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The Hill of Tara and the Need for a New
UNESCO Convention to Protect Archaeological Landscapes
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Meghan Abigail
- University of Texas Law School
Section 1
From the Stone Age to
the 12th century, The Hill of Tara was the seat of the ancient kings of
Ireland, representing a spiritual and political capitol for the country.
According to legend, the Irish kings were
chosen by the Lia Fáil, or Stone of
Destiny, which would scream to indicate the rightful High King of Ireland.
Celtic myth narrates that in 433 A.D., it was where Saint Patrick confronted
the Druids and lit the Paschal fire to challenge their authority. At the turn
of the 19th century, a group calling itself the British-Israelites believed
that the ancient Irish had in fact been a lost tribe of Israel and
attempted excavation of the Hill in search of the Ark of the Covenant.
The resulting outcry, led largely by Celtic revival figures, halted
the excavation and marked Ireland’s first public campaign to rescue
a public monument. It would be another fifty years before the Hill’s first
sanctioned archaeological dig took place. That effort centered on
one of the
more famous structures located on the Hill, an ancient passage tomb at the
summit called the Mound of Hostages. The mound is dome-shaped, its doorway
facing east to allow the rising sun to shine through the passageway on the
Spring and Fall Equinoxes. It was used for burials from the early Neolithic,
with an estimated 250 to 500 bodies buried within. Another grave on the Hill
has since been found and is supposedly that of King Lóegaire, rumored to be
the last pagan kind of Ireland. Even more recently, the Hill of Tara inspired
Margaret Mitchell to name Scarlett O’Hara’s plantation Tara in “Gone with
the Wind.” The Hill’s permeation of culture is unsurprising, given
the sentiment put forth by some that the Hill is like Ireland’s
equivalent of Stone Henge. Its importance derives not only from its history,
but
its beauty. From the top of the Hill on a clear day, some say you
can see all of Ireland’s heartland.
In modern times, the Hill is
about an hour-long drive to the northwest of downtown Dublin, the largest and
arguably most famous city in Ireland. It is this location that has now thrust
it into the controversy over Ireland’s road planning scheme, as the
government builds a roadway through the Tara-Skryne Valley approximately
two kilometers away from the Hill. On one side of the debate are
the government and an overwhelming majority of Meath Country residents,
who advocate for a roadway that they say will ease alarming
traffic congestion and update Ireland’s aged infrastructure; on the other
side are academics, archaeologists, around seventy percent of Irish
citizens , and now, the European Commission, who fear that the roadway
is
negatively impacting the archaeological heritage, beauty,
and significance of the Hill. This paper aims to explore the insights
that the Hill of Tara example affords international cultural
property protection law. The first section describes the facts of the Hill
of Tara controversy, especially the arguments on either side of the
debate surrounding the route selection process. The second section
puts UNESCO’s role in the controversy into perspective, first by
assessing UNESCO’s response, and second by exploring how the Hill of
Tara controversy may or should lead UNESCO to adopt a new convention
dealing specifically with archaeological landscape protection. In particular,
I will analyze the roles that state sovereignty and public
perception properly play in shaping such a convention.
I. Tara and the
M3
In 1999, the National Roads Authority (hereinafter “NRA”) began
its planning process in a bid to bring Ireland’s roadway system into
the 21st century. Ireland in the 1980s and 1990s experienced a
major economic boom but received criticism for its outdated and
inadequate infrastructure. In 2005, 400 people died on Ireland’s roads, a
rate close to the European average which nonetheless had the
government concerned. Since Meath County’s population doubled in the past
decade -
and is expected to double again in the next decade - commuters spend
up to two hours waiting on the N3, a narrow two-lane road. The
accident rate on the N3 is fifty percent higher than the national average.
The M3, NRA’s answer to the jam-packed N3, is championed by
its supporters as a key component of the government’s efforts to
upgrade the country’s infrastructure, specifically between the North
West, Caven, North Meath, and Dublin - one of the busiest
transport connections in Ireland . The M3 is intended to allow commuters
to avoid the escalating population in County Meath by bypassing
cities such as Dunshaughlin, Navan, and Kells. The road’s
planners consequently purport that the M3 will benefit not only motorists
but the people living in those cities as an estimated 220,000
vehicles daily are able to access a “safer, faster” roadway.
In 1999,
a Route Selection process commenced in order to assess the route corridors
and possible pathways within them. The September 2001 route selection report
for the pathway between Dunshaughlin and Navan, called Section 2, highlighted
ten possible route options, which together formed two basic route corridors
on either side of Navan.
There was one route to the west of the Hill, but
the NRA concluded that although it was one of the best options for enabling
through traffic, its interchanges’ remoteness would discourage local drivers
from actually using the road and detract from its effectiveness as a
traffic control mechanism. The placement of the route would also be
highly
visible from the Hill and adversely affect the visual landscape.
Finally, its location next to existing local country roads
would significantly heighten their traffic, resulting in increased air
and noise pollution by a significantly populated area.
The NRA found
most of the routes east to the Hill of Tara to also be unsatisfactory. Three
of the nine routes were longer than the others and were found to disrupt the
greatest number of side roads, which were themselves in need of updating;
four of the routes, as well as their associated interchanges, were deemed too
proximate to the Hill itself to be viable options. The final route was chosen
because the NRA predicted that its junctions would be poised to catch more
local traffic from Navan, its construction would have the least impact on
the local community, and it was considered more archaeologically
friendly
relative to the other options.
After the preferred route was
selected, the NRA conducted an Environmental Impact Assessment (hereinafter
EIA) in order to assess more in-depth the effects the route would have on the
Tara-Skryne Valley. Desk-top surveys were employed for the entire route,
based predominately on the State’s Record of Monuments and
Places (hereinafter RMP) and the files of the Sites and Monuments
Record.
Further consultation took place using the National Museum of
Ireland’s topographical files, the national archive of all known
artifacts, historical maps, and modern aerial photographs. The survey
identified two RMP monuments that the route would impact, both of which were
in the controversial Section 2. Professional archaeologists walked
the entire route and found fifteen possible archaeological sites, none
of which were located in Section 2. A geological survey identified six new
definite archeological sites and twenty-three further areas of archaeological
potential; the road was moved to avoid three of the six definite sites. The
EIS was published in March 2002, followed by a 28-day oral hearing in the
fall. An Bord Pleanála approved the roadway on August, 25
2003.
Despite the NRA’s insistence upon the legitimacy of its road
planning process, criticism has been rampant. Archaeologists and
academics opposing the routing of Section 2 argue that the NRA’s road
planning process failed to accurately account for the archaeological impact
that the road would have on the Hill of Tara complex. They point
to contrary archaeological evidence and accuse the NRA of clouding
the facts to portray a less-intrusive impact. Indeed, some M3 opponents
go
so far as to argue that the NRA deliberately masked the truth about
the M3’s effects on the Hill in order to appease private investors
and interests in lieu of protecting cultural heritage. The opponents
of the road argue that there are in fact viable alternatives to
the current route that would be less environmentally damaging and
question what they perceive to be the government’s stubbornness over
re-routing the contentious road.
One of the opposing archaeologists’
leading arguments against the M3 is that the NRA and the Minister for
Heritage approached its archaeological analysis on a site-to-site basis
rather than by considering the Hill of Tara as an integrated complex that
must be viewed as a whole. The result is that the M3 bisects an
archeological landscape whose meaning is best discerned, and whose
significance in ancient times is best understood, when viewed in conjunction
with its surrounding features.
Conor Newman, an archaeology professor
at NUI-Galway, counters the NRA’s description of the planning process as
“open”, accusing the NRA of “dilut[ing] the advice originally included in the
Route Selection
Reports 2001”, including “strongly worded cautionary advice
of two independent archaeological consultants” which was “watered down to
mere platitudes in the [EIS] (Feb. 2002) and effectively reversed at
the oral hearing.” Newman includes himself and several
other archaeologists who made submissions to Meath County Council, An
Bord Pleanála, or at the oral hearing, as those whose advice has
been ignored or even distorted by the NRA and Environment Minister.
Fellow Galway archaeologist Joe Fenwick similarly describes the
NRA’s treatment of the archaeological assessments. Fenwick asserts that
the NRA’s twenty-page booklet, “The NRA, The M3 and Archaeology- The
Facts” , contains selective information which has “been given a
particular slant”. At a hearing before a joint Oireachtas committee, members
of
the Tara Heritage Preservation Group pointed to the June 1999
and January 2000 route selection reports, which failed to suggest
a preferred route in the section because of the archaeological complexity,
and an August 2000 report warning the NRA that any developments in that area
would have a significant impact on the landscape and recommending a different
route than the one eventually selected by the NRA. Despite these reports,
said the Tara Heritage Preservation Group, the NRA plowed ahead with its
chosen route, and the An Bord Pleanála inspector, who was not an
archaeologist, endorsed the route as being one without any significant
impact. Finally, the Tara Heritage Preservation Group accused the NRA of
understating the number of sites to be impacted during construction,
insinuating that the NRA was perhaps deliberately misleading when it
presented to the Oireachtas Statements in June 2004 that only two known sites
would be impacted
along Section 2, despite a May 2004 interim trenching
report identifying approximately 28 archaeological sites.
Opponents
dispute NRA’s claim that they fully considered all of the available
alternatives, pointing to the fact that of the primary routes initially
introduced at the route selection stage, almost all went through the
Tara-Skryne Valley, neglecting potential routes outside the valley. Vincent
Salafia, an American-trained lawyer who leads M3 opposition group Tarawatch
suggests a route further out west. Others question why the government did not
consider improving the existing freight railway line, which passes from Navan
to Dublin, as an alternative means of easing traffic congestion. Still others
have
called on the government to consider improving the N3 rather than
build an entire new motorway. To many opponents, the
government’s steadfastness in preserving the chosen route for Section 2
represents a conscious decision to ignore or misconstrue archaeological
evidence so that the road could continue as planned - but many also wonder if
there
are reasons besides costs and delays behind Ireland’s unwaveringness
in the face of domestic and European Union (hereinafter EU) opposition.
In
April 2004, over 200 acres of land beside the proposed M3 interchange were
transferred to Cathal McCarthy, the property developer behind the Navan
Shopping Center who in the mid-1990s bought a property in Navan with other
investors, including a Fianna Fail fundraiser and former government press
secretary Frank Dunlop (neither of whom has any apparent involvement in the
land transfers near the M3). Kevin Stewart, the Meath County Council planning
director, said that no proposed developments on the land had been introduced,
but any plans that did arise would be carefully considered. Similarly, NRA
spokesman Michael Egan stated that anyone who applied for permission to build
on
the land would need to go through the normal planning process, in
which the context of its proximity to Tara would be a certain factor.
He indicated, however, that the NRA was generally in favor of
service stations being located on national roads near motorway interchanges.
To some M3 opponents, this land transfer illustrated its concern that the
M3 would lead to not only through traffic and a highly-lit interchange but
also shopping center development near the Hill. And to
some, it underscored
fears that Ireland’s road planning process was littered with private
interests and political corruption. Previous development projects in Ireland
were similarly clouded with accusations
of corruption: In 2004, ten
politicians were questioned by the Criminal Assets Bureau in connection with
an alleged bribery plot over the re-zoning of the Jackson Way lands at the
controversial Carrickmines
Castle site in south Dublin, where the M50 was
constructed. Former government press secretary Frank Dunlop said he paid nine
Dublin county councilors with money from businessman Jim Kennedy to have the
20-acre site re-zoned from agricultural to commercial use (the
councilors denied the allegations).
In fact, the Irish
government faces increasing criticism that general political corruption is
widespread, dropping on the Corruption Perceptions Index sponsored by
Transparency International from a 1995 ranking of “11th least corrupt country
in the world” to a 2007 ranking of 17th. In particular, the structural
features of the government, which often place in the hands of officials the
discretion to “arbitrarily create or destroy private economic values,”
ostensibly make government officials susceptible to corruption. This
constitutes the essence of the argument that the 2004 amendment to
Ireland’s
National Monuments Act, enacted after protests caused delays to
road
construction of the M50 by Carrickmines Castle, needs revision.
The amendment vested in the Environment Minister the power to
destroy national monuments if it is in the “national interest”.
As
the start date for Section 2’s construction neared, the number of known
archaeological sites along the route increased steadily. In March 2007,
Tarawatch began taking donations in order to fund an independently conducted
EIA, which they anticipated would counter the one sponsored by the NRA. After
road construction began, and the
number of encountered archaeological sites
increased, opponents also called for independent monitoring of the excavation
to ensure proper excavation of the sites.
On May 1, 2007, less than
twenty-four hours after Irish Transport Minister Martin Cullen “turned the
first sod” for the M3 about two kilometers away from the Hill of Tara, road
workers encountered a prehistoric semi-circular henge about 80 meters in
diameter. Former Environment Minister Dick Roche temporarily halted
construction and designated the site a national monument. Ensuing study of
the monument, Lismullin, suggested that it was likely used as an
ancient
ceremonial site. As one of his final acts in office, Roche signed
an order for Lismullin to be preserved by record, meaning that it
should be photographed, sketched, and measured, before continuing
construction directly through the site. The Department of the Environment,
which did not immediately issue a press release about the order , said
that the order conformed to advice from the National Museum. The
Department also stated that the incoming Green Party Minister for
the Environment, John Gormley, would be unable to reverse the order.
Opponents, using the Lismullin discovery as validation of their argument
that Tara should be considered as an archaeological complex, including the
valley in which it is situated, repeated their requests for independent
archaeological assessments and for re-routing the M3 away from the Hill. The
discovery threw doubt over the NRA’s initial thoroughness in its EIA since it
missed a new national monument the size of three football fields directly in
the path of their
construction.
State archaeologists began carrying
out Roche’s order in early August, citing adverse weather as a threat to the
delicate henge that necessitated immediate excavation. This assessment of
fragility was disputed by Dr. Ronald Hicks, a U.S. professor at Ball State
University in Indiana, who described Lismullin as an ancient amphitheatre
that could and should be preserved in situ due to its unique size
and character. On August, 22 2007, An Bord Pleanála ruled that
the
discovery of this new national monument did not constitute a
material change to the proposed route, meaning that no new route review would
be needed and that construction of the road could continue at
the Lismullin site. The board said it based its decision on the
alignment and design of the approved road development as well as
Roche’s directions to fully excavate and record the site.
M3
opponents, bitter that the board’s decision was made without consulting
public opinion or independent assessments such as the one issued by Dr.
Ronald Hicks, immediately announced plans to appeal the decision to the
European Commission, which had already stated it was investigating the
legality of the Ireland’s road planning scheme and the M3. After the
Lismillen discovery, European Union’s petition committee had urged the Irish
government to carry out a new route
review before continuing construction.
The government’s failure to do so, said EU’s Environment commissioner Stavros
Dimas, contravened EU law. EU Directive 85/377/EEC instructs member States to
properly assess the effects on the environment of developmental projects.
The commission decided that Ireland’s failure to order a second EIA
after
Lismullin’s discovery violated the directive because the original
EIA, which took place in 2003, was no longer representative of the
true archaeological impact that the M3 would have. Citing as its
reason Lismullin’s fragility, Ireland ignored the commission’s advice
and continued excavation. The government argued that choosing
an alternative route for a motorway that it considers an integral part
of its infrastructural updating would cause significant delays and cost
an additional two million euros on top of an already expensive
estimated cost of 650 million euros. On October 17, 2007, the
commission referred the Irish government to the European Courts of
Justice (hereinafter ECJ) for a ruling on the matter. If the ECJ decides
that Ireland violated the law, it may force the government to change
its national monuments legislation or face large fines.
Although the
Commission opted to not press for an injunction to halt construction, in late
August the Campaign to Save Tara group, naming Michael Canney as its
plaintiff, began domestic legal proceedings to halt M3 roadwork pending the
ECJ case outcome. A similar domestic case pressed by Vincent Salafia of
Tarawatch concerning the
constitutionality of the National Amendments Act
(2004) was dismissed by the Irish Supreme Court.
Currently about 70
percent of Irish citizens think that the M3 should be re-routed away from
Tara, a majority in stark contrast to the number of Meath County residents
who support the development. Protests have become a regular event at the
Hill. Even celebrities have been moved to join the push to save Tara,
including actress Charlize Theron and her Irish fiancé Stuart Townsend.
Nonetheless, construction continues.
Section 2
This paper takes
no position on whether or not, as some M3 opponents suggest, the Irish
government and its hired archaeologists engaged in bad-faith behavior when
selecting the route for Section 2; it is possible that Ireland faced
conflicting archaeological advice and in good faith pursued the current
route, and it is possible that it did not. Instead, this paper focuses on how
this controversy could affect perceptions about international law regarding
the protection of
cultural heritage. The first part of this section examines
UNESCO’s history in international cultural property protection law. The
second part uses comparative analysis with the Bamiyan Buddhas incident at
the turn of the century to describe UNESCO’s response to destruction
at sites not inscribed on its World Heritage List. The third part
assesses the World Heritage Convention’s shortcomings with respect
to archaeological landscapes, and is supplemented by a final part in
which I recommend that UNESCO consider a new convention to better handle
the unique problems presented by this specific type of cultural property.
I. A History of UNESCO Conventions
A general review of cultural
property law development helpfully informs the legal analysis relevant to the
Hill of Tara controversy.
Propagation of international standards began to
seriously develop after the World Wars in response to wide-scale looting and
Nazi destruction of Jewish heritage. In 1945, the United Nations
Educational, Scientific, and Cultural Organization (hereinafter UNESCO) came
into being. The 1954 UNESCO Convention for the Protection of
Cultural Property in the Event of Armed Conflict (1954 Hague
Convention) addressed repatriation of cultural property confiscated during
World
War II and prohibited cultural property destruction during all
armed conflicts, unless military necessities arose justifying
the
destruction. The Convention also developed a definition for
“cultural property”, which included the notion that cultural property is
relevant not only to its host State but to “all peoples of the world”.
Although the Hague Convention was most noted for its efforts to
protect cultural property from wartime destruction, it did include an
article requiring States to safeguard their cultural heritage during times
of peace; however, no specific requirements provide guidance
or
enforcement.
The 1970 UNESCO Convention turned its focus to
peacetime protection of cultural property, especially illicit trafficking.
The definition of “cultural property” was expanded to include almost anything
created or shaped by man. Under the 1970 Convention, each member state has
an obligation to regulate its own cultural property preservation laws
as
well as encourage appreciation for cultural property. Because
the Convention calls on member states to inventory and designate
specific items as protected property, it embodies a more nationalistic
approach than the Hague Convention.
The 1972 World Heritage
Convention is the most widely ratified UNESCO convention and has as its goal
the identification and protection of cultural and national heritage of
“outstanding universal value”. World heritage is defined to include natural
geographical and physiographical formations, sites, and features as well as
historical sites and therefore more obviously broadens the scope of threats
beyond wartime destruction or illicit trafficking to include economic,
social, and natural threats to cultural property. Indeed, one of the
events leading to the creation of this new convention was Egypt’s plan in
the
1960s to build Aswan Dam, which would flood the Upper Nile Valley
and bury the remains of the ancient Nubian civilization under 60 meters
of water.
Of its member states, the World Heritage Convention
requires submissions regarding specific legislative efforts taken to
implement the goals of the Convention. It also established the World
Heritage Fund as a means of providing assistance to member states in
protection locations within its territory. The real meat of the
Convention,however, lies in its World Heritage List; states nominate
cultural monuments and sites within their territory that are of
“outstanding universal value” to the list, although the Convention explicitly
states that failure to include a property is not necessarily indicative of
its
universal value. Because the World Heritage Convention
more conspicuously includes natural sites and archaeological landscapes,
it is the most applicable UNESCO convention for the Hill of
Tara controversy.
I. UNESCO’s response to the Hill of Tara
Controversy
The Hill of Tara is not on the World Heritage List, although
one online poll indicated that 82 percent of its respondents think that
it should be. Because Ireland never nominated Tara to the list,
UNESCO’s response to the Hill of Tara controversy has been muted. The
Convention provides that only the sites inscribed on the list will be covered
by the general duty of safeguarding and conservation. Although Article
12 of the World Heritage Convention states that the absence of
a particular site on the list “shall in no way be construed to mean
that it does not have an outstanding universal value for purposes other
than those resulting from inclusion in these lists” , UNESCO has thus
far declined to invoke that article in its response to the Hill of
Tara controversy.
Correspondence between the World Heritage Center and
the Irish Department of the Environment resulted in UNESCO’s
apparent acceptance of the government’s contention that M3 would be further
from
the Hill than the existing roadway. The result is an
implicit indication that, in order to invoke that provision, something
more severe than the events surrounding the Tara controversy must
take place.
When the Taliban ordered the destruction of the Bamiyan
Buddhas in Afghanistan in 2001, UNESCO reacted strongly despite the fact that
the Buddhas were not inscribed on the World Heritage List. The
Taliban’s destruction of the famous statutes was ordered after the
Taliban concluded, albeit contrary to other Islamic interpretations, that
the
statutes’ existence violated Islamic law. The international
community largely concluded that the destruction was but part of a much
larger plan for the Taliban to exterminate ancient Afghan cultural heritage.
Thus, it constituted an act of iconoclasm which also to a certain extent
violated human rights. This additional element of purposeful, bad-faith
cultural eradication likely elevated the degree of concern felt by
international actors. In contrast, the M3 represents
Ireland’s infrastructural development, a goal which is facially more
innocent than purposeful, iconoclastic cultural property destruction.
In
addition, the Taliban was not generally recognized as the official government
of Afghanistan. Although that may have on the one side raised concerns over
the applicability of international law to the Taliban, on the other hand it
helped free UNESCO from the reins of state sovereignty underlying the World
Heritage Convention. Despite the Convention’s concern with the principle of
the “universal value” of heritage sites, it retains a significant element of
state sovereignty.
The most obvious manifestation of this is the “rigid
requirement” of the territorial state’s consent before property within its
jurisdiction is added to the List, which can, if the state neglects to
nominate a worthy site, run contrary to the purpose of the Convention by
failing to include sites of worldwide interest. Similarly, the World
Heritage Committee ‘s ability to provide international assistance is
conditioned on state consent. The Convention also delegates to the states the
task of creating and enacting their own cultural protection laws so long
as they comply with the general duties under the Convention, which
grants
to each state significant leeway in designing its own cultural
property law. The Convention’s tension between state sovereignty notions and
the principle of world heritage as the property of all humankind,
however, was dissipated by the general renunciation of the Taliban
as Afghanistan’s official regime. Given the undertones of
state sovereignty present in the Convention, UNESCO likely felt
more confident chastising a regime lacking general international
respect than it would chastising a country such as Ireland.
The order
issued by the Taliban called for the total destruction of the Bamiyan
Buddhas. While the M3’s construction is certain to have disadvantageous
effects on the Hill of Tara, the Hill and itself will still be intact, and
Minister Roche ordered the preservation by record of Lismullin before its
complete destruction. Despite arguments that Ireland is not doing enough to
preserve the archaeological importance of the Tara-Skryne Valley, its
preservation measures contrast enough with the Taliban’s treatment of Afghan
heritage to justify a lesser intrusion on UNESCO’s part.
There is
another reason why UNESCO may be taking a relatively mild approach to the
Tara controversy. In the absence of “teeth” and in the presence of a regional
authority, the EU, which had been and currently is pressing the Tara issue,
UNESCO may view delegation of the task to the ECJ as a practical alternative
to resolving the issue without first having had a chance to reconsider its
precedential approaches and convention language. Because the EU has more
stringent and specific requirements placed on Ireland, as well as enforcement
mechanisms, it is a more effective forum than the World Heritage Center to
tackle the controversy. UNESCO is therefore saved from needing to invoke
the catch-all provision or otherwise reconsider its approaches in the
face of a heritage threat that seems less innocent than the Bamiyan
Buddhas incident.
II. Reconsidering the World Heritage Convention’s
Abilities in Light ofTara
However, the Hill of Tara controversy, if
it is not enough to make UNESCO reconsider its use of the catch-all
provision, may show UNESCO the need to reconsider some of the underlying
principles underlying the World Heritage Convention, particularly the
principle of state sovereignty. The Hill of Tara’s absence on the List
demonstrates the dangers of allowing each state full authority over which
sites within its jurisdiction receive the benefit of UNESCO protection.
Possibly
this in part arises out of the origins of UNESCO conventions,
which were originally inspired by wartime destruction and
illicit
trafficking, both of which have implicit in them the premise that
a non-territorial state is the one committing the destruction.
Although the Conventions have certainly progressed past that point to
encompass more, the remnants of that bias may remain. More importantly,
the general international norm is that states retain domestic
sovereignty.
As important as state sovereignty remains in international
law, the World Heritage Conventions and its sister conventions would begin
to grow “teeth” and be more useful for solving heritage
preservation problems if some of that sovereignty was eroded. Three of the
way in which states retain so much sovereignty are particularly
problematic when viewed in context with controversies such as Tara: first,
states’ own nominations of its sites to the List, second, the leeway granted
to each state in formulating its own cultural protection laws, and
third, the delegation to the state the ability to formulate those laws
without
consultation from the very people who presumably value the
cultural property.
The first is problematic because it allows states
to contravene the spirit of the Convention simply by bypassing the nomination
of a particular site so that it escapes UNESCO jurisdiction
absent superseding circumstances as seen in the Bamiyan Buddhas
incident.
Especially if a state envisions economic development in a
culturally significant area, it has a strong incentive to neglect nominating
a certain site. Tara is possibly a prime example of this.
Economic development poses a particular threat because at the same time
that states highly covet and proactively seek it, it seems to
the international community more innocent than, for example,
iconoclastic or wartime destruction. Because it seems more innocent and
generally will escape UNESCO pressure, states are then free to turn to their
own cultural protection laws. If the critics who contend that
Ireland engaged in bad-faith behavior in pursuing construction of the M3
over valid archaeological concerns are indeed correct, then the Hill of
Tara case is also a prime example of the dangers that state-enacted
laws have on limiting the state from destroying its cultural
heritage.
Ireland, whose National Monuments Act (2004) explicitly enables
its Environment Minister to destroy National Monuments and other
cultural property , would be relatively free from outside interference if
it were not for EU laws requiring proper environmental impact
assessments. Even with the EU’s EIA requirements, Ireland may still
escape accountability because it carried out its own initial EIA using its
own archaeologists, satisfying the pertinent directive under a
strict, technical interpretation. The “duty” under the Convention
requiring proper cultural property preservation is relatively eschewable,
then, when its signatory countries are pursuing economic development
projects and are able to utilize their own laws and tools to determine
what cultural property to maintain or destroy. Although Ireland has
not necessarily acted in bad faith, or in a way it knew might be
contrary to its duties under the World Heritage Convention and EU law, the
lack of accountability makes it difficult to ascertain to what
extent
Ireland in fact attempted to preserve Tara during its road
planning process. Given the rapid rate of economic development across the
world, UNESCO might need to consider raising the level of accountability
from its signatory states in order to escalate the level of protection
that
important heritage sites receive.
Finally, the Tara controversy
illustrates the tension between a state that wants to raze a National
Monument and build a road through an archaeologically rich valley, and the
people to whom that archaeological culture primarily belongs and who
generally oppose their government’s approach. Had the Irish people, rather
than the government, decided Tara’s fate, it is likely that not only would
Tara be on the World Heritage List, but that the M3 would have
been re-routed away from the Hill. The World Heritage Convention
does little to grant public opinion real significance in cultural
property preservation. Public opinion may be particularly important in
cases involving economic development because economic development poses
the problem of balancing the good that development affords the public
with the risks it entails to cultural sites. Generally, the good
resulting from development is meant to help the public, just as the M3 is
meant to ease traffic concerns for Irish citizens. The public, who both
value their own heritage and recognize the benefits of economic
development, are in a unique position to provide insight into which is more
prized in any given development scheme; in contrast to the government,
which must also deal with political and monetary pressure from
various sources, the public offers a purer assessment of whether or not
the proposed economic development infringes too greatly on their
cultural property.
III. A New Convention for Archaeological
Landscapes
Just as UNESCO has pursued new conventions in order to deal
with other specific cultural property problems calling for heightened
protection , UNESCO may want to consider a new convention to deal more
specifically with the threats that economic development has for
archaeological landscapes such as the Hill of Tara . Currently, the focus of
the World
Heritage Convention is general promotion of natural heritage
protection and identification and protection of sites of “universal value”.
While the general scope of cultural property protection pertains
to controversies like Tara, is nonetheless too broad to have the
guidance necessary for archaeological landscapes protection. A UNESCO
convention offering that guidance would not only provide a future avenue
through which UNESCO could more vehemently protest heritage destruction of
this nature, it would give more legitimacy to its response, inserting
UNESCO more forcefully into the arena of archaeological landscape
protection, even when the site is not inscribed on its List. Such a
convention would also enable UNESCO to be better prepared for instances in
which appropriate regional authorities, such as the EU in the
Tara controversy, are not available to monitor state projects.
Archaeological landscapes are unique from other types of
heritage protected under the World Heritage Convention. The most
obvious distinction is their greater breadth and complexity, and
therefore their greater likelihood that they will become an obstacle to
economic development. Whereas sites such as the Statute of Liberty consist of
a single or few monuments or structures that are immediately obvious
to their viewers, a site such as the Hill of Tara arguably
encompasses miles of land under which archaeological evidence lies
undiscovered.
Moreover, archaeologists view these landscapes as ones which
must be viewed in their entirety, because the context of the site is as or
even more crucial to understanding its significance as any
independent monument or artifact found within it. Those who partake
in appreciating archaeological landscapes such as the Hill of Tara
would likely recognize that the appreciation arises as much out of
viewing the landscape in its entirety as it does from the Hill
itself: remember, for example, the poetic notion that from the summit of
the Hill, one can view the Irish landscape for miles. Destroying
that
landscape detracts not only from the archaeological knowledge to
be gleaned from it but the appreciation by the people to whom it
belongs.
A new convention, one without the concept of states’
self-identified sites as the ones to be protected, could establish for its
signatory states a threshold of care that must be respected when states
pursue economic development in an archaeologically important landscape.
Arguably the most important tool that UNESCO could utilize in a
new convention would be a requirement that environmental impact
assessments (EIAs), which have generally gained momentum in the
international community, take place prior to development plans. An EIA, a
thorough and systematic study of the adverse effects that a planned activity
may have on the environment , including archaeological material, forces
the state to account for how its project will affect the
surrounding features of the land. The EU has already incorporated an
EIA requirement into its laws, which is the mechanism enabling it
to threaten legal consequences against Ireland. The inherent weakness
in that directive, as demonstrated by the Tara controversy, is its
failure to specify explicitly the stages at which an environmental
impact assessment must take place in order for the state to fulfill its
duty; however, pending the outcome of the ECJ case against Ireland,
the pertinent directive may be enough to reroute Ireland’s
national monuments legislation, if not the M3 itself.
In order for a
UNESCO-required EIA to reach an appropriate level of effectiveness, however,
certain steps may be required. First, the requirement for an EIA should not
only demand archaeological awareness but should be in conjunction with the
recognition of archaeological landscapes as sites necessitating contextual
analysis as a whole: thus, an EIA which assesses each independent site
without considering the nearby sites as ones potentially joined in the same
archaeological landscape would not offer the full protection that
archaeological landscapes ought to be afforded. Second, the stages at which
they are required ought to be specified so that loopholes contravening
the convention’s intent cannot be exploited. In the Hill of Tara example,
a second EIA carried out after Lismullin’s discovery would have
most closely conformed with the goal of assessing actual
heritage destruction, but because it was not explicitly required, Ireland
could continue construction under a guise of legality.
Finally,
UNESCO (and the EU) might consider eroding state control over EIAs in order
to ensure that the assessments are properly carried out and to avoid
accusations of state deception. Assessments which are independently done are
less likely to bow to political or private pressures than are assessments
sponsored by the state. Such an erosion of state sovereignty is likely to
make signatory states wary; of the numerous countries who have become
signatories to previous conventions,
it would be likely that at least some
would protest too much discretion being detracted from the states.
Accordingly, the approach taken by UNESCO, while retaining enough power to
implement the goals of a new convention, should temper the need for
accountability with the states’ needs to control its own economic development
planning. The
past indicates that states would at least be receptive to a
new convention in which states are not the sole designators of what
natural heritage is to be protected; in fact, previous models of the
World Heritage Convention which received general support lacked this
feature now present in the Convention. States may not so readily
welcome UNESCO’s insertion into how they handle their EIAs.
Regardless, UNESCO should consider sponsoring a team of scientists
who can independently carry out EIAs on important archaeological
landscapes under threat from state actions. Although states may not accept
that EIA in lieu of their own, a UNESCO assessment would be a useful
means of providing neutral analysis of whether or not states are living up
to their duties under cultural property conventions. This assessment
could either legitimize the state’s own assessment, therefore
additionally legitimizing the development project as one which has properly
taken into account relevant archaeological concerns, or, by
de-legitimizing it, provide conservationists the foundation they need in
order to approach alternative authoritative bodies like UNESCO for
help pressuring the state to mitigate heritage destruction.
Finally,
the incorporation of public opinion into UNESCO’s approach to dealing with
archaeological landscapes would, though perhaps difficult to get past state
approval, complement the objectives presumably contained within any new
convention dealing with archaeological landscape protection- preservation of
sites on behalf of the people for whom they mean so much. While past
conventions contain language encouraging public awareness, as should any new
convention, increasing the amount of public involvement expected from the
states would not only allow further input from the people whose natural
heritage is undergoing plans for development, but would allow states to
better gauge any opposition to the development scheme before resources
are committed to the project, which, once committed, are a waste
if development plans are scrapped, providing incentive for states
to adhere to original plans rather than adapt according to
conservationist wishes. A possible compromise UNESCO could consider is
allowing states leeway to conduct their own EIAs unless a certain amount of
public opinion opposing the project, perhaps demonstrated through
public referendum or polling, raises sufficient concern to trigger UNESCO
to sends its own EIA team, whose findings could possibly be
dispositive.
If this were the case today, the Hill of Tara would likely
qualify for UNESCO involvement, and a neutral assessment of the M3’s effects
would be available not only to the Irish people but to international
bodies who may currently be unsure about whether or not Ireland has
been deceptive in its approach to the M3’s route selection and
therefore unsure about the appropriate reaction.
IV.
Conclusion
The Hill of Tara controversy illustrates the need for a new
UNESCO convention that provides guidance on how states ought to marry
economic development needs with natural heritage conservation.
Because archaeological landscapes are unique in their literal and
figurative breadth, current UNESCO measures are too generalized to
provide meaningful assistance to sites not inscribed on its List.
Unlisted archaeological landscapes therefore need a specific convention
to ensure proper safeguarding as countries around the world develop
their infrastructures. Such a convention would be best served by
lessening the level of state sovereignty present in the World
Heritage Convention, specifically by providing an independent means
of environmental assessment, and increasing the role that public
awareness plays. The Hill of Tara is an important token of Ireland’s Celtic
past which is highly prized by the Irish people. It represents not only
the current controversy in which it is embroiled but also
future archaeological landscapes controversies, in which different
countries, without a regional authority such as the EU to insert itself,
may create economic development plans that forever damage the beauty
and
preservation of natural heritage sites.
Save the Hill of
Tara from the M3 Motorway!
http://www.tarawatch.org
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