:
52 Webb, above n 47, 204. 53 Meskell, L., (2013) ‘UNESCO and the Fate of the World Heritage Indigenous Peoples Council of Experts (WHIPCOE)’ 20 International Journal of Cultural Property 155, 157. 54 Winter, T., Post-Conflict Heritage, Postcolonial Tourism: Culture, Politics and Development at Angkor (Routledge, 2007), 32. 55 Poria, Y., Reichel, A., Cohen, R., (2011) ‘World Heritage Site-Is It an Effective Brand Name? A Case Study of a Religious Heritage Site’ 50(5) Journal of Travel Research, 482.
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Interviewer: This idea of the Reef as an ecosystem and part of the World
Heritage framework, is it significant that it's even given this
label of being ‘World Heritage’? Is it significant to you?
Participant: Well it is to me. Yes.
Interviewer: … Do you think of it as World Heritage when you look at it?
Or do you say well, that's an awesome reef and I would like to
go snorkelling?
Participant: Well I kind of do both. The butterfly in the backyard is a
miracle. The Great Barrier Reef is a miracle. To me it's all
special.
Interviewer: The butterfly might not be labelled World Heritage though…
Participant: No, to me what I am saying is that all of life is special. The
World Heritage thing is a human created construct to show
respect for something that's important to the whole planet, so
it matters.56
For the more practical and opportunistic NGOs, the notion of World Heritage may also
simply be a means to an end, or, in other words, a way of exerting greater influence over
domestic affairs and a claim to a higher authority. As one NGO participant in the study
commented:
Working in a [World Heritage Area] means that you have additional legal tools at
your disposal, and the potential international embarrassment of the World Heritage
Committee listing the Reef as In Danger.57
As it turned out in this thesis (and as is discussed later on), the ‘international embarrassment
factor’ proved to be a strong drawcard for NGOs advocating for stronger protection of the
GBRWHA. The fact that the GBRWHA was World Heritage listed seemed to give it a whole
other political context from which NGO’s could leverage influence. As one NGO participant
concluded:
56 Interview # 3 57 Emailed interview response to researcher (from NGO) dated 8 May 2016.
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When it becomes an international issue it increases the opportunities and I think that,
given the domestic political context we were operating in, it clearly works…The
process and oversight by the World Heritage Committee [was] incredibly useful for
our campaign…58
In the past, Webb reported similar responses from NGOs in his empirical work about the
meanings of World Heritage and the GBRWHA:
World Heritage was a useful tool whereby, you know, the development was actually
stopped but I don’t think that [the main issue of the development] was World
Heritage.59
That said, there are also those stakeholders who question the effectiveness of World Heritage
as a conservation tool at all. One NGO interview participant in the study, for instance,
expressed frustration with the continued fragmentation of environmental governance in
Australia:
Participant: The environment is a very interconnected thing which we are
a part of and the idea that somehow some authority or agency
over their can deal with the issue over there and what's going
on over on land can be dealt with by those people and by
politicians, as opposed to independent authorities is
ridiculous.
Interviewer: They are artificial boundaries?
Participant: Totally artificial boundaries. And that is really frustrating.
The World Heritage Area is line on a map.60
58 Interview # 2. 59 Webb, above n 47, 227. The reference to ‘tools’ is by and large consistent with this thesis findings and suggests many NGOs are constructing or building a case for better conservation of the Reef using World Heritage as an additional point of traction. 60 Interview # 4.
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In the end, whether World Heritage is a ‘line on a map’, a ‘badge of honour’, a ‘useful tool’
or symbolic of something more aspirational and transcendental, it is clear that it must be
significant to at least to some extent. Indeed, as becomes evident later in the thesis, one of the
main reasons why the Australian Government had the heightened response it did between
2010 and 2015 suggests that World Heritage had (and has) considerable value at the state
level. From a theoretical perspective, and in terms of making sense of these findings, this is
the ‘compliance pull’ that Thomas Franck talks about.61 The theory of compliance pull is
given further attention later in the chapter. For now, however, it is necessary to give a brief
description of how the World Heritage Convention operates.
2.3 THE WORLD HERITAGE CONVENTION
2.3.1 Background and Development
The World Heritage Convention was adopted on 16 November 1972 at the United Nations
Conference on the Environment and Development (UNCED) and came into force three years
later in December 1975. In the years preceding the UNCED, considerable international
concern had grown about depletion of natural resources around the world as well as the
destruction or damage to cultural property during World War II.62 The 1954 Convention for
the Protection of Cultural Property in the Event of Armed Conflict (referred to above) was
directly aimed at the destruction of cultural property, though the protections offered were
afforded only during times of war and, of course, did not cover natural sites like the
GBRWHA.
By the mid-1960s, IUCN had begun floating the idea a World Heritage ‘trust’ which sought
finances to protect and conserve natural sites of exceptional universality.63 In the cultural
space, UNESCO had proceeded with a draft convention protecting cultural sites and
monuments, whilst IUCN drafted its own version of the Convention, arguing that a World
61 Franck, T., Fairness in International Law and Institutions (Clarendon Press, 1995) 62 Several events had caused the international community great concern, particularly the construction of the Aswan High Dam in Egypt and the resultant risk to the great historical monuments of Nubia (including the Abu Simbel temples). See Lausche, B.J., Weaving a web of Environmental law (Schmidt, 2008). See also Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 15. 63 This idea was originally floated in 1966 at the general assembly in Lucerne. See Batisse and Bolla, ibid., 17. Three years later, it was raised again by IUCN at the General Assembly in New Delhi (1969). See Webb, above n 47, 70.
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Heritage List should contain only a ‘very limited number’ of sites.64 One of the earlier drafts
of IUCN, in October 1970, highlighted the need for ‘outstanding interest and values’ of sites
and that such values should be protected although the sites could serve as centres for public
visitation, outdoor recreation and scientific investigation.65
The early discussions of a treaty to protect both cultural and natural heritage thus began as ‘as
two quite separate forces’.66 As Batisse recalls, much of this was down to a:
certain incongruity that some found in the mingling of the works of man with the
imminent creations of the material universe.67
Batisse goes on to point out that the idea that nature could continue as ‘the property of man’
or ‘be under his domination’ is still contrary to today’s principles of ecology.68 Nevertheless,
in what has since become the hallmark of the Convention and the notion of World Heritage,
both cultural and natural sites were included.69 Mixed sites were also possible consisting of
both cultural and natural criteria (such as Uluru and Kakadu in Australia) and later the notion
of ‘cultural landscapes’ was added to the framework.70
2.3.2 The World Heritage Bodies
There are several key bodies or actors that play a role in the implementation of the World
Heritage Convention.71 The World Heritage Committee (the Committee) is the chief
decision-making body under the Convention. It is a rotating committee of 21 State Parties
which operates according to certain Rules of Procedure.72 There is also a Bureau of the
64 Batisse and Bolla, above n 62, 23. 65 Ibid., 39. 66 See Webb, above n 47, 66. 67 See Batisse and Bolla, above n 62, 35. 68 Ibid. 69 As Rodwell points out, the Convention was ‘conceived as highly selective’ and was ‘never intended to encompass everything worthy of protection. See Rodwell, D., (2012) ‘The UNESCO World Heritage Convention, 1972–2012: Reflections and Directions’ 3(1), The Historic Environment: Policy & Practice 66. 70 Cultural landscapes are defined in paragraph 47 of the Operational Guidelines to the Implementation of the World Heritage Convention (2016 edition) as ‘cultural properties and represent the "combined works of nature and of man" designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal. 71 Cameron and Rössler refer to these organisations as ‘the players.’ See Cameron, C., and Rössler, M., Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate 2013). Hølleland calls them the Convention’s ‘web of actors.’ See Hølleland, H (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), chapter 2. 72 Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Rules of
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Committee which consists of seven nations elected annually by the Committee and ‘which
coordinates the work of the Committee and fixes the dates, hours and order of business of
meetings.’73 The Committee has been described as an ‘executive authority’ which enjoys
devolved power over implementation from the Convention.74 We might also consider it to
have both a quasi-judicial and a law-making role as it can decide on compliance issues with
respect to World Heritage as well as develop or amend standards and rules for heritage
protection.75
The Committee has several functions under the Convention which are clearly set out in
paragraph 24 of the Operational Guidelines to the Implementation of the World Heritage
Convention (the Operational Guidelines). These include, but are not limited to: identifying
and deciding on which properties should be included on the World Heritage List; examining
the ongoing state of conservation of properties through Reactive Monitoring Missions
(RMMs)76 and Periodic Reporting;77 and deciding whether properties should be added to the
List of World Heritage In Danger.
The World Heritage Centre, established in 1992, is a part of UNESCO and is the official
secretariat of the Convention. The Centre has several specialised roles which are set out in
paragraph 28 of the Operational Guidelines. These include, but are not limited to, organising
meetings of the Committee; implementing the decisions of the Committee; organising the
periodic reporting process, and coordinating and taking part in RMMs. The Centre also
prepares the ‘draft decisions’ on sites like the GBRWHA for the Committee. The Centre also
has a key role in monitoring threats to World Heritage sites (such as mining and
development). It was the Centre in 2009, for instance, that discovered Australia’s failure to
Procedure of the World Heritage Committee, adopted by the General Conference of UNESCO at its seventeenth session on 16 November 1972 and most recently revised by the World Heritage Committee at its thirty-ninth session (Bonn 2015). 73 UNESCO, ‘The World Heritage Committee’ http://whc.unesco.org/en/committee accessed 28 March 2017. 74 Goodwin, E. J. (2009) ‘The World Heritage Convention, the environment, and compliance’, Colorado Journal of International Environmental Law and Policy, 20(2) 157, 157. 75 The term of Committee members is ordinarily six years but, ‘in order to ensure equitable representation and rotation’, States Parties can reduce their term to four years UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention Operational Guidelines (revised 8 July 2015), paragraph 21. 76 See UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention Operational Guidelines (revised 8 July 2015), Chapter IV. 77 Ibid., Chapter V.
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report the Curtis Island Development to the Committee.78 As an interview participant from
IUCN commented:
The World Heritage Centre [first] saw an announcement from Arrow [Energy] who
were one of the LNG plant developers, you know, a public announcement about LNG
plant proceeding on Curtis Island… there were 34 [approx.] developments that the
World Heritage Centre should have been notified about and it didn’t know about any
of them.79
The World Heritage Convention framework is also unique in that it specifically authorizes
the services of three non-state actors to act as ‘advisory bodies.’80 In the case of natural sites,
like the GBRWHA, IUCN plays a key role in evaluating nominations as well as monitoring
and enforcement. The other advisory bodies that advise on cultural sites include ICCROM
(the International Centre for the Study of the Preservation and Restoration of Cultural
Property) and ICOMOS (the International Council on Monuments and Sites). Apart from the
exchange of information and inter-agency collaboration on publications and methodologies, 81
ICOMOS and ICCROM play a negligible role in the oversight of natural World Heritage
sites.82 The decision-making structure of the Convention is summarised in the graphic below.
78 See the chronology of events in Chapter 1. 79 Interview # 9. 80 Thorsell, J. W. (2003) World Heritage Convention 1992-2002: Effectiveness and lessons for governance, paper prepared for Parks Canada Conference available online ¸ https://www.iucn.org/content/world-heritage-convention-effectiveness-1992-2002-and-lessons-governance> at 1. 81 See for instance: UNESCO, ICCROM, ICOMOS and IUCN, Preparing World Heritage Nominations: A World Heritage Resource Manual (2nd ed) (UNESCO, 2011). 82 The role and legitimacy of IUCN as a non-state actor involved in ‘regulation’ is explored in greater depth in chapter 5 of this thesis.
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Decision-making structure for natural World Heritage properties
2.3.3 The Operation of the Convention
The Convention essentially operates through the creation of a list that is reserved for sites of
OUV,83 and the establishment of a fund for their continued conservation. Prospective sites
must be put forward on a Tentative List before being nominated for inclusion on the World
Heritage List.84 The term OUV is a cornerstone of the Convention and is referred to in the
Operational Guidelines as properties, which are:
83 See Article 11.2 of the Convention. See also Chapter 2 of the Operational Guidelines. For a thorough commentary on the concept of OUV, see Titchen, S., (1995) ‘On the construction of outstanding universal value: UNESCO's World Heritage Convention and the identification and assessment of cultural places for inclusion in the World Heritage List.’ (PhD Thesis submitted to Australian National University). Regarding the OUV of the GBRWHA specifically, see Day, J., (2015) ‘Operationalising the Outstanding Universal Value of the Great Barrier Reef World Heritage Area: addressing some challenges raised by the World Heritage Committee’ in Figgis, P., Leverington, A., Mackay, R., Maclean, A., Valentine, P. (eds), Keeping the Outstanding Exceptional: The Future of World Heritage in Australia (Australian Committee for IUCN, 2012), 118-127. As Day points out: ‘The interest shown by the World Heritage Committee in the GBRWHA in recent times has increased the focus on many aspects of management applying to all Australian World Heritage properties, not the least being the application of OUV, what it actually means and how it might be more effectively applied.’ (at 127). 84 UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention Operational Guidelines (revised 8 July 2015), paragraph 63.
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so exceptional as to transcend national boundaries and to be of common importance
for present and future generations of all humanity.85
Following a formal nomination of a natural site, the Committee considers whether a property
has the requisite OUV on the advice of IUCN and the World Heritage Centre. A decision is
made based on whether the site meets one or more of ten specified criteria.86 In addition to
the criteria, the proposed site must also meet the requirements of ‘integrity and/or authenticity
as well as have an ‘adequate protection and management system to ensure its safeguarding.’87
To be more specific, those properties which are nominated under (OUV) criteria (i) to (vi)
must meet the conditions of authenticity88 and all nominated sites must satisfy the conditions
of integrity.89
The obligations of states under the Convention are built around the concept of a duty. Article
4 of the Convention stipulates that States have a duty to ensure the ‘identification, protection,
conservation, presentation and transmission to future generations’ of their sites. Moreover,
article 6 provides an additional duty on the international community ‘as a whole’ to co-
operate in the protection of heritage, whilst, at the same time, fully respecting the sovereignty
of States. In modern terms, we might equate these duties as something akin to ‘stewardship
[of sites],’ a concept which itself is highly ambivalent.90 In the case of the Convention, as
Meskell writes, duties are said to create a ‘shared commitment’ to preserve heritage for future
generations and the rest of the world.91
85 Ibid., paragraph 49. 86 Ibid., paragraph 77. 87 Ibid., paragraph 78. 88 Ibid., paragraph 79. Generally speaking, under paragraph 82 of the Operational Guidelines, properties may be understood to meet the conditions of authenticity if their cultural values (as recognized in the nomination criteria proposed) are ‘truthfully and credibly expressed through a variety of attributes including: form and design; materials and substance; use and function; traditions, techniques and management systems; location and setting; language, and other forms of intangible heritage; spirit and feeling; and other internal and external factors.’ 89 UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention Operational Guidelines (revised 8 July 2015), paragraph 87. According to paragraph 88 of the guidelines: ‘Integrity is a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes…and… ‘Examining the conditions of integrity requires assessing the extent to which the property: a) includes all elements necessary to express its Outstanding Universal Value; b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance; c) suffers from adverse effects of development and/or neglect.’ 90 Barritt, E., (2014) 'Conceptualising stewardship in environmental law' 26(1) Journal of Environment Law 1, 2. 91 Meskell, L, (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’, 54(4) Current Anthropology, 483 at 483.
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The Convention explicitly respects the principle of State Sovereignty and does not ‘replace’
or otherwise usurp the authority of State Parties in their own domestic decision-making.92
Rather, writes Battini, it merely enlarges the ‘class of interests entitled to consideration in
domestic decision-making processes.’93 Thus, following inscription of a site on the List, the
Convention is said to act like ‘a burden’ on the State Party in whose jurisdiction the site is
situated.94 More specifically, as Battini writes, it is ‘a burden of taking into account the global
interests affected by their decision.’95
Finally, in addition to the Convention text, Operational Guidelines for the Convention have
also been published and revised continuously. In 1977, the first edition of the guidelines was
approved by the Committee. At the time, they consisted of 28 short paragraphs. Today, they
boast almost 300 paragraphs totally some 60-odd pages (plus annexures). Next to the text of
the original Convention, the Operational Guidelines constitute the most important regulatory
document in the framework. They represent, as Redgwell points out, ‘a code of good practice
for the effective implementation of the Convention.’96 Thus, the Convention text and the
Operational Guidelines are considered by UNESCO as ‘the [two] main working tools’ of
World Heritage governance.97
2.3.4 Euro-centrism and the Politics of World Heritage Listings
Europe is home to almost half of all sites on the World Heritage List and Euro-centrism of
the Convention, its sites, expertise and processes, is acknowledged by several scholars.98 It is
well known, for instance, that ‘Western and developed’ States have long ‘dominated’ the
Convention since its creation in the 1970s presenting something of a North-South divide.99
92 Battini, S, (2011) ‘The procedural side of legal globalization: The case of the World Heritage Convention’ 9(2), International Journal of Constitutional Law, 340. 93 Ibid., 368. 94 Gaillard, B., (2014) ‘The Legal Effects of World Heritage Listing under the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage: the example of the Dresden Elbe Valley in the Federal Republic of Germany (special edition) Primitivetider 37, 43. 95 Battini, S., above n 92, 342-343. 96 Redgwell, C., ‘Article 2 - Definition of Natural Heritage’ in Francioni, F and Lenzerini, F above n 6, 79. 97 UNESCO World Heritage Centre, ‘Criteria for Selection’ http://whc.unesco.org/en/criteria/ accessed 28 March 2017. 98 See Strasser, P., (2002) ‘Putting Reform Into Action. Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing Its Regulations.’ 11 International Journal of Cultural Property 215. See also Meskell, L, (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’, 54(4) Current Anthropology, 483. 99 See Meskell, L. Liuzza, C. Bertacchini E. & Saccone D. (2015) ‘Multilateralism and UNESCO World Heritage: decision-making, States Parties and political processes.’ 21(5) International Journal of Heritage
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Somewhat disturbingly, the economic and security credentials of States Parties to the
Convention, such as membership of the UN Security Council, have also been shown to ‘have
a systemic impact’ on World Heritage decision-making.100
In order to combat these imbalances, there have been ‘vigorous efforts’ by UNESCO’s World
Heritage Centre to create a more representative inventory’ of sites.101 Studies have also been
published in recent years aimed at closing the gap between cultural and natural sites on the
List.102 Indeed, one of the functions of the World Heritage Centre is the co-ordination of
activities which are part of a broader Global Strategy for a Representative, Balanced and
Credible World Heritage List.103
In terms of the North-South divide specifically, there has been an attempt from BRICs
nations (Brazil, Russia, India and China) to challenge the existing power structures that
underlie the Convention, though with varying levels of success.104 Much of this can be seen
as a ‘backlash against Eurocentrism’105 or as Meskell describes it: ‘[possibly] a revolution
against the so-called expert adjudicators and their role in the contest that site nomination has
become’.106 Despite the recent efforts of UNESCO and parts of the Committee, still over a
third of sites were inscribed from Europe and North America in 2012.107
The Euro-centrism of the List (and notions of heritage more generally) resonates closely with
the North-South arguments which today permeate much of global environmental
governance.108 For instance, as Atapattu and Gonzalez remark, the division between the
Studies, 423. 100 Frey, B., Pamini, P., and Steiner, L., (2013) ‘Explaining the World Heritage List: an empirical study’ 60(1) International Review of Economics 1. 101 Meskell, L, (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’, 54(4) Current Anthropology, 483, 486. 102 Bertzky, B., Shi, Y., Hughes, A., Engels, B., Ali, M.K. & Badman, T., Terrestrial biodiversity and the World Heritage List: identifying broad gaps and potential candidate sites for inclusion in the natural World Heritage network. (IUCN, and UNEP-WCMC, 2013). 103 UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention Operational Guidelines (revised 8 July 2015), paragraph 28(d). 104 See Claudi, I., (2011) The New Kids on the Block (Masters Thesis submitted to University of Oslo); and Meskell, et al, above n 99. 105 Buckley, K (2014) ‘The World Heritage Convention at 40: Challenges for the work of ICOMOS.’ 26(2) Historic Environment 38, 43. 106 Meskell, L, (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’, 54(4) Current Anthropology, 483, 489. 107 Ibid., 486. 108 Atapattu, S and Gonzalez, C.G., ‘The North-South Divide in International Environmental Law: Framing the Issues’ in Alam, S, Atapattu, S, Gonzalez, C.G., and Razzaque, J (eds), International Environmental Law and
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wealthier industrialised ‘Northern’ nations (i.e. Europe, Canada, Australia and the United
States) and the global South (including China and India) has ‘compromised the effectiveness
of international environmental law’109 including in relation to climate, change, biodiversity,
trade, investment, indigenous peoples and access to food.110 The divide is nothing if not
perpetuated in heritage, and in particular World Heritage, where richer nations have the
financial resources, expertise, and political stability to create instruments for protection, and
to respond and take advantages of such measures as well.111
Increasing politicisation, since about 2005 onwards, has also been a constant headache for the
World Heritage regime.112 This is due, in part it seems, to the Committee proceedings being
dominated ‘more by diplomats than [by] heritage experts’.113 As Brumann and Berliner point
out, bureaucrats and diplomats have tightened ‘their grip on the World Heritage apparatus’
many of them with no ‘specialized background’ in heritage, and only concerns for ‘peace and
smooth international relations’ with other states.114 Technical advice from the advisory bodies
under the Convention(IUCN and ICOMOS) has increasingly been ignored and final decisions
are being shaped ultimately by politics. Many new sites, though reported as ‘not yet ready to
be inscribed’ have nevertheless been rushed in.115 Meskell has termed this the ‘rush to
inscribe’.116 All of this has created ‘unprecedented challenges’ for the ongoing operation (and
legitimacy) of the Convention.117
the Global South (Cambridge University Press, 2015). pp. 1-20. 109 Ibid., 2. 110 Ibid., 4. 111 The divide is particularly acute in relation to natural heritage. As Godden writes: ‘Currently, the emphasis [on natural heritage is] on western values, which construct nature as 'other', appears to predominate…if we are concerned to allow for a coexistence of western and indigenous interests in the natural environment, there is a need for an evolution of the cultural and legal basis for identifying and managing natural heritage.’ See Godden, L, (1998) ‘Preserving Natural Heritage: Nature as Other’ 22(3) Melbourne University Law Review 719, 742 112 See Bertacchini, E.E. & Saccone, D. J Cult, (2012) ‘Toward a political economy of World Heritage’ 36(4), Journal of Cultural Economics, 327; and also Meskell, L, above n 106. 113 See Buckley, above n 105, 42. 114 Brumann, C., and Berliner, D., World Heritage on the Ground: Ethnographic Perspectives (Berghahn, 2016), 13. 115 Buckley, above n 105, 42. 116 Meskell, L (2012) ‘The rush to inscribe: Reflections on the 35th Session of the World Heritage Committee, 37(2) Journal of Field Archaeology 145. 117 Meskell, above n 106.
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2.3.5 The List of World Heritage In Danger
Any site currently on the World Heritage List can potentially be included on the List of
World Heritage In Danger (the In Danger List) pursuant to Article 11(4) of the
Convention.118 In Danger listings are not meant to be seen as a sanction though they can be
seen as a deterrent for other states.119 There is a certain amount of ‘naming and shaming’, or
at least the threat of it that takes place. As Brumann and Berliner write, ‘there is usually only
blaming and moral pressure to fear’ from the Convention bodies.120 Some nations, though not
all, are spurred into action to avoid an In-Danger listing. As Buzzini and Condorelli point out,
there are a variety of factors which could result in an In Danger Listing including the
behaviour adopted or tolerated by the State Party.121 The degree of cooperation, they argue,
may also be a relevant factor.122
When the Convention was first being drafted, the In Danger List was subject to lengthy
discussions.123 The core of the discussions concerned its conflict with the principle of State
Sovereignty.124 In the Kakadu case of the 1990s, the issue came to the fore of whether a State
needed to consent to a site being included on the In Danger List.125 Since then it has been
settled that there is no requirement for a state’s consent to an In-Danger listing before a site is
declared In Danger.126 As Buzzini and Condorelli argue, this would be contrary to the erga
omnes nature of the obligations under the Convention (see below).127 Further, as Francioni
and Lenzerini suggest, it would ‘defeat the object and purpose of the Convention’ particularly
where the advisory bodies have recognised the danger and no alternative is available ‘to meet
the urgent need for action recognized by Article 11(4) of the Convention.’128
118 An In Danger Listing is possible where the Committee finds that the condition of the property corresponds to at least one of several criteria under the Operational Guidelines. See the Operational Guidelines, part IV.B 119 Hølleland, H (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), 76 120 Bruman and Berlinger above n 114, 10. 121 Buzzini and Condorelli, ‘Article 11 List of World Heritage in Danger’, in Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008). 122 Ibid., 185. 123 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 78 124 Ibid. 125 IUCN and ICOMOS had recommended it be included. Australia had refused. See Maswood, S. (2000), ‘Kakadu and the Politics of World Heritage Listing’ 54(3), Australian Journal of International Affairs, 357. 126 Gaillard above n 94, 44. 127 Buzzini and Condorelli above n 121, 185. 128 Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008), 406.
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Returning to the case study in this thesis, Australia certainly went to great lengths to avoid an
In-Danger listing of the GBRWHA between June 2012 (when it was first raised) and July
2015 (when it was put to rest).129 As one NGO participant in the study referred to it, the In
Danger List hung over Australia’s head like a ‘Sword of Damocles.’130 However, it should
also be noted, as Marsden has pointed out, that Australia has displayed a history of
embarrassment or uncomfortableness about the possibility of In Danger listing in respect of
other sites (particularly Kakadu).131
At the 38th session of the Committee in Doha, Qatar (15 - 25 June 2014), Australia managed
to parry Committee concerns for an additional year, arguing that substantial progress had
been made on its conservation efforts. Such a political presence was seen by some
participants as extreme at the time:
[In Doha in 2014] they had a delegation, I think it was twelve. It was ridiculous to do
that. You know, most delegations to the Committee are about three. So they had this
pack of Australians basically heavying a lot of the Committee members and it was
completely counter-productive.132
Other interview participants also highlighted the role that Australia’s Department of Foreign
Affairs and Trade (DAFT) played in the case study:
Once foreign affairs bought into it, it just changed the whole flavour of the diplomatic
response. It was quite remarkable. They just went into overdrive. But a lot of the
delegates, well they were actually bemused [but] the Germans were actually getting
really pissed off by Australia, because effectively the Chairwoman of the committee,
she had had something like five separate visits, and she was just sick of it… so they
started to say: “well we don’t want a meeting unless it’s about something new.”133
129 See the chronology of events in chapter 1. 130 Interview #10 131 Marsden, S., (2014), ‘Australian World Heritage in Danger’ 31(3), Environmental and Planning Law Journal, 192, 194. 132 Interview # 10. 133 Interview # 5.
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Hølleland refers to this more generally as the ‘diplomatisation’ of the World Heritage
Convention.134 In ‘moving away from sending heritage experts’ she argues:
it is not surprising that decision making processes have become based on aspects and
relations which are increasingly removed from the actual heritage sites and their
conservation.135
Of course not all reactions to the In Danger List follow this pattern of diplomatic resistance.
Other nations, like the United States,136 and Honduras,137 have actively called for In-Danger
listings to ensure appropriate conservation action and strategies take place. In fact, as Buzzini
and Condorelli write, it appears that ‘in the majority of cases’ sites have been placed on the In
Danger List at the time of inscription including making an immediate request for financial
assistance.138 There are several examples of where this has occurred including, for instance,
Angkor Wat in Cambodia and the Minaret of Jam in Afghanistan.139 Accordingly, as Boer
writes, the threat of placing a property on the In Danger List ‘can have political and economic
repercussions, which is why some States Parties may wish assiduously to avoid such a
listing.’140 Boer gives the examples of Kathmandu (Nepal) and Kakadu (Australia).141
Goodwin gives the example of Sangay National Park in Ecuador (being listed In Danger) as
an example of the ‘political benefits’ States can claim.142
A final point to note before proceeding to the next section is that there was (and still is) a
great deal of confusion, even amongst interview participants in the case study, surrounding
134 Hølleland, above n 119, 199. 135 Ibid., 119. As it turned out, the diplomatic onslaught proved highly effective for the Australian Government in the GBRWHA example. The Reef was not listed In Danger, and upon the news, back in Australia, the Australian Government certainly played the politics of it all. Leading up to the 2016 Federal election, [Liberal] Minister for the Environment boasted: ‘Under Labor, the Great Barrier Reef was on-track to be listed as 'in danger'. It came off the 'watch list' under us.’ See Twitter Comments by @GregHuntMP 5:57 PM - 30 May 2016. 136 World Heritage Committee Decision: 34 COM 7B.29. 137 World Heritage Committee Decision: 35 COM 7B.31. 138 Buzzini and Condorelli, above n 121, 182. 139 Boer, B, ‘Article 3 Identification and Delineation of World Heritage Properties’ in Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008), 101. 140 Ibid. 141 Boer, B., above n 139. 142 Goodwin, above n 74, 170.
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the vernacular of In Danger and how the List actually operates. Media reports from 2015, for
instance, suggested:
Australia has escaped attempts by environmentalists to have its iconic Great Barrier
Reef listed as endangered by the United Nations World Heritage Committee …143
and
Australia has avoided the shame of the Great Barrier Reef being put on the World
Heritage Committee's endangered list.144
The changing vernacular of ‘danger,’ ‘in danger’ and ‘endangered,’ mostly at the hands of the
media, by also by the politicians, seemed to play into the hands of the NGOs during the study
period, creating what might be considered, and rightly so, a sense of urgency about the
conservation status of the Reef. But given the breadth of state, sub-state and non-state actors
with an interest in the site (see chapter 4), there was bound to be some conflict over the use of
the term. Consider this exchange with one NGO participant:
Interviewer: there are these other words thrown around that the Reef could be
declared ‘endangered’… What was your … official line about that?
Which words did you use? Because there were several words thrown
around...
Participant: Well now you’re testing me... We were basically saying that the
Australian Government’s management plan was not sufficient and unless they
improved it to take into account the impacts of climate change and industrial
development then we thought that UNESCO should be listing the reef ‘in danger’. I
think that was the phrase. Listing as ‘in danger’.145
The importance of the vernacular and the use of the word danger was also raised by another
NGO in the study:
143 Nikkei Asia Review, ‘UN backs Australia's plan to save the Great Barrier Reef’ (2 July 2015) <http://asia.nikkei.com/Politics-Economy/International-Relations/UN-backs-Australia-s-plan-to-save-the-Great-Barrier-Reef> 144 Australian Financial Review, ‘Great Barrier Reef off the Endangered List (29 May, 2015) <http://www.afr.com/news/politics/great-barrier-reef-off-endangered-list-20150529-ghcd41> 145 Interview # 2.
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[F]or me personally, it hit home when there was a discussion about, and it was a
public discussion as well, it wasn’t a confidential discussion, whether a World
Heritage ‘In Danger Listing’ was something that was a good thing [for the Reef] or
not.’146
As it turned out, the In Danger List and the language of danger became an integral part of the
way in which compliance was drawn out of Australia. That is to say, the mechanism of the
listing itself was an important compliance tool available to the Committee but so too the
language that it added to the broader political debate.
2.4 COMPLIANCE WITH THE WORLD HERITAGE CONVENTION
2.4.1 Distinguishing Compliance from Implementation
As noted in chapter 1, the topic of compliance has gained significant attention from
international environmental law scholars over the last few decades.147 As Paddock and others
wrote recently:
Scholars in a range of disciplines, as well as policy-makers continue to invest
considerable effort to improve understanding of the optimal mix of compliance-
promotion approaches in different contexts.148
But what do we actually mean by compliance in international environmental law? And how is
it any different, conceptually, from other terms used frequently in the literature, like
implementation?
As Le Prestre writes, the notion of compliance differs rather significantly from that of
implementation, though the two are often related and discussed together.149 Whilst
146 Interview # 4. 147 Simmons, B., (1998) ‘Compliance with International Agreements’, 1, Annual Review of Political Science, 75, 75. See also Beyerlin, U., Stoll, P., and Wolfrum, R., (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (Nijhoff, 2006). 148 Paddock, L., Markell, D., and Glicksman, R., An Introduction to Compliance and Enforcement in Paddock L et al (eds) Compliance and Enforcement of Environmental Law (Edward Elgar, 2016)
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implementation refers generally to what is done by the state at a domestic level ‘to live up to
[its] international commitments,’ compliance refers to the provisions ‘elaborated at the
international level’ and the actions taken by states to meet them.150 Compliance is thus not
the same as implementation, though the two are closely related. For instance, in order for a
state to comply at the international level, it may first have to have effective systems of
implementation at the domestic level.
The concept of compliance can be further categorised as being either: (1) procedural; (2)
normative; or (3) substantive.151 By and large, this thesis is concerned with procedural
compliance, that is, the question of whether and how a state is able to meet the reporting and
other administrative requirements of the World Heritage regime.152 In relation to the case
study, for instance, we might construe procedural compliance in terms of the way Australia
responded to the specific requests of the World Heritage Committee, IUCN and UNESCO
over the study period, including, for example, its hosting of the IUCN/UNESCO RMM in
March 2012 as well as the development of a Strategic Assessment and Long Term Plan for
the site (undertaken between 2013-2015).
Finally, in the context of World Heritage and from the perspective of international law, it is
only possible to talk about a state like Australia as being ‘compliant’ or not. Non-state actors,
like IUCN or WWF, cannot be categorised ‘as being compliant or not’ with the World
Heritage regime.153 Nonetheless, as this thesis shows, those actors can contribute to
compliance, and in some instances, they can take on the regulatory roles of monitors and
enforcers to help secure it (see chapters 5 and 6 for more on this point).
149 See the discussion in Chapter 3 in Le Prestre, P., Governing Global Biodiversity: The Evolution and Implementation of the Convention on Biological Diversity (Routledge, 2017). 150 Haas, P., Andresson S., and Kanie, N., ‘Introduction: Actor Configurations and Global Environmental Governance’ in Kanie, N., Andresson, S, and Haas, P (eds) Improving Global Environmental Governance: Best Practices for Architecture and Agency (Routledge, 2014), 15. 151 See Weiss, E., and Jacobson, H., (eds) Engaging Countries Strengthening Compliance with International Environmental Accords (MIT Press, 1998), 4. See also Jacobson H., and Weiss, E., (1995) ‘Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project’ 1(2) Global Governance 119. 152 See Chapter 3 in Le Prestre, P., Governing Global Biodiversity: The Evolution and Implementation of the Convention on Biological Diversity (Routledge, 2017). 153 Mitchell, R., ‘Compliance theory: Compliance, effectiveness, and behaviour change in international environmental law’ in Brunnée, J, Bodansky, D., and Hey, E., (eds) Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 921.
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2.4.2 The Inevitable Pivot towards Compliance
As noted in chapter 1, in the years to come, there is likely to be a shift or pivot towards
questions of compliance under the World Heritage Convention, particularly in terms of
natural sites. In all likelihood, as Strasser points out, ‘the [original] drafters of the Convention
did not anticipate such a large number of inscribed sites’.154 In 1982, seven years after the
Convention first came into force, IUCN released an indicative inventory that became the
‘starting point’ for the identification and listing of many new natural heritage sites.155 That
inventory, prepared by IUCN’s [then] Commission on National Parks and Protected Areas
(CNPPA)156 identified a total of 219 natural sites, including 13 in Australia.157
By the late-1990s most of CNPPA’s identified sites had been listed as World Heritage, or at
least progressed some way towards the listing process (including in Australia). Thus, in 1997,
World Heritage veteran Jim Thorsell predicted that the nomination and evaluation process for
natural World Heritage sites ‘would begin to wind down’ suggesting that the total number of
natural sites must be ‘somewhere in the ballpark of 200.’158 As it currently stands, the List
includes 203 natural properties, although, in truth, there are dozens more sitting on tentative
lists yet to be formally nominated.159
Given these figures, questions of compliance and how best to secure it under the Convention,
will undoubtedly begin to take centre stage. As commentators and evaluators, we thus need
better studies and arguments for how to make sense of compliance under the Convention. As
Goodwin points, the theory of compliance pull provides a helpful way in which to view
154 Strasser, P., (2002) ‘Putting Reform Into Action. Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing Its Regulations.’ 11 International Journal of Cultural Property 215, 219. 155 Valentine, P, ‘The Future of World Heritage in Australia’ in Figgis, P., Leverington, A., Mackay, R., Maclean, A., Valentine, P. (eds), Keeping the Outstanding Exceptional: The Future of World Heritage in Australia (Australian Committee for IUCN, 2012) 208, 212. 156 The Commission is now called World Commission on Protected Areas (WCPA) 157 See the original map from IUCN reproduced at 3.2.2 in chapter 3. 158 Thorsell, J., IUCN and the World Heritage Convention: A Review of Policies and Procedures (IUCN, 1995) 5. 159 China, for instance, has several proposed natural (and mixed) sites in its region, including parts of the Yellow Sea (which is shares with South Korea) which presents some of the most unique tidal mudflats and migratory bird habitats anywhere in the world. See UNESCO, World Heritage Centre, Tentative Lists (China) <http://whc.unesco.org/en/tentativelists/state=cn>.
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compliance with World Heritage.160 Goodwin’s work draws on Thomas Franck’s theory
under international law and both are further elaborated on below (see section 2.4.4). Before
that, however, it is necessary to gain an appreciation of the legal nature of the obligations
which exist under the Convention framework. It is to those issues we briefly turn.
2.4.3 Erga Omnes obligations and the Common Heritage
International agreements are, essentially, as Guzman argues, ‘an exchange of promises
among states.’161 These promises create opportunities for more effective collaboration on
transnational issues (like the environment and heritage) but they can also be a tremendous
source of conflict and tension amongst states. The promises contained in the World Heritage
Convention seem on first glance to be of an erga omnes character. Erga omnes, in the Latin
language, literally means ‘for the good of all’. It refers generally to an obligation owed by
one party to all other all parties to the Convention.162 As Fisher points out, erga omnes are
thus communal in character, and such language is crucially important in relation to the
environment because the natural world has ‘no status by itself within the legal system.’163
The character of rights and obligations in treaties that have (or purport to have) an erga
omnes character has been debated since the Barcelona Traction case in the 1970s.164 Whilst
the existence of erga omnes is relatively straightforward to identify (by the wording and
interpretation of the Convention), there are particular problems when it comes to a state’s
entitlement to bring an action against a breach.165 In the case of World Heritage, who, for
instance, is the breach against? The world at large? The other state parties to the Convention?
It has been suggested that proceedings could be started in the International Court of Justice
(ICJ),166 but to date the Court has never granted its jurisdiction over World Heritage solely on
such a basis.167
160 See Goodwin above n 74. 161 Guzman, A., (2005) ‘The Design of International Agreements’ 16 European Journal of International Law, 579, 585. 162 Buzzini and Condorelli, above n 121, 178. 163 Fisher, D., Legal Reasoning in Environmental Law: A study of structure, form and language, (Edward Elgar, 2013), 9. 164 See Tams, C.J., Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005), xiii. 165 Ibid., 249. 166 Ibid., 252. 167 Green Martinez, S., (2013), ‘Locus Standi Before the International Court of Justice for Violations of the World Heritage Convention’ 5 Transnational Dispute Management 1.
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Aligned with the nature of erga omnes obligations is the duty under the Convention to
identify and conserve the World’s common heritage. Such a concept is akin to the collective
idea of the ‘good of [hu]mankind.’168 Francioni and Lenzerini refer generally to this aspect as
the ‘heritage of humanity’, and, in the context of the World Heritage Convention, argue that it
is something that should go beyond the ‘legal consideration of the Convention as a treaty.’169
Like erga omnes, common heritage is a concept that is owed to a wider class of recipients and
faces practical questions in terms of standing and enforceability. Moreover, the common
heritage is owed to present and future generation and across oceans and state borders. The
principle of common heritage and the notion of erga omnes obligations thus go hand in hand
in the operation and philosophical basis of the Convention.
Both principles reveal themselves at discrete parts of the Convention framework. The
definition of OUV, for instance, in the Operational Guidelines means:
cultural and/or natural significance which is so exceptional as to transcend national
boundaries and to be of common importance for present and future generations of all
humanity.170
This is a reference not only to the common heritage, but also to the related principle of
intergenerational equity. Together, the principles of common heritage and intergenerational
equity provide a powerful ‘normative’ basis for promoting compliance amongst states
(particularly ‘spirit of the treaty’ compliance). As Mitchell points out, drawing on principles
like common heritage is an attempt by the drafters to:
to induce a much deeper change in the actors they target. They seek to alter actors’
underlying values and norms and the goals they pursue… Embedding these concepts
in international law raises the rhetorical standard against which governments are
judged.171
168 See Tams above n 164, 57. 169 Francioni and Lenzerini above n 6, 402. 170 UNESCO World Heritage Centre, Operational Guidelines for the Implementation for the World Heritage Convention (2016), paragraph 49. 171 See Mitchell, above n 153, 916.
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There are parts in the Convention which challenge or conflict with both the common heritage
and erga omnes concept. Articles 3 and 4 of the Convention, for instance clearly give
paramountcy to the principles of state sovereignty over all other considerations. Article 3
allows states the exclusive right to decide the boundaries of their sites to be included as
World Heritage (despite the ‘universality’ or ‘common heritage’ of such sites). Further,
article 4 of the Convention states:
The duty of ensuring the identification, protection, conservation, presentation and
transmission to future generations of the cultural and natural heritage … belongs
primarily to that State.
Whereas article 4 might be partly reconciled with the erga omnes approach in the sense the
duty created ‘belongs’ to the host state but ‘owed’ to all other States, the case is harder to
make for article 3. In article 3, any erga omnes obligations, if they are present, arise only
after a State exercises their Sovereign right to describe and select the sites which they wish to
be part of the common heritage, thereby limiting the external consideration of what OUV is
or should be from other States. If a purer erga omnes approach were to be adopted under the
Convention, and one that is not overridden by the Sovereignty Principle, States from other
parts of the world (or even non-states for that matter) ought to be able to nominate sites and
to play a role in deciding the boundaries for inclusion on the List. That is currently, however,
not the case.172
But these are perhaps theoretical arguments for another day. The point is simply that although
aspects of common heritage and erga omnes obligations are certainly present in the regime,
the principle of State Sovereignty is strongly exhibited and supported under the Convention
text. There are occasions, such as article 3 and 4 where it inevitably conflicts with obligations
which might otherwise appear to be erga omnes. With this in mind, we turn now to a
consideration of how the Principle of Sovereignty might be broken down or weakened in the
context of World Heritage obligations, and how compliance might best work in a regime that
lacks substantial enforcement powers and non-compliance procedures.
172 It also seems a rather radical suggestion, given the politics of the Convention, mentioned above.
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2.4.4 The Theory of Compliance Pull
In terms of understanding how World Heritage compliance operates, there is already
considerable literature from other MEAs to draw upon, for instance, those that seek to reduce
harmful gases in the atmosphere like the Montreal Protocol on Substances that Deplete the
Ozone Layer173 and the UNFCCC.174 The Montreal Protocol, for example, has widely been
hailed as a successful compliance model, based on, amongst other things, a formal procedure
where countries work with the United Nations to prepare an action plan ‘to get themselves
back into compliance.’175 On the other hand. other MEAs, conservation-focussed treaties like
the Ramsar Convention on Wetlands (Ramsar),176 and the Convention on Biological
Diversity (CBD) have received less attention vis-à-vis issues of compliance, though a few
notable contributions do standout.177
Despite these studies, there is no single overarching theory which accurately describes how
compliance works under all MEAs, and nor should we expect there to be. MEAs are diverse
in their objectives, procedures and the nature of the duties thrust upon States (albeit duties
which they have ‘promised to uphold’). Accordingly, whilst some valuable insights about
compliance can be gained from other MEAs, such as Ramsar, the UNFCCC and the Montreal
Protocol, by and large questions of compliance can only be addressed by focussing on the
nuances and intricacies of the particular regime being studied.
We return, therefore, to the question of how compliance with the World Heritage regime is
intended to operate. And, more specifically, how can we recognise compliance when we see
173 See Gonzalez, M., Taddonio, K.N. & Sherman, N.J. (2015) ‘The Montreal Protocol: how today’s successes offer a pathway to the future’, 5 J Environ Stud Sci 122. 174 See Shishlov, I, Morel, R, and Bellassen, V (2016) ‘Compliance of the Parties to the Kyoto Protocol in the first commitment period’, 16(6) Climate Policy. 175 Ian Rae, Saving the ozone layer: why the Montreal Protocol worked, The Conversation (online) September 10, 2012 <https://theconversation.com/saving-the-ozone-layer-why-the-montreal-protocol-worked-9249> In the case of the UNFCCC and climate governance more generally, scholars continue to hotly debate issues of compliance and have started to focus on (relevantly for this thesis) the role and influence of NGOs in ensuring states comply with the standards set out in the MEAs. See for example, Nasiritousi, N., Hjerpe, M., Linner, B., (2016) ‘The roles of non-state actors in climate change governance: understanding agency through governance profiles’ 16(1) International Environmental Agreements: Politics, Law and Economics, 109; and Gulbrandsen, L.H. and Andresen, S, (2004), ‘NGO Influence in the Implementation of the Kyoto Protocol: Compliance, Flexibility Mechanisms, and Sinks’, 4(4), Global Environmental Politics, 54. 176 Ramsar Convention on Wetlands 996 UNTS 245; TIAS 11084; 11 ILM 963 (1972). Signed, 1971-02-02 and Entry Into Force Date:1975-12-21 (the Ramsar Convention) 177 For the Ramsar Convention, see Ferrajolo, O., (2011) ‘State Obligations and Non-Compliance in the Ramsar System’, 14:3-4, Journal of International Wildlife Law & Policy, 243. For the CBD, see Le Prestre, above n 152.
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it? Attempting to answer these questions inevitably leads us into the broader philosophical
terrain of why States comply with international law in the first place. As Thomas Franck
provocatively wrote in 1988:
The surprising thing about international law is that nations ever obey its strictures or
carry out its mandates…That they should do so is much more interesting
than, say, the fact that most citizens usually obey their nation's laws, because the
international system is organized in a voluntarist fashion, supported by so little
coercive authority.178
One of the most popular answers to Franck’s conundrum seems to be that compliance with
international law is closely linked to a State’s reputation. Guzman, for instance, suggests that
States are more likely to comply with international law where there could be ‘a loss of
reputation in the eyes of other States.’179 More specifically, Guzman writes, it is the nature of
the promises which are made under international law (including erga omnes promises) that
are closely related to a nation’s standing, or reputation, in global society:
A state known to honour its agreements, even when doing so imposes costs, can
extract more for its promises than a state known to violate agreements easily. When
making a promise, a state pledges its reputation as a form of collateral. A state with a
better reputation has more valuable collateral and, therefore, can extract more in
exchange for its own promises.180
Downs and Jones advance similar arguments, suggesting that a State’s reputation is
intricately intertwined with its relationships, cooperative or otherwise, with other nations:
Reputational consequences of a state’s noncompliance with a given treaty are
similarly limited by the history of its cooperative relationships with the other member
states.181
178 Franck , T, (1988), ‘Legitimacy in the International System’, 82, Am. J. Int’l L, 705 at 705. 179 Guzman, above n 161, 582. 180 Ibid., 596. 181 Downs, G.W. and Jones, M.A. (2002) ‘Reputation, Compliance, and International Law’ 31(2) Journal of Legal Studies 15, 97.
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From the case study in this thesis, we find a similar connection between the concepts of
reputation, relationships and compliance. In the next chapter, for example, it is argued that
Australia’s reputation for excellence in World Heritage contributes to its willingness to
comply with the regime. Australia cared (and cares) deeply about its reputation as a global
leader in conservation issues, including in marine protected areas like the GBRWHA. The
findings in this thesis confirm not only Guzman and others arguments above, but also earlier
empirical work on the GBRWHA that suggests the true power of World Heritage ‘is largely
based in the desire of States Parties to be seen to ‘do the right thing.’182
But whilst reputation (and damage thereto) seems to be a crucial factor for explaining why
States might want to ‘do the right thing,’ reputation alone doesn’t offer a comprehensive
conceptual base on which to understand the movements and influences of other actors in
promoting World Heritage. It doesn’t explain, for instance, the non-state actor’s contribution
to compliance, through regulation or otherwise, and how they build and construct their own
authority to make reputations matter. It is helpful, therefore, to begin to theorise more broadly
about compliance under the World Heritage system. Models are needed that focus not just on
the reputation of a State as the determinative factor, but which also take account of the other
actors and institutions (and points of influence) that contribute to promoting compliance with
the goals of the regime.
One of the most effective ways of doing so is to draw on Thomas Franck’s theory of
‘compliance pull.’183 Compliance pull theory is a conceptual model which seeks to explain
how a treaty (or other system of international rules) pulls compliance out of States largely
through questions of legitimacy.184 The stronger the legitimacy of the rule, the stronger the
pull on the state. As Koh writes, compliance pull suggests States are more likely to comply
with the requirements of international law ‘when they accept its legitimacy through some
[form of] internal process.’185 Compliance pull theory is thus closely related not only to the
182 The meanings of World Heritage: a study of environmentalists and World Heritage managers with respect to the Great Barrier Reef World Heritage Area / thesis submitted by Trevor John Webb., James Cook University, 1997 p 231. 183 Franck, T., The Power of Legitimacy among Nations (Oxford University Press, 1990). 184 As Goodwin points out, Franck had argued that there are four factors that contribute to the legitimacy of an obligation in international law which can, he writes, ‘generate a pull towards compliance with a rule unenforced by a coercive power. These factors relate to determinacy, symbolic validation, coherence, and adherence.’ See Goodwin, above n 74, 157. 185 Koh, H, (1997) ‘Why Do Nations Obey International Law? Paper 2101, Faculty Scholarship Series 2599,
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reputation of States that are subject to the regime, but also to key questions of legitimacy:
who has it? who needs it? who seeks it?
In his 2009 paper, Goodwin took Franck’s theory and applied it to the World Heritage
Convention.186 He argued that the World Heritage Committee, through its coercive powers
draws compliance out of states. His main point of difference was that the World Heritage
Committee does have coercive powers which still allows compliance pull to work, whereas
Franck had suggested compliance pull was restricted to systems which lack coercive powers.
In this way, Goodwin argued that the Convention created an ‘enhanced compliance pull’ and
one that ‘introduce[d] significant factors into a State's logic of consequences, exerting a pull
towards action in compliance with obligations.’187
Where Goodwin’s analysis (and the theory of compliance pull) is taken further in this thesis
is that, as the case study shows, the pull of the Convention doesn’t just rely on the coercive
powers of the Committee, nor the fact that states see the legitimacy of World Heritage rules,
but it also relies on the activities and (legitimate) presence of non-state actors. This is an
argument which is further developed in the final chapter of this thesis. For now, however, it is
sufficient to note that compliance pull offers us a sound conceptual basis for which to further
explore the role and influence of actors in helping to secure compliance from Australia, and
the factors they use to do so.
2.5 CONCLUSION
The phenomenon of heritage is a broad and contested one, far broader and more contested
than just the idea of World Heritage. This chapter has shown that emerging discourses of
heritage are varied and continue to evolve, largely at the hands of experts, like
anthropologists, policy-makers, lawyers, politicians, academics and others. These views
contribute to an authorised heritage discourse which Smith talks about, and inevitably reveal
a bias in the way we seek to construct and protect heritage as something of ‘value’. As this
chapter shows, an authorised discourse also applies to the World Heritage framework and
hence we ought not to be (too) surprised by the existence of politics, diplomacy and bias in
decision-making under the regime. 2659. 186 Goodwin, above n 74, 157 187 Ibid.
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This chapter has also shown that the nature of World Heritage obligations, under the text of
the Convention and the Operational Guidelines, are by and large, erga omnes in character
(that is, owed to everyone). They are also connected to the principles of common heritage and
intergenerational equity, duties which create strong normative benchmarks for state action,
but which in practice, are slippery and difficult to enforce. In conflict with these notions is the
principle of State Sovereignty which is weaved strongly through the fabric of the
Convention. Whilst at times the two might be aligned, on other occasions, they seem
juxtaposed, and in conflict with one another. The contest is perhaps most clearly revealed in
the politics that have plagued the regime over the last two decades.
Finally, this chapter has defined compliance and introduced the theory of compliance pull and
thus has laid the foundations for further and more in depth consideration of Australia’s
activities during the case study years. The next chapter (chapter 3) considers one (of the two)
major factors which allowed compliance pull to operate so strongly against Australia: that is,
Australia’s reputation for excellence in World Heritage matters. The other major factor that
mattered was the iconic nature of the GBRWHA itself, an icon of the World Heritage List.
That issue is discussed further in chapter 4.
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Australia’s Relationship with World
Heritage
The previous chapter explained the background, institutions and operation of the World
Heritage Convention. It situated World Heritage within the broader context of the heritage
and compliance literature and explained how the theory of compliance pull was relevant to
how the Convention operates. This chapter uncovers Australia’s special relationship with the
Convention arguing it was one of the major factors that contributed to the compliance pull
phenomenon as observed in the case study. This chapter is important to understand why
Australia cares about World Heritage, perhaps more than any other state under the
Convention. As a recognised leader in natural World Heritage, and with a developed
regulatory framework and active civil society, Australia felt it had a great deal to lose in
having the Great Barrier listed ‘In Danger’.
3.1 INTRODUCTION
In the field of international relations, some states pay more attention to their treaty
obligations than others. Understanding why some states comply, and the circumstances in
which they do, is all part of the rich and interesting empirical question this thesis has sought
to answer. As noted in the previous chapter, questions of compliance, including with
multilateral environmental agreements (MEAs), have taken on greater significance in recent
years. As Mitchell points out, states have spent ‘considerable time’ since the 1970s
negotiating over two thousand bilateral and MEAs on a variety of topics relating to wildlife,
oceans, parks, air, water, chemicals, soil, deserts, genetically modified crops and access to
justice. But despite all of this, says Mitchell bluntly, a central and pressing question remains:
‘so what?’1
1 Mitchell, R.B., ‘Compliance theory: Compliance, effectiveness, and behaviour change in international environmental law’ in Brunnée, J, Bodansky, D., and Hey, E., (eds) Oxford Handbook of International
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As Bodansky tells us: the text of an MEA still matters, and the ‘stronger the better’, but often
words on paper are ‘not enough’.2 What we need to understand is how and why states
approach their treaty obligations in the way that they do, including identifying the factors that
drive them to towards compliance. As chapter 1 argued, this requires an empirical
examination of the suite of actors involved (both state and non-state) in a given set of
circumstances. Instrumental case studies, such as the one deployed in this thesis, can have
great value in this regard. Much of this aligns with contemporary thinking around improving
our evaluations of environmental law. Martin and Kennedy, for instance, have argued
strongly for a more scientific and empirical approaches to making environmental law work.3
This all creates something of a predicament for legal scholars, traditionally interested in
doctrinal analyses of why international law is significant as opposed to how it works on the
ground.4
As Weiss and Jacobson suggest, there are several factors, which might affect whether a state
complies with its treaty obligations under international law. These factors include:
the character of the activity [they are undertaking or seeking the undertake], the
character of the accord, [a] country characteristics, [its] policy history, leadership,
information, the role of nongovernmental organizations (NGOs), actions of other
states, and the role of international governmental organizations (IGOs).5
But what are the factors that drive a state like Australia to comply? And, more specifically,
what factors were observed from the case study of the GBRWHA during the study period
(2010-2015)?
Environmental Law (Oxford University Press, 2007), 894. 2 Bodansky, D., (2011) ‘Implementation of International Environmental Law,’ 54 Japanese Yearbook of International Law 62, 62. 3 See generally, Martin, P and Kennedy, A (eds), Implementing Environmental Law (Edward Elgar, 2015). 4 As Shaffer and Ginsburg remark, the question of whether international law matters today is a ‘stale’ argument. See Shaffer, G., and Tom Ginsburg, T., (2012) ‘The Empirical Turn in International Legal Scholarship 106(1) The American Journal of International Law 1. 5 Jacobson H., and Weiss, E., (1995) ‘Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project’ 1(2) Global Governance 119.
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As Forrest has argued, compliance with World Heritage seems less about strict enforcement
than it is about ‘a management regime…functioning by way of international cooperation.’6
There is some truth to this, at least in terms of how the framework was intended to operate.
But, as the case study in this thesis reveals, cooperation seems too weak a word to describe
what’s going on. Rather, as Keogh argues, the World Heritage Convention seems to create a
‘culture of economic and political quagmires rather than [real] cooperation and
preservation.’7
Indeed, the metaphorical action of ‘pulling’ (in compliance pull theory) is not synonymous
with ‘cooperation’, nor for that matter does it indicate amicable collaboration between
member states (as erga omnes has hoped). On the contrary, it tends to describe a phenomenon
where states resist compliance, but in the end, as Franck suggests, are compelled to comply
because of the legitimacy of the rules of the game.8 To act otherwise would mean to be seen
as illegitimate in the eyes of other states. Some states, like Australia, care about this outcome,
whilst other nations, it seems, couldn’t care less.
In the case of Australia and the GBRHWA, the threat of an In-Danger Listing was used to
drive Australia into complying with the World Heritage Committee’s demands. Australia, it
seemed, saw this threat as real and legitimate. A refusal to respond (or to be ‘pulled’ by the
various actors) would have placed Australia’s unique reputation as a World Heritage leader in
jeopardy. In truth, whether there would have been an actual loss of reputation is beside the
point. What mattered was that Australia had this perception that it might. As one NGO
interview participant concluded:
I would say that the power that the World Heritage Committee has, when it comes to the
reef, hasn't been actual power as much as it has been perception by the government they don't want
to look bad.9
6 Forrest, C. J. S. (2007) An Australian perspective on world heritage sites, 27 Numero Special, Revue Juridique de L'Environnement, 123, 130. 7 Keough, E, (2011) ‘Heritage in Peril: A Critique of UNESCO's World Heritage Program,’ 10 Wash. U. GlobalStud. L. Rev. 593, 593. 8 See Franck, T., (1988), ‘Legitimacy in the International System’, 82, Am. J. Int’l L, 705. 9 Interview # 2.
89
Consider also this exchange the researcher had with another NGO participant:
Participant: Do I think the [Australian] government would have acted if the
international community wasn’t looking at them? Umm, look I guess
the international pressure may have helped. I mean it probably definitely
helped … Why do people do anything? Why did I tidy up the bathroom here a
bit before you came?
Interviewer: Because you thought I would care? [laughs]
Participant: Because we care about what other people think. And ultimately,
well international law, more than any other aspect of law, because it doesn't have
that sort of state-sanctioned international army, works on the idea that people
actually [care] about what [others] think of them.10
We thus return to the question of what drives perceptions in a place like Australia? Or, more
specifically, how and why does a state like Australia view itself the way it does in terms of
World Heritage?
The overall aim of this chapter is to answer these questions and show how reputation in
World Heritage is relevant to the operation of compliance pull. This chapter develops the
argument that Australia’s embrace of World Heritage over the last four decades contributed
greatly to the forces which pulled it in the direction of compliance. Australia had (and has) a
reputation for excellence in World Heritage, including in the management of coral reefs like
the GBRWHA. It therefore had a great deal to lose in having the Reef listed In Danger. The
other point of leverage (for non-state actors) was, of course, the iconic nature of the
GBRWHA itself, one of the world’s largest and truly remarkable ecosystems. The
significance of the site is addressed in the following chapter. For now, it is necessary to
understand how and why World Heritage matters to Australia.
10 Interview # 3.
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3.2 WORLD HERITAGE IN AUSTRALIA
3.2.1 Current World Heritage Sites
There are currently 19 World Heritage sites in Australia. Twelve of those sites, including the
GBRWHA, are listed as natural sites, three are listed as cultural sites, whilst the remaining
four (Kakadu, Uluru, Willandra Lakes and the Tasmanian Wilderness) are listed as mixed
sites – meeting both cultural and natural criteria.11 The presence of mixed sites in Australia is
unique. There are only 35 mixed sites across the world, of which Australia and China lay
claim to almost a quarter (four sites each). As mentioned in the previous chapter, the
separation between cultural and natural sites, and the existence of ‘mixed sites’, has been
increasingly challenged by heritage scholars.12 The GBRWHA, for instance, is listed only as
a natural site, despite the fact that over 70 Indigenous groups lay claim to a special
connection with the region.
Australia’s World Heritage sites are scattered relatively evenly across the continent. There
are World Heritage sites in major metropolitan areas such as Sydney (the Opera House),
Perth (Freemantle Prison) and Melbourne (the Royal Exhibition Building and its surrounding
Carlton Gardens), as well as more remote locations such as Kakadu (Northern part of the
Northern Territory), Willandra Lakes (far West New South Wales) and Riversleigh Fossil
Sites (North Western Queensland). Marine and island sites are also well represented in
Australia with Ningaloo Coast, Shark Bay, Heard and McDonald Islands and the Lord Howe
Island Group all listed as World Heritage natural sites.
11 The World Heritage Centre (UNESCO) ‘States Parties, Australia’ <http://whc.unesco.org/en/statesparties/au> accessed 28 March 2017 12 See Boer, B., and Gruber, S., ‘Heritage Discourses’ in Rubenstein, K and Jessup, B (eds), Environmental Discourses in International and Public Law (Cambridge University Press, 2012); see also Godden, L, (1998) ‘Preserving Natural Heritage: Nature as Other’ 22(3) Melbourne University Law Review 719.
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Figure: World Heritage Sites in Australia, The GBRWHA is by far the largest. Source: Australian government13
Some sites, like Kakadu, Uluru and the GBRWHA are particularly well-known
internationally and have become major tourism destinations, drawing millions of visitors
every year and producing significant income for local, regional and national economies.
There is, however, a weak correlation between the brand of World Heritage in Australia and
a numerical increase in tourism at its sites. Whilst academic studies on the issue have
increased in recent years,14 including in relation to World Heritage tourism in Australia15
there is still a relatively poor understanding of why and where tourists visit World Heritage.
13 Australian Government, Department of Environment and Energy, ‘Australia’s 2007-2011World Heritage Committee term’ available online <https://www.environment.gov.au/resource/australias-2007-2011-world-heritage-committee-term> 14 See for example, Landorf, C., (2009) ‘Managing for sustainable tourism: a review of six cultural World
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The Australian Government seems to be aware of this. In 2009, it co-sponsored an audit of
the World Heritage brand which found ‘there was room to improve awareness, knowledge
and credibility of the Convention.’16 The audit’s findings accord with the views of one
interview participant in the GBRWHA study:
One thing that's really important [to note] is that there is no consistent brand strategy
around the World Heritage brand. There is no consistent use of the logo and there is
no advice, there is no advice about how you should be using it, there are some rules
by the World Heritage Centre but it's very loose. There has never been a consistent
promotion of Australia's World Heritage sites.17
The inconsistent promotion of Australia’s World Heritage has led to suggestions that there
are levels or ‘tiers’ of World Heritage in Australia.18 Certainly there are differences in how
resources are allocated to individual sites. A disparity in funding allocation was evident as far
back as the 1990s, with an Australian Government committee finding lesser-known sites such
as Fraser Island and the Riversleigh Fossil Mammal Site (in North-West Queensland) were in
‘urgent’ need of financial assistance.19 The issue of ‘tiered World Heritage’ in Australia
(though the Australian Government disputes it) is addressed further in the following chapter.
Australia’s high proportion of natural sites represents an anomaly in the World Heritage
regime. As noted in chapter 2, the World Heritage List has often been considered
Heritage Sites’, 17(1) Journal Of Sustainable Tourism; and Harrison, D., and Hitchcock, D., (eds) The Politics of World Heritage: Negotiating Tourism and Conservation (Channel View Publications, 2005); Arezki, R, Cherif, R, and Piotrowski, J, Tourism Specialization and Economic Development: Evidence from the UNESCO World Heritage List (IMF, 2009); and King, L.M., Halpenny, E.A. (2014) ‘Communicating the World Heritage brand: visitor awareness of UNESCO's World Heritage symbol and the implications for sites, stakeholders and sustainable management’ 22(5) Journal of Sustainable Tourism 768. 15 See for example Buckley, R, (2004) ‘The effects of World Heritage listing on tourism to Australian national parks’ 12(1) Journal of sustainable tourism, 70; and Tisdell, C, and Wilson, C (2002), ‘World Heritage listing of Australian natural sites: tourism stimulus and its economic value’ 32(2), Economic analysis and policy, 27. 16 Australian Government, above n 13, 5. 17 Interview # 5. 18 Lane, M, Corbett T and McDonald G, (1996) ‘Not all World Heritage Areas are created equal: World Heritage Area Management in Australia Society and Natural Resources. 19 Parliament of Australia (House of Reps Committee) Inquiry into Managing Australia's World Heritage (1996) <http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=environ/whainq/whirpt/prelim.htm#summary>
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‘imbalanced’ due to the low number of natural and mixed sites compared to cultural ones.20
There are currently 1052 sites on the World Heritage List consisting of 814 cultural sites, 203
natural sites, and 35 mixed properties. Statistically, therefore, natural and mixed sites thus
make up only 22% of all World Heritage sites. Australia, however, seems to buck that trend.
As a representative from IUCN recently noted:
Looking across the history of the World Heritage Convention, Australia clearly stands
out from the crowd. Together with the United States, it has the highest number of
natural sites on the World Heritage List of any one country – twelve in total.21
Australia has the potential for several more World Heritage sites. At the time of writing, three
sites were recorded on Australia’s official Tentative List of World Heritage, a list intended to
guide future sites for inclusion as World Heritage.22 These include:1) the Great Sandy region
of South East Queensland,23 (2) the Aboriginal fish traps site (Budj Bim Cultural Landscape)
and (3) the Gondwana Rainforests of Australia (on the border of New South Wales and
Queensland). Consultations for a Cape York nomination (Far Northern Queensland) had also
been initiated,24 though there is a suggestion Indigenous communities may not support that
application. One member of the Queensland Parliament has suggested ‘[we] will not allow
conservationists to dominate policymaking in north Queensland.’25
In 2015, Valentine put forward his own tentative list of World Heritage in Australia, which
included:26
20 Figgis, P., Leverington, A., Mackay, R., Maclean, A., Valentine, P. (eds). (2012), Keeping the Outstanding Exceptional: The Future of World Heritage in Australia, (Australian Committee for IUCN, 2012), 50. 21 Badman, T., (IUCN) ‘Australian World Heritage: keeping the outstanding exceptional’ ABC News Online, 8 August 2014<http://www.abc.net.au/environment/articles/2014/08/08/4063029.htm> 22 Out of 192 States Parties to the Convention, 181 have submitted a Tentative List. There are currently 1644 sites on the tentative list. 23 This is basically an extension to the Fraser Island World Heritage Area which will include the Cooloola section of the Great Sandy National Park, the Breaksea Spit to the north of Fraser Island, Platypus Bay, the Great Sandy Strait/Tin Can Bay Ramsar Area and the Wide Bay Military Reserve. 24 Australian Government, Department of Environment ‘World Heritage nomination, -Cape York Peninsula’ https://www.environment.gov.au/resource/world-heritage-nomination-cape-york-peninsula accessed 29 March 2017. 25 The Australian (online) August 20, 2016 ‘Billy Gordon warns of Cape York resistant to heritage listing’ <http://www.theaustralian.com.au/national-affairs/state-politics/billy-gordon-warns-of-cape-york-resistance-to-heritage-listing/news-story/38c08581c561af430d418c8ac71a0c08> 26 Valentine, P, ‘The Future of World Heritage in Australia’ in Figgis, P., Leverington, A., Mackay, R., Maclean,
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o Cape York Peninsula;
o Southwest Floral Region Western Australia;
o Lake Eyre Basin (the Channel Country part of it);
o Kimberley Region (terrestrial and coastal with islands);
o Australian Antarctic Territory;
o Australian Desert Diversity;
o Coral Sea;
o Extensions to the Australian Fossil Mammal Sites; and
o Extensions to the Home of the Eucalypts theme; (including re-nomination of
the Greater Blue Mountains).
Lambers and Bradshaw have argued for the inclusion of a Southwest (Western Australian)
Biodiversity Hotspot: ‘a place where exceptional concentrations of endemic species are
undergoing exceptional loss of habitat,’27 though there seems to be no government support
for this.
3.2.2 Early History of the Convention in Australia
Australia was the seventh nation to ratify the World Heritage Convention, doing so on 22
August 1974. There is little evidence that Australia played a significant role in the
development of the text of the Convention, with delegates from Europe and North America
overwhelmingly driving the agreement. Batisse and Bolla do report, however, that Australia,
along with the United States (US), was particularly vocal in ensuring the Convention clearly
defined ‘all natural properties to be protected and to grant them, in precise terms, a protection
similar to that foreseen for cultural properties.’ 28 Presumably, this was due to Australia and
the US having large geographical landmasses with unique natural landscapes and
biodiversity, at least relative to Europe and Asia (which were likely to have more cultural
A., Valentine, P. (eds), Keeping the Outstanding Exceptional: The Future of World Heritage in Australia, (Australian Committee for IUCN, 2012), 208. 27 Lambers, H, and Bradshaw, D, ‘Australia’s south west: a hotspot for wildlife and plants that deserves World Heritage status’ The Conversation (online) 18 February 2016 <https://theconversation.com/australias-south-west-a-hotspot-for-wildlife-and-plants-that-deserves-world-heritage-status-54885 28 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 68.
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sites). As mentioned above, Australia and the US now have the highest number of natural
World Heritage sites (12 each).
Amongst Australia’s earliest sites to be nominated and entered on the World Heritage List
were the Great Barrier Reef (1981) and the Lord Howe Island group (1982). These listings
were followed by a flurry of mixed sites, including Kakadu (1981), Willandra Lakes (1981),
the Tasmanian Wilderness (1982), and, several years later, Uluru (1987). The 1980s thus
represented the inclusion of iconic and obvious nominations for Australia, guided as they had
been by the sites recommended by the Australian Conservation Foundation (ACF) in IUCN’s
Indicative Inventory of Natural Sites of World Heritage Quality released in 1982. 29 The
1990s, on the other hand, witnessed what we might call ‘the sophistication’ of Australia’s
contribution with the addition of lesser known, but no less remarkable, properties such as
Shark Bay in Western Australia (1991), Fraser Island (1992), Australian Fossil Mammal Sites
(1994), Heard and McDonald Islands (1997), and Macquarie Island (1997).30
29 IUCN, The World’s Greatest Assets: An Indicative List of Nature Sites of World Heritage Quality (IUCN, 1982). 30 Since then, the addition of new natural sites to the List has slowed somewhat, with attention turning towards three of Australia’s only cultural sites: Royal Exhibition Building and Carlton Gardens (2004); Sydney Opera House (2007); and Australian Convict Sites (2010).
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The years surrounding the ratification of the Convention in Australia (1972-1975) had seen a
dramatic rise in environmentalism and interest in the natural world.31 The momentum for
protectionism and conservation in Australia was supported by a more socially-progressive
and environmentally friendly national government. In 1972, over two decades of Liberal-
31 See Hutton, D. and Connors, L., A History of the Australian Environmental Movement (Cambridge University Press, 1999).
97
National Party (conservative) rule had come to an end with the election of the Whitlam Labor
Government (1972-1975). The Whitlam Government was, in essence, ‘socially reformist’ and
recognised that Australia’s natural and cultural sites possessed economic advantages in
regards to employment and tourism.32 At the time, Whitlam had famously argued that
Australia ‘should see itself as the curator and not the liquidator of [its] national estate.’33 On
the other hand, the Liberal-National Party, or the ‘Liberal-Country Coalition’ as it was then
known, was reportedly ‘ideologically opposed to nature conservation’ arguing that ‘it stifled
economic development.’34
Along with conservation of ‘the environment’, the protection (and language) of ‘heritage’
was also becoming popular at the time. Although individual Australian states had attempted
to introduce some basic heritage protections,35 it was not until the 1970s that the Australian
government put the concept of heritage on the national stage. As Scripps and McConnell
write:
The 1970s [represented] a pattern of emerging systematic and government sponsored
heritage conservation throughout Australia and which continued into the 1980s.
Australia’s initial approach to the protection of heritage coincided with the signing of the
World Heritage Convention in 1972. For instance, in 1974, Justice Robert Hope was
commissioned by Whitlam to lead an inquiry into Australia’s ‘National Estate’.36 The
National Estate in Australia was constructed in terms which aligned with the language in the
World Heritage Convention created in 1972. The National Estate was to include, for example,
places: 32 See Davis, B.W. (1998) ‘Protecting the National Estate: Issues and practice in Australian Heritage Conservation’, 8, Environmentalist, 209, 210. Though Whitlam was spectacularly dismissed from office in 1975, he would later go on to play a key role in developing Australia’s heritage history by becoming ambassador to UNESCO in Paris between 1983- 1986. The International Union for the Conservation of Nature (IUCN) made Whitlam an official ‘Member of Honour’ in 1988 and in 1989 he chaired the General Assembly of the Convention. 33 See Hocking, J, Gough Whitlam Guide to archives of Australia’s prime ministers (Australian Government, 2016) at 20. 34 Davis above, n 32, 210. 35 See Scripps, L and McConnell, A ‘Heritage Conservation’ in Companion to Tasmanian History available online < http://www.utas.edu.au/tasmanian-companion/biogs/E000472b.htm> 36 Committee of Inquiry into the National Estate, and Hope, R.M., Report of the National Estate: report of the Committee of Inquiry into the National Estate, (Australian Government Publishing Service, 1974).
98
of such outstanding world significance that they need to be conserved, managed and
presented as part of the heritage of the world.37
A year later, coinciding with their ratification of the World Heritage Convention, the
Australian Government passed the Australian Heritage Commission Act 1975 (Cth) (the
Heritage Commission Act). As Boer and Gruber note, the Heritage Commission Act did not
contain any specific ‘enforcement powers’; although it did provide ‘the catalyst’ for a more
specific focus on heritage issues by both national and state governments.38 The Heritage
Commission Act, though one of the first pieces of national heritage legislation in the world,
has since been described as providing only a ‘basic level of statutory protection.’39 The Act
established a specialist Commission to advise and decide on matters of heritage. As Davis
recalls, this Commission ‘had its origins in the environmental concerns of the 1970s’
(outlined above).40 In line with the National Estate Inquiry, the Heritage Commission Act
also established a register of national:
[p]laces, being components of the natural environment of Australia or the cultural
environment of Australia, that have aesthetic, historic, scientific or social significance
or other special value for future generations as well as for the present
community.41
The support for community and ‘intergenerational’ interests are evident in the above quote,
and strongly reflect the principles of common heritage and intergenerational equity which
underpin the 1972 World Heritage Convention (see the discussion in chapter 2). Moreover,
the language of ‘value’ or ‘significance’ of heritage was, and still is, prominent within the
institutions and instruments of heritage. In 1977 the New South Wales government passed the
37 Prime Minister Gough Whitlam, Press Statement (No.237) April 1974 available online: < http://pmtranscripts.pmc.gov.au/sites/default/files/original/00003221.pdf> 38 Boer, B and Gruber S, (2017), ‘Legal Frameworks for World Heritage and Human Rights in Australia’, Legal Studies Research Paper No. 17/28, 4-5 39 Australian Government, Department of Environment and Energy, ‘Register of the National Estate’ <http://www.environment.gov.au/heritage/places/register-national-estate> accessed 26 October 2017. 40 Davis above n 32, at 210. 41 Australian Heritage Commission Act 1975 (Qld), section 4.
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Heritage Act 1977 (NSW) which established the Heritage Council of New South Wales.
Section 4 of the Act defined ‘environmental heritage’ as:
Those buildings, works, relics or places of historic, scientific, cultural, social,
archaeological, architectural, natural or aesthetic significance for the State
Similar wording was also used in 1979 in Australia in the Charter for the Conservation of
Places of Cultural Significance (the Burra Charter).42 As Cameron and RÖssler point out,
Australia’s Burra Charter has ‘influenced international practice by dealing with the broad
notion of place rather than specific monuments and sites’.43 Over the years, the language of
‘value’ and ‘significance’ [of heritage] has also permeated much of Australia’s environment
and heritage legislation and policy as it has in other parts of the world.44 The idea of
Australia’s heritage having some value or significance sits neatly alongside the concept of
Outstanding Universal Value (OUV), now a key part of the World Heritage framework.45
Though the connection between ‘value’ and heritage is not necessarily new (with Labadi
arguing that it dates back to Immanuel Kant),46 today it is attractive because it ‘compels’
countries to ‘clarify in explicit terms’ the exact attributes ‘that make their nominated
properties so special.47 Similarly, at a domestic level, identifying value in a site challenges
authorities and their communities to think deeply about what places or aspects of their
cultural and natural landscape matter most. This inevitably entails a degree of prioritisation
and politics including from both state and non-state actors. It is to the development of World
Heritage politics and law in Australia that we now turn.
42 The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013. Available online <http://australia.icomos.org> 43 Cameron, C and Rössler, M, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate, 2013), 221. 44 See for example, the discussion in the previous chapter (section 2.2.3) around different definitions of value and significance in Australia’s heritage legislation. 45 For a history and overview of OUV and value in heritage, see Labadi, S. UNESCO, Cultural Heritage, and Outstanding Universal Value: Value-based Analysis of the World Heritage and Intangible Cultural Heritage Conventions, (AltaMira Press, 2013), 26. 46 Labadi, ibid., 12. 47 Ibid., 5.
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3.3 LEGAL FRAMEWORK FOR WORLD HERITAGE IN AUSTRALIA
3.3.1 The World Heritage Properties Conservation Act 1983 (Cth)
During the 1980s World Heritage became a pivotal force in Australian State-Federal
relations.48 The Hawke Labor Government, elected in 1983, following several years of
conservative Liberal rule, fulfilled an election commitment by enacting the World Heritage
Properties Conservation Act 1983 (Cth) (the 1983 Act). The 1983 Act gave the Federal
Government power to veto any development approved or supported by a State Government
which might adversely impact Australia’s World Heritage.49
Shortly after the 1983 Act was passed, the Tasmanian Government challenged its
constitutionality. The Australian states of Queensland, Victoria and New South Wales in time
joined the case. The main issue in the case was whether the Australian Government had the
constitutional power to pass the legislation. Australia’s High Court eventually ruled the 1983
Act was constitutional and in accordance with Australian Government’s external affairs
power contained in section 51(xxxix) of Australia’s Constitution.50 As Zines points out, there
have been several interpretations of what this means since, though the test has stayed largely
the same.51
The 1983 Act has been viewed more as a political move, rather than one that sought to
improve heritage conservation nation-wide. As Boer recounts, the 1983 Act was introduced
with a ‘specific intention’ of stopping the building of the dam on the Franklin River.52 The
adoption of the World Heritage Convention in a domestic law was therefore initially political
rather than aimed, necessarily, at improved conservation measures on a national level. In due
course, this presented limitations to the way Australia implemented the Convention at a
48 See Davis, above n 32. 49 For an analysis of the Act, see Peel, J, (1998) ‘Heritage of Humankind A Call for Reform of World Heritage Protection and Management in Australia’ 14 Queensland University of Technology Law Journal 220. 50 The decision (known as the Tasmanian Dams case) has since become one of Australia’s most famous constitutional cases on the issue of when the external affairs power may be invoked. Today, where the Commonwealth signs or ratifies an international agreement, or indeed, acts in a matter which ‘can properly be said to relate to other nations, or to things external to Australia, [then] the Parliament may pass laws with respect to it.’ Commonwealth v Tasmania 158 CLR 1 (1983), per Gibbs CJ at [90]. For a further interpretation of the external affairs power and recent history, 51 See Zines, L, The High Court and the Constitution (Federation Press, 2015), 404-405. 52 For an overview of this dispute and others, see Boer., B, (1992) ‘World Heritage Disputes in Australia’ 7, University of Oregon Journal of Environmental Law and Litigation, 247.
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domestic level. Thus, as Peel wrote some years later, the 1983 Act represented only ‘a limited
response to the directives of the [World Heritage] Convention.’53
In any event, the 1983 Act had the effect of placing World Heritage front and centre of the
Australian conservation agenda in Australia during much of the 1980s and 1990s. The
modern paradigm of sustainable development had not yet taken hold in Australia (nor indeed
the rest of the world) and it would take several more years (after the Rio de Janeiro
Conference on Environment and Development in 1992) for that to occur.
3.3.2 The Environment Protection and Biodiversity Act 1999 (Cth)
The rather limited protections for World Heritage set out the 1983 Act stood for over 15 years
until they were eventually repealed and replaced by the current Environment Protection and
Biodiversity Act (Cth) 1999 (EPBC Act). The EPBC Act is today Australia’s primary piece of
national environmental legislation, including in relation to the protection of World Heritage
sites. Towards the end of the 1990s, as Anton and Pain write, there had been significance
movement towards creating a national environmental law in Australia that was broad enough
in its approach to real in the ‘conflicted’ agenda of State Governments who had a primary
obligation to (1) protect the environment and heritage; and (2) authorise natural resource
extraction.54
The issue of environmental impact assessment was also relevant at the time with a
recommendation from a Parliamentary Committee that the (then) Environment Protection
(Impact of Proposals) Act 1974 (Cth)55 (the 1974 Act) be amended to ensure that:
Environmental assessment be required when there is the possibility that a proposed
action will damage the World Heritage values of a listed World Heritage area.56
53 Peel, J., above n 46. 54 See Anton, D., Kohout, J., and Pain, N., (1993) ‘Nationalising Environmental Protection in Australia: the International Dimensions.’ 23(3) Environmental Law Review 1 55 This act was repealed by the Environmental Reform (Consequential Provisions) Act 1999 which then was incorporated into the EPBC Act. 56 Parliament of Australia (House of Reps Committee) Inquiry into Managing Australia's World Heritage (1996) <http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=environ/whainq/whirpt/prelim.htm#summary>
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The Australian Government, however, chose not to amend the 1974 Act, but rather to repeal
both the 1983 Act and the 1974 Act (and others) and roll them into the single EPBC Act.
Thus, in 1999 the EPBC Act was introduced which now requires federal government
assessment and approval for any development or activity which will have or is likely to have
a ‘significant impact’ on a ‘matter of national environmental significance’ (MNES). One of
Australia’s MNES is its World Heritage properties (and in addition, the Great Barrier Reef
Marine Park). Other MNES include migratory species, Ramsar wetlands, impacts on water
resources from large coal mining and coal seam gas extraction and nationally threated species
and ecosystems. The assessment of which activities might impact upon MNES is in addition
to any protections offered at the sub-national level, for instance, in Queensland’s legislation
or the relevant by-laws of local Councils on the GBR coast.57
A definition of ‘significant impact’ is not provided for in the EPBC Act; however,
departmental guidelines have since been released.58 The guidelines provide that an action is
likely to have a significant impact on a World Heritage property if ‘there is a real chance or
possibility’ that it will cause its values to be ‘lost, degraded, damaged, notably altered,
modified, obscured or diminished.’59 The guidelines give several examples of how this might
occur, including excavating or infilling activities near the site; modifying landscape processes
which might accelerate erosion; stabilising mobile landforms (such as sand dunes); or
diverting, impounding or channelling a river, wetland or other water body in or nearby to the
site.60
Under the EPBC Act, assessment of the likely impact on World Heritage values may be
undertaken in a variety of ways, including, by preliminary documentation, environmental
impact statement (EIS), public environment report, or pursuant to an endorsed policy plan or
program arising from a strategic [environmental] assessment.61 To avoid duplication in
assessment, Australia has a bilateral agreement with several states, including Queensland, in 57 To avoid the duplication of assessment, there is a bilateral agreement between Queensland and Australia, discussed further below. 58 Australian Government, Department of Environment, ‘Significant Impact Guidelines’ <https://www.environment.gov.au/epbc/publications/significant-impact-guidelines-11-matters-national-environmental-significance> 59 Ibid., 23 60 Ibid. 61 For more on the SEA process, see Marsden, S., (2013)‘A Critique of Australian Environmental Law Reform for Strategic Environmental Assessment’ 32(2) UTas Law Review 276
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which certain state environmental impact laws are ‘accredited’ to cover assessment of
impacts on World Heritage (and other MNES).
The normal course of events in Queensland is for the proponent to undertake an EIS under
the Environmental Protection Act 1994 (Qld) or, more commonly for major projects (major
mines, dams, port expansions, railways etc.), the State Development and Public Works Act
1971 (Qld).62 Both of these acts are accredited under the bilateral agreement. Thus, in
addition to considering impacts on matters of state interest (Queensland biodiversity and its
sensitive areas) the process will also look at impacts on MNES, including World Heritage.
During the course of the assessment, Queensland authorities are entitled to seek advice from
federal agencies such as the GBRMPA,63 and must also consider any management plans for a
World Heritage site.64
The duty is on the entity (state or non-state) undertaking the development to make sure their
proposal is referred to the Australian Government for assessment. Under section 15A of the
EPBC Act, it is a criminal offence to carry out an activity that might have a significant impact
on impact on the values of a World Heritage site without approval or exemption from the
Federal Environment Minister (in addition to any state approvals). The case of Booth v
Bosworth,65 for instance, brought in the public interest by a bat conservationist, found that a
farmer’s conduct in in operating a large electric grid on their lychee orchard for the purpose
of killing flying foxes was ‘likely to have a significant impact’ on the adjacent Wet Tropics
World Heritage Area. The Federal Court ordered that the grids be dismantled.
Outside of the EPBC Act, with the possible exception of the Wet Tropics,66 Australian state
and territory legislation tends to ignore or sidestep the language of World Heritage. This is
62 The Curtis Island Development, for instance which first sparked the attention of the World Heritage Committee was undertaken pursuant to the State Development and Public Works Organisation Act 1971 (Qld). 63 Bilateral Agreement between Queensland and the Commonwealth under section 45 of the EPBC Act Relating to Environmental Assessment (effective 18 December 2014), section 18.3. 64 Ibid., section 31(a) 65 [2000] FCA 1878 (13 December 2000) 66 The Wet Tropics has its own Queensland legislation that concerns World Heritage management. See: Wet Tropics World Heritage Protection and Management Act 1993 (Qld). That Act establishes the Wet Tropics Management Authority which is responsible to both the Australian and Queensland governments ‘to ensure that Australia’s obligation under the World Heritage Convention in relation to the wet tropics area are met.’ (see section 7). The Act also provides for the creation and implementation of the Wet Tropics Management Plan 1998.
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unsurprising given the administrative responsibility for maintaining World Heritage values
rests with the Federal Government’s Department of Environment and Energy in Canberra (as
well as the Department of Foreign Affairs). That said, Queensland’s Environmental
Protection Act 1994 (Qld) (the EP Act) does (now) create an extra category of offence for
pollution affecting ‘an area of special significance, such as the GBRWHA.’67 Section 504 of
the EP Act is also aimed at the commission of the offence which caused, or which was likely
to cause, environmental harm to the Reef, although there is no mention of OUV or impact on
World Heritage values and the Convention framework. Interestingly, other World Heritage
sites in Queensland such as the Riversleigh Fossil Sites or Fraser Island are not included as
special categories of an offence. This possibly reflects the ‘tiers of Australia’s heritage,’
mentioned above and discussed further in the following chapter.
3.3.3 World Heritage Litigation in Australia
Australia has a notable history in domestic litigation concerning the World Heritage
Convention. Over a dozen relevant decisions have been handed down which have concerned
the potential impacts of developments or other activities on World Heritage, including in
relation to the Great Barrier Reef. The most relevant of these include the decisions of: Booth
v Bosworth,68 Minister for the Environment and Heritage v Queensland Conservation
Council Inc.,69 Coast and Country Association of Queensland Inc. v Smith & Ors,70 and
Australian Conservation Foundation Incorporated v Minister for the Environment.71
Moreover, in the 1980s and 1990s, several cases concerned the protections under the
forerunner to the EPBC Act (the 1983 Act), including Commonwealth of Australia v.
Tasmania72 (the Tasmanian Dams Case), Richardson v. Forestry Commission,73 and
Queensland v. Commonwealth.74
67 Environmental Protection Act 1994 (Qld), section 17. 68 [2001] FCA 1453 69 [2004] FCAFC 190 (30 July 2004); 70 [2016] QCA 242 71 [2016] FCA 1042 72 (1983) 158 CLR (Commonwealth Law Reports) 1 (Australia); 73 (1988) 164 CLR 261 74 (1988) 62 ALJR 143
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Scholars such as Boer,75 Forrest,76 Peek and Reye,77 and McGrath,78 have expertly charted
the facts, reasoning and significance of these cases and there is little need to reproduce that in
significant detail here. What is more interesting to note, however, in the context of this thesis,
is that judicial decisions have driven the legal interpretation of the Convention in Australian
Courts and helped shaped the implementation of international law in Australia. World
Heritage litigation in Australia has also provided a platform to debate broader legal issues
such as: the constitutionality of government decision-making; standing for public interest
litigation; the ‘public interest’; merits and judicial review; environmental crime; costs for
public interest litigants and climate change. Accordingly, the contribution of World Heritage
to Australia’s jurisprudence goes deeper than the rather narrow protections offered in the
1983 Act and those of the current EPBC Act.
Moreover, most of the case law referred to above involved public interest litigants or,
alternatively, were the result of increased community attention which fuelled disagreements
between state and federal governments culminating in the litigation. Litigation is often a last
resort for NGOs, including in relation to World Heritage in Australia. As one NGO
participant reflected:
we’d been lobbying against the [impacts on the site] for a long time. [But litigation] is
always the last resort. Going to court is not cheap and it’s not easy and involves huge
amounts of midnight oil.79
Overall, as Hølleland writes, World Heritage has become a key part of Australia’s
environmental policy and political history for most of the late 20th century.80 It was a means,
she suggests, to challenge the ‘power relations’ between state and federal governments in
75 Boer, B., above n 49. 76 Forrest, C., (2007) An Australian perspective on World Heritage sites, 27 Numero Special, Revue Juridique de L'Environnement, 123. 77 Peek, M., and Reye, S. ‘Judicial Interpretation of the World Heritage Convention in the Australian Courts’ in Hoffmann, B (ed.), Art and Cultural Heritage (Cambridge University Press, 2006). 78 McGrath, C., ‘Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest’ (2008) 25 Environmental and Planning Law Journal 324 79 Interview # 8. 80 Hølleland, H., (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), 129
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Australia81 but as Haigh writes, it also meant that ‘Australia [has lead] the world in the
development of World Heritage law.’82 The campaigns and presence of NGOs in Australia,
like WWF, the Australian Conservation Foundation (ACF) and The Wilderness Society
(TWS) were integral to much of this litigation and it is to their presence and influence we
now briefly turn.
3.4 NGOS AND AUSTRALIA’S WORLD HERITAGE
Many of Australia’s ‘icons of popular heritage’ are the recipients of increased protection due
to the Convention and Australian legislation used to implement it (the 1983 Act and later the
EPBC Act). But as Lennon remarks, they have only achieved such status through ‘bitter
contests with a variety of communities and commercial interests.’83 Natural (and mixed)
World Heritage properties like the Wet Tropics, Fraser Island, Tasmanian Wilderness,
Kakadu and the GBRWHA have been particularly contentious and thus the focus of high
levels of NGO activism, including around listing decisions (e.g. the Wet Tropics and Fraser
Island) as well as efforts to conserve listed sites from the impacts of resource extraction such
as the Tasmanian Wilderness (logging) and Kakadu (mining).
We might say, therefore that Australia’s NGOs have proudly cemented their place in
Australia’s World Heritage history.84 Indeed, as Valentine recently concluded:
The history of World Heritage in Australia will be written about communities,
especially the environmental NGOs, ahead of politicians or bureaucrats.85
There is evidence that NGOs have in fact been vocal supporters of Australia’s World
Heritage, since the very beginning. The Australian Conservation Foundation (ACF) for
instance, played a central role in the late 1970s in ‘selecting’ the potential World Heritage
81 Ibid., 154. 82 Haigh, D, (1997) ‘Marine World Heritage Sites’ 2(2) Asia Pacific Journal of Environmental Law 133, 137. 83 Lennon, J., (2006), ‘Paris down under - World Heritage impacts in Australia’ in Hoffman, B.T. (ed), Art and cultural heritage : law, policy, and practice, Cambridge University Press, 2006), 210. 84 The term NGO is discussed and defined in more specific terms in chapter 6 of this thesis. 85 Valentine, P, ‘The Future of World Heritage in Australia’ in Figgis, P., Leverington, A., Mackay, R., Maclean, A., Valentine, P. (eds), Keeping the Outstanding Exceptional: The Future of World Heritage in Australia, (Australian Committee for IUCN, 2012), 210.
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sites that might be included from Australia. 86 Later on, groups like the Cairns and Far North
Environment Centre (Wet Tropics; 1980s), 87 Fraser Island Defenders Organisation (Frazer
Island; 1970s) and the Wilderness Society (Kakadu; 1990s) proved instrumental in securing
protections and raising awareness of World Heritage issues. The events in the case in this
thesis show that several other NGOs have also become prominent actors in Australia’s World
Heritage, including WWF, the Australian Marine Conservation Society (AMCS) as well as
Greenpeace.
The rise of Australian NGO interests in World Heritage, including regarding the GBRWHA,
seems to have evolved largely to counter pro-development agendas of conservative state
governments in and around ecologically sensitive areas. World Heritage, it seems, merely
provided them the mechanism on which to challenge these issues. NGOs have filled ‘a void’
in this sense, using the media and more recently social media to help set environmental
agendas on what World Heritage is and how it should be protected. This view accords with
Lehman’s remarks more generally that NGOs ‘have risen to prominence’ in world affairs ‘as
they attempt to fill [an] accountability vacuum’ left by governments.88
The fact that sites like Kakadu, the Tasmanian Wilderness and the GBRWHA were declared
World Heritage meant that NGOs were able to tap into an additional or ‘higher’ recognition
from the international community. In this way, World Heritage gave an additional source of
authority for their efforts, and a process and means of influence that bypassed both state and
federal governments. Some referred to this as the international pressure which World
Heritage can provide:
The international pressure I think was unquestionably a huge part of the momentum
we've got going. Just providing that power at a higher level than the government and
86 IUCN, The World’s Greatest Assets: An Indicative List of Nature Sites of World Heritage Quality (IUCN, 1982), 8. 87 CAFNEC was a coordinating body for a number of North Queensland NGOs throughout the 1980s including: The Cape Tribulation Community Council; The Tablelands Nature Awareness Society; Wildlife Preservation Society (Cairns branch); Wildlife Preservation Society ( Innisfail branch); North Queensland Naturalist Club; Barron River Canoe Club; Society for Growing Australian Plants (Cairns branch); Cooktown Conservation Committee; North Queensland Land Council; Cairns Underwater Association. See CAFNEC, ‘How the Wet Tropics Was Won’ <http://cafnec.org.au/about-cafnec/how-the-wet-tropics-was-won/> 88 Lehman, G., (2005) ‘The accountability of NGOs in civil society and its public spheres’ 18(6) Critical Perspectives on Accounting 645, 645.
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creating room for the environmental movements to then have leverage against their
our own governments.89
The leverage that the participant talks about above has driven a wedge, often successfully,
between state and federal heritage politics in Australia. The state of Queensland, for instance,
which is home the GBRWHA, Fraser Island and the Wet Tropics has faced considerable
controversies over the years driven largely by NGO influence. As Queensland is a vast,
resource rich state, these conflicts have arisen largely due to land use conflicts between issues
such as agriculture, development, and mineral extraction. Such conflicts are probably to be
expected, given, as one of Australia’s largest states, Queensland has always been ‘heavily
reliant on environmentally intensive agriculture and mineral extraction’.90 It is not
uncommon, therefore, to see Queensland resist oversight from the Federal Government, and
at times resist the views of the international bodies like IUCN and UNESCO regarding their
right to govern.
All this creates a level of state-federal tension in Australia, and one that is not always evident
from reading the documented opinions of IUCN, UNESCO and the World Heritage
Committee. For instance, during the development of the Strategic Assessment and Long
Term Plan for the Reef, a senior government official from the Australian Government noted:
we all worked very hard to find agreement [between the stakeholders], it’s just that
the level of hard work isn’t always visible.91
The resistance to international oversight in Australia (where it does occur)92 seems to be
based on either an ignorance of how the World Heritage system works, or blatant disregard of
the need to ‘share power’ with the national and international realm. Possibly it reflects both.
89 Interview #1. 90 Kellow, A., and Niemeyer, S., (1999) ‘The Development of Environmental Administration in Queensland and Western Australia: Why are they Different?’ 34(2) Australian Journal of Political Science, 205 91 Interview #12. 92 Note, at times there seemed to be little resistance to the demands of the Committee. The factors outlined in chapters 3 and 4 of this thesis certainly suggest it was easier to pull compliance in this case than it was, for example, in Kakadu.
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For example, in response to the UNESCO/IUCN Reactive Monitoring Mission (RMM) report
in 2012, the Deputy Premier of Queensland stated:
I wonder about why UNESCO needs to be involved at all. To suggest that we have to
inform them is something that doesn't sit easily with me. I think Queensland is a state
on its own, Australia is a sovereign country and we have all of the capabilities that are
required to administer our development and our own environment.93
These comments are perhaps unsurprising from a conservative state which disputes and
resists international oversight into its affairs. Thus we arrive to the greatest source of tension
between conservation of World Heritage sites and NGOs seems to be what Valentine has
labelled ‘the agenda of state governments.’94
It is arguably the case that strong environmentalism and an active civil society matters more
in areas like Queensland with numerous and outstanding natural assets facing pressures due
to land use conflicts. The state of Queensland, for instance, has been described as a ‘long
standing bastion of political conservatism’, or as one NGO has put it:
[due to] its strong pioneering frontier ethos, [Queensland] has historically
undervalued its natural resources in the name of agrarian progress and utilitarian
need.95
As a result, we should not be surprised that NGO activism has been omnipresent at
Queensland’s World Heritage sites over the years, and the GBRWHA is perhaps no different
in this regard. Outside of the Reef, there are other studies of World Heritage battles worth
briefly reflecting on. Fraser Island (listed as World Heritage in 1992), for example, was the
subject of fierce NGO advocacy with John Sinclair and others notorious battle over
sandmining on the island which was finally stopped in 1974.96 Sinclair at one point took his
93 ABC News, Interview with [then] Hon Minister J Seeney, April 12, 2012. <http://www.abc.net.au/pm/content/2012/s3476089.htm> 94 Valentine, above n 82, 213. 95 See CAFNEC, above n 84. 96 The practice still occurs on North Stradbroke Island, not a World Heritage site.
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challenge to the High Court, and the resulting decision has become important for
understanding the ‘public interest’ in mining applications in Queensland.97
Similarly, the listing of the Wet Tropics of North Queensland (including the Daintree
Rainforest) was also hard-fought and won by and large by North Queensland
conservationists. NGOs spent the best part of a decade campaigning for stronger protections
for the area which was eventually listed as World Heritage in 1988, and now lays claim to its
own piece of protection legislation at the Queensland level: the Wet Tropics World Heritage
Protection and Management Act 1993 (Qld). Consider this historical account written by one
of the NGO participants involved, of ‘how the Wet Tropics was won’:
The dynamic relationship between ecological and socio-economic forces [came] to
the fore during the 1980s in North Queensland. As in many environmental debates in
Queensland, the focus often shifts from a regional to a national and at times global
sphere, where the Commonwealth becomes involved in the decision making
process….The passion, diligence and sense of conviction from NGOs successfully
pressured the Commonwealth Government to use its foreign affairs powers to protect
the biologically rich northern rainforests. The [NGO] campaign demonstrated the
capability of conservationists to organise themselves into a politically potent force
and to change public attitudes towards preserving the natural environment. The
‘campaign’ covered a diversity of strategies over more than ten years from lobbying,
direct action, mass mobilisation and political endorsements. The ability of all
disparate groups to network towards a mutual goal, whilst being entwined in the
dynamics of State versus Federal rights, is commendable.98
Finally, it is worth nothing that though NGOs have filled a void in many ways, they
themselves have become targets for their own legitimacy and accountability. These attacks
seem to reflect a more general trend globally where NGOs have become subject, and perhaps
rightly so, to far more concentrated concerns over their influence in global affairs.99
97 See Sinclair v Maryborough Mining Warden (1975) 132 CLR 473. See for instance Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 (15 December 2015) 98 CAFNEC, above n 84. 99 See Jepson, P., (2005) Governance and accountability of environmental NGOs’ 8 Environmental Science & Policy 515.
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Outspoken critics, like Johns, for instance, have described NGOs as the ‘tyranny of the
articulate’ or a ‘tyranny of the minorities.’100 These concerns are inherently political as well
as many of the activities of civil society (including in World Heritage) directly challenge
conservative government agendas with respect to development. Most recently, for instance,
the current Australian Attorney-General has branded environmental NGOs as architects of
‘lawfare’ for opposing coal mines, ports and other potentially damaging developments.101
In Australian environmental issues, NGOs have also been called ‘eco-traitors’102 and eco-
terrorists,103 reportedly conspiring to stall and delay legitimate developments.104 In relation to
the Reef, in particular, some have directly targeted ‘activist groups’ claiming they have:
used reef scaremongering to raise millions of dollars in donations from an
unsuspecting public.105
The issue of NGOs and their legitimacy and contribution the phenomenon of compliance pull
is a worthy topic for normative debate. But it also attracts an empirical question: How and in
what ways can they exercise legitimacy in governance? This is discussed further in chapter 6
of this thesis. For now, however, there is no question that anti-NGO sentiment runs deep in
some of Australia’s conservative circles. The story of Australian World Heritage and the
GBRWHA, hard fought as it has been, is certainly no exception to this. We turn now to
examine the reputation of another suite of actors in World Heritage, the reputation of
Australian Governments.
100 See comments by Johns, G., 2002, ‘Government and Civil Society: Which is virtuous?’, Senate Occasional Lecture, Canberra, Australian Senate, 22 August, 4-5. Reproduced in Staples, J.I., NGOs Out in the Cold: Howard Government Policy Towards NGOs (January 26, 2007). UNSW Law Research Paper No. 2007-8; Democratic Audit of Australia Discussion Paper No. 19/06. 101 See Clark, C., (2016), 'The politics of public interest environmental litigation: lawfare in Australia', 31(7), Australian Environment Review, 258. 102 The Guardian (online) ‘Nationals MP says Environmentalists are Guilty of Treason’ 25 March 2015 <https://www.theguardian.com/environment/2015/mar/25/great-barrier-reef-nationals-mp-says-environmentalists-are-guilty-of-treason> 103 The Australian (online) ‘Stop Giving the Eco Terrorists Free Range to Bully’) 1 April 2014. 104 The Courier Mail (online) ‘Landholder Law Changes to Impact Royalties’ 20 July 2015. 105 ABC News, ‘Queensland Launches Reef Tourism Campaign’ 2 July, 2015 <http://www.abc.net.au/news/2015-07-02/queensland-government-launches-reef-tourism-campaign/6588712>
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3.5 AUSTRALIA’S REPUTATION IN WORLD HERITAGE
3.5.1 A Reputation for Excellence
Perhaps because of the influence of an organised civil society, or perhaps because (what
seems less likely) of the initiatives of progressive and environmentally-friendly governments,
Australia stands out for being ‘really good’ at World Heritage.106 As Harrington and Buckley
have written, Australia has ‘a justifiably proud record in World Heritage, including ‘excellent
systems for management, monitoring and impact assessment.’107
In the 1996 parliamentary inquiry into Australia’s World Heritage estate, Bing Lucas, ‘a
noted international conservation expert who has advised UNESCO on world heritage matters’
addressed the Committee as follows:
I do not know of any country in the world which is perceived to take its
responsibilities under the World Heritage Convention more seriously than Australia.
Colleagues worldwide tend to support this view.108
Certainly these themes resonated closely with the primary case data in this thesis. As a
representative from the IUCN commented:
Australia takes [World Heritage] seriously. It has high capacity and it has high quality
in terms of what it does.109
In addition to World Heritage, Australia also leads the world in many aspects of marine and
coral reef science. Much of the expertise on the Reef is driven, as might be expected, not by
the Department of Environment and Energy in Canberra, but by GBRMPA and their various
106 Interview # 9. 107 Harrington, J., and Buckley, K., (2014) ‘Marking four decades of World Heritage - The view from Australia’ 26(2), Historic Environment, 16, 20. 108 See comments by Lucas, B., in Australian Government Parliamentary Inquiry into Australia’s World Heritage (1996) text of report available online <www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=environ/whainq/whirpt/chap2.htm> 109 Interview #9.
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epistemic partners based in Northern Queensland.110 For example, GBRMPA’s approach to
zoning and marine spatial planning over the years has been considered world class, and
stands out as a case study for how other marine protected areas, even on a scale equivalent to
that of the Reef, might also be effectively managed.111
Australia’s reputation in World Heritage dates back to the early days of the Convention.
Cameron and RÖssler, for instance, recall remarks from former World Heritage program
director Jim Thorsell:
Australia [in the 1980s] was kind of leading the pack on World Heritage. They were
implementing and using the Convention more than any country ever had before to
further the aims of government and conservation in the country.112
A large part of that ‘use’ of the Convention, as alluded to above, was the result of
considerable NGO influence and tact. Albeit, to their credit, governments in Australia
(particularly federal Labor governments) responded to civil society concerns by passing laws
and introducing policies aimed at protecting the values of World Heritage sites, including, for
instance, recently banning dumping of dredged material anywhere in the GBRWHA.
The embrace of World Heritage in Australia has resulted in an extra level of legal protection
for many of Australia’s iconic natural places. Australia seems to stand out in this regard being
one of the few countries to have implemented specific legislation to give effect to the
Convention’s goals and objectives.113 In doing so Australia is unique, Hall writes, as the
majority of member states under the Convention have failed to provide legal protections for
their sites following a World Heritage listing.114
110 These include the Australian Institute of Marine Science (AIMS) and the Australian Research Council (ARC’s) Centre of Excellence for Coral Reef Studies which is a partnership between GBRMPA, AIMS and several leading universities including: James Cook University, the University of Queensland, the Australian National University and the University of Western Australia. 111 See Kenchington, R. A. and Day, J. (2011). ‘Zoning, a fundamental cornerstone of effective Marine Spatial Planning: lessons learnt from the Great Barrier Reef, Australia.’ 15(2) Journal of Coastal Conservation, 271. 112 Cameron, C and Rössler, M, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate 2013), 170. 113 See Boer above n 49. 114 Hall, M. ‘Implementing the World Heritage Convention: What Happens after Listing?’ in Leask, A, and Fyall, A (eds) Managing World Heritage Sites (Elsevier Ltd, 2006), 24.
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3.5.2 Distinguishing Effective Stewardship from Procedural Compliance
It is true, as the above demonstrates, that Australia is relatively strong in World Heritage. As
a senior official from the Australian Government Department of Environment and Energy
commented:
[w]e are very confident in our management of World Heritage properties and the
quality of the environmental impact assessment processes we have in place to protect
the outstanding universal value of the properties. We are known in the World
Heritage system for our transparency and a good management of our properties.115
This certainly seems accurate, however, at times the Australian Government relies too
heavily (and too publicly) on its credentials in World Heritage to its own detriment. Such a
stance doesn’t allow Australia to take a more critical and honest look at exactly what it is
trying to achieve in managing its World Heritage sites. Is it, for instance, trying to meet the
minimum administrative and procedural requirements of the Convention, or does it have a
broader and more aspirational stance to preserve and protect Australia’s common heritage for
current and future generations?
The latter commitment refers to what Weiss and Jacobson might call spirit of the treaty
compliance and differs significantly from procedural (or even substantive) compliance.116 It
also differs significantly from the idea of effectiveness. Weiss and Jacobson’s separation of
those three concepts is reproduced in the graphic below.
115 Interview #12. 116 See section 2.4.1
115
The pertinent point to note is that the box at the right hand side of the figure distinguishes
clearly between the issues of effectiveness, compliance and implementation. Further, on the
topic of compliance in MEAs – which this thesis is predominantly concerned - a further
distinction is made between procedural, substantive and ‘spirit of the treaty’ compliance.
Each of these issues is unique, and though a state might suggest it is complying with a treaty,
there is nothing to suggest it should be equated with meeting the objectives of the treaty.
In the study, for instance, Australia seemed to equate substantive compliance with procedural
compliance in regards to its World Heritage commitments. The 2015/2016 Annual Report
from the Department of Environment and Energy, for example, concluded that:
No Australian World Heritage property was placed on the UNESCO List of World
Heritage in Danger, reflecting Australia’s continued good stewardship of World
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Heritage places. [Accordingly] all [of Australia’s] properties are [being] well
managed.117
The point is that a decision of the Committee not to list a site In Danger is not in itself a
reflection of substantive compliance or effective World Heritage stewardship. In fact, leaving
aside the more technical legal question of whether the GBRWHA should have been listed In
Danger,118 there is little doubt that the substantive concerns for the site remain: that is, the
ecological health and its outstanding values continue to decline rapidly. On one level this
speaks to the Australian Government’s refusal to honestly recognise the sad state of the
health of the site (and an unwillingness to equate it with flawed governance), but on another
level it rather starkly highlights the mismatch between the separate concerns of compliance,
implementation and effectiveness that Weiss and Jacobson referred to above.
A similar story can be told about Kakadu National Park, which was the subject of controversy
during the 1990s when uranium mining threatened to put at risk the values of the site. At the
time that Kakadu came to the attention of the Committee, as Maswood reported, only ‘4 per
cent of heritage-listed sites’ had been inscribed on the In Danger List.119 The fact that it
Kakadu was even being considered as In Danger was certainly out of the ordinary for a
developed and wealthy nation such as Australia. Fortunately for the Australian Government,
and only after intensive lobbying (reminiscent of this GBRWHA case study), the Committee
ignored recommendations from IUCN and ICOMOS (who wanted to list the site In Danger)
and Kakadu was kept off the List.
Kakadu might therefore be seen as a procedural victory for Australia. Nevertheless, despite
this outcome, as Hintjens reports, the Kakadu saga caused considerable impact to Australia’s
reputation in the World Heritage system, including in the eyes of major players like the
United States.120 Moreover, Kakadu was also seen as a ‘threshold issue’ by the World
117 Australian Government, Department of Environment and Energy, Annual Report 2015-2016, 43. 118 See Earth Justice and Environmental Justice Australia (2015) ‘Protecting the Great Barrier Reef: A Legal Assessment of the World Heritage Committee’s May 2015 draft decision concerning the potential inscription of the Great Barrier Reef on the List of World Heritage in Danger.’ <https://envirojustice.org.au/major-reports/protecting-the-great-barrier-reef> 119 See Maswood, S (2000) ‘Kakadu and the Politics of World Heritage Listing’ 54(3), Australian Journal of International Affairs, 357 120 Hintjens, H., (2000) Environmental direct action in Australia: the case of Jabiluka Mine. 35(4) Community
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Heritage Committee in terms of applying standards of the Convention,121 and attracted a
considerable amount of the Committee’s attention, resources and time.
The Tasmanian Wilderness has also delivered a ‘black mark’ on Australia’s reputation for
substantive and/or spirit of the treaty compliance. The Tasmanian Wilderness World Heritage
Area has a controversial history that has been going on for some time now. 122 The property
was first inscribed as a mixed site in 1982, following a long-drawn out conflict between the
Tasmanian and Australian Governments, loggers and conservationists (see the Tasmanian
Dams Case above). The boundaries of the area were extended three times in 1989, in 2010,
and most recently, in 2013.123 In 2014, however, for what might only be considered reasons
of politics, the newly elected Liberal [Abbott] National Government sought to reduce size of
the World Heritage area by up to 74,000 hectares, largely to allow additional logging
practices. Then Prime Minister Tony Abbott argued:
The 74,000 hectares is not pristine forest. It’s forest which has been logged, it’s forest
which has been degraded, in some cases, it’s plantation timber that was actually
planted to be logged.124
In his speech to the logging industry, Abbott had claimed that the industry were in fact the
‘ultimate conservationists’:
We don't support, as a government and as a Coalition, further lockouts of our
forests…We have quite enough National Parks, we have quite enough locked up
forests already. In fact, in an important respect, we have too much locked up forest.125
Development Journal 377. 121 Maswood, above n 116, 358. 122 See for instance: Kellow A, (1989) ‘The Dispute over the Franklin River and South West Wilderness Area in Tasmania’, 29 Natural Resources Journal 129. 123 Australian Government, Department of Environment and Energy, ‘Tasmanian Wilderness’ <https://www.environment.gov.au/heritage/places/world/tasmanian-wilderness> 124 Sydney Morning Herald (online) ‘Abbott’s Speech to the Australian Forest Products Association, 4 March 2014 <http://www.smh.com.au/federal-politics/political-news/tony-abbotts-speech-to-the-australian-forest-products-association-20140304-3464m.html> 125 Ibid.
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At the World Heritage Committee meeting in June 2014, it took just 10 minutes to reject
Australia’s request for a reduction in the size of the site.126 One interview participant in the
GBRWHA study recalled the Committee’s anger over the issue:
Participant: … 2014 was the big barney around the Tasmanian wilderness.
Interviewer: That's right. They wanted to increase the area?
Participant: Well initially [in 2013 Federal Environment Minister Tony]
Burke wanted to increase the area … they were seeking an
expansion of the area but they hadn't done the
proper documentation. They hadn't done the proper
consultation …and yet they forced it through, they really really
forced it through the Committee because Burke wanted to go
to the election [in September 2013] and say that they had it. And then,
as part of the LNP election campaign [Australian Senator Richard] Colbeck
et al promised that it would have been excluded. So then the next year, 12
months later, Australia was back at the Committee saying we want to
excise all these areas… And they were told to go packing.
Interviewer: That's right, in 10 minutes or something.
Participant: Precisely. People were totally pissed off.127
Despite all the controversies surrounding Kakadu, and more recently the Tasmanian
Wilderness and the GBRWHA, it is still reasonable to conclude that Australia enjoys a strong
reputation for managing World Heritage issues. In 2015, for instance, when the GBRWHA
was being considered for an In Danger Listing, almost all of the 21 members of the
Committee spoke positively of Australia’s determination and expertise. Portugal, for
instance, which had one of the most vocal nations in critique of the Australian Government in
Doha in 2014, commended Australia’s ‘determination’ in addressing issues facing the
GBRWHA.128 Lebanon also congratulated Australia on what it achieved within a year.129
Vietnam stated that Australia ‘has seriously listened to our concerns’ and highlighted
126 ABC News (online) UNESCO rejects bid to delist world heritage forest’ 24 June 2014. <http://www.abc.net.au/news/2014-06-24/unesco-rejects-bid-to-delist-world-heritage-forest/5538946> 127 Interview #5. 128 See the YouTube recording of 39th Session of the World Heritage Committee Meeting in Bonn, Germany 1 July 2015. At video 1 hour 53mins < https://www.youtube.com/watch?v=rv_TzLFMKfE> 129 Ibid., at 1 hour 56 mins.
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Australia’s ban on dumping of dredged spoil, its targets for water quality and limits to port
development.130 Finally, the delegate from Finland noted Australia had shown ‘remarkable
achievements’ to address the situation.131
There is a lingering question, however, about how much of this represents Australia’s
excellence in World Heritage management, and how much reflects Australia’s skills in
diplomacy and politics on the global stage. It is to those issues we now turn.
3.5.3 Australia’s ‘Diplomatisation’ of World Heritage
As the above suggests, Australia had (and has) a particularly strong reputation in World
Heritage. Given its domestic legislation, instances of litigation, and expertise in scientific and
policy endeavours, it is considered ‘one of the main players’ in World Heritage. 132
Accordingly, as Hølleland writes, it has been able to use its ‘strong international position’ to
its advantage.133 Whilst there have been instances of controversy and weakening of
Australia’s position (Kakadu and the Tasmanian Wilderness), Australia has on the whole
enjoyed a strong reputation.
In the case of the GBRWHA, Australia seemed able to shrug off (or silo) the controversies at
Kakadu and Tasmania. A question arises as to how relevant these controversies were to the
GBRWHA debate. The reputation of a state, as Guzman suggests, is ‘contingent on its past
behaviour, but it is the knowledge that today’s conduct will affect tomorrow’s reputation that
gives reputational sanctions their force.’134 Thus, we might theorise that the Australian
government was thinking less about the disputes at other sites (or down playing them) and
more about the decisions it would like to reflect in the coming years, including for instance,
its relationships with states outside of World Heritage and conservation circles.
The wider diplomatic reputation of Australia to World Heritage decision-making presents an
intriguing side angle to consider. The omnipresence of the Department of Foreign Affairs and
130 Ibid., at 1 hour 57 mins. 131 Ibid., at 2 hours. 132 Hølleland, above n 77, 237. 133 Ibid. 134 Guzman, A, How International Law Works: A Rational Choice Theory, (Oxford University Press, 2008), 86.
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Trade (DFAT) at World Heritage Committee meetings aligns with the literature around the
politicisation of World Heritage.135 Discussions are said to occur, and decisions said to be
made, with focus on a variety of ‘relevant and irrelevant’ points, by diplomats in negotiations
and agreements behind closed doors and in the ‘corridors of power’.136 Whilst a site like the
GBRWHA might come to the attention of the Committee through science, consideration of
its status is overtaken by diplomats and ministers able to negotiate and politicise the process.
As one participant in the GBRWHA case study reflected:
Once foreign affairs bought into it, it just changed the whole flavour of the diplomatic
response. It was quite remarkable.137
Similar comments were made by the Australian based NGO WWF-Australia (WWF), who
had invested heavily in attending World Heritage Committee meetings and meeting with
delegates between 2012 and 2015. The participant from WWF noted:
Once the Australian Government had decided to invest in lobbying and spin and all
that kind of stuff, we knew the game was up. You know, there’s a point where we just
can’t compete any more.138
If we were to look more critically at all of this, we might say it reflects two things. The first
thing it tells us is that the Committee members bought into Australia’s arguments. Just like in
Kakadu, the diplomatic onslaught by the Australian Government had paid dividends.
Australia (and Queensland) played a strong hand in this regard, lobbying and persuading
Committee members and their advisors to support their position and keep the GBRWHA off
the In Danger List. Some of this aligns with how Australia reacts in other international
settings. As one interview participant in the study commented:
135 See some of that discussion in chapter 1 (section 1.3) and chapter 2 (section 2.3.4) 136 See Hølleland, above n 77. 137 Interview # 5. 138 Interview # 10.
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Participant: Australia's performance in a lot of these international
[environmental] treaties, is, you know, they’ll [be]come the
bully boy, and they don't win friends at all…
Interviewer: So Australia kind of pushes their weight around?
Participant: They really do. Very much so. 139
The second insight to make, and perhaps more concerning, is that it might also reveal a view
held by other nations that the standards they might need to meet are (or were likely to be)
considerably raised. This is far more disturbing observation, as it goes not to the to the
strength of Australia’s diplomacy and the merits of their arguments for keeping the site off
the In Danger List, but, instead, it speaks directly to the self-interest of the other countries
that have a duty of upholding the objectives of the Convention. These claims are difficult to
substantiate, though there was empirical evidence from the case study that it might exist. As
one interview participant commented:
Participant: [The GBRWHA] sort of set a precedent. For a lot of
members, you know Australia has gone to these lengths, [so]
does that mean we have to go to these lengths?
Interviewer: Right, so for their sites they're going to be sitting there going:
‘[well] do we have to do this?140
And elsewhere in the same interview:
[a number of Committee members] seemed concerned that the whole reef situation
could set a precedent for their own sites with that level of scrutiny. So they were
getting concerned particularly when they saw the efforts that Australia was going
to.141
And again:
139 Interview # 5. 140 Interview # 5. 141 Ibid.
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That is one of the ironies, the depth of measures and the range with which Australia
was discussing was beyond what the committee members were thinking of with
respect to their own sites.142
Maswood drew similar conclusions about the Committee’s refusal in the late 1990s to list
Kakadu In Danger, citing the fact that individual Committee members put their own interests
ahead of that of the site:
Contrary to the accepted wisdom that the [Committee] had compromised itself by
rejecting internal scientific advice, the [Committee] decision reflected a rational
choice to prevent defection and non-compliance that could potentially be more
damaging to the heritage regime. The [Committee] had caved in to Australian
pressure but its consequences are likely to be less damaging than if the [Committee]
had accepted the recommendation of associated scientific agencies and found its
decision ignored by the Australian Government.143
In the end, one can’t be sure of the Committee members reasons for voting a particular way
in the Bonn 2015 meeting (without interrogating those members themselves that is). From the
outside, all 21 members of the Committee seemed satisfied with Australia’s commitments
between 2012 and 2015. What we can be reasonably sure of, however, is that Australia’s
response to the Committee was increasingly diplomatic, overtly political and largely focussed
on securing procedural compliance under the regime. Whilst these aspects might align with
the current politics of the World Heritage Convention, they do Australia’s reputation for
excellence in World Heritage a disservice. As a recognised leader under the Convention, a
preoccupation with procedural compliance lowers the bar for other states and stretches the
gap further between questions of substantive compliance, effectiveness and purer
implementation of its objectives.
142 Ibid. 143 Maswood, above n 116, 358.
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3.6 CONCLUSION
In 1996, a Federal Parliamentary Committee looked into the state of Australia’s World
Heritage estate. Amongst other things, they concluded:
The nomination of outstanding and universally significant places to the World
Heritage List has often been a contentious matter in Australia. Nominations have been
made against a background of community suspicion, dissension and even High Court
challenges. However, over the years since the first nominations, there has been
increasing acceptance of the concept of World Heritage and the appropriateness of
parts of Australia being recognised for their international values.144
The Committee’s words are a poignant reminder of how contentious and significant World
Heritage has been to the Australian environmental and political landscape. It is true, today,
however, that Australia has accepted World Heritage and made considerable efforts, as
evidenced through the GBRWHA study, to engage with the operational goals of the system.
As this chapter has shown, Australia shares a special relationship with the Convention; one
which has led it (at least at the national level) to embrace some of the ideals of what it means
to identify and protect World Heritage sites for all the citizens of the world. Thus, as
Hølleland writes, World Heritage has become a major part of Australia’s public and political
domain.145
The goal of this chapter was to demonstrate how and why Australia cares about World
Heritage, noting its history of implementation of the Convention in a domestic context as
well as the critical role that NGOs have played in the development of its ideals. Australia’s
embrace of World Heritage driven by the contribution of civil society resulted in the
reputational cost (of expertise and leadership) that Australia would bear if the GBRWHA
were to be listed In Danger. The fact that it wasn’t reflects Australia’s skills in diplomacy and
international relations and their desire to be procedurally compliant with the requirements of
the regime.
144 Australian Government, Parliamentary Inquiry, above n 53. 145 Hølleland, above n 77, 136.
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The Great Barrier Reef
This chapter has two aims. First, it introduces the Great Barrier Reef World Heritage Area
(GBRWHA or ‘The Reef’) the site at the centre of the case study. It describes the boundaries
and scale of the site, its economic and social value, and the threats to the Reef’s survival as a
result of climate change, agricultural pollution and coastal development. Second, this chapter
begins to deconstruct the multi-layered and decentralised regulatory space of the GBRWHA.
In federalist states like Australia, compliance with international environmental law (including
the idea of procedural compliance) is politically and administratively complex. Nonetheless,
the fragmentation of various interests provided opportunities for interested actors to pull
Australia (who in turn pulled Queensland) in the direction of compliance.
4.1 INTRODUCTION
The previous chapter discussed Australia’s historic and special relationship with the World
Heritage Convention (the Convention). It demonstrated how and why Australia cares about
World Heritage, noting its’ embrace of the Convention, and its recognised expertise in World
Heritage and coral reef management. By using the theory of compliance pull (see chapter 2)
we can start to construct a picture of Australia being drawn towards compliance (albeit
procedural compliance) due to the reputational cost it would bear if the Reef were listed In
Danger. This chapter builds on those observations by suggesting the other major factor at
play was the iconic nature of the GBRWHA itself.
In addition, this chapter introduces the main types of actors (state, sub-state and non-state)
that ‘compete’ for a regulatory share over the site.1 The concept of regulation (as defined in
chapter 1) is revisited and the metaphor of regulatory space is used to theorise further about
who the main actors are and what role or interest they have in promoting compliance.
1 As Black argues, non-state actors that lack ‘a legally given monopoly or mandate to regulate have to compete for ‘regulatory share’ over relevant issues. See Black, J., (2009) ‘Legitimacy and the Competition for Regulatory Share’ LSE Working Papers 14/09. <https://www.lse.ac.uk/collections/law/wps/WPS2009-14_Black.pdf> 2.
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Mackay has described the protection of Australia’s World Heritage as something of a
‘cascading regulatory regime.’2 In truth, however, a site like the GBRWHA has considerable
horizontal aspects as well. Power is shared, dispersed and fragmented over the site. This
presents, not a clear hierarchical line of control, but a messy regulatory melange of local
laws, regional rules, standards, protocols and policies, actors and influences - some of which
align, but many of which overlap. These institutions and instruments seem to push and pull in
various scripted and unscripted directions. Some of the actors seem concerned with
regulation under the Convention (e.g. WWF) whilst others appear to use World Heritage as a
brand or tool for their own agendas.
The aim of this chapter is not necessarily to show what actors do in this regulatory space, but,
rather, its objective is to showcase the diversity and range of institutions that have an interest
in the GBRWHA, and to start to map out, in specific terms, the actors that presented
themselves as being influential throughout the case study. It is suggested that there are two
helpful outcomes to this: firstly, (1) its gives the reader an understanding of the range of
interests that compete over the site; and secondly (2); it lays the groundwork for further
analysis of non-state actors and their contribution to compliance pull, the analysis of which is
contained in chapters 5, 6 and 7 of this thesis.
4.1.1 About the site
The phrase ‘Great Barrier Reef’ was first used by explorer Matthew Flinders in his 1814
book A Voyage to Terra Australis,3 which McCalman describes as ‘the modern reef’s
foundation document.’4 The ‘Reef’, as it is known colloquially, is technically a collection of
over 3000 coral reefs, 600 islands, 300 coral cays and about 150 inshore mangrove islands.5
As Day reports, there are, in fact, ‘an additional 550 coral reefs within the Torres Strait that
2 Mackay, R., (2013), ‘Setting Best Practice Standards for World Heritage Management’, in Figgis, P, Leverington, A, Mackay, R, Maclean, A and Valentine, P (eds), Keeping the Outstanding Exceptional – the Future of World Heritage in Australia, (Australian Committee for IUCN Inc, Sydney), 42. For a discussion of the laws as they relate to the Great Barrier Reef as well as other World Heritage sites in Australia, see Boer, B., and Gruber, S., (2010) ‘Legal Framework for Protected Areas: Australia’ IUCN-Environmental Policy and Law Papers (No. 81) available online <http://cmsdata.iucn.org/downloads/australia_1.pdf>. 3 Flinders M., A Voyage to Terra Australis - Vol 1 (J & W Nicol, 1814). 4 McCalman, I., The Reef: A Passionate History (Penguin Books 2014) at 58. 5 Australian Government, Great Barrier Reef Marine Park Authority ‘Facts about the Great Barrier Reef’ <http://www.gbrmpa.gov.au/about-the-reef/facts-about-the-great-barrier-reef>
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are part of the same reef system.’6 The Reef is the only living organism visible from space,
and, as is often retold, roughly same size as Italy or Japan. It is home to over 1600 species of
fish, 215 species of birds, six of the world's seven species of marine turtle; 30 species of
whales and dolphins and 133 species of sharks and rays.7 As the Great Barrier Reef Marine
Park Authority (GBRMPA) reports, the GBR is, quite simply, ‘one of the richest and most
complex natural systems on earth.’8
Many people around the globe (including, former Presidents of the United States9) have a
special affinity for the GBRWHA. As the late poet-cum-activist, Judith Wright, eloquently
put it:
Though its brilliant waters have been dulled and darkened here and there by unwise
and greedy uses and human and industrial forms of pollution, the Great Barrier Reef
is still the closest most people will come to Eden.10
The respect and awe that the world has for the Reef, true to its World Heritage credentials,
goes well ‘beyond cultural and national borders.’11 It is one of the only living ecosystems
visible from outer-space, and one of only a handful of World Heritage sites to fulfil all four
natural criteria for ‘Outstanding Universal Value’ under the World Heritage Convention
framework. On the list of World Heritage, the GBRWHA sits proudly alongside other iconic
sites like the Taj Mahal (India), Machu Pichu (Peru) and the Grand Canyon (USA).
The Reef also has a special cultural connection for many of Australia’s First Peoples: the
Reef coast is, in, fact home to ‘more than 70 Aboriginal and Torres Strait Islander Traditional
6 Day, J.C., (2016) ‘The Great Barrier Reef Marine Park – the grandfather of modern MPAs’, Chapter 5 in Fitzsimmons and Wescott (eds), Big, Bold and Blue: Lessons from Australia’s Marine Protected Areas, (CSIRO Publishing 2016), 66. 7 Australian Government, Great Barrier Reef Marine Park Authority ‘Great Barrier Reef - Animals’ <http://www.gbrmpa.gov.au/about-the-reef/animals> accessed 10 April 2017 8 Ibid. 9 Barack Obama, Former President of the United States, ‘Speech to University of Queensland (15 November 2014) available at <https://www.whitehouse.gov/the-press-office/2014/11/15/remarks-president-obama-university-queensland> 10 Wright, J, The Coral battleground (Spinifex Press, 2014), xxii. 11 Bertacchini, E.E. & Saccone, D. J Cult, (2012) ‘Toward a political economy of World Heritage’ 36(4), Journal of Cultural Economics, 327, 327.
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Owner groups.’12 Extensive scholarly contributions have exhibited the deep history and
connection that Indigenous Peoples have with the region.13 As McCalman reports, Guugu
Yimithirr was one of the first Indigenous people to be granted ownership of land in the
region, near Cooktown, in 1997.14 Since then, there are over a dozen native title
determinations or active applications relating to fishing, hunting and other traditional usage
rights near or in the GBRWHA.15 A handful of native title claims that surround the site have
become the subject of recent High Court litigation.16
4.1.2 Boundaries and Scale of the Site
There are notable differences between the ‘Marine Park,’ declared by the Australian
Government in 1975,17 and the ‘World Heritage Area’ listed on the World Heritage list in
1981. Approximately 99% of the World Heritage Area is located within the Marine Park with
the remainder (about 3,600 km2) including islands, ports and other internal waters the
responsibility of the Queensland Government.18 The Marine Park is the responsibility of
GBRMPA whilst the World Heritage area is the responsibility of the Australian Government,
which is the state party under the Convention. Under Queensland law, a Great Barrier Reef
Coast Marine Park has also been declared, and by and large mirrors the boundary of the
national Marine Park.19
One of the difficulties with managing a property on the scale of the GBRWHA, especially in
the context of World Heritage, is that the values of the site are not uniform. This makes it
12 Australian Government, Great Barrier Reef Marine Park Authority ‘Traditional Owners of the Great Barrier Reef’ <http://www.gbrmpa.gov.au/our-partners/traditional-owners/traditional-owners-of-the-great-barrier-reef>. 13 GBRMPA provides a database ‘that shares information and knowledge about Traditional Owners and their relationship [with the Reef]’. Australian Government, Great Barrier Reef Marine Park Authority ‘Traditional Owners – Storey Place’ <http://www.gbrmpa.gov.au/our-partners/traditional-owners/story-place> accessed 10 April 2017 14 McCalman, above, n 4, 7. 15 See National Native Title Tribunal ‘Native Title Determination Area (Queensland) available at <http://www.nntt.gov.au/> 16 See the cases of Commonwealth v Yarmirr (2001) 208 CLR 1 and Akiba v Commonwealth of Australia [2013] HCA 33. 17 The boundaries of the Commonwealth Marine Park area are set out in the GBRMPA Act, Schedule 1. They commence at the low water mark at the northernmost extremity of Cape York Peninsula Queensland (Eastward towards Port Moresby, Papua New Guinea), then down as far South as Hervey Bay in South East Queensland. 18 Australian Government, Great Barrier Reef Marine Park Authority ‘Differences between the Marine Park and World Heritage Area’ <http://www.gbrmpa.gov.au/about-the-reef/heritage/great-barrier-reef-world-heritage-area/differences-between-the-marine-park-and-the-world-heritage-area2> accessed 10 April 2017. 19 See Marine Parks (Declaration) Regulation 2006 (Qld), schedule 2.
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challenging to talk about the GBR as ‘one site’, ‘one set of values’ or even as ‘one
ecosystem’. As a senior official with GBRMPA commented:
One of the most amazing things about the GBR is that it extends across 14 degrees of
latitude and 2300 km along the coast. So that gives it its resilience and its integrity but
it also means the way that these pressures play themselves out and the way that the
values are spread, varies immensely.20
The sheer scale of the Reef in a federalist state like Australia means domestic regulation can
be challenging. This sets the site apart from most other World Heritage sites, particularly
cultural sites which are considerably smaller and, at least to some extent, easier and cheaper
to manage. Consider, for instance, these remarks from one NGO interview participant:
Participant: You know, there is one thing we need to remember about the
[GBRWHA] and that it is … it is so huge. It is massive.
Interviewer: The same size as Italy or Japan.
Participant: Yes it's incredible. It's different than you know protecting ...
Interviewer: Three buildings which have been built by the Incas?
Participant: Yes, and it's just so hard because you have different levels of
government decisions that local governments are making
impacting and then state governments and you’ve got federal
government in terms of the regulation of impacts, by then
you’ve got the impacts of increasing population like
stormwater run-off which is managed by local councils … I
mean it is very complex governance and I appreciate it's a hard
thing to do to try and regulate.21
The ‘massive’ scale of the site means it is also not easy to talk generally about the health of
the site at a uniform level. The Reef faces different pressures and stresses across the length
and breadth of its boundaries. For instance, whilst the 2014 Outlook Report concluded that
the ‘northern third’ of the GBRWHA has reasonably ‘good water quality and its ecosystem is
20 Interview # 7. 21 Interview # 4.
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in good condition’, the habitats and ecosystems of the central and southern areas continue to
deteriorate remarkably.22 For this reason, some have suggested Australia’s response to the
decline of the site might be best managed by a form of ‘triage,’ where governments decide
which parts of the ecosystem they wish to keep.23
The disparity of geographical values and ecological stresses points towards one of the many
challenges of regulating World Heritage. Implicit in the administration of World Heritage, is
that sites are to be protected ‘as a whole’ for their ‘outstanding universal value’ in spite of the
fact they are subjected to very different stresses and pressures. The difficulty that states like
Australia face is that the regulatory objective of World Heritage primarily requires uniform
reporting and some form of centralised control, whilst the scientific threats and values exist
on a widely variant and ever-changing scale.
22 Australian Government, Great Barrier Reef Marine Park Authority ‘Outlook Report (In Brief)’ (Australian Government, 2014) v. 23 The Guardian (online) ‘Great Barrier Reef: government must choose which parts to save, says expert’ 9 July, 2016 <https://www.theguardian.com/environment/2016/jul/09/great-barrier-reef-government-must-choose-which-parts-to-save-says-expert>
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The Great Barrier Reef World Heritage Area and Commonwealth Marine Park. Source: Australian Government
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4.1.3 Threats to the site
The GBRWHA faces immense challenges. In 2014, GBRMPA labelled the Reef as ‘an icon
under pressure.’24 The biggest threats to the site are, and have been for some time, land-based
runoff from sugarcane and grazing (fertilisers, pesticides and sediment); invasive species
(Crown of Thorns starfish); climate change (including ocean acidification and increased
incidence of natural disasters); illegal and over fishing; and ‘impacts form coastal
development’, such as the dredging and dumping of dredged material.25 Of these threats, land
based run-off (dissolved inorganic nitrogen) and climate change are by far the most
pressing.26
In truth, these deteriorations are not specific to the Reef, as Wear recently reported, threats to
coral reefs are being neglected at a global scale.27 Like the GBRWHA, the major threats to
other coral reefs continue to be overfishing and destructive fishing, watershed-based
pollution, marine pollution, coastal development, thermal stress, and ocean acidification.28
IUCN’s World Heritage Outlook, the first conservation assessment of all natural World
Heritage sites, found the GBRWHA to be of ‘significant concern’ as well as Belize Barrier
Reef Reserve System (Belize). Australia’s other coral reef World Heritage site, Ningaloo reef
in Western Australia, also suffers from similar issues despite being isolated from human
populations.29
The Reef has reportedly lost up to 50 per cent of its coral cover in the last three decades.30
Most of this is due to ‘tropical cyclones, coral predation by crown-of-thorns starfish and coral
24 Australian Government, above n 22, v. 25 Ibid. 26 See for example, Ward, T.J. (2014) ‘The rapid assessment workshop to elicit expert consensus to inform the development of the Great Barrier Reef ‘, Outlook report. Report prepared by: Trevor J Ward, Greenward Consulting, Perth for the Great Barrier Reef Marine Park Authority, GBRMPA, Townsville. See also Australian Government above n 22. 27 Wear, S.L., (2016) ‘Missing the boat: Critical threats to coral reefs are neglected at global scale’, Marine Policy, 153. 28 Ibid., 154 29 Doropoulos C, et al, ‘Western Australia’s coral reefs are in trouble: we mustn’t ignore them’ The Conversation (online) 27 January 2016 <https://theconversation.com/western-australias-coral-reefs-are-in-trouble-we-mustnt-ignore-them-53111> accessed 10 April 2017. 30 De’ath, G, Fabricius, K.E., Sweatman, H., and Puotinen, M., (2012) ‘The 27–year decline of coral cover on the Great Barrier Reef and its causes’ 9(44) Proceedings of the National Academy of Sciences of the USA, 17995.
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bleaching.’31 Coral bleaching and extreme weather events have been associated with the
onsite of climate change and rising sea temperatures.32 Recent coral bleaching events in 2016
are some of the most severe the GBR has ever experienced, with large portions of the coral
likely to never fully recover.33 Over 500 reefs in the Northern section of the GBRWHA
(North of Port Douglas) were surveyed and 80 per cent were found to be ‘severely bleached’.
One of the scientists involved commented:
We've never seen bleaching on the Great Barrier Reef of that severity and when
bleaching is that strong it affects virtually all coral species.34
The extensive clearing of native vegetation for grazing in GBR catchments35 and the poor
take up of improved fertiliser practices continues to undermine attempts to improve water
quality entering the site.36 The impacts of agricultural practices in and along GBRWHA
catchments have been known for years, including before the nomination of World Heritage in
1981.37 Indeed, the original nomination document for World Heritage stated that:
The major portion of the Reef is in a reasonably pristine condition. The ecosystem of
the reef is subject to some pressures from recreational pursuits and commercial
fishing, siltation through natural run-off from coastal streams, in a few areas
agricultural and industrial discharges from the mainland, and sea-based discharges.38
31 Ibid. 32 On coral reefs see Hoegh-Guldberg, O., (1999) ‘Climate change, coral bleaching and the future of the worlds coral reefs’ 50 Mar. Freshwater Res., 8396; and on cyclones see Knutson T, et al (2010) ‘Tropical Cyclones and Climate Change’ 3 Nature Geoscience, 157. 33 Hoegh-Guldberg, O, and Ridgway, T., (12 April 2016) ‘Coral bleaching hits great barrier reef as global temperatures soar’, 1090, Green Left Weekly, No. 1090, 10. 34 ABC News (online) ‘Great Barrier Reef: Only 7 per cent not bleached, survey finds.’ 20 April 2016, <http://www.abc.net.au/news/2016-04-20/great-barrier-reef-bleaching/7340342> 35 Since 2011, the rate of clearing of vegetation in the GBR catchments has increased by as much as 46%. See Queensland Department of Science, Information Technology and Innovation. 2016. Land cover change in Queensland 2014–15: a Statewide Landcover and Trees Study (SLATS) report. DSITI, Brisbane, 2 and 27. 36 Joo, M, Raymond, M.A.A., McNeil, V.H., Huggins, R., Turner, R.D.R. and Choy, S (2012) ‘Estimates of sediment and nutrient loads in 10 major catchments draining to the Great Barrier Reef during 2006-2009’ 65 Marine Pollution Bulletin ISO. 37 Olafson, R. W., (1978) ‘Effect of agricultural activity on levels of organochlorine pesticides in hard corals, fish and molluscs from the Great Barrier Reef’, 1 Marine Environmental Research 87. 38 Australian Government (1981) Great Barrier Reef Marine Park Authority, Nomination of the Great Barrier Reef by the Commonwealth of Australia for inclusion on the World Heritage List
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Historically, NGOs have been active in bringing the problems of the site to the attention of
the wider community (see the previous chapter) including raising concern about the impact of
sediment and fertiliser loads on the system. One interview participant recalled:
[I]n the mid-60s … there were still really good inshore fringing reefs. … Effectively,
it was the 1970s onwards, probably starting in the 60s, that we started to get this
massive expansion of [sugar] cane and also [cattle] grazing that really started to
mobilise and really committed the big loads of sediment and nutrients.39
Consider also this exchange with the interview participant:
Participant: We had numerous meetings over 20 years which they
perpetually promised they were going to, you know, introduce
whole new programs that would solve the problems [with water
quality from agriculture] and it was just about to happen, you
know every year. And it kept getting put off.
Interviewer: This was in those three catchments in particular?
Participant: No, it was the whole reef… [but] nothing ever happened. After
[Joh] Bjelke-Petersen got thrown out, we thought we might make
something happen under labor. Wayne Goss wasn’t interested in the
environment, but he was interested in good government, and the three
years we had with Goss were probably the best [Queensland] ever
had.40
Stricter laws on cane and cattle farming were eventually introduced in 2009 by the
Queensland (Bligh Labor) Government. 41 Due, however, to a significant industry backlash,
they were never enforced.42 The current approach by the Queensland Government is to
at 3. 39 Interview # 5. 40 Ibid. 41 Environmental Protection Act 1994 (Qld), Chapter 4A. 42 Queensland Audit Office, Report 20, 2014-15 <available at www.qao.qld.gov.au> 10.
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encourage farmers to adopt industry-led optional program (known as Best Management
Practices), though take up of those practices has reportedly been low.43
The impacts of port development for fossil fuel (including increased shipping and dredging at
ports) have also assumed prominence in recent years. There are over a dozen trading ports
along the GBR coast with five priority ports at Abbot Point, Brisbane, Gladstone, Hay Point
and Mackay, and Townsville. Of those, only Brisbane falls outside the World Heritage area.
Increased shipping is starting to become a major concern by some.44 In fact, port
development and the fossil fuel industry were the initial impetus for the concern of the World
Heritage Committee in 2009 (see the Chronology of Events in chapter 1). Nonetheless, in the
last few years, these concerns have been eclipsed by more pressing issues of farming run-off
and climate change. As an interview participant from IUCN stated:
In the long run, that issue [of Port development] has receded as the most significant
point of concern regarding the Great Barrier Reef and its World Heritage status,
although it is [still] a point of concern, but it is not the greatest focus of concern in
terms of long-term threats to the Great Barrier Reef. The preoccupation now is firstly
with resilience of the Reef and the impacts of climate change and the impacts of poor
water quality.45
4.1.4 Economics and Tourism
The Reef’s extraordinary size and reputation presents tremendous economic opportunities. A
study published by Deloitte Access Economics in 2013,46 commissioned by the Australian
Government, found that:
43 Ibid., 3. See also Hamman et al, (2015) Managing the impacts of sugarcane farming on the Great Barrier Reef: An evaluation of the implementation of the Polluter Pays Principle. Law for Sustainability - Case Studies. IUCN Environmental Law Centre < https://eprints.qut.edu.au/90024/> 44 Grech A, and McCook L, Shipping in the Great Barrier Reef: the miners’ highway’ The Conversation (online) 25 May, 2015 <https://theconversation.com/shipping-in-the-great-barrier-reef-the-miners-highway-39251> 45 Interview # 9. 46 Deloitte Access Economics, Economic contribution of the Great Barrier Reef (Great Barrier Reef Marine Park Authority, 2013)
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The total Australia-wide value-added economic contribution generated in the Reef
catchment in 2012 was $5.7 billion with employment (as measured in full-time
equivalent workers) of just below 69,000.47
A follow up report released in June 2017 found similar figures valuing the asset at $56 billion
and labelling it ‘too big to fail.’48
Most of the Reef’s economic contribution today comes from tourism revenue ($5.2 billion
and 64,000 jobs).49 But that said, the tourism potential associated with the ‘World Heritage
brand’ should not be misconstrued. There are distinct differences between, on the one hand,
tourism ‘of’ World Heritage [i.e. the UNESCO brand] and, on the other, the reputation of the
Reef as a tourist icon in and of itself. In relation to the former, few empirical studies have
conclusively connected an increase in tourism to the World Heritage Convention. Buckley,
for example, found that there might be a slight increase in tourism numbers, because of a
World Heritage listing, though nothing substantial.50 Furthermore, as discussed below, the
GBRWHA is a unique site, even amongst World Heritage sites. It is an icon of the World
Heritage list and given its colossal scale, ‘whole of site’ studies are not likely to be
particularly insightful or helpful as basis for GBRWHA decision-making or scholarly
examinations. In the end, as Leask and Fyall report, there is insignificant evidence to connect
World Heritage and tourism in any meaningful way.51
Nonetheless, leading up to July 2015, the Australian Government appeared to go to great
lengths to avoid the GBRWHA being listed In Danger. It seems reasonable to suggest
(although it was never conclusively found from the case study) that at least part of this might
be due to the ‘billion dollar tourist market’. Certainly the Australian government seemed to
act with this in mind. For instance, in 2016, Australia sought to have references to the
47 Ibid., i. 48 ABC News (online) Great Barrier Reef 'too big to fail' at $56b, Deloitte Access Economics report says < http://www.abc.net.au/news/2017-06-26/great-barrier-reef-valued-56b-deloitte/8649936> 49 Deloitte Access Economics, above n 46, i. 50 Buckley, R., (2004) ‘The Effects of World Heritage Listing on Tourism to Australian National Parks’ 12(1) Journal of Sustainable Tourism, 70-84. 51 Fyall, A, and Rakic, T., ‘The future market for World Heritage sites’ (chapter 11) in Leask, A, and Fyall, A (eds), Managing World Heritage Sites (Elsevier Ltd, 2006), 162.
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GBRWHA removed from a UNESCO report that documented the impacts of climate change
on World Heritage tourism.52
Some of the NGOs did give an indication that tourism was the driving factor behind the
diplomatic onslaught between 2012 and 2015. As one of the NGO interview participants
reflected:
I think the role of [Australia] was … if there was suggestion that it should be listed [In
Danger] was to absolutely knock it out because of the risk that it was becoming the
mainstream thought and in that flowing through to the World Heritage Committee and
also they didn’t want to say anything that would affect existing tourism.53
The impact on tourism (whether real or perceived) seemed to play into the hands of non-state
actors during the study period. One NGO interview participant, for instance commented:
Participant: The issue for the reef is because it's such a tourism icon; [an In
Danger Listing] will play out badly in the media.
Interviewer: …So in that sense, with the reef, with the Australian government
jumping over themselves to respond back to the committee, is it just a
perception that it's going to be that there's going to be an impact on tourism
than?
Participant: It played out into the campaign.54
There is probably little doubt that the impact on tourism (or at least perception of impact) was
a major factor in the heightened response of the Australian Government during the years
2010-2015. That said, it is an issue that is poorly quantified and likely tells only part of the
story of how compliance pull operated against Australia. As outlined in the previous chapter,
there was also the fact that Australia’s extraordinary reputation in World Heritage was at
52 The Guardian (online) ‘Great Barrier Reef UN Report lead Author shocked all Australian References Removed.’ 27 May 2016 <https://www.theguardian.com/environment/2016/may/27/great-barrier-reef-un-report-lead-author-shocked-all-australian-references-removed> 53 Interview # 4. 54 Interview # 5.
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stake. Another relevant factor, which was nott specifically covered in this thesis was the
threat that foreign investment (in infrastructure and mining) might leave Queensland and
Australia altogether.55
4.1.5 The Iconic Status of the site
Even amongst World Heritage sites, the GBRWHA is unique and ‘one of a kind’. The case
study confirmed what is common knowledge, that the site is truly an icon of the World
Heritage list. Indeed, its iconic status speaks to a broader narrative about how compliance
with World Heritage operates (or should operate) As an interview participant from the IUCN
noted:
The Great Barrier Reef is one of the very most iconic World Heritage sites… We
often say: “if we can’t get the World Heritage list to work, what does it say about
global conservation?” And so then you say: “if we can’t get the Great Barrier Reef to
work, what does it say about the World Heritage list?”56
The iconic status of the site also raises questions of whether there are tiers or different levels
of World Heritage in Australia and in other parts of the world. Consider these comments from
one interview participant with experience in Australia’s World Heritage:
Participant: Effectively, you know, we've got three grades
of World Heritage sites in Australia. … There are those that
are effectively Commonwealth properties, they virtually have
their own Act and they have good Commonwealth
funding. And that's really Kakadu; Uluru and the GBR. They
have half decent budgets. You've then got a set of sites that
are effectively mid-tier and that's where you've had an
agreement between the state and the feds, and things like the
55 The impact of an In Danger Listing on project finance is difficult to decipher in this regard, but for a general discussion of the issues see: Hamman, E (2016), The influence of environmental NGOs on project finance: a case study of activism, development and Australia’s Great Barrier Reef.’ 6(1) Journal of Sustainable Finance and Investment 51. 56 Interview # 9.
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Wet Tropics would be like that, and Tasmanian wilderness
too, because effectively they came about as a result of a massive
public campaign … and the feds ended up going into some cooperative
funding arrangements for some of them…. And then you've got, the
Fraser islands, the Riversleigh [Fossil Site in Queensland], the
other sites … you should see their budgets …
Interviewer: So there is World Heritage and then there’s World Heritage?
Participant: Yes.57
Indeed, it’s not just governments that might see tiers of World Heritage, civil society might
also do so as well. Consider these comments from one NGO participant in the case study:
Participant: Well NGOs who identify really terrible environmental issues
going on in other World Heritage sites, like the greater Blue
Mountains World Heritage area, they look at what happened
with the reef and say “well wouldn’t that be wonderful if we
could get one of the large NGOs to take notice?” but they can't
get it...
Interviewer: Because it’s not as high profile?
Participant: No, it doesn't have that kind of, I mean, the Reef is just so
unique. It is such a unique place that it has almost like an
elevated status of World Heritage… and this is only my
opinion, in the sense that it really is an international icon.
Whereas you know the Blue Mountains, most people haven't
heard of that.58
All that said, a senior official with the Australian Government Department of Environment
and Energy clearly disputed the existence of World Heritage ‘tiers’ in Australia suggesting,
from a management perspective, they are all treated fairly:
57 Interview # 5. 58 Interview # 4.
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Interviewer: [so] can you speak about the case of the Reef versus the other
18 [World Heritage] sites in Australia? Are there tiers that
exist?
Participant: No, there is no tiering. Each of these places is on the World
Heritage list because it has outstanding universal value.59
Whether there are tiers or not of World Heritage in Australia is probably a moot point, at least
in terms of the goals of this thesis. What seems pertinent to point out is that the GBRWHA’s
extraordinary international reputation provided a valuable opportunity for civil society to
exert influence over the processes of compliance. WWF, for instance (whose actions are
described in more detail in chapter 6) seemed acutely aware of the global recognition and the
importance (to Australia) of the World Heritage Committee’s decisions. As an interview
participant from WWF commented:
Participant: [T]he thing that I think is also really key is that you’ve got to
be able to say to these committee members, well the line we
used was: “the world is watching.” So if they make a really
bad decision, then it’s not just in a meeting room in a fancy
city, they’re going to have hundreds of thousands of people
going: “what are you doing?”
Interviewer: So that sort of international embarrassment factor was
crucial?
Participant: Yes it was a really big factor.60
Other NGOs also noted the value of ‘the international’ or ‘iconic factor’ to their individual
campaigns, particularly those adopting a broader and more public advocacy stance:
[The Reef is] a beautiful ecosystem that is well known and well-loved combined with
a sort of rampaging fossil fuel industry. This has made it a very easy story to tell in
terms of a … campaign.61
59 Interview # 12. 60 Interview # 10. 61 Interview # 2.
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From a government perspective, the Reef’s global status can, however, also create tensions
between local stakeholders and other interests. Local communities, for instance, may resist
international oversight, and reject the claim that Outstanding Universal Value takes
precedence over local values and concerns. Consider this exchange with a senior public
official from GBRMPA:
Interviewer: Did the [GBR’s reputation] have some impact in terms of,
well: “we really have to get this [Outstanding Universal
Value] stuff right because there is a whole other audience out
there looking at this as part of the world’s heritage…”?
Participant: Well I think from a management perspective we’ve always
been very aware of the international obligations to protect and
manage the area. I think for a lot of our stakeholders though,
it was it was very much a journey for them. It was interesting
because when we held regional meetings, a lot of people we
were talking about the World Heritage Committee concerns
and the way that we had framed this was to respond to those
concerns. And the initial feedback was: “Well, but why Paris?
This is our Reef?”
Interviewer: Because of the [domestic] history of engagement?
Participant: Exactly. You know the GBR is in our backyard. But now
you’re responding to something that is way over there. So for
us, it was always at the forefront of our minds that the
obligations [were international], but for our stakeholders it
was a real journey. And it is a journey that we are on now to
recognise that we manage this area not only for local people
and their interests and perspectives, but internationally we
have obligations, and we have to take into consideration the
views of the international community.62
62 Interview # 7.
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So, then, what might we conclude from all of this? And more specifically, what does it tell us
about the procedures of compliance and the practices of regulation as they appeared under the
Convention framework? By and large the data reveals that the iconic (and economic) status of
the GBRWHA is a central and pressing concern for NGOs, governments, and the
Convention’s administering bodies (IUCN, UNESCO, etc.). It certainly made it easier to pull
compliance out of Australia during the study period. We turn now to discuss the various
actors that played a role in that dynamic, including defining key concepts like the state, the
non-state and the sub-state. These concepts are introduced by looking at the GBRWHA
through the lens of regulatory space analysis - a metaphor for helping explain who the main
players are, and the resources or assets they bring to the table.
4.2 THE REGULATORY SPACE OF THE GREAT BARRIER REEF
4.2.1 Regulatory Space Analysis
This thesis is concerned with the role and influence of non-state actors in promoting
compliance, but it also focuses, quite deliberately, on whether and how these actors make a
contribution through regulation. This section of the chapter reintroduces the concept of
regulation (defined in chapter 1) and identifies the various categories of actors (state, non-
state and sub-state) that inhabit the regulatory space of the GBRWHA. This part of the thesis
is necessary to lay the groundwork for an analysis of non-state actors and their contribution to
compliance pull developed in chapters 5, 6 and 7. ‘Regulatory space analysis’ is a theory
which helps to identify potential regulators and record their relationships and movements
within a given regulatory environment. In 2001, basing his work largely on that of Hancher
and Moran in the 1980s,63 Scott wrote about finding a basis for institutional design and
reform of regulatory processes and suggests a solution might be found in accurately mapping
and understanding the dynamics of regulatory spaces.64 Like Grabosky,65 Parker,66 and
63 See Hancher, L. and Moran, M., ‘Organizing Regulatory Space’ in Hancher L., and Moran M., (eds) Capitalism, Culture and Economic Regulation, 271-299 (Oxford University Press, 1989). 64 Scott, C., (2001) ‘Analysing regulatory space: fragmented resources and institutional design’ (Summer) Public Law, 329. Whilst regulatory space as a conceptual framework is adopted in this thesis to tease out the pluralistic and decentred nature of the World Heritage framework, there are several other equally compelling theories which might be adopted for this purpose, or indeed, to form the basis of further regulatory thinking around non-state actors. Nodal governance, for example, is a way of helping researchers to understand ‘highly complex governance arrangements.’ It has been described as: ‘an elaboration of contemporary network theory that explains how a variety of factors operating within social systems interact along networks to govern the systems they inhabit.’ The ‘nodes’ within a regulatory space, can be described as ‘the sites where the 'curves'
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Black,67 Scott emphasizes that the real space of regulatory power is dispersed and fragmented
throughout a governance system.68 Further, as Lange has argued, globalization has
transformed the concept of regulatory space so that ‘social relations might become more
‘deterritorialized’ as multi-level governance develops.69
Regulatory space analysis, at its core, is concerned with uncovering who has influence (or
potential influence) in regulatory structures, including describing the relationships between
actors seeking to exercise power.70 To be more precise, there is often not only a
fragmentation of players (or ‘actors’) in a regulatory space, but a fragmentation of their
resources, relationships and methods as well. ‘Resources’ are likely to include a wide variety
of tangible and intangible things such as information, marketing material, professional
advice, finance, physical assets and access to the media and political allies. Resources are
essentially assets to an actor and are ‘dispersed rather than concentrated’71 within
decentralised regulatory regimes like the Reef. As Scott remarks, not all resources ‘are
possessed by a single regulatory agency.’72 ‘Relationships’ describe the connections that
actors (be they state or non-state) have with one another, whereas ‘methods’ speak to the
practices they use to cultivate or resist such relationships.
that constitute networks intersect with one another.’ See Burris, S, Drahos, P and Shearing C (2005) ‘Nodal Governance’ 30 Australian Journal of Legal Philosophy, 30. The node concept appears to be related to the idea of ‘structural coupling’ suggested some two decades prior by Teubner. See Teubner G (1986) ‘After legal instrumentalism: Strategic models of post-regulatory law’ In G. Teubner (Ed.), Dilemmas of law in the welfare state (Walter de Gruyter, 1986). See also Morgan B, and Yeung K, An Introduction to Law and Regulation: Text and Materials (Cambridge University Press, 2007) 133. For another approach to polycentric regulation see the concept of ‘regulatory intermediaries’ in Abbott, K., David Levi-faur, D., and Snidal D., (2017) ‘Theorizing Regulatory Intermediaries: The RIT Model’ 670(1) The ANNALS of the American Academy of Political and Social Science 14-35. The RIT model argues that ‘focusing attention on intermediaries expands the scope of regulatory analysis beyond rule-makers and rule-takers to include other key agents’ (for example non-state actors and their role in regulatory activities). See Abbott, above (in this note) at 16. For a discussion of ‘polycentric regulation’ more generally, see Black, J., (2005) ‘Proceduralisation and Polycentric Regulation 1 Revista DIREITO GV Especial (especial) 99-130 <bibliotecadigital.fgv.br/ojs/index.php/revdireitogv/article/download/35248/34046> 65 Grabosky, P. (2013) ‘Beyond Responsive Regulation: The expanding role of non-state actors in the regulatory process’, 7, Regulation & Governance, 114. 66 Parker, C., (2008) ‘The Pluralisation of Regulation’ 9(2), Theoretical Inquiries in Law. 67 Black, J, (2002) ‘Critical Reflections on Regulation’, 27, Australian Journal of Legal Philosophy, 1. 68 Scott, above n 64. 69 Lange, B (2003) ‘Regulatory Spaces and Interactions’ 12(4) Social and Legal Studies, 411, 415. 70 Scott, above n 64, 331. 71 Ibid., 338. 72 Ibid., 352.
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The reality of power over the GBRWHA is fragmented, dispersed and decentralized. There
are various categories of actors that have an interest in the space. We might also assume,
however, that they have a role to play in promoting compliance through the practices of
regulation (or otherwise). We can conceive the GBRWHA as a regulatory space in this
regard, one that it is inhabited by several clusters of actors, some interested in regulation,
some not, but all capable of marshalling their resources and relationships in interesting and
influential ways. But how, then, does all this fit into our theory of compliance pull in the case
study?
When Goodwin wrote about compliance pull under the Convention, he focused on the
executive and coercive powers of the World Heritage Committee.73 He didn’t, however,
highlight the capacity of other actors (such as non-state actors) to contribute to the
phenomenon, including through the practices of regulation. Goodwin’s work can thus be
developed by adding further and different actors to the regulatory landscape. Before we
attempt to do that, however, we ought to pause and give thought to what is meant by
regulation in greater depth. Once we can more firmly conceptualise that term, we can begin
to categorise the non-state actors that take part in regulation (see for instance IUCN in
chapter 5), or, for that matter, those actors whose activities fall outside of regulation, but are
still nevertheless influential in drawing states into compliance (see the discussion of agitators
in chapter 6).
4.2.2 Revisiting ‘Regulation’
The concept of regulation, as a part of governance, was discussed and defined briefly in
chapter 1 of this thesis as having three components: (1) standard setting, (2) monitoring and
(3) enforcement (or behaviour modification). Most regulatory scholars seems to point to these
elements in their definitions of regulation. Levi-Faur for instance defines regulation as:
the ex-ante bureaucratic legalization of prescriptive rules and the monitoring and
enforcement of these rules by social, business and political actors on other social,
business and political actors.74
73 See chapter 2, section 2.4.4 74 Levi-Faur, D. (ed) Handbook on the Politics of Regulation (Edward Elgar, 2011), 6.
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Baldwin and others suggest a slightly different definition which goes ‘beyond the making and
enforcement of rules’75 and includes things like ‘taxation measures, subsidies and other
incentives, disclosure requirements and [other] similar mechanisms’76 or, in other words; ‘all
mechanisms of social control — including unintentional and non-state processes.’77
That said, the debate about what regulation is, and perhaps more importantly, how it should
be deployed (including under MEAs), is by no means a settled issue. Black78 and Kingsford-
Smith79 have extensively discussed the nuances of ‘decentralized’ and ‘pluralistic’ regulatory
regimes, giving deep thought to the meaning of regulation in the modern age (particularly in
domestic settings).80 Despite this, the common thread in most conceptions of regulation is the
existence of rules or standards; a separation between monitoring and enforcement; and broad-
based participation (or at least the possibility of) from both state and non-state actors.
Standards refer generally to the ‘norms, goals, objectives, or rules around which a regulatory
regime is organised.’81 Standards are central to the definition of regulation, such that without
standards, there can be no regulation. Standards may be hard or soft, strict or flexible. As
Scott remarks:
A regulatory regime is a system of control which may comprise many actors, but
within which it is possible to identify standards of some kind…82
75 Johnstone, R., & Sarre, R., (2004) Regulation: Enforcement and Compliance’, 57 Research and Public Policy Series (Australian Institute of Criminology) 4. 76 Ibid. 77 Baldwin, R., Scott, C., and Hood, C., A Reader in Regulation (Oxford University Press 1998) 4. 78 Black, above n 67. 79 Kingsford-Smith, D (2006) ‘What is Regulation? A Reply to Julia Black', 27 Australian Journal of Legal Philosophy, 37. 80 Unfortunately contributing to that discussion is beyond the realms of this thesis, except to add that the regulatory literature talks most commonly about domestic regulatory regimes, and predominantly in financial and corporate contexts. The findings in this thesis thus add a new perspective to the consideration of regulatory theories in the context of international environmental law. 81 Scott, C., ‘Standard Setting in Regulatory Regimes’ in Baldwin, R., Cave, M., and Lodge., M (eds) The Oxford Handbook of Regulation (Oxford University press, 2010), 104. 82 Ibid., 105.
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We might therefore conceive ‘standard setting’ as the process of delineating and establishing
standards (whether through legislation or otherwise) within a regime. In the context of World
Heritage, a ‘standard’ would involve, for instance, the requirement that Australia report to the
World Heritage Committee under paragraph 172 of the Operational Guidelines about any
potentially damaging developments that might affect the values of the site. Similarly, under
article 5 of the Convention, another standard might be that States must take:
the appropriate legal, scientific, technical, administrative and financial measures
necessary for the identification, protection, conservation, presentation and
rehabilitation of [its] heritage.
The second aspect of regulation and one which WWF was shown to have engaged in (see
chapter 6) is the behaviour of monitoring. Monitoring involves, as Russell defines it:
checking up on whether those covered by the [standards] are doing (or not doing)
what is required of (or forbidden to) them.83
A similar definition is provided by Tandon and Kak:
the checking, collecting and analysis of information about current project
developments.84
Other definitions make reference to ‘indications of the achievements (or lack thereof) of
results.’85 In short, monitoring involves checking to see if standards or requirements are being
followed by those being regulated.
Under the World Heritage Convention framework, this process of ‘checking up’ is formally
outsourced to the World Heritage Centre and the IUCN. Their co-role in monitoring
Australia’s compliance with paragraph 172, for instance, and in writing formal letters of
83 Russell, C., (1990) ‘Monitoring and enforcement’, Public policies for environmental protection 232, 243. See also Dion, C., Lanoie, P. and Laplante, B. (1998), ‘Monitoring of Pollution Regulation: Do Local Conditions Matter?’ 13, Journal of Regulatory Economics, 5. 84 Tandon, R., and Kak, M., Citizen Participation and Democratic Governance, in Our Hands (Concept Publishing, 2007), 175. 85 See Nelson, C., (2016) ‘Exploring monitoring and evaluation within a good governance perspective: A case study of Stellenbosch Municipality’ (Masters thesis submitted to Stellenbosch University) 9.
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request to and from Australia during the period 2010-2015 are consistent with oversight of
Australia’s adherence to standards. But as chapter 6 highlights, NGOs like WWF have also
involved themselves in monitoring. It’s also an activity they were willing to engage with at
multiple levels including, that is, regarding the activities of Queensland (the sub-state). In
December 2016, for example, WWF publicly stated that they were prepared to let UNESCO
know of Queensland’s failure to tighten vegetation clearing laws in the GBR catchment
areas:86
If the [Queensland] Government doesn’t [let them know] we will. UNESCO has to
know about this.87
Enforcement is the third element of regulation, and involves, as Russell writes:
taking actions that force violators to mend their ways and that provide visible examples to
encourage others in the regulated population to maintain desired behaviour to avoid a similar
fate.88
An alternative but broader definition involves any and all ‘dealings’ between actors (who are
authorised to undertake enforcement) and states ‘to ensure their compliance.’89 In this
chapter, and this thesis, Russell’s definition of enforcement should suffice.
In the context of World Heritage, which has relatively few non-compliance procedures
(NCPs),90 the lines between the practices of monitoring and enforcing are increasingly
blurred. Reactive Monitoring Missions (RMMs), for instance, may be conceived as just
monitoring but it is also a very public naming and shaming of states ‘to encourage others to
86 For an analysis of this, Hamman, E., (2016) Failed changes to Queensland’s vegetation clearing laws: Implications for climate change, the Great Barrier Reef and Australian environmental policy 31(8) Australian Environment Review 303 87 ABC News (online) ‘UNESCO 'has to know' of planned land clearing in Great Barrier Reef catchments: WWF’ 22 December, 2016 <http://www.abc.net.au/news/2016-12-22/great-barrier-reef-catchments-clearing-planned-wwf-says/8140244> 88 Russell, above n 83, 243. 89 For a simple definition of enforcement see Johnstone and Sarre, above n 75, 4. 90 The topic of whether the Convention has NCPs is debateable. Some sources claim there are no NCPs under the Convention: See Rose, G., et al Compliance Mechanisms Under Selected Multilateral Environmental Agreements (UNEP, 2007), 38 – 39, though others suggest there are. Goodwin for instance writes: ‘through the marriage of reactive monitoring and the allocation of powers and time to the Committee to adjudicate at their annual sessions upon conservation reports produced by the IUCN, the WHC has adopted a very proactive NCP.’ See Goodwin, E., (2009) ‘The World Heritage Convention, the environment, and compliance’ 20(2) Colorado Journal of International Environmental Law and Policy 157, 181-182.
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maintain a desired behaviour’ (as per Russell’s definition above) and are therefore likely also
to be a tool for enforcement. Moreover, we might also argue that the threat of an In Danger
Listing is also a key tool for enforcement. As chapter 2 made clear (see section 2.3.5), the In
Danger List is not meant to be seen as ‘a sanction’, but like RMMs, the threat of an In Danger
Listing seems capable, as this case study shows, of ‘forc[ing] violators to mend their ways
(again, see Russell’s definition of enforcement above).
In any event, now that we have a fuller understanding of the idea of the practices of
regulation, we can move to identify the various actors in the space that potentially contribute
to it, and begin to unpack what role non-states in particular play in regulation.
4.3 STATES, NON-STATES AND SUB-STATES
4.3.1 The State (Australia)
In order to better understand the regulatory space of the GBRWHA, and the contribution non-
state actors make to the phenomenon of compliance, it is necessary to come to terms with the
clusters of actors that inhabit the space, and, at least for the purposes of this study, give them
some ‘labels.’ Though it’s not always desirable to do so (given the complexity of actors that
exist on the world stage today), the discourses surrounding international law and international
relations tend to use the vernacular of ‘state’ and ‘non-state’. This is unsurprising as the state
has traditionally been seen as the focal point of the creation and implementation of
international law leading up to and post-World War II.
A generally accepted definition of ‘state’ is set out in the Montevideo Convention on the
Rights and Duties of States and is considered to have four elements:
1. a defined territory,
2. a permanent population,
3. an effective government, and
4. the capacity to enter into relations with other States.91
91 Article 1 of the Montevideo Convention. See also McAdam, J. (2010)‘Disappearing States’, Statelessness and the Boundaries of International Law UNSW Law Research Paper No. 2010-2 <https://ssrn.com/abstract=1539766>
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Under the Montevideo Convention, accepted as it is under international customary law,92 the
only state actor in the GBRWHA case study is Australia. Australia is the signatory to the
World Heritage Convention and recognized as the responsible entity in terms of the duties
and obligations set out in the Convention. The presence of Queensland, however, complicates
things. From the perspective of international law, Queensland is largely an irrelevant actor.
As Schreuer points out:
International law has a tendency to turn a blind eye to federal structures and regards
their distribution of functions as an internal matter. This attitude has reinforced a
unitary conception of the sovereign State and of international law as a horizontal
system of co-equal participants.93
Thus, the depiction of Australia as ‘the state’ might fit well with the aims and practices of
international law, including questions of compliance with World Heritage, but a simple state-
non-state distinction does little to help us understand the complex relational dynamics at play
in federalist nations like Australia. This is particularly true for situations where the
responsibility for making and enforcing environmental law (including the impacts on World
Heritage), rests predominantly beneath the federal level.94
4.3.2 The Sub-State (Queensland)
Many of the problems the GBRWHA faces are a direct result of land-based activities such as
agriculture and coastal development, including Queensland’s contribution to climate change.
Accordingly, labelling and charting Queensland’s behaviour is highly relevant to
understanding the operation of compliance under the World Heritage regime from an
empirical perspective. Hence, in this thesis, Queensland has been given the label of a ‘sub-
state’ defined for the purposes of this thesis as:
92 Ibid., 6. 93 Schreuer, C., (1993) ‘The waning of the sovereign state: Towards a new paradigm for International law?’ 4 EJIL 447, 450. 94 Other federalised nations which this might apply to include the United States, Germany, Canada and Brazil.
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A geographical region within a state having its own constitution and which
establishes an independent set of obligations, powers and functions of government
which are separate to, though not necessarily subservient to, that of the state.
The conception of Queensland as a sub-state in this thesis, needs to be distinguished from
other examples given in the literature, for instance references to Scotland or Wales, which are
part of the United Kingdom (i.e. the state) though separate nations altogether. Similarly, it
should be distinguished from the autonomous communities in Spain such as the Basque
country and Catalonia which are sometimes considered sub-states.95 Queensland aligns with
neither of these examples.
Another way of conceptualising Queensland in the case study is to describe them as Setzer
might do, as sub-national actors.96 Sub-national actors, are an integral part of ‘multilevel
governance (MLG)’ and in environmental matters, they have had a particularly strong
presence in climate action at the international level.97 An alternative characterisation, again,
would be to label Queensland in the case study as a ‘regional government’ or ‘regional area.’
In fact, as Crawford suggests, the very separation between the ‘central’ and the ‘regional’
within a state is one of the main factors that gives rise to the recognition of federalism in the
first place.98
In the end, whether we label Queensland as a sub-state, a subnational actor or even regional
area within a state is not crucial to the discussion. What is important is that we label them
and document their part in compliance pull, including distinguishing them from the other
main category of actor that existed in the case study, that of non-state actors.
4.3.3 Non-States (NGOs, IUCN, UNESCO etc.,)
Non-state actors are decidedly broader and more diverse concept to grasp than either states or
sub-states. Various attempts at definitions exist in the literature. Santarelli, for instance,
95 See for example Olivieri, V., (2015) ‘Sub-state nationalism in Spain: primers and triggers of identity politics in Catalonia and the Basque Country’ 38(9) Ethnic And Racial Studies 1610. 96 Setzer, J., (2015) Testing the boundaries of subnational diplomacy: the international climate action of local and regional governments. 4(2) Transnational Environmental Law 319 97 Ibid. 98 Crawford, J., The Creation of States in International Law (Oxford University Press 2006), 483.
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canvasses the literature and shows how definitions are often dependent ‘on such factors as
independence from states, private nature, or the mere difference from states.’99 Alternatively,
Pearlman and Cunningham, define a non-state actor as ‘an organized political actor not
directly connected to the state but pursing aims that affect vital state interests.’100 Bas Arts
who has written extensively on non-state actors in environmental regimes defines non-state
actor as:
Those actors that are not (representatives of) states, yet that operate at the international level
and that are potentially relevant to international relations.101
From his review of the literature, Arts goes on to categorize five different types of non-state
actors:
1. Intergovernmental Organisations (IGOs);
2. International non-government Organisations (INGOs);
3. Corporate Interest Groups (CIGs) and Transnational Corporations (TNCs);
4. Epistemic communities; and
5. A remainder group such as terrorist networks, professional organisations, churches etc.102
The only two refinements we could make to Art’s analysis are, firstly, to suggest INGOs need
not necessarily be international and can also include domestic NGOs operating (or having the
capacity to operate) at the international level. And secondly, we might add an extra category
of actor which describes the unique role of an organisation like IUCN which is made up of
both NGOs and government members. As discussed in the next chapter (see section 5.2.2) it
seems reasonable to categorize IUCN as a Hybrid Organisation, given its make-up of state,
non-state and sub-state members. 103 The table below describes some of the main actors
within the GBRWHA regulatory space.
99 Santarelli N., Non-state Actors in International Law, Oxford Bibliographies in International Law (Oxford University Press, 2013). 100 Pearlman, W., & Cunningham, K. G. (2012), ‘Non-state Actors, Fragmentation, and Conflict Processes’ 56(3) Journal of Conflict Resolution, 3, 3. 101 Arts, B, ‘Non-state Actors in Global Environmental Governance: New Arrangements Beyond the State’ in Koenig-Archibugi, M., and Zürn, M., (eds) New Modes of Governance in the Global System: Exploring Publicness, Delegation and Inclusiveness (Palgrave Macmillan, 2006) at 180. 102 Ibid. 103 See Willets, P., Non-Governmental Organizations in World Politics: The Construction of Global Governance (Routledge, 2011), 73.
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4.3.4 Conflicts and Partnerships between the actors
The variety of interests (conservation, fishing, tourism, finance, extractive industry) across a
broad geographical area creates conflicts between the actors. It would be naive, for instance,
to assume that the ‘science’ of the Reef takes centre stage on all occasions, and to ignore the
fact that there are not deep cultural and ideological discrepancies between the groups
involved. We might return therefore to the discourses mentioned in chapter 2 (see section
2.2.2) which showed that heritage, including natural heritage, is constructed by those who
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seek to influence it and is thus subject to different biases and social controls. As chapter 2
made clear, the GBRWHA and the idea of World Heritage is no different in this regard.
Much of this relates to our anthropocentric approach to the protection and use of sites like the
GBRWHA, and reveals differing ideas as to what extent we should exploit the natural world
for human gain. As McCalman reflected in his 2013 book:
The Great Barrier Reef, as I learnt, [is] built by human minds as well as coral
polyps.104
It is within human stories, and more specifically, human activity that we see conflict arise
between the actors. After all, the Reef had thrived for millions of years until agriculture,
human development and climate change arrived.105 Estimates suggest that ‘since European
settlement’ land clearing and agriculture have resulted in up to 900% increase in sediment
loads.106
These anthropocentric drivers (agriculture, port development, the rise in fossil fuels) have
created conflicts in responses, even amongst groups we might assume to be aligned. For
example, when asked whether they had seen conflict or collaboration arise between the
various stakeholders, one NGO participant remarked:
Yes, I think [GBR] is a really fascinating one for that, in terms of say, the tourism
sector, or the fisheries or ‘boaters’ for want of a better word. They all have an interest
in the water quality of the reef, the health of the reef generally but have been quite
suspicious of environmental or conservation groups, which I guess might come from
not having much to do with them previously. The delicacy of trying to build a
relationship with the tourism and fisheries sector has seen a little friction in the
conservation sector.107
104 McCalman, above n 4, 9. 105 For a fascinating overview of the geological formation of the Reef, see Hopley, D., Parnell, K., and Smithers, S.G., The Geomorphology of the Great Barrier Reef: Development, Diversity and Change (Oxford University Press, 2007). 106 Ibid., 23. 107 Interview # 1.
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Comments from a senior employee at GBRMPA noted similar ‘complexities’ and highlighted
the challenges this provides for regulation of the site:
Participant: The Reef is a complex space. There is such a high level of
interest in it and I think that for us when you look at our
partnership groups, we’ve got NGOs sitting next to
industry reps, sitting next to Queensland Government and
Commonwealth Government departments and departmental
people and so it’s a space that wave always operated within
that space and it’s interesting because …
Interviewer: Is it challenging?
Participant: It is challenging. But I think that everybody respects that
everyone has a role to play. Not everyone agrees all the time
obviously...this is a very unique space we operate
within. A lot of very strong views on a lot of the issues.108
An interview with the Queensland Government noted similar sentiments, though, like
GBRMPA, the interview participant preferred to end on a positive note:
Participant: [Everyone was involved in the development of the Reef 2015
Plan], everyone from the Resources Council down to WWF,
and in between we had the farming groups and fisheries, the
[natural resource management (NRM)] groups.
Interviewer: So that would have been an interesting roundtable discussion?
Participant: Oh yes, fascinating. But those things are, well, if they’re
properly managed, they’re incredibly powerful. From a
government’s perspective it’s an opportunity for people
to debate stuff across the table, rather than one way just to
government.109
108 Interview # 7. 109 Interview # 11.
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All this suggests there are considerable differences in the perspectives of state and non-state
actors concerning the management and use of the Reef. One might therefore expect conflicts
between the actors to arise. There was however evidence of partnerships and collaboration
(discussed further in chapter 6). One of the best examples of NGOs working together was
Australian Marine Conservation Society (AMCS) and WWF in their ‘Fight for the Reef’
Campaign. As an interview participant from WWF revealed:
Participant: “Fight to the Reef” [was] a partnership between us and
AMCS. AMCS led the community engagement, the day-to-
day media work, that sort of stuff. WWF did the technical
policy pieces and the World Heritage engagement.
Interviewer: So had you had stuff to do with AMCS before that campaign,
or did it come about because of the reef?
Participant: No, we have had a long association with AMCS for years.110
These partnerships were seen as a success in the eyes of the broader NGO community. For
instance, as another NGO involved in Reef issues commented:
I know that a lot of the bigger NGOs, in the past, they consulted with each other
around the Reef but I suspect that they were all working very differently and that they
very rarely talk to each other. My understanding is that … one of the good things
about that was that it was the one of the first times I saw some of the big NGOs come
together, you know around “fight for the reef”…111
This comment was made despite earlier criticisms by the same NGO directed at the bigger
NGOs that they are perhaps at cross-purposes, at least, some of the time:
Participant: My perception of a lot of the big NGOs is that they really
don't have time for anything but their own business. They are
not collaborative, they don't play very well with others. It's
110 Interview # 10. 111 Interview # 3.
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interesting, it's part of that NGOs thing. I mean, if you're well
resourced, why the hell would you reach out to someone to
work with them? You don't have to, you know, you've already
got paid staff.
Interviewer: And a big membership base?
Participant: Absolutely.112
Another NGO, however, suggested issues were relatively well-aligned between the NGOs
and became that way out of a kind of ‘default positioning’ between the groups themselves:
I think that sometimes often there are kind of default decisions that are made about
who should we engage on this topic and are there other NGOs in that space? Are they
doing a reasonably good job? If so, then maybe we won't interfere there.113
The separation between the NGOs, and their different strategies of influence (regulatory and
otherwise) is further discussed in chapter 6 of this thesis. For now it is sufficient to note that a
variety of actors (state, sub-state and non-state) inhabit the GBRWHA and World Heritage
space, and adopt and use a variety of tactics, at times conflicting, at times collaborative, to
exert influence.
4.4 CONCLUSION
Understanding how and why states like Australia respond as they do to World Heritage can
only really be uncovered by detailed empirical study of the behaviours of the ‘web of actors’
involved. As Mitchell reminds us, it is the behaviour of actors that is crucial when
investigating questions of compliance.114 But before we can analyse their actions, we first
need to understand who they are. This chapter has sought to do this and briefly discussing the
regulatory space of the GBRWHA, and by highlighting the spectrum of environmental issues
the site faces.
112 Interview # 3. 113 Interview # 2. 114 Mitchell, R., ‘Compliance Theory: Compliance, Effectiveness, and Behaviour Change in International Environmental Law’, in Bodansky, D. et al (eds) The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 893, 895.
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This chapter also had an additional aim, which was to introduce the iconic nature of the Reef,
the site at the centre of the case study. The boundaries and scale of the site were covered as
well as its tremendous economic and social value, not just to the Australian and Queensland
governments, but to the fishing, tourism and infrastructure communities as well as to the ‘70
plus’ Indigenous communities that maintain a special connection to the site. The iconic nature
of the GBRWHA proved to be one of the main factors which allowed non-state actors to help
pull compliance out of Australia over the study period. Australia had (and has) a lot to lose,
reputationally (and economically) in having the site listed In Danger. Increasingly, the web of
actors involved in compliance recognised this, and worked opportunistically over the five
year period to draw Australia closer to alignment with the regime. The next two chapters
break down which actors were involved in this process and discuss how they were able to
achieve what they did over the study period. These chapters focus, in particular, on the
practices of regulation.
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The Enrolment of the IUCN
The previous chapter introduced the iconic status and regulatory space of the Great Barrier
Reef World Heritage Area (GBRWHA), highlighting its decentred and polycentric
characteristics. It identified and categorised the various state, sub-state and non-state actors
with an interest in the site, including non-state actors such as Intergovernmental
Organisations (IGOs); Non-Government Organisations (NGOs); and Hybrid International
Organisations (HIOs). This chapter examines the important regulatory role played by one
non-state actor in particular - the International Union for the Conservation of Nature (IUCN)
- with a focus on their activities in regulation. This chapter aims to uncover not only who
IUCN is, but to describe and analyse, in an inductive and data-driven way, the unique
regulatory role they play in World Heritage. The chapter draws on the regulatory theory of
enrolment as a basis for a discussion about their legitimacy and authority in the World
Heritage system.
5.1 INTRODUCTION
IUCN is the world’s largest and most respected conservation organisation. It is a unique
collection of state, sub-state and non-state members and has had a presence in almost all
forms of international conservation work since the 1950s.1 Under the World Heritage
Convention, IUCN plays the role of a formal advisory body. Whilst IUCN is tasked with
evaluating nominations for new World Heritage sites, they also play a key role, along with
UNESCO’s World Heritage Centre, in the monitoring and enforcement of existing sites.
Between the years 2010 and 2015 (but especially from 2012 onwards), IUCN proved
instrumental in pressuring Australia to act on the GBRWHA to a greater extent than it ever
had before. As a globally connected organisation with an established presence in
conservation, IUCN proved influential in helping the World Heritage Committee pull
1 States, sub-states and non-states were defined and identified in the previous chapter.
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compliance out of Australia. But how was it that they were able to do what they did? Why
did the various actors view them as such a legitimate regulatory presence?
Certainly, Australia was (and is) a leader in World Heritage, having been one of the first
countries to ratify the Convention, and with a presence on and off the Committee since the
late 1970s. As outlined in chapter 3, Australia is something of a ‘superpower’ in World
Heritage and has a unique and historical relationship with the Convention.2 Indeed, few other
nations have engaged as zealously with the dialogue, aspirations and implementation of
World Heritage as Australia has. All of this makes it easier for IUCN to do its job as a key
regulatory arm of the Committee. As an interview participant from IUCN noted:
[It helps that] Australia is actually really good at World Heritage. They take it
seriously.3
The other factor that mattered, as the previous chapter pointed out, was the iconic status of
the GBRWHA itself. Few other sites are as well-known and well-loved as the Reef, and
paradoxically, few other coral reefs are as well-managed. Whether IUCN deliberately
leveraged off these issues is not clear. Alongside Australia’s reputation for excellence in
heritage, the status of the site definitely made it easier for IUCN to do the job that it was
enrolled to do under the Convention.4
That said, the mindset of IUCN is probably neither here nor there in terms of the goals of this
thesis. What mattered was that their oversight was influential and ultimately successful in
compelling Australia to ‘lift its game’ in regards to its stewardship of the GBRWHA.
Responses from Australia like the banning of dumping dredged material in the Marine Park,5
and the first ever Strategic Assessment for the site,6 would likely never have happened had it
not been for the expertise and oversight of a body like IUCN. Granted, long-term plans for
2 Australia also seems to have a respect for international rules-based diplomacy more broadly within the UN (and UNESCO) system. For an in-depth discussion about Australia’s relationship with the UN system, see Cotton, J., and Lee, D., (eds) Australia and the United Nations. (Department of Foreign Affairs and Trade, 2012). 3 Interview # 9. 4 The language (and theory) of enrolment is discussed further below. 5 See ABC news ‘Fact check: Banning dumping of dredge spoil on the Great Barrier Reef’ 3 March 2016, <www.abc.net.au/news/2015-05-04/fact-check-great-barrier-reef/6333178> 6 See Australian Government, Strategic Assessment, Great Barrier Reef: <http://www.environment.gov.au/protection/assessments/strategic/great-barrier-reef> 23 June 2017.
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the Reef have been prepared before,7 and so too environmental assessments,8 but the scale
and urgency of Australia’s initiatives between 2012 and 2015 seemed unprecedented.
The major success, it seems, was the ability of IUCN (and others) in drawing Australia into
line through the procedures of the World Heritage regime. Indeed, as one interview
participant from the Queensland Government noted during the case study:
The Committee [now] have us on a treadmill of reporting.9
In all of this, a crucial resource for IUCN - as a regulator - was its legitimacy, an issue that
ultimately becomes the focus of this chapter. As Julia Black points out, though they are
distinct concepts, authority and legitimacy are ‘well-recognised as key resources contributing
to [a] capacity to regulate.’10 They are arguably all the more important in instances of non-
state actor oversight. As Black reminds us, non-state actors are often unable to rely on the
natural authority of law to conduct their activities:
[non-state actors] have a particular problem [in regulation], because unlike state-based
regulators whose actions are supported by law, non-state regulators cannot necessarily
rely on the authority of law to motivate people to behave, or derive their legitimacy
from their position in a wider legal order and constitutional settlement.11
Nonetheless, it seems clear from the case study that most Australian stakeholders welcomed
IUCN’s interventions: state, sub-state and non-state alike. There was certainly a point at
which Australia might have told IUCN, as one interview participant said, ‘to bugger off’, but
instead, Australia provided ‘an open book’ and they were allowed to come in and ‘talk to
everybody.’12 At other World Heritage sites this might not necessarily be the case. Nations
7 Great Barrier Reef Marine Park Authority, The Great Barrier Reef: keeping it great: a 25-year strategic plan for the Great Barrier Reef World Heritage Area 1994-2019 (Australian Government, 1994). 8 See the 2009 Outlook Report: Great Barrier Reef Marine Park Authority, Great Barrier Reef Outlook Report 2009 (Australian Government, 2009); and the 2014 Outlook Report: Great Barrier Reef Marine Park Authority, Great Barrier Reef Outlook Report 2014 (Australian Government, 2014) 9 Interview # 11. 10 Black, J., (2003) Enrolling actors in regulatory systems: examples from UK financial services regulation. Public Law 63, 75. 11 Black, J., (2009) ‘Legitimacy and the Competition for Regulatory Share’ LSE Working Papers 14/09 <https://www.lse.ac.uk/collections/law/wps/WPS2009-14_Black.pdf> 13. 12 Interview # 11.
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with pro-development agendas or a scepticism for ‘Euro-Centrism’ and ‘Northern elitism’
might not be as welcoming.13
What’s most interesting from this chapter is examining not just who IUCN is, or what role
they have in international conservation, but how they were able to do what they did over the
case study years. We begin this discussion, however, with some background to the
organisation and their contribution to the many facets of global conservation governance.
5.2 IUCN: BACKGROUND AND CONTEXT
5.2.1 What is IUCN?
IUCN was founded in Fontainebleau (Paris) in 1948 and lays claim to being the world’s
oldest global conservation body.14 As Holdgate remarks, IUCN was originally established as
a ‘meeting ground’ or ‘facilitator’ for the purposes of networking amongst its members, and
not ‘as an operational agency in its own right.’15 IUCN is considered ‘the largest professional
global conservation network in the world’ with more than 1,200 member organizations and
11,000 voluntary scientists across 160 countries.16
IUCN employs a vast system of networks to connect ‘scientists with practitioners, specialists
with system analysts, field operators with policy makers, [NGOs] with governments, and
nature conservation groups in the North and in the South.’17 It is IUCN’s ability to ‘harness’
13 Unless of course, there are significant financial resources at stake, which there aren’t. UNESCO is suffering significant financial constraints, particularly as a result of the United States withdrawing over the recognition by the UN over Palestine in 2011. See Meskell L, (2013) ‘UNESCO’s World Heritage Convention at 40 Challenging the Economic and Political Order of International Heritage Conservation’ 54(4) Current Anthropology 483, 484. 14 Holdgate, M., The green web: a union for world conservation (Earthscan 1999), vi. The union was originally constituted as the International Union for the Protection of Nature (IUPN) though in 1956 this name was changed. Between 1990 and 2008, IUCN was formally referred to as the World Conservation Union. Now it is simply IUCN. 15 Holdgate, above n 14, v. 16 IUCN ‘About’ <http://www.iucn.org/about/> accessed 12 April 2017 17 Christoffersen, L., (1997) IUCN: ‘A Bridge-Builder for Nature Conservation’ in Bergesen, Helge Ole and Georg Parmann (eds), Green Globe Yearbook (Oxford University Press, 1997), 60.
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these networks that impresses.18 As Holdgate suggests, one of the ‘greatest service(s)’ IUCN
provides is through networking and ‘channelling’ information flow in both directions.19
The governance framework of IUCN is established by way of several ‘Statutes and
Regulations’ which also includes the ‘Rules of Procedure of the World Conservation
Congress.’ Collectively, these documents are known as the ‘IUCN Statutes’ and have been
amended several times since 1948. The IUCN Statutes give the union its legal personality
under Swiss Law (Part 1). They also describe the major objectives of the organisation (Part
2):
To influence, encourage and assist societies throughout the world to conserve the
integrity and diversity of nature and to ensure that any use of natural resources is
equitable and ecologically sustainable.
The mandate of IUCN, as a global conservation body, is thus far broader than just World
Heritage, or indeed even protected areas management. The IUCN Red List, for instance, seen
by many as IUCN’s flagship achievement, is a ‘global approach’ for evaluating the
conservation status of wildlife.20 The focus of the Red List is not on areas nor ecosystems,
and nor, for that matter, on World Heritage (though there may be endangered species in
World Heritage areas). The broad mission of IUCN, as set out above, is important to note
because it speaks to the wider claims to authority over other actors in global conservation,
who are unlikely to see a separation between IUCN’s role in World Heritage and its broader
role in conservation.
Cameron has described IUCN as a ‘vast international partnership’ with interests that ‘range
from governance to advocacy.’21 These interests are a result of IUCN’s vast membership base
which includes both NGOs and states. The majority of members are NGOs which make up
18 IUCN, Report on Fundraising Activities (IUCN, 1990) available at Environmental Law library (Bonn, Germany) box call number 12153. 19 Holdgate, above n 14, vi. Again, this raises questions about its legitimacy and authority to act in operational roles which is explored later in this chapter. 20 IUCN ‘Red List, Overview’ <http://www.iucnredlist.org/about/overview#introduction> accessed 17 April 2017. 21 Cameron, C., ‘Evaluation of IUCN’s Work in World Heritage Nominations’ (IUCN, 2005) 3.
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over 70 per cent of IUCN’s membership base.22 The remainder is made up of state and sub-
state agencies such as Queensland’s Department of Environment and Heritage Protection
(EHP). The two houses of IUCN (NGO and Government) are afforded equal weight in
decision-making.23 Under this bicameral system of governance, agreement can only be
reached ‘if there is majority support in both these membership categories.’24 As a result, there
is often considerable compromise concerning the final positions that IUCN takes in
international affairs.25
Such a diverse structure, whilst unique, is not unheard of within other areas of global
environmental governance. The Forest Stewardship Council (FSC), for example, also has a
diverse array of individuals and organisations as members, as does the International Council
on Monuments and Sites (ICOMOS), which, like IUCN, is an advisory body under the
Convention (for cultural sites). The diverse membership base of IUCN, which includes state
actors, necessarily raises questions about whether IUCN can truly be classified as a ‘non-state
actor’ in regulation or otherwise. It is acknowledged that there is likely to be some level of
debate around this issue. Nontheless, for the purposes of this thesis, IUCN is considered to
align with Art’s definition of a non-state actor (see section 4.3.3) largely because, as an
organisation, it does not represent a particular state, but rather the negotiated positions of all
its members: state, sub-state and non-state.
5.2.2 BINGO, INGO, GONGO or NGO?
Since 1999, IUCN has enjoyed permanent observer status at the United Nations General
Assembly (UNGA), including maintaining an office at the UN headquarters in New York.26
Prior to 1999, IUCN had held special consultative status with the UN Economic and Social
Council (ECOSOC) as an ‘International NGO’.27 Today, it is the only permanent observer to
the UNGA with expertise in conservation and the environment.28 The International
22 IUCN, ‘Members’ <https://www.iucn.org/about/union/members/> accessed 17 April 2017 23 Christoffersen, above n 17, 63 24 Ibid., 63 25 IUCN’s General Assembly resolutions (see below) have proved incredibly powerful largely because state and non-state consensus building has already occurred throughout the resolution process. There is therefore little need to ‘re-agitate’ issues if and when they appear again at a domestic level. 26 United Nations ‘Intergovernmental Organizations’ <http://www.un.org/en/sections/member-states/intergovernmental-organizations/index.html> accessed 17 April 2017 27 Lausche, B., Weaving a Web of Environmental Law (Schmidt, 2008), 389. 28 IUCN, ‘Our Work’ <https://www.iucn.org/regions/washington-dc-office/our-work/permanent-observer-
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Committee of the Red Cross (ICRC) is the only other NGO29 to be granted permanent
observer status to UNGA.30
On several occasions, IUCN has used UNGA as a platform to highlight the ongoing need for
conservation,31 though the extent to which it has done so to further the World Heritage
program (as opposed to other conservation issues) appears negligible. In comparison,
UNESCO has also used its presence in UNGA to raise the awareness of cultural heritage
destruction in the Middle East.32 This likely reflects the bias towards cultural heritage under
the Convention and towards ‘heritage’ more broadly (see chapter 2).
IUCN’s observer status at UNGA arguably puts it in the category of an Intergovernmental
Organisation (IGO).33 However, with over two thirds of IUCN’s members being NGOs it is
clearly not ‘intergovernmental.’34 Others have labelled IUCN simply as ‘an NGO’, or
because of its global presence, an ‘international NGO’ (INGO).35 In the past, in the context of
World Heritage, UNESCO and the Committee have referred to IUCN as an ‘NGO’.36 Willets,
however, argues IUCN is neither an INGO nor an IGO but, rather, ‘a hybrid international
organisation.’37
Others still have categorised IUCN as a ‘non-government organisation government
organisation’ (NGOGO);38 a Governmental and Non-Governmental Organisation
mission-un> accessed 15 April 2017 29 Willets maintains that the ICRC is not an international body, but a Swiss NGO. See Willetts, P. Non-Governmental Organizations in World Politics: The Construction of Global Governance (Routledge, 2010) 67. 30 Lausche, above n 27, 389. 31 Statement by Julia Marton-Lefèvre, Director-General of IUCN, to United Nations General Assembly High Level Plenary Meeting on the Millennium Development Goals New York, 22 September 2010 <http://www.iucn.org/?6088/IUCN-at-the-UN-General-Assembly> 32 UNESCO ‘News’ <http://whc.unesco.org/en/news/1287/> 33 Lausche, above n 27, 392. 34 Ibid., 389 35 Meskell L, (2013) ‘UNESCO’s World Heritage Convention at 40 Challenging the Economic and Political Order of International Heritage Conservation’ 54(4) Current Anthropology 483, 485. See also Bhandari. M.P., (2012), ‘Exploring the International Union for the Conservation of Nature (IUCN's) National Program Development in Biodiversity Conservation: A Comparative Study of India, Pakistan, Nepal, and Bangladesh’ Paper 73 Sociology – Dissertations, 39. 36 UNESCO World Heritage Centre, (WHC.02/2 July 2002) Operational Guidelines for the Implementation of the World Heritage Convention, at paragraph 61. 37 Willetts, above n 29, 73. 38 Batisse, M., and Bolla, G., (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 20.
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(‘GONGO’)39; a ‘quasi NGO’ (Q-NGO);40 or, again with an emphasis on its international
membership, an ‘International Quasi Autonomous NGO’ (IQUANGO).41 One of the
interview participants in the research labelled IUCN a ‘BINGO’ (Big International NGO).42
To complicate matters further, IUCN describes itself as ‘an international association of
governmental and non-governmental members’ (IAGNGO).43
Despite all these labels, this thesis adopts Willets’ words of a ‘hybrid international
organisation’ (HIO), which he defines as:
An international organisation that includes in its membership both states and
transnational actors, which may be from a single country or multiple-countries,
[including] international non-governmental organisations.44
Willets’ view is specific to the unique structure of IUCN and its bicameral house
composition. The spectrum of labels given to IUCN is nonetheless important because it
shows how unique and contested the structure and functions of the organisation really are. It
is also significant because much of the literature that talks about legitimacy of NGOs is not
automatically applicable to an organisation like IUCN.45 Those concepts require further
empirical analysis and discussion to make them relevant, which is provided below.
5.2.3 IUCN’s Influence across International Conservation
The involvement of IUCN across a range of areas of international conservation, including
treaties like Ramsar Convention on Wetlands of International Importance (Ramsar) and the
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 39 Holdgate, above n 14, 33. 40 See for example, Prideaux, M., (2013) ‘A Natural Affiliation: Developing the Role of NGOs in the Convention on Migratory Species Family,’ Report to the 11th Convention on Migratory Species Conference of the Parties on the emerging role of NGOs in the Convention on Migratory Species Family and the need to formalise the relationship. 41 Willetts, P (1990) ‘Transactions, networks and systems’ in Groom A and Taylor P (eds) Frameworks for International Cooperation (Pinter, 1990), 275-276. 42 Interview # 5. 43 IUCN Statutes Part 1. 44 Willetts, above n 29, 73. 45 There are numerous works which explore the legitimacy of NGOs, including in relation to environmental matters. See for instance: Cashore, B., ‘Legitimacy and the privatization of environmental governance: How non–state market–driven (NSMD) governance systems gain rule–making authority.’ 15(4) Governance 503; Princen, T., and Finger, M., Environmental NGOs in world politics: Linking the local and the global (Routledge, 1994); Baur, D., & Palazzo, G. (2011). The Moral Legitimacy of NGOs as Partners of Corporations. 21(4) Business Ethics Quarterly 579; and Jepson, P., (2005) Governance and accountability of environmental NGOs’ 8 Environmental Science & Policy 515.
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has given it a special status and recognition that extends well beyond World Heritage. This
reputation, built up over the last six decades, serves to reinforce a vision of IUCN as an
independent, reliable, reasonable, and ultimately, science-driven organisation.
Few other organisations possess the breadth of influence and integrity in conservation science
that IUCN claims. In effect, it is the only institution capable of claiming the technical space
around global conservation governance. Its broad global legitimacy across a range of
conservation areas from endangered species to marine and terrestrial areas, allows it to move
rather seamlessly (and often uncontested) amongst both state and non-state actors. Much of
this derives from its continuous involvement and influence in global conservation.
As Gillespie notes, the IUCN was instrumental in the lead up to and establishment of Ramsar
signed in 1971.46 Its involvement with Ramsar, and the protections of wetlands and
waterfowl habitat more broadly, started in the early 1960s and led to them cosponsoring the
conference in Iran at which Ramsar was eventually adopted.47 As Matthews suggests:
[it is] surprising how much of the movement towards [the Ramsar] convention, and its
subsequent improvement and expansion, was due… to the activities of [IUCN].48
Since the 1970s, IUCN has had a history of cooperation with the Ramsar Secretariat49
including acting as ‘an international organisation partner’ which allows it to ‘share scientific
knowledge and practical experiences.’50
IUCN’s efforts in the 1960s on the illegal trade of wildlife also led to the treaty now known
as CITES. For instance, it was the IUCN General Assemblies in Poland in 1960 and Kenya in
1963 which effectively built the foundations for CITES.51 Accordingly, IUCN has since been
recognised, along with WWF, as playing a key role in drafting the text and being a major
46 Gillespie, A. Protected Areas and International Environmental Law (Martinus Nijhoff, 2007) 286 47 IUCN, Eleventh General Assembly ‘Record of Proceedings’ (Banff, Alberta, Canada 11—16 September 1972), 102. 48 Matthews, G, The Ramsar Convention on Wetlands: its History and Development (Ramsar Convention Bureau, 2013) 5. 49 Lucas, P.H.C (1997) ‘From Caracas to Montreal and beyond’ 7(2) Parks 15, 20 50 IUCN ‘Ramsar celebration on the occasion of the Convention’s 40th Anniversary’ <www.iucn.org/content/ramsar-celebration-occasion-convention-40th-anniversary> accessed 13 April 2017. 51 IUCN, ‘A Review of the Impact of IUCN Resolutions on International Conservation Efforts’ (IUCN, 2012) <https://www.iucn.org/downloads/resolutions_eng_web.pdf> 6.
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player in its implementation.52 Over the years, IUCN’s Species Survival Commission, one of
its six specialist commissions, has made particularly significant policy contributions to the
operation of CITES.53
In the 1970s and 1980s, IUCN collaborated with UNESCO, the United Nations Environment
Program (UNEP), the Food and Agriculture Organisation (FAO) and WWF to prepare the
World Conservation Strategy and in, 1982, the World Charter for Nature (which was
subsequently endorsed by the UNGA).54 In the process, according to Princen and Finger,
IUCN played a part in cementing the phrase ‘sustainable development’,55 the overarching
paradigm under which global environmental governance now revolves.56 At the time, the
notion of sustainable development represented a ‘philosophical shift’ for the conservation
movement, away from protection and conservation towards the balanced and sustainable use
of nature.57 As MacDonald notes, the shift to sustainability increased IUCN’s legitimacy and
helped to further expand its membership base.58
In sum, IUCN’s role in the development of conservation treaties like Ramsar, CITES and
more recently the Convention on Biodiversity (CBD)59 has helped to boost its legitimacy in
the eyes of both state and non-state actors. In particular, it has helped build an image of
IUCN as a rational and science-driven organisation outside the realm of politics or corporate
interests. Moreover, its technical and focussed efforts on areas like conservation and
protected areas has strengthened its position within the UN system, and, as a result, given it a
52 Princen and Finger, above n 45, 36. 53 IUCN, ‘A Review of the Impact of IUCN Resolutions on International Conservation Efforts’ (IUCN, 2012) <https://www.iucn.org/downloads/resolutions_eng_web.pdf> 6. 54 Christoffersen, L. (1997) ‘IUCN: A Bridge-Builder for Nature Conservation’, in Helge Ole Bergesen and George Parmann (eds) (1997) Green Globe Yearbook of International Cooperation and Development 1997 (Oxford University Press) 59-69, at 61. 55 Princen T and Finger M, Environmental NGOs in World Politics: Linking the Local and the Global (Routledge, 1994), 226. 56 See McGrath, C Synopsis of the Queensland Environmental Legal System (Environmental Law Publishing, 2011) 6. 57 See IUCN, above n 18. 58 MacDonald, K, (2003) ‘IUCN: A History of Constraint’ Text of an Address given to the Permanent workshop of the Centre for Philosophy of Law Higher Institute for Philosophy of the Catholic University of Louvain (UCL), Louvain-la-neuve. Available online <https://tspace.library.utoronto.ca/handle/1807/9921> 10. 59 In the early 1990s IUCN provided ‘considerable technical and policy support’ in the formation of the CBD. See Christoffersen, above n 17, 66. They continue to play a strong support role with the CBD including preparing policy and background papers for CBD meetings. See IUCN ‘Our work on CBD’ <www.iucn.org/theme/global-policy/our-work/convention-biological-diversity-cbd>
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foothold in a broader system of ‘legitimate’ global governance. As MacDonald has succinctly
summarised:
[Ramsar, World Heritage and CITES] and IUCN’s role in developing and
implementing them through the 1970s became IUCN’s claim to legitimacy within
both the UN system and government bodies around the world.60
5.2.4 The influence of IUCN’s Commissions and Resolutions
The six Commissions of IUCN have played a fundamental role in many of the above
initiatives, including in helping building the overall image of IUCN as a conservation-
focussed and professional organisation. The IUCN Statutes (Part VIII) defines Commissions
as:
networks of expert volunteers entrusted to develop and advance the institutional
knowledge and experience and objectives of IUCN.
The Commissions unite over 16,000 volunteer experts across six specialist areas.61 As one
participant in the study noted, IUCN’s Commissions, are ‘very, very strong’ and include
environmental law where there are some ‘towering intellects’.62
IUCN’s protected areas commission (the World Commission on Protected Areas) has been
particularly influential in World Heritage. Its previous incarnation - the Commission on
National Parks and Protected Areas (CNPPA), was responsible for publishing the 1982
indicative inventory of natural sites of World Heritage quality.63 They were thus part of the
early discussions around what World Heritage would (and should include). As one of the
interview participants noted in the case study:
60 MacDonald, above n 58, 8. For further discussion of protected areas law and the work of the IUCN see Lausche, B., Guidelines for Protected Areas Legislation (IUCN, 2011) available online < https://portals.iucn.org/library/efiles/documents/eplp-081.pdf>. For an Australian perspective on protected areas law, see Boer, B., and Gruber, S., (2010) ‘Legal Framework for Protected Areas: Australia’ IUCN-Environmental Policy and Law Papers (No. 81) available online <http://cmsdata.iucn.org/downloads/australia_1.pdf>. 61 The six Commissions of IUCN are: (1) education and communication; (2) economic and social policy; (3) environmental law; (4) ecosystem management; (5) protected areas; and (6) species survival. For a discussion of the evolution of the commission on environmental law, see Lausche, above n 27. 62 Interview # 5. 63 IUCN, The World’s Greatest Assets: An Indicative List of Nature Sites of World Heritage Quality (IUCN, 1982).
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the World Commission on Protected Areas, and through their own policy forum…
that's where some of the early discussions about the scope of World Heritage actually
emerged.64
The other important part of IUCN’s influence, including regarding World Heritage has been
the ‘1,000 plus’ resolutions it has issued since 1948. Though these documents are not legally
binding, and represent only ‘soft law’, the impact has been said to have helped shape the
‘international conservation agenda’ and presented a ‘most effective means of influencing
conservation policy, at species, site, national and global levels.’65 The findings in the case
study in this thesis largely support these claims. One of the interview participants for instance
noted:
Participant: … it's hard to track but when you know about it, there are
actually points in those resolution processes that then trigger a
change in international policy and then changes in national
policy.
Interviewer: You mean afterwards?
Participant: Yes afterwards. Probably the one that is easiest to follow is
the iterative development and thinking around Marine
Protected Areas. Because that really emerged in the late
1990s as a set of resolutions and they just progressively
matured over time. Those governments who are then
interested will take that thinking and translate it back into
their own national policy.66
One of the more prominent examples of the influence of IUCN’s resolutions is their
connection to the establishment of international treaties. For example, the formation of
CITES, described as one of the best recognised international instruments ‘but also the most
poorly understood.’67 CITES was first considered in the Poland and Kenyan meetings in the
early 1960s (see above).68 At the time, the resolution called for:
64 Interview # 2 65 IUCN, ‘A Review of the Impact of IUCN Resolutions on International Conservation Efforts’ (IUCN, 2012) <https://www.iucn.org/downloads/resolutions_eng_web.pdf> 3. 66 Interview # 5. 67 See, Convention on International Trade in Endangered Species of Wild Fauna and Flora: A CITES Timeline
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an international convention regulating export, transit and import of rare or threatened
wildlife and wildlife products.
The consensus-building process through IUCN’s resolution practice itself has provided a
powerful tool for policy-making around conservation issues. The ‘democracy’ of IUCN’s
resolution making process gives it a form of legitimacy which seems unmatched in global
conservation governance.
5.2.5 IUCN’s role in the development of World Heritage
Like CITES and Ramsar, IUCN was instrumental in the establishment of the World Heritage
Convention.69 As Holdgate reports, IUCN was heavily involved in the drafting and
discussions around the original text of the document.70 In fact, the original ‘groundwork’ of
the Convention, at least the natural side of it, was said to have originated from IUCN’s 1958
(6th) General Assembly in Athens.71 During that meeting, IUCN members ‘called for the
development of an official list of protected areas,’ and in 1961 a List of Protected Areas was
subsequently published.72 A second prominent push came about through IUCN’s 1966
General Assembly in Lucerne.73 During the meeting, United States politician Joseph Fisher
had called for the creation of a ‘trust for World Heritage’:
Certain scenic, historic, and natural resources are part of man's heritage, and their
survival is a matter of major concern to all. Some of the resources, however, are in
danger of being damaged or destroyed because of inadequate planning; because of the
Barry Walden Walsh Selbyana Vol. 26, No. 1/2, (2005), pp. 92-102 68 Balistrieri, C., (1993). CITES: The ESA and International Trade. Natural Resources & Environment, 8(1), 33-76. Retrieved from http://www.jstor.org/stable/40923271 69 For a historical background see Redgwell, C, ‘Article 2 - Definition of Natural Heritage’ in Francioni, F and Lenzerini, F (eds) The 1972 World Heritage Convention, A Commentary (Oxford Commentaries on International Law, 2008), at 64. 70 Holdgate, above n 14, 114. 71 IUCN, ‘A Review of the Impact of IUCN Resolutions on International Conservation Efforts’ (IUCN, 2012) <https://www.iucn.org/downloads/resolutions_eng_web.pdf> 6. 72 IUCN World Conservation Congress ‘IUCN Congress: Pioneering legal protection for natural sites’ <www.iucnworldconservationcongress.org/news/20160415/iucn-congress-pioneering-legal-protection-natural-sites> accessed 13 April 2017. 73 IUCN, IUCN and the World Heritage Convention, A review of Policies and Procedures (IUCN, 1995), Environmental Law Program Library, (Bonn, Germany) call number 800013-R-900119500, 4.
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lack of knowledge of the value of the resources; or because of the cost of management
and protection.74
Several years later, and Fisher’s dream would soon become a reality with the Convention text
being presented at Stockholm in 1972, and adopted by the General Conference of UNESCO
on 16 November 1972.
The official advisory status of IUCN, and its proposed role under the Convention, was
initially a point of contention amongst the States. As Bolla recounts, some participants, for
instance the United States had wanted to entrust IUCN with the administration of the
Convention.75 Others, particularly the developing countries, were concerned about losing
control of the Convention and argued for UNESCO to oversee it.76 In the end, a negotiated
outcome resulted: IUCN would retain a ‘consultative status’ under the convention including a
role of establishing programs and carrying out projects under the framework, whilst
UNESCO would become the secretariat.77
As the outset, IUCN’s program on World Heritage was relatively small compared to other
issues such as endangered species.78 Helped in part, however, by a major grant from the Ford
Foundation,79 their activities seemed to move ‘from strength to strength.’80 IUCN was able to
form close alliances and collaborations with ICOMOS and drew on their extensive and
increasingly close relationship with businesses and corporate institutions including
developing a private sector engagement strategy.81 These activities ultimately culminated in
the Operational Guidelines for Private Sector Engagement released in 2009.82
74 Fisher, J, ‘Keynote address to IUCN General Assembly, Lucerne, 1966) p 73 (of record of proceedings) available. The late conservationist Russell Train - a former US Federal Court Judge and Vice President of the WWF (US) - is often credited as being the ‘father of World Heritage’. However, by his own admission, it was Fisher who created World Heritage, with Train explaining he was merely well-placed ‘to make the concept [of World Heritage] a reality.’ 75 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 78-79. 76 Ibid., 79. 77 Ibid. 78 Cameron C., and RÖssler M., Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate 2013), 178. 79 Christoffersen, above n 17, 60. 80 IUCN, above n 73. 81 IUCN, Business Engagement Strategy (2012) <https://cmsdata.iucn.org/downloads/iucn_business_engagement_strategy_final.pdf> accessed 12 April 2017 82 IUCN, Operational Guidelines for Private Sector Engagement (IUCN 2009).
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More recently, their work in World Heritage has suffered from increasing politicisation by
Committee members. For the most part, this is the result of power struggles over decision-
making and the ongoing tension between pro-development parties and those with stronger
conservation agendas. The World Heritage framework has thus been labelled ‘in crisis’.83
According to Meskell the ‘ramping up of nationalist agendas and political pacting’ has
effectively devalued the role of science and IUCN. This has served to ‘critically impede’ the
proper functioning of the Convention process, she writes.84 It comes as no surprise, then, that
IUCN has described its own role in World Heritage as amongst its ‘politically exposed’ of all
its activities.85 Most of the politicisation has reportedly taken place since 2008 with a
noticeable shift from scientific to political decision-making and ‘a tendency to decide against
the recommendations of the advisory bodies.’86
5.3 THE ENROLMENT OF IUCN: A THEORETICAL ANALYSIS
The above discussion has laid the foundations for the next part of this chapter, which starts to
unpack what it is that IUCN actually does in World Heritage and more specifically, how it
goes about its work in the post-listing phases of World Heritage governance. The Convention
framework already grants IUCN an authority act as a monitor of World Heritage sites (a
source of regulatory legitimacy), but in global environmental governance, like most other
areas of global affairs, words on a page can mean very little. It is the observed behaviour of
regulatory actors that matters including asking questions interrogating what they did and how
they did it. Or, to pose the question more specifically, how was IUCN able to become such as
legitimate and authoritative presence in the GBRWHA case study?
The discussion which follows uses the theory of regulatory enrolment to help explain their
influence. The analysis concludes that IUCN were able to exert such authority by building a
legitimate presence of themselves by and large by calling on their unique resources and
relationships.
83 Meskell L, (2013) ‘UNESCO’s World Heritage Convention at 40 Challenging the Economic and Political Order of International Heritage Conservation’ 54(4) Current Anthropology 483, 487. 84 Ibid., 493. 85 Cameron C., and RÖssler M., above n 78, 180. 86 Hølleland, H., (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), 191.
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5.3.1 About Enrolment theory
‘Regulatory enrolment theory’ as Hardy refers to it,87 or simply ‘enrolment’, denotes a
strategy which deliberately enlists (or invites) non-state actors to perform a regulatory
function.88 In financial regulation, for instance, enrolment might involve using accountants
or other professional bodies to audit financial statements to assess whether they comply with
the requirements of corporations law. In employment regulation, it might involve the
deployment of unions, employer groups or other organisations to negotiate and establish
minimum standards for workers’ rights and working conditions.89 Grabosky refers to this
phenomenon as the ‘expanding role of non-state actors in regulatory processes’ and attributes
it largely to a weakening or withdrawal of state institutions in all forms of governance
arrangements.90 As Richardson points out, enlisting private actors in matters of compliance is
often justified by their ‘greater technical expertise’ as well as the prospect that ‘some
additional control will result.’91
Enrolment theory, seems to suggests a deliberate attempt to utilize the expertise and services
of non-state actors in regulatory endeavors. It presents a strategy of regulation initiated at the
hands of a central authority, and arguably implies, to a lesser extent perhaps, that the role of
non-state actors is subsidiary (or at the most complementary). However, as this thesis argues,
there is scope to expand the theory of enrolment on two levels. The first is in relation to its
application to global environmental governance. The international world is replete with
examples of de-centered, polycentric and pluralistic governance regimes, including Ramsar:
CITES; the CBD; and the United Nations Framework Convention on Climate Change
(UNFCCC).92 It is here that the theory of enrolment has value as a base for questioning
compliance and regulatory issues and to prompt further questions about non-state actors and
87 Hardy, T., (2014) Friend or foe? The regulatory enrolment of non-state actors in the enforcement of minimum employment standards in Australia (Thesis submitted to University of Melbourne). 88 Black, J., (2012) 'Paradoxes and Failures: -New Governance- Techniques and the Financial Crisis' 75(6) Modern Law Review 1048. 89 See Hardy, above n 87. 90 Grabosky, P., (2013), ‘Beyond Responsive Regulation: The expanding role of non-state actors in the regulatory process’ 7 Regulation & Governance 114, 114. 91 Richardson, B., (2002), ‘Enlisting Institutional Investors in Environmental Regulation: Some Comparative and Theoretical Perspectives’ 28 NCJ Int'l L. & Com. Reg. 247, 253. 92 Under the UNFCCC, for instance, the Intergovernmental Panel on Climate Change (IPCC) enlists the services of thousands of scientists to contribute to writing and reviewing reports on emissions methods, levels and solutions. In other words, those scientists have been enrolled in setting standards (the first aspect of regulation).
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their legitimacy to play a practical role outside of mere participation in environmental
decision-making.
The second way in which enrolment theory might be expanded is to consider the behavior of
non-state actors who aren’t formally enrolled in regulation (for instance as the IUCN is), but
who nevertheless are able to enroll themselves in the regime. In such a case, the interesting
question is not necessarily what they do (or did) in terms of regulation, but, again, how they
went about it. This second aspect is dealt with in chapter 6 in the analysis of the influence of
WWF and both are given more attention in the final chapter of this thesis.
It is perhaps unsurprising to find that the theory and vernacular of ‘enrolment’ was never
utilized in determining the role for IUCN (or any other non-state actor for that matter) in the
1972 Convention. At the time that the Convention was drafted, command and control (CAC)
approaches were still the most dominant method of regulating human behavior, including
regulating impacts on the natural world. In the 1960s and 1970s, international law was still
very state-centric and the sovereignty and power of states over their affairs were key
concerns. Hence, for example, the strong themes of sovereignty that are present in the
Convention (mentioned in chapter 2). Since the late 1960’s, however, the ‘hard shell’ of the
nation state has started to break down,93 and intergovernmental administering bodies (like
UNESCO) have naturally sought out (or have been exposed to) other and more diverse
mechanisms for asserting control.
In the context of World Heritage, the importance of scientific institutions like IUCN (and
ICOMOS) has increased dramatically. The pivot towards compliance raised in chapter 1 and
2 of this thesis certainly makes that clear. The fact that their regulatory role was not couched
in the language of enrolment (or regulation for that matter) is neither here nor there for
making sense of it today. The point is simply that enrolment theory has relevance in
understanding and analyzing the roles and influence of an actor like IUCN in what Drahos
refers to as transnational regulatory regimes.94 Enrolment provides a helpful lens in which to
examine the issues of legitimacy and authority of non-state actors in global governance and to
93 See Keohane R, and Nye J (eds) Transnational Relations and World Politics (Harvard University Press 1971). 94 For a recent discussion of the role of non-state actors in transnational regulatory regimes, see Tusikov, N., ‘Transnational non-state regulatory regimes’ in Drahos, P (ed) Regulatory Theory: Foundations and Applications (ANU Press, 2017).
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prompt further questions about how it is they do what they do. We begin this discussion,
therefore, by asking a simple question: ‘enrolment to do what?’
5.3.2 Enrolment to do what?
One of the first questions that arises in any enrolment analysis must surely be: ‘enrolment to
do what?’ It seems clear that the original role of IUCN in World Heritage was not tightly
construed. There are three relevant parts of the Convention text worth highlighting. First,
article 8.3 provides that IUCN may attend the meetings of the World Heritage Committee in
‘an advisory capacity.’ Second, article 13.7 provides that the Committee ‘may call on’ IUCN
‘for the implementation of its programmes and projects.’ Third, article 14.2 provides that
UNESCO may utilize the services of IUCN ‘to the fullest extent possible’ in preparing
documentation for the Committee and in ‘implementing’ the decisions of the Committee.
These three provisions, taken together, provided a broad though relatively ambiguous role for
IUCN in World Heritage.
This was the position until 2005, when it was clarified in amendments made to the
Operational Guidelines.95 Paragraph 37 of the Operational Guidelines now provides for a far
more specific role for IUCN, essentially restricting its input to four main tasks:
1. Evaluation of properties nominated for inscription on the World Heritage List,
2. Monitoring the state of conservation of World Heritage natural properties,
3. Reviewing requests for international assistance submitted by states; and
4. Providing input and support for capacity-building activities.
Returning for a moment to the functional definition of regulation as outlined in chapters 1
and 4 of this thesis (standard setting, monitoring and enforcement), it seems clear that all four
tasks above are predominantly concerned with the first two elements of regulation: standard
setting and monitoring. The data from the GBRWHA study, however, which focussed on the
activities of non-state actors after a site had been listed, demonstrates that IUCN is also
engaged in the third element of regulation, enforcement.
95 World Heritage Centre, ‘Operational Guidelines for the Implementation of the World Heritage Convention’ (UNESCO, 2005) paragraph 30.
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As noted earlier in this thesis, the regulatory literature talks about monitoring as a part of
regulation, but separate from enforcement. 96 On the one hand, monitoring or ‘compliance
monitoring’, as some refer to it,97 covers regulatory activities such as inspections, requests for
information, analyses of trends and unexplained issues or impacts. On the other hand, the
activities of enforcement involve more than merely ‘checking up’ on a regulated body’s
behaviour, and includes actions that ‘force violators to mend their ways.’98
In the context of international environmental law, as Peel and Sands points out, enforcement
seems also to involve a ‘right to take measures to ensure the fulfilment of international legal
obligations or to obtain a ruling [by an appropriate Court or other recognised body]’.99 It
might also be added to this that enforcement should involve an actor, whether state or non-
state, with some level of authority, whether statutorily based or not, to ‘force violators’ in
relation to a breach. Presumably that is what Peel and Sands refer to when they talk about ‘a
right to take measures.’
To date, a great deal of the literature surrounding monitoring and enforcement in international
environmental law has seemed to centre around specific regimes. For instance, considerable
attention has been given to the monitoring and enforcement processes around the greenhouse
gas (GHG) reduction frameworks like the Montreal Protocol on Substances that Deplete the
Ozone Layer (‘Montreal Protocol’) and the Kyoto Protocol to the United Nations Framework
Convention on Climate Change (‘Kyoto Protocol’). The bulk of that work has focussed on
the development and activities of compliance monitoring bodies and the various reporting
requirements for states.100 Increasingly, as pointed out in chapter 1, scholars are looking at
the issues of implementation and compliance of international environmental law though few
96 See section 1.1 in chapter 1 and section 4.2.2 in chapter 4. See also Johnstone, R., and Sarre, R., (2004) Regulation: Enforcement and Compliance. Research and Public Policy Series, 57. Australian Institute of Criminology, Canberra. 4. 97 Mitchell, R (2003) ‘International Environmental Agreements; A Survey of Their Features, Formation, and Effects’ 28 Annu. Rev. Environ. Resources. 429. 98 See the discussion and definition provided by Russell in chapter 4, at 4.2.2. 99 Peel J., and Sands P., Principles of International Environmental Law, (Cambridge University Press, 2012), 144. 100 See for example: Aakre, Stine, Leif Helland, and Jon Hovi (2016) ‘When Does Informal Enforcement Work?’ 60(7) Journal of Conflict Resolution 1312; Aakre, Stine. ‘The political feasibility of potent enforcement in a post-Kyoto climate agreement.’ 16(1) International Environmental Agreements: Politics, Law and Economics145-159; and Rosen, A., (2015) ‘The wrong solution at the right time: The failure of the Kyoto protocol on climate change.’ 43(1) Politics & Policy 30; and Barrett, S (2008) ‘Climate treaties and the imperative of enforcement.’ 24(2) Oxford Review of Economic Policy 239.
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seem to hone in on the practices of monitoring and enforcement as they exist under the World
Heritage Convention.101
Nonetheless, from the Convention text and the Operational Guidelines, we can make a few
observations about how these regulatory tasks are expected to work. One of the most obvious
forms of monitoring that IUCN undertakes in World Heritage is reactive monitoring.102
According to the Operational Guidelines, Reactive monitoring (not to be confused with
‘periodic reporting’) involves IUCN (and UNESCO) collecting information and reporting
back to the Committee ‘on the state of conservation of specific [natural] World Heritage
properties that are under threat.’103 Reactive monitoring can also involve ‘ground-truthing’
claims about the dangers to a site and meeting with state and non-state representatives to fully
understand how the values of a property might be at risk. The objective of reactive
monitoring is said to:
prevent the deletion of a property from the [World Heritage] List’ and ‘offer technical
co-operation’ to State Parties.104
Returning to the case study in this thesis, readers may recall from chapter 1 (section 1.6.1)
that Australia was in clear breach of the Operational Guidelines by failing to provide notice
about the Curtis Island development and, subsequently, several other major developments
along the Queensland coast. The Committee had made this clear in its June 2011 decision:
[The Committee] regrets that the State Party did not inform the Committee as per
paragraph 172 of the Operational Guidelines and requests the State Party to report, in
accordance with paragraph 172, its intention to undertake or to authorize any new
development that may affect the Outstanding Universal Value of the property before
making decisions that would be difficult to reverse.105
In the same decision, the Committee requested that Australia host a reactive monitoring
mission from IUCN and UNESCO ‘as soon as possible’:
101 There are of course exceptions to this. They are covered in the literature review in chapter 1. 102 Reactive monitoring should not be confused with periodic reporting under the Convention. 103 World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention (UNESCO, 2016) 169. 104 Ibid., 170. 105 World Heritage Committee (35th Session) Decision: 35 COM 7B.10.
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[The Committee] also requests the State Party to invite a World Heritage Centre /
IUCN reactive monitoring mission as soon as possible to consider the state of
conservation of the property as a whole, and to contribute to the strategic assessment
process. 106
In March 2012, IUCN and UNESCO undertook that mission and their report included over a
dozen recommendations of what Australia might do to mend its ways.107 Three months later,
at its annual meeting in June 2012, the Committee raised for the first time the possibility that
the Reef might be listed In Danger if those recommendations were not met:
[The Committee requests that Australia] submit to the World Heritage Centre, by 1
February 2013, an updated report on the state of conservation of the [GBRWHA],
including on the implementation of actions outlined …in the mission report, for
consideration by the World Heritage Committee at its 37th session in 2013, with a
view to consider, in the absence of substantial progress, the possible inscription of the
property on the List of World Heritage in Danger.108
Returning, then, to this thesis’ working definition of monitoring and enforcement (in chapter
4, section 4.2.2), it seems clear that both IUCN and UNESCO as enrolled actors under the
Convention, were not only engaged in monitoring the condition of the Reef, but were acting a
manner consistent with enforcement as well.109
Certainly the mission report provided a very public shaming of Australia. It also set out very
specific steps for Australia (and Queensland) to address to ensure that the Great Barrier Reef
was not listed on the List of World Heritage In Danger. Whether the organisations of IUCN
and UNESCO were aware of the power of the In Danger threat to Australia is unclear from
the empirical data. Nonetheless, it appears that both IUCN and UNESCO were able to use the
threat as a basis for drawing Australia into compliance through regulation.. This next section
106 Ibid. 107 See IUCN and UNESCO ‘Mission Report: Reactive Monitoring Mission to Great Barrier Reef (Australia) 6th to 14th March 2012’ (UNESCO and IUCN, 2012), 6-9. 108 World Heritage Committee (36th Session) Decision: 36 COM 7B.8. 109 Recall, for example, Russell’s’s definition of enforcement: ‘[Enforcement involves] taking actions that force violators to mend their ways and that provide visible examples to encourage others in the regulated population to maintain desired behaviour to avoid a similar fate.’ See Russell, C., (1990) ‘Monitoring and enforcement’, Public policies for environmental protection 243, 243.
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of the chapter explores how IUCN, as the advisory body under the Convention, was able to
regulate Australia in this way.
5.3.3 Questions of Legitimacy
The pertinent question that arises from the above discussion is: how was IUCN able to
engage so successfully in monitoring and enforcement of Australia? To answer this, we need
to understand why IUCN was regarded as an authoritative and respected actor by Australia
during the study years. To answer this, it is necessary first to consider what is meant by a
related notion: legitimacy, for as Black succinctly points out:
all regulators, including non-state regulators, need legitimacy because legitimacy is a
critical element in motivating behavioural responses.110
As Biermann and Gupta write, ‘the quest’ for legitimacy in governance ‘is not a new
endeavour.’111 Bodansky notes the same, suggesting that legitimacy (of domestic
governments) has in fact ‘been a central focus of political theory since at least the time of
Hobbes and Locke.’112 Despite its relatively long history, there is considerable disagreement
around our understanding of legitimacy;113 or, as Lister tells us, the legitimacy of non-state
actors has been poorly theorised.114 Julia Black reminds us that issues of legitimacy for legal
scholars have been by and large ‘normative questions.’ 115 In other words, ‘when should an
actor or constellation of actors be regarded as legitimate?’116 But questions of legitimacy
surely must be empirical as well: how does a given actor, for instance, obtain legitimacy to
regulate in a given set of circumstances? What assets and relationships do they have at their
disposal? And how are they viewed by other actors within the regime? Before we answer
these questions we need to understand what is meant by legitimacy.
110 Black, above n 11, 13. 111 Biermann F., and Gupta A., (2011), Accountability and legitimacy in earth system governance: A research framework’ 70(11) Ecological Economics 1856. 112 Bodansky, D., (1999) The Legitimacy of International Governance: A Coming Challenge for International Environmental Law? 93(3) American Journal of International Law 596, 596. 113 Biermann and Gupta, above n 111, 1857. 114 Lister, S., (2003) ‘NGO Legitimacy Technical Issue or Social Construct?’ 23(2) Critique of Anthropology 175. 115 Black, J., (2008), Constructing and contesting legitimacy and accountability in polycentric regulatory regimes 2 Regulation & Governance 2: 137,144. 116 Ibid., 144.
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5.3.4 What is Legitimacy?
An oft-cited definition of legitimacy is provided by Suchman:
[Legitimacy exists when] the actions of an entity are desirable, proper, or appropriate
within some socially constructed system of norms, values, [or] beliefs.117
Such a definition is too straightforward for present purposes, particularly in the context of a
complex hybrid organisation like IUCN. It also does not explain how organisations become
legitimate (or ‘appropriate’) in the eyes of other actors. The crux of the question this part of
the thesis is chasing has more descriptive and empirical set of considerations (as opposed to
normative). In other words: how and why do states like Australia actually accept IUCN’s
right to play a part in regulating?
If we drill deeper, then, we find different forms of legitimacy in the literature. Bruner
considers a distinction, for instance, between public and private actors, with the former based
on ‘political legitimacy’ whilst the latter based on ‘reputational legitimacy.’118 Bernstein and
Cashmore also talk about ‘political legitimacy’, where ‘firms, social actors, and stakeholders
are united into a community that accepts shared rule as appropriate and justified.’119 Other
scholars talk about three distinct ‘types’ of legitimacy: (1) regulatory, (2) cognitive and (3)
normative:
Regulatory legitimacy is dependent on conformity with the regulatory institutions,
rules and laws that exist to ensure stability and order. Normative legitimacy requires
congruence between the values pursued by organizations and wider ‘societal’ values.
Cognitive legitimacy is related to conformity to established cognitive structures in
‘society’, what is often described as having ‘taken-for-granted’ status.120
Finally, Black conceives legitimacy not necessarily as ‘the legal power to act’ but questions
‘whether or not an institution or organisation is perceived as having a right to govern.’121
117 Suchman, M., (1995). Managing Legitimacy: Strategic and Institutional Approaches’, 20(3) Academy of Management Review 571, 574. 118 Bruner, C., (2008) States, Markets, and Gatekeepers: Public-Private Regulatory Regimes in an Era of Economic Globalization 30(1) Michigan Journal of International Law 126. 119 Bernstein, S. and Cashore, B. (2007) Can non-state global governance be legitimate? An analytical framework. 1 Regulation & Governance 347. 120 Lister, above n 114, 179 (citing Scott, W., Institutions and Organizations (Sage 1995)). 121 Black, above n 10, 75
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‘The perceived possession of this right’ Black suggests may be based on a wide range of
criteria including: ‘the nature of its procedures, its legal mandate, its efficiency, its expertise
[and] its effectiveness.’122 Black’s discussion here seems pertinent to the one that follows.
The World Heritage Committee and UNESCO, whilst not lacking in any ‘legal mandate’, do
suffer from a lack of technical resources. In fact, they have little scientific credibility for their
decisions in World Heritage in the absence of expert ‘authorising’ bodies like IUCN and
ICOMOS. As one interview participant noted:
most of those people sitting on the committee…are not experts in coral reefs, let alone
scientific functioning of natural systems. Most of those people sitting on the
committee are either diplomats or representing their equivalent of foreign affairs and
legal people.123
The outsourcing of scientific expertise, has led Hølleland to imagine IUCN as something of
an ‘authorising institution’ of World Heritage.124 As Hølleland points out, the IUCN is the
‘primary force’ in deciding what [natural] World Heritage is and ‘how it should be
managed.’125 The importance of its scientific expertise to the Convention should thus not be
understated. But that said, it doesn’t explain everything in terms of the legitimacy and
regulatory authority of this unique organisation. Far better, it seems, that we turn our mind
not simply to definitions or conceptions of legitimacy, but that we take the analysis further by
asking how is legitimacy constructed and exerted over others (in the form of authority). This
next section of the chapter proposes to do this by looking at the legitimating assets of the
IUCN.
5.3.5 Constructing Legitimacy by way of ‘Legitimating Assets’
In a 2005 paper, Jepson analysed the world’s largest ‘Green-chip NGOs’, which he defined as
NGOs with annual turnovers in excess of €15 million including the Nature Conservancy, and
122 Ibid. 123 Interview # 6. 124 Hølleland, H., (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo), 69, and 198 (citing Smith, L., Uses of Heritage, (Routledge, 2006)). 125 Ibid., 198
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the international partnerships of Birdlife International and WWF.126 Jepson drew on Scott’s
different categories of legitimacy (above) including the categories of Regulatory, Normative
and Cognitive etc. but, more helpfully for this discussion, he also analysed the types of
‘assets’ NGOs have that make up their claims within each of those categories. In short, he
described how legitimacy can be constructed by an NGO by giving examples of legitimating
assets such as their access to networks, self-sacrifice, effective delivery of activities,
economic clout, and (legal) mandate under the convention etc. We can apply this way of
thinking to the concept of regulatory legitimacy by looking at the assets of non-state
regulators and how they deploy them to exert authority over others.
The legitimating assets (or ‘legitimacy assets’) that Jepson talks about were by and large
modelled on Princen and Finger’s 1994 arguments about NGOs ‘who gain influence’ by
‘building assets based on legitimacy.’127 Princen and Finger go on to discuss how NGOs use
these assets to bargain in decision-making processes.128 Jepson adds to this by arguing that
the legitimating assets of NGOs will vary depending on the NGO’s role, value to other
stakeholders and the geographic scope of its activities.129 The assets of non-state actors in this
sense also seem to align closely with the notion of resources that Scott talked about in his
regulatory space analysis (see chapter 4, section 4.2.1). Readers may recall from that
discussion that the assets of an actor in a given regulatory space, include such things as
marketing material, information, relationships etc. As Scott pointed out, these assets are
‘dispersed rather than concentrated’130 within decentralised and pluralistic structures. In other
words, not all of them ‘are possessed by a single regulatory agency.’131
126 Jepson, P., (2005) Governance and accountability of environmental NGOs’ 8 Environmental Science & Policy 515, 516. 127 Ibid., 519. See also Princen and Finger, above n 45, 36. 128 Princen and Finger, above n 45, 36 129 Jepson, above n 126, 519. 130 Scott, C., (2001) ‘Analysing regulatory space: fragmented resources and institutional design’ (Summer) Public Law, 329, 338. 131 Ibid., 352.
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Whilst the idea of ‘assets’ in regulation has relevance to how we conceive influence in a
regulatory space, it also provides a mechanism for analysis of the constructed legitimacy of
those actors. For example, we might ask the question: what are the legitimating assets (or
resources) of IUCN? Or, to put it another way: What were the building blocks, in the
GBRWHA case study, that IUCN called upon to establish itself as a legitimate and
authoritative actor? These questions are dealt with in the section which follows.
5.3.6 The Legitimating Assets of IUCN
The first point to note, before we tackle the main legitimating assets of IUCN, is that its
official role as an advisory body under the Convention grants it a certain kind of ‘statutory
legitimacy’.132 Scott, Lister and Jepson (above) would refer to this as ‘regulatory legitimacy’,
which derives from having some sort of authority granted formally by the laws of the
Convention itself. Having a source of statutory or regulatory legitimacy certainly allowed
IUCN to play a role in monitoring and enforcement, that other non-state actors, for instance
NGOs, were unable to call upon. The text of the Convention and Operational Guidelines
132 Cameron and RÖssler, above n 78, 216.
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gives IUCN a presence and point of leverage over a state like Australia (concerned as it is
about rules-based orders) which can’t be matched by other non-state actors.
Certainly in the case study, the state actors seemed to view them this way. Consider for
instance this exchange with a senior official from the Australian Government Department of
Environment and Energy:
Interviewer: …traditionally have you viewed IUCN and UNESCO as
legitimate parties to respond to in the system of World
Heritage because of their expertise?
Participant: Yes, but that’s [also] the requirements of the convention.
That’s how it set up. The convention provides that the
Committee gets its technical advice from the advisory bodies.
You’ve got to work with it.133
That said, though regulatory legitimacy is a powerful claim to authority, simply being
enrolled in a framework like World Heritage seems insufficient to secure compliance (even
procedural compliance). In the example of Kakadu, for instance, in the 1990s, Australia
turned its back on IUCN (and ICOMOS) and argued vigorously and successfully against their
advice that the site should be listed In Danger. In the case of the GBRWHA, the situation
seemed more collaborative and unique than Kakadu. How then can we explain the difference
in responses? The next few sections of this chapter describe some of the other legitimating
assets (in addition to its mandate under the Convention) that IUCN harnessed over the study
period.
5.3.6.1 Scientific Expertise
As Bolla points out, the World Heritage Convention was always envisioned to remain
‘faithful to the ideal of scientific objectivity.’134 IUCN’s claims to expertise over the science
are particularly significant in the context of the Convention because it makes decisions by the
Committee appear ‘less political, more objective and more palatable.’135 This is in spite of the
133 Interview # 12. 134 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 94 135 Affolder, N (2007), Democratising or Demonising the World Heritage Convention? 38(2) Victoria University of Wellington Law Review 341, 359.
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fact that recent politicisation of the Convention continues to undermine the system ‘stretching
to the extreme’ the professionalism and technical competence IUCN provides.136
Nevertheless, as Cameron points out, IUCN still enjoys ‘a strong reputation for the quality
and scope of its scientific work.’137 It’s a reputation that has existed for several decades.
A review in 1990, for instance, noted that one of IUCN’s major strengths was its ‘credibility
and scientific integrity’, arguing it was something that ‘must be carefully guarded.’138 In
1995, an internal review noted the same thing:
IUCN’s role in initiating, formulating, and advising on international conservation
conventions has been very influential and has provided the Union with scientific
credibility and political profile.139
In the context of World Heritage, this reliance on scientific evidence serves a special purpose.
It allows the Committee, at least in theory, to ‘avoid the politicisation of decision making,’
especially in the absence of more formal non-compliance mechanisms.140 As Maswood points
out, the Committee needs the science ─ and the role of IUCN ─ ‘as a management and
maintenance tool’ and a way of ‘exerting external pressure’ on States to comply.141
The diverse structure of IUCN as an organisation is conducive to establishing and
maintaining networks of scientific expertise across the world. As noted above, IUCN has
state, sub-state and non-state members. Its non-state membership is numerous, including
various institutions, associations, societies, federations, coalitions, centres, universities and
individuals. There are over 1200 members in total from 170 countries with membership focal
points established in different regions of the world: East and Southern Africa, West and
Central Africa, Meso America and the Caribbean, South America, the United States and
Canada, South and East Asia, West Asia, Oceania and the Pacific, Europe and North Africa.
All members have access to an online portal to read and share updates, knowledge news and
information about conservation efforts throughout the world. 136 Hølleland, above n 124, 193. 137 Cameron, C., ‘Evaluation of IUCN’s Work in World Heritage Nominations’ (IUCN, 2005) 5. 138 IUCN, above n 18, 2.6.5 139 Thorsell, J., IUCN and the World Heritage Convention: A Review of Policies and Procedures (IUCN, 1995), 4 140 Maswood, S. (2000) ‘Kakadu and the Politics of World Heritage Listing’ 54(3) Australian Journal of International Affairs 357. 141 Ibid., 361.
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One of IUCN’s foremost legitimating assets, therefore, is its scientific expertise, or more
specifically, its access to it.142 It is, however, as noted in chapter 2, predominantly a European
(or Anglo-Saxon) conception of science. Unlike ICOMOS, IUCN has a large ‘predominance
of experts’ from developed and Anglo-Saxon countries.143 The ‘science of heritage’ thus
necessarily espouses a certain set of Western values and practices within the regime.144 The
value of science as a legitimating asset is therefore limited to those actors who see ‘the worth’
of Western science.
In the GBRWHA study, Australia certainly embraced this form of science and decision-
making, as it does in its domestic affairs. This is despite the fact that the over 70 Indigenous
groups claim cultural significance along the GBR coastline. These findings resonate with the
emerging literature on heritage, outlined in chapter 2 and, as one of the interview participants
in the GBRWHA study pointed out:
I think to separate natural and cultural is actually very artificial. It’s a Eurocentric way
of looking at things. If you talk to an Australian aboriginal person, they’ll say you
cannot. What you call nature is part of our culture. That’s the indigenous viewpoint.
And there’s a feeling of many people who work with the World Heritage committee
and the convention, that that is a more appropriate way of looking at things.145
5.3.6.2 Promotion of Independence and Impartiality
From the very beginning, IUCN, as a global conservation body, has been a facilitator,
‘bridge-builder’146 and conduit for information and natural expertise. It has operated,
successfully, across opposing houses of government and NGO members. IUCN’s unique
‘hybrid governance structure’147 is prone to disagreement, politics and compromise. As one
interview participant noted:
142 MacDonald, above n 58, 13. See also Maswood, above n 140. 143 Tabet J., Review of ICOMOS Working Methods and Procedures for the Evaluation of Cultural and Mixed Properties (ICOMOS, 2010), 24. 144 Hølleland, above n 124, 198. 145 Interview # 6. 146 Christoffersen, above n 17, 60. 147 Ibid., 63.
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it takes a level of sophistication and ability to compromise from both leaders in the
government house and the leaders in the NGO house.148
Given its diverse membership base, a question arises as to what extent does IUCN call on its
members to further its advisory and regulatory role in World Heritage? As Battini has
suggested, it is possible that NGOs (or states) could influence the decisions of the Committee
via their membership with IUCN.149 Moreover, in an interview with IUCN, the participant
noted:
we have been much more systematic in the last four to five years in gathering
information particularly from IUCN members on World Heritage issues.150
There is probably nothing wrong or ‘illegitimate’ about information gathering (that is,
monitoring), even doing it systematically. After all, one of the reasons IUCN plays a key role
across conservation is because of its broad membership base and wide diversity of views and
expertise. It does present a problem, however, at least in terms of the perception of influence
within the World Heritage regime: or, put another way, it presents an issue in terms of the
legitimacy of IUCN in the context of World Heritage. How then, does an organisation like
IUCN counter such an image?
This study did press both government and NGOs during the interviews on whether they
‘used’ their membership base within IUCN to gain traction on World Heritage issues. The
answer was for the most part: ‘no’. However, it was clear that for a state agency like
GBRMPA, itself a member of IUCN, there is a tricky line to walk between being the
technical managers of the Reef, but not the responsible agency under the Convention (which
rests with the Department of Environment and Energy in Canberra). Consider for example,
this exchange the researcher had with a senior official from GBRMPA:
Interviewer: Does GBRMPA have dealings with IUCN in relation to the
process? Because, obviously they came and did the mission
report. I’m just wondering about your engagement with a group
like IUCN… 148 Interview # 5. 149 Battini, S., (2011) ‘The procedural side of legal globalization: The case of the World Heritage Convention’ 9(2) International Journal of Constitutional Law 340, 352. 150 Interview # 9.
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Participant: Yes, well…
Interviewer: Or is it more the departmental people in Canberra?
Participant: The department is representing the Australian Government
interests as the state party. So they are the key point of
contact. That said, IUCN are the technical advisers to the
World Heritage Committee itself. So given that we are the
independent statutory authority on the GBR, we have
communications with IUCN, you know on technical
matters. We are also a member of the AU IUCN - the
Australian chapter of IUCN.151 So when it comes to IUCN
policies and programs - as an independent statutory authority
-we feed our views through AU IUCN or as a member of
IUCN, independent to the department itself. But when it
comes to the World Heritage Committee proceedings and
ensuring that we’ve got a coordinated response, obviously the
Department is the lead on that…152
A similar reply was received from the Queensland Government:
Interviewer: So can I ask you about your relationship with IUCN and
UNESCO, because I imagine at some point, you’re having to
deal with them directly as well is with the Feds. Does it get
messy there?
Participant: Well it’s extremely unusual for us to communicate with them
without a federal presence. It’s not like we didn’t
communicate directly, but the Commonwealth knew what we
were doing, and it was part of a coordinated approach.153
It appears that both GBRMPA and the Queensland Government saw IUCN’s role as impartial
and independent, in spite of the fact they both also held IUCN (and ACIUCN) membership at
the time.
151 This is likely a reference to the Australian Committee for IUCN (AC IUCN) which ‘was founded in 1979 to provide a focus for Australian member organisations of IUCN.’ See http://aciucn.org.au/ 152 Interview # 7. 153 Interview # 11.
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Finally, IUCN is itself particularly cognisant of its position as an ‘independent advisor’,
given its broad membership base. As the interview participant from IUCN noted:
An important point in terms of how we engage with NGOs is that we have an
independent role to advise the World Heritage Committee and that means we don’t
allow States Parties inside our process and we don’t allow NGOs inside our process
either. So there is a separation between our internal independently governed processes
and the advice and the inputs we receive on all sides of the equation.154
5.3.6.3 Consultation and Participation
Another of IUCN’s strongest assets, at least in terms of the GBRWHA study, is its ability to
facilitate dialogue and consult across difficult political issues. In its 2012 RMM, IUCN and
UNESCO spent a week in March 2012 and met with scores of individuals and groups. The
full list of consulted stakeholders is contained in the final report and includes GBRMPA, the
Queensland and Australian Governments, NGOs, researchers, local councils, Indigenous
groups, mining companies, port authorities, canegrowers, and the fishing and tourism
industries. During this week, the NGOs found IUCN to be consultative and participatory in
their work. Consider these comments from one NGO participant in the study:
Interviewer: Do you remember the issues they [IUCN and UNESCO] were
concerned about at the time? Were they doing listening
or doing a lot of the talking?
Participant: They were just doing a lot of listening.
Interviewer: So then they go back [to Europe] they write up their report.
Did you read their report and did you follow any of that?
154 Interview # 9. Officially, IUCN’s advice to the World Heritage Committee is provided in part through a contract established via the World Heritage Centre which sets out formal expectations of inputs, that build on the governance provided in the Operational Guidelines and the Convention text, and IUCN’s own established policies. Part of that contract, shared with the researcher by the IUCN participant in this study, explicitly provides for IUCN to use information collected through its networks in preparation of state of conversation reports. The representative from IUCN explained during the research that NGOs, as IUCN members, or as partners via IUCN, are considered to be part of IUCN “networks”, and therefore (as noted above) the expectation of NGO and civil society inputs ‘is a long established part of IUCN’s monitoring process.’
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Participant: Sure. Did I read it all page for page in detail? Probably not,
but enough people did, so that I could get a really good grasp
and understanding of it.155
This view accords with Bhandari’s research, which found that IUCN creates its legitimacy
through lines of support and engagement with its stakeholders.156 Moreover, in an interview
with IUCN, the participant highlighted the participatory role they expected NGOs and others
to play in their decisions:
The expectation of NGO and civil society inputs is a long established part of IUCN’s
monitoring process.’157
At another point in the same interview, Greenpeace and WWF’s involvement was discussed,
including their attendance at the Bonn (2015) World Heritage meeting:
… we are trying to encourage people to take an interest in World Heritage and to
engage in it. To turn up as observers and to make their point, and you know, if
they’ve got points to make, to help them understand the Convention so they know
how to make it. The fact that it might lead NGOs to take a different view to IUCN.
That’s totally fine. We’ll do our independent job in the middle but we’ll do a better
job if all the actors in World Heritage try to come to a view on what they want to
see.158
It is clear that IUCN thus seeks to facilitate a broader suite of views on World Heritage. It
certainly did so in the GBRWHA example. In some ways, this might be seen as IUCN trying
to ‘democratise the convention’, which it sees as a good thing.159 This attempt to facilitate a
diversity of views on heritage no doubt adds to its broad legitimacy across a range of NGOs
and State actors. Consider for instance another excerpt from an interview with a participant
from IUCN:
155 Interview # 8. 156 Bhandari. M.P., (2012), ‘Exploring the International Union for the Conservation of Nature (IUCN's) National Program Development in Biodiversity Conservation: A Comparative Study of India, Pakistan, Nepal, and Bangladesh’ Paper 73 Sociology - Dissertations. 157 Interview # 9. 158 Ibid. 159 Affolder, above n 135.
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So we are definitely in the business of trying to get civil society organisations to be
present as observers and to be active as civil society organisations in the places that
we are not active, because it’s good for the Convention. They’re not trying to take on
an advisory body role, but we want to hear their voices in the Committee.160
5.3.6.4 Pragmatism and Professionalism
Throughout the GBRWHA case study, IUCN was able to peacefully persuade actors (both
state and non-state) to engage with the Convention’s compliance processes through its
democratic and consultative agenda. It was able to do this by calling on the above assets but
also through its practical and professional approach to the issues. One of the participants in
the study, for example, from the Queensland Government, suggested they found IUCN:
quite good to deal with [because they are] used to the big stuff and [have] a global
understanding.161
The same participant also highlighted IUCN’s pragmatism and experience in World Heritage
issues:
[IUCN] were very practical in the questions they asked and the expectations that they
put on us.162
The Australian Government appeared to see their relationship with IUCN in a similar light:
[IUCN] are a highly competent and capable organization…they have good familiarity
with and understanding of the key issues and they ask the right questions.163
When pressed further on their relationship with IUCN, the participant from the Australian
Government replied:
Participant: [So]for the Great Barrier Reef, the Tasmanian wilderness, and
indeed for other properties, we have a good and constructive
working relationship with IUCN.
Interviewer: That has existed for a while?
160 Interview # 9. 161 Interview # 11. 162 Ibid. 163 Interview # 12.
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Participant: Yes it has existed for a while. Australia last sat on the World
Heritage Committee from 2007 to 2011 …and that was four
years where we were one of 21 members of the World
Heritage Committee. In that time we developed a significant
working relationship with the World Heritage Centre and IUCN
and ICOMOS. And we haven’t let those relationships drop in the period
since we’ve been off the Committee.164
In fact, the majority of the actors in the GBRWHA study saw IUCN as a pragmatic, stable
and legitimate actor. The politicisation that so badly plagues the current Convention
framework seems predominantly to be a problem of the operation of the Committee, or as one
interview participant put it: ‘it’s not a problem of the professional organisations [like IUCN]
providing the advice…’165
In all of this, IUCN manages to walk a careful line between politics and conservation. In a
June 2013 interview with the director of IUCN’s World Heritage Program, for example,
IUCN said the Committee had been ‘concerned’ with Australia,166 but refused to use the
phrase that it was ‘cranky’ or say that Australia had ‘dropped the ball’ in respect of the
Reef.167 Rather, the interview participant mentioned the ‘surprise’ that such an iconic site like
the GBRWHA ‘was facing the level of pressure’ that it was.168 This type of professionalism
and diplomacy showed a unique sensitivity to domestic issues in Australia and reveals the
careful and methodical way in which IUCN goes about its regulatory role. It also reflects its
bicameral structure and conservation focus, which, whilst not immune to politics, is certainly
a case study of how other large hybrid international organisations might function more
effectively.
The end result from the study was that governments (including Queensland and Australia)
saw IUCN as ‘non-combative’, professional and pragmatic in their approach. IUCN thus
managed to position itself somewhere between the ‘popular outrage’ that the NGOs were
generating (see chapter 6) and a pragmatic and measured response to the complex political
164 Ibid. 165 Interview # 5. 166 Interview ABC Radio (by Greg Borschman) with Director of World Heritage Program at IUCN available at < http://mpegmedia.abc.net.au/rn/podcast/2013/06/bst_20130620_0806.mp3> 167 Ibid. 168 Ibid.
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issues that the Reef was facing. IUCN’s ability to construct its legitimacy in this way seems
to resonate closely with parts of the emerging literature surrounding non-state actors.
Tusikov, for instance, writes:
Non-state actors may lack a formal legal authority to govern and instead must
persuade-or pressure-others to accept their rules or comply with their regulatory
programs. To do so, they draw on their resources and put forward their policies as the
best approach.169
Although IUCN did not lack regulatory legitimacy to act in this way (given their official
mandate under the Convention) IUCN still needed to draw on other assets than just its
regulatory legitimacy (or formal legal authority) to regulate Australia. A large part of this
came about through its practices of persuasion, foresight and their consultative and non-
combative nature in difficult issues.
Of course, IUCN were not the only non-state actor to exert influence over Australia in the
case study. The persuasion and pressure exerted by other non-state actors (for example
NGOs) is discussed in some detail in the next chapter. At times, some of that influence was
deployed through the activities of regulation (monitoring and enforcement) but at other times,
NGOs manoeuvred themselves not as a regulator but as an outsider, agitating and protesting
for stronger and better approaches to Reef conservation. As chapters 6 and 7 of this thesis
argues, both methods were effective in driving Australia towards compliance. Or, to put it
another way, both were closely involved in pulling compliance from Australia.
5.4 CONCLUSION
The presence and influence of non-state actors in transnational regulatory regimes like
World Heritage is certainly a topic ripe for further debate.170 As this thesis has suggested,
non-state regulation has just as much relevance at the international level as it does on the
domestic scene.171 To date, the arguments of regulatory scholars, and in particular arguments
drawing on theories like enrolment, have not been embraced by international environmental
169 Tusikov, N., Transnational non-state regulatory regimes, In Drahos, P (ed) Regulatory Theory: Foundations and Applications (ANU Press, 2017), 344. 170 Ibid. 171 For a good discussion of non-state actors in regulation, see Hutter, B., (2006) ‘The Role of non-state actors in Regulation’ CARR Discussion Papers DP 37.
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law. In fact, the two discourses - regulatory studies and international environmental law -
have emerged quite separately over the last three decades, with the former advocating a
tighter and more specific role for non-state actors in standard setting, monitoring and
enforcement, and the latter (international environmental law) seemingly preoccupied with
NGO ‘participation’ and ‘consultation’ in environmental decision-making.172
This chapter (and this thesis) thus adds value to the literature by drawing on regulatory theory
to help understand the behaviour of non-state actors as regulators of international
environmental law. Such a goal assumes, as was set out in the previous chapter, that regimes
like World Heritage can be described as regulatory spaces (that is, spaces which are
conducive to regulation) capable of being deconstructed and their actors and institutions
empirically evaluated through the prism of regulation. The next logical question then
becomes, if they are such spaces, then how do they work and who are their ‘regulators’?
In the context of protected areas governance the regulatory role and legitimacy of IUCN has
not been studied in any great depth.173 This is surprising given the history and influence of
IUCN across most areas of global environmental governance since the 1950s. It is all the
more surprising when one considers Bernstein’s remark, that ‘legitimacy is the glue that links
authority and power.’174 In understanding the operation of the World Heritage Convention, a
proper and thorough examination of IUCN’s role and legitimacy is therefore warranted. The
advantage that a theory like regulatory enrolment has is that it prompts more specific
questions about IUCN’s work as a regulator of World Heritage. This gives us a lens in which
to view organisations like IUCN: as controllers of state-party behaviour, and not just
‘participants’ or ‘contributors’ to an international regime more generally.
This chapter has found that between the years 2010 and 2015, IUCN’s role as a monitor and
enforcer of World Heritage work remarkably well. Its ability to help pull compliance from
Australia arose largely from its image as a rational and science driven actor in the eyes of all
172 On the tendency of environmental law literature to employ the use ‘participation’, see Hamman, E., (2017) ‘Cultural perceptions and natural protections: A socio-legal analysis of public participation, birdlife and Ramsar Wetlands in Japan.’ Early Career Scholar Workshop on Environmental Law, 29 April 2017, Chinese University of Hong Kong, Hong Kong <http://eprints.qut.edu.au/104095/> 173 One of the only academic works is Bhandari, above n 35. Another investigation of IUCN is MacDonald, K., above n 58. 174 Bernstein S (2011) ‘Legitimacy in intergovernmental and non-state global governance’ 18(1) Review of International Political Economy 17, p 20.
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participants ─ both state and non-state. As Maswood points out, theirs is a legitimacy drawn
primarily from its scientific expertise,175 but, as this chapter shows, it also derived from its
willingness to facilitate all sides of the debate in a consultative, professional and pragmatic
way. These findings are in contrast to other contests, like the proposed listing of the Wet
Tropics in the late 1980s176 and the fallout over Kakadu in the 1990s.177 In those instances,
Queensland and Australia heavily criticised the role of IUCN for ‘meddling’ in domestic
affairs and refused to recognise their regulatory legitimacy (Queensland more so in the Wet
Tropics, and Australia more so in Kakadu).
There are two further points which might be made about this. The first is that the
phenomenon of compliance pull necessarily connotes the presence of resistance. As the final
chapter of this thesis makes clear, states resist compliance at varying levels. But it is the
strength of the pull we are interested in, not the existence of resistance or conflict in the first
place. The second point to note is that there is no reason why Australia and Queensland’s
view about IUCN should be consistent across time or circumstances. As Lister tells us,
concepts like legitimacy and authority are ‘socially constructed’ from the circumstances in
which they are found.178 Similarly, as Bernstein argues:
a checklist of legitimacy requirements cannot be developed a priori… legitimacy
requirements evolve over time, in the interaction of affected communities and social
structures.179
It is therefore an empirical question as much as it is a normative one. In the case of the
GBRWHA, the legitimating assets of IUCN (science, consultation, pragmatism,
professionalism etc.) allowed them to wield the influence and help pull compliance towards
the Committee. No other organisation has the scientific resources, legitimacy or authority of
175 See Maswood, above, n 140, 357. 176 The proposed listing of the Wet Tropics attracted criticism from the then Queensland Environment Minister - Geoff Muntz - who was ‘certain’ that somebody from IUCN ‘had been bought.’ See Webb, T (2000) ‘The meanings of World Heritage: a study of environmentalists and World Heritage managers with respect to the Great Barrier Reef World Heritage Area’ (PhD Thesis, James Cook University), 195. Ironically, Muntz was later found to have stolen $4,891.83 of ministerial expense funds and sentenced to 12 months jail. See Queensland Parliament ‘Biographies of Former Members’ <www.parliament.qld.gov.au/members/former/bio?id=2838944944> accessed 14 April 2017. 177 Maswood, above n 140. See also Aplin, G., (2004), ‘Kakadu National Park World Heritage Site: Deconstructing the debate, 1997-2003.’ 42(2) Australian Geographical Studies 152. 178 Lister, above n 114, 176. 179 Bernstein, above n 174, 42.
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IUCN, and in World Heritage, though only a fraction of its overall work, IUCN deployed
them to great effect. This forced the hand of Australian governments and drew them into
compliance. As one interview participant from the Queensland Government summarised: ‘we
could have walked away from it [all], but we didn’t…’180 The other factor stopping them
from ‘walking away’ was the formidable presence of the NGOs. Their contribution to
compliance pull is analysed in the following chapters.
180 Interview # 11.
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The Contribution of NGOs
The previous chapter looked closely at the role and legitimacy of the International Union for
the Conservation of Nature (IUCN). This chapter builds on that analysis and explores the part
played by non-government organisations (NGOs). Drawing on empirical data from the case
study of the Great Barrier Reef World Heritage Area (GBRWHA), this chapter shows how
NGOs took separate but influential paths to exert pressure over Australia. Using what might
be called ‘the outside track’, several NGOs behaved like ‘agitators’, an unsurprising finding,
and one that is consistent with other areas of environmental governance. What is more
interesting, however, is that one NGO – WWF-Australia – proved itself capable of taking part
in regulatory activities such as monitoring Australia’s behaviour. Over several months, it
enrolled itself in the World Heritage regime by developing relationships and constructing its
own legitimacy to act. Its technique was to work predominantly on the ‘inside track’,
engaging formally with the processes of World Heritage, rather than agitating or lobbying
from the outside (though it also did that as well). The findings in this chapter show how
NGOs can contribute to World Heritage compliance pull, both as ‘agitators’ and as
‘regulators’ of state behaviour.
6.1 INTRODUCTION
As pointed out elsewhere in this thesis, global governance is no longer the sole domain
of governments.1 The post war creation of an international system for peace,
collaboration and prosperity has been driven by states, and in particular Western states
like the United States of America (US), France and the United Kingdom. By the 1970s,
however, many were already thinking of ways of how to ‘break down the hard shell of
the nation-state’,2 including a greater and more established role for non-state actors in
international affairs.
1 Brand, KW., and Reusswig, F., ‘The Social Embeddedness of Global Environmental Governance’ in Winter, G., Multilevel Governance of Global Environmental Change: Perspectives from Science, Sociology and the Law (Cambridge University Press, 2007), 80. 2 Geeraerts, G., (1995) ‘Analyzing Non-State Actors in World Politics.’ 1(4) Pole Paper Series
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The rise of non-state actors like non-governmental organisations (NGOs) across all aspects of
transnational life has been nothing short of spectacular. Today they permeate areas such as
human rights; conflict and peace; the global trading system; refugees and, of course, the
environment.3 Though NGO legitimacy remains a key concern there can be little doubt that
they are today a powerful presence in most if not all areas of international decision-making.4
Questions of how much influence and what influence, are, of course, still matters of debate.
In domestic settings, regulatory scholars have argued for more inclusive and ‘responsive’
regulatory regimes, regimes that are able to harness the power of NGOs as ‘surrogate
regulators’.5 Many of these views have been taken up by policy makers and put into practice,
in places like Australia, the US and Europe. In the context of global environmental
governance, however, there are few, if any, formal mechanisms for NGOs to officially
regulate state behaviour at the international level.6 Rights for NGOs, where they do exist,
have by and large been limited to consultative and participatory opportunities, such as those
espoused under the Aarhus Convention7 and through ‘observer status’ granted by the United
Nations and other deliberative forums. Accordingly, under most multilateral environmental
agreements (MEAs), it is unclear whether NGOs can and do act as regulators, or whether
they are left (which seems more likely) to advocate and participate from the outside by
lobbying, agitating and pushing their own agendas.
As chapter 3 of this thesis has shown, Australian NGOs have had a long history of activism
and influence over World Heritage issues. Where Australian (state) governments refused or
neglected to engage in higher standards of conservation, NGOs stepped in to ‘fill a void’ in
environmental management, campaigning for World Heritage listings like the Wet Tropics
and, more recently, for stronger protections from mining in Kakadu and logging in the
Tasmanian Wilderness.8 In a sense, this is exactly what NGOs were designed to do, write
3 Non-state actors are defined in chapter 4 of this thesis. The category is broader than just NGOs. 4 Brand and Reusswig, above n 1. 5 See Gunningham, N, Phillipson, M., and Grabosky, P., (1999) ‘Harnessing Third Parties as Surrogate Regulators: Achieving environmental outcomes by alternative means, 8 Bus. Strat. Env. 211. 6 See the conclusions in Oberthür, S et al. Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience (Ecologic, 2002) 7 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental issues, adopted on 25 June 1998 in the Danish city of Aarhus (Århus) at the Fourth Ministerial Conference as part of the "Environment for Europe" process. It entered into force on 30 October 2001. 8 For an overview of these ‘battles’ and others, see Lines, W., Patriots: Defending Australia’s Natural Heritage
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Princen and Finger: to ‘operate independently’ of states and become ‘effective agents of
change’ in society.9
Evaluating the precise impact of NGO influence on global environmental decision-making is
a challenging endeavour. Whilst it isoften assumed that NGOs are a powerful and effective
force in global affairs, emerging research has suggested their impact may be ‘smaller than
presumed.’10 Part of the problem is that to really understand the dynamics of NGOs under
MEAs, we need further and better qualitative studies of who was involved; in what way; what
they achieved; and how they achieved it. We thus need more empirical studies, like this one,
about the role and influence of NGOs under MEAs, particularly the lesser studied ones like
World Heritage.11
For example, whilst there exists a growing body of literature about the role and influence of
NGOs in climate change,12 there is little scholarship on their role in World Heritage, save for
relevant contributions mentioned in chapter 1 from Chechi13 and Nafziger.14 By a similar
token, there are only a handful of academic studies focussed on the influence of NGOs under
the Ramsar Convention on Wetlands of International Significance (Ramsar),15 and fewer still
on treaties like the Bonn Convention on Migratory Species (the Bonn Convention) and the
United Nations Convention to Combat Desertification (UNCCD).16 This chapter, therefore, is
dedicated to the role that NGOs play in the World Heritage system, and more specifically, it
(University of Queensland Press, 2006). 9 Princen, T., and Finger M., Environmental NGOs in World Politics: Linking the Local and the Global (Routledge, 1994), 230. 10 Böhmelt, T., Bernauer, T., & Koubi, V. (2015), ‘The marginal impact of ENGOs in different types of democratic systems. 7(1) European Political Science Review 93, 93. 11 See generally the arguments in Martin, P and Kennedy, A (eds), Implementing Environmental Law (Edward Elgar, 2015). 12 See for example Nasiritousi, N, Hjerpe, M, Linner, B, (2016) ‘The roles of non-state actors in climate change governance: understanding agency through governance profiles’ 16(1) International Environmental Agreements: Politics, Law and Economics, 109. 13 Chechi, A (2015) ‘Non-State Actors and Cultural Heritage: Friends or Foes?’ 19 AFDUAM 457. 14 Nafziger, J ‘The World Heritage Convention and Non-State Actors’, in Prott, L.V., Redmond-Cooper, R., y Urice, S. (eds.), Realising Cultural Heritage Law. Festschrift for Patrick O’Keefe, (Institute of Art and Law, Pentre Moel, 2013). 15 See some of the literature referred to in Hamman, E., (2017) ‘Cultural perceptions and natural protections: A socio-legal analysis of public participation, birdlife and Ramsar Wetlands in Japan.’ Early Career Scholar Workshop on Environmental Law, 29 April 2017, Chinese University of Hong Kong, Hong Kong <http://eprints.qut.edu.au/104095/> 16 As Johnson and others point out, the presence and influence of NGOs under the UNCCD certainly ‘deserve(s) further scrutiny.’ See Johnson, PM, Mayrand, K., and Paquin, M (eds) Governing Global Desertification: Linking Environmental Degradation, Poverty and Participation (Ashgate, 2008), 91.
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focuses on their willingness and capacity to ‘agitate’ and/or to ‘regulate’ states under the
regime.
In terms of structure, this chapter begins by defining an NGO, an amorphous and contested
notion in itself. After settling on a suitable definition, the literature on NGOs and the World
Heritage system is then covered. The original role intended for NGOs is discussed as well
this pointing out the particularly loose and discretionary wording contained in articles 8 and
13 of the Convention. The chapter then examines the activities and strategies of WWF-
Australia (hereafter WWF) who positioned themselves as a (co)regulator of Australia’s
obligations during the period 2010-2015. The analysis of how they were able to regulate
returns to the key idea of legitimacy, raised in the previous chapter. It shows how WWF
attended Committee meetings and used creative monitoring tactics like score cards (released
on the same day as Australia’s state of conservation reports) to evaluate Australia’s
performance over the period. Finally, the roles and influence of other NGOs are discussed
showing how they used the traditional outside track, drawing on their social media resources,
and broader arguments about fossil fuels (in the era of climate change) to agitate for better
conservation and management of the site.
6.2 NGOS IN WORLD HERITAGE
6.2.1 Defining an NGO
This thesis is predominantly concerned with the activities of non-state actors, that is, not just
NGOs. As defined in chapter 4, the phrase ‘non-state actor’ is a broad and inclusive category
of interests, which are, for the most part, opposed to those of a state. Non-state actors
therefore include NGOs, but they also include other groups such as epistemic (scientific)
communities, corporate players (like insurance and financial institutions), as well as ‘hybrid
international organisations’ like the IUCN. Notwithstanding the broader goals of this thesis,
the role of NGOs emerged as an integral and central part of how compliance pull appeared to
operate in the case study. The same observation can be made about IUCN, and hence why
chapter 5 is dedicated to their role in the study.
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Definitions of NGOs abound in the literature and settling on a means of identifying them is
not an easy task. Martens has surveyed the relevant literature and suggested that any attempt
to define an NGO might well be ‘an impossible mission,’17 pointing out that ‘there is no
agreed-upon common NGO definition in sociological studies.’18 Moreover, as Princen and
Finger remark, ‘it is clear that an NGO phenomenon exists, [i]t is less clear, however, what
entities constitute that phenomenon.’19 The reason for the difficulty in defining NGOs is
predominantly due to the ‘tremendous diversity found in the NGO community.’20 As Beer
and others succinctly put it, ‘rigid definitional schemes [tend to] break down under the
diversity of organisations [that exist].’21
Despite these concerns, some identifying features of NGOs are needed to understand the
workings of the participants and organisations involved in the study. In one definition,
Werker and Ahmed borrow from the World Bank’s terminology:
[NGOs are] private organizations characterized primarily by humanitarian or
cooperative, rather than commercial, objectives… that pursue activities to relieve
suffering, promote the interests of the poor, protect the environment, provide basic
social services, or undertake community development in developing countries.22
Vedder, on the other hand, defines an NGO as a ‘non-profit voluntary citizen’s group
organised at a local, national or international level.’23 In another definition, Vakil focuses on
the characteristics of NGOs as ‘not-for-profit organizations’ which ‘relieve suffering’
suggesting that they are ‘geared toward improving the quality of life of disadvantaged
people.’24 Jordan accepts this conception in her own research.25 Another definition is
17 Martens, K., (2002) ‘Mission Impossible? Defining Nongovernmental Organizations.’ 13(3) International Journal of Voluntary and Non-profit Organizations 271. 18 Ibid., 277 19 Princen, T., and Finger M., Environmental NGOs in World Politics: Linking the Local and the Global (Routledge, 1994), 43. 20 Ibid. 21 Beer, C., Bartley T., and Roberts W., ‘NGOs: Between Advocacy, Service Provision and Regulation.’ (chapter 23) in Levi-Faur, D., (ed) The Oxford Handbook on Governance (Oxford University Press, 2012) at 326. 22 Werker, E., and Ahmed, F., (2008) What Do Nongovernmental Organizations Do? 22(2) Journal of Economic Perspectives 73, 74 23 Vedder, A., NGO Involvement in International Governance and Policy: Sources of Legitimacy (Brill, 2007), 2. 24 Vakil, A., (1997) ‘Confronting the classification problem: Toward a taxonomy of NGOs.’ 25(2) World Development 2057, 2060.
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provided by Brinkerhoff who suggests NGOs are generally ‘non-profit organizations
[working particularly] in the international development arena.’26
In the somewhat narrower confines of environmental governance, Boström and others define
‘environmental NGOs’ as:
Non-profit organisations with an environmental focus, usually with voluntary
members or participants, operating in global or local civil societies.27
Another definition of environmental NGOs is provided by Böhmelt and Betzold:
Not-for-profit organizations that have not been established by state actors and whose
aim is environmental protection.28
There are dozens of other definitions available in the literature.29 Most seem to focus on non-
profit activities and those involved in services to the disadvantaged, the marginalised or the
under-represented. Scholars considering definitions of environmental NGOs tend to move
away from disadvantaged societies towards concepts like the ‘protection’ or ‘conservation’ of
the ‘public interest’ or ‘the environment’, all of which are equally challenging notions to pin
down.30
The distinction between disadvantaged societies and protection of the environment is,
however, misleading. That is to say, the two notions are intertwined. The movement of 25 Jordan, J., (2000) ‘Political Responsibility in Transnational NGO Advocacy.’ 28(12) World Development 2051. 26 Brinkerhoff, J., (2002) ‘Government-Non Profit Partnership: A Defining Framework.’ 22 Public Administration and Development, 19, 19. 27 Boström M, Grönholm S, Hassler B., (2016) The ecosystem approach to management in Baltic Sea governance: towards increased reflexivity? In: Gilek M et al (eds) Environmental governance of the Baltic Sea. Springer, Dordrecht, 6. 28 Böhmelt T., and C. Betzold, C., (2013), ‘The impact of environmental interest groups in international environmental negotiations: do ENGOs induce stronger environmental commitments?’ 13(2) International Environmental Agreements 124, 128. 29 See for example, Betsill, M., ‘Transnational actors in international environmental politics,’ in Betsill, M., K. Hochstetler, K., and Stevis D., (eds.) Advances in International Environmental Politics (Palgrave Macmillan, 2006) 186. 30 See for instance some of the issues raised by Fisher, D., (2014) The rule of law, the public interest and the management of natural resources in Australia. 31(3) Environmental and Planning Law Journal, 151.
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environmental justice, for instance, which has its origins in the US, links the location of poor
and marginalised communities with increased incidences of environmental degradation and
risk.31 Increasingly the impacts of climate change are being felt by developing countries
(small island states in particular) leading to the emergence of the discourse of climate change.
The result is that, though they may not always reveal it, most environmental NGOs are in fact
often working on behalf of disadvantaged and marginalised groups including those most
likely to live with pollution, waste, food scarcity, climate change (such as climate refugees)
and the other negative impacts of human development.
In search of a more inclusive definition of environmental NGOs, therefore, and one which
doesn’t separate between the natural world and ‘the poor’, we return to Martens’ work
referred to above. Martens provides the best and most comprehensive exploration of what
constitutes an NGO:
NGOs are formal (professionalized) independent societal organizations whose
primary aim is to promote common goals at the national or the international level.32
Martens’ definition is attractive because there is no requirement for NGOs to be working for
or with ‘the poor’ or through ‘not-for profit’ mechanisms. Moreover, it is limited in the sense
that NGOs should be ‘formal’ and ‘professionalised [skilled-up] organisations’, as opposed to
opportunistic and well-meaning individuals who happen to be working on loosely connected
issues. Adopting Martens’ definition, which this chapter does, means that NGOs working in
World Heritage must lay claim to some form of recognised existence, preferably under the
law (e.g. through a ‘legal’ entity like an incorporated association) or at the very least,
recognised by other actors who inhabit that space. The language of ‘promotion of common
goals’ is also crucial as it implies NGOs ‘work for the promotion of public goods’ from
which their members are able to ‘profit and/or the public gains.’33
Finally, it would be an oversight not to acknowledge the emerging literature that criticizes
those who define NGOs by something ‘they are not’ (i.e. the ‘non’-government part). There 31 See for instance: Walker, G., Environmental Justice: Concepts Evidence and Politics (Routledge, 2012). 32 Martens, above n 17, 282. 33 Ibid.
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are in fact a wide variety of scholars who seek to categorise NGOs by their positive and
independent role in society describing them as ‘civil society organisations’ (CSOs),34 ‘third
sector groups’35 or ‘public interest groups’.36 There are increasing references, moreover, to
‘social movement organisations’ (SMOs) which appear in the social sciences literature.37 In
this thesis, however, it seems unnecessary to divert from the language of NGO for two
reasons: first, because the acronym NGO is used consistently within the World Heritage
system and the broader UN regime as well; but second - in order to stay true to the
constructionist-interpretivist approach to the study38 - most of the interview participants
themselves used the term NGOs.
6.2.2 The Existing Literature
As noted in the literature review in chapter 1 (section 1.3), relatively few studies have
considered the presence or ‘influence’ of NGOs under the World Heritage regime, especially
in terms of a regulatory role in governance. Two of the more notable exceptions were
Chechi’s paper39 and Nafziger’s recent work.40 Natasha Affolder’s 2009 paper might have
also stood out for this discussion, but instead focussed on the influence of private ‘for profit’
corporations, something which this thesis didn’t focus on but which would be a worthy area
for further empirical research.41 There is also, as noted in chapter 2, some discussion of the
role of heritage experts, lawyers and other non-state influences in shaping heritage
discourses, but again, NGOs as a force in regulation and governance are not the focus.42
34 See for example, Scholte, J., (2004) ‘Civil Society and Democratically Accountable Global Governance’ 39(2) Government and Opposition 211. 35 Halpin, D., Groups, Representation and Democracy: Between Promise and Practice (Manchester University Press, 2010). 36 See Ayres, I and Braithwaite, J (1991) ‘Tripartism: Regulatory Capture and Empowerment’, Law and Social Inquiry, 435. 37 Dingwerth, K., Hahn, K., and Prys, M., (2013) ‘Becoming Agents of Contestation: NGOs in the International Trade and Climate Regime.’ Paper prepared for 7th ECPR General Conference, Bordeaux, 4-7 September 2013. 38 See the intellectual approach to the method in this this study (chapter 1, section 1.5.1). 39 Chechi, A (2015) ‘Non-State Actors and Cultural Heritage: Friends or Foes?’ 19 AFDUAM 457. 40 Nafziger, J ‘The World Heritage Convention and Non-State Actors’, in Prott, L.V., Redmond-Cooper, R., y Urice, S. (eds.), Realising Cultural Heritage Law. Festschrift for Patrick O’Keefe, (Institute of Art and Law, Pentre Moel, 2013). 41 Affolder, N., (2009) ‘The Private Life of Environmental Treaties.’ 103(3) The American Journal of International Law 510. 42 See Lixinski, L, (2013) ‘International Cultural Heritage Regimes, International Law and the Politics of Expertise’ 20(4) International Journal of Cultural Property, 407; and also Smith, L., Uses of Heritage, (Routledge, 2006), both referred to in chapter 2.
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According to Chechi, in the area of cultural heritage, which is far broader than just World
Heritage (see chapter 2) NGOs are becoming one of the ‘most active and vocal’ of all non-
state actors.43 Chechi describes their role as ‘catalytic’ including playing a part in ‘problem
identification, negotiation, and [in the] development of regulatory regimes.’44 Whilst the
focus of Chechi’s work is on cultural heritage, his main point still holds that there is
something of an ‘ambivalent role’ for NGOs in heritage protection structures and that
institutions like UNESCO need to devise better and more ‘effective arrangements’ to bring
them (and other private actors) closer into the regime.45
By a similar token, Nafziger points out that NGOs are playing an ever-important role in the
context of global heritage governance, and that they are now ‘a cornerstone’ of the World
Heritage regime.46 Nafziger gives the example of ‘persistent political lobbying’ by NGOs,
including Greenpeace and WWF submitting a 150,000 person petition against a pulp mill at
World Heritage listed Lake Baikal in Russia (the ‘Galapagos of Russia’). The joint petition
was acknowledged by UNESCO, which agreed to eventually bring it to the attention of the
World Heritage Committee.47 Petitions have also been used by other NGOs to raise
awareness of the impacts of climate change on World Heritage sites (including the
GBRWHA) though with varying degrees of success.48 As argued elsewhere, petitioning by
NGOs is a poor and legally questionable substitute for allowing civil society a greater and
more explicit role within the regime.49
Overall, the existing literature presents an unclear picture (or in Chechi’s word’s, an
‘ambivalent’ one) of what role NGOs play in World Heritage. It is helpful, therefore, to
return to the primary texts of the Convention and the Operational Guidelines for the
Implementation of the World Heritage Convention (the Operational Guidelines) and briefly
43 Chechi, above n 39, 457. 44 Ibid., 459. 45 Chechi, above n 39, 477 46 Nafziger, above n 40. 47 UNESCO, News ‘Greenpeace and WWF present 125,000 signatures to UNESCO to save world’s oldest, deepest and largest lake’ <http://whc.unesco.org/en/news/620/> accessed 12 May 2017. 48 The NGOs were asking for sites to be listed In Danger. This was not decided by the Committee, however, their petitioning did by and large lead to increased attention of sites in danger and a suite of policy documents aimed at better understanding and responding to the threats of climate change. 49 See Hamman, E., (2017) ‘The role of NGOs in monitoring compliance under the World Heritage Convention: Options for an improved tripartite regime.’ in Voight, C (ed.) The Environment in International Courts and Tribunals - Issues of Legitimacy. Cambridge University Press. (In Press)
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engage in a doctrinal analysis of the relevant issues. For example, what does the text of these
two documents tell us about the role and presence of NGOs in World Heritage?
The original text of the Convention did, in fact, foresee a role for NGOs in World Heritage
but they were one-step removed from the system as a kind of consultant, observer or
assistant. Article 8(3) of the Convention, for example, allows NGOs to attend World Heritage
Committee meetings in an advisory capacity:
A representative of [ICCROM, ICOMOS and IUCN] and, to whom may be added, at
the request of States Parties to the Convention … representatives of other
intergovernmental or non-governmental organizations, with similar objectives, may
attend the meetings of the Committee in an advisory capacity.
Moreover, Article 13(7) of the Convention stated that the Committee ‘shall’ cooperate with
NGOs who have having objectives similar to those of the Convention:
The Committee shall co-operate with international and national governmental and
non-governmental organizations having objectives similar to those of this
Convention. For the implementation of its programmes and projects, the Committee
may call on such organizations, particularly [ICCROM, ICOMOS and IUCN] as well
as on public and private bodies and individuals.
Whilst articles 8 and 13 do go some way to revealing a regulatory role for NGOs, their
inclusion in formal proceedings is still very much at the discretion of the state-run
Committee. Moreover, the Operational Guidelines add little to our understanding of how and
in what instances NGOs should be involved in World Heritage. The Operational Guidelines
do provide, at paragraph 12, limited reference that NGOs should be involved in the
identification, nomination and protection of World Heritage properties. Further, at paragraph
38, they suggest NGOs should be encouraged to be part of ‘the implementation of the
programmes and projects’, including, for example, the practice of Reactive Monitoring
Missions (RMM). But despite these references, an established and precise role, in regulation
or otherwise, for NGOs still seems to be lacking. Questions arise, for example, as to what
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level of information gathering NGOs should play in RMMs and what ‘implementation’ of the
Convention actually means in practice.50 Questions like these are becoming (and will
continue to become) more integral to the functioning of the regime as it pivots away from
nomination and listing of sites towards questions of compliance.51
The data from the GBRWHA case study in this thesis suggests that the role of NGOs, where
it is being facilitated, is supported largely by informal and closed-door processes within
IUCN and UNESCO’s World Heritage Centre. That is not to say, however, that the presence
of NGOs is not valued by both of those bodies within the Convention’s processes. As an
interview participant from IUCN explained:
NGOs, as IUCN members, or as partners via IUCN are considered to be part of IUCN
“networks”, and therefore the expectation of NGO and civil society inputs is a long
established part of IUCN’s monitoring process.52
Long established or not, NGO involvement in World Heritage regulation is not easy to
conceptualise from the outside looking in. There are few, if any, publically available
documents that lay out the specific role for NGOs, or, for that matter, include the limits of
their involvement. In the broader context of global environmental governance, much of the
‘ambivalence’ or lack of clarity around a formal role for NGOs is not surprising. A
comprehensive report published into Participation of NGOs in International Environmental
Governance found there are very few legal rules that govern NGOs under international
environmental agreements.53 As the authors of that study concluded:
[with the possible exception of CITES] most international institutions are open to
NGOs without conferring any specific rights on them.54
50 See the discussion about implementation and compliance contained in chapter 2 at section 2.4.1. 51 See comments in chapter 2 about the pivot away from nomination and listing. 52 Interview # 9. 53 Oberthür, S et al. Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience (Ecologic, 2002), 206. 54 Ibid.
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Some of this may seem at odds with how an organisation like UNESCO (with a far bigger
focus than just World Heritage) deals with NGOs. UNESCO does have, for instance,
‘Directives Concerning [its] Partnerships with NGOs’ (‘NGO Directives’) which are
available online.55 That said, the NGO Directives do not set out the role NGOs are to play in
any of the tasks of regulating under international environmental agreements, let alone World
Heritage. In the absence of specific rules, it falls to studies such as these to explore what
NGOs do, and how they go about it, including how they build and maintain relationships with
decision-making bodies. The results have implications for not only World Heritage, but also
other convention frameworks that seek to utilise the services of NGOs in their regulatory
endeavours.
The discussion which follows, presents an analysis of the roles that NGOs appear to be
playing in influencing compliance under the World Heritage regime. It distinguishes between
those NGOs that are involved in agitation via the ‘outside track’ and those that proved
themselves capable of regulating (participating in standard setting, monitoring or enforcing)
via the ‘inside track’. Before that distinction is presented, however, it is helpful to deconstruct
what we mean by ‘influence’. It is the definition and meaning of that phrase which we now
turn.
6.2.3 The Notion of NGO Influence
The idea of NGOs having ‘influence’ is an important one in the context of this discussion yet,
remarkably, it the meaning of the word is overlooked in the literature.56 This is concerning
given many qualitative descriptions of NGO behaviour (such as those presented in this thesis)
rely rather heavily on the assumption that particular actors or initiatives have actually
changed or altered a course of events, whether positively or negatively. Granted, there are
many studies which have attempted to trace the influence of NGOs on various aspects of
world affairs. Youngwan’s dissertation in 2011, for example, explored the power of NGOs in
55 UNESCO, Directives concerning UNESCO’s partnership with non-governmental organizations (Adopted by the General Conference in November 2011) available online <http://en.unesco.org/partnerships/non-governmental-organizations-and-foundations> 56 Wood, S., (2012). ‘The Case for Leverage-based Corporate Human Rights Responsibility.’ 22 Business Ethics Quarterly 63.
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influencing foreign policy behaviour.57 A decade earlier, Carr, Humphreys, and Thomas
examined the ‘influence’ of NGOs on environmental policies in the context of sustainable
land use in Africa.58 Several other works have considered the influence of NGOs in specific
contexts such as the development of forestry legislation59 and in international environmental
negotiations60
These contributions, however, don’t provide a relevant break down of the idea of influence,
what it means, who can exert it, and how they might do it. Helpfully for the goals of this
chapter, however, Stepan Wood has deconstructed different forms of influence in the context
of corporate responsibility and human rights, drilling deeper into the meaning of words like
‘impact’ and ‘leverage’ over social systems.61 The notion of ‘impact’, he writes, refers to the
activities of organizations that may cause harm on a given social system, while ‘leverage,’ on
the other hand, refers to ‘an organization’s ability to influence the actions of other actors
through its relationships’ that are causing or could prevent harm.62 Wood thus links the ideas
of influence and leverage to one another, as well as the output of harm (or avoiding it).
Closer to environmental issues, Richardson has analysed how ‘influential’ the socially
responsible investor (SRI) movement has been in determining environmental outcomes.63 He
adopted a similar conception of influence to that of Wood:
The notion of having ‘influence’… is about having some power to affect a thing or course of
events. It thus denotes some degree of leverage that [actors] may exert…with regard to social
and environmental performance.64
57 Youngwan, K., (2011) ‘The Unveiled Power of NGOs: How NGOs Influence States’ Foreign Policy Behaviours.’ (PhD Thesis submitted to University of Iowa). 58 Carr, S., Humphreys, D., and A. Thomas. A., Environmental Policies and NGO Influence: Land Degradation and Sustainable Resources: Land Degradation and Sustainable Resource Management in Sub-Saharan Africa. (Routledge, 2001). 59 Bravo-Gonzalez, R., NGO Influence on Forest Legislation: Experiences from Federal Forest Management in the United States (Universal-Publishers, 2010). 60 Betsill, M., and Correll. E., NGO Diplomacy: The Influence of Nongovernmental Organisations in International Environmental Negotiations (MIT Press, 2008). See also their earlier work: Corell, E., and Betsill, M., (2001) ‘A Comparative Look at NGO Influence in International Environmental Negotiations: Desertification and Climate Change’ 1(4) Global Environmental Politics 86. 61 Wood, above n 56. 62 Ibid. 29. 63 Richardson, B., (2012) ‘Are Social Investors Influential?’ 9(2) European Company Law 133. 64 Ibid., 134.
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Richardson’s definition seems broad and relevant enough to use in this chapter. That is, that it
is, an NGO’s ability to exert influence in World Heritage is synonymous with the idea of
having leverage over other actors or, from a more abstract perspective over a phenomenon
like compliance pull.
6.3 THE INFLUENCE OF NGOS ON COMPLIANCE PULL
6.3.1 Revisiting the theory of compliance pull
Having now an understanding of what the phenomenon of influence means, we turn to the
more interesting empirical question of how and under what circumstances NGOs are able to
exert influence over states under the Convention. This next part of the chapter sees NGOs as
both ‘agitators’ and ‘regulators’ in World Heritage. Just as IUCN was able to do (see chapter
5) NGOs are capable of constructing their own legitimacy and even exercising their own
regulatory authority.
There is, however, a significant difference between what NGOs do and what the IUCN does
in World Heritage. The major difference being that IUCN is able to rely upon a statutory
legitimacy to regulate (afforded to them through the text of the Convention) whilst other
NGOs need to manoeuvre and position themselves in more discrete and creative ways to do
so. In short, they need to enrol themselves in the regime.
If we pause and revisit, for a moment, the theory of compliance pull examined earlier in this
thesis, we can see that it operated in the GBRWHA case study at two levels:
1. Between the World Heritage regime and Australia (i.e. between the World
Heritage Committee and the member state); and
2. Between Australia and Queensland (i.e. between the state and the sub-state).
Under international law, Queensland is not a party to the Convention, and therefore cannot be
seen as compliant or non-compliant within the meaning of the Convention’s framework.
Queensland has no legal personality or statehood in the global sphere, though they are, as is
increasingly the case, interested in forming diplomatic ties with other nation states (and sub-
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states) and encouraging foreign direct investment. In the case study, Australia seemed to rely
heavily on the Queensland Government being able to achieve certain things, including
passing legislation, producing their part of the strategic assessment (the terrestrial part) and
contributing to the Australian Governments 2050 Long Term Sustainability Plan for the
Reef.65 Conceptually, therefore, we might think of Australia pulling Queensland in the
direction of compliance. Or, in other words, being pulled in the same direction in which it
was being pulled.66
These thoughts are illustrated in the graphic on the following page.
65 As it turned out, after the case study, Queensland’s failure to pass vegetation management laws is likely to impact upon Australia’s obligations under the Convention. See Hamman, E., (2016) Failed changes to Queensland’s vegetation clearing laws: Implications for climate change, the Great Barrier Reef and Australian environmental policy 31(8) Australian Environment Review 303. 66 The interesting empirical question of why a sub-state like Queensland might seek to comply with demands of international law is covered briefly in chapter 7 (the final chapter of this thesis).
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Illustration of the theory of compliance pull as applied to the GBRWHA study.
A fuller version (with additional actors and movements) is provided in chapter 7.
For clarification, the figure above seeks primarily to make two points: First, it shows that the
compliance pull phenomenon (though not the formal obligation for compliance) exists at two
levels: between the Committee and Australia, and between Australia and Queensland. That
point is interesting in and of itself, but it is also interesting because of what it says about the
methods and influence of NGOs in the compliance process.67 The second point to note, then,
is that NGOs can be contributors to both state and sub-state aspects of the compliance pull
67 Colin Scott tended to use the words methods to describe the tactics or strategies of non-state actors (and indeed other actors) in a given regulatory space. See the discussion in chapter 4, at section 4.2.1.
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phenomenon. As regulators they work chiefly to assist (or persuade) the World Heritage
Committee at the international level, but as agitators, they exist outside of the Committee
system, but are nevertheless powerful players in leveraging public debate around the issues.
How, then, can we make sense of the different roles played by NGOs? Is one more effective
than the other in terms of supporting compliance? And, which NGOs exhibited which traits
throughout the case study? The section below draws on the broader NGO literature (outside
of global environmental governance) to start to make sense of these issues and conceptualise
the role they play in compliance pull.
6.3.2 Understanding the different roles and strategies of NGOs
In analysing how NGOs exert influence in regulatory regimes like World Heritage, some
parts of the literature suggest that we can distinguish between ‘service NGOs’ and ‘advocacy
NGOs’. Service NGOs, are said to be those NGOs which are able to easily gain formal
recognition and ‘institutionalise’ their relations with other organisations like the United
Nations (the UN).68 In the context of international relations, they ‘share objectives and
exercise similar functions’ to institutions, and are thus usually ‘well regarded’ by the
institutional bodies within the UN.69
On the other hand, ‘advocacy NGOs’ don’t seek to deliver basic services, but exist largely to
challenge policy positions through (often public) advocacy campaigns, and are, thus, often in
conflict with nation states and established institutional networks.70 As Prakash and Gugerty
write, ‘the term ‘advocacy’ suggests systemic efforts (as opposed to sporadic outbursts) by
actors that seek to further pursue policy goals.’71 Greenpeace International, for example,
might be defined, or indeed define itself, as a ‘campaigning’ or advocacy organisation.72
68 Martens, K., NGO's and the United Nations Institutionalization, Professionalization and Adaptation (Palgrave Macmillan, 2005), 33. 69 Ibid. 70 See the discussion in Beer et al, above n 21. 71 Prakash, A., and Gugerty, (eds) Advocacy Organizations and Collective Action (Cambridge University Press, 2010) 1. 72 Sofronova E., Holley C., and Nagarajan, V., (2014) 'Environmental non-governmental organizations and Russian environmental governance: Accountability, participation and collaboration' 3 Transnational Environmental Law 341, 366.
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For example, in the Kakadu World Heritage controversy of the late 1990s, mentioned at
various places throughout this thesis, most would have concluded The Wilderness Society
(TWS) was an ‘advocacy NGO’ with its activist behaviours contrary to the interests of the
Australian Government and pushing for a very specific policy position (e.g. an anti-uranium
mining stance). As one interview participant in the case study noted, TWS were doing things
at the time which conflicted with the formal procedures of the World Heritage system:
Participant: Well one thing that Australia has done, ever since the Kakadu
days, and it may well be before that, but certainly Kakadu, is
that NGOs played a prominent role in the Kakadu
discussions. And during the Kakadu deliberations, the NGOs
were over there in Paris doing their own lobbying.
Interviewer: Which ones? Do you remember?
Participant: Back in those days it was The Wilderness Society who were
very vocal, I don’t think WWF were quite so vocal, but The
Wilderness Society was one of the leaders in the Kakadu
deliberations.…
Interviewer: So what were they doing?
Participant: They were doing lobbying, and they caused a real stir in 1999
when they raised a banner behind the Chairman of the
Committee saying something like ‘Stop Jabiluka’. It really
upset the Committee, so since those days, whenever there has
been controversial issues, there is much greater security
required.73
In the context of the ‘advocacy-service’ distinction (above), the Kakadu example gives rise to
three preliminary observations.74 First, TWS’s position as an advocate may have come about
not because they were an advocacy organisation, per se (though they may well be) but, rather,
it seemed to evolve that way because at the time there were no formal and established
pathways for direct involvement in the regime (outside of invitations from IUCN and
73 Interview # 6. 74 For a thorough explanation of the Kakadu case, see Maswood, S. (2000) ‘Kakadu and the Politics of World Heritage Listing’ 54(3) Australian Journal of International Affairs 357 and also Aplin, G., (2004), ‘Kakadu National Park World Heritage Site: Deconstructing the debate, 1997-2003.’ 42(2) Australian Geographical Studies 152.
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ICOMOS in their monitoring missions). In other words, there seemed little to no room for
TWS to play a formal role that was anything other than protest or advocacy.
The second point to make, and one which is related to the first, is that the relationships
between NGOs and the key World Heritage bodies (UNESCO, the Committee and ICOMOS
and the IUCN) had not matured to a stage whereby NGOs could formally play a full-service
role within implementation of the regime. The Convention framework already had its
advisory bodies (ICOMOS and IUCN) and, as noted in chapter 5, those bodies already had
the statutory legitimacy to regulate states under the World Heritage regime. Perhaps the
advisory bodies theoretically represented, in an indirect way at least, the positions of civil
society concerned about Kakadu, though such a suggestion is at odds with the finding that
IUCN has worked hard over the years to keep NGOs (and states for that matter) outside of
their internal processes.75
The third and final observation to make is that TWS’ actions at Kakadu were an appeal to the
universal and erga omnes nature of the World Heritage regime.76 In other words, it came
about (much like the work of NGOs on the GBRWHA) as a consequence of the frustration
and failures which domestic NGOs faced when lobbying on the domestic front. TWS had
thus recognised and sought to complain to a ‘higher authority’ of World Heritage. For
instance, Alec Marr, who led the TWS campaign at the time, stated:
[I]f there is a problem caused by a government, no-one else will have the capacity to
bring that problem to the attention of the World Heritage Committee, and that's one of
the insidious aspects of what the Australian government's been pushing. They don't
want international scrutiny of what's going on in our World Heritage areas, they don't
want people to know about the trawling that's going on in the Barrier Reef, they don't
want people to know about the Jabiluka uranium mine; they don't want people to
know about the logging that's going on along the eastern slopes of the Tasmanian
World Heritage area, and so they're trying to cut everybody out except whoever's the
75 See the discussion on legitimating assets of IUCN in chapter 5, at section 5.3.6. 76 See chapter 3 for a discussion of erga omnes.
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government of the day, and not only is that bad in Australia but it would be a disaster
around the rest of the world as well.77
Certainly, the ‘international scrutiny’ point was a big part of NGO influence through the
GBRWHA study as well. As argued earlier in this thesis, Australia’s reputation in World
Heritage (chapter 3) and the iconic status of the Reef (chapter 4) contributed significantly to
an embarrassment factor that would arise if the site were to be listed In Danger. Following
the July 2015 Committee meeting, Australia and Queensland viewed the decision not to list
the Reef In Danger as a success. As recently as July 2017, when the Committee again decided
against an In Danger Listing, the government viewed it as a ‘big win’.78
The language of the Australian Government in celebrating the decision in this way presents
something of a hollow victory and reflects a wider problem raised elsewhere in this thesis
that procedural compliance can at times interfere with the much more important aims of
substantive compliance with the spirit and content of the treaty. The point was raised, for
example, in chapter 3 (at section 3.5.2) that effective stewardship of World Heritage sites is
very different from procedural adherence to the administrative processes of the Convention.
The behaviour of the Australian Government in this way was similar to the way it responded
to the Kakadu example in the late 1990s and the Committee’s reluctance to list that site as In
Danger.
But returning to the main discussion at hand, TWS’ strategies and influence in the Kakadu
case cannot be explained by labelling them as an advocacy or service NGO. TWS acted
opportunistically in the circumstances largely because the World Heritage system had not
matured to a point (and it still has not) where NGOs had established and clear mechanisms
for holding states to account. Similarly, in the case of the GBRWHA, the distinction between
an advocacy NGO and a service one is also of little value in understanding their influence.
Though an organisation like WWF, for example, is self-described as ‘conservative’ on the
77 ABC News (Radio) 2 December 2000, ‘Watering Down World Heritage’ <http://www.abc.net.au/radionational/programs/earthbeat/watering-down-world-heritage/3645050> 78 ABC News (Radio) 6 July 2017, ‘Frydenberg claims UNESCO decision on the Great Barrier Reef as 'a big win' for the Turnbull Government.’ http://www.abc.net.au/am/content/2016/s4697272.htm
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spectrum of NGOs,79 it seemed perfectly capable of expertly moving between both advocacy
and service roles. For example, WWF’s ‘Fight for the Reef Campaign’, co-sponsored with
the Australian Marine Conservation Society (AMCS), had an enormous public presence
through social media. Between 2012 and 2015, over 500,000 people from over 175 countries
supported WWF’s call for ‘world leaders to defend the Great Barrier Reef.’80 On the other
hand, WWF also had the technical expertise (or access to it) to produce scientific scorecards
as audits of Australia’s performances to the World Heritage Committee (see below).
By a similar token, an NGO like Greenpeace, which is often categorised as an advocacy
organisation, was able to obtain a seat at the table of internal decision making for World
Heritage and contribute to services as required by the Committee, IUCN and UNESCO.
Though to a lesser extent than WWF, Greenpeace were capable of meeting with member
delegates and attending the crucial Committee meeting in Bonn, Germany (in 2015) where it
was decided the GBRWHA would not be listed In Danger. Like WWF, Greenpeace was
given the floor at the meeting, and was in turn ‘thanked’ by member delegates for its
constructive and positive role in the period leading up to the decision. Both NGOS were thus
seen as providing a distinct value to the operation of the Convention. As Day points out,
delegates from Poland, India, Jamaica, Korea, Peru and Japan ‘all provided supporting
comments about the role of civil society’ in the GBRWHA example.81 More specifically, the
delegate from Portugal who reportedly had played a prominent role in the decision stated:
Of course many other stakeholders including NGOs have contributed to this result…I
commend their determination.82
The representatives from Finland and Germany also highlighted the important and
constructive role played by NGOs during the years 2013 to 2015:
79 Interview # 10. 80 WWF, ‘An End to Great Barrier Reef Dumping is Imminent.’ <http://www.worldwildlife.org/stories/an-end-to-great-barrier-reef-dumping-is-imminent> accessed 12 May 2017. 81 Day, J. ‘Not out of hot water yet: what the world thinks about the Great Barrier Reef.’ The Conversation (online) 17 July 2015. <https://theconversation.com/not-out-of-hot-water-yet-what-the-world-thinks-about-the-great-barrier-reef-42945> 82 See the YouTube recording of 39th Session of the World Heritage Committee Meeting in Bonn, Germany 1 July 2015. At video 1 hour 53mins < https://www.youtube.com/watch?v=rv_TzLFMKfE>
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Civil society plays an ever increasing role in the Convention and the discussions on
[the GBRWHA] provide an excellent example of how civil society can contribute and
support the consideration of World Heritage.’ (Finland)83
and
We acknowledge the enormous attention from various stakeholders from states and
NGOs, and from science to the general public’(Germany) 84
NGOs were thus a valued and important part of the GBRWHA case study (at least in the eyes
of the other member states). Whether they played a role as advocates or service providers
however is an empirical question and merely labelling the individual NGOs without that
analysis explains little about the way in which they exerted influence under a specific set of
circumstances. The more helpful way to answer this question is through examining their
behaviour, including how they constructed legitimacy and authority to act. This includes
investigating what they did during the study period and aligning these observations with the
main theoretical discourse adopted in this thesis – that of regulatory theory(s). The appeal of
such an approach is that it considers specific behaviours and actions in context and from a
practical governance perspective rather than seeking to ‘once and for all’ label NGOs which
are increasingly understood to be dynamic and unpredictable players. Far better, therefore, to
look at the individual tactics of NGOs before we begin to label them one way or another.
6.4 REGULATORS AND AGITATORS: INSIDER AND OUTSIDER TACTICS
There is considerable reference in the literature to NGOs and other non-state actors taking on
‘insider’ or ‘outsider strategies.85 Stokke’s 2015 study of NGOs and children’s rights in
Kenya, for instance, sought to draw distinction between those that took the inside track and
those on the outside.86 The inside track, asserts Stokke, involves NGOs directly advising or
83 Ibid., at 2 hours, 1 min. 84 Ibid., at 2 Hours 2 mins. 85 Böhmelt, T., Bernauer, T., & Koubi, V. (2015), ‘The marginal impact of ENGOs in different types of democratic systems. 7(1) European Political Science Review 93, 95. 86 Stokke, H., (2015) Taking the inside or outside track – or both? NGO advocacy in state reporting under the Child Rights Convention: a case study from Kenya (CMI Report) < https://www.cmi.no/publications/file/5529-taking-the-inside-or-outside-track-or-both.pdf>
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negotiating decision-makers, mostly without any public presence or popular image behind
their activities. As Böhmelt and others write, drawing on the work of Corell and Betsill,87 the
insider strategy ‘refers to a set of activities that seek to affect policymakers directly via the
provision of expert advice or policy analysis.’88 It necessarily involves working closely with
the regime structure, and contributing technical or other vital expertise to the processes in
which decisions are made by the regulating bodies.
On the other hand, the outside track involves strategies that ‘in various ways will involve the
public at large’,89 including, for instance, through social media campaigns around a relatively
simple message. As Li points out, outsider strategies tend to involve tactics like campaigning
to be able to place political pressure on governments.90 The outsider strategy aims ultimately,
writes Dingwerth et al, ‘to influence the public image of the regime.’91 As Stokke’s work
concluded:
the outside track will in various ways involve the public at large. The inside track will
never involve the general public, perhaps most clearly in the case of expert advice
which by its very nature only admits those who have recognised competence and with
regard to sensitive issues may even be shrouded in confidentiality.
Another way of looking at this distinction is to consider the behaviour of NGOs as lobbyists
and campaigners as agitators (that is, on the outside of the regulatory system) and other
NGOs primarily as participants and even regulators using procedures and processes of the
system (that is, on the inside). The distinction is a fine but important one for understanding
how compliance pull operated in the case study and the influence that NGOs had on those
dynamics. There are various parts of the literature, which are helpful in understanding this
distinction further. Beer and others point out, for instance, that NGOs play a prominent role
as ‘quasi regulators of [both] business and government activity’,92 in addition to being
advocates for broader public agendas. Indeed, recent studies have shown how NGOs have
87 Corell and Betsill, above n 60, 87. 88 Böhmelt et al, above n 85, 95. 89 Stokke, above n 86, 4. 90 Li, Y., (ed) NGOs in China and Europe: Comparisons and Contrasts (Routledge, 2011), 13. 91 https://ecpr.eu/Filestore/PaperProposal/4c4d84ac-4c07-4ac2-9cb5-774f4eff05c5.pdf at 22. 92 Beer et al, above n 21, 326.
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played a vital regulatory role in setting standards and monitoring of behaviour: for example,
in the labelling of consumer products,93 in sustainable forestry initiatives,94 in promoting
marine protections,95 in enforcing minimum employment conditions,96 and in helping the
International Criminal Court (ICC) bring offenders to justice.97
The phenomenon of NGOs as regulators (not just agitators), has not until recently been
acknowledged by the literature and the institutional arrangements in which they inhabit.
Around the time of the birth of modern environmental law, for instance, (generally accepted
to be the early 1970s), scholars were writing about ‘interest groups’ and their potential role as
‘pressurisers’ in the protection of the environment.98 At that time, a role was envisaged for
NGOs, not in ‘regulation’, but in advocacy: that is, lobbying or maintaining pressure on state
bodies, from the outside, with the hope of driving public agenda and social causes. There
seemed a role for NGOs to help ‘institutionalise’ environmental matters, or make states stand
up and take notice. In 1974, for example, Neil Gunningham wrote:
The concern with pollution will (in time) become institutionalised and the pressure to
take action will be constant, because private interest groups may take up the call to
action and public concern will in turn strengthen the hand of the governmental
agency.99
At the time, the same thoughts were occurring at an international level. As Feraru pointed out
in 1974, a ‘small body of literature’ was starting to grow which conceptualised NGOs as
essentially ‘pressure groups,’ acting (up) in the international political system on behalf of
93 Poret, S., (2016) ‘Label Battles: Competition among NGOs as Standard Setters.’ Working Paper ALISS 2016-01. INRA UR 1303 < https://hal.archives-ouvertes.fr/hal-01512229/document> 94 Schepers, D., (2010) ‘Challenges to Legitimacy at the Forest Stewardship Council’ 92(2) Journal of Business Ethics 272. 95 Gulbrandsen, L., (2009) ‘The emergence and effectiveness of the Marine Stewardship Council’ 33(4) Marine Policy 654. 96 Hardy, T., (2014) ‘Friend or foe? The regulatory enrolment of non-state actors in the enforcement of minimum employment standards in Australia’ (Thesis submitted to University of Melbourne). 97 De Silva, N., (2017) ‘Intermediary Complexity in Regulatory Governance: The International Criminal Court’s Use of NGOs to Regulate International Crimes.’ 670 The Annals of the American Academy of Political and Social Science. 98 Gunningham, N., Pollution, Social Interest and the Law (M Robertson, 1974), 36. 99 Ibid., 40.
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particular interests.’100 Thus early conceptions such as these essentially saw NGOs as
agitators capable of applying pressure to states to determine and influence outcomes. NGOs
were not explicitly considered, in the literature or elsewhere, as regulators or even co-
regulators of state or private behaviour.
By the early 1990s, however, environmental law and regulatory scholars were calling for a
more specific and distinct role for NGOs in regulation. These calls were a recognition,
alluded to earlier in this thesis, that governance had become far more decentralised and
pluralistic. In 2002, Richardson, summarised some of the main arguments as follows:
regulatory theorists emphasise that regulators operate increasingly in pluralistic
setting where effective governance involves flexible, collaborative mechanisms in
which state functions are shared with, or devolved to, private interests.101
Since about the 1990s, then, influential thinkers have written about how best to bring NGOs
into the regulatory game. Ayres and Braithwaite, for example, in the early 1990s, had argued
convincingly for the practice of tripartism: the process in which NGOs become a ‘fully
fledged third player in the game.’102 Drawing on more established theories like civic
republicanism and game theory,103 they suggested NGOs should have many of the rights and
powers of state regulators, including the power ‘to punish firms directly’ (i.e. to undertake
enforcement).104
Several years later, Gunningham, Grabosky and Sinclair published Smart Regulation, which
drew on Ayres and Braithwaite’s model of responsive regulation and argued, again, for an
explicit role for NGOs suggesting they might be incentivised to take on a role in regulation
100 Feraru, A., (1974). ‘Transnational Political Interests and the Global Environment.’ 28(1) International Organization 31, 32. 101 Richardson B (2002) ‘Enlisting Institutional Investors in Environmental Regulation: Some Comparative and Theoretical Perspectives’ 28 NCJ Int'l L. & Com. Reg. 28, 250 102 Ayres, I and Braithwaite, J (1991) ‘Tripartism: Regulatory Capture and Empowerment’, Law and Social Inquiry, 435. 103 Ford, C. (2013), ‘Prospects for scalability: Relationships and uncertainty in responsive regulation’, 7, Regulation & Governance 14, 15-16. 104 Ayres and Braithwaite above n 102, 439.
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through tax breaks, charitable status and public-private partnership arrangements.105
Moreover, in more recent times, Bridget Hutter has written on the specific role of NGOs in
regulation and pointed out that such a role ‘does not imply complete severance between the
state and other actors.’106 Their activities might be symbiotic in many ways, and hence the
appeal of deliberate polycentric regulatory strategies like enrolment referred to the previous
chapter (see in particular section 5.3.1).
What is novel about these ideas is not that NGOs should be or could be a formidable presence
in governance systems, but rather, that NGOs might be used to play a central role in the
practices of regulation. More to the point, whilst theories like tripartism, enrolment and smart
regulation have strong normative dimensions (that is, the way a system should be), they can
also be drawn on, conceptually, to help understand the way in which governance systems like
World Heritage appear to operate. At the very least, these theories can be used as a
springboard to prompt further questioning about who is involved in regulation, what do they
do, and how they go about it.
The next logical next question that arises from all of is that if NGOs are (or can be) more than
just agitators, then what role can and do they play in regulation? And more to the point of this
chapter, how do they go about it in the context of World Heritage? It is to the specifics of the
distinction between regulation and agitation that we now turn.
6.4.1 The Inside Track: NGOs as Regulators
Beer and others suggest that NGOs play two important regulatory roles in governance
structures: first as ‘watchdogs’ who try to name and shame actors ‘into changing course’;107
and second ‘in their role in developing and maintain private associations for standard-setting,
monitoring and certification.’108 In relation to the first role, the authors give the example of
Transparency International (TI), an organisation focussed on monitoring and publishing data
about how transparent and accountable certain institutions and programs are. With respect to
the second role, they give the example of NGO initiatives such as the Forest Stewardship
105 Gunningham, N., Grabosky, P., and Sinclair, D., Smart Regulation, (Clarendon Press, 1998). 106 Hutter, B., (2006) ‘The Role of non-state actors in Regulation’ CARR Discussion Papers DP 37, 14. 107 Beer et al, above n 21, 330. 108 Ibid.
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Council and Round Table on Sustainable Palm Oil.109 There are many other examples of
NGOs undertaking monitoring and certification of state and other private behaviour,
including Banktrack.org self-described as ‘an international tracking, campaigning and NGO
support organisation focused on private sector commercial banks and the activities they
finance.’110
As Hutter points out, there is also a strong representation of NGOs in the third element of
regulation: ‘behaviour modification’ (i.e. enforcement) which involves ‘changing individual
or organisational behaviour... through compliance, deterrence’ or other enforcement
measures.111 Indeed, Hutter suggests that ‘behaviour modification is perhaps the regulatory
activity NGOs are best known for.’112 In Australia, for example, NGOs can play a powerful
role as enforcers of duties under environmental legislation. Australia’s premier national
environmental law, the Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act) allows NGOs with appropriate interest or expertise to apply to a Court to stop an
environmental offence from occurring.113
Australia is not alone in enabling NGOs to carry out regulatory functions such as
enforcement. Other nations provide opportunities in their domestic legislation for NGOS to
be involved in regulatory processes of enforcement. As Razzaque remarks, many European
countries allow for NGOs or private citizens to:
seek the intervention of competent authorities under environmental legislation, as well
as directly sue the operators of activities that pose a threat to the environment.114
Moreover, in the United States, ‘citizen suits’ have in fact existed for some time.115 The
ability of NGOs to sue or enforce legislation against private enterprises in environmental
109 Ibid., 331. 110 Banktrack, ‘About’ <http://www.banktrack.org/show/page/about_banktrack> accessed 26 May 2017. 111 Hutter, above n 106, 3. 112 Ibid., 8. 113 Environment Protection and Biodiversity Conservation Act (Cth), section 475. 114 Razzaque, J., (2012) ‘Information, public participation and access to justice in environmental matters: Rio+20 appraisal.’ In: Alam, S., Bhuyian, J. H., Chowdhury, T. M. and Techera, E. J., eds. (2012) Routledge Handbook of International Environmental Law. (Routledge, 2012) 137, 149. 115 Cramton, R., (1973) ‘Citizen Suits in the Environmental Field – Peril or Promise?’ Cornell Law Faculty Publications. Paper 928 <http://scholarship.law.cornell.edu/facpub/928>.
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matters is an example of tripartism in practice. In so doing, NGOs are undertaking
enforcement activities (that is, ‘perforcing violators to mend their ways’116) which we might
describe as taking part in regulating behaviour.
The same phenomenon of NGOs as regulators is becoming visible at the international level.
NGOs are becoming powerful forces in regulating treaty obligations and other norms for
behaviour at the international level. As Tarlock pointed out in 1992:
NGOs have progressed from influencing the articulation of environmental aspirational
standards of conduct, to the formulation and implementation of policies both in
international organizations and individual nation-states, through moral and scientific
persuasion, to the exercise of power. NGOs now have the capacity to influence
multinational organization policy and to intervene directly in choices traditionally
reserved to individual sovereign states under international law.117
The difference, of course, between regulation in the domestic and international sphere as in
the latter there is no international court, tribunal or other binding forum which hears
environmental matters. There is, therefore, often no clear or established pathway for NGOs to
play a part in behaviour modification as there may be in a domestic context. This makes
tripartism at the international level a messier and, but in many ways, more interesting
phenomenon to study. This next section provides an exemplar of one NGO in particular -
WWF - who was able to get close enough to decision-makers and language and processes of
the Convention to engage meaningful with in the practices of regulation (monitoring in
particular).
6.4.1.1 WWF as a Regulator
Throughout the case study, it seemed clear that WWF were able to get close enough to the
World Heritage Convention processes, its procedures and decision-makers to make a real
contribution to compliance pull. WWF did not act as an agitator (i.e. outsiders) as TWS did in
116 See chapter 5 of this thesis and definition of ‘enforcement’ and also in Russell, C., (1990) ‘Monitoring and enforcement’ Public policies for environmental protection 232, 251. 117 Tarlock, A., (1992) ‘The Role of Non-Governmental Organizations in the Development of International Environmental Law - Chicago-Kent Dedication Symposium: Environmental Law,’ 68 Chi.-Kent. L. Rev. 61, 65.
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the past, but increasingly worked within the system. Between 2013 and 2015 they met
personally with many of the 21 member delegates on the Committee providing them with
briefings about the state of ecology and governance of the Reef.118 In addition, they released
their own scorecards of Australia’s behaviour and briefed the experts at UNESCO and IUCN
on the activities of the Australian and Queensland Governments relating to the site.
This was not the first time an organisation like WWF had taken the inside approach on
environmental issues. In the course of the case study, an interview participant from the
Australian Government made these observations about WWF:
Participant: I think there will always be diversity of NGOs
engaging in a place like the Reef and they are
essentially playing a complementary role. It may or
may not be organised or intentional but they do have
different ways of operating and they understand how
each other work. So you know, on the Reef, an
organisation like WWF is more engaged in the whole
process of governance and implementation in the Reef 2050
plan. They sit on the Reef Advisory Committee, and they sat
on the advisory body that was used by the two
governments during the development of the long-term
sustainability plan. So they have a voice inside the system.
But they still exercise and use their voice outside the system
to advocate publicly, in addition to engaging directly
with the World Heritage Centre and the IUCN. So
being engaged with the system and seeking to
influence it from the inside, they haven’t cut off their
other role.
Interviewer: They do both?
Participant: They do both. Whereas some, for example
Greenpeace, will just work at the public interface and
in the advocacy space. Through that they seek to
influence public opinion, and through influencing
public opinion, they seek to influence decision makers.
118 Interview # 10.
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Interviewer: From the outside?
Participant: Yes.119
The positioning of WWF as a ‘voice inside the system’ increasingly allowed it to play a
regulatory role for the Committee alongside IUCN and UNESCO. In terms of their specific
regulatory work, they were mainly engaged in the practices of monitoring (i.e. ‘checking up
on a regulatee’s efforts). For example, WWF along with partner organisation, the Australian
Marine Conservation Society (AMCS), they released several detailed reports over the period
aimed specifically at Australia’s implementation of the recommendations from the 2012
RMM as well as the Committee’s requests in 2012, 2013 and 2014. Their scorecards were
sent to the World Heritage bodies, as well as published online for the wider public. Examples
of the reports are contained on the following pages.
119 Interview # 12. Comments from the Queensland Government also represented something similar: an interview participant from the Queensland Government explained WWF’s preference for aligning with governance processes: ‘groups will position themselves where they want to stand in that debate. So you will have groups - and WWF is one of those - who will want to discuss and try and negotiate a way forward…’ (Interview # 11).
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In addition to the reports, WWF made several trips to Paris to speak directly with the
delegates on the Committee and establish closer working relationships with UNESCO and
IUCN. The following comments from the WWF interview participant give some insight into
how this was achieved:
Participant: we spent a lot of time in Europe, and in particular in Paris
where the World Heritage centre and the UNESCO building
is, talking to the ambassadors, talking to the technical
staff with a whole bunch of documents. We had substantive
briefing packs.
Interviewer: Were they receptive to you guys as well?
Participant: Really receptive yes.
And later in the same interview:
Participant: [So] we played a bit of a filtering role [for the World Heritage
bodies] because there was such an incredible amount of
global attention on the reef through that period…. people
think these organisations are massive and well-resourced but
they’re not, particularly UNESCO. Each of the staff there might
have responsibility for dozens of sites. You know, it’s impossible for them
to get on top of that.120
But how were WWF, who lack the regulatory legitimacy of IUCN and UNESCO, able to
play such a role in the system? Taking the inside track might have been difficult (if not
impossible) without an acceptance by institutional actors of not only a presence but a
legitimacy to provide such services. As chapter 5 of this thesis highlighted, actor legitimacy is
the key to exercising an authority to regulate. Whilst legitimacy is a normative question121
120 Interview # 10. 121 See the comments from Julia Black in chapter 5 at section 5.3.3.
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(i.e. who should have the right to regulate) it is also a normative one. In other words; who
evidences a legitimacy to regulate and how did they do it?
Jepson’s 2005 study of major environmental NGOs argued that legitimacy is a key issue for
many NGOs.122 As Jepson argues, NGOs can construct a form of regulatory legitimacy if
they are active in supporting the implementation of the Convention.123 The construction of
regulatory legitimacy lies within what Jepson calls the ‘institutional domain’ (rather than ‘the
public domain’), from the case study it was clear that WWF laid claim to significant
legitimacy in the eyes of the public as well via the outside track. Thus WWF also manifested
other forms of legitimacy, including ‘cognitive legitimacy’ in which NGOs build a view of
themselves as ‘defenders of values’ (e.g. their ‘Save the Reef’ campaign with AMCS).124 But
it is there capacity to regulate (and construct regulatory legitimacy) that we are more
interested in in this section.
In order to build regulatory legitimacy, there were three key relationships (i.e. assets) WWF
needed to cultivate: relationships with the Committee members, IUCN and UNESCO’s
World Heritage Centre. Some of this was unchartered territory for the Australian branch of
WWF, though other offices (in the US and Europe) had of course had substantial dealings
with these groups in the past. When asked about whether they had done this type of thing
before, the interview participant from WWF replied:
No, not to the Committee but … I guess the rationale behind that was we thought that
State Parties have that opportunity to reply to those decisions so we had thought civil
society organisations should have that same opportunity. And so we put the
[scorecards] together and we did that in partnership with a bunch of different NGOs
and other stakeholders along the reef coast.125
122 Jepson, P., (2005) Governance and accountability of environmental NGOs’ 8 Environmental Science & Policy 515. 123 Ibid., 520 124 Ibid. 125 Interview # 10. We ought not be surprised by this. The NGO phenomenon, whilst all pervasive these days in global environmental governance, is still finding its feet in transnational affairs. As Scholte writes: Most of the measures for civil society liaison are quite new and most global civil servants are inexperienced in executing them. On the whole, Transworld regulatory institutions are quite new, and most global civil servants are inexperienced in executing them.’ See Scholte, J., (2004) ‘Civil Society and Democratically Accountable Global Governance’ 39(2) Government and Opposition 211, 216.
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WWF’s pursuit of the inside track meant that it considered itself a true tripartite player, or, in
other words, that it was entitled to some form of regulatory legitimacy. WWF held the view
that the Convention was or at least should be a democratic and pluralistic playing field.
However, due to the lack of established pathways for their regulatory involvement, WWF
needed to cultivate strong working relationships with the other institutional bodies of IUCN
and UNESCO.
When asked specifically about how the relationships with IUCN and UNESCO’s World
Heritage Centre developed during this period, the participant from WWF replied:
[W]e ended up having a really good relationship with the key people in UNESCO and
IUCN. That took 18 months or even a couple of years to develop that trust and to
make sure we weren’t putting misinformation out there.126
Establishing trust with UNESCO and IUCN seemed as much about face-to-face presence as it
was about leveraging from historical relationships that WWF (and sister organisations in the
United States and Europe) had with those organisations. Consider for instance, these
comments from one of the interview participants in the study:
Interviewer: [S]o there is quite a space, at least for the big NGOs [like
WWF] to get the ear of the Committee?
Participant: Well it's kind of an established tradition for IUCN and
[groups like] WWF. For about 30 years they've been working
with governments, particularly in Europe and the Americas,
on the conservation projects. They hired people with
expertise et cetera. It's quite accepted that they are credible
partners.
Interviewer: To talk to and take information from?
126 Interview # 10.
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Participant: Well, in a lot of cases, for example under Ramsar
[Convention on Wetlands of International Importance] they
would work very closely with WWF.127
In actual fact, the working relationship between WWF (as a global conglomerate), IUCN and
UNESCO goes back several decades. There are, for instance, records of WWF’s presence at
some of the first World Heritage Committee meetings in the early 1980s.128 Russell Train,
considered one of the ‘founding fathers’ of World Heritage, had also been a Chairman of the
US branch of WWF.129 Years earlier, Train (as then also chairman of IUCN) had presented a
proposal for a ‘Trust for a World Heritage’ which he intended to submit to the next Congress
of WWF in Amsterdam.130 WWF had also contributed close to $2 million towards the
protection of World Heritage sites around the world, a sizeable amount for the day, and far
more than any other NGO had promised.131
As Bolla reflects, WWF has mobilized ‘considerable public and private resources’ in World
Heritage over the years.132 Accordingly, as Gillespie writes, UNESCO and the Committee
have increasingly ‘lavished praise’ on WWF for its ‘ground work’ on a number of natural
sites.133 In 1983, for example, WWF had worked with IUCN and the Government of Zaire to
help save the fauna of World Heritage Listed Garamba National Park, where a white
rhinoceros population was being threatened by poaching.134 In 1985, WWF funded
conservation work in the Galapagos Islands135 and, again in 1988 in Tai National Park (Cote
d'Ivoire).136 It remained one of the only NGOs protecting Virunga National Park (Zaire)
127 Interview # 5. 128 World Heritage Committee Decision CONF 009 I.1-3 (1983) < http://whc.unesco.org/en/decisions/5297/> 129 World Heritage Committee (16th Session, 1992) WHC-92/CONF.002/12 <http://whc.unesco.org/archive/repcom92.htm >, 2. 130 Batisse, M, and Bolla, G (eds), The Invention of World Heritage (Association of Former UNESCO Staff Members (AFUS) 2005), 17. 131 World Heritage Committee, (13th Session, 1989) SC-89/CONF.004/12 <http://whc.unesco.org/archive/1989/sc-89-conf004-12e.pdf> 15 132 Batisse and Bolla, above n 130, 35. 133 Gillespie, A. Protected Areas and International Environmental Law (Martinus Nijhoff, 2007), 179 134 World Heritage Committee Decision CONF 021 V.19 (7th Session, 1983) <http://whc.unesco.org/en/decisions/2864/> 135 World Heritage Committee Decision CONF 008 XIII.C (9th Session, 1985) <http://whc.unesco.org/en/decisions/3884/> 136 World Heritage Committee Decision CONF 001 X.A (12th Session, 1988) <http://whc.unesco.org/en/decisions/3661/>
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following political uncertainties in 1993.137 More recently, WWF has been active in
conservation of other sites as well, including Manas Wildlife Sanctuary in India138 (inscribed
on the In Danger List in 1992), Mount Athos in Greece,139 the Aïr-Tenere Natural Nature
Reserves (Niger),140 the Virgin Komi Forests (Russia),141 Rio Platano Biosphere Reserve
(Honduras),142 Sangay National Park (Ecuador),143 Doñana National Park (Spain),144 Three
Parallel Rivers of Yunnan Protected Areas (China),145 and working at Lorentz National Park
in Indonesia.146
The relationship between WWF, IUCN and UNESCO also extends well beyond World
Heritage. In 1980, for instance, the World Conservation Strategy was co-launched by IUCN,
WWF and UNESCO (and FAO and UNEP). WWF also enjoys international NGO partner
status under the Ramsar Convention as a consequence of its historical relationship with
IUCN.147 The three organisations have also collaborated on comprehensive wetland
management guidance material.148 In the mid-1990s, they worked together on an initiative
designed at protecting priority plants for the conservation149 and later on ‘a joint project to
promote the development of a representative network of marine protected areas (MPAs) for
the High Seas.’150
137 World Heritage Committee Decision CONF 001 VIII.2 (17th Session, 1993) <http://whc.unesco.org/en/decisions/5405/> 138 World Heritage Committee Decision CONF 003 IX (18th Session, 1994) <http://whc.unesco.org/en/decisions/3133/> 139 World Heritage Committee Decision CONF 001 VI.B (18th Session, 1994) <http://whc.unesco.org/en/decisions/5431/> 140 World Heritage Committee Decision CONF 003 IX (18th Session, 1994) <http://whc.unesco.org/en/decisions/3134/> 141 World Heritage Committee Decision CONF 203 VIII.A.1 (19th Session, 1995) <http://whc.unesco.org/en/decisions/3070/> 142 World Heritage Committee Decision CONF 204 IV.A.8 (21st Session, 1997) <http://whc.unesco.org/en/decisions/5558/> 143 World Heritage Committee Decision CONF 203 VII.5/3 (22nd Session, 1998) <http://whc.unesco.org/en/decisions/2465/> 144 World Heritage Committee Decision CONF 209 X.B.26 (23rd Session, 1999) <http://whc.unesco.org/en/decisions/2671/> 145 World Heritage Committee Decision 27 COM 8C.4 (27th Session, 2003) <http://whc.unesco.org/en/decisions/699/> 146 World Heritage Committee Decision 34 COM 7B.13 (34th Session, 2010) <http://whc.unesco.org/en/decisions/4121/> 147 Gillespie, above n 133, 287. 148 Chatterjee, A., Phillips, B., & Stroud, D.A. (2008). Wetland Management Planning. A guide for site managers. (WWF, Wetlands International, IUCN & Ramsar Convention, 2008). 149 Gillespie, above n 133, 126. 150 Gjerde K., and Breide C., (eds) Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas,15-17 January 2003, Malaga, Spain (IUCN, 2003).
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In all, WWF was able to construct a vision of itself, through its relationships, as a credible,
reliable and trustworthy inside player. In other words, it constructed its own regulatory
legitimacy to operate. It was afforded a seat at the table after some months of manoeuvring
with the World Heritage bodies and thereby enrolled itself in the processes of decision-
making. Such an approach is quite distinct from the outside ‘agitation tactic’ which we might
consider the traditional tactic of NGOs. It is to that concept we briefly turn.
6.4.2 The Outside Track: NGOs as Agitators
The language of NGOs as ‘agitators’ is not necessarily commonplace in the NGO
literature.151 Most contributors seem to use the wording of advocates or lobbyists or
campaigners to describe the role of NGOs. Less popular, it seems is the language of
regulators referred to in the previous section (with the exception of Beer et al).
Nonetheless, in a speech to Sydney University Law School in 2005, former High Court
Judge, Michael McHugh wrote of the need for agitators in society to avert the ‘the risk of
stagnation:’
The agitator succeeds by raising the consciousness of the community concerning the
issue that he or she agitates. Raising consciousness about the issue is almost
invariably a necessary condition of successful agitation. Resentment and dismissal are
ordinarily the initial reactions to the agitator's challenge. People do not like to have
their deeply held beliefs … challenged. But it is only by raising the issue – usually
again and again – that people become conscious of that issue and are forced to address
it.152
McHugh (and others) stop short of providing a definition of agitation, and hence we might
need to construct one for the purposes of this discussion. The definition is empirically based,
rather than drawn from any relevant literature:
151 There are some studies that use the term. See for example: O’Brien, T., (2009). ‘Shifting views of environmental NGOs in Spain and Romania.’ 9(1-2) Southeast European and Black Sea Studies 143. 152 The Hon Justice M H McHugh AC, ‘The Need for Agitators - the Risk of Stagnation’ Speech to Sydney University Law Society Public Forum (Sydney, 12 October 2005) full text available online < http://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-michael-mchugh>
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Agitation refers to the practices of NGOs, which contribute, in some way, to the
forces of compliance in a given governance system. Though agitators may also be
regulators (and vice versa), conceptually they seem distinct notions, with the former
concerned with the practices of lobbying, campaigning and generating public support
(including through unconventional means) and the latter concerned with alignment to
formal processes within the system.
The figure on the following page shows the distinction between NGO activities in agitation
and regulation, conceptually, as it appeared in the GBRWHA study. There is no reason, in
theory, why NGOs cannot engage in both regulation and agitation within a governance
system like World Heritage, though there is likely to be some conflict between the
relationships that NGOs attempt to establish as regulators if they have already acted as
agitators in prior circumstances. In other words, it might be easier for an organisation to go
from regulator to agitator than it would be for it to go from agitator to regulator.
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Illustration of the two types of influence NGOs exhibited throughout the GBRWHA case study. Regulation was aligned with the inside track, whilst agitation referred to the outside track.
Agitator or outsider strategies thus refer to campaigning and lobbying activities, as opposed
to the more technical and formal regulatory processes in governance. On one level, the
outsider strategies of NGOs in this study seem of far lesser importance than the claim the in
the previous section that NGOs can actually play a part in regulatory processes of World
Heritage. There is already considerable literature that discusses the outsider strategies of
NGOs and the tactics they use to exercise power over governments and states through
lobbying, advocacy and campaigning.153 Merely claiming they do so in World Heritage (as
well) seems to be of little value to the literature. Nevertheless, as noted throughout this thesis, 153 See for example the discussion in Beer et al above n 21, about NGOs as ‘advocates.’
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there are few studies on what role NGOs play in World Heritage, and those papers that do
exist tend to focus on the interest of NGOs in cultural heritage as opposed to natural
heritage.154 Similarly, there are no known studies, based on empirical work, which link the
agitation activities of NGOS to the phenomenon of compliance pull in global environmental
governance. Accordingly, a few brief points about outsider influence in ‘natural’ World
Heritage and the GBRWHA study are worth making here.
The first point to note is that the period of the study (2010-2015) represented a time in which
social media has come to dominate NGO practices. There are two aspects to this: the first is
the speed at which NGO campaigns can get off the ground and gain momentum. In past
examples of non-compliance like Kakadu in the mid-1990s, NGOs were unable to amass so
much support so quickly. Site protests may have been common, but raising funds and word of
mouth initiatives took careful planning and considerable expense at the grassroots level.
Today, however, social media allows for NGOs to engage with their member bases almost
immediately (through news feeds, twitter, Facebook etc.), and, as the case may be, raise much
needed funds for law suits,155 or create petitions within days or even hours.
The second aspect (of this point) to consider is the transnational nature of campaigning that
social media allows. The ability of NGOs like Greenpeace, WWF, AMCS and others to bring
attention to issues to other parts of the world is unprecedented. In the context of World
Heritage, it allows a global platform and considerably more pressure to be applied during the
campaign. In her recent study of NGO campaigning and the Reef, for instance, Lester noted:
The transnational is clearly an ambition for environmental campaigners… The debate
over the Great Barrier Reef provides evidence that a discursive struggle over
spectacle is taking place transnationally. Campaigners are regularly “speaking” to the
distant, attempting to invoke a transnationalized public sphere.156
154 See Chechi, above n 13, and Nafziger, above n 14. 155 Hamman, E., (2015) ‘Save the Reef! Civic Crowdfunding and Public Interest Environmental Litigation.’ 15(1) QUT Law Review 159. 156 See Lester, L., (2016) ‘Containing spectacle in the transnational public sphere’ 10(6) Environmental Communication 791, 798.
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Certainly, it seems, they have had considerable success, including, for instance, the fact that
several European banks refused to finance any projects which might have a negative impact
at the site.157
The second point to note about outsider tactics and the practices of agitation is that NGOs
found common ground on their concerns for the GBRWHA relatively easily. There were few
instances of conflict between NGOs, with most promoting a general message that the
Australian and Queensland Governments should restrict development along the Queensland
coastline and step up their funding and protection efforts of the site. This cooperation
amongst NGOs, particularly between the bigger NGOs, came as a surprise to some. As one
NGO interview participant noted:
Interviewer: has civil society had a profound effect on the management
and the ongoing management of the reef?
Participant: Yes, absolutely.
Interviewer: But there is still a long way to go?
Participant: And really they need to get it together more. But everyone is
doing the best. I really believe that.
Interviewer: So you have been quite proud of civil society?
Participant: Yes. Honestly.
Interviewer: They haven’t dropped the ball?
Participant: No, and seeing the big environmental NGOs was really
comforting…158
That said, there were some instances of conflict between the NGOs. As one of the interview
participants from WWF stated:
Interviewer: So how did that work then, because Greenpeace were also at
the Bonn meeting? I imagine they were doing their own
157 See Hamman, Evan (2016) The influence of environmental NGOs on project finance: A case study of activism, development and Australia’s Great Barrier Reef. Journal of Sustainable Finance and Investment, 6(1), pp. 51-66. 158 Interview # 3.
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lobbying through their international networks? Does that create
conflict between you guys?
Participant: No. That was absolutely fine they understood our position and
we understood there’s.
Interviewer: And the Committee got both positions?
Participant: Hmmm [yes].
Interviewer: And they were okay with that?
Participant: Yes. I mean, the Greenpeace argument, and it’s a fair
argument, is that the impacts of climate change and
development, that add to the impacts of climate change,
should be considered by the world heritage committee. So
you know if you open up dirty great big coal mines that
should be considered. And the government should be held to
account for that. Which is totally fair enough, and on a
personal level I agree. But, until the convention is changed to
reflect that, it is not an argument that is going to fly…159
The only other real point of conflict between the NGOs (and one that perhaps reflects
crossover between the agitation and regulation lines of influence) concerned whether NGOs
would have liked to see the GBRWHA listed ‘In Danger’ or not (see the discussion at section
2.3.5). There appeared to be some confusion about the terminology used by the Convention
framework and indeed what it would mean for the GBRWHA to be placed on the List of
World Heritage In Danger. Some press reports at the time considered ‘In Danger’ to equate to
‘endangered’ or even ‘delisting’ and even many of the NGOs (and probably the governments
too) knew little about what the practice actually meant. Consider these comments from one
NGO participant during the study:
I don't know about us specifically, but I think that it has definitely been used by other
groups [to gain traction] and I think what's interesting is that, I don't think people
actually understand what it would mean… I saw lot of articles about in the lead up to
UNESCO's recent decision, saying or you know, doing a bit of analysis on exactly
what it does mean and then there's other groups…that might have even been
159 Interview # 10.
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campaigning to have the reef listed … which could make things even more
confusing.160
Another NGO interview participant from the study expressed similar sentiments:
Participant: Yes okay, well there have been some conflicts around
different objectives that different organisations have, and
different sort of levels of, say, willingness to push when it
comes to reef protection.
Interviewer: In terms of what actions should be taken?
Participant: Yes in terms of what action is taken or in terms of what to ask
for… For example, whether to ask [for the Reef] to be listed
on the list of World Heritage in Danger that was a point of
contention. And also you know sort of on the lobbying side of
things when it came to the World Heritage Committee
meetings, how much to be asking for how much to
recognise that this is what we're going to get that was
quite a contested space, I think I have to say.161
The confusion around the meaning and impact of the term ‘In Danger’ may have led to
different motivations (and some conflict) between NGOs. Greenpeace for instance, had
argued for an ‘In Danger Listing’ in 2015, as had another prominent group, Environmental
Justice Australia (EJA), which had done a legal analysis of the concept.162 Greenpeace in fact
continued to assert the GBRWHA was In Danger even after the Committee decision in July
2015. On the other hand, ‘insider NGOs’ like WWF and, to a lesser extent partner
organisation AMCS refused to formally ask for the Reef to be listed In Danger, instead
focussing on what Australia was doing to keep the site off the In Danger List and meet the
Committee’s demands.
160 Interview # 1. 161 Interview # 2. 162 Earth Justice and Environmental Justice Australia (2015) ‘Protecting the Great Barrier Reef: A Legal Assessment of the World Heritage Committee’s May 2015 draft decision concerning the potential inscription of the Great Barrier Reef on the List of World Heritage in Danger.’ <https://envirojustice.org.au/major-reports/protecting-the-great-barrier-reef>
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This leads us to the third and final point of interest about outsider tactics from the study, and
that is the use of the language of World Heritage. The meanings of World Heritage have been
well-covered elsewhere in the literature.163 It seemed clear that the stakes for the GBRWHA
were sufficiently raised on Australia by the interest of UNESCO, IUCN and the World
Heritage Committee between the study years. Or, to put it another way, the pressure of
compliance pull was increasingly applied. The language and branding of ‘UNESCO World
Heritage’ were seized thus upon by agitating NGOs to create a point of leverage against both
Australian and Queensland Governments (regardless of what an In Danger Listing would
mean in practice).
Some of these outsider strategies thus relate to issues outside of the World Heritage system.
Greenpeace, for example, used the GBRWHA and UNESCO processes to talk more broadly
about the impacts of climate change and the use of fossil fuels in Australia. Its attendance at
Bonn in July 2015 was intended to highlight (in their own words) ‘the massive threat of
climate change and reckless oil and coal development’ not only to the GBRWHA in Australia
but to other sites like ‘the Golden Mountains of Altai, Virgin Komi Forests and the Natural
Complex of Wrangel Island Reserve.’164 Their concerns over fossil fuels are also reflected in
their official statement to the Committee at the Bonn meeting:
The Great Barrier Reef is in danger. I turned 30 this year and in my lifetime half of
the coral cover of the Reef has gone. Yet the Australian Government, has approved
the exploitation of the vast coal reserves of the Galilee Coal Basin, has approved rail
lines to take that coal to the Reef coast, and has approved the expansion of the Abbot
Point port to export that coal. This will mean more dredging, thousands more coal
ships through the Reef, and a dangerous amount of new coal being burnt. The
Australian government’s own experts say the greatest threat to this incredible
163 See for example, Webb, T., (2000) ‘The meanings of World Heritage: a study of environmentalists and World Heritage managers with respect to the Great Barrier Reef World Heritage Area’ (PhD Thesis, James Cook University) and also Hølleland, H., (2013) ‘Practicing World Heritage. Approaching the changing faces of the World Heritage Convention’ (PhD Thesis submitted to University of Oslo). 164 Greenpeace, Coal and Coral Don’t Mix - The Great Barrier Reef is Still in Danger’ media release July 1, 2015 < http://www.greenpeace.org/australia/en/mediacentre/media-releases/climate/Coal-and-Coral-Dont-Mix---The-Great-Barrier-Reef-is-Still-in-Danger-/>
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ecosystem is climate change. That is why eminent scientists say there is only one
option for a healthy Reef: saying no to coal.165
What we might conclude from all of this is that the practices of agitation allow for a far
broader scope of issues to be drawn upon that just the technicalities of the reporting
requirements of the Convention. The differences in NGO approaches to influence are,
however, stark, though the data from the study was insufficient to conclude whether one was
better or stronger than the other. But such a finding is not particularly interesting in terms of
the goals of this thesis. What mattered was that NGOs, in all shapes and sizes, were able to
successfully exert influence in a variety of different ways.
6.5 CONCLUSION
As Jordan point outs, ‘NGOs are widely considered to be one of the most dynamic
phenomena in international relations today.’166 Their increasing involvement in World
Heritage is certainly no exception, and this chapter has categorised their contribution to
compliance as either agitators or regulators (or both). No doubt, NGOs are acutely aware of
these different modes of influence. Consider, for example, this exchange the researcher had
with one NGO participant in the study:
Interviewer: So how does your group see itself? Do you see yourself as
part of ‘governance of the Reef’ and this idea of ‘co-
governing,’ or is it different to that? [In other words] do you
see yourself as [separate from] the normal governance
process?
Participant: I'd say [we’re] outside of it. I think there are other NGOs who
are more, sort of you know, in a ‘co-governance role’ but our
role hasn't been that. [Our role] has been really pushing those
who we see who should have responsibility.Those institutions
[and] what they should be doing to take more care of the
Reef [and] to have higher issues, [and] to do more of what
165 Greenpeace, ‘Final Statement to World Heritage Committee on the Great Barrier Reef’ (30 June 2015) <www.greenpeace.de/sites/www.greenpeace.de/files/150630_great_barrier_reef_greenpeace_statement.pdf> 166 Jordan, above n 25, 2051.
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they say they should be doing. We [seek to] highlight the
inadequacies of what they're doing.167
These comments are by and large consistent with the practices of agitation in the World
Heritage system. But this chapter has offered one of the first examples of how NGOs can
play a part in regulation as well. Regulatory activities were never clearly defined for NGOs
under the Convention framework. That they might be ‘involved’ in implementing the
Convention in some way was certainly anticipated by the original drafters (see articles 8 and
13) but in the early 1970s, few could have predicted the colossal reach and rise of NGOs and
their creative and unique approaches to exerting influence. This makes them interesting
actors to examine including questioning their tactics, legitimacy and role in exerting
influence over states and non-state actors.
Chechi had suggested that ‘NGOs are important players on the international heritage scene’
mainly for two reasons: first, they represent stances that otherwise would be unrepresented or
under-represented; and second, their function is epistemic in that their influence depends on
their expertise, advocacy and investigative capacity.’168 That is certainly true, but in this
chapter it has also been shown that NGOs are important because of the invaluable role they
can play in helping to draw states into compliance. The World Heritage bodies of the
Committee, IUCN and UNESCO increasingly relied on NGOs throughout the study period
(as regulators and agitators), to the point that it is doubtful whether they would have got the
result they did without the influence and attention of civil society.
The most interesting finding of this chapter is that the relationships and global reach of WWF
allowed them to play a part in regulation. Calling on their historical presence both within and
outside the Convention’s forty-year history, WWF were able to enrol themselves in the
regime and monitor Australia’s position via ‘the inside track’. This finding adds to what we
currently understand about the theory of regulatory enrolment (see chapter 6); previously
considered as a strategy that needed to be initiated at the hands of a central regulatory
authority. Further claims about the expansion of enrolment theory are provided in the next
chapter.
167 Interview # 2. 168 Chechi, above n 13, 460.
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Finally, it is worth noting the precedent value of WWF’s experience in regulation may be
somewhat limited. Few other NGOs are likely to be as professional and credible as WWF (as
a global brand name) in conservation issues. Moreover, there are few, if any, sites as iconic as
the GBRWHA (see chapter 4) nor any state as enthusiastic as Australia about World Heritage
(see chapter 3). In the end, these are claims which might be validated or disproved by further
empirical work with a focus on non-state actor influence in regulation and beyond.
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Major Findings and Areas for Further Research
This final chapter draws together the main arguments presented in this thesis. It also
highlights the main contributions to the literature, including expanding upon the theory of
compliance pull and developing the notion that non-state actors can be enrolled (or enrol
themselves) in World Heritage for regulatory gains. Both of these aspects have implications
for how the regime currently operates and, indeed, how it might work better in the future.
This chapter also highlights the limitations of the study into the Great Barrier Reef World
Heritage Area (GBRWHA), including the absence of an investigation into the broader array
of non-state actors such as the media, private businesses, consumers and Indigenous Peoples.
One of the major questions that remains unanswered is the extent to which the GBRWHA
(given its size and iconic status) presents an anomaly of how compliance operates and how
non-state actors might exert influence in other sites under different circumstances.
7.1 INTRODUCTION
The World Heritage Convention is one of the world’s first multilateral environmental
agreements (MEAs). It has close to universal acceptance and seeks to protect over one
thousand sites recognised for their Outstanding Universal Value (OUV). Since its inception
in the early 1970s, much of the focus of the Convention and the bodies that administer it has
been on the nomination and listing process. For natural World Heritage properties, with
which this thesis has been concerned, the Convention’s focus is pivoting towards ‘post
listing’ work around compliance and implementation.1 This thesis responded to this shift and
examined, using an empirical approach, the role and influence that non-state actors play in
promoting compliance.
1 Compliance and implementation were conceptualised in this thesis as distinct areas of scholarly interest. Refer back to the discussion in chapter 2, at section 2.4.1. See also the discussion of Weiss and Jacobson’s work in chapter 3, at section 3.5.2.
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The main contribution of this thesis has been to elaborate upon the role of non-state actors
under the Convention framework after a site has been listed. A case study of the Great Barrier
Reef World Heritage Area (GBRWHA) interrogated the presence and influence of non-state
actors, in particular, in undertaking the activities of monitoring and enforcement. Good case
studies, particularly those which are instrumental in nature, are limited in both scope and
scale allowing the data to become richer and more relevant to the research question.2 The
case study in this thesis was thus restricted to the years 2010 to 2015 and to the interactions
between the various actors during that period. The year 2010 represented the point in time in
which the World Heritage Committee first became aware of the scale of development along
the Queensland coast and its potential to impact on the OUV of the site. The end of the case
study in (July) 2015 marks the final decision of the Committee not to list the site ‘In Danger’
and its acknowledgement of Australia’s Strategic Assessment and Long Term Plan for the
site.3
The fieldwork for the case study was located primarily within an interpretivist-constructivist
intellectual frame.4 Adopting this approach allowed the researcher, as well as the participants,
to ‘co-construct’ a picture of how non-state actors contribute to compliance under the
Convention. The empirical data for the study was gathered through 12 semi-structured
interviews (plus one emailed interview) with stakeholders that included NGOs, Australian
and Queensland Government departments, and the IUCN. Further information (not available
online) was obtained from archival material either in person or by request from private
libraries such as IUCN’s Environmental Law Centre in Bonn (Germany), IUCN’s main
library in Gland (Switzerland) and the Great Barrier Reef Marine Park Authority (GBRMPA)
library in Townsville (Australia). In addition, Freedom of information (FOI) requests were
sent to GBRMPA and the Australian Government’s Department of Environment in Canberra.
The results of those requests provided further qualitative data about Australian Government
2 For a discussion of instrumental case studies, see Stake R., The Art of Case Study Research (Sage Publications, 1995) and the discussion in chapter 1 at section 1.5.2. 3 A detailed ‘Chronology of Events’ was provided in chapter 1 at section 1.6.1 to help understand the events during and leading up to this period. 4 See Creswell’s discussion of the ‘constructionist worldview’: Creswell, J., Research Design: Qualitative, Quantitative, and Mixed Methods Approaches (Sage, 2014), 8. See also the discussion in chapter 1 at section 1.5.1.
247
activity between the years 2010 and 2015. In particular, it revealed the extent and contents of
the correspondence between Australia, IUCN and UNESCO.
The results of the semi-structured interviews were transcribed, coded and analysed by the
researcher. In that analysis, an inductive reasoning process was adopted, although theory
development in this thesis was guided deductively. To help make sense of the primary
material the researcher drew on the existing World Heritage, political science, global
governance and regulatory literature. This approach allowed for the data ‘to speak for itself’
whilst at the same time giving the researcher the opportunity to link the findings with
established (and emerging) theories in the various literatures.
Thomas Franck’s theory of compliance pull was found to be particularly helpful in
conceptualising the movements and influence of the various actors in the study. The
relevance of compliance pull was discussed in chapter 2 and was used throughout the thesis
as a way of conceptualising how compliance with the Convention operates after a site has
been inscribed. Franck first developed the theory of compliance pull in seeking an answer to
the question: ‘why do states comply with international law?’5 He suggested that it is the
legitimacy of rules and processes in international law (in the eyes of the state) which pull
actors into compliance. The stronger the legitimacy of the rule, the more powerful the pull on
the state. Franck’s theory was later used by Goodwin in the context of the World Heritage
Convention, a paper which is also drawn on throughout this thesis.6
The data uncovered in this study resonated strongly with both Franck’s and Goodwin’s work.
Where this project adds to their work (see below) is that it seems not only the legitimacy of
the rules that pulls compliance (Franck), nor the coercive and executive authority of the
Committee (Goodwin), but, rather, it is the entire suite of actors, both state and non-state, that
contribute to the phenomenon. In other words, compliance pull can be deployed as something
of an ‘umbrella theory’ for how states relate and respond to both rules and actors within the
World Heritage system. States are likely to resist that pull, and the factors that create
resistance (for example, state sovereignty and economic gain) ought to be further considered
carefully in each individual case.
5 Franck, T., (1988), ‘Legitimacy in the International System’, 82, Am. J. Int’l L, 705 6 Goodwin, E., (2009) ‘The World Heritage Convention, the environment, and compliance’ 20(2) Colorado Journal of International Environmental Law and Policy, 157
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Theories from the regulatory literature, such as enrolment7 and, to a lesser extent regulatory
space8 also proved relevant to making sense, conceptually, of the behaviours and influences
of non-state actors in the case study. Engaging with those theories (though they are
descriptive and normative in their focus) helped to tease out further questions about how non-
state actors were able to become a presence and force in regulatory affairs. Chapter 5 of this
thesis, for instance, showed how IUCN were enrolled to undertake monitoring and
enforcement work under the Convention, whilst chapter 6 showed how NGOs can enrol
themselves and take part in regulatory activities (chiefly monitoring).
Engaging with regulatory theories like enrolment also had the benefit of prompting a shift in
thinking towards questions of actor legitimacy and authority to act, and hence the inclusion of
Princen and Finger’s research9 as well as Jepson’s10 in chapters 5 and 6 of this thesis. Both of
these contributions aligned with Franck and Goodwin’s work on compliance pull, and point
to the fact that, in the end, little influence can be achieved without actors constructing their
own legitimacy to act. In the case of IUCN, their statutory legitimacy under the text of the
Convention was complemented by several assets they displayed throughout the case study:
expertise, impartiality, diplomacy and professionalism (chapter 5). In the case of WWF (who
were found to act like a regulator) theirs was a legitimacy constructed through relationships
and by building trust on the inside track (chapter 6).
Finally, it should be noted that the contributions of this thesis are limited, as they are with any
thesis, by the scope of the research question and the availability of data. UNESCO’s World
Heritage Centre was approached for an interview in this study but chose not to participate,
instead pointing towards the published decisions about the Reef on the Committee’s website.
Accordingly, any conclusions (real or inferred) about how UNESCO might engage with non-
state actors in their regulatory work under the Convention ought to be read with that in mind.
One of the other major limitations is that this thesis did not explore, in any great depth, the
influence of non-state actors outside of IUCN and the NGO community: for example, the
7 See Black, J., (2003) 'Enrolling Actors in Regulatory Processes: Examples from UK Financial Services Regulation', Public Law 62 and the discussion in chapter 5 at section 5.3.1. 8 See Scott, C., (2001) ‘Analysing regulatory space: fragmented resources and institutional design’ Public Law, 283 and the discussion in chapter 4 at 4.2.1. 9 Princen, T., and Finger M., Environmental NGOs in World Politics: Linking the Local and the Global (Routledge, 1994). 10 Jepson, P., (2005) Governance and accountability of environmental NGOs’ 8 Environmental Science & Policy 515.
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media, Indigenous communities and private businesses. Those actors are becoming more
prominent in international debates and may even contribute to questions of compliance under
global governance systems. They remain actors that are under-studied and further empirical
work is needed to evaluate the extent of their role and influence.
7.2 SUMMARY OF MAJOR FINDINGS AND OVERALL ARGUMENT
This thesis has found that compliance with the Convention can be explained by the theory of
compliance pull, with a focus on the legitimacy of rules, as well as the legitimacy of the
actors involved. As the case study revealed, Australia cared deeply about the impacts of In
Danger listing on the Reef. This was largely due two reasons: first, Australia had a reputation
of excellence in World Heritage and coral reef management (see chapter 3) and therefore, it
had a lot to lose in terms of established relationships in the system. But second; the Reef is a
unique, much-loved and global icon of the World Heritage list. There are some 70,000 full
time jobs (most of them in tourism) which rely on the site, and the site contributes some $6
billion a year to the economy. Queensland’s alignment with Australia’s obligations presents
something of a messier picture (given they have no obligations under international law) and
would make for an interesting follow-up work. The phenomena of sub-state compliance with
international environmental law is something which is briefly considered below.
The ultimate conclusion of this thesis is that non-state actors have an influential role to play
in ensuring states comply with World Heritage, including through having a role in regulation
(standard setting, monitoring and enforcement). As chapter 4 highlighted, the regulatory
space of the GBRWHA is global, decentred and pluralistic. In effect, states, sub-states and
non-states compete for influence at various levels of governance. This is consistent with both
Scott’s work on regulatory spaces, and Black’s work on competition for regulatory share.11
No institution or actor wields ultimate authority in such a system: not Australia, not the
NGOs, not UNESCO and not IUCN. Even the World Heritage Committee, which Goodwin
sees as an ‘executive body’ with coercive powers,12 relies heavily on the expertise of its
advisory bodies and as the case study shows, the activities of NGOs as regulators and
agitators as well.
11 See Scott, above n 8, and Black, J., (2009) ‘Legitimacy and the Competition for Regulatory Share’ LSE Working Papers 14/09 <https://www.lse.ac.uk/collections/law/wps/WPS2009-14_Black.pdf> 12 Goodwin, above n 6.
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Franck’s idea of compliance pull is an attractive one, not the least because it implies a two-
way movement of energy. It is here that it has the greatest relevance for a regime like World
Heritage, one that is built around soft power, legitimacy, politics and persuasion. A state’s
resistance against compliance pull can be strong, even in states like Australia, but as this
thesis showed, NGOs can take advantage of the higher authority of World Heritage. For the
most part, Australia’s willingness to be pulled in the direction of compliance reflects the
influence of all the actors involved (and their legitimacy in the eyes of others), but it also
probably aligns with Australia’s penchant for a ‘rules-based order’ in international
diplomacy.13
Australia thus cared deeply about the Reef, its relationships with IUCN and UNESCO, and its
standing in the international community. The diplomatic onslaught, driven largely as it was
by Australia’s Foreign Affairs Department (DFAT) in 2014 and 2015, is certainly testament
to this. In other nation states, with decidedly less respect for such rules and organised systems
of governance we might find that compliance pull (and non-state actors) are a far less
powerful force.
7.3 CONTRIBUTIONS TO THE LITERATURE
7.3.1 Expanding the theory of compliance pull
As noted above, the theory of compliance pull provided a useful basis on which to help
understand the case study data in this research. It helped, for example, to explain how and
why Australia responded to the World Heritage Committee’s demands to produce a Strategic
Assessment and Long Term Plan for the site. Both of these initiatives (which were no small
feats in terms of bureaucratic effort) were compiled by Australia and Queensland in response
to the decision of the Committee’s decision in 2011. The fact that both the Long Term Plan
and the Assessment were considered flawed documents by a number of participants in the
study is beside the point. What is more interesting is that there was a concerted and deliberate
attempt by Australia and Queensland to comply with the Convention.
The diplomatic onslaught from Australia towards the World Heritage bodies between 2013
and 2015 was considerable and impressive. It rivalled, if not surpassed, the infamous
13 See comments in the introduction of Gyngell, A., Fear of Abandonment: Australia in the world since 1942 (Black Inc Books, 2017).
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‘Kakadu controversy’ in the late 1990s where Australian minsters and departmental staff
spent considerable time and energy avoiding Kakadu being listed In Danger (including
arguing against the recommendations of advisory bodies IUCN and ICOMOS).14 In the case
of the Reef, it was estimated the Australian Government spent close to half a million dollars
in lobbying the Committee against an In Danger Listing.15 Many thousands, if not millions
more was likely spent on research, policy, legislative amendments, plan development,
consultation and other related works at the state and federal level to ensure that the complete
picture of compliance took shape.
As it transpired, there became a point when all of this was overbearing for the NGOs
involved. As an interview participant from WWF commented:
Once the Australian Government decided to invest in lobbying and spin and all that
kind of stuff, we knew the game was up. You know, there is a point at which you just
can’t compete anymore.16
The next logical question which arises from this is: why did Australia respond in this way?
Why did it care so much about the In Danger List and its reputation in the eyes of the
international community? To answer these questions, we must return to theories about why
states obey international law in the first place. As Koh points out, this issue is one that:
vexes all subfields in international affairs, from international security to political
economy; from international business transactions to international trade; from
European Union law to international organizations.17
14 For background to the Kakadu controversy, see Maswood, S., (2000) ‘Kakadu and the Politics of World Heritage Listing’ 54(3) Australian Journal of International Affairs 357, and also Aplin, G., (2004), ‘Kakadu National Park World Heritage Site: Deconstructing the debate, 1997-2003.’ 42(2) Australian Geographical Studies 152. 15 Sydney Morning Herald (online) ‘Government spent at least $400,000 lobbying against Great Barrier Reef 'danger' listing 14 September 2015 <http://www.smh.com.au/federal-politics/political-news/government-spent-at-least-400000-lobbying-against-great-barrier-reef-danger-listing-20150914-gjlwr2.html> 16 Interview #10. 17 Koh, H., (1997) ‘Why Do Nations Obey International Law? Paper 2101, Faculty Scholarship Series. 2599, 2600.
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Though other theoretical explanations exist,18 in this thesis Franck’s theory of compliance
pull offered one of the most relevant and topical answers. As noted earlier in this thesis,
Franck had suggested that states are more likely to comply with international law ‘when they
accept its legitimacy.’19 Accordingly, international rules exert a form of pull over state actors
‘because of a perception that they have been promulgated through a legitimate, or right
process.’20 The legitimacy of a rule is thus seen as crucial to a state’s acceptance and
response to it. It is also intimately connected to the quality and character of process, rather
than any form of ‘coercive power.’21 In short, states seem to ‘obey powerless rules because
they are pulled toward compliance by considerations of legitimacy.’22
In 2009 Goodwin took Franck’s work (at least in part) and applied it to the World Heritage
Convention. Goodwin argued that the World Heritage Committee pulls compliance out of
member states through its considerable (and coercive) decision-making powers. According to
Goodwin, compliance pull is ‘created through institutional arrangements’23 and by the
devolution of ‘considerable executive powers’ to the Committee members.24 In Goodwin’s
view, the role and powers of the Committee are indeed coercive and central to driving
compliance:
the elaboration, implementation, and enforcement roles of the Committee combine to
draw states into compliance with the provisions of the treaty.25
There are two obvious points of difference between Franck’s original theory and Goodwin’s
applied work that are worth expanding on here. First, whereas Franck put the focus on the
legitimacy of the rules of an international framework (e.g. the rules of the World Heritage
system) Goodwin suggested it was the Committee, through its vast devolved powers that,
ultimately drove compliance pull. The focus on an institution rather than the underlying rules
is a fine but important distinction to make. The second point is that Franck considered
compliance pull to operate in the absence of coercive power, whereas Goodwin’s core
18 For an overview of the various theories, see Sloss, D., (2006) Do International Norms Influence State Behaviour?, 38 Geo. Wash. Int'l L. Rev.159. 19 See chapter 2, section 2.4.4 amd Koh, above n 17, 2659. 20 Ibid., 2622 21 Franck, T, The Power of Legitimacy Among Nations (Oxford University Press, 1990), 26. 22 Koh, above n 17, 2602. 23 Goodwin, above n 6, 157. 24 Ibid., 196. 25 Ibid., 197.
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argument is that World Heritage does have coercive mechanisms which play a part (like
Reactive Monitoring Missions, the In Danger List, and deleting properties from the World
Heritage List altogether).26
The first of these two points is the more interesting to build on in terms of the findings in this
thesis. The focus on the behaviour of actors (and in particular non-state actors) in this thesis
has given rise to the suggestion that it is the legitimacy of all actors, in addition to the rules
themselves, that is the key reason for why countries like Australia might seek to comply.
Compliance pull seems a broader phenomenon than just how states view the rules of the
game (Franck), and broader still than just their relationship with the central actor (Goodwin).
On the contrary, compliance pull has real value as a basis for examining the entire suite of
rules and actors associated with World Heritage and how they interact with one another in
terms of questions of compliance.
Expanding compliance pull in this way offers World Heritage researchers a base for non-
doctrinal enquiries and even undertaking a systems approach to the issues including teasing
out the real meaning, complexities and ‘non-linear impact’ of concepts like legitimacy,
influence, authority, and compliance.27 More specifically, such an expansion to the theory
also allows researchers to investigate how non-state actors contribute to World Heritage
compliance and what form of influence their contribution takes (e.g. regulation or agitation).
As Martin and Craig point out, all of this is necessary if we are to create non-doctrinal lines
of enquiry that ‘go beyond instrument design and the actions of legal agencies.’28 In short, we
need conceptual bases which help to explore the full gamut of stakeholders (state and non-
state) involved in implementing and applying international environmental law.
26 Goodwin, above n 6, 191. 27 Systems thinking attempts to ‘accommodate as much complexity as possible….[it] proceeds by identifying systems, discovering their goals or attributing goals to them, mapping their subsystems and the functions each performs, determining their internal structures, depicting them with attention paid to efficiency of presentation, and searching for internal inconsistencies.’ See LoPucki, L., (1997) Systems Approach to Law, 82 Cornell L. Rev. 479, 481. For the discussion of ‘non-linear impact’ see Martin, P., ‘Climate Change, complexity, agriculture and challenged governance.’ In Angelo M and Du Plessis, A., (eds) Research Handbook on Climate Change and Agricultural Law (Edward Elgar, 2017) 77. 28 Martin, P., and Craig, D., (2015), 'Accelerating the evolution of environmental law through continuous learning from applied experience' in Martin, P and Kennedy., A (eds), Implementing Environmental Law (Edward Elgar, 2015).
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Another point of expansion to compliance pull theory is to suggest that compliance pull can
in fact operate at multiple levels. In Australia’s case, for instance, it was a phenomenon
which firstly existed between the Committee and Australia (as Goodwin had theorised); but
secondly, it also existed between Australia and Queensland. In other words, Australia pulled
Queensland towards compliance with its own World Heritage obligations under international
law. Unsurprisingly, both Queensland and Australia resisted the pull on the basis of their own
claims to sovereignty (which as chapter 2 pointed out, remain strong in the World Heritage
regime).
The existence of a multi-level compliance pull relationship, not simply between the
Committee and the state, but between the Australian Government (the state) and the
Queensland Government (the ‘sub-state’) is interesting to reflect upon. After questioning, for
instance, why a state might comply with international law, we are left with the trickier issue
of why a sub-state, with no legal personality or responsibilities under international law, and
few if any diplomatic relations with other states, might allow itself to be pulled in the
direction of international law. Surprisingly, much of the literature on international law is
silent on this point. There is some emerging discussion about the contribution of sub-national
actors to climate governance (and the UNFCCC framework)29 but much of this can be
explained by the desire of businesses to create and engage with emissions trading schemes
and other market-based mechanisms which aren’t being constructed or applied at a national
level (despite the desire at a sub-state level).30
In the context of the case study, one possible explanation for Queensland’s adherence to
Australia’s position was offered by a participant from the Queensland Government:
The motives for the active responses of both [Australian and Queensland]
governments are pretty much the same. Negative international assessments of GBR
management carry significant reputational and economic risks and neither
government wants to be responsible for the destruction of the Reef.31
29 See Setzer’s work, for example: Setzer, J., (2015) Testing the boundaries of subnational diplomacy: the international climate action of local and regional governments. 4(2) Transnational Environmental Law 319. 30 Sub-national schemes exist in California. China also recently experimented with several pilot schemes and now has a national scheme up and running. 31 Interview participant # 11.
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Another interview participant suggested it may be down to the historical relationship
Australia and Queensland shared since the Intergovernmental Agreement was signed in 1979
(‘The Emerald Agreement’):
In short, my answer would be because of the Intergovernmental Agreement [between
Queensland and Australia] ... but also the history of how the GBR has been jointly
managed since the Emerald Agreement...along with today's widespread recognition
that GBR issues don't start or stop at the World Heritage boundary. There may well be
a few more political reasons than that... but I think the Intergovernmental Agreement
would be a sufficient reason in itself.32
Alternatively, consider this exchange with a senior official from the Australian Government’s
Department of Environment and Energy:
Interviewer: [so] why, during the case study period, [did Queensland
respond] as zealously as they did to do their part of the
strategic assessment and get wrapped up in the World
Heritage framework when they’ve got no obligation at all? Is
it just a ‘team Australia’ thing? Because then they also went
along to the World Heritage meetings…
Participant: Yes it is a team Australia thing, because, in its biggest
framing, it’s our Great Barrier Reef and it is Queensland’s
and Australia’s and the world’s. It’s everybody’s Great
Barrier Reef. The Queensland government, they have a lot on
the line when it comes to the Reef. It’s a very very significant
natural asset and it’s an equally significant economic asset
that drives a reasonable chunk of the Queensland economy.
On Deloitte’s worka few years ago, it’s the best part of 70,000
jobs and $5.2 billion of income every year flowing
predominantly into Queensland from the reef and all of the
activity associated with it. You’ve got a commercial fishing
industry which is dependent on it, it’s also a critical
thoroughfare for moving goods in and out of Queensland. So
32 Interview participant # 6.
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Queensland’s well-being is fundamentally tied up in the well-
being of the Reef. So they have got an interest.
Interviewer: But, in the World Heritage system? By extending that way of
thinking… they also would then care, seriously, about
whether an In Danger listing would affect all those things you
just mentioned? And [by the way] I did put this question to
them…
Participant: Yes. They have a direct and vested interest in it.
Economically and reputationally.33
The variances in these responses suggest there is no simple answer to this question, and nor
should we expect there to be. As ‘the state’ of Australia is an abstract concept, and does not
represent or speak with a concerted voice, similarly the sub-state of Queensland is mixture of
different viewpoints, most political, some irrational but always shifting. Herein lies a problem
with assuming that states (and by extension, sub-states) might behave consistently according
to a rational approach.34 Questions of sub-state compliance with international norms thus
seem (at present anyway) more empirical than they are theoretical.
In any event, a sub-state’s susceptibility to compliance pull in World Heritage (and indeed in
other MEAs) is worthy of further investigation, particularly regarding the factors that drive
resistance to the phenomenon. On the question of mining and coastal development, for
example, )(as noted in the ‘chronology of events’ in chapter 1) it was the Queensland
Government’s actions in approving the Curtis Island LNG development, which alerted
UNESCO and the Committee in the first place. Those developments are still going ahead.
Further, there are few signs that that fossil fuel development is slowing down in Queensland,
most recently with the Queensland Premier visiting India to lobby for further coal investment
(almost all of which will be shipped through the GBRWHA).35 These actions suggested
Queensland might be willing to comply with Australia’s World Heritage obligations ‘to a
point’, though further tensions are likely to increase in the future.
33 Interview # 12. 34 This might conflict with some of the arguments in Guzman, A., How International Law Works: A Rational Choice Theory (Oxford University Press, 2008). 35 ABC News (online) ‘Adani min shown support by Queensland Premier in India’ 18 March 2017 <http://www.abc.net.au/news/2017-03-18/adani-mine-support-shown-by-qld-premier-mayors-in-india/8366126>
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Whatever the reason for Queensland’s alignment with Australia’s obligations, the
contribution by non-state actors to the compliance pull phenomenon (at both levels) seems
significant. IUCN, for instance, as the formal advisory body for natural World Heritage sites,
was formally enrolled to exert regulatory influence over Australia in the form of undertaking
a Reactive Monitoring Mission (in March 2012) and the co-drafting of World Heritage
Committee decisions between 2010 and 2015 (which they routinely undertake with
UNESCO). On the other hand, NGOs who were initially outside the regulatory process, like
WWF, were able to enrol themselves in the regime, carefully crafting a relationship of trust
and reliability (via the ‘inside track’) with the institutions of IUCN, UNESCO and the
Committee members.
Of somewhat lesser relevance to this discussion (simply because NGO lobbying strategies
have been studied comprehensively elsewhere36) is how Greenpeace, and some of the smaller
NGOs positioned themselves on ‘the outside track’ to create a climate of concern and
uncertainty around World Heritage bodies decisions. Rather than engage in the processes of
regulation, these NGOs provided external and international pressure on Australia; in effect,
reminding them there were significant ramifications should they not act in a way the
international community might expect. That expectation was that Australia would comply
with the rules of the World Heritage game. Outsider NGOs might thus be described as
‘agitators’ in World Heritage decision-making. We might consider their role as peripheral
(but nevertheless still present) in the broader operation of compliance pull during the study.
One final point to note was that there was a considerable ‘time factor’ at play over the study
period. The compliance pull phenomenon effectively escalated over the period 2010-2015.
The possibility of an In-Danger Listing became the tool by which the World Heritage bodies
and the NGOs gradually pulled Australia (who in turn pulled Queensland) in the direction of
compliance. As Thomas Franck pointed out in his original writings on compliance pull, the
legitimacy of the rules of an international system ‘cannot [simply] be purchased on demand’
but rather, ‘[it] must necessarily have developed naturally over protracted periods of time.’37
36 See some of the literature mentioned in Arts, B., The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions, (International Books, 1998) and Betsill, M., and Corell. E., NGO Diplomacy: The Influence of Nongovernmental Organisations in International Environmental Negotiations (MIT Press, 2008). 37 Franck, above n 21, 25.
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By a similar token, the motion of compliance pull under the World Heritage Convention
(with an expanded focus on the legitimacy of both rules and actors) must necessarily be built
up and developed over time. As discussed in chapter 3, Australia’s relationship with the
Convention and the bodies that administer it has taken some forty years to emerge. Likewise,
as noted in chapter 6, WWF’s relationship with IUCN and UNESCO took some 18 months to
mature to a stage where they were trusted to play a regulatory role over Australia. Sitting
behind that period was a far deeper relationship between WWF (as a global conglomerate)
UNESCO and the IUCN dating back to the 1960s.
The extended picture of compliance pull, as it appeared to operate in the case study is
illustrated on the following page.
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The above graphic illustrates how compliance pull operated in the case study. The first point
to note is the movement of energy represented by the arrows in the centre of the picture. The
‘pull’ exists in the direction of the Committee (as Goodwin had theorised). There are
‘resistors’ to this movement that are represented by the downward arrows which largely
reflect the state (and sub-state’s) claims to sovereignty. The contribution of non-state actors
to compliance pull is presented in the circles to the left and right of the picture. IUCN and the
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World Heritage Centre are formally enrolled to regulate. On the other hand, NGOs like WWF
were able to enrol themselves by constructing a legitimacy to use the inside track. Other
NGOs, however, were considered uninterested in regulation, instead exerting pressure
through publicly campaigning and lobbying both Queensland and Australia as ‘agitators’ (see
chapter 6).
7.3.2 Enrolling non-state actors in global environmental governance
The second major contribution this thesis makes to the literature relates to the theories of
polycentric regulation (as opposed to ‘participation’) in global environmental governance. In
short, this thesis offers a new way of thinking about how enrolment works in international
environmental governance. There are two aspects to this argument: first, that non-state actors
have the capacity to enrol themselves in regulation where a more formal invitation to do so is
neither forthcoming nor made particularly clear; and second, a broader point, that enrolment
theory has just as much relevance to the analysis and thinking around governance systems at
the global level, as it does at the domestic.
Before turning to expand on these arguments, let us briefly recap what enrolment theory
actually is. Enrolment theory (or the theory of regulatory enrolment) is essentially a strategy
which aims to engage non-state actors in regulatory activities such as standard-setting,
monitoring, and enforcement. Professional bodies such as accountants can be enrolled ‘as
gatekeepers,’38 so too financial institutions,39 employee organisations,40 employers, and even
the general public.41 The presence of non-state actors in regulation (via the inside track) has
the potential to be more cooperative, focussed, hands on, and outcome-driven than their
involvement in consultation, participation or even lobbying (via the outside track). For state
institutions, enrolment provides access to a wider range of resources and expertise in
regulation, and can (at least in theory) provide a higher level of independence and legitimacy
to the entire regulatory system.
38 Coffee, J., Gatekeepers, The Professions and Corporate Governance (Oxford University Press, 2006). 39 Black, above n 7. 40 Hardy, T., (2014) ‘Friend or foe? The regulatory enrolment of non-state actors in the enforcement of minimum employment standards in Australia’ (Thesis submitted to University of Melbourne). 41 Govind, P., (2007) ‘The Role of the Public as a Regulatory Actor in the Context of Climate Change Regulation’ 4(2) Macquarie Journal of International and Comparative Environmental Law 61.
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Now, returning to the ways in which this thesis advances the theory of enrolment the first
suggestion is that non-state actors who are not formally invited toengage in regulation, can
nonetheless enrol themselves. By using the inside track as WWF did throughout the study
(see chapter 6) NGOs are able to influence decision-making through behaviours which are
consistent with the practices of regulation. In order to enrol themselves (which is the crucial
question) it seems they must lay claim to an increased form of legitimacy in the eyes of the
other regulators (but not necessarily the regulatees). Self-enrolment, it seems, can be
achieved by an organisation’s historical presence within a regime or by virtue of some skill or
resource that the other regulators currently lack.
In the case of WWF and the GBRWHA study, it was both. No other group was providing (or
had the capacity to provide) up to date, third party information on Australia’s evolving
compliance with the Committee’s demands for a Long Term Plan and Strategic Assessment
during the period. Moreover, as many of the interview participants in this study noted, IUCN,
and UNESCO are financially distressed organisations which oversee numerous World
Heritage sites (in UNESCO’s case over a thousand) and have few if any further resources to
commit to double checking the responses from states. NGOs like WWF who enrol
themselves can thus provide considerable value to the practices of regulation as ‘third party’
monitors of state behaviour.
All that said, the circumstances of enrolment (and self-enrolment) are likely to differ from
case to case and a non-state actor’s claims to legitimacy will need further thinking. In the
case of IUCN, for instance, they are statutorily entitled to act as an enrolled actor, as
specified under the Convention framework. This gives them an immediate form of what some
might refer to as statutory legitimacy within the regime.42 WWF on the other hand, an NGO
with no formal recognition as a technical advisory body, has no automatic claim to such
legitimacy. Their legitimacy in the eyes of other decision-makers must therefore be
constructed or ‘earned’ from the circumstances; something which they did by building a
reliable and trustworthy presence on the inside track. It was irrelevant that Australia saw
42 See Jepson, above n 10, and also Lister, S., (2003) ‘NGO Legitimacy Technical Issue or Social Construct?’ 23(2) Critique of Anthropology 175.
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WWF’s role as illegitimate or as scaremongering. In fact, it probably served to make the
claims of WWF all the more legitimate in the eyes of the other regulatory actors.
But moving on from the idea of self-enrolment, the second major point about enrolment
theory is that it has application to the global level and not just domestic areas of governance.
Hitherto, enrolment has been thought of as states enrolling non-states in domestic regulatory
affairs (principally financial regulation and labour standards). Black does note that non-states
may then enrol other non-states in their affairs (a form of sub-enrolment),43 but the flow of
the strategy seems very much to be driven from the state towards the non-state. This all
makes sense at the domestic level, where there are relatively clear lines between the state and
the non-state. At the international level, however, the vernacular and presence of multiple
parties (state, quasi-state, non-state, sub-state etc.) becomes tangled. A simple application of
enrolment theory thus becomes more confusing when applied global platforms, but as this
thesis has argued, it is no less relevant to helping understand how and why global systems
work as they do. The following short discussion is an attempt to unravel that complexity and
expand upon the relevance of enrolment theory at the global scale.
Many global governance systems, like World Heritage, are by their very nature decentralised
and pluralistic spaces. Importantly, they are often also ‘regulatory spaces’, in the sense that
they explicitly provide for the practices of regulation to occur (standard setting, monitoring
and enforcement). States and intergovernmental bodies are central players in these spaces,
there is little doubt about that, but so too, as this thesis has shown, are hybrid international
organisations (like IUCN and ICOMOS) and NGOs (like WWF and Greenpeace). All groups,
it seems, have a potential part to play in the practices of regulation at the international level.
Black might refer to this as the ‘competition for regulatory share.’44
The point is that the theory of regulatory enrolment can be used, not just to explain that those
actors exist (this is old news), but to carefully examine their various roles in the setting of
standards and/or how they go about monitoring and enforcing them. The strength of a theory
like enrolment at the global level lies not in its ability to differentiate between the state and
non-state (or even sub-state) in terms of regulatory activities, but in its ability to focus in on
43 See Black, above n 11. 44 Ibid.
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the specific behaviours of all the actors involved, from NGOs, to states, to intergovernmental
bodies, to the media, to Indigenous Communities and even the public. The significance of
this is that it allows us to see non-state actor influence as more than just participation, but as a
very real and tangible part of how the goals of international regimes might be better achieved,
including, in particular, around the questions of compliance.
What makes the contribution of enrolment at the global level all the more interesting is that
we can conceive international instruments to be, in effect, regulatory spaces (which they
often are) and continue to find new ways to analyse the various actors from an institutional
perspective. The theory of enrolment thus provides a novel and exciting lens in which to
deploy these notions at that international level. It also allows us to break down the
increasingly irrelevant distinction between the state and non-state and focus on new clusters
of actors (like the sub-state) and most importantly, their legitimacy and authority in the
practices of behaviour control (which regulation is really all about).
In summary, there are two important arguments this thesis makes about enrolment theory
which may be relevant for future studies. The first is that non-state actors have a significant
and very real role to play in regulation at the international level, not just in the domestic
sphere. Long before theories like enrolment were being considered, the World Heritage
Convention, as one of the first environmental treaties, outsourced a regulatory role to expert
non-state actors like the IUCN. State parties, having consented to the Convention, thus saw
their as legitimate and valuable (and perhaps non-threatening). Enrolment thus provides a
unique way of considering non-state actor involvement in regulation at the global level as
well as the domestic. The second insight that this thesis has generated, in terms of enrolment
theory, is that non-state actors can enrol themselves in regulatory regimes. Where NGOs, for
example, are left off the formal regulatory list of invitees (or indeed ‘dis-enrolled’ at some
point), they can nonetheless manoeuvre and marshal their resources to exert regulatory
influence in other ways. Both of these arguments have significance for how we might view
compliance with international instruments, and perhaps most importantly, how they might be
better designed.
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7.3.3 The inside track and non-state actor regulation
The third and final contribution of this study to the literature concerns the relationship
between theories of polycentric regulation (that is, regulation involving non-state actors) and
the tactic of NGOs positioning themselves on the ‘inside track’. These two notions emerge
from quite distinct corners of the literature. The concept of enrolment for instance, focuses on
the specific behaviour of non-state actors in regulatory activities. On the other hand, the
theory of the inside track (and outside track), is more at home in the political science and
international relations literature.45
It follows that the two notions of insider tactics and regulatory enrolment have not been
drawn together in the literature in a way we might hope or expect them to. The inside track,
for instance, contains little reference or acknowledgement of the regulatory notions of
enrolment or responsive regulation (including tripartism), nor the idea that by taking the
inside track, NGOs might actually be engaging in regulatory behaviour. By a similar token,
regulatory scholars focus more on theorising about the need for (and legitimacy of) decentred
regulation, than on how non-state actors might more effectively gain access to regulatory
influence. The argument here is that the two notions are more closely aligned than the
literature reveals. Whereas decentred regulation provides a normative blueprint for how
regulation can work more effectively, the inside track can be used to theorise about the tactics
that non-state actors might use to exert regulatory influence. 46
Chapter 6 of this thesis, for example, showed how WWF positioned itself on the inside track
of the World Heritage Convention, engaging closely with UNESCO, IUCN and the
individual delegates of the Committee. Building those relationships over time allowed WWF
to play a regulatory role (principally in monitoring) alongside the likes of IUCN and
UNESCO’s World Heritage Centre. Thus it was the inside track, that is the strategy of closely
aligning with institutions, procedures and rules, that allowed WWF to exert regulatory
influence. Though they still exhibited some tendencies to use the outside track (engaging in
45 See Böhmelt, T., Bernauer, T., & Koubi, V. (2015), ‘The marginal impact of ENGOs in different types of democratic systems. 7(1) European Political Science Review 93. as well as Betsill, M., ‘Transnational actors in international environmental politics,’ in Betsill, M., K. Hochstetler, K., and Stevis D., (eds.) Advances in International Environmental Politics (Palgrave Macmillan, 2006). 46 See Fisher, T., and Galli J.F., ‘Civil Society’ in Bäckstrand, K., Eva Lövbrand E., (eds) Research Handbook on Climate Governance (Edward Elgar, 2009), 299.
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social media campaigns for instance), WWF’s willingness to engage with the technicalities of
the Convention and to expend significant resources (in travelling to and from Paris), meant it
was able to enrol itself in the Convention processes.
We might theorise from all of this that by pursuing the inside track in World Heritage, NGOs
are in a better position to exert regulatory influence. Moreover, their actions and activities can
be seen as more legitimate, reliable and constructive by the players within the regime.
Accordingly, theories of inside track might be used by regulatory scholars to describe how
non-state actors can enrol themselves in regulatory activities where a defined or set role in
regulation is not apparent from the outset. Similarly, enrolment theory can be used by
political science commentators to observe how the inside track can lead to positions of
regulatory influence in governance systems. There is thus a closer relationship between the
political science and regulatory literature than we might think. This has positive implications
for how non-state actors like NGOs might better attempt or strategize their role in regulatory
activities at the international (or even domestic) level.
Finally, a practical suggestion, the institutional bodies of the Convention might do well to
consider setting clearer parameters for a fuller ‘third party’ involvement of NGOs in their
regulatory processes. Key questions for such an initiative are likely to include:
o What role or roles are NGOs best suited to in terms of World Heritage
regulation (monitoring seems the most obvious)?
o How can NGOs be attracted or incentivised, at the international level, to
undertake an effective role in regulation?
o How can NGOs be kept ‘at arm’s length’ in such activities given their
membership of existing institutional bodies like IUCN and ICOMOS?
o How can issues of NGO transparency, legitimacy and accountability be best
addressed in the current climate of World Heritage politics?
These are all serious questions for UNESCO, IUCN and ICOMOS currently suffering from
chronic under-funding and considerable monitoring workloads. They are, however, issues
that go to the heart of the World Heritage system. In other words, they concern the question
of ‘independent resourcing.’ Consider, for example, these comments from one interview
participant in the case study:
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What we do need though is better resourcing of the World Heritage Centre, and better
resourcing of many of the State parties, and many of the managing agencies looking
at these things. That’s what I think we need in terms of addressing the real issues...
And, later in the same interview:
Interviewer: [So] both of the advisory bodies are fine then, there’s no
problems with the advisory bodies [and their work as
regulators]?
Participant: No, a lot of people are critical of them but I think if you look at what
they do and how they do it, and what they have to do it with, they both
do a pretty good job.
Interviewer: So that part of the system seems to work reasonably well?
Participant: I think it does. Also keep in mind that IUCN and ICOMOS only make
recommendations. They’re only advisory bodies and they don’t tell the
Committee what to do, only advise. At the end of the day the
Committee makes [the] decision.47
In terms of how to enrol NGOs for regulatory gains, something like an accredited register of
regulatory agencies might work, though that decision-making process is likely to become
politicised and manipulated at the hands of the states (i.e. it needs the approval of the
Committee). On the other hand, perhaps IUCN and ICOMOS could establish an internal
register, though their powers under the Convention are increasingly being stymied. Changing
the constitutional text and structure of World Heritage is possible, but unlikely, though a
glimmer of hope is offered through articles 8 and 13 of the treaty.48 Outside of that, raising
additional funds for regulatory work is another option, but global conservation finance is a
competitive ballgame (and World Heritage is down the list).
In the end, the arguments in this thesis suggest both UNESCO and IUCN would do well to
consider how they could better (and more formally) enrol NGOs like WWF in the current
regime (not just call on them through their existing networks). The argument here is that
NGOs could play not simply a role in mere ‘participation’ or ‘consultation’ under the
Convention, but a more powerful and authoritative role as collaborative regulatory agencies
47 Interview # 6. 48 See the discussion about the enrolment of NGOs under articles 8 and 13 in chapter 5 at 5.3.2.
267
or even ‘competitive’ ones. Such a move, though radical, would ‘lighten the load’ on the
advisory bodies and likely add a greater degree of democracy and legitimacy to the struggling
regime. Conceptually, all this might be achieved as Julia Black suggests, by non-state actors
sub-enrolling other non-state actors (with appropriate expertise and capabilities) in their
regulatory endeavours.49 Of course, further thinking needs to be done around these issues.
7.4 LIMITATIONS OF THE STUDY AND AREAS FOR FURTHER RESEARCH
7.4.1 A broader consideration of non-state actors in World Heritage
One of the main limitations of this thesis is that it did not consider, at least in a
comprehensive way, the full suite of non-state actors present (or capable of being present) in
World Heritage governance. If we revisit Bas Arts list of non-state actors (chapter 4, section
4.3.3) we can see that not all of these groups were considered in any detail in this research
project. There were two reasons for this. The first was mainly due to time and resource
restrictions, but the second was because the interview data did not suggest that they were
major non-state players in securing compliance under the regime.
That said, throughout the study it became apparent that certain non-state actors, particularly
the NGOs, used or partnered with the media (particularly social media) and to a lesser extent,
epistemic communities such as university institutions. Exploring the impact and practices of
those partnerships between non-state actors, in the form of coalitions or cooperatives, would
thus make an interesting case study against the backdrop of regulatory theory. As
Yanacopolous argues, coalitions and cooperatives are becoming more prominent in the ways
NGOs seek to influence international affairs.50 Their collaborations (and conflicts) would
make for interesting reading, particularly in terms of how they attempt to collaborate to enrol
themselves in the regime (a further expansion to enrolment theory, and one already being
considered by the literature).51
Moreover, the involvement of corporations, for instance, the project finance industry, might
also have proved prevalent to the idea of drawing Australia into compliance. Richardson, for
49 Black, above n 11. 50 Yanacopulos, H., (2005) ‘The strategies that bind: NGO coalitions and their influence.’ 5(1) Global Networks 93. 51 See for instance the work of Black (above n 11) which talks about non-state regulators enrolling other non-state regulators in their work.
268
instance, has argued that the finance industry can and should be enlisted in environmental
governance through the practices of socially responsible investment (SRI).52 Indeed, it has
been argued elsewhere that NGOs have exercised considerable influence over the project
finance industry, forcing them to withdraw from projects which might be seen as damaging to
the Reef and its World Heritage values.53
Other actors not studied but which may have been, included representatives from Indigenous,
fishing, mining and tourism industries and the part that they played in pulling compliance out
of Australia over the study period. Of particular interest would be the study of conflict and
collaboration between the various actors, including for example, whether these actors aligned
their position with the NGOs and the reasons therein. Finally, future research might consider
the influence of (domestic) epistemic stakeholders on the regulatory processes of World
Heritage, including the regulatory presence (for example in setting standards) of groups like
the Australian Institute of Marine Science (AIMS) and ARC Centre of Excellence for Coral
Reef Studies at James Cook University. From the outside, these institutions appear to be
active in informing debate and shaping decisions around GBRWHA governance, particularly
at a domestic level in Australia.
7.4.2 The need for more ‘comparative studies’ on compliance
The final point to note, and one which was raised by many interview participants, is that the
GBRWHA might prove something of an anomaly in the way that World Heritage compliance
operates. As highlighted in chapter 4, the Reef is the world’s largest coral ecosystem, it
covers an extraordinary 2300km along the Queensland coast, making it the third largest
World Heritage site on the planet, behind Phoenix Islands Protected Area (Kiribati) and
Papahānaumokuākea (Hawaiian Islands). It is also one the most iconic World Heritage sites
on the list, alongside the Taj Mahal (India), and the Grand Canyon (United States).
On the one hand, the iconic nature of the Reef was one of the main factors that allowed the
Committee and the various non-state actors identified in this study to help pull compliance
out of Australia. On the other hand, it may also present a reason why we are unlikely to see
52 See Richardson B (2002) ‘Enlisting Institutional Investors in Environmental Regulation: Some Comparative and Theoretical Perspectives’ 28 NCJ Int'l L. & Com. Reg. 28. 53 See Hamman, E., (2016) ‘The influence of environmental NGOs on project finance: a case study of activism, development and Australia’s Great Barrier Reef.’ 6(1) Journal of Sustainable Finance & Investment 51.
269
anything quite like the diplomatic and public pressure that was apparent throughout the study
period. The only other comparative study, in terms of the visibility of the compliance pull
phenomenon in natural sites, might be Kakadu from the 1990s, but there are a few points of
difference there. First, the activities of NGOs in the Kakadu example like The Wilderness
Society were predominantly confined to advocacy and agitation (not regulation). There were
far few NGOs involved, and social media as a platform for activism was certainly not the
powerhouse it has emerged to be in the last decade. But second, the fate of Kakadu was
mainly concerned with one localised project (a uranium mine). In the GBRWHA study, there
were a multitude of factors at play across a far greater area including climate change, mining,
agriculture, port development, fishing, tourism, etc.
The only way to accurately conclude one or another (about whether the GBRWHA study is
an outlier) is to undertake further empirical work on the compliance pull of the Convention at
other sites around the world. The presence or otherwise of domestic NGOs would be
interesting to note, as well as their possible role in regulation and agitation and whether they
initially drove issues of monitoring and enforcement or simply responded to international
pressure driven initially by the likes of UNESCO and IUCN. By a similar token, comparisons
between cultural and mixed sites would be welcome endeavours to test the different ways in
which IUCN, and its sister organisations ICOMOS and ICCROM responded or reacted to
regulatory challenges. Cultural or mixed sites also allow the researcher to consider more fully
the perspective of Indigenous interests in World Heritage, an area, as Meskell points out, has
historically been a blight on the Convention’s record.54
7.5 CONCLUSION
This thesis has adopted a methodical and targeted approach to understanding how non-state
actors help promote compliance with the World Heritage Convention. On the topic of World
Heritage, more generally, there is considerable literature emerging around the value of the
‘brand’ of [UNESCO] World Heritage. Much of this has focussed on the question of what a
World Heritage listing might mean for the tourism industry.55 To a lesser extent, scholars
54 Meskell, L., (2013) ‘UNESCO and the Fate of the World Heritage Indigenous Peoples Council of Experts (WHIPCOE)’ 20 International Journal of Cultural Property 155. 55 See for example, Ryan, J., and Sari Silvanto, S., (2009) ‘The World Heritage List: The making and management of a brand.’ 5(4) Place Branding and Public Diplomacy 290; Poria, Y., Reichel, A., Cohen, R., (2011) ‘World Heritage Site-Is It an Effective Brand Name? A Case Study of a Religious Heritage Site’ 50(5)
270
have given their attention to issues around democracy, politics and legitimacy of the
Convention,56 the implications of climate change on World Heritage sites,57 and, in Australia,
the influence of legislation58 and Australia’s history of litigation.59 Moreover, researchers
from disciplines like heritage, anthropology, archaeology, international relations and history
have considered the meaning and relevance of World Heritage within emerging heritage
discourses – including what heritage is and who owns it.60 Indeed, these contributions have
been some of the most comprehensive and interesting accounts of how the World Heritage
regime currently operates (and what needs to be done to improve it).
The contribution of this thesis has been to draw on regulatory theory(s) to help better
understand the ways in which non-state actors promote compliance with World Heritage
obligations. Theories like enrolment and regulatory space analysis were used inductively in
this thesis to prompt further discussion into the important concepts of legitimacy and
authority of non-state actors. Perhaps what’s most interesting about the relevance of these
theories is that they seem to have just as much application to global governance as they do in
domestic structures. This was unexpected given most of the research on regulatory theory has
focussed on domestic systems of regulation in particular financial regulation and employment
conditions.
Journal of Travel Research, 482; and Giorgio, R., and Paolo Figini, P., (2017) ‘The Puzzle of Tourism Demand at Destinations Hosting UNESCO World Heritage Sites: An Analysis of Tourism Flows for Italy.’ 56(4) Journal of Travel Research 521. 56 See Affolder, N, (2007) ‘Democratising or Demonising the World Heritage Convention?’ 38(2) Victoria University of Wellington Law Review 341. See also the criticism of the regime in Keough, E, (2011) ‘Heritage in Peril: A Critique of UNESCO's World Heritage Program,’ 10 Wash. U. GlobalStud. L. Rev. 593; and the challenges identified in Meskell, L, (2013) ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’, 54(4) Current Anthropology, 483. 57 See Huggins, A., (2007) Protecting World Heritage sites from the adverse impacts of climate change: obligations for States Parties to the World Heritage Convention. 14 Australian International Law Journal 121 and Shearing, S (2008) ‘Here today, gone tomorrow?: climate change and world heritage’, 12(2), Australasian Journal of Natural Resources Law and Policy, 170. 58 Peel, J, (1998) ‘Heritage of Humankind A Call for Reform of World Heritage Protection and Management in Australia’ 14 Queensland University of Technology Law Journal 220. 59 See for example: Richardson, B., (1990) ‘Australian Practice Pursuant to the World Heritage Convention’ Articles & Book Chapters. 2228 <http://digitalcommons.osgoode.yorku.ca/scholarly_works/2228>; and Boer, B, (1992) ‘World Heritage Disputes in Australia’ 7, University of Oregon Journal of Environmental Law and Litigation, 247. 60 See the arguments concerning an authorised heritage discourse in Smith, L., Uses of Heritage, (Routledge, 2006) and also the political aspects of expertise in heritage in Lixinski, L, (2013) ‘International Cultural Heritage Regimes, International Law and the Politics of Expertise’ 20(4) International Journal of Cultural Property, 407.
271
Nonetheless, given the array of non-state actors across almost all areas of global governance,
there is certainly scope to explore other international instruments, in addition to World
Heritage, by using theories such as enrolment. From the international law literature, Thomas
Franck’s theory of compliance pull proved beneficial and helped to explain the umbrella
concept of compliance. In short, compliance pull and enrolment worked well together to
explain the forces that exist and the actors that contributed to them.
In the end, we are left with a question of whether the GBRWHA study may ultimately prove
something of an anomaly in terms of making sense of how and why states comply with
World Heritage. Consider, for instance, this exchange with a senior official from the
Department of Environment and Energy:
Participant: …the reality is that the Great Barrier Reef is one of the most
iconic places on the List and it is everybody’s Great Barrier
Reef. It’s not just Australia’s Great Barrier Reef. It’s a very
large property, it’s a complex set of ecosystems, it’s not just
the Reef, it’s the mangroves along coast, it’s the sea grasses,
it’s a whole different set of ecosystems. And it’s a big thing.
And it is costly to manage…
Interviewer: So we probably never will see a response like we saw
between that period [2010-2015] again in relation to another
site because of this? Because of the complexity of the issues?
Participant: The complexity and scale of it is unparalleled.61
In the absence of further empirical and comparative studies, it is indeed difficult to address
the question of whether this case study is anomaly or not. One thing is for certain, however,
there is still much to be studied about World Heritage, and in particular how states, non-states
and sub-states behave and interact following the inscription of a site. Those stories, told best
by the actors who have lived them, are likely to reveal the real success of the Convention in
the years to come. The discipline of law, or to borrow a broader term, regulation, is uniquely
placed to contribute to this space. For those who seek to take up the challenge, it is advisable,
if not obligatory, to savour the lessons and insights from other disciplines such as
international relations, philosophy, anthropology and history. Only then can we begin, in an
61 Interview # 12.
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incremental and methodical way, to understand how systems of governance really work and
propose new and creative measures for solving some of the world’s most pressing issues.
273
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