Legal Dimensions to Valuing Aesthetics in World Heritage Decisions
| Date | 01 October 2017 |
| Published date | 01 October 2017 |
| Author | Alice Palmer |
| DOI | 10.1177/0964663917698859 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(5) 581–605
Legal Dimensions to Valuing
ª The Author(s) 2017
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Aesthetics in World
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DOI: 10.1177/0964663917698859
Heritage Decisions
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Alice Palmer
University of Melbourne, Australia
Abstract
This article reveals the ways in which concepts associated with the humanities inform
determinations of ‘outstanding universal’ aesthetic value of natural heritage under the
World Heritage Convention. Language derived from humanistic ideas of beauty, the sublime
and the picturesque, together with a range of images, are used in World Heritage
deliberations to describe nature from, in the words of the treaty, ‘an aesthetic point of
view’. However, a preference for ‘scientific method’ masks the use of humanistic
approaches, impeding the development of critical approaches that could enhance World
Heritage determinations. The deliberate use of humanistic methods and images to judge
environmental aesthetics would, the article contends, facilitate critical inquiry without
falling foul the ‘principle of legality’ – an international legal requirement of international
bodies such as the World Heritage Committee to act in accordance with the powers
conferred on them by the states parties under a treaty.
Keywords
Aesthetic value, humanistic method, image, international environmental law, natural
heritage, principle of legality, World Heritage
Introduction
During the 2015 climate talks in Paris, visual artist Olafur Eliasson and scientist Minik
Rosing brought 80 tonnes of ice from Greenland to create an artwork in the form of a
clock face at the Place du Panthe´on (Figure 1). In doing so, they raised complex
Corresponding author:
Alice Palmer, University of Melbourne Law School, 185 Pelham Street, Carlton, Victoria 3053, Australia.
Email: adpalmer@unimelb.edu.au
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Social & Legal Studies 26(5)
Figure 1. Ice Watch by Olafur Eliasson and Minik Rosing, Place du Panthe´on, Paris, 2015. Photo:
Martin Argyroglo # 2015 Olafur Eliasson.
questions about environmental aesthetics, science, art and international law. The artistic
gesture attempted to bring the human assault on the environment to the dignitaries
charged with agreeing international laws to stem climate change. Called Ice Watch, it
gave immediate and tangible form to a ‘slow violence’ (Nixon, 2011) on the Earth’s
atmosphere in the very place that, in 1851, physicist Le´on Foucault famously used his
pendulum to prove to the Parisian public the rotation of the Earth (Aczel, 2005: 180).
The sea ice used in Ice Watch was harvested from an area south of the Ilulissat
Icefjord in Greenland – a World Heritage site listed at least in part for its aesthetic
significance.1 The ‘dramatic sounds produced by the moving ice’ in the fjord are iden-
tified in the World Heritage citation as contributing to the ‘natural spectacle’ of the site
(WHC, 2004). That Eliasson and Rosing have transported sea ice taken from a place at
least symbolically proximate to a World Heritage site to an urban space where it would
melt and disappear challenges the purpose and utility of protections under international
environmental law. The artwork could be seen to destroy natural formations protected
under one international treaty for their aesthetic value in order that the loss of that value
might be visualized, perceived and stopped by states under another international treaty.
Eliasson and Rosing, artist and scientist, exploited environmental aesthetics in an
attempt to hold international lawmakers to account. Their artwork was intended to have
prospective impact on the making of international law, demonstrating that international
environmental law matters to art. It is, however, less clear how art might matter to
international law in the construction of aesthetic values of the environment. This article
considers how humanistic method and images representing environmental aesthetics
relate to the application of a long-standing international treaty: the 1972 World Heritage
Convention (Convention, 1972).
Palmer
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Decision makers under the World Heritage Convention are required to identify nat-
ural properties of ‘outstanding universal value’ from, among others, an ‘aesthetic point
of view’ (Convention, 1972: Article 2). In that process, the World Heritage Committee
and its advisors engage in commentary that, this article contends, is rich in the language
of art scholarship to construct meanings of aesthetic value for the world’s natural heri-
tage. Descriptions common to humanistic notions of ‘beauty’, the ‘sublime’ and the
‘picturesque’, for example, can be seen throughout the documentation produced in
support of aesthetic claims. In addition, visual sources, including in some cases visual
art, are referenced by the Committee to enliven its descriptions of ‘outstanding universal’
aesthetic value.
This article maintains, however, that the Committee is uncritical in its use of methods
associated with visual art and of images. The aesthetic method of World Heritage
decision makers appears beholden to a concept of nature informed largely by the Eur-
opean Romantic movement of the 19th-century. Contemporary humanistic approaches
such as eco-criticism, providing a complex account of the aesthetic value in nature, are
not apparent in World Heritage determinations. An uncritical understanding of the ways
in which images, including visual art, inform environmental aesthetics is also reflected in
the Committee’s guidance and practice. Critical legal scholarship that investigates the
legacy and manifestations of image in law – law and image scholarship – points to the
various ways in which critical understandings of image can inform legal judgement.
World Heritage decision makers and their advisors do not explicitly acknowledge that
they are using humanistic methods and sources to construct an aesthetic point of view.
Instead, they maintain that they must engage in an objective and scientific inquiry
consistent with the Convention’s stated desire for a system of protection based on
‘modern scientific methods’ (Convention, 1972: preamble). This article argues, how-
ever, that the World Heritage Committee, can, as a matter of law, openly engage huma-
nistic method and sources. The deliberate use of contemporary humanistic scholarship
would, it suggests, facilitate critical inquiry without falling foul the ‘principle of legality’
– an international legal requirement of international bodies such as the World Heritage
Committee to act in accordance with the powers conferred on them by the states parties
under a treaty.
Part 2 of the article describes the legal basis and process for the World Heritage
Committee’s determinations of outstanding universal aesthetic value of natural heritage
and explains how humanistic method and imagistic sources are used in that process.
Critical perspectives on the humanistic method and imagistic sources used are examined
in part 3. Part 4 considers the role of scientific method in World Heritage findings of
aesthetic value and argues that the acknowledged use of critical humanistic scholarship
would be consistent with the international legal principle of legality.
Three qualifications are made at the outset of the article. First, although the article
contemplates a role for critical scholarship, it does not question the viability of aesthetic
judgements of nature from a critical perspective. It takes as given that World Heritage
inscriptions of natural properties for their outstanding universal value can and will
continue to be made on an aesthetic basis for the purposes of the treaty. It maintains,
however, that critical elements of humanistic scholarship should be employed by World
Heritage decision makers to properly justify their legally mandated decisions on
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Social & Legal Studies 26(5)
aesthetic value. Second, it is acknowledged that World Heritage decisions are highly
politicized (Cameron and Ro¨ssler, 2013; Maswood, 2000).2 The focus in this article,
however, is law and legal process – recognizing all the while the intimacy between law
and politics, public international law being a much lauded exemplar of that union
(Koskenniemi, 2005, 2010). Finally, the term ‘aesthetic’ has a range of applications in
this article. It is analysed as a legal term, appearing in the Convention to denote a
particular kind of outstanding universal value attached to natural heritage.3 Aesthetic
is also used in connection with the methods of appraisal developed in the arts to analyse
the merits of artistic expression. In this article, the term ‘humanistic’ will be used to
describe the aesthetic methods (or means of analysis) and sources (namely images) that
belong to the study of art or to the humanities more generally.
Humanistic Approaches to Aesthetic Judgements of the
World’s Natural Heritage
The World Heritage Convention creates a process for assigning World Heritage status to
natural heritage of outstanding universal value from, among others, an ‘aesthe-
tic . . . point of view’ (Convention, 1972: Article 2). The legal basis and process for these
determinations, and the role of humanistic language and image in those determinations,
is described below.
Legal Basis and Process for Aesthetic Judgements
Undefined in the Convention itself, outstanding universal value has subsequently been
described as ‘cultural and/or natural significance which is so exceptional as to trans-
cend national boundaries and to be of common importance for present and future
generations of...
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