Legal, regulatory and customary frameworks

The management of heritage places is dependent on a range of legal, customary and policy instruments. Some of these can be mandatory, such as national laws, regulations and contractual obligations; others are more like soft laws, such as policies, standards, guidelines and codes of ethics. There are many countries where the World Heritage Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage is an international treaty adopted by the UN in 1972 that defines the kind of natural or cultural sites which can be considered for inscription on the World Heritage List for their Outstanding Universal Value for all humankind. Commonly known as the World Heritage Convention, it establishes how the international community as a whole is responsible for
the protection of such heritage and sets out the duties of States Parties in identifying potential sites that may be eligible for inscription onto the World Heritage List and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the sites situated on its territory that have been recognized as being of Outstanding Universal Value, but also to protect its national heritage and to be involved in international efforts to protect, conserve and promote the heritage of humankind. , which entails obligations at an international level, has not been formally transcribed into a specific law at the national or provincial level (in the case of federal system), but its mains provisions, or equivalents of it, are included into existing legislation.

Every country uses a variety of instruments to identify, protect, conserve and manage heritage places. These instruments range from constitutional provisions and legislation to customs passed down from generation to generation. These instruments might or might not be heritage-specific but they determine how a heritage place is protected and managed. Whatever the combination, these instruments form an essential part of the management system of the heritage place and must be understood.

Those involved in the direct management of 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. should be familiar with the World Heritage Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage is an international treaty adopted by the UN in 1972 that defines the kind of natural or cultural sites which can be considered for inscription on the World Heritage List for their Outstanding Universal Value for all humankind. Commonly known as the World Heritage Convention, it establishes how the international community as a whole is responsible for
the protection of such heritage and sets out the duties of States Parties in identifying potential sites that may be eligible for inscription onto the World Heritage List and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the sites situated on its territory that have been recognized as being of Outstanding Universal Value, but also to protect its national heritage and to be involved in international efforts to protect, conserve and promote the heritage of humankind. as well as the Operational Guidelines and consider it as part of the overall legal framework for their heritage place. In this way, they can ensure their management is in accordance with the responsibilities assumed by the State Party at the international level.

The set of instruments forming the legal framework of a country usually comprises the constitution, legislation at different administrative levels, formal decrees, policies, regulations and contracts. Altogether legal frameworks can have many purposes: to establish, regulate, authorize, proscribe, provide funding, sanction, grant, declare or restrict. Some of these sets of instruments cover general principles and matters but others focus on specific matters, such as legislation on cultural and natural heritage.

There are laws and regulations drawn up for other purposes, but which complement heritage legislation, such as spatial planning legislation or legislation regulating extractive industries which may proscribe heritage places as off limits.

Legal frameworks also establish implementing institutions, as well as the scope of their mandates and whether and how they will work with other institutions and organizations. Therefore, depending on the governance arrangements in each country or jurisdiction, the legislative or regulatory instruments and organizations enabling heritage management will vary. Often stipulations that derive from a country’s constitution and national legislation will intertwine with provincial regulations, local by-laws, and spatial planning frameworks or other sectoral laws. There are also codes, other regulatory frameworks, or policies which do not constitute law but can influence heritage management. These include policies and standing orders created by specific institutions.

Legislation and regulations outside the heritage sphere – urban planning, land-use, environmental, export control laws, etc. – can have a major impact on heritage conservation and management, and, if known and understood, they can be used to benefit heritage. This is particularly important when it comes to the management of buffer zones and the wider setting. Other elements may also influence heritage, such as national or international charters or compliance with codes of ethics of specific heritage professions; these are often referred to as soft law.

If shortcomings in the legal framework compromise the effectiveness of the management system for a property, it is necessary to understand where the gaps and challenges are and what can be done about them. Changing legislation, especially at the national or provincial level can be unrealistic and may take considerable time and political will. In such situations, attempting to strengthen other legal instruments at a local level may be helpful and prove more feasible by using, for example, regional laws, development by-laws or local policies. For instance, if the national law does not recognize the use of buffer zones nor does it have similar provisions, in order to protect the surroundings of a heritage place, countries may use planning legislation or spatial planning mechanisms of regional or local councils. Successful local solutions can work in the short-term and can generate action from the ground up for long-term reforms to national heritage legislation.

Occasionally, specific laws and regulations can be drawn up for the protection and management of a heritage place. It might happen because of the large size or complexity of a heritage place or to address particular challenges such as urban encroachment or even to overcome dramatic events, catastrophes or acts of terrorism. Alternatively, non-governmental entities and philanthropic organizations could be interested in co-managing heritage assets, prompting partnership agreements specific to a heritage place to create the conditions for effective public-private partnership.

A customary framework refers to the set of customs, norms and practices that are practiced by a particular group over land or sea areas for such a long time that they are considered to be mandatory. These customs, norms and practices are usually rooted in local or Indigenous tradition, religion or culture beyond the formal statutory legislation. They can include, for example, rules in land tenure, inheritance practices, or barring or limiting access to sacred areas.

Customary rules are often orally transmitted. They might be the result of ongoing practices passed on from generation to generation, known and accepted by the whole community, or be recent expressions of community consensus. They can be as important as formal laws for heritage management and, in some cases, even more important as they are being implemented and voluntarily applied. Therefore, traditional practices, customs and customary law also need full consideration in order not to neglect long established and shared bodies of rules and practice in traditional knowledge systems. They complement formal legal frameworks and must be considered as part of the heritage management system. It is also important to recall that in some contexts, customary law is recognized formally side by side with official laws that, in some contexts, has similar or equal legal status. 

Legal and customary frameworks may not be respected for a variety of reasons. Lack of awareness of the heritage values of the place or lack of knowledge of the rules and regulations may contribute to this. In such cases, the situation can be improved through initiatives that increase participation and raise awareness. This might involve, for example, improving governance arrangements to make them more participatory; creating meaningful activities for engagement with the heritage place; supporting inter-generational knowledge transfer; increasing communication with the public and offering ways to contribute to management efforts; or providing heritage interpretation so that people can gain greater appreciation of the heritage place and thereby come to support its protection.

However, in cases where such approaches are not enough, it may be necessary to consider how best to ensure compliance with legal and customary frameworks and/or their enforcement. Compliance refers to the practice of observing rules, obligations and cultural norms established in regulatory, legal and customary frameworks; while enforcement refers to the range of actions that can be taken to ensure that individuals or groups are made to act in accordance with laws or regulations or punished for failing to comply.

Often challenges arise not from the content of the legal and customary instruments themselves but from their implementation. Effective control of uses and activities depends largely on voluntary application and respect for rules and regulations by all actors involved in conservation and management of the heritage place. If rules and regulations are not known, overly complicated and costly to implement, it is more difficult to ensure compliance. There are many ways to promote compliance, namely by finding meaningful means to engage people so that the issues can be discussed and solutions found, by making rules and regulations as clear as possible so that they can be easily understood and by communicating them effectively, or by organizing initiatives to change behaviours that negatively affect the heritage place.

Some challenges arise from the need to balance the interests of private individuals versus the collective good. It should be recognized that management of a heritage place may restrict new development there and even in adjacent areas, which could be detrimental to some people by limiting their commercial opportunities, or be advantageous to others, such as by existing real estate increasing in value. Private owners may face constraints on their use of their property, such as the need for prior agreement for physical changes or for supervision of conservation/adaption actions. Ideally these need to be balanced with the provision of incentives for conservation and management, such as financial subsidies or tax exemptions, which can also encourage compliance.

It is always better to promote compliance than rely on the threat of prosecution and punishment. However, when people do not voluntarily comply with the laws, rules and regulations, then government and/or traditional authorities need to have mechanisms to enforce them. When needed, enforcement authorities should be in a position to use legal and customary means to sanction those ignoring or breaking rules and regulations or preventing them from doing so. This requires enforcement capacity and the systematic application of penalties when offences are committed. Legislative and customary control mechanisms can also take a variety of forms according to the overall origins of the legal and customary system of the specific country or heritage place.

In accepting or ratifying the World Heritage Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage is an international treaty adopted by the UN in 1972 that defines the kind of natural or cultural sites which can be considered for inscription on the World Heritage List for their Outstanding Universal Value for all humankind. Commonly known as the World Heritage Convention, it establishes how the international community as a whole is responsible for
the protection of such heritage and sets out the duties of States Parties in identifying potential sites that may be eligible for inscription onto the World Heritage List and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the sites situated on its territory that have been recognized as being of Outstanding Universal Value, but also to protect its national heritage and to be involved in international efforts to protect, conserve and promote the heritage of humankind. , States Parties The countries which have adhered to the Convention Concerning the Protection of the World Cultural and Natural Heritage ( World Heritage Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage is an international treaty adopted by the UN in 1972 that defines the kind of natural or cultural sites which can be considered for inscription on the World Heritage List for their Outstanding Universal Value for all humankind. Commonly known as the World Heritage Convention, it establishes how the international community as a whole is responsible for
the protection of such heritage and sets out the duties of States Parties in identifying potential sites that may be eligible for inscription onto the World Heritage List and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the sites situated on its territory that have been recognized as being of Outstanding Universal Value, but also to protect its national heritage and to be involved in international efforts to protect, conserve and promote the heritage of humankind. ) (UNESCO, 1972). commit to protecting their cultural and natural heritage. The Convention contains specific obligations which include the need to take appropriate legal, scientific, technical, administrative and financial measures to protect World Heritage properties. This underlines the need for adequate and effective legal protection to ensure that heritage is protected and transmitted to future generations. The Operational Guidelines provide greater detail, stating that all properties inscribed on the World Heritage List must have adequate long-term legislative, regulatory, institutional and/or traditional protection and management to ensure their safeguarding.

The commitment to World Heritage is most effective when the main provisions of the Convention are transcribed in national laws and regulations for heritage. This may be done by creating new legislation to meet World Heritage requirements or by revising existing legislation.

The following points highlight some of the current priorities regarding World Heritage commitments that States Parties The countries which have adhered to the Convention Concerning the Protection of the World Cultural and Natural Heritage ( World Heritage Convention The Convention Concerning the Protection of the World Cultural and Natural Heritage is an international treaty adopted by the UN in 1972 that defines the kind of natural or cultural sites which can be considered for inscription on the World Heritage List for their Outstanding Universal Value for all humankind. Commonly known as the World Heritage Convention, it establishes how the international community as a whole is responsible for
the protection of such heritage and sets out the duties of States Parties in identifying potential sites that may be eligible for inscription onto the World Heritage List and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the sites situated on its territory that have been recognized as being of Outstanding Universal Value, but also to protect its national heritage and to be involved in international efforts to protect, conserve and promote the heritage of humankind. ) (UNESCO, 1972). should be aware of:

• National legislative and regulatory measures must guarantee the protection of World Heritage properties and prevent changes that might negatively impact on their OUV.
• Legal frameworks must offer legal status as heritage to the areas recognized as World Heritage and impose restrictions on their use and development, at varying levels of intensity, for 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. itself, its buffer zone(s) as well as the wider setting.
• Serial and/or transboundary properties may need specific overarching mechanisms Memorandums of Understanding or strategic management planning frameworks to complement laws and regulation at the national level and ensure adequate coordination between managers, to ensure that management objectives and protection and management mechanisms are aligned across different jurisdictions.
• Legal frameworks and governance arrangements may need some updating if rights-holders, such as Indigenous Peoples or local communities whose livelihoods in some way depend on the heritage place, do not have meaningful forms of involvement in decision-making and management processes.