Das UNESCO-Übereinkommen zum Schutz des Kultur- und Naturerbes der Welt und seine Wirkungen im deutschen Recht

The UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage balances the dialectical tension between state sovereignty and interests of the international community by entrusting state parties with the protection and conservation of cultural and natural heritage situated on their territory while simultaneously establishing international mechanisms for monitoring and supporting these efforts. The Convention affords protection to all properties meeting the criteria of cultural or natural heritage regardless of their inclusion in the World Heritage List, that itself is mainly of declarative character. By committing state parties to use best efforts to protect heritage sites (Bemühensverpflichtungen) the convention gives rise to genuine legal obligations. For federal states such as Germany, a federal clause in art. 34 modifies the obligation to implement the Convention. Since, however, the German Länder, as far as necessary, adopted the statutory regulations which fall within their legislative powers, Germany now vouches for compliance with the whole convention. Pursuant the principle of sincere cooperation (Bundestreue), the Länder may not revert to a status that implies breaching Germany's international obligations. Whereas explicit provisions quite satisfactorily protect natural heritage, the legal protection of cultural heritage remains flawed, as authorities sometimes fail to install comprehensive preservation orders. In their heritage protection laws, only five Länder refer to the UNESCO Convention. Additionally, they often do not conceptualize heritage in congruence with the Convention's terms. Due to the absence of a legislative act of approval (Vertragsgesetz), the Convention does not form part of the German legal order. As far as internal law does not reproduce what is called for by the Convention, however, the Basic Law's commitment and openness to public international law (Völkerrechtsfreundlichkeit des Grundgesetzes) still warrants the implementation of an international treaty as far as legally possible. Therefore, all administrative and judicial bodies must interpret and apply existing law in conformity with the UNESCO Convention (although the legislative's obligation to comply has been curtailed in a questionable manner by the recent Treaty Override-decision of the Federal Constitutional Court). Most importantly, they have to deploy instruments of nature and heritage conservation law in a manner that protects and conserves world cultural and natural heritage best. Land use and sectoral planning must not only pay due regard to World heritage protection but ensure the best possible preservation result. This is also subject to judicial oversight although claimants often may not invoke the protection of World heritage in court. By way of conclusion, the present implementation of the UNESCO Convention in German law mostly achieves the preservation and protection of cultural and natural World heritage as is called for by international law – with the Dresdner Elbtal being the unfortunate exception.