Locus Standi Before the International Court of Justice for Violations of the World Heritage Convention Sebastián A. Green Martínez Abstract The Convention concerning the Protection of the World Cultural and Natural Heritage of 1972 (hereinafter the ‘World Heritage Convention’) obliges State parties to protect world heritage for future generations. However, if a State party fails to comply with such obligations, there is no dispute settlement mechanism expressly identified in the Convention. Additionally, the destruction of world heritage sites has taken place on several occasions, being the most recent example the destruction seen in Timbuktu, Mali. In the seminal Barcelona Traction case, the International Court of Justice (hereinafter the ‘ICJ’) held that there are obligations under international law which are erga omnes. By definition, all States have an interest in asserting claims for violations of obligations erga omnes. It has been consistently stated that obligations under the World Heritage Convention are erga omnes partes. The ICJ has never granted its jurisdiction solely on the basis of obligations erga omnes. However, the ICJ has recently applied an innovative criterion by deciding that State parties to a treaty which contains obligations of such a character (or erga omnes partes), have standing to invoke the responsibility of other State parties for alleged breaches of such obligations. The purpose of this article is to analyze, first, the character of the obligation to protect world cultural and natural heritage under the World Heritage Convention; second, the evolution of the case law of the ICJ regarding obligations erga omnes and erga omnes partes; and third, the adequacy of current international law and the possibility of successfully bringing claims before the ICJ for violations to the World Heritage Convention. The article aims at proving that the ICJ, in light of its most recent case law, may consider that all State parties can have standing for any violation of the Convention. Introduction  Counsel at Treasury Attorney General Office of the Argentine Republic (Procuración del Tesoro de la Nación), Department of International Disputes and Affairs. Junior lecturer of Public International Law, University of Buenos Aires Law School. This paper was produced as part of my activities within the research project DCT1210 "¿Más allá del ius in bello? La regulación de los conflictos armados en la historia del ius gentium y los límites del DIH como régimen autónomo frente a las otras ramas de un Derecho Internacional Público 'Fragmentado'", supervised by Dr. Emiliano Buis and Mag. Natalia Luterstein at the University of Buenos Aires Law School. The author thanks Ms. Agostina Cichero, Dr. Emiliano Buis, Mag. Natalia Luterstein and Messrs. Marcos Kotlik, Brian Frenkel and Nahuel Maisley for their comments and observations, and Professor Deborah Skorupski for her rigorous linguistic review of this article. The opinions expressed are those of the author, and do not necessarily represent the opinion of the Treasury Attorney General Office of the Argentine Republic. 1 The Nubian Monuments are located in Egypt’s upper-Nile region, and they include 30 foothigh statues of Ramses II at Abu Simbel. In 1960, these monuments were almost submerged 60 meters under water because of the construction of the Aswan High Dam. 1 It was largely due to the cooperation of other States that the Nubian Monuments were saved.2 Shortly thereafter, in 1966, there were floods in Venice and Florence, which destroyed several paintings, frescoes and sculptures.3 Because of these events, States began to discuss the idea of international aid and assistance to endangered heritage sites and the need for an international convention. As Robert Meyer pointed out, one of the reasons underpinning such a convention was to ‘recognize the general sentiment and concern on the part of the peoples of the world that certain cultural sites and natural areas “of outstanding universal value” belong to mankind as a whole’ and that ‘(u)nless urgent measures are taken to recognize, protect, preserve, rehabilitate and present this heritage, it will be lost forever.’4 As a result of this concern, at the 17th General Conference of UNESCO in October 1972, the Convention concerning the Protection of the World Cultural and Natural Heritage (hereinafter the ‘World Heritage Convention’) was adopted.5 The Convention entered into force on 17 December 1975. Today, 190 States are Parties to the Convention - Singapore being the last one to ratify it in June 2012. The World Heritage Convention obliges State parties to identify, protect, conserve, present and transmit cultural heritage to future generations.6 Despite the duties established by the World Heritage Convention, considerable destruction of world cultural heritage has since taken place on several occasions, with two of the most prominent being the attack on Dubrovnik, Croatia, in 1991,7 and the destruction of the Buddhas of Bamiyan, Afghanistan, in 2001.8 Additionally, the recent destruction of Timbuktu, Mali, has motivated, inter alia, the United Nations Security Council under Chapter VII of the United Nations Charter to establish the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA). 9 In light of such instances of destruction of world cultural heritage, it is important to mention that no dispute settlement mechanism is foreseen in the Convention nor is the jurisdiction of any international tribunal specified for this particular purpose. In addition, no State has ever been found internationally responsible for destruction under the World Heritage Convention. In this vein, scholars have affirmed that, since a breach of any of the Robert Meyer, ‘Travaux Preparatoires for the UNESCO World Heritage Convention’ (1976) 2 Earth Law Journal 45, 45. 2 Kanchana Wangkeo, ‘Monumental Challenges: The Lawfulness of destroying Cultural Heritage During Peacetime’ (2003) 28 Yale Journal of International Law 183, 211. 3 Francesco Francioni, ‘Preamble’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press 2008) 13. 4 Meyer (n 1) 46. 5 Convention concerning the Protection of the World Cultural and Natural Heritage (WHC), 16 November 1972, in force 17 December 1975, 1037 UNTS 151. The vote was 75 in favour, one against and 17 abstentions. For more details on the negotiations of the World Heritage Convention, see Meyer (n 1) 47. 6 WHC (n 5) Art. 4. 7 The facts of the attack are detailed in International Criminal Tribunal for the Former Yugoslavia (hereinafter ‘ICTY’) Case No. IT-01-42-A, Prosecutor v. Pavle Strugar, Appeals Chamber Judgment of 17 July 2008. 8 See Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14(4) European Journal of International Law 619. 9 UN Doc. S/RES/2039 (2013). 1 2 duties and obligations under the World Heritage Convention incites no legal penalty, sanction or remedy under the Convention itself, it would be a misnomer even to call them such.10 However, as Professor Craig Forrest points out, international law may still provide a solution since customary international law principles of State responsibility are still applicable.11 This article aims at analyzing the adequacy of current international law rules and the potential admissibility of claims based on violations of the World Heritage Convention before the International Court of Justice (hereinafter, the ‘ICJ’). To this end, after addressing jurisdiction and admissibility before the ICJ, this article examines and critically assesses the evolution of the case law of the ICJ regarding erga omnes and erga omnes partes obligations. The character of such obligations under the World Heritage Convention will be scrutinized. Finally, it concludes that the obligation to protect world heritage sites under Article 4 of the World Heritage Convention could be taken as an obligation erga omnes partes and that, consequently, all States Parties to the Convention would be entitled to submit claims for its violation before the ICJ, assuming the parties accept its jurisdiction. 1. Jurisdiction and Admissibility Before the ICJ Before addressing the question as to whether obligations under the World Heritage Convention are erga omnes or erga omnes partes, this article examines the key issues of jurisdiction and admissibility before the ICJ to clarify the content of these concepts and their boundaries. In fact, these concepts are often confused. For instance, in the Northern Cameroons Case, the Court observed that ‘During the course of the oral hearing little distinction if any was made by the Parties themselves between "jurisdiction" and "admissibility".’12 1.1 Jurisdiction The ICJ has consistently analyzed the issue of jurisdiction before examining the admissibility of a case.13 Otherwise, as warned by Judge Lauterpacht, the Court may assume jurisdiction implicitly and, hence, affect any future case connected to such proceedings.14 Under international law, jurisdiction has a consensual basis which means that the ICJ (or any international court or tribunal) cannot rule on a dispute between States if they have not previously accepted its jurisdiction. If they have, then it must also be 10 Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press 2006) 70. Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 278. 12 Case concerning the Northern Cameroons (Cameroon v United Kingdom) Preliminary Objections, Judgment of 2 December 1963 ICJ Reports 1963 15, 27. 13 Interhandel Case (Switzerland v. United States of America) Preliminary Objections, Judgment of 21 March 1959 ICJ Reports I959 6, 23/24; See also Case Concerning the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, para 64. 14 Interhandel Case (Switzerland v. United States of America) Preliminary Objections, Judgment of 21 March 1959 (dissenting opinion of Judge Lauterpacht) ICJ Reports I959 95, 95. 11 3 proven that the States' acceptance did not limit it in any of the four dimensions of jurisdiction (ratione temporis, ratione loci, ratione personae or ratione materiae).15 On that point, the World Heritage Convention does not express any willingness of the State Parties to accept the jurisdiction of the ICJ regarding related disputes. However, the ICJ Statute foresees other ways of accepting its jurisdiction, such as via special agreements16 or optional clause declarations.17 Consequently, the jurisdiction of the ICJ may still be accepted by State Parties to the World Heritage Convention for disputes related to it. 1.2 Admissibility If objections to jurisdiction are not successful, the ICJ will usually proceed to rule on the admissibility of the claims.18 Inadmissibility of a claim may be declared on such bases as the inexistence of a dispute,19 the exhaustion of local remedies20 or procedural issues such as litispendence.21 Within the scope of admissibility falls the issue of locus standi, or standing before the Court.22 Standing (locus standi) is defined as ‘the requirement that a State seeking to enforce the law establishes a sufficient link between itself and the legal rule that forms the subject matter of the enforcement action.’23 That sufficient link is the existence of an interest in the matter. However, the requirement of a mere interest would be futile since, as affirmed by Judge Morelli, ‘(e)ach State is the judge of its own interest.’24 Therefore, not every interest provides individual States with standing, rather only those interests with ‘juridical expression and clothed in legal form,’25 i.e., legal interests. In this vein, the ICJ affirmed, in its classic dictum of the Barcelona Traction case, that all States can be held to have a legal interest in the observance of obligations erga omnes.26 In its Wall Advisory Opinion, the ICJ confirmed that it is for all States to see that a 15 Abaclat and Others v. Argentine Republic, ICSID Case No ARB/07/5 (formerly Giovanna Beccara and Others v. The Argentine Republic) Decision on Jurisdiction and Admissibility of 28 October 2011 (Georges Abi-Saab Dissenting Opinion) paras 11-13. 16 Statute of the International Court of Justice, Art. 36.1. 17 Ibid. Art. 36.2. 18 Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 457. 19 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 19 January 2009 ICJ Reports 2009 3, para 21. 20 Interhandel Case (n 13) 24. 21 Case Concerning Certain German Interests in Polish Upper Silesia, PCIJ, Ser. A, Judgment No. 6 of 25 August 1925 4, 19-20. 22 Brownlie (n 18) 449-459. 23 Christian Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005) 26. 24 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) Preliminary Objections, Judgment of 21 December 1962 (dissenting opinion of Judge Morelli) ICJ Reports 1962 564, 570. 25 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) Second Phase, Judgment of 18 July 1966, ICJ Reports 1966 6, para 51. 26 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment of 5 February 1970, ICJ Reports 1970 3 para 33. 4 breach of any erga omnes obligation is brought to an end.27 Finally, by recently granting locus standi to Belgium in the case Concerning the Obligation to Prosecute or Extradite on the basis of it being a State Party to the Convention Against Torture (which, according to the ICJ, contains obligations erga omnes partes), the Court may have rendered its most conclusive decision on the matter. Consequently, it could be presumed that all States may be granted locus standi before the ICJ in the case of a breach of such obligations, but is the obligation to protect world heritage under the World Heritage Convention an obligation erga omnes or erga omnes partes? 2. Obligations Erga Omnes, Erga Omnes Partes and the World Heritage Convention Erga omnes obligations are obligations owed by States towards the community of states as a whole. Erga omnes partes obligations are obligations owed to a group of states. This section aims at clarifying the meaning and differences of these different concepts as well as addressing the question as to whether obligations under the World Heritage Convention are obligations erga omnes or obligations erga omnes partes, if any. The traditional concept of erga omnes obligations was not related to enforcement. Even in the case law of the ICJ, it was recognized in different contexts,28 such as the opposability of treaties and UN Resolutions to justify their application to third States,29 and to exclude the territorial applicability of such obligations.30 In the present article, only references to enforceability will be examined. 2.1 Obligations Erga Omnes and Erga Omnes Partes Obligations erga omnes and obligations erga omnes partes have different components and should not be considered a single concept. Professor Christian Tams, who has developed a detailed structural analysis of erga omnes obligations, points out that the focus should be on two elements:31 their legal source and their interest or importance.32 27 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 136 para 159; See also Giorgio Gaja, ‘Do States Have a Duty to Ensure Compliance With Obligations Erga Omnes by Other States?’ in Maurizio Ragazzi (ed) International Responsibility Today: Essays in Memory of Oscar Schachter (Martinus Nijhoff 2005) 33. 28 Tams (n 23) 115. 29 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 16 para 126 (holding that ‘As to non-member States, although not bound by Articles 24 and 25 of the Charter, they have been called upon in paragraphs 2 and 5 of resolution 276 (1970) [...] the termination of the Mandate and the declaration of the illegality of South Africa's presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation...’). 30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v Yugoslavia) Preliminary Objections, Judgment of 11 July 1996 ICJ Reports 1996 596, para 31 (holding that ‘...the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.’) 31 Tams (n 23) 119-128. 5 2.1.1 Obligations Erga Omnes In the previously mentioned ICJ dictum in Barcelona Traction, the Court affirmed that: ‘an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State [...] By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.’33 In light of this holding, the structure of erga omnes obligations is composed of two main elements: 1) their importance; and 2) the fact that they derive from general international law. First, the Court considers that obligations erga omnes are those specific obligations under international law which are owed to the international community as a whole because of their importance. This was not only affirmed by the Court in Barcelona Traction, but it was implicitly reiterated by the ICJ in other cases by pointing out the existence of erga omnes obligations and, simultaneously, pointing out their importance.34 Second, the ICJ clearly stated that all States can have a legal interest and that the related obligation is owed to the international community as a whole. Consequently, it is necessarily implied that erga omnes obligations derive from general international law. Otherwise, the ICJ would have been expressly granting rights to third States. Such a provision, as established in the Vienna Convention on the Law of Treaties, is exceptional35 and depends on the intention of the State Parties.36 We may preliminarily conclude on this point that obligations erga omnes are those obligations derived from general or customary international law which, because of their importance, may be enforced by any member of the international community, including by submitting claims before the ICJ.37 2.1.2 Obligations Erga Omnes Partes There are two differences between obligations erga omnes and erga omnes partes. First, there is a difference in the conditions under which such status is acquired. The status of obligations erga omnes is likely to depend on the importance of specific obligations. Contrastingly, obligations erga omnes partes rely on a generalized legal interest that is For a different position, see Maurizio Ragazzi, ‘International Obligations Erga Omnes: Their Moral Foundation and Criteria of Identification in Light of Two Japanese Contributions’ in Guy Goodwin-Gill and Stefan Talmon (eds) The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford University Press 1999). 33 Barcelona Traction (n 26) para 33. 34 Wall Advisory Opinion (n 27) paras 155-159; Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, ICJ Reports 1995 90 para 29. 35 Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331, Art. 34. 36 Ibid. Art. 36. 37 See Tams (n 23) 126. 32 6 usually recognized in specific treaties. Obligations erga omnes partes derive, in principle, from treaty-based law and not from general international law. The judgment of the International Criminal Tribunal for the Former Yugoslavia (the ‘ICTY’) in the Blaskic case38 illustrates this concept well. In that case, not only did the ICTY analyze the status of obligations contained in Article 29 of its Statute regarding cooperation and judicial assistance of State Parties,39 but it also held that the text of Security Council Resolution 827 expresses a general legal interest on behalf of all State parties in the functioning of the Tribunal.40 In that vein, the ICTY stated that obligations regarding cooperation and judicial assistance were erga omnes partes.41 Second, and this is perhaps the most remarkable difference, obligations erga omnes partes represent a legal interest which belongs only to a determined group of States, and not to the international community as a whole. Scholars have repeatedly stated that obligations contained in one specific treaty do not literally exist erga omnes, but only towards the contracting parties.42 While commenting the Wall Advisory Opinion, Professor James Crawford observed that: ‘(t)he scope of the consequences is correspondingly different— those flowing from the breach of self-determination relate not only to all States but also to the United Nations and its organs as part of the international community. Violations of the humanitarian norms, on the other hand, apparently entail consequences only for the other States parties to the Geneva Conventions.’43 Scholars have affirmed the existence of erga omnes obligations under the World Heritage Convention (i.e. treaty-law).44 However, such an assertion may not explain how all States would have a legal interest in its observance, as there are States that are not parties to the 38 ICTY Case No. IT-95-14 Prosecutor v Tihomir Blaskic, Judgment of 29 October 1997 on the Request of The Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 paras 26-27. 39 ICTY Statute, Article 29 (stating that ‘1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal.’) 40 Tams (n 23) 129. 41 Blaskic (n 38) para 26. 42 Giorgio Gaja, ‘Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts’ in Antonio Cassese, Marina Spinedi and Joseph Weiler (eds), International Crimes of States (De Gruyter 1988) 152; Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 386. 43 James Crawford, ‘Responsibility for Breaches of Communitarian Norms: an Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 233. 44 Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Order of 18 July 2011 (Separate opinion of Judge Cançado Trindade) ICJ para 93; Francioni and Lenzerini (n 8) 634. 7 Convention and to whom such obligations are not owed. Moreover, it could be argued that some elements of, if not the entire, World Heritage Convention may have become a customary rule of international law (and, consequently, general international law) but, in that case, the source of erga omnes obligations would be custom, and not the treaty. Consequently, erga omnes partes obligations are duties of States established via treaty which enshrine a common legal interest of the treaty's Parties. If any of those erga omnes partes obligations were breached, all State Parties (and not exclusively the specially affected State) would bear a legal interest and be entitled to submit judicial claims based on such breaches. Now, it is important to analyze the position of the ICJ in light of its recent decision on the questions relating to the Obligation to Prosecute or Extradite case. In the case between Belgium and Senegal, Belgium had asked the Court about the compliance of Senegal with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, regarding its obligation to prosecute or extradite Mr. Hissène Habré (former President of Chad), for the purposes of criminal proceedings. Senegal alleged that Belgium's claims where inadmissible, and that Belgium was not entitled to invoke the international responsibility of Senegal since none of the alleged victims were nationals of that State. Belgium replied that ‘every State party, irrespective of the nationality of the victims, is entitled to claim performance of the obligation concerned, and, therefore, can invoke the responsibility resulting from the failure to perform’ and that it had a ‘special interest’.45 The Court analyzed the preamble of the Convention and, recalling its Advisory Opinion regarding Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,46 concluded that there was a common interest under the Convention and that it: ‘implie(d) the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes...’47 Even though the Court had already taken into consideration the existence of shared legal interests as the raison d'être of treaties, that was in the context of its advisory jurisdiction48 and it did not consider the issue of locus standi in that instance. In Belgium v. Senegal, for the first time in its history, the ICJ expressly acknowledged that the breach of obligations erga omnes partes grants States parties locus standi to submit claims and invoke the responsibility of another State party without a special interest, for the sake of the shared legal interest expressed in the convention. 45 Belgium v. Senegal Case (n 13) para 65. Reservations to the Convention on Genocide, Advisory Opinion ICJ Reports 1951 15, 23. 47 Belgium v. Senegal Case (n 13) para 69. 48 Genocide Advisory Opinion (n 46) 21. 46 8 2.2 Obligations under Article 4 of the World Heritage Convention The aim of the World Heritage Convention is to ‘recognize the general sentiment and concern on the part of the peoples of the world that certain cultural sites and natural areas “of outstanding universal value” belong to mankind as a whole’.49 According to some authors, a new principle has emerged according to which ‘parts of cultural heritage of international relevance are to be protected as the common heritage of humanity.’50 In fact, the Convention's preamble states, inter alia, that: ‘the deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world ... parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole... and it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value.’51 This preambular language expresses the existence of a shared interest between the parties to this treaty. Even though the World Heritage Convention references a universal interest in the preservation of world cultural heritage, the Convention’s use of the term ‘international community’ is, under international law, expressly restricted to the States Parties to the Convention.52 Having said that, there is a clear legal interest shared by State Parties expressed in the Preamble to the World Heritage Convention, that is: the protection of cultural and natural heritage of outstanding universal value. That legal interest is enshrined in the duties recognized under Article 4 of the World Heritage Convention, which establishes that ‘[e]ach State Party to this Convention recognizes that 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.’53 In light of the above description of obligations erga omnes partes, it can be affirmed that the duties imposed in Article 4 of the Convention fulfil the necessary requirements: they are derived from a treaty and are based on a shared interest that belongs to a determined community of States. It can therefore be concluded that obligations contained in Article 4 of the World Heritage Convention are erga omnes partes.54 49 Meyer (n 1) 46. Francesco Francioni, ‘Beyond State Sovereign: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25 Michigan Journal of International Law 1209, 1214. 51 WHC (n 5) Preamble. 52 Forrest (n 11) 245. 53 WHC (n 5) Art. 4. 54 See also Roger O'Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53(1) ICLQ 189, 190 and Gionata Buzzini and Luigi Condorelli, ‘Article 11’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press 2008) 178; For a sceptical position, see Guido Carducci, ‘Articles 4-7’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press 2008) 141-143. 50 9 Conclusions Some scholars deem that it would be a misnomer to the World Heritage Convention as establishing real duties and obligations because the Convention itself provides no legal penalty, sanction or remedy for their breach.55 However, that is not entirely true for several reasons. Even though the World Heritage Convention does not allocate jurisdiction to any specific tribunal for disputes arising under its terms, States may still accept the jurisdiction of the ICJ or another international tribunal for this purpose. Additionally, the obligation to protect cultural heritage under Article 4 of the World Heritage Convention could be taken as an obligation erga omnes partes. Accordingly, all States Parties to the Convention would be entitled to submit claims for the violation of such a duty to the ICJ, assuming the parties accept its jurisdiction. Finally, no special interest would be required. In words of the ICJ, ‘[i]f a special interest were required for that purpose, in many cases no State would be in the position to make such a claim.’56 Consequently, all State Parties are in a position to enforce observance of the obligations under Article 4 of the World Heritage Convention. 55 56 Boer and Wiffen (n 10) 70. Belgium v. Senegal Case (n 13) para 69. 10