Malkhanova E.V., Ditsevich Y.B. — Problems of Legal Support for the Protection of World Natural Heritage Sites // International Law. – 2022. – № 4. – P. 1 - 11. DOI: 10.25136/2644-5514.2022.4.38713 EDN: FKSFKC URL: https://en.nbpublish.com/library_read_article.php?id=38713
Problems of Legal Support for the Protection of World Natural Heritage Sites
Abstract: The article is devoted to the relevance of improving the legal foundations of conservation and the need to popularize World Natural Heritage sites. The key problems of legislative regulation of their protection are analyzed in a comparative context with the legal model of protection of cultural heritage objects. Based on an analytical study of legislation on environmental protection and cultural heritage objects, conclusions are drawn about the impossibility of classifying Lake Baikal and its tributaries as specially protected water bodies and especially valuable cultural heritage objects. This puts the unique ecological value of the lake included in the World Natural Heritage list in an unequal position with other, including less valuable introductory objects located in specially protected natural areas. The described situation in the field of protection of Lake Baikal is typical for the vast majority of all natural objects included in the World Natural Heritage List. The absence of a separate legal regulation of this sphere indicates the insufficiency of a purposeful domestic policy regarding the preservation of World Natural Heritage sites. The author substantiates the need for an in-depth analysis of legal models that contribute to strengthening the protection of these objects in order to create a special legal regulation of their protection activities. In addition, the author notes the importance of conducting further research on the issues discussed in this article, and also expresses the opinion that it is necessary to continue the study.
Keywords:World Heritage, UNESCO, cultural heritage, natural heritage, Baikal, World Heritage List, world heritage site, legal protection, legal regulation, legal framework
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The protection of World Natural Heritage sites is one of the directions of the concept of sustainable development of the state and its national security.
The preamble of the Constitution of the Russian Federation mentions responsibility to the present and future generations for their Homeland. The right of citizens to a favorable environment is integral and includes in the general system of human rights guarantees the protection of unique natural complexes and objects that have preserved the natural state of ecological systems for future generations.
In the conditions of industrial development and the growth of resource consumption, the issue of stabilizing the environmental situation, reducing the impact and preserving natural objects of unique value of global importance is particularly acute. This led to the development of the system of relations between countries, the conclusion of international treaties and the activities of organizations in the field of environmental protection.
Earlier it was suggested that further development and strengthening of partnership and cooperation between states, the definition of approaches to the creation of mechanisms for their solution on a mutually beneficial basis are possible when creating an international legal framework for solving environmental problems . The more than half-century history of Russia's relations with UNESCO confirms the effectiveness and prospects of this cooperation .
At the same time, the peculiarity of universal international documents, primarily relating to environmental rights, human responsibilities, principles of environmental protection, is that they often do not contain legally binding norms . Such documents in the theory of international law traditionally belong to the "soft law" (soft law) and are used in international relations to consolidate obligations that have more force than just political statements, but less than really legal documents ,.
The absence of binding legal force of the above-mentioned international norms is compensated by the national legal regulation of the participating States. A stable combination of international and domestic law can ensure the preservation of World Heritage sites .
Article 22 of Federal Law No. 101-FZ of July 15, 1995 "On International Treaties of the Russian Federation" provides that if there are rules in an international treaty requiring changes to certain norms of the Constitution of Russia, "a decision on consent to its binding for the Russian Federation is possible in the form of a federal law only after the relevant amendments to the Constitution The Russian Federation or revision of its provisions in the prescribed manner."
In accordance with article 27 of the Vienna Convention on the Law of Treaties of May 23, 1969, "a party may not invoke a provision of its domestic law as justification for non-performance of the contract" . According to paragraph "b" of part 3 of article 31 of the Vienna Convention, "when interpreting an international treaty, along with its context, the subsequent practice of applying the treaty, which establishes the agreement of the parties regarding its interpretation, must be taken into account."
The amendments introduced by the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation No. 1-FKZ of March 14, 2020 and Federal Law No. 429-FZ of December 08, 2020 limit the impact of decisions of interstate bodies on the fulfillment by the Russian Federation of international obligations. Article 79 of the Constitution of the Russian Federation introduces norms blocking the effect of decisions of interstate bodies adopted on the basis of a subjective interpretation of international treaties of the Russian Federation that contradicts the Constitution of the Russian Federation.
These legislative changes have determined the need for the development and improvement of domestic legal regulation of obligations to implement international treaties. The legal status of the objects included in the World Natural Heritage List is regulated by the Convention on the Protection of the World Cultural and Natural Heritage (hereinafter – the Convention), ratified by the USSR in 1988 . The provisions of Article 4 of this Convention provide that the participating States recognize the obligation to preserve and transmit to the next generations cultural and natural heritage. Thus, the burden of responsibility for the implementation of the Convention, as well as for its violation, is placed directly on the State.
The States that have acceded to the Convention, without prejudice to the rights provided for by national legislation, recognize that objects of universal value are world heritage and contribute to the implementation of a common policy aimed at giving the objects functions in public life, the regulation of working methods aimed at preventing the danger threatening the cultural and natural heritage located on their territory. territories. In order to protect, popularize and restore this heritage, the parties to the Convention take legal, scientific, technical and financial measures, establish specialized services authorized to implement these measures (Articles 4, 5, 6).
Russia, as part of the fulfillment of the above obligations, adopted Federal Law No. 73-FZ "On Cultural Heritage Objects (Historical and Cultural Monuments) of the Peoples of the Russian Federation" on June 25, 2002. The definition of the concept of "objects of cultural heritage" is contained in article 3 of this federal law. Objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation include objects of immovable property (including objects of archaeological heritage) and other objects with historically related territories, works of painting, sculpture, decorative and applied art, objects of science and technology and other objects of material culture that arose as a result of historical events, representing They are valuable from the point of view of history, archeology, architecture, urban planning, art, science and technology, aesthetics, ethnology or anthropology, social culture and are evidence of epochs and civilizations, authentic sources of information about the origin and development of culture .
Objects of cultural heritage in accordance with this Federal Law are divided into the following types: places of interest, ensembles and monuments. Any legal owner of such an object is required to preserve it and is issued a passport (Articles 21, 40, 44, 45, 48 of Federal Law No. 73-FZ of June 25, 2002 "On Objects of Cultural Heritage (Historical and Cultural monuments) of the Peoples of the Russian Federation"). This federal law also contains provisions related to the protection of natural objects, but the existing norms are aimed at preserving them as an integral part of cultural heritage objects, and not directly at protecting elements of the natural environment .
It regulates the conditions directly necessary for the inclusion of a cultural heritage object in the List of World Cultural and Natural Heritage. The objects included in the World Heritage List are recognized as particularly valuable on a priority basis. Their outstanding universal historical, archaeological, architectural, artistic, scientific, aesthetic, ethnological or anthropological value indicates that such objects are given a higher protected status.
According to paragraph 2 of the Regulations on Especially Valuable Objects of Cultural Heritage of the Peoples of the Russian Federation, approved by Decree of the President of the Russian Federation No. 1487 of November 30, 1992, it is envisaged that natural complexes representing values of a reference or unique character from the point of view of history, archeology, culture, architecture, science and art are classified as especially valuable objects of cultural heritage of peoples Of the Russian Federation. This status implies state support and the inclusion of such objects in the State Code of Especially Valuable objects of Cultural Heritage of the Peoples of the Russian Federation .
At the same time, none of the natural heritage sites located on the territory of Russia included in the UNESCO World Heritage List is included in the code of particularly valuable due to the fact that Federal Law No. 73-FZ "On Cultural Heritage Objects (Historical and Cultural Monuments) of the Peoples of the Russian Federation" does not extend its effect to the objects natural heritage, despite the fact that many of them have unique, natural, aesthetic, archaeological, scientific significance and meet the criteria of outstanding universal value defined by the Convention on the Protection of the World Cultural and Natural Heritage.
Russian natural sites included in the UNESCO World Natural Heritage List are represented by 20 cultural and 11 natural sites. The status of a World Natural Heritage Site in Russia has: Virgin forests of Komi; Lake Baikal; Volcanoes of Kamchatka; Golden Mountains of Altai; Western Caucasus; Central Sikhote-Alin; Ubsunur basin; Wrangel Island; Putorana Plateau; Lena Pillars, Landscapes of Dauria. The total area of natural heritage sites is more than 200 million hectares .
In the system of Russian law, the protection of these unique natural territories is not regulated by a special federal law and is regulated by individual norms in the system of environmental law, including those contained in federal laws adopted with respect to a specific object of protection, such as Federal Law No. 94-FZ of May 01, 1999 "On the Protection of Lake Baikal"..
The provisions of the Federal Law "On Environmental Protection" dated 10.01.2002 No. 7-FZ contain the definition of a natural heritage object - natural objects, natural monuments, geological and physiographic formations and strictly limited zones, natural places of interest that fall under the criteria of outstanding universal value and defined by the Convention on the Protection of the World Cultural and Natural Heritage; World Heritage sites natural heritage - natural heritage sites included in the World Heritage List.
In accordance with Article 66 of the Water Code of the Russian Federation, water bodies or parts thereof having special environmental, scientific, cultural, aesthetic, recreational and health-improving significance may be recognized as specially protected water bodies. These include only water bodies whose legal status is determined by the legislation on specially protected natural territories and the legislation of the Russian Federation on objects of cultural heritage.
This indicates that when a natural object is included in the World Heritage List that does not have the status of a specially protected natural territory regulated by Federal Law No. 33-FZ of March 14, 1995 "On Specially Protected Natural Territories" or an object of cultural heritage, the procedure for giving it a special legal status and protection regime is not established in the legislation. Water bodies located on such a territory cannot be recognized as specially protected due to the lack of a legislative relationship between World Natural heritage sites and cultural heritage sites.
For example, Lake Baikal with its adjacent territory along the borders of the central ecological zone of the Baikal natural territory is classified as a UNESCO World Natural Heritage Site . Baikal is one of the most ancient reservoirs of our planet. Its age is 25 million years old, and the water surface area is 31.7 km2. It is the deepest lake on the planet (about 1,700 m) and the largest natural reservoir of fresh water, accounting for 20% of all world reserves. A unique freshwater ecosystem has formed on Lake Baikal, the study of which is of particular importance for understanding the evolution of life on Earth .
In the lake basin there are conditions for the existence of various species of plants and animals, some of which are endemic, there are examples of the main stages of the earth's history and outstanding geological features . The territory adjacent to the lake is also unique in historical and cultural terms, connected with the history of the formation of peoples and other ethnic communities, religious and historical places. According to the content of the nomination text for inclusion in the World Heritage List of the Lake Baikal basin, the object simultaneously meets four criteria of outstanding universal value. Numerous natural history and ethnographic religious monuments have been preserved on this territory. The history and culture of North Asia is represented here massively and variously, there are preserved monuments of the initial development of Siberia. One of the most interesting factors of cultural heritage is the traditional culture of the Buryats and Evenks. The cultural heritage of the Baikal region is seen as no less important than the ruins of Troy, cultural monuments of the ancient Etruscans, Maya, Incas and, thus, is not only the national wealth of Russia, but also has a unique significance for all mankind (criterion of outstanding universal value III).
In this regard, it seems necessary to involve and develop various areas of legal protection of Lake Baikal as a World Heritage site, including through the creation and improvement of the legislative framework for the preservation of Lake Baikal as a cultural value.
The territory of the World Heritage site under consideration includes the lake itself and adjacent territories with water bodies located on them. At the same time, the water bodies that feed the lake and are necessary to maintain its unique ecosystem, like Baikal itself, are not classified as specially protected water bodies and are not included in the register of cultural heritage objects, as well as in the code of especially valuable cultural heritage objects of the peoples of the Russian Federation.
The absence of a systematic legislative link between the legal status of objects of world natural and cultural heritage, as well as the lack of legal prerequisites for the protection of Lake Baikal as an object of cultural heritage does not allow the application of the norms of Federal Law No. 73-FZ "On objects of cultural Heritage (historical and cultural monuments) of the peoples of the Russian Federation" to the territory adjacent to Lake Baikal, which has unique archaeological monuments, rock paintings and other cultural values that allow us to trace the evolution of man and the development of peoples.
The inclusion of the central ecological zone of the Baikal Natural Territory in the State Code of Especially Valuable Cultural Heritage Objects of the Peoples of the Russian Federation, it seems, will create legal grounds for issuing protection obligations to owners and users of land plots and real estate located within the boundaries of the natural heritage object, providing for specific measures to preserve natural value and reduce anthropogenic load on the ecosystem of the lake, It will create legal conditions for the preservation, use, and popularization of the unique natural complex of Lake Baikal.
The situation in the field of protection of Lake Baikal is considered as an example typical of the vast majority of Russian natural sites included in the World Natural Heritage List. The lack of special legal regulation of the issues of ensuring the safety of these objects causes the main problems of their protection, indicating the insufficiency of a purposeful domestic policy and the need for more detailed legislative regulation of the legal status of World Natural Heritage sites at the federal level. These problems include: the lack of a universal model for managing objects; planning activities and allocating resources for their scientific study and protection; the lack of cadastral mapping and definition on the ground (in some cases) of clear boundaries of World Heritage sites and their zones; the lack of unified information resources (including cartographic) about the boundaries, protection zones, regimes and established restrictions on the territory of such objects and, as a result, the low effectiveness of legal propaganda and popularization of their importance among the population.
In conclusion, we consider it appropriate to note the importance of further in-depth analysis of legal models that contribute to strengthening the protection of natural objects included in the World Heritage List, the possible outcome of which will be the adoption of a law on natural heritage objects or (more likely) amendments to federal laws "On Cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation" and "On specially protected natural territories" in order to create a special legal regulation of activities for the conservation of relevant objects.