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Heritage Listing as a Tool for Advocacy: The Possibilities for Dissent, Contestation, and Emancipation in International Law Through International Cultural Heritage Law

Published online by Cambridge University Press:  30 January 2015

Lucas LIXINSKI
Lucas LIXINSKI*
Affiliation:
University of New South Wales, Australial.lixinski@unsw.edu.au
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Abstract

This paper discusses the possible uses of heritage listing under UNESCO for the promotion of broader political and social agendas by minority groups. The paper uses as a case-study the “Buddhist Chanting of Ladakh: recitation of sacred Buddhist texts in the trans-Himalayan Ladakh region, Jammu and Kashmir, India”. This heritage showcases issues of Tibetan autonomy (both within India and more broadly), relationships between Tibetan and Muslim cultures, and regional autonomy and accommodation of cultural minorities in the Indian state. There are many uses of listing Ladakhi heritage, ranging from listing as a means for autonomy of the Ladakhi, to listing as an instrument of domination, or even geographical control. I argue that heritage listing is not as “apolitical” as normally thought of, and it can be used as a mechanism to both benefit or harm minority groups and the advocacy of their claims within or against the territorial state.

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Articles
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Asian Journal of International Law , Volume 5 , Issue 2 , July 2015, pp. 387 - 409
Copyright
Copyright © Asian Journal of International Law 2015 

Cultural heritage is a fairly discrete area of international law, and as such it seldom attracts widespread attention. It is, however, an important theatre for the articulation and contestation of the broader politics of international law, and the interaction between the domestic and the international, possibly precisely because it is discrete and “under the radar”.Footnote 1 Even though cultural identity is immensely contested as an international law topic, cultural heritage, as the embodiment of that same identity, is far less so. Listing processes (a typical protection mechanism under international treaties on cultural heritage) tend to simply showcase heritage as the result of a process through which states and experts come together to choose the world's wonders, and not to enact or re-enact identity politics. As a result, oftentimes topics that would be too politically charged in a wider forum can be discussed, in a fashion, as cultural heritage issues, such as self-determination and territorial disputes.

This paper explores the theme of international heritage law as the forum through which broader legal and political claims are articulated, negotiated, and contested. More specifically, it looks at how one specific regime under UNESCO has been used for such purposes. In 2003, UNESCO approved the Convention for the Safeguarding of the Intangible Cultural Heritage.Footnote 2 Just under eleven years after its approval at the time of writing, it has been ratified by over 160 states. One of the safeguarding mechanisms under the Convention is the Representative List of the Intangible Heritage of Humanity.

One of these manifestations of intangible heritage is the “Buddhist Chanting of Ladakh: recitation of sacred Buddhist texts in the trans-Himalayan Ladakh region, Jammu and Kashmir, India”, inscribed on the list in 2012. Standing for Tibetan culture in this region of India, this manifestation of heritage works as a means to showcase issues related to Tibetan autonomy—both within India and more broadly—the relationships between Tibetan and Muslim cultures, and the regional autonomy and accommodation of cultural minorities in the Indian state.

This example of intangible heritage will be used to discuss the role of heritage listing as a means to bring these issues to the fore in a supposedly “apolitical” and almost “scientific” body. The paper discusses the many uses of the listing of Ladakhi heritage, ranging from listing as a means for autonomy of the Ladakhi, to listing as a means of domination of the same Ladakhi, or the exclusion of other minorities in the region. Listing could also be seen as a means to exert broader control over the minority group and even the geographical area, given its function as a symbolic flag being planted in Ladakh. It could finally work as an important tool in managing the Kashmir conflict because of the conflict's connection to cultural identity, at least to the extent that it affects Buddhists and the Ladakhi region.

Overall, it is important to stress that community aspirations on the ground are political, and I argue that some of these politics finds its way up to UNESCO, and the listing creates a moment in which the heritage and its meanings are subject to change in control. The control can shift either towards governments and the state, or to communities and heritage holders themselves. Heritage then serves as a tool of conformity or contestation, of taming or fuelling dissent, of reinforcing, expanding, or restricting accommodation for cultural minorities within a very multicultural state.

This paper will explore some of these issues, using the example of Ladakhi Buddhist chanting, to frame broader questions about the role of international law in opening or closing spaces for contestation, subversion, and dissent. Section I will provide some background on Ladakh and Buddhist chanting in Ladakh. Section II will offer some background on the safeguarding of intangible cultural heritage before UNESCO, as well as the listing of the Ladakhi Buddhist chanting. Section III places the listing process and cultural heritage in general in the context of domestic law in India. Section IV discusses the different uses of heritage in the Ladakhi context. A conclusion (Section V) follows.

I. LADAKH AND BUDDHIST CHANTING IN LADAKH

Ladakh (or the part of Ladakh being considered here) is part of the state of Jammu and Kashmir, India. It corresponds to about 60 percent of the territory of the entire state. Its population, however, corresponds to only 2.3 percent of the population of the state (based on the 2011 Indian Census). It is divided into two districts: Leh (very mountainous, predominantly Buddhist) and Kargil (lower and relatively flat lands, predominantly Muslim). According to information from the 2001 Indian Census, around 78 percent of the population of Kargil is Muslim, against 20 percent Buddhists, and the rest Hindus and other groups. In Leh, 77 percent of the population is Buddhist, compared to 14 percent Muslim, and the rest Hindus and other groups. Historically, Ladakh was once part of the Tibetan Empire, but in ad 842 it became a separate entity.Footnote 3 However, even though once a part of the Tibetan Empire, Ladakh was always an outpost, and as such subject to influences other than Tibetan. The main external influence over Ladakhi culture is Islam, but the influence of other external forces is also felt, and attributable to Leh having been at the centre of a network of trade routes.Footnote 4

Tibetan influence over Ladakh continued in some form past ad 842 (the year of the break-up of the Tibetan Empire). The Tibetan Empire collapsed, it seems, due to frictions between Buddhists and the adherents of an older religion, in dispute over which religion should be the official state religion.Footnote 5 Despite the break-up of the Empire, Ladakh continued to be heavily influenced by its language and culture, but its position was never quite safe, given its location as the centre of various trade routes. Throughout the following centuries, Ladakh was courted for dominion by Muslims, European Christians (mostly Jesuits), Chinese, Sikhs, and Hindus alike.Footnote 6

During the nineteenth century, British imperialism reached Ladakh, and compromised the Ladakhi (treaty-guaranteed) monopoly of the pashmina trade, eventually extinguishing it, to the benefit of English tradesmen, but causing deep economic distress in Ladakh.Footnote 7 The economic weakness of Ladakh also led to plans for the invasion of Ladakh by the Raja of Jammu, which were approved by the British. The invasion took place in 1834, and was largely successful. The Treaty of Leh, establishing peace and making Ladakh a Dogra dominion, was signed in 1842.Footnote 8

During partition in the mid twentieth century,Footnote 9 there was a fair degree of dispute as to whether Ladakh should join India, join Pakistan, or become its own independent, Buddhist state, in the style of Bhutan.Footnote 10 Ladakhi was in fact a battleground in the war between India and Pakistan.Footnote 11 But it survived without major bloodshed, a result of the “tradition of goodwill between the Buddhist majority and their Muslim neighbours”.Footnote 12 Nevertheless, it was still somewhat divided, with the northern (and Muslim) district of Skardu going to Pakistan, and the southern districts of Kargil and Leh remaining within India.Footnote 13

Ladakh was involved in the Indo-Pakistan Wars of 1965 and 1971 as well, but then it was Muslim-dominated Kargil that bore the brunt of battle, as opposed to central Ladakh, which is mostly Buddhist.Footnote 14 These two wars affected interests primarily outside Ladakh. But the Sino-Indian War of 1962 more directly impacted Ladakhi interests, and brought Ladakh into the consciousness of the Indian public.Footnote 15

The region of Ladakh is incredibly mountainous, and as such it does not easily lend itself to intensive agriculture or pastoralism. The Himalayas also experience very intense winters, meaning that vast parts of the region are totally isolated from the rest of the state—and the country—for several months at a time. The most important access roads to Ladakh are only open for half of the year.

Geography and history have contributed to a distinctive Ladakhi identity. Ladakhi nationalism has outlived integration into the Union of India, and there are still many pockets of it throughout Ladakh. Its relatively small population and isolation, though, have contributed to this form of nationalism not being particularly vociferous or violent.Footnote 16 This nationalism is by and large fuelled by perceptions of a historical connection to Tibet, and a sense of distinctiveness from the other ethnic groups in the state—Muslims and Hindus, primarily. It would seem that, in the years immediately following partition, Ladakhis still preferred the idea of being separate from both Jammu (Hindu) and Kashmir (Muslim).Footnote 17 During that period, Ladakhi nationalism explored the options available to them, and, caught between the Scylla of a Tibet dominated by communist China, and the Charybdis of land reform under Indian rule, their leaders opted for claims of autonomy within India, while still dangling the possibility of a union with China as leverage for their autonomy agenda.Footnote 18 In fact, Ladakh for a while advocated for separate federal status in India. It did not want to be a part of Kashmir, nor of Jammu. At some point, in 1949, it accepted joining Hindu-dominated Jammu as a compromise, but it still would not consider being joined with Kashmir. The general feeling was that it might instead reunite with Tibet.Footnote 19

Generally embroiled within the politics of Muslims pondering whether to join India, Ladakh was in a difficult position, and initial concessions made to Ladakh autonomy in 1952 were dropped.Footnote 20 The discourse turned towards Muslim identity and presence as the main concern in discussions about the fate of the region, and again the possibility of integration with Tibet was vented by Ladakhis as a preferable alternative.Footnote 21 At the time, it must be noted that “Ladakh self-determination” was seen in effect as full integration within the Indian state, as opposed to Kashmiri self-determination, which meant a special status for the state of Jammu and Kashmir (including Ladakh). Ladakhis felt their interests would be better protected if they received no special status in conjunction with the Kashmiris.Footnote 22 In the end, no special ethnic or cultural accommodation was made for either group, in the name of a national identity that allowed for the formation of the modern Indian state.

Another element that contributes to Ladakh's relative invisibility is that it is largely ignored. Being part of the state of Jammu and Kashmir, its claims and needs are often obfuscated by the Kashmiri conflict and India-Pakistan relations.Footnote 23 The whole region, in fact, seems to be engulfed in a situation where only the opinions of India and/or Pakistan matter, with little to no regard to the opinions of the inhabitants of Jammu and Kashmir, let alone Ladakhis.Footnote 24 And, even if one considers the opinions of the inhabitants of Kashmir, their strategic choice of being treated as a unitary entity for the purposes of their self-determination struggles has meant the exclusion of Ladakhis from the equation as well.Footnote 25 This sense of neglect of the region, which also extends to socioeconomic development,Footnote 26 has been a contributing factor to nationalism in Ladakh.Footnote 27

One of the outcomes of nationalism in Ladakh is that several groups of Buddhist Ladakhis claimed and were granted tribal status in the 1990s.Footnote 28 What began as a “minor scuffle between a Budhist and some Muslim youth in Leh market in July 1989” quickly snowballed into a much broader movement.Footnote 29 A claim for union territory status was the original goal of the movement (aiming to achieve the historical claim during partition), but it was subsequently turned into the establishment of an Autonomous Hill Council.Footnote 30 This arrangement would provide Ladakh with some autonomy in local economy, planning, and administration. The proposal, initially along religious lines (the Ladakh Buddhist Association was leading the charge), was subsequently secularized, with the support of the Ladakh Muslim Association. This turn of events allowed for much greater support to be galvanized around the idea of an Autonomous Hill Council.Footnote 31 Several delays in the implementation of the Hill Council led to more agitation in April 1995, with the Ladakh Autonomous Hill Council Act finally enacted in 9 May 1995.Footnote 32 The Leh Autonomous Hill Council was created in 1995, and the Kargil Hill Council was only created in 2003.Footnote 33 The evolution of the Hill Councils mirrors to a large extent the debates around section 370 of the Constitution, discussed below.

In its first decade of operation, the Leh Hill Council had failed to achieve success in exercising its wide-ranging competences. These competences included the promotion of language and culture in the area; the development and promotion of tourism; vocational training; the management of forests and watercourses for agriculture; and the collection of local taxes.Footnote 34 Part of the reason for this lack of success, allegedly, is that state government authorities have “sabotage[d] their work”.Footnote 35 There is little indication that much progress has been made in the second decade of the Hill Council's operation, even though the Hill Council in Leh currently offers a series of services for the revitalization of crafts and the promotion of tourism, at least nominally.Footnote 36

As a result of the ineffectiveness of the Autonomous Hill Council, the idea of union territory status started gaining new momentum within Ladakh, with the establishment of a Ladakh Union Territory Front.Footnote 37 This movement has lost some of its political momentum, though, because of economic pressures in Leh. Leh experienced an economic boom through tourism and government contracting, but much of this money ended up going to outsiders, generating dissatisfaction with the Front's inability to direct the resources to Leh Buddhists.Footnote 38

Alongside nationalism, and working as a means to reinforce it, the performance of Buddhism is still a very important cultural element in Ladakh. It is done in no small part as a matter of tradition, but it also helps give credence to claims of the distinctiveness of their identity in relation to the other inhabitants of the state.

One of the main aspects of Buddhist practices in Ladakh is the role of monasteries in Ladakhi life. These monasteries, or Gonpas (a word that stands for “solitary place”),Footnote 39 are central to the political and social order of the region. They are the primary providers of education to the children of Ladakh, as well as the site for communal celebrations and assemblies, where much of local government and politics have traditionally functioned.

The Gonpas are also the place where Ladakhi Buddhist chanting is taught and performed. Describing the chanting, alongside analyzing its listing before UNESCO, is the object of Section II.

II. LADAKHI INTANGIBLE CULTURAL HERITAGE LISTING BEFORE UNESCO

The 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage was modelled after the 1972 World Heritage ConventionFootnote 40 to a significant extent.Footnote 41 More specifically, it drew on the mechanism of listing as a means of enhancing the visibility of intangible heritage, and to give access to international funds and co-operation in the case of endangered heritage. If intangible heritage is visible to the world, there is more of an incentive to safeguard it for the future, as stakeholders outside the community of origin come to learn about and appreciate that culture's representative heritage.

By the same token, valorization by an external actor can also lead to the heritage gaining renewed importance for the community of origin, as the external recognition becomes a source of pride for the community of origin, and an incentive for safeguarding said heritage. One such example is the Argentinean tango, which for many years was considered the dance of drunkards and prostitutes in the port area of Buenos Aires, something the local population was rather ashamed of. It was only when the tango was performed in Europe, to widespread acclaim, that it became a source of pride for the identity of the inhabitants of Buenos Aires.Footnote 42 It is now listed on the Representative List of the Intangible Cultural Heritage of Humanity, alongside Ladakhi Buddhist chanting.Footnote 43

The Representative List of the Intangible Cultural Heritage of Humanity is the main list created by the 2003 Convention, with 314 elements at the time of writing.Footnote 44 The other list is the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, with thirty-eight elements at the time of writing. This latter list focuses on manifestations of heritage that are on the verge of disappearance, with a stronger focus on providing resources for its safeguarding, whereas the former list focuses more on the visibility of heritage as a means of creating endogenous mechanisms for its safeguarding for present and future generations.

The use of lists as a means of safeguarding heritage is not undisputed. An argument was made during the drafting of the 2003 UNESCO Convention that the creation of a list would necessarily create a hierarchy of heritage (the “listed” heritage being of greater importance than the “unlisted” heritage), and that instead a simple list of best practices for the safeguarding of intangible heritage should be established. Instead, the majority opinion at the drafting conference seemed to be that, by calling the principal list “Representative”, it would be clear that no hierarchy exists, and that the list is simply a means of enhancing the visibility of intangible cultural heritage in general, and some manifestations in particular.Footnote 45 An inventory of best practices for the safeguarding of intangible cultural heritage was also established alongside the two lists,Footnote 46 and it contains twelve sets of best practices at the time of writing.Footnote 47

An additional objection to listing as a mechanism for safeguarding intangible heritage is that it commodifies heritage and identity. More specifically, by inscribing a manifestation of heritage on a list, a necessary exercise is to “describe” and “capture” that heritage, which can easily freeze what is by definition a “living culture” into a snapshot taken at the moment of listing. A response to this criticism is that the listing of intangible heritage is far less rigid than the listing for the World Heritage List, for example. While a World Heritage List nomination requires a fairly precise delimitation of the area to be protected, intangible heritage listing only requires a rather loose definition of the heritage being safeguarded, without requiring that a form be fixed by means such as recordings that would inevitably generate rigidity for the purposes of protection akin to intellectual property.

This process of commodification also pushes the intangible heritage into the market, as its status becomes “added value” in attempts to promote tourism by the state and other stakeholders interested in the economic exploitation of heritage tourism, without much regard as to the wishes of the community whose heritage is to be exploited.Footnote 48 This problem has been arguably addressed by requiring the community's free, prior, and informed consent (FPIC) prior to inscription onto the list (see below), but, as I have discussed elsewhere, the FPIC requirement can be easily manipulated.Footnote 49

The intangible cultural heritage lists allow for the inscription of manifestations of heritage from the various domains of intangible cultural heritage, including oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe, knowledge and skills required to produce traditional crafts, and languages (inasmuch as they are a vehicle for intangible heritage, and not as heritage in their own right).Footnote 50 Ladakhi Buddhist chanting was inscribed under the banners of “social practices, rituals and festive events”, “performing arts”, and “Oral Traditions and expressions, including language as a vehicle of the Intangible Cultural Heritage”.Footnote 51

The criteria for inscription on the list of representative intangible heritage, which must all be met by states seeking inscription, are: (1) that the manifestation of heritage falls within the concept of Article 2 of the Convention; (2) that the inscription will contribute to the visibility and awareness of the significance of Intangible Cultural Heritage and will encourage dialogue, thereby entangling cultural diversity and being a testimony to human creativity; (3) that safeguarding measures are elaborated to protect and promote the element; (4) the free, prior, and informed consent of the affected communities, groups, and individuals; and (5) that the element is present in one of the inventories required from States Parties.Footnote 52 Also, communities must be involved in the preparation of the nominations for this list.Footnote 53

The nomination of the “Buddhist chanting of Ladakh: recitation of sacred Buddhist texts in the trans-Himalayan Ladakh region, Jammu and Kashmir, India” was initiated by the Indian government, with some support from Ladakhi groups after the process had been initiated domestically. The nomination file for Buddhist chanting indicates that the primary aim of the listing is the chanting itself, but it also includes the recitation of sacred texts as being part of this intangible cultural heritage.Footnote 54 It states that “[t]he chanting is a highly orchestrated musical drama. It is done either sitting indoors or dancing in the monastic courtyards or in private houses in the village. While chanting, the monks wear special costumes and make hand gestures representing the divine being of the Buddha.”Footnote 55

The definition of the heritage (first criterion) makes it clear that seven forms of chanting are being included as representative of the diversity of the tradition: Shrgangrima, Nashthan Phyagzod, Kunrig, Rigmachutuk, Guru Mantra, Chod, and Guhyasamaj Tantra. Of these, the Chod is a secret practice, performed in cemeteries. The inclusion of a secret practice (and its continuance as such) bears testimony to the lack of a prescribed form for the practice of the heritage.Footnote 56 It also speaks to what “visibility and awareness” may actually mean in practice. Visibility is not necessarily of the rituals themselves, but rather of their existence and importance. Communities still can play a role in keeping their secret practices shrouded from outsiders, but enjoy some benefit for their safeguarding.

As to the second criterion, contribution to visibility and awareness, the nomination form specifies that “[t]his intangible cultural heritage is a gift from the Buddhist philosophy of Ladakh to the world”, with a view of promoting peace and understanding.Footnote 57 It states that inscription “will give the tradition tremendous credibility and respect at the local level, which will ensure the continuity of tradition”.Footnote 58 This notion responds to the sense of pride a community is expected to gain from having its heritage listed, discussed above.

The nomination form also states that “[t]he inscription will raise awareness and bridge gaps between communities and regions, and help identify with similar practices elsewhere. The inscription will help bring to light at a global level the Buddhist chanting of Ladakh as an important part of world musical heritage.”Footnote 59 With that, the nomination file promises high visibility to this cultural form, in line with the UNESCO Convention's goals. But it does seem to presume that this visibility will flow naturally and inevitably from the mere act of inscription, without much thought as to other activities that the state might need to undertake so as to assist in increasing the visibility of the manifestation of heritage.

With respect to safeguarding measures (third criterion), those are outlined both in terms of efforts existing at the time of nomination, and of proposed activities in the event the inscription is successful, as well as of statements of commitment by the concerned communities and the state. With respect to current activities, the nomination file is revealing in that it says that the “visionary leadership of Ladakh”, in 1959, established the Central Institute of Buddhist Studies, with a view to fortifying the place of Buddhist monasteries in Ladakh as education providers, and in making Buddhist language, history, and philosophy compulsory subjects in their curriculum. This institute, tellingly, is now fully financed by the Ministry of Culture of India, which has secularized the educational system and made syllabuses uniform across Ladakh. Monks are now invited to teach as religious instructors, who will then primarily teach the chanting rituals at the monasteries.Footnote 60

What is revealing about this section of the nomination file is the degree of control that the central Indian government has over the content and instruction of this minority. There is certainly an argument to be made about education being secularized, but the uniformity of the syllabuses would suggest that, alongside religion, Ladakhi nationalism is being excluded from teaching in Ladakh, in favour of a more tamed view of Ladakh as part of India, instead of a potentially dissenting group, who might wish to seek its self-determination.

With respect to safeguarding strategies following inscription on the list, the nomination file speaks of a broader strategy that involves the restoration of temples, the creation of means of guaranteeing the livelihood of monks, and the development of craft centres for the production of musical instruments and the printing of sacred texts, as well as archiving and awareness campaigns. The nomination file commits the Indian government to set up a special fund under the Ministry of Culture exclusively for the preservation and dissemination of Ladakhi chanting.Footnote 61

The commitment of communities is evidenced through the existence of the Central Institute of Buddhist Studies, which works alongside monasteries to teach chanting in the Gonpa schools.Footnote 62 The nomination file goes as far as saying that “any initiative to preserve this intangible heritage has to be carried forward by the monks and the community”, even though it does not provide much evidence of support by the community besides the existence of Gonpa schools. And the commitment of the state is seen through the setting up of the Central Institute of Buddhist Studies, as well as workshops with cultural bodies, as well as a small grants scheme for “Safeguarding the Intangible Cultural Heritage and Diverse Cultural Traditions of India”.Footnote 63

The fourth criterion, community participation and consent, is somewhat more problematic, in my view. Five monasteries have actively participated in the nomination process, but they are all located in the Leh district of Ladakh.Footnote 64 Presumably, it would make more sense to consult monasteries in both Leh and Kargil for the purposes of the FPIC. However, as discussed below, this might have been a strategic decision.

Inclusion of the element in a national inventory or list is the fifth criterion in the nomination form. The form suggests that the chanting is in the inventory of the Central Institute for Buddhist Studies, and also in the inventory of the Indira Gandhi National Centre for the Arts.Footnote 65 While the obligation under the 2003 Convention is very clear that one or more inventories are possible, and that there is no prescribed form in inventorying,Footnote 66 it is unclear what measures, if any, are allowed under the Indian Constitution for the purposes of safeguarding cultural heritage.

III. CULTURAL HERITAGE IN INDIAN DOMESTIC LAW

In April 2010, the government of Jammu and Kashmir approved the Jammu and Kashmir Heritage Conservation and Preservation Act, which aimed to cover both tangible and intangible heritage.Footnote 67 The Act determines that all heritage, tangible and intangible, shall be “graded … according to its heritage significance”, as a means of determining “the level or nature of preservation or patronage or promotion required” (section 2.(i)). The Act also defines intangible heritage as “those aspects of culture that are non-material and abstract like music, dance, drama, poetry, living heritage like traditional crafts and cuisine and knowledge systems, folklore, spiritual traditions like yoga and Sufism, etc.” (section 2(p)).

For a manifestation of intangible cultural heritage to be protected under this Act, it must be recommended, surveyed, researched, documented, and graded (section 6(1)). When engaging in such a process, the government may consult the broader community by inviting suggestions or objections from the general public (section 6(2)). This highly discretionary power would give state authorities great control over what heritage is worth protecting in Jammu and Kashmir.

The Jammu and Kashmir Act also speaks of “[c]ontrol of Changes/Distortions/Tampering in/of Intangible Cultural Heritage” (section 12), giving to the government or an authority under it the power to control changes—and, essentially, control the meaning of the heritage. A fund is also established from which monies can be granted to preserve and promote intangible heritage (section 13(1)(b)).

The Jammu and Kashmir Heritage Conservation and Preservation Regulations, 2012, outline a set of criteria for the listing of intangible cultural heritage:Footnote 68

  1. 4. CRITERIA FOR LISTING OF INTANGIBLE HERITAGE:

The criteria for listing of intangible heritage and of artifacts which requires a different set of criteria, the main considerations shall be as under:

  1. i. Age or period of origin.

  2. ii. Significance.

  3. iii. Ownership.

  4. iv. Authenticity.

  5. v. Physical condition (in case of artifacts).

  6. vi. Degree of prevalence: numbers associated with the heritage.

  7. vii. Relevance or significance to the Society or Community or History.

  8. viii. Efforts required for conservation.

Despite this sophisticated—albeit problematic, as discussed below—legislative framework at the state level, it seems that, from the Nomination File before UNESCO, state-level processes were not used, and listing went straight to a national inventory. Why would state-level processes be bypassed in this case? Part of the answer lies in the foreign affairs power in the Constitution of India,Footnote 69 but there might also be more at stake, considering the problematic politics of the region.

Under the Constitution of India, the cultural and educational rights of minorities are protected.Footnote 70 More specifically, the Constitution creates a right for citizens “having a distinct language, script of culture” to conserve it (section 29(1)). It also establishes that minorities “shall have the right to establish and administer educational institutions of their choice” (section 30(1)). These provisions on education, the only ones on “cultural rights” within the fundamental rights part of the Constitution (Part III), can arguably be the basis upon which the Indian government can protect the Gonpa school system.

The state of Jammu and Kashmir, by virtue of section 370 of the Constitution of India, has a special status in relation to the rest of India. To be specific, a number of provisions of the Constitution do not apply, or apply differently, to Jammu and Kashmir. Section 370 is the product of compromise for the incorporation of the area into the Union of India, and gives the Constitution an asymmetrical appearance. However, as one commentator has argued, this section does not stem from the recognition of ethnic or religious distinctiveness to the region or its inhabitants; it is simply “a temporary expediency design to govern the state's relations with India before the military conflict over its status could be resolved”.Footnote 71 In fact, a case is still being made for multicultural accommodation in India.Footnote 72

A large number of the exceptions in the application of the Constitution of India have been subsequently eliminated by the Constitution (Application to Jammu and Kashmir) Order 1954, which still modifies a number of the provisions of the Constitution, but no longer excludes them from application to Jammu and Kashmir. One of the parts of the Constitution that seems to still be excluded by the Order is the Fifth Schedule of the Constitution (“Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes”). However, a number of Buddhist groups in Ladakh are listed as “scheduled tribes”,Footnote 73 and as such are subject to the Fifth Schedule. This Schedule determines, among other things, that certain legislation may not apply to a scheduled area or tribe, and that special laws may be enacted for scheduled areas.

Another relevant Schedule of the Constitution for our present purposes is the Seventh Schedule, on the distribution of legislative competences between the Union of India and the states (as per section 246 of the Constitution). The Seventh Schedule provides for the competence of the Union to legislate on matters related to national institutions with respect to heritage and history, such as the National Library, the Imperial War Museum, and the Indian Museum, as well as “any other like institution financed by the Government of India wholly or in part and declared by Parliament by law to be an institution of national importance” (List I.65). In this respect, funding for the Indira Gandhi National Centre for the Arts (which houses the intangible heritage lists) comes from the national government, which would suggest some form of Union legislative power over intangible cultural heritage in India. Further, the Union has competence to legislate over “[a]ncient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance” (List I.67). But the Seventh Schedule also determines that states and the Union have concurrent competence to legislate over “[a]rchaeological sites and remains other than those declared by and under law made by Parliament to be of national importance” (List III.40).

The Constitution also determines that residual legislative powers lie with the Union of India (section 248), and that legislation in order to give effect to international agreements is also the prerogative of the Union (section 253). All of these provisions considered, it is still unclear whether the state of Jammu and Kashmir or the Union have legislative competence over Ladakhi heritage, but a strong argument can be made for Union competence, based on the foreign affairs power, as well as the status of the Indira Gandhi National Centre for the Arts. That is despite the fact that the only relevant pieces of legislation enacted for the protection of cultural heritage do not apply directly to intangible cultural heritage.Footnote 74

The Constitution of Jammu and Kashmir does not help with solving this puzzle. Section 23 simply provides that “[t]he State shall guarantee to the socially and educationally backward sections of the people special care for the promotion of their educational, material and cultural interests and protection against social injustice”. “Backward sections of the people” is usually taken to mean Scheduled Castes, Scheduled Tribes, and “Other Backward Classes” officially defined as such. Scheduled Tribes, such as many segments of the Ladakhi population, would generally fall under this banner, and this section applies to Ladakh, alongside section 17, on the promotion of crafts and cottage industries. This state constitution has a very clear socialist orientation (as per section 13, titled “State to establish a socialist order of society for the promotion of welfare of the people”), but it is unclear whether, in the delicate political intricacies of the region, Ladakh is in the minds of government.

However helpful in understanding internal power dynamics in India, the question of constitutional and legislative competence matters little to international law, and the important lesson here is that a myriad of provisions exist on the protection of culture and heritage both at the federal and state levels in India. All of them, to some extent or another, inform the broader debate around the listing of Buddhist chanting of Ladakh, and the uses of this heritage.

The Gonpa school system is the linchpin of the safeguarding process of the Buddhist chanting of Ladakh, and the nomination was successful, with the element being inscribed on 7 December 2012.Footnote 75 But, beyond the celebrations at UNESCO headquarters, and the inscription on the list for its own sake, what are the possible uses of this Buddhist heritage in Ladakh? What are some of the unintended—or perhaps intended—consequences of this listing, for Ladakhis, the Indian state, and the region? Section IV explores some of these possibilities.

IV. THE USES OF HERITAGE

Cultural heritage law is one possible means through which cultural identity or culture more generally gets to be protected. Cultural heritage in a sense embodies a cultural identity, and makes it graspable, within the reach and comprehension of the casual bystander. It is a means to give “culture”—amorphous, ever-changing, and all-encompassing—an element that can be more easily subject to legal protection—as cultural heritage is definable and more limited. Of course, there are many risks to reliance on cultural heritage as a proxy for culture: the biggest one is that it commodifies culture, turning it into “bites” for the comprehension, appreciation, and eventual consumption by outsiders.Footnote 76

There is a sense in which cultural heritage, at least that which is protected under UNESCO, “belongs” to the whole of humanity, or at least that all of humanity has a stake in its protection.Footnote 77 While the internationalization of heritage helps promote UNESCO's goals of cultural co-operation among nations for peace, and a sense of pride can be derived from the international recognition of one's heritage (as discussed above), one of the negative effects of this internationalization (and the giving of a stake in heritage to everyone in the world) is that it disembodies heritage. And, as Karen Engle put it:

That heritage can be alienated from the groups from which it is seen to emanate provides the basis for another possibly unintended consequence of this understanding of culture. It permits states and even international institutions to pick and choose the parts of the heritage they believe are worth protecting, and to suppress those of which they do not approve.Footnote 78

There is often a mismatch between what communities hope they will achieve by having their heritage listed under UNESCO, what states—and often NGOs—promise these communities, and what heritage instruments under UNESCO actually allow for the benefit of communities. The following subsections explore some of those expectations, promises, and mismatches, inquiring into the possible uses of heritage listing before UNESCO for the communities from which the listed heritage comes, the other communities and groups around these communities, and the state in which the listed heritage is practised.

A. Listing as Minority Emancipation

The listing of Buddhist chanting before UNESCO can be perceived, in a more optimistic sense, as a means for the emancipation of Ladakhis. After all, the inclusion on an international list certainly increases visibility beyond the Indian state, and in a way represents Ladakhis on the international plane as a distinctive entity from India, or even the state of Jammu and Kashmir. Heritage listing, in many ways, produces cosmopolitanism, which can be welcome to a minority trying to articulate a position for itself outside the Indian nation-state.Footnote 79

The idea of heritage listing also resonates on some level with the process of international human rights adjudication: heritage listing is, in a certain way, about bringing your claims (your culture) before an international forum (UNESCO) to have your heritage “adjudicated on” (listed or not) despite the state. The process of heritage listing before UNESCO can thus be seen in itself as a means of contesting the state, and emancipate the community from which the heritage stems. In effect, repeated calls for the further democratization of international law-making would enhance this capacity of contestation under international law.Footnote 80

With specific regard to Ladakhi Buddhists, the listing of the chanting was not the first recognition UNESCO has given to their heritage. In 2007, the UNESCO Bangkok Office bestowed upon the Maitreya Temples Complex the “Award of Excellence” in the “UNESCO Asia-Pacific Awards for Cultural Heritage Conservation”.Footnote 81 This award recognized the work of the Namgyal Institute for Research on Ladakhi Art and Culture (NIRLAC) and the Basgo Welfare Committee on the restoration of a group of three temples in Basgo—an ancient capital of the Ladakhi kingdom, before Leh became the capital in 1555. One of the temples was actually built by a Balti Muslim queen, and may have initially been a mosque that was later transformed into a Buddhist temple.

These three temples are still in use as places of worship, despite the disrepair into which they fell over the centuries. Community-based conservation was always done, but it was usually more cosmetic, with the community lacking the resources for major structural repairs. In 2000, the community developed a broader conservation strategy and established the Basgo Welfare Community, which in 2001 joined forces with the New Delhi-based NGO NIRLAC. Also in 2000, the World Monuments Fund (WMF) put the Maitreya Temples on their “Watch List of 100 Most Endangered Sites”, and the WMF officially partnered with NIRLAC for the restoration of the temples.Footnote 82

After several years of painstaking labour, relying on over US$200,000 of funding from NIRLAC, and efforts by the Basgo local community, restoration was completed. The project was then recognized by the Jury of the UNESCO Bangkok award as “set[ting] a regional standard for conservation that combines grass-roots advocacy with the highest levels of technical excellence”. The Jury Citation also praises “[t]he sustained efforts by the Basgo Welfare Committee to underpin development with heritage conservation [which] have placed culture at the centre of community revitalization; while the contributions of the local community, in terms of both skills and resources, have allowed for the safeguarding of an iconic but endangered part of the heritage of the Himalayan region”.Footnote 83

The project describes the temples as “an integral part of the identity of this ethnically and religiously unique area, a bastion of Tibetan Buddhism in Jammu and Kashmir. The site is also a living memorial to Ladakh's past as an independent kingdom. The conservation of the Maitreya Temples represents a major step in the protection of Ladakhi heritage and an affirmation of the Tibetan Buddhist identity that is at risk even in its own homeland.”Footnote 84

The process for the restoration of the temples highlights the distinctiveness of the Buddhist culture in Jammu and Kashmir, and reflects the community's yearning for more recognition. It also represents a first step in using UNESCO heritage protection mechanisms to achieve that recognition. The award by UNESCO is in this sense a first step in what is now a much broader strategy with respect to Buddhist heritage in Ladakh. WMF is still partnered with NIRLAC for the restoration of other Buddhist sites in Ladakh, and another award from UNESCO Bangkok has followed in 2011,Footnote 85 as well as an award from a travel magazine (Travel+Leisure) in 2012.

The use of other UNESCO mechanisms then naturally follows, given the success of projects for the restoration of Buddhist temples. And the nomination of Buddhist chanting in Ladakh, with its focus on a holistic strategy for the preservation of Ladakhi culture, centred on the livelihood of monks, the Gonpa system, awareness campaigns, and the funding and fostering of craft centres achieves a comparable level of international prestige and recognition of Ladakhi heritage.

In many ways, the funding that is promised via the listing process addresses historical inequities during partition, in which Gonpas received no financial aid under the administration of either Muslims or Hindus in the years surrounding and following partition.Footnote 86 This neglect, which has in large part fuelled Ladakhi nationalism, is thereby addressed through a new line of funding created by the Indian government.

This listing, much like the Maitreya Temples project, also plays off the notion of Ladakh's “uniqueness” in the region, and its neglect by the state of Jammu and Kashmir, and India more generally. One of the effects of the listing is that it directs funding to Ladakh. Even though the state of Jammu and Kashmir has long received significant funding from the Indian government, including specific funds for the promotion of culture, heritage, and tourism, these funds have invariably been deflected to Kashmir in particular, as a more problematic zone, rather than impoverished Ladakh or Jammu.Footnote 87

This listing can therefore be seen as highlighting the distinctiveness of Ladakhi identity, and finally funnelling some of the long-promised funds for the economic and social development of Buddhist communities in Ladakh. It is thus a means of emancipating Ladakhis in their own state, at least to a certain extent. But this same listing, while emancipating Ladakhis and highlighting their existence and importance, seems to downplay the existence and importance of other groups in the region, thereby oppressing them.

B. Listing as Minority Oppression

To be more specific, the listing process, and the programmes around Ladakhi Buddhist heritage, claim Ladakh as “Buddhist”, and ignore the Muslim population of Ladakh—which is over 45 percent of the total population of the area.Footnote 88 Heritage listing, therefore, can work also to alienate and exclude one minority for the sake of the promotion of another.

Muslims are an important part of Ladakhi culture, and seem to be neglected by a listing of Buddhist heritage alone. The game of polo, for instance, important in Ladakhi social life,Footnote 89 was brought by the settlement of Shia Muslims, even though it is now practised by Muslims and Buddhists alike.Footnote 90 Similarly, various elements of the Ladakhi language come from the interaction with Muslim culture and languages.Footnote 91

Because Ladakhi separatism worked along a Buddhist-Muslim divide, it triggered divisions that seem to be exploited and reinforced by the listing process. This divide is largely artificial, though, especially as the Shias of Leh are predominantly Baltis, and ethnically similar to Ladakhi Buddhists.Footnote 92 Intermarriages are also fairly common among Buddhists and Muslims, but this “melting pot” feature of contemporary Ladakhi society is largely ignored by the labels required by listing.

Despite the artificiality of this divide, it has been successfully exploited in fostering division and dissidence among Buddhists and Muslims in Ladakh. Even though ultimately they came together in the push towards the creation of the Autonomous Hill Councils, Muslims in Kargil at the time felt that Leh overshadowed their identity, and resented the “Leh-centric” conception of Ladakh.Footnote 93 The listing process, essentially claiming Ladakh as “Buddhist”, reinforces this resentment, calling into question the role of heritage listing, and the protection of culture, as promoting intercultural dialogue, enshrined in the UNESCO Constitution.Footnote 94 It would seem that, at least in this case, listing has deepened differences, by privileging a construction of Ladakhi identity that essentially obscures the importance of Muslims for the functioning of that society.

Listing also lends credence to notions of a “pure” Ladakhi (Buddhist) identity. In the formation of Bhutan, a self-proclaimed Buddhist state, ethnic Nepalis and Hindus were traditionally seen as a threat to the “northern Bhutanese, Buddhist descendants of early Tibetan settlers”.Footnote 95 Consequently, a national “One Nation One People” policy was put into place, viciously discriminating against non-Buddhists in Bhutan. Under the banner of “cultural protection laws”, these provisions have been used to worsen the living conditions of cultural and ethnic minorities in Bhutan.Footnote 96 Conditions are not at that stage in Ladakh, but it is a slippery slope, especially when the listing of Ladakhi Buddhist heritage happens under the guise of “cultural protection”.

Privileging one minority over another is a basic colonial trope, and one that appears to be employed in this context as well. The consequent oppression of the Muslim community in Ladakh by this process of privileging Buddhist heritage, and of claiming Ladakh as Buddhist, seems to flatter Buddhists, which is a means of more easily subjecting them to control by the Indian state. The next subsection explores some of these facets.

C. Listing as Control

Listing can work as a means of the (partial) emancipation of a minority group, and it has the unintended consequence of harming communities that are not covered by the scope of listing. But there is also an important unintended consequence that can come from listing, and that can negatively affect the communities that are, on the surface, being “emancipated” by having their heritage listed by UNESCO.

Part of it rests simply on how the emancipatory potentials of heritage are often over-promised. Heritage listing will not serve as a means for self-determination, at least not in the state-creating sense, which would be the main goal of the Ladakhi nationalist movement discussed above. Moreover, even if one focuses on a thinner version of self-determination instead, one that would require cultural accommodation for minority communities, that does not seem to be on the horizon either.

With respect to nationalism and separatism in Ladakh, several communities in Ladakh have received tribal recognition under the Indian Constitution. But this tribal recognition does not require the Indian state to create a separate political entity for those peoples. One of the measures that have resulted is the creation of the Autonomous Hill Development Councils, which is a means to promote some form of political autonomy. But that is detached from the core of Ladakhi heritage, as characterized before UNESCO. More specifically, one of the downsides of tribal recognition is that political life has moved away from Gonpas (the centre of the listing process) to the Hill Councils. Even though this move detaches politics from religion, which is an important secular and liberal goal, it also more fundamentally moves Ladakhi heritage out of the political process. Ladakhi identity becomes a detached manifestation of culture, which is to be gazed upon and exoticized by the outsider, but not one that is a basis for political contestation of the majoritarian state structure—at least not to the same extent.

Heritage recognition therefore lies in the construction of “controlled” difference. Difference will be permissible, as long as it conforms to the boundaries of the political process as set by the state. And cultural practices will be deemed “authentic” or “inauthentic”, which is a means to essentially shift control over their meanings. The Jammu and Kashmir cultural heritage Act (above) clearly indicates that there is such a thing as “authentic” intangible cultural heritage in the view of those authorities.Footnote 97 And that it is up to the state to determine whether heritage is, in fact, “authentic”. These two factors, controlled difference and the quest for “authenticity”, form what Elizabeth Povinelli has called “the cunning of recognition”. For her, “[t]he cunning of recognition lies exactly in this play of the parentheticals: Be (not) Real; Be (not) Alterior.”Footnote 98 Therefore, the meanings and possibilities of heritage are tightly controlled by the state, thus reducing to a minimum the potentials of heritage (in this context, at any rate) for the exercise of self-determination.

Also relevant in this context, “policies based on intangible heritage … generally do not require the State to make significant political power-sharing arrangements”.Footnote 99 That is not only because intangible cultural heritage listing requires that cultural manifestations “conform” to a certain mould, so they can fit under UNESCO's protective umbrella. That is only part of the answer. More generally, heritage listing shifts control over heritage away from the community, and towards the state listing it. The state has the monopoly of listing heritage before UNESCO, and, in the process, it determines what heritage is, why it is worth protecting, and in what terms it will be safeguarded.

A similar effect has been observed in Lhasa, capital of Tibet, and with respect to World Heritage listing. The Historic Ensemble of the Potala Palace, Lhasa was added by China to the World Heritage List in 1994, and the process of heritage listing has since been used as a means of controlling the population, to clear the market that had traditionally operated in front of the palace, and to promote the migration and business dominance in the region of Chinese Han over Tibetan locals.Footnote 100

UNESCO heritage listing thus has the effect of further centralizing control over the meanings and uses of heritage. At the time that an early nomination of Buddhist chanting in Ladakh was made before UNESCO, it was made alongside nineteen other manifestations of intangible cultural heritage. These nominations were used as a means to revitalize cultural programmes all around the country, hailed for their potential to showcase the history and heritage of India.Footnote 101 And the funding that came to Ladakh for the benefit of the Gonpa system from this surge is more than welcome, but it is still under the central control of the Indian government, as a result of the international status of Ladakh.

The use of development funding for the control of parts of Jammu and Kashmir is not novel to the heritage context, and has been used in a number of contexts by the Indian central government as a means to control the region via what are on the face of it autonomy-granting measures.Footnote 102 These measures have been particularly valuable with respect to conflict management in the long run, which is certainly one way in which heritage listing can be seen as part of conflict management, but not the only one.

D. Listing as Conflict Management

Heritage is often an important element in conflict management, capable of creating conflict, but also helpful in its resolution. As a matter of fact, historically, conflicts over relics from certain shrines have spurred violence across the Kashmir Valley as far back as 1963.Footnote 103 And part of the conflict in Jammu and Kashmir in the twenty-first century is attributable to the transfer of land to the Amarnath shrine for the purposes of facilitating the pilgrimage of Hindus to a Muslim-majority area of Jammu and Kashmir (in Kashmir). This transfer of lands, however, was seen as “part of a plan to settle Hindus from outside to change the demography of the state, reducing its Muslim majority to a minority”, and was quickly reversed by the government.Footnote 104 Despite the reversal, this incident, based on heritage, stands for the “resurfacing” of secessionist movements in the Kashmir Valley.Footnote 105 That reversal did not come without its price for the affected communities, in the form of the violent repression of peaceful protests in both the Jammu and Kashmir areas of the state,Footnote 106 even though there was a larger than usual turnout in local elections, which is unusual in a region where electoral boycott is seen as a means to contest the authority of the Indian central government.Footnote 107

Hence, one final major use of heritage in the Ladakh Buddhist chanting context has to do with where Ladakh is, and who its neighbours are. The Ladakh region shares contested borders with both China and Pakistan, and is therefore embroiled in larger conflicts involving India and each of the two nations, which India is eager to resolve in some fashion.Footnote 108 For the Indian government to be able to claim Ladakhi heritage as India's heritage means, at least symbolically, that the territory of Ladakh is part of India, and that Ladakhi identity is part of multicultural Indian identity as well.

Listing under UNESCO enables just that. After all, when one looks up Buddhist Chanting of Ladakh on the Representative List of the Intangible Cultural Heritage of Humanity, it clearly appears under “India”, as the nominating state, which also controls that culture, involving a claim that India is where that manifestation of heritage rightfully belongs.

In this way, heritage listing serves a “flag-planting” function, in order to ascertain and clarify claims over contested territory. This type of manoeuvre is not unique to India, though: China is openly using underwater cultural heritage as a means to reinforce its claims over vast parts of the South China Seas.Footnote 109 China is using the existence of shipwrecks in certain areas of the South China Seas as proof of Chinese occupation of the areas predating occupation by, say, Vietnam or the Philippines, to name two examples of disputes. That way, Chinese government officials suggest, China can effectively claim sovereignty over those contested areas, based on historical title.Footnote 110

And India can arguably do just the same, should the opportunity present itself: because the culture practised in Ladakh is Indian culture—or is at least claimed as such and recognized as such by UNESCO—India is the sovereign over the area, over any competing claims. The use of UNESCO for the recognition of international legal claims, also, is not unique to the heritage field, if one thinks of the example of Palestine, which (successfully) applied for membership at UNESCO as a means of strengthening its statehood claims.

Heritage listing, therefore, serves as a means to claim a tradition, and with it territory, which can be used to manage—or exacerbate—conflict in a turbulent region, at least to the extent it can galvanize support for belonging to the Indian state, but also through UNESCO recognition of the culture (and attached territory) belonging to the country that has listed that manifestation of heritage. But how do those different uses of heritage come together, and interact in the broader universe of international law and relations?

V. CONCLUDING REMARKS

There are many possible uses of heritage listing, which mirror broader discussions in international law. A forum apparently as innocuous and “neutral” as UNESCO, where experts decide upon the listing of heritage for the benefit of humankind, can become the theatre for the articulation of claims that contest national and international legal processes. With respect to the struggles of international law, Mohsen al Attar and Rebekah Thompson have said that “[o]n one hand is an ethics of expertise, exclusion and plutocracy—international law as fiefdom. On the other is an ethics of subsidiarity, inclusion and democracy—international law as self-determination.”Footnote 111

The situation of Ladakhi Buddhist chanting, and its listing as representative of the intangible cultural heritage of humankind, echoes that tension. On the one hand, there is the expertise behind which states can claim to control the meanings of heritage, the exclusion of Muslims from the international representation of Ladakh, and the fiefdom that is the Indian state planting a symbolic flag in the region as an aid to the resolution of its boundary disputes. International cultural heritage law enables all of that. The same can be said about other UNESCO instruments, most notably listing under the World Heritage Convention, but also claims over underwater cultural heritage under other instruments. Certainly, movable heritage objects under the definition of the 1970 UNESCO ConventionFootnote 112 have also been used as a means to articulate these tensions.Footnote 113

But, on the other hand, there is also a glimmer of hope in international law becoming the vehicle for the emancipation of communities, for their inclusion in domestic and international legal processes that determine their status, for the correction of past wrongs. International law can work as a means of facilitating Ladakhi self-determination, in some form. But, for that to be possible, more attention is needed in the field of heritage by international lawyers. Heritage listing, as it stands, is a “quiet” means for the state to perform acts of control. It has the potential to become a means for communities (and states alike) to perform acts of contestation, dissent, and emancipation.

Culture, and heritage as culture, can serve as a means for self-determination. It just needs to work in a way that shifts control to the actual holders of that heritage, as opposed to being left in the hands of the nation-state as the unreliable steward of identity.

Footnotes

*

PhD in Law (European University Institute); Senior Lecturer, Faculty of Law, UNSW Australia. I am very grateful to Mr Guy Baldwin for his research assistance, and to the input from the audience and panel colleagues at the Asian Society of International Law Conference in New Delhi (November 2013), where I presented an early version of this paper. I am also thankful to Surabhi Ranganathan, Ben Saul, and Daniel Joyce for their comments on a subsequent draft, and to the anonymous reviewers. All errors remain my own.

1. See generally LIXINSKI, Lucas, “Luci e Ombre: The Bright and Dark Sides of International Heritage Law” (2012) 22 Italian Yearbook of International Law 133.

2. Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, UN DOC MISC/2003/CLT/CH/14 (entered into force 20 April 2006). Number of States Parties as of December 2014: 161.

3. PIRIE, Fernanda, Peace and Conflict in Ladakh: The Construction of a Fragile Web of Order (Leiden: Brill, 2007) at 9.

4. RIZVI, Janet, Ladakh: Crossroads of High Asia (Oxford: Oxford University Press, 1986) at 4.

5. Ibid., at 38–9.

6. Ibid., at 45–9.

7. Ibid., at 60–1.

8. Ibid., at 65–6.

9. On the history of partition from the perspective of the Muslim-Hindu divide, see THORNER, Alice, “The Kashmir Conflict” (1949) 3 Middle East Journal 17, and BOSE, Tapanet al., “India's ‘Kashmir War’” (1990) 25 Economic and Political Weekly 650.

10. On self-determination and nationalism in Bhutan, see SAUL, Ben, “Cultural Nationalism, Self-Determination and Human Rights in Bhutan” (2000) 12 International Journal of Refugee Law 321.

11. Rizvi, , supra note 4 at 69.

12. Ibid., at 70.

13. BIRDWOOD, Lord, Two Nations and Kashmir (London: Robert Hale Limited, 1956) at 131.

14. Rizvi, , supra note 4 at 70.

15. Ibid., at 71.

16. KORBEL, Josef, Danger in Kashmir (Oxford: Oxford University Press, 2002) at 228. It stands in contrast with militancy in Jammu. See PURI, Luv, “Tackling Militancy in Jammu” (2003) 38 Economic and Political Weekly 3243.

17. Korbel, , supra note 16 at 229.

18. Ibid., at 230.

19. BEHERA, Navnita Chadha, Demystifying Kashmir (Washington, DC: Brookings Institution Press, 2006) at 112.

20. Ibid., at 113.

21. Ibid., at 114.

22. Ibid.

23. For an account of the evolution of this conflict since partition, see HUSSAIN, Syed Rifaat, “Resolving the Kashmir Dispute: Blending Realism with Justice” (2009) 48 The Pakistan Development Review 1007.

24. Behera, , supra note 19 at 104.

25. Ibid., at 105.

26. BEHERA, Navnita Chadha, State, Identity and Violence: Jammu, Kashmir and Ladakh (New Delhi: Manohar, 2000) at 215–216.

27. Behera, , supra note 19 at 111.

28. Ibid., at 115–22.

29. Ibid., at 115.

30. Ibid., at 117.

31. Ibid., at 118.

32. Ibid.

33. LAHDCK—Ladakh Autonomous Hill Development Council Kargil, online: <http://kargil.gov.in/lahdck/lahdck.htm>.

34. Behera, , supra note 19 at 118–119.

35. Ibid., at 119.

36. See LAHDCL—Ladakh Autonomous Hill Development Council Leh, online: <http://leh.nic.in/>; and LAHDCK—Ladakh Autonomous Hill Development Council Kargil, online: <http://kargil.gov.in/lahdck/lahdck.htm>. It is interesting to note as well that the Leh Hill Council website also appears on the Internet in a directory called “TibetSites.com”, whereas the Kargil Hill Council website does not.

37. Behera, , supra note 19 at 120.

38. Ibid., at 121.

39. Rizvi, , supra note 4 at 159.

40. UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signatures on 23 November 1972, UN Doc. WHC-95/CONF.203/16/Jan31/96 (17 December 1975). Number of States Parties as of December 2014: 191.

41. See generally LIXINSKI, Lucas, Intangible Cultural Heritage in International Law (Oxford: Oxford University Press, 2013).

42. SCAFIDI, Susan, Who Owns Culture? Appropriation and Authenticity in American Law (New Brunswick, NJ: Rutgers University Press, 2005) at 28–31.

43. UNESCO Representative List of the Intangible Cultural Heritage of Humanity, Tango, online: <http://www.unesco.org/culture/ich/index.php?lg=en&pg=00011&RL=00258>.

44. 224 elements since the first round of inscriptions on the list, and 90 elements inherited from the programme of Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity, a precursor to the 2003 Convention. This incorporation happened by virtue of art. 31 of the Convention. For more details, see Lixinski, supra note 41.

45. LIXINSKI, Lucas, “Selecting Heritage: The Interplay of Art, Politics and Identity” (2011) 22 European Journal of International Law 81.

46. Supra note 2, art. 18.

47. For more, see Lixinski, , supra note 45.

48. For more on commodification, see Lixinski, , supra note 41 at 14–18.

49. Lixinski, , supra note 45.

50. Supra note 2, art. 2.2. For a discussion on the limitation of the inscription of languages, see Lixinski, , supra note 41 at 162–163.

51. Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Nomination File No. 00839 for Inscription on the Representative List of the Intangible Cultural Heritage of Humanity in 2012, at 2.

52. General Assembly, Operational Directives, Rule 19.

53. General Assembly, Operational Directives, Rule 21. See generally Lixinski, , supra note 41.

54. Supra note 51 at 3.

55. Ibid.

56. On Buddhist chanting, see TSUKAMOTO, Atsuko, “The Music of Tibetan Buddhism in Ladakh: The Musical Structure of Tibetan Buddhist Chant in the Ritual Bskan-gso of the Dge-Lugs-pa Sect” (1983) 15 Yearbook for Traditional Music 126; GREENE, Paul D.et al., “Buddhism and the Musical Cultures of Asia: A Critical Literature Survey” (2002) 44 The World of Music 135; and HELFFER, Mireille, “Regard sur les forms dans la musique rituelle du bouddhisme tibétain” (1994) 17 Cahiers de musiques traditionnelles 261.

57. Supra note 51 at 5.

58. Ibid.

59. Ibid.

60. Supra note 51 at 6.

61. Ibid., at 6–7.

62. Ibid., at 8.

63. “Safeguarding the Intangible Cultural Heritage and Diverse Cultural Traditions of India”, online: <http://sangeetnatak.gov.in/sna/scheme-safeguargingICH-new.htm>.

64. Supra note 51, annex.

65. Supra note 51 at 9.

66. Supra note 2, art. 12. For a commentary, see BLAKE, Janet, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (London: Institute of Art and Law 2006).

67. The Jammu and Kashmir Heritage Conservation and Preservation Act, No. 15, 2010. Long Title.

68. The Jammu and Kashmir Heritage Conservation and Preservation Regulations, 2012, s. 4.

69. Which was famously used in Australia for the Commonwealth to override states in the protection of World Heritage Sites. See BOER, Ben, “Article 34: The Federal Clause” in Francesco FRANCIONI and Federico LENZERINI, eds., The 1972 World Heritage Convention: A Commentary (Oxford: Oxford University Press, 2008), 355.

70. Constitution of India, 1950, ss. 29–30.

71. Louise TILLIN, “United in Diversity? Asymmetry in Indian Federalism” (2007) 37 Publius 45 at 47.

72. ALI, Amir, “Case for Multiculturalism in India” (2000) 35 Economic and Political Weekly 2503. For a more optimistic view, see BHATTACHARYYA, Harihar, “Multiculturalism in Contemporary India” (2003) 5 International Journal of Multicultural Societies 148 at 153.

73. For a full list, in alphabetical order, see Government of India, Ministry of Tribal Affairs, Alphabetical List of Scheduled Tribes, online: <http://tribal.nic.in/WriteReadData/CMS/Documents/201212010250456513671File939.pdf>.

74. The Antiquities and Art Treasures Act, No. 52, 1972; and the Antiquities and Art Treasures Rules, 1973.

75. Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Decisions Adopted in the Seventh Session, Paris, 3–7 December 2012. ITH/12/7.COM/Decisions, Decision 7.COM 11.16.

76. ENGLE, Karen, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Chapel Hill, NC: Duke University Press, 2010) at 142.

77. Lixinski, , supra note 41 at 10–14.

78. Engle, , supra note 76 at 143.

79. NOTAR, Beth E., “Producing Cosmopolitanism at the Borderlands: Lonely Planeteers and ‘Local’ Cosmopolitans in Southwest China” (2008) 81 Anthropological Quarterly 615.

80. See generally ATTAR, Mohsen AL and THOMPSON, Rebekah, “How the Multi-Level Democratization of International Law-Making Can Effect Popular Aspirations Towards Self-Determination” (2011) 3 Trade, Law and Development 65.

81. UNESCO Office in Bangkok, 2007 Award of Excellence, Maitreya Temple—Project Description, online: <http://www.unescobkk.org/culture/wh/asia-pacific-heritage-awards/heritage-e-voices/maitreya/>.

82. World Monuments Fund, Namgyal Institute for Research on Ladakhi Art & Culture Awarded Global Vision Award, online: <http://www.wmf.org/field/namgyal-institute-research-ladakhi-art-culture-awarded-global-vision-award>.

83. See supra note 80.

84. Ibid.

85. See supra note 81.

86. Behera, , supra note 19 at 111.

87. KREUTZMANN, Hermann, “Kashmir and the Northern Areas of Pakistan: Boundary-Making Along Contested Frontiers” (2008) 62 Erdkunde—Archive for Scientific Geography 201 at 209.

88. PURI, Balraj, “Major Identities of Jammu and Kashmir State” (2001) 28 India International Centre Quarterly 69 at 76.

89. AGGARWAL, Ravina, Beyond Lines of Control: Performance and Politics on the Disputed Borders of Ladakh, India (Chapel Hill, NC: Duke University Press, 2004) at 24–25

90. Rizvi, , supra note 4 at 5.

91. On more instances of common heritage across the different groups in Jammu and Kashmir, see Puri, , supra note 88.

92. Behera, , supra note 19 at 115.

93. Ibid., at 225.

94. UNESCO Constitution, 4 UNTS 275; 41 AJIL Supp. 1. Preamble: “That ignorance of each other's ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war.”

95. Saul, , supra note 10 at 323.

96. Ibid., at 330–5.

97. For a critique of this idea, see Lucas LIXINSKI, “A Tale of Two Heritages: Claims of Ownership over Intangible Cultural Heritage and the Myth of ‘Authenticity’” (2014) 11 Transnational Dispute Management.

98. POVINELLI, Elizabeth A., The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Chapel Hill, NC: Duke University Press, 2002) at 176.

99. Engle, , supra note 76 at 149.

100. For more detailed commentary, see SINDING-LARSEN, Amund, “Lhasa Community, World Heritage and Human Rights” (2012) 18 International Journal of Heritage Studies 297.

101. KANNAN, Ramya, “India Files 20 Nominations to UNESCO” The Hindu (9 September 2009), online: The Hindu <http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/india-files-20-nominations-to-unesco/article179365.ece>. See also BHELA, Anita, “Preserving India's Intangible Cultural Heritage: Issues and Challenges” (2010) 8 The International Journal of the Humanities 207.

102. NAVLAKHA, Gautam, “Jammu and Kashmir: Autonomy via Control” (2005) 40 Economic and Political Weekly 349.

103. TREMBLAY, Reeta Chowdhari, “Kashmir's Secessionist Movement Resurfaces: Ethnic Identity, Community Competition, and the State” (2009) 49 Asian Survey 924 at 933–934.

104. PURI, Balraj, “Jammu and Kashmir: The Issue of Regional Autonomy” (2008) 43 Economic and Political Weekly 8.

105. Tremblay, , supra note 103. On the background to some of these movements, see CHOWDHARY, Rekha and RAO, V. Nagendra, “Jammu and Kashmir: Electoral Politics in a Separatist Context” (2004) 39 Economic and Political Weekly 5449.

106. NAVLAKHA, Gautam, “Jammu and Kashmir: Winning a Battle Only to Lose the War?” (2008) 43 Economic and Political Weekly 43.

107. PURI, Ellora, “Understanding the Paradoxical Outcome in Jammu and Kashmir” (2009) 44 Economic and Political Weekly 31.

108. GANGULI, Sumit, “Will Kashmir Stop India's Rise?” (2006) 85 Foreign Affairs 45.

109. PAGE, Jeremy, “China Territorial Strife Hits Archaeology” The Wall Street Journal (2 December 2013), online: The Wall Street Journal <http://online.wsj.com/news/articles/SB10001424052702304470504579164873258159410?mod=WSJAsia_hpp_LEFTTopStories&_ga=1.218813786.2117557883.1396231939>.

110. GUILFORD, Gwynn, “Shipwrecks Are China's Latest Approach to Claiming Contested Territory” Quartz (2 December 2013), online: Quartz <http://qz.com/152716/shipwrecks-are-chinas-latest-approach-to-claiming-disputed-territory/>.

111. Al Attar and Thompson, supra note 80 at 102.

112. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972). Number of States Parties as of December 2014: 127.

113. For an exploration of examples, see generally CHECHI, Alessandro, The Settlement of International Cultural Heritage Disputes (Oxford: Oxford University Press, 2014).

* PhD in Law (European University Institute); Senior Lecturer, Faculty of Law, UNSW Australia. I am very grateful to Mr Guy Baldwin for his research assistance, and to the input from the audience and panel colleagues at the Asian Society of International Law Conference in New Delhi (November 2013), where I presented an early version of this paper. I am also thankful to Surabhi Ranganathan, Ben Saul, and Daniel Joyce for their comments on a subsequent draft, and to the anonymous reviewers. All errors remain my own.