Outstanding Universal Value and Natural Heritage

As one would expect for a Natural World Heritage Site nomination, much of the discussion centered on the site’s natural values and, more specifically, its OUV. While the IUCN did mention the Karen in their reports and reiterated concerns raised by the Office of the United Nations High Commissioner for Human Rights (OHCHR), the language used speaks of “land rights and livelihoods,” rather than the Karen’s heritage explicitly.Footnote ³⁷ Therefore, the IUCN’s report to the WHC only really evaluated the site’s natural value. Comments from the WHC highlighted the property’s “rich flora and fauna” (Delegation of the Russian Federation),Footnote ³⁸ emphasized the “valuable species that are recognized as being globally significant and endangered” (Delegation of Egypt),Footnote ³⁹ as well as the “ecological wealth of the property” and its “environmental services” (Delegation of Guatemala).Footnote ⁴⁰ As the Delegation of South Africa noted, the KKFC is “part of the biogeographical regions that are not yet well represented” on the current list.Footnote ⁴¹ From these statements, most of the support for the site is ostensibly located within concern for the environment and its supposed “OUV.” The AHD we can see here, therefore, places biological diversity and threatened species over local communities, their culture, and their relationships with the landscape, as it is the natural value of the site that was deemed to be of universal value, not the Karen’s heritage. The Karen people’s role in helping to preserve this universally valued heritage was also ignored. As Pongsak Tonnampeych, a Karen man evicted from his home in the KKFC observed, “It’s our home. It’s our ancestors’ home. We have been cultivating the natural biodiversity for a very long time […] If what the government said is true, if we were destroying the natural heritage of these forests, we would not have such rich biodiversity. Kaeng Krachan would not have been recognized by UNESCO without us protecting this forest life.”Footnote ⁴²

To be nominated as a joint natural and cultural site, there must be quantifiable OUV for both. This issue of advisory bodies – divided between ICOMOS for “cultural” sites and the IUCN for “natural” sites (or a joint report for sites nominated for natural and cultural OUV) – speaks to another flaw in the World Heritage process. Namely, it is based on a false division of natural from cultural and an imbalance of power in favor of the state, which is left to determine how a site will be valued, nominated, and listed. In the case of the KKFC, despite the Karen community’s deep cultural attachment to the landscape, the forest complex was nominated solely as a natural site. Given Thailand’s refusal to acknowledge indigeneity in the country, alongside their historical and continued treatment of the Karen at the site, what hope do Indigenous communities have of ever having their culture recognized in a state-driven World Heritage nomination (if they were to want this)? The hierarchy generated through UNESCO, and the ensuing need to quantify and rank heritage, is not realistic or representative. As Guatemala stated, “communities and their well-being are just as important as World Heritage. There is no point in protecting cultural and natural heritage if we are not protecting the lives of communities who have a permanent relationship with that heritage.”Footnote ⁴³ Moreover, as the Delegation of Guatemala noted, the environmental values tied to the KKFC are something that the site “already provides without needing to be inscribed on the World Heritage List.”Footnote ⁴⁴ This raises the question of why sites are listed, why they are important, and for whom. Suppose we view listing as World Heritage as a formal recognition and reward. What message does it send if the WHC decides to reward a site that has been the subject of historical and ongoing human rights violations?

This is not the first time the integrity of UNESCO and its World Heritage program has been called into question, with critiques spanning decades. In 2009, Simon Usborne described World Heritage as “teetering on its once sound foundations as its principles and priorities crumble under the weight of bureaucracy and outside influence.”Footnote ⁴⁵ In her 2018 book, A Future in Ruins: UNESCO, World Heritage and the Dream of Peace, Meskell outlines several failures of the institution, including the shift away from conservation in favor of a focus on economic and political gain, and the “lucrative potentials of World Heritage inscription and branding for tourist revenues […], continued challenges over territory, and reignited conflicts between states.”Footnote ⁴⁶ Keough has similarly criticized the World Heritage program as having “created a culture of economic and political quagmires rather than cooperation and preservation.”Footnote ⁴⁷ Despite claiming to serve “all the peoples of the world,”Footnote ⁴⁸ World Heritage in its current form largely benefits individual states, with listings reflecting internal politics over any “intrinsic value” of the heritage itself.

Furthermore, the perceived benefits of World Heritage listing still hinge largely on Eurocentric values – prioritizing preservation, conservation, and economic growth, which often do not align with local AHDs.Footnote ⁴⁹ For example, Ittipol Thaikamol, the head of the Kaeng Krachan National Park at the time stated that the listing would present an opportunity through increased tourism, but this is not necessarily to the benefit of the Karen in the park. When asking why World Heritage status is important, the economic benefit of increased tourism is a significant factor.Footnote ⁵⁰ However, this is a benefit that is rarely felt by the Indigenous communities impacted, who instead bear the social and cultural burdens of the World Heritage listing.Footnote ⁵¹ Moreover, the Karen and other upland ethnic and Indigenous groups in Thailand have a complicated history with tourism, othering, and exoticization, including through controversial “long-neck villages,” which can be seen as akin to “human zoos.”Footnote ⁵² Rather than empowering the community, tourism in this form often perpetuates internal colonialism.Footnote ⁵³ As head of Bang Kloi village – the new site the Karen in the KKFC were forced to relocate to – Nih Ran Pongthep said, “We are worried that if more tourists come, we will have even less land and that the river and the forest will be spoiled. We have a right to live in the forest – we are not here just for a photo opportunity or as a tourism attraction.”Footnote ⁵⁴

The universalizing nature of the World Heritage process lends itself to an AHD that creates a hierarchy from global to state to the local and Indigenous. In the case of the KKFC, the successful listing is evidence of perceived “OUV” outweighing the rights of the local Indigenous community. This hierarchy at the state level is also demonstrated in a press release by the Royal Thai Embassy in London following the KKFC’s inscription (own emphasis added) – “The recent inscription of KKFC as UNESCO World Heritage list marks another national pride for the country and the Thai people.”Footnote ⁵⁵ Minister of Natural Resources and the Environment at the time, Varawut Silpa-archa, similarly called the KKFC inscription a “gift to Thais.”Footnote ⁵⁶ Here, it is clear not only that the benefits are for the nation and the Thai people, with these nationalistic discourses of value and ownership paralleling global discourses of “World” Heritage and “universal” value. This is to the detriment of the Karen – those closest to the site – who were once again left out of the discussion. They are further alienated through this language, as the Karen for whom this listing is not a gift are consequently presented as “non-Thai.” As Gib Tonnarmpech, a Karen woman forced to leave her home in KKFC, was quoted as saying: “We don’t know what the World Heritage listing means – no one has told us how it will impact us or whether it will help solve our problems.”Footnote ⁵⁷ For the Karen, the World Heritage process did not serve them. Instead, the case of the KKFC proved to them that World Heritage is a process steeped in blood.

Local communities and paragraph 123

“Local communities” was another central topic in the discussion, in large part because Paragraph 123 of the Operational Guidelines for the Implementation of the World Heritage Convention had been raised as an issue preventing the listing of the site. When the KKFC was first submitted in 2014, paragraph 123 (2013) did not include mention of Indigenous Peoples, instead stating that that “Participation of local people in the nomination process is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property.” This encourages state parties to “prepare nominations with the participation of a wide variety of stakeholders, including site managers, local and regional governments, local communities, NGOs and other interested parties.”Footnote ⁵⁸ However, these guidelines changed in 2015 – aligning with the first WHC decision on the KKFC, and again in 2019, relevant to decisions made in 2019 and 2021. The revised paragraph 123 in 2015 added participation by “Indigenous peoples” as well as “free, prior and informed consent of Indigenous peoples.”Footnote ⁵⁹ This was maintained in the 2019 update, which further emphasized that participation should be “[e]ffective and inclusive.”Footnote ⁶⁰ Despite this, discussions in 2021 centered only on “local communities” rather than Indigenous Peoples.

Moreover, counter to the statements made by the Special Rapporteur and the International Indigenous Peoples’ Forum on World Heritage (IIPFWH) after the 2021 decision, which noted that the “Karen were never able to meaningfully participate, and no efforts were made to recognize their relationship with the land within the OUV” (IIPFWH),Footnote ⁶¹ some committee members commended Thailand for its work with local communities. The Delegation of Ethiopia, for example, noted that Thailand “had extensive and demonstrated consultation with local communities and it made [the] investment to improve the lives of the local communities,”Footnote ⁶² while the Delegation of Saudi Arabia said that an “important aspect” of the nomination was “the State Party effort towards [the] inclusion of local communities,” citing examples of efforts “to improve the livelihood of the local communities, including improvement of basic infrastructure, agriculture and livestock, healthcare and hygiene, arts and culture and ecotourism resulting in enhancement of their quality of life and well-being in a sustainable manner,” alongside the provision of “public utilities including electricity and water supply as well as fundamental education for children.”Footnote ⁶³ The Delegation of Thailand reaffirmed these initiatives in later comments.

This language of “local communities” is deliberately vague. The Karen – the community at the center of this site and its nomination – were mentioned at the beginning of discussions in the introduction given by the Secretariat, stating concerns raised by NGOs. However, the Karen were not explicitly mentioned by any committee members in the ensuing discussion. It was not until after the vote, in statements by the UN Special Rapporteur and the IIPFWH, that the Karen were named again. This is in contrast to the 44^th WHC in 2019, where the Karen were a central part of the discussion and were named by Australia, Norway, Azerbaijan, and Thailand. References to the Karen appeared 19 times in the 2019 discussion, compared to only 6 in 2021. Instead, in 2021, committee members (for example, delegations from the Russian Federation, Ethiopia, Thailand, Saudi Arabia, Guatemala, China, and Thailand) used this more generalized term – local community – to talk around the issue. The Karen were not explicitly referred to as “Indigenous” in 2021, and the only time any term other than “local community” was used was when Thailand stated (own emphasis added) “we have endeavored to provide land for livelihoods for all the local communities in the KKFC, including the ethnic communities.”Footnote ⁶⁴ The more generic term – “local communities” –encompasses both Indigenous and non-Indigenous peoples living in and around the site. Thus, it would be possible to engage with the non-Karen communities in and around the KKFC in a consultative process while still claiming to have worked with “local communities.”

Although the Karen were mentioned several times in the 2019 discussions, the language of Indigenous was also largely absent, apart from one reference by Kyrgyzstan to “Indigenous and local communities,” with a preference instead for terms like “ethnic communities/groups/peoples” and “local communities” in the rest of the discussion.Footnote ⁶⁵ Avoiding the term “Indigenous” also avoids its association with rights. This is because, unlike “local communities,” Indigenous Peoples are afforded additional rights (for example, to self-determination, and to free prior and informed consent) under international law. These rights are supported by UNDRIP and also incorporated into the World Heritage process through the Operational Guidelines and Sustainable Development Policy. The use of “local communities” is, therefore, deliberately disempowering, as it fails to view the Karen as legitimate rights-holders.

It is important here to note that while Indigenous Peoples’ rights are human rights, there are also key distinctions and tensions that make explicit acknowledgment of Indigenous rights essential. The concept of human rights has developed within the context of 18th-century European enlightenment and centers on the idea of a universal humanity with all people having equal rights and freedoms.Footnote ⁶⁶ This approach focuses on protections on an individual level and overlooks “local relationships of people and places, practiced through culture” that impact Indigenous rights.Footnote ⁶⁷ Rather than adding “special” or “new human rights,” the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, S. James Anaya, notes that UNDRIP offers “a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of Indigenous peoples.”Footnote ⁶⁸ As Kulchyski states, “We do not all have Aboriginal rights, nor should we.”Footnote ⁶⁹ In contrast to the individual protections offered through human rights, Indigenous rights focus more on the collective. For example, UNDRIP acknowledges that “Indigenous peoples possess collective rights which are indispensable for their existence, well-being, and integral development as peoples.”Footnote ⁷⁰

The nebulous nature of what defines a community – and the various scales of these imagined communitiesFootnote ⁷¹ – raises a further point of complication that is echoed in statements made by Thailand. For example, the statement (own emphasis added) that “Thailand would like to reaffirm to everyone our undeterred commitment of constructively resolving community forest issues and forest management for the benefit of all citizens of the world and not someone or anyone in particular.”Footnote ⁷² This was then followed by the assertion of their commitment to “preserve this world for its true owner the future generations” (own emphasis added). The hierarchy of values and importance when it comes to communities is, therefore, clearly defined, with the supposed value of the site to future generations being weighed over the current value to the Indigenous Karen peoples living within the KKFC.Footnote ⁷³

Regarding the involvement of local communities, Oman specifically applauded new developments in Thailand’s environmental legislation, namely, the 2019 National Park Act (NPA) and the amended Wildlife Conservation and Protection Act (2019), which, they stated, “represent a significant paradigm shift in Thailand’s environmental conservation policy to strike a balance between nature conservation and sustainable utilization of resources.”Footnote ⁷⁴ This note of “sustainability” in relation to balancing community uses of nature was also raised by Saudi Arabia, and it is a slippery term that can be levied to support or disempower Indigenous communities and their heritage, with the Karen’s supposed “unsustainability” due to population growth and use of natural resources deeming them targets for eviction from the KKFC. Moreover, while this language of “sustainability” can be interpreted to push a specific agenda, laws are also only as useful as their implementation and enforcement. While Section 65 of Thailand’s 2019 NPA includes provisions for working with communities who rely on natural resources for subsistence as part of their “traditional way of life,”Footnote ⁷⁵ permission to continue these practices is still left at the discretion of the government. At the same time, the 2019 NPA also emphasizes reducing the community’s dependence on the natural resources over time (effectively encouraging a shift away from traditional practices and/or a shift outside national park boundaries), with this use of the environment under strict control and subject to “supervision, inspection, [and] monitoring.”Footnote ⁷⁶ Not only is the implementation of these laws discretionary, but there have also been accusations of inequitable enforcement of these newer environmental laws and policies in Thailand.Footnote ⁷⁷

While sustainability discourse in this case has masked abuse of Indigenous rights, it has also been used in other instances as a way of centering communities within the World Heritage process. For example, Disko and Ooft describe UNESCO’s 2015 Policy for the Integration of a Sustainable Development Perspective into the Process of the World Heritage Convention as “a significant step towards enhancing the role of Indigenous peoples in the implementation of the World Heritage Convention.”Footnote ⁷⁸ This policy advocates for an approach to sustainability that acknowledges the intersection of environmental, cultural, Indigenous, social, and economic rights, and the need for sustainable development to align with human (and Indigenous) rights. This marked the first time that human rights were mentioned in one of the WHC’s policy documents.Footnote ⁷⁹ The view of sustainability outlined in this policy, however, does not align with the interpretation used to argue in favor of the listing of the KKFC.

Proper procedure and human rights

Another key theme in this discussion was that of correct procedure within the listing process and the role of human rights in the debate. This was first raised regarding the Special Rapporteur on the Rights of Indigenous People (Cali Tzay) and whether he should be allowed to speak before the decision to list (or otherwise) was made. While delegations from Spain, Norway, Guatemala, and Brazil all called for the Special Rapporteur to be heard before making a decision (and South Africa stated he should speak “after the discussion”), delegations from Ethiopia, Egypt, Saudi Arabia, and China called for the Special Rapporteur to speak only after the adoption of a decision, with the Delegation of Ethiopia stating that this was “customary” practice.Footnote ⁸⁰ Ultimately, it was noted to be the prerogative of the Chair, His Excellency Mr Tian Xuejun, who called for a vote where it was assumed the majority supported the Special Rapporteur, who spoke only at the end. What, then, would be the point of his comments if they were to have no influence on the outcome?

The fact that the WHC meeting that saw the final inscription was held in China is also worth considering, given China’s own stance on indigeneity and its parallels with Thailand. Pocock and Lilley also note that China – along with France, India, and other African and Asian state parties – has been among the most active in pushing “the World Heritage Committee’s anti-Indigenous position.”Footnote ⁸¹ In his analysis of this WHC meeting, Brumann considers the Chair to have exploited his position in deciding to hear the Special Rapporteur at the end of the KKFC discussion, arguing the Chair’s presumption of a majority in favor of this decision was incorrect.Footnote ⁸² He further critiqued the Chair’s failure to allow enough time for objections – pausing only four seconds between asking for objections and moving on.Footnote ⁸³

There was a lack of consensus within the committee regarding the role human rights should play in the World Heritage process. For example, Norway stated that “the connection between the United Nations Human Rights mechanism and the World Heritage mechanism is unavoidable,” ultimately dissociating itself from the decision to list the KFFC. Norway’s decision also aligned with its general voting record in support of the advisory body’s evaluation.Footnote ⁸⁴ However, the Delegation of China argued that human rights issues, while important, should be kept separate and instead would be more appropriately situated within the UN Human Rights Council. Meanwhile, the World Heritage list should be decided “based on scientific evidence and on our professional judgment,”Footnote ⁸⁵ thus reducing heritage to its scientifically quantifiable values and ignoring the intangible and human dimensions attached to heritage nominations – all of which are inalienable from any given site.

This perceived separation of human rights from World Heritage was also affirmed by the Delegation of Thailand, whose delegate, H.E. Mr Sihasak Phuangketkeow, himself served as the President of the United Nations Human Rights Council from 2010–2011. He stated, “we strongly believe that a clear distinction should be made between the rights of the local communities under the [World Heritage] Convention and these specific human rights cases which must be addressed under the due process of law and the relevant United Nations human rights mechanism.”Footnote ⁸⁶ This echoes the very first stages of the KKFC nomination process at the 29^th Session of the WHC in 2015, where a clause in a draft decision by the IUCN requiring Thailand to obtain free, prior, and informed consent from the Karen was removed, after the delegate for Vietnam stated “we are here at a prestigious Committee of culture and heritage, we are not in Geneva on the Human Rights Council, Madam Chair.”Footnote ⁸⁷

In stark contrast to this, remarks by the Special Rapporteur and the IIPFWH both pushed for recognition of the key role human rights must play within UNESCO and World Heritage. The World Heritage Convention of 1972 predates the 2007 UNDRIP. As such, the original convention lacks explicit recognition of Indigenous Peoples’ rights.Footnote ⁸⁸ This is partly why the debate on the KKFC instead centered on paragraph 123 of the WHC Operational Guidelines and its “local communities,” despite the 2015 update of paragraph 123 to include “Indigenous peoples” and “free, prior and informed consent” (“as appropriate”).Footnote ⁸⁹ Moreover, statements made regarding the role (or lack thereof) of human rights within World Heritage ignore the Operational Guidelines, which, at the time of the discussion in 2021, included paragraph 12, stating “State Parties to the Convention are encouraged to adopt a human-rights based approach” – including the participation of Indigenous Peoples.Footnote ⁹⁰ The inclusion of Indigenous Peoples specifically within the World Heritage process was also affirmed by paragraphs 14bis, 64, and 111, the latter of which attempts to balance UNESCO’s AHD by emphasizing a “shared understanding” of a property’s “universal, national and local values […] by all stakeholders, including local communities and Indigenous peoples.”Footnote ⁹¹

The misalignment of the Operational Guidelines with WHC practice was an issue raised at the 44^th WHC meeting by the Special Rapporteur who, when he was finally permitted to speak, stated he was there to “remind UNESCO and its member states and the WHC of your commitment and responsibility to respect the rights of Indigenous People in the important decision you took today, and you will take in the future.”Footnote ⁹² He observed that the committee’s working method was “not in compliance with UNDRIP and [the WHC’s] own Operational Guidelines,” and that it must be brought in line with UNDRIP to “ensure credibility.”Footnote ⁹³ Like the Special Rapporteur, the IIPFWH – an observer to the proceedings – was able to make a statement after the listing had already been approved. Chrissy Grant, speaking on behalf of the IIPFWH, called the decision to list the KKFC “one of the lowest points in the history of the Convention and indeed in the history of UNESCO,” “trampl[ing] upon the most fundamental principles and purposes of UNESCO, as well as those of the United Nations Charter.”Footnote ⁹⁴

This is, however, not the first time that UN bodies concerning Indigenous rights (that is, the Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous Peoples, and the Special Rapporteur on the Rights of Indigenous Peoples) have called for the WHC Operational Guidelines to be updated to better align with UNDRIP.Footnote ⁹⁵ To do so would certainly be an important step forward. However, the question of whether the alignment of the UNESCO Convention and UNDRIP would have changed the outcome of this case is not easy to answer. Of those countries who supported the inscription, two – the Russian Federation and Nigeria – voted in abstention of UNDRIP (out of 11 total abstentions), and one – Ethiopia – was non-voting (out of 34 total non-voting countries recorded). As Thailand’s own vote for UNDRIP indicates, however, the voting record is not fully indicative of attitudes towards Indigenous rights domestically. China, like Thailand, voted for UNDRIP whilst disavowing any obligations under the declaration and maintaining there are no Indigenous Peoples within the country, opting for the label of “ethnic minority” instead (Davis 2014; Hathaway 2016). Brazil also has a complicated relationship with Indigenous Peoples’ rights. The government of Jair Bolsonaro, which was in power at the time of the 44^th WHC meeting, was noted for rolling back protections for both the environment and Indigenous Peoples’ rights (de Lourdes Beldi de Alcântara Reference de Lourdes Beldi de Alcântara and Mamo2024). Nonetheless, this does not mean World Heritage should not be compliant with human rights – and Indigenous rights, more specifically.

In 2014, it was estimated that over a third of the natural sites on the World Heritage List overlapped with Indigenous Peoples’ traditional land (Disko, Tugendhat and García-Alix Reference Disko, Tugendhat, García-Alix, Disko and Tugendhat2014). Indigenous Peoples worldwide manage or have tenure rights over a quarter of the global land surface and 40% of protected areas on land (Garnett et al. Reference Garnett, Burgess, Fa, Fernández-Llamazares, Molnár, Robinson, Watson, Zander, Austin, Brondizio, Collier, Duncan, Ellis, Geyle, Jackson, Jonas, Malmer, McGowan, Sivongxay and Leiper2018). As the World Heritage List continues to expand, and even though Article 1.3 of the UN Charter encourages “respect for human rights and for fundamental freedoms for all” it seems as though conflicts between Indigenous Peoples and these World Heritage listings will continue until Indigenous Peoples” rights are formalized in the World Heritage process itself and respected by the WHC.Footnote ⁹⁶

Niezen suggests the Indigenous Peoples movement “as the embodiment of human diversity involved in a process of legal universalism” has the potential to “alter human institutions” and “pluralize and collective international institutions,” shifting away from a strict focus on state governance.Footnote ⁹⁷ In the case of UNESCO, we can see this through efforts to push bottom-up rights within the World Heritage framework by groups like the International Work Group for Indigenous Affairs (IWGIA) and the International Indigenous Peoples’ Forum on World Heritage (IIPFWH), the latter of which was created only in 2017. Positive changes to date include the addition of provisions supporting Indigenous and human rights into the World Heritage Convention’s Operational Guidelines in 2015 and 2019, updates to the Format for the nomination of properties for inscription on the World Heritage List in 2021, and the Request Format for a Preliminary Assessment of a Potential Nomination to the World Heritage List, adding explicit mention of the need to identify and include affected Indigenous Peoples and to obtain free, prior, and informed consent.Footnote ⁹⁸ The statements made by Vietnam in 2015, and echoed by Thailand in 2021, suggesting human rights have no place in World Heritage matters, indicate that, despite efforts to align human rights and World Heritage through policy, in practice, the disconnect is still apparent. This leads to an erosion of trust in World Heritage as an institution. As the report of a 2022 advisory mission by the IUCN to the KKFC the year following its inscription notes, “[a]s the World Heritage Convention moves towards a more meaningful consideration and involvement of [Indigenous Peoples and Local Communities], inscription prior to the resolution of strong, well-documented and highly visible conflicts can be seen as a missed opportunity for the credibility and relevance of the Convention.”Footnote ⁹⁹

In a country like Thailand, where the state does not acknowledge Indigenous existence within the country and, therefore, does not protect local Indigenous rights, Indigenous Peoples must instead rely on global mechanisms to protect them. In 2000, when the idea of establishing a World Heritage Indigenous Peoples Council of Experts was proposed at the 24^th WHC session, Thailand disagreed. Adul Wichiencharoen, Chairman of Thailand’s WHC at the time, stated that “Indigenous issues are a domestic, national question, and are best handled on that level,” cautioning that the introduction of this council would be “introducing a political element” to World Heritage proceedings.Footnote ¹⁰⁰ However, as this paper has shown, politics are already embedded within the World Heritage process. In the case of the KKFC, this process failed the Karen. This does not mean, however, that global frameworks are not useful. Future work to incorporate explicit recognition of Indigenous rights within the World Heritage Convention must also consider circumstances like Thailand – including other Asian and African countries – where indigeneity remains a contested concept. Thailand’s failure to acknowledge the Karen as Indigenous should not undermine their indigeneity and rights to protection at the international level. Decisions by members of the WHC should also align with other UN guidelines alongside their own, as well as with advisory body recommendations. Failure to do so would mean communities like the Karen continue to slip through the cracks of supposedly protective mechanisms – to the loss of their heritage, histories, livelihoods, and fundamental human rights.

Horse trading and shifting goalposts

The statement made by Chrissy Grant on behalf of the IIPFWH following the decision to list the KKFC also highlights an unspoken layer to the AHD that could not be captured by analysis of the record of prepared statements made at the formal meeting alone, as it was not part of the “on the record” discussions. Grant noted that rather than being made on “expert judgment,” “good heritage practice,” and “the principles of the sustainable development policy,” the decision to list the KKFC was instead “the result of highly public, politicized lobbying and horse trading based on [the] economic interest[s] of Committee members.”Footnote ¹⁰¹ Such vote-trading was confirmed in the case of the Spanish delegate, who stated that they voted against the Danger Listing of the Great Barrier Reef in exchange for support listing Spain’s nomination of Paseo del Prado and Buen Retiro.Footnote ¹⁰² Of the members of the WHC that year, only four – Guatemala, Norway, Oman, and Saint Kitts and Nevis – did not have any direct connection to the sites being discussed. Of these, only Oman spoke in favor of the KKFC listing. Grant’s accusations of a lack of impartiality within the WHC process parallel arguments made on the other side of the debate, with both Ethiopia and Thailand accusing the WHC of “shifting goalposts” in relation to the KKFC nomination, where Thailand argued that “most of these issues have been addressed or clarified but they are constantly rehashed or revived for the purpose of preventing the inscription.”Footnote ¹⁰³ The Delegation of Saudi Arabia also raised concern over the “consistency and the integrity of the decisions taken” within the WHC should the KKFC be referred once again, stating that such an outcome would be inexplicable.Footnote ¹⁰⁴

The mention of shifting goalposts alludes to the drawn-out, seven-year-long process of the KKFC nomination, which was referred back to the Thai State Party at WHC meetings in 2015, 2016, and 2019, before its eventual inscription in 2021. This came despite the IUCN’s recommendation of a deferral for a second year in a row, downgrading it from the initial referral recommendations given in 2015 and 2016. Although Ethiopia accused the committee of double standards, the successful inscription of the KKFC in 2021 was highly questionable. The KKFC was listed despite Thailand’s consistent failure to address previous committee concerns and the usual maximum referral time being three years. In 2021, the KKFC nomination had significant changes to the boundary since the initial proposal: the complete removal of the buffer zone, the failure to obtain support from the Karen within the park, and the failure to address human rights concerns in accordance with paragraph 123 of the Operational Guidelines. The IUCN, as the advisory body, also had not visited the site since it was first evaluated seven years prior. The 2021 listing pushed the KKFC up two levels – taking it from a deferral recommendation to an inscription and bypassing another referral recommendation. UNESCO’s 2010 Advisory Bodies’ background information document on referral and deferral of nominations states that there have been “a few cases” where properties where deferral was recommended ended up being referred and later listed “without some fundamental issues and concerns being addressed,” as is the case with the KKFC.Footnote ¹⁰⁵ It also states that “[i]n the worst case scenario, such an outcome may have the perverse result that premature inscription on the World Heritage List might actually damage the cultural or natural heritage that is the subject of the nomination.”

While international and domestic pressure from local Karen activists supported by Indigenous and human rights NGOs working alongside the IIPFWH and the OHCHR may have succeeded in stalling the inscription of the KKFC, it ultimately fell short. That is not to say global protective frameworks are not useful. The Karen received support from the OHCHR Special Rapporteurs throughout the World Heritage process, which aided in advocacy and visibility. It is also important to note that the Karen were not against the idea of a World Heritage listing, as seen in a letter to the Director of the World Heritage Programme in 2014, which stated, “We support the establishment of a natural world heritage site” as long as it “respects our rights, our identity as indigenous people and for equitable conservation of natural resources and biodiversity as an asset for the world community.”Footnote ¹⁰⁶ Ultimately, the inscription of the KKFC without the inclusion of the Karen highlights crucial flaws in the World Heritage Process. In particular, it showed the self-serving focus of the WHC, which was able to treat UN frameworks like UNDRIP and the Universal Declaration of Human Rights as irrelevant in the World Heritage Process.

As notable as those who spoke out – for or against the listing – were those members who remained silent during the discussion (see Table 2). Although Bertacchini et al. state that it is “difficult to interpret the position of those countries that do not intervene” in WHC discussions,Footnote ¹⁰⁷ the IWGIA observed that Australia’s silence during the discussion was likely part of an exchange of votes with Thailand, where the Delegation of Thailand would not vote for Australia’s Great Barrier Reef to be put on the list of World Heritage Sites “In Danger” in exchange for Australia’s support for the KKFC listing.Footnote ¹⁰⁸ This is particularly convincing as Australia had argued against the inscription of the KKFC at the WHC session in 2019, stating that “Australia certainly can’t support the proposition of inscription.” They argued for a deferral but stated that should the property be referred, then the revised nomination would require a “comprehensive update on the State Party’s engagement with the Karen community in accordance with paragraph 123 of the Operational Guidelines and that the UNOCHR should be asked to review the dossier in relation to the point about engagement with the Karen community through paragraph 123.”Footnote ¹⁰⁹

Table 2. Members of the World Heritage Committee (44^th Session) who spoke or remained silent on the KKFC nomination.

* Countries that voted “No” to UNDRIP (1 of 4)

^† Countries that were “Non-Voting” (4 of 34)

^‡ Abstentions (2 of 11).

The silence in 2021 was, therefore, a stark reversal of this position. The IWGIA also noted that in this 44^th session, only one site of all considered was not listed, and 43% (16 out of 37) of sites, including the KKFC, were listed against recommendations from the advisory bodies (IUCN and ICOMOS).Footnote ¹¹⁰ Thus, while the Delegation of China advocated that human rights concerns should be set aside in favor of a decision based on scientific and professional judgments, it is clear that, at least in this session, the expertise of the IUCN and ICOMOS was ignored. As Brumann describes in his analysis of the 44^th session, “more than ever before, the Committee insisted on being accountable only to itself,” noting also that while this year was exceptional, this is a trend that began to emerge in 2010.Footnote ¹¹¹ Therefore, while the discourse of universality was used to undermine the Karen’s rights to KKFC in favor of the imagined global community’s rights to the site’s natural resources in the official WHC discussion, the internal politics behind the scenes suggests universality was not the primary motivator for this decision, which was ultimately the result of national self-interest.