This article is authored by Vahid Bazzar, Ph.D. graduate in international law from Allameh Tabataba’i University, Iran.
Ms. Mokgadi Caster Semenya is a female athlete of South African nationality. The gold medal at the 2012 and 2016 Olympic games and the gold medal at the 2009, 2011, and 2017 IAAF world championships are just some of her honors. She was barred from participating in the world championships under the Eligibility Regulations for the Female Classification. According to the Regulations, which came into force on 1st November 2018, a female athlete who has circulating testosterone levels in blood of five (5) nmol/L or above is barred from participating in some world championships. Such debarment cant be lifted if the athlete reduces her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives), and maintain her blood testosterone level below five (5) nmol/L continuously (i.e., whether she is in competition or out of competition) for so long as she wishes to remain eligible to compete at International Competitions in the female category. Of course, these women may still compete without any restriction in the male category in any event at any level of competition, or they may compete in the female category in any event at non-international competitions, provided that they will not be eligible to set in the female category in any event at non-international competitions. To justify the Regulations, IAAF says that without the protection of restricted entry to that class, women athletes would be at risk of being denied the right to compete and succeed at the highest levels (CAS award, para. 456). The Regulations specify that due to the strength and power enjoyed by men over women from puberty onwards (due in large part to men's much higher levels of circulating testosterone), it is generally accepted that competition between male and female athletes would not be fair and meaningful, and the purpose of the Regulations is to ensure fair and meaningful competition in the sport of athletics and ensure that success is determined by talent, dedication, hard work, and other values and characteristics that the sport embodies and celebrates. To challenge the Regulations, Ms. Semenya first took recourse in the Court of Arbitration for Sport (CAS), which is the dedicated court for settling disputes arising from the Regulations (Eligibility Regulations for the Female Classification 2018, para. 5.2), and then appealed to the Swiss Federal Court. The rejection of his application in these two courts led her to raise her case in the European Court of Human Rights (ECHR) (see here, here, and here). In this post, we intend to explain and analyze the CAS award in the Caster Semenya case from the perspective of human rights. CAS Award of 30 April 2019 in Caster Semenya Case On 18 June 2018, Ms. Semenya, filed an application against IAAF in the CAS, claiming that the Eligibility Regulations for Female Classification discriminate against female athletes on the basis of sex, since no equivalent requirements are applied to male athletes. The Regulations restrict the ability of some female athletes to compete based solely on the natural or genetic traits which they have possessed since birth and over which they have no control. She argues that the Regulations are not necessary in order to preserve fair competition within the female category, because success in elite competitive sport is the product of both genetic and environmental factors and the world celebrates the genetic differences that make athletes such as Usain Bolt, Michael Phelps and Serena Williams great. The CAS in its 2015 award in the Chand case also upheld the fact that there are many variables, including physical and biological variables, that legitimately affect athletic performance (para. 527). However, unlike Ms. Dutee Chand, who can take CAS's award in 2015 to suspend the Hyperandrogenism Regulations which barred her from competing in athletics, Ms. Semenya did not succeed in the CAS. The CAS, in its award of 30 April 2019, acknowledged that the Eligibility Regulations for the Female Classification are prima facie discriminatory on grounds of legal sex. However, it is common ground that a rule that imposes a differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. Since those biological factors do not correspond perfectly with legal sex in every case, the Panel accepted the IAAF's submission that it is sometimes necessary to devise eligibility conditions that are not exclusively based on legal sex, and in this case, IAAF had adequately demonstrated that the Regulations were necessary or appropriate to ensure fair competition in female athletics. In addition, female athletes who do not enjoy the significant performance advantage caused by exposure to levels of circulating testosterone in the adult male range do not have to compete against female athletes who do enjoy that performance advantage. Human Rights and CAS Award in Caster Semenya Case The CAS addresses merely the right to non-discrimination and does not consider the many human rights norms and standards that have been ignored by the Regulations, including the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture or other cruel, inhuman or degrading treatment or punishment, and full respect for the dignity, bodily integrity and bodily autonomy of the person (see A/HRC/RES/40/5). Although General Comment No. 18 declares that if the criteria for the differentiation of treatment are reasonable and objective, and if the aim is to achieve a legitimate purpose under the Covenant, such differentiation will not constitute discrimination, it is difficult to accept the necessity and reasonableness of the Regulations. The right to non-discrimination is one of the essential elements of human dignity, as enshrined in most international human rights instruments, including the Universal Declaration of Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 26), the International Covenant on Economic, Social and Cultural Rights (Article 2(2)), and the Convention against Discrimination against Women. The right to non-discrimination in sport is also enshrined in the Olympic Charter (Fundamental Principles of Olympism, para. 4) and the IAAF Statute (para. 4.1(j)). The right to non-discrimination has a prominent position in human rights. The fact that the proclamation of most human rights begins with "anyone ..." demonstrates that the right to non-discrimination is rooted within them. Further, the right to non-discrimination must be observed, even in cases where some human rights are allowed to be derogated. For example, according to Article 4(1) of the International Covenant on Civil and Political Rights, in times of public emergency which threaten the life of the nation, the derogation of human rights must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Therefore, the right to non-discrimination should only be ignored in exceptional cases, and high testosterone levels in blood in some female athletes do not seem to have created such a necessity that the Regulations are treated a reasonable response to it. Ms. Semenya was born a girl and has legal and social identities as a woman. She has female sexual organs and she has never been intersex. Indeed, many athletes subject to the Regulations might never be aware of their natural traits were it not for the Regulations. Given their legal and social identity as women, the Regulations that exclude them from the female category call into question their very sense of self and of human dignity and will be questioning their sex or gender identity. Next point is that natural physical traits, including high testosterone levels in blood, are innate traits that deprive a related woman of their human rights (see here). Therefore, it cannot be compared to doping where individuals use certain substances in order to prevail on others, and countering them through anti-doping laws is treated as an urgent social necessity. Another point is that although the Regulations specify that no athlete will be forced to undergo any assessment and/or treatment under these Regulations, these athletes are required to meet the conditions for participating in competitions. Also, the number of female athletes subject to the Regulations is not large enough to hold separate competitions for them, and their only option to participate in the female category is to agree to the medically unnecessary procedures for lowering testosterone levels, including the hormonal treatment which has adverse side effects including diuretic effects that cause excessive thirst, urination and electrolyte imbalances, disruption of carbohydrate metabolism (such as glucose intolerance or insulin resistance), headaches, fatigue, nausea, hot flashes and liver toxicity. The imposition of humiliating treatment to female athletes is illegal discrimination and patriarchal negation of women’s autonomy in decision-making leads to violation of women’s rights to health, privacy, reproductive and sexual self-determination, physical integrity and even to life (see A/HRC/32/44). The right to bodily integrity also refers to the right to control all aspects of one’s health, to respect bodily autonomy and integrity and to decide freely in matters relating to one’s sexuality and reproduction, free of discrimination, coercion and violence (see here). The Special Rapporteur of the Human Rights Council on the right of individuals to enjoy the highest standard of physical and mental health states that sporting organizations must implement policies in accordance with human rights norms and refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sports (see A/HRC/32/33). Concluding Remarks The CAS, in its award of 30 April 2019 in the Caster Semenya case acknowledges that the Regulations ignore some human rights. The CAS explicitly acknowledges the violation of the right to non-discrimination by the Regulations and declares that it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. However, it is clear from paragraph 589 of the award that the non-withdrawal of the Regulations which violate some human rights is in order to protect some other human rights: "these Regulations reflect a rational resolution of conflicting human rights in the Caster Semenya case." Of course, in a letter which is jointly prepared by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and the Working Group on the issue of discrimination against women in law and in practice in 2018, a different conclusion has been reached. It has been urged that the IAAF withdraw its Regulations. However, the ECHR, which is currently on the case, will certainly pay special attention to human rights violations. A noteworthy point is that it is not possible to violate the CAS award by the ECHR, because the CAS is not a national court. Nevertheless, the ECHR may ascertain the international responsibility of the Swiss government for the Judgment of the Swiss Federal Tribunal, which upheld the CAS award.
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8/13/2021 A Revolution Called Starlink and The Future of Space Commercialization: Understanding the Legal ImplicationsRead Now[This article has been authored by Aranya Chatterjee, a second year law student at Bharati Vidhyapeeth Deemed University, Pune, and Raj Shekhar, a second year law student at National University of Study and Research in Law, Ranchi.] The announcement of SpaceX megaproject ‘Starlink’, an ambitious project which aims to diversify the reach of the internet to the remotest of places by the way of satellite internet constellation, has raised concerns regarding the overall management of the system and the potential treaty violations it could lead to. Last year in the month of June, a total of 58 satellites were launched, followed by 310 this year which have made the satellite count rise to 1200 with the majority of these being placed in the Lower Earth Orbit. Such huge numbers of satellites and their deployment has raised a number of legal concerns regarding the right to view space, astronomers’ rights and debris management. This article aims to analyse these issues and strives to understand the legality of the ‘Starlink’ project. Ground-Based Explorers v. Space-Based/Corporate Explorers: The Legal Conundrum The primary law that governs space is termed as ‘international space law’. It is seen as a direct outcome of the five space treaties which were adopted under the direct supervision of the United Nations, namely the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement. The laws governing the present issue shall fall under Article 1 of the Outer Space Treaty which states that the use of outer space and celestial bodies is to be carried out for the benefit and in the interests of all mankind. It prohibits any kind of discrimination and ensures that every nation shall be free to access, study and explore space freely. Based on how they study space, experts can be classified as ground-based explorers and space-based/satellite-based explorers. As the names suggest, the former studies space from ground-based observatories, while the latter does it through the aid of artificial satellites in space. While the space-based group of explorers are potentially unaffected by the launch of Starlink satellites, the interference caused by these satellites could very well affect ground-based explorers. The reflection by these artificial metallic objects would make them appear as a slow-moving dot of light in the night sky. This would effectively cripple the accuracy of ground-based observatories which would be at a high risk of misinterpreting these as stars and generating erroneous data. Further, the transmission by these satellites can also affect the overall astronomical recordings and observations which will be detrimental to the ground-based explorers and would be in gross violation of Article 1 of the Outer Space Treaty as it would directly affect the right of nations to freely study, access and explore the space. To have a better understanding of what might be the consequences we can refer to the recent Neowise Comet incident. The comet which came in close proximity to the sun after almost 7000 years saw its moment of glory being ruined by a Starlink satellite which blocked the clear line of sight. The Night Sky View: NEPA and the Detrimental Effects of Starlink These shiny artificial satellites lead to the creation of a trail that disrupts the vision of the night sky. Operations such as Starlink, need to be approved by the Federal Communications Corporation while taking into consideration the National Environmental Policy Act, 1970 (NEPA). NEPA aims to strike a delicate balance between humans [AS1] as well as the environment and biosphere. However, this narrow interpretation of the word ‘environment’, which fails to include orbital space around earth as a part of it, is insufficient to evaluate projects like Starlink. Any program before getting approved under NEPA would be evaluated based on its impact on land, water, air, structures, living organisms, environmental values at the site or sites, and the social, cultural and economic aspects. However, projects like Starlink which affect the orbital space, which even though is not included in this definition but has a significant impact on the other included aspects, would be successful in evading the scrutiny.[AS2] [AS3] We can conclude that the current definition is too narrow considering the giant scientific leaps that mankind has taken towards space explorations. Thus, to keep an effective check on such large scale commercial launches, it is pertinent to make relevant changes to the entire idea of NEPA and its application. The first of such changes could be expanding the definition of ‘environment’ to regularise this grey area of Earth’s orbital space. The Threat of Space Debris and Pollution One of the major threats that the existence of such a large number of Starlink satellites pose is that debris. Freely floating masses of debris would increase the probability of collisions between two or more such satellites. Further, an entire fleet of satellites can cause disruptions to the future launch of other satellites or space exploration missions. The collision between one satellite could cause a domino effect affecting all others in orbit. Such a huge amount of revolving space debris would add to the already growing issue of space pollution, especially in the earth’s orbital space. This would effectively lead to the crippling of the capability of ground-based observatories. Therefore, it could potentially be a ‘discriminatory and disruptive move’ which shall fall foul of Article 1 of the Outer Space Treaty. Changing Dynamics of Global Internet and Communication Technology In the late 1990s, fleets of mobile-communication satellites were deployed in the circular orbit called as the Geostationary Orbit (“GSO”) which lies roughly 35000 km above the earth’s equator. However, with the development of advanced technologies, scientists developed space-based communication systems which can be deployed and maintained well under 2000 km above the equator called as the Lower Earth Orbit (“LEO”). While the GSO based satellites could provide much larger coverage, the satellites being launched under Starlink are LEO deployed which enables them to provide extensive coverage to the Earth’s surface over which they have been deployed. Subsequently when a large number of satellites were deployed in the GSO, it came to be recognized as a scarce natural resource, under Article 44 of the Constitution of the International Telecommunication Union. As a result, companies involved in telecommunication started to move towards LEO based deployments, leading to the present case of Starlink. The Global North and South Debate: Does Cheap Internet come at a "Price"? Starlink has been dubbed as a game changer for the future of global internet connectivity. With its potential to provide uninterrupted high-speed uplinks to the remotest of places with close to having no infrastructure requirements; the prospects are innumerable. However, is the ‘poorer’ global south going to pay a ‘huge’ price for the promised ‘cheap’ internet access? There is a stark difference between the global South and the North when it comes to space exploration capabilities. The rockets that are launched are generally limited to a one time use, and the overall rocket propellant fuel procurement is an expensive task too. The financial stability of the developed nations such as USA, Canada, etc. allows them to invest huge amounts of finances into space exploration programs. Thus, unlike their counterparts the poorer global South relies on ground-based observatories that are relatively less expensive and much more cost effective than actual space flights. As deliberated, the effect of Starlink will be extremely detrimental to these nations whose space exploration models would be rendered useless. This would effectively deprive them of an equal opportunity to compete in the space race and can be yet again seen as ‘discriminatory and disruptive’. Hence, the so-called ‘cheap’ connectivity would force these nations to pay the unwanted ‘high price’ of space exploration deprivation. Conclusion It's impossible to put a halt to the commercialization of space but an intervention towards a sustainable model of commercialization-cum-development may hold the key to all future projects. It is evident that Starlink significantly has more issues than what meets the eye, be it risk of potential environmental pollution through space debris, violation of astronomer’s right to freely observe space or potential risk of destruction of other essential man-made objects in its vicinity. Clearly, such issues are incapable of being dealt with by the current legislative framework. As a suggestion, a new global code of conduct or legislation governing the orbital sphere of Earth must be introduced which focuses on building a sustainable future for space commercialisation. Alternately, this could also be achieved through expanding the definition of ‘Environment’ under the NEPA to impose stricter liability on companies that foster innovation, which eventually balances the right to access space without compromising on the global reach to share mankind’s heritage of space. 8/6/2021 The Bumper Development Case: Madras HC goes a long way in reinforcing the International Law on Cultural HeritageRead NowThis article has been authored by Priyam Indurkhya, a second-year student at National Law Institute University, Bhopal, currently pursuing B.A.LL.B. (Hons.) course.
A Division Bench of the Madras High Court comprising Justice R. Mahadevan and Justice P.D. Audikesavalu has delivered a judgment on 7th June 2021, issuing a set of 75 directions for the preservation of historical monuments and temples in Tamil Nadu. Experts have hailed this judgment as a milestone in heritage management and even compared it to the landmark judgment of the English Court of Appeals in Bumper Development Corporation v. Commissioner of Police of the Metropolis (1991). Seen in this context, this piece attempts to analyse the judgment of the court in light of the international law on cultural heritage as well as the international best practices in the field of heritage management. Brief Background The state of Tamil Nadu homes more than 42,000 temples, several of them being more than two thousand years old. These temples are not only places of worship, but are also repositories of knowledge and treasure houses of arts & architecture. Of these temples, around 38,000 are under the control of the Hindu Religious and Charitable Endowments (HRCE) Department of the government of Tamil Nadu. The management of temple lands, funds, properties, the upkeep of temples, and their renovation is the responsibility of the HRCE department. However, the past few years saw numerous cases reporting the mismanagement of temple funds, theft of temple jewels, idols and valuables, smuggling of antique artefacts, and deterioration of temple structures due to unplanned renovation. Finally, the Madras High Court took suo motu cognisance of the issue based on a report published in ‘The Hindu’ titled ‘The silent burial’, which pointed out the inaction of the government in establishing the Heritage Commission. While around 47,000 acres of temple land were in the hands of encroachers, the HRCE department which is the custodian and administrator of temple properties was indifferent to the prevailing circumstances. Expressing its disappointment over such dormancy, the court noted, “The custodians of magnificent and antique temples and historic monuments are indifferent, and the preservation of our treasured heritage is deteriorating not as a result of natural disasters or catastrophes, but as a result of careless administration and upkeep.” (para 1.1) Given the grim state of affairs, the court, acting in the capacity of parens patriae, took upon itself the protection of the historic monuments including temples, antiques, idols, manuscripts, murals, among others and issued a set of 75 directions to concerned authorities for strict compliance. Directions of the Court After a thorough analysis of the report submitted by the amicus curiae and the suggestions of the UNESCO fact finding mission on heritage management in Tamil Nadu, the Bench issued a set of detailed guidelines. It directed the Tamil Nadu government and the Archaeological Survey of India (ASI) to constitute a 17 membered Heritage Commission comprising the representatives of the HRCE department and ASI, renowned historians, anthropologists, chemical analysts, and experts of Agama and Shilpa Shastras. Besides advising the state government on heritage issues, the Commission is also tasked with identifying the monuments, structures, temples and antiques of historical and archaeological importance, and categorising them according to their age and preservation needs. It is additionally entrusted with supervising their repair, restoration and maintenance works. The judgment also requires the constitution of State Level Expert Committee and District Level Committees comprising qualified Staptathi (traditional temple architect), experts from history, iconography, epigraphy, Fine Arts, Agama experts, and mural experts alongside the representatives from archaeology and HRCE department. These Committees shall be required to ensure the systematic repair and renovation of temples; lodge complaints against the illegal sale of temple lands; take action to retrieve them; evict encroachers, and prepare an inventory of idols, jewels, valuables, artefacts, paintings and other valuable possessions of the temples. The HRCE department is directed to construct strong rooms with video surveillance and alarms in the temple premises. Other significant directions include regular appointment of temple trustees; regular salary to temple staff as per Minimum Wages Act; launching courses on heritage management; regular and independent audit of temple funds, and establishing a special tribunal for settling disputes relating to heritage, tradition, recovery of temple lands and other issues relevant to heritage management. The judgment also noted that it would be incommensurate just to protect the monuments and heritage sites as the history, traditions, knowledge and practices associated with that monument should also be preserved and passed on to the next generation. It observed that the practices such as performing daily temple rituals, chanting Vedic hymns, performing traditional music, dance and drama, and organising festivals are intricately interwoven with the existence of the temple ecosystem. Therefore, the court directed the state to appoint trained Archakas (temple priests), Oduvars (hymn chanters), folklore and drama artists, and musicians in temples to ensure that these traditional practices do not go into oblivion. Reinforcing the principles of international law on cultural heritage The judgement palpably reinforces the principles of international law on cultural heritage. Cultural rights are an indispensable part of human rights recognised in international instruments. The right to participate in cultural life is recognized in human rights instruments, particularly in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (a), of the International Covenant on Economic, Social and Cultural Rights. The scope of these rights includes the “access to and enjoyment of heritage in its tangible, intangible, natural and mixed manifestations”. Thus, preservation of cultural heritage is significant from the perspective of international law. A significant corpus of international law on cultural heritage comes from the multilateral treaties and conventions adopted under the auspices of UNESCO. Recognising the importance of cultural and natural heritage, the Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) was adopted by the UNESCO in 1975. Having ratified the Convention in 1977, India is duty bound to protect, conserve, present and transmit the cultural and natural heritage of the nation for the benefit of its future generations (Article 4). Moreover, to effectuate the same, the Convention requires the state to counteract the dangers that threaten its cultural or natural heritage by taking appropriate legal, scientific, technical, administrative and financial measures (Article 5). Thus, the judgement ensures the compliance of articles 4 and 5 of the World Heritage Convention by identifying the threats to the cultural heritage of the state and directing the authorities to prioritise the repair and renovation of temples by taking technical and scientific expertise of the UNESCO. Furthermore, one of the major highlights of the judgment besides the protection of tangible and visible aspects of heritage is the emphasis placed by the Bench on the preservation of traditional community practices passed on from generation to generation. Observing that an art can survive as long as it is being practiced, the Bench ordered the state to ensure the continuance and promotion of practices like the Vedic chanting in temples, performing traditional music, dance and drama, playing traditional instruments, among others. Interestingly, the Convention for the Safeguarding of the Intangible Cultural Heritage (‘Intangible Heritage Convention’) was adopted by the UNESCO in 2003 with the similar objective of safeguarding the intangible cultural heritage including oral traditions, performing arts, rituals, social practices, traditional skills and crafts. Being a party to this Convention, India is committed to safeguarding, developing and promoting the intangible heritage of the country (Part III of the Convention). The directions of the court in the judgment concur with the aims and objectives of the Convention and remind the state to fulfil its obligations not only under the national law (Article 49 of the Constitution of India), but also under international law. Learning from the international best practices The initiative of the World Heritage Committee (WHC) named ‘the Recognition of Best Practice in World Heritage Management’ encourages the state parties to learn from the best practice case studies of different nations in preserving their heritage sites. In that regard, the management of the Historic Town of Vigan in Philippines, which was chosen as the best practice model by the WHC can be a learning experience for India. The Vigan authorities engaged the local community as the primary stakeholders of the tangible and intangible cultural heritage of the historic city. They trained the locals as tourist guides and supported traditional artists and craftsmen, thus empowering the local community of the historic city. This instilled in the minds of the community a sense of belongingness and shared ownership of their heritage. As a result of the integration of community knowledge and governmental efforts, Vigan has not only sustained its cultural heritage, but also thrives as a primary destination for visitors from Northern Philippines. Similarly, the case of Kazan Kremlin in Russia is a unique example of how the blend of conventional (tourist sightseeing, museum events, conferences etc.) and innovative (interactive screens and booths, QR codes, historical reconstruction events, conducting massive cultural fests such as the Kremlin Live) methods can effectuate the restoration, conservation and preservation of a heritage site. The judgment of the Madras HC, directing the inclusion of the local community in protecting the tangible heritage (by engaging Stapathis trained in Agama & Shilpa Shastras) and intangible cultural practices (by engaging Archaks, Oduvars, temple musicians) is similar to the best practices adopted by the Vigan authorities. Moreover, the introduction of heritage management courses, digitalisation of records, creation of strong rooms in temple premises, promotion of scientific and technological framework in renovation activities, etc. resonates with the international best practices in heritage management. Besides engaging the community, the Bench has also directed the state government to collaborate with the Archaeological Survey of India, non-governmental agencies and international bodies to benefit from their expertise in heritage management. In this regard, it is pertinent to mention the success story of the Cultural Heritage Administration (CHA) of the Republic of Korea. The CHA, with an active collaboration with UNESCO and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), has been not only able to preserve the Complex of Koguryo Tombs, but also create education, training and research opportunities in cultural heritage conservation in Asia-Pacific. Similarly, as directed by the Bench, India can benefit by engaging organisations like UNESCO, ICCROM, ICOMOS, which have been working for the cause of heritage preservation for years given that the preservation of heritage monuments requires specialised scientific and technical expertise. Their specialisation in preventive conservation technique can certainly come in handy in the Indian scenario. Conclusion Overall, the directions of the Madras High Court in the present judgment are indeed breakthroughs in heritage conservation. The judgment not only lays down a concrete framework of heritage management, but also reminds the state of its obligation under the World Heritage Convention and the Intangible Heritage Convention of the UNESCO. The way forward lies in adopting international best practices by engaging the local community and international bodies in heritage conservation process. Acknowledging the role of various stakeholders will certainly help in streamlining the process. As pointed out by the UNESCO report submitted before the court, the HRCE department has neither sufficient staff nor the required competence to singlehandedly manage the affairs of 38,000 temples of the state. It is time we acknowledged that conservation, renovation and upkeep of monuments with rich heritage is not simply ‘yet another maintenance activity’. It requires a blend of traditional knowledge of scriptures like Agama and Shilpa Shastras, as well as scientific and technical expertise of specialised bodies in the field of heritage management. In essence, dedicated efforts towards heritage preservation and synergy between state authorities, central agencies, non-governmental organisations, local community and international bodies is the need of the hour and only such a method of conservation will ensure that the ‘things of beauty’ stand tall and strong and continue to give ‘joy forever’. |
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