Tool 5 - Legal, regulatory and customary framework

1. To review how the combination of various policy, legal, regulatory and customary instruments, at different levels, influences the protection and management of the property.
2. To understand whether the legal framework provides clear and sufficient provisions for the protection and management of the property and its buffer zone(s).
3. To assess whether international obligations and commitments are effectively incorporated into national policy and legislation, and whether there is adequate government support to implement such obligations.
4. To assess capacity to promote compliance and implement enforcement measures in accordance with relevant legislation, regulations and traditional mechanisms and rules.
5. To identify ways to reinforce and strengthen the legal framework and its implementation.

Every country uses a variety of instruments to identify, protect, conserve and manage World Heritage properties and other heritage places. These instruments range from constitutional provisions and legislation to unwritten rules and traditions passed down from generation to generation (see Box 5.4). Whatever their type(s), these instruments form an essential part of the management system for a World Heritage property A cultural, natural or mixed heritage place inscribed on the World Heritage List and therefore considered to be of OUV for humanity. The responsibility for nominating a property to the World Heritage List falls upon the State(s) Party(ies) where it is located. The World Heritage Committee decides whether a property should be inscribed on the World Heritage List, taking into account the technical recommendations of the Advisory Bodies following rigorous evaluation processes.
When used as a general term, World Heritage refers to all the natural, cultural and mixed properties inscribed on the World Heritage List. or other heritage place. Therefore, it is important to understand whether they are adequate to ensure the long-term protection of the property, whether they are being effectively enforced and implemented, and whether they are sufficiently well known to – and applied by – the managers who draw their mandates from them (Worksheet 4a).

To facilitate the guidance for this tool, the term ‘legal framework’ is used beyond its strict definition in relation to statutory and customary law, and refers to the combination of legal, regulatory, customary and policy instruments that apply to a World Heritage property A cultural, natural or mixed heritage place inscribed on the World Heritage List and therefore considered to be of OUV for humanity. The responsibility for nominating a property to the World Heritage List falls upon the State(s) Party(ies) where it is located. The World Heritage Committee decides whether a property should be inscribed on the World Heritage List, taking into account the technical recommendations of the Advisory Bodies following rigorous evaluation processes.
When used as a general term, World Heritage refers to all the natural, cultural and mixed properties inscribed on the World Heritage List. or other heritage place. In some circumstances, it can be difficult to distinguish between legal instruments (Tool 5) and planning instruments (see Tool 6, which examines the effectiveness of the management planning framework). For instance, some instruments may be relevant to both Tool 5 and Tool 6, as many plans have legal status, and are therefore both legal and planning instruments.

Tool 5 has two main purposes:

1. To assess the adequacy of the legal framework to effectively manage the World Heritage property A cultural, natural or mixed heritage place inscribed on the World Heritage List and therefore considered to be of OUV for humanity. The responsibility for nominating a property to the World Heritage List falls upon the State(s) Party(ies) where it is located. The World Heritage Committee decides whether a property should be inscribed on the World Heritage List, taking into account the technical recommendations of the Advisory Bodies following rigorous evaluation processes.
   When used as a general term, World Heritage refers to all the natural, cultural and mixed properties inscribed on the World Heritage List. and its buffer zone(s). Worksheet 5a aims to understand how different instruments support and influence the protection and management of the property at different levels (e.g. international, national and local). This review includes instruments directly concerning heritage protection, as well other legal, regulatory or customary provisions that may affect the protection and management of the property (e.g. land use, industrial or agricultural development, mining, tourism and taxation). It also helps to identify those aspects of the legal framework that could be improved and how any such improvements can be realistically implemented in the short and medium term.
2. To review whether the instruments are effectively applied and consistently enforced, and to determine the main challenges related to compliance and implementation (Worksheet 5b).

Each World Heritage property A cultural, natural or mixed heritage place inscribed on the World Heritage List and therefore considered to be of OUV for humanity. The responsibility for nominating a property to the World Heritage List falls upon the State(s) Party(ies) where it is located. The World Heritage Committee decides whether a property should be inscribed on the World Heritage List, taking into account the technical recommendations of the Advisory Bodies following rigorous evaluation processes.
When used as a general term, World Heritage refers to all the natural, cultural and mixed properties inscribed on the World Heritage List. or heritage place has its own legal framework, usually involving a specific combination and variety of instruments. Worksheet 5a helps you gain an overview of the various instruments that apply and how they are related. This is done by listing all the relevant instruments and recording their main purpose in, and influence on, the management system of the property and any existing buffer zone(s).

You should complete this worksheet in detail the first time that you carry out a management effectiveness assessment. In future assessments, it may be sufficient to update or slightly revise parts of the worksheet; generally, legal instruments are rarely amended or replaced. On the other hand, the worksheet also addresses traditional and customary practices, which can evolve and change, so these aspects will need to be carefully reviewed in future assessments.

Table 5.2 provides a series of questions to help you reach conclusions regarding different types of instruments, and identify the key issues that need attention. For instance, certain instruments may work against or challenge efforts to protect and manage the World Heritage property A cultural, natural or mixed heritage place inscribed on the World Heritage List and therefore considered to be of OUV for humanity. The responsibility for nominating a property to the World Heritage List falls upon the State(s) Party(ies) where it is located. The World Heritage Committee decides whether a property should be inscribed on the World Heritage List, taking into account the technical recommendations of the Advisory Bodies following rigorous evaluation processes.
When used as a general term, World Heritage refers to all the natural, cultural and mixed properties inscribed on the World Heritage List. or other heritage place. Therefore, the last column of Worksheet 5a should draw conclusions on how different instruments interact, and how the legal framework functions as whole. If a specific instrument poses particular challenges, then make clear the ways in which it does this. Do not forget to identify desired follow-up actions, even if some of those actions are beyond the managers’ mandates (e.g. amendments to legislation). In such cases, you can frame actions in relation to how the manager(s) can work with other actors to balance legal requirements and effective implementation of management objectives.

Reflection questions:

• Is the legal designation of the property at the national level adequate in relation to its Outstanding Universal Value? For example, if the property is inscribed on the World Heritage All inherited assets which people value for reasons beyond mere utility. Heritage is a broad concept and includes shared legacies from the natural environment, the creations of humans and the creations and interactions between humans and nature. It encompasses built, terrestrial, freshwater and marine environments, landscapes and seascapes, biodiversity, geodiversity, collections, cultural practices, knowledge, living experiences, etc.   List as a cultural landscape, is that category recognized in national legislation?
• Is the entire property covered under that same legal designation? If not, what challenges arise?
• In general, is the legal framework adequate to protect the property in the long term? Are the different instruments that make up that legal framework well integrated?
• Is the legal framework adequate to manage any existing buffer zone(s) in relation to the values of the property?
• Does the legal framework facilitate effective management, or does it contain laws, policies and/or regulations that hinder or obstruct management?
• Are there inconsistencies or differences between the heritage-specific rules and regulations and those included in other instruments? If yes, can the provisions and practices in non-heritage- specific instruments negatively affect the protection and management of the property?
• Are legal instruments compatible with and supportive of customary rules and practices?
• Is the legal framework adequate to ensure engagement and participation of rights-holders in the governance and management of the property and its buffer zone(s)?
• What aspects of the legal framework could be improved? Which of these aspects are within the mandate of managers or can be influenced by them?

Often, challenges arise from the implementation of the instruments, rather than from the instruments themselves. This worksheet helps you assess whether the main legal and customary instruments for the protection and management of the property and its buffer zone(s) are effectively applied and enforced, as well as identify the main challenges to compliance. Therefore, to complete Worksheet 5b, select the key instruments (from those listed in Worksheet 5a) that guide management from a heritage perspective; and especially those that stipulate what uses and activities are permitted (or not) within the property and its buffer zone(s). Also, include in your selection those instruments that can help address the most important factors affecting the property – as identified in Tool 2.

Effective control of uses and activities depends on a combination of awareness, voluntary application of rules and regulations, incentives, and consistent enforcement of laws and regulations. If rules and regulations are complicated or unclear and/or implementing them is costly, then people will be reluctant to comply with them. There are many ways to promote compliance – for example, making rules and regulations clear and understandable and by communicating them widely (including through information campaigns or running programmes to change behaviours). Financial incentives through tax cuts, incentives and subsidies can also encourage compliance.

When people do not voluntarily comply with the rules, or are reluctant to respect them, then governments and/or managers require mechanisms to enforce them. It can be better to promote compliance rather than relying on the threat of prosecution and punishment. Enforcing rules and regulations requires capacity to police illegal activities and enforce penalties.