VIII.32 Kathmandu Valley (Nepal)
The Committee recalled that it had repeatedly expressed concern for this site and repeatedly deferred inscription on the List of World Heritage in Danger since 1992. The Committee recalled that it had decided again to defer decision on in-danger listing at its twenty-third session, pending a report from a High Level Mission that the Committee decided to send to Kathmandu in 2000 for consultations with representatives of His Majesty's Government of Nepal. This mission, headed by the Chairperson of the World Heritage Committee, Mr Abdelaziz Touri, would also transmit the Committee's concerns and try to convince the Nepalese authorities of the merits of in-danger listing. This mission took place from 24 to 29 September 2000. The High Level Mission was well received by the State Party and met high level authorities including His Majesty the King and the Prime Minister of Nepal.
The Director of the World Heritage Centre presented the conclusive findings and final considerations of the Report of the High Level Mission to Kathmandu Valley (23-30 September 2000), WHC-2000/CONF.204/INF.17. The Director informed the Committee that no new plans had been put forth by the Nepalese authorities to redress the persistent and continued deterioration of the materials, structures, ornamental features, and overall architectural coherence in most Monument Zones. He drew the attention of the Committee to the state of conservation of the site, highlighting the fact that in general, publicly owned historic monuments were in good condition, but the problem lay in the urban fabric within the Monument Zones. Thus, essential and authentic urban fabric had been severely altered to the point that in a number of Monument Zones, the changes were irreversible.
The Committee was informed of the continuing commitment of His Majesty's Government of Nepal to protect the seven Monument Zones composing the site. The Director reported that the authorities had emphasised the difficulties in imposing international standards in the conservation of privately-owned historic buildings without substantial subsidy and technical support. The Director informed the Committee, however, that the mission was unable to convince the representatives of His Majesty's Government of Nepal on the constructive aims of the system of in-danger listing, notably to mobilise the support of policy makers at the highest level and international donors. In light of this, the High Level Mission concluded that the deterioration of the historic urban fabric will persist, irreversibly damaging the vernacular architecture surrounding the public monuments, and consequently destroying the World Heritage values of this unique and universally significant site. The problem was compounded by the lack of technical capacity and the population pressures giving rise to encroachment from the periphery to the Monument Zones. As a result of this, the Bureau at its twenty-fourth extraordinary session, transmitted the recommendations presented in WHC-2000/CONF.204/4 to the Committee.
The Committee examined the state of conservation of the Kathmandu Valley and the discussion of the Bureau. The Committee also took note of the two information documents tabled on 27 November 2000, WHC-2000/CONF.204/INF.21 (Updated progress report on the implementation of the 55 Recommendations for Enhanced Management of Kathmandu Valley and Time-Bound Action Plan for Corrective Measures, submitted by His Majesty's Government of Nepal on 22 November 2000) and WHC-2000/CONF.204/INF.22 (Conclusions of Mr. Henrik Lilius, Vice-President of the World Heritage Committee and ICOMOS Representative during the High Level Mission to Kathmandu Valley).
The former Chairperson, Mr Abdelaziz Touri, who headed the High Level Mission, noted that the serious state of conservation of Kathmandu Valley had been examined at 20 sessions of the Committee and Bureau since 1992. The situation was indeed grave. However, he informed the Committee that the Bureau had formulated a recommendation for the Committee's consideration at its twenty-fourth extraordinary session, which allowed two more years for the Nepalese authorities to further implement the 1998 UNESCO-ICOMOS-HMG of Nepal Joint Mission's 55 Recommendations for Enhanced Management and Time-Bound Action Plan for Corrective Measures adopted by the State Party.
The Committee, recalling that it had deferred the inscription of Kathmandu Valley on the List of World Heritage in Danger numerous times, expressed its disappointment that the State Party was not convinced of the constructive objectives of the List of World Heritage in Danger, as a mechanism for strengthening further political commitment and mobilizing international technical cooperation and greater awareness at both national and international levels.
During the ensuing debate, discussions focused on the objectives of the Convention and international cooperation. The Committee underlined the need to ensure the credibility of the World Heritage Convention, its Committee and the World Heritage List, while effectively implementing the mechanisms provided under the Convention and appropriately assisting States Parties in safeguarding the World Heritage properties, especially when both ascertained threats faced sites inscribed on the World Heritage List. Most members of the Committee agreed that it would be desirable to define procedures for examining cases such as Kathmandu Valley, where certain values or components justifying World Heritage inscription have been irreversibly lost.
The question of whether or not consent by a State Party was necessary for inscribing a property on the List World Heritage in Danger was debated at length, especially in relation to the interpretation of Articles 11.3 and 11.4 of the Convention. Some delegates and the Observer of Nepal felt that the Committee was not empowered to inscribe a property on the List of World Heritage in Danger without the consent of the concerned State Party and without the request for assistance by the State Party. However, other members of the Committee and Observers stressed that Article 11.4 allowed the Committee to inscribe a property on the List of World Heritage in Danger without the consent of the State Party concerned, although it was preferable to have the State Party's consent in advance.
The Delegate of Belgium underlined the crucial importance of clarifying this point. Recalling the obligation of UNESCO to provide legal advice to Members of the Committee when requested, the Delegate of Belgium formally requested legal advice concerning this question on behalf of his Government.
At the invitation of the Chairperson, the UNESCO Legal Adviser pointed out that this subject was quite controversial. It had most recently been debated at the Canterbury International Expert Meeting on the Revision of the Operational Guidelines where the experts had recommended that legal advice be sought on the matter. The Legal Adviser had been informed that certain States Parties in fact had obtained legal advice from eminent jurists on this question, and that these jurists apparently had provided legal opinions that were widely divergent.
The Committee was reminded that the UNESCO Legal Adviser had no authority to provide any definitive interpretations of the terms of the Convention. Under international law it was only the States Parties as a whole who could make definitive interpretations of the terms of their Convention. In his view, there were various options available to the States Parties. They could:
a) exchange copies of the expert legal opinions which they had obtained or would obtain, with a view to reaching a consensus as to which legal arguments were the most persuasive,
b) agree to have the matter decided simply by a vote of the General Assembly of States Parties, or
c) agree to have the matter arbitrated by some competent legal body such as the World Court at the Hague.
The Legal Advisor concluded by indicating that while he was not in a position to give a spontaneous opinion on this matter without the benefit of appropriate research, especially on the relevant preparatory work preceding the adoption of the Convention, he remained at the disposal of the States Parties to provide, in due course, any further advice or opinions as may be considered useful.
The Delegate of Belgium, expressed regret that the UNESCO Legal Advisor would limit himself to mentioning general principles concerning the interpretation of the World Heritage Convention. He requested that the UNESCO Legal Advisor would clearly declare whether, in his opinion, prior consent of the Government concerned is or is not necessary and that his advice would be transmitted to all States Parties to the Convention through the World Heritage Centre early enough for the question to be discussed during the forthcoming Meeting for the Revision of the Operational Guidelines to be organized by the Secretariat or at the next Bureau or Committee session. The Delegate of Belgium underlined that the advice and view of the UNESCO Legal Advisor could only be an interpretation and would not provide a definitive answer to the issue in question. Finally, the Delegate of Belgium stressed that should the view of the UNESCO Legal Advisor and those of international legal experts in various States Parties be divergent and States Parties do not reach an agreement on the interpretation of Article 11 of the Convention, this question must be submitted to the International Court of Justice of the Hague or arbitrated by another competent legal body.
The Committee decided to consider the issue of the inscription of properties on the List of World Heritage in Danger in a broader context, in order to develop appropriate criteria and procedure for the Committee to evaluate situations such as Kathmandu Valley. To this end, the Committee accepted the offer by the Government of Morocco to host a meeting on this issue, and decided to consider developing a draft agenda and allocation of funds for the organisation of this meeting, within the context of the revision of the Operational Guidelines.
The Committee expressed its appreciation to Nepal for the continued efforts to enhance the management and conservation of the Kathmandu Valley World Heritage site. The Committee reiterated its deepest concern for the state of conservation of Kathmandu Valley, where urban encroachment and alteration of the historic fabric in most of the seven Monument Zones composing the site have significantly threatened its integrity and authenticity.
The Committee requested the State Party to produce a new structured framework for monitoring all corrective measures by the State Party, to be reviewed by the Committee within the context of the Asia-Pacific Regional Periodic Reporting exercise in 2002. In the interim, the State Party was requested to submit a progress report for consideration by the Committee at its twenty-fifth session in 2001. The Committee further recommended that other States Parties be engaged in the conservation and monitoring effort by providing technical and financial assistance to the concerned authorities of His Majesty's Government of Nepal. In this regard, the Committee decided to consider reserving an appropriation within the 2001 International Assistance budget, to finance specific time-bound activities related to the protection of the urban fabric within the World Heritage site.
The Observer of Nepal expressed to the Committee his Government's appreciation for the favourable response to requests for technical and financial assistance which the Committee and UNESCO have been providing for Kathmandu Valley since the 1970s. He recalled the great pride of the Nepalese citizens in 1979 when the site was inscribed on the UNESCO World Heritage List, but informed the Committee that they were unaware, until 1992, of the World Heritage conservation standards, hence the errors made. The Observer reiterated the Government's strong commitment to ensure the implementation of the 16 Recommendations of the 1993 Joint Mission, the 55 Recommendations and Time-Bound Action Plan resulting from the 1998 Joint Mission, and requested that the Bureau provide the Government of Nepal sufficient time to redress the situation and defer decision on in-danger listing until 2004.
The Committee finally decided to adopt the Bureau's recommendations including the acceptance of the invitation extended by the Government of Morocco.