The Impact of the 2003 Convention on National Law Making and Policymaking

The following is a review of the experience of States Parties to the 2003 Convention in implementing the Convention. Particular emphasis is placed here on the developments identified in internal state practice since it is the potential impact of the treaty on the development of policies, measures, and legislation to safeguard and manage the ICH on their territories that is the most important aspect. Since parties are implementing the Convention within a great variety of contexts, with differences related to political structures, social realities, geographical and environmental factors, and other issues, there is a wide variety of responses to the challenges of implementing the Convention on the national level. Following this, its impact on the international level is considered, particularly at the regional and subregional levels. The information presented here is based in large part on the reports presented by States Parties to the Convention during the 2012 and 2013 periodic reporting cycles.^{Footnote 8} It is possible to identify the following priorities they have in implementing the Convention:

• • Identification and inventorying of ICH is viewed as an essential first step for any further safeguarding by most parties. There are interesting exceptions to this: Norway (which has not yet provided its periodic report) took the decision not to conduct an inventory up until now^{Footnote 9} and Flanders (Belgium), which has undertaken several valuable safeguarding activities is only at the early stages of this process.

• • Awareness-raising and promotion of ICH are other leading priorities (often aligned with formal and informal educational programs), and are cited specifically as a priority by 12 parties.

• • Research and documentation have traditionally been leading forms of identification and safeguarding and continue to be an important activity in several parties. In some cases, there is the tendency to place too heavy an emphasis on documentation and recording ICH rather than on enhancing its function in the community.

• • Education (formal and informal) and training are also important activities for many parties, being viewed as a means of capacity-building, promotion, and transmission of ICH, with bearer communities directly involved to a larger or lesser degree.

• • The recognition of Living Human Treasures (commonly the term used) is a further safeguarding approach of interest used in several parties, in some cases providing economic and other support.

Developments on the Regional and Subregional Levels

The recognition given in the 2003 Convention of the transfrontier character of much ICH represents a significant departure from the approach taken previously in cultural heritage law, an unusual example of international law accepting the reality that cultures cross and straddle international borders.^{Footnote 20} In many ways, this is in keeping with the general approach taken throughout the Convention of recognizing that the interests of cultural communities and their heritage may challenge purely statist concerns: If the cultural community (or those communities) live on either side of an international border, this fact must be recognized and respected by the states in question when safeguarding their ICH. The possibility of making multinational nominations to the RL has been positively received by many parties with inscriptions ranging from Falconry (with 13 parties from different regions) and Nowrouz (with 10 parties from Asia) to the cultural practices and expressions linked to the Balafon of the Senufo communities of Mali and Burkina Faso.^{Footnote 21} It is also worth noting that in some cases, parties to these inscriptions do not have any other inscribed elements: It suggests that this process has provided for them an important opportunity to have their heritage recognized and to develop capacity and experience in this area through jointly developing a nomination file with other, more experienced parties.^{Footnote 22}

Multinational inscriptions have led to several cases of valuable subregional and international cooperation for their safeguarding which has, in turn, resulted in deeper cooperation for regional ICH in general. The main elements found in these bilateral and multilateral cooperative frameworks are the exchange of information, expertise, and experience on ICH safeguarding; sharing documentation on the element; collaboration over developing inventorying methodologies; joint fieldwork for documentation;^{Footnote 23} hosting joint seminars and workshops; and cohosting festivals. A good example of this is the close subregional cooperation enjoyed by Latvia, Estonia, and Lithuania over the Song and Dance festival and its related ICH. Equally importantly, the governments of Peru and Ecuador now cooperate over the identification of oral heritage and traditions of the Zápara people and improving their understanding and the safeguarding of this fragile ICH, its bearers and of the Amazon itself, a critically endangered environment where this cultural diversity is an essential part of its continued sustainability. Two further interesting initiatives have been (i) the creation of a network of professionals, communities, and centers of expertise for the Mvett, a common ICH of the Fang community located in four states of the Central African subregion (Gabon, Cameroon, Congo, and Equatorial Guinea); and (ii) establishing an International Institute for the Study of Nomadic Civilizations (Kazakhstan, Kyrgyzstan, Turkey, and Mongolia). Examples can also be found of cooperation between parties over shared heritage not inscribed on either international list, as in the case of the fusion of African and Brazilian heritage.

It is unfortunate that in certain subregions, the inscription of elements to the RL in the name of one state has been exploited by parties to play out their geopolitical rivalries. This has been the case in Southeast Asia (between China, Japan, and Korea) and also between Azerbaijan and Iran.^{Footnote 24} Such actions, of course, are not the failure of the Convention, which explicitly gives the possibility for joint nominations (which can be read as an encouragement for parties to use this new facility offered to them) but rather, the failure of some parties to embrace the spirit of the Convention. Moreover, it points to a deeper problem with the listing system. In reality, it was necessary to establish such a system in order for the treaty to be sufficiently attractive to Member States of UNESCO to adopt it in 2003; however, it does also carry with it certain problems that were identified at the time of drafting. In many ways, this problem now encountered relates to a misreading of the Convention (and the drafters’ intentions) and an unfortunate but understandable confusion with the World Heritage List that most parties are much more familiar with. The World Heritage List is, in some sense, a hit-parade of outstanding examples of cultural and natural heritage. The RL of ICH, in contrast, is intended to include representative examples of ICH and, thus, to showcase the diversity of ICH present around the world. In this sense, any element listed may be typical of an ICH form that exists in a number of countries (and even in a number of forms within one country): The example of the bagpipes is an informative one, being on the National ICH List of Serbia and on the Internet-based Wiki Inventory for ICH in Scotland^{Footnote 25} (not a party) and existing in various forms in countries through which Celtic tribes moved (e.g., Iran, Turkey, and Spain).

Conclusion and Questions for Future Consideration

A general conclusion that can be drawn from the preceding argument is that implementation of the Convention is in its early stages and that there are both substantial achievements to be lauded as well as serious challenges yet to be addressed. No doubt, new challenges will emerge in the future that require the attention and consideration of the parties and other actors in order to find appropriate solutions.

Given the innovative nature of this Convention, which is the first international treaty to address directly the non-physical aspects of cultural heritage and as a consequence, the human context of that heritage, it introduces new approaches that may throw up unexpected outcomes and require creative responses. Importantly, it places under question the traditional top-down approach to the identification of national heritage^{Footnote 26} and the attribution of significance to it by putting communities, groups, and even individual exponents at the center of the process of identification, safeguarding, and management. This creates a fundamental shift in the preexisting relationships between state authorities and local communities, which both challenges the authority of the former and promises to respect more effectively the cultural rights of the latter.

One of the informative aspects of the implementation of the Convention has been simply to demonstrate the variety of different interpretations of ICH around the world. Despite gaining some experience from the proclamation of Masterpieces of Oral and Intangible Heritage by UNESCO (between 1998 and 2003), the actual content and scope of ICH was poorly understood. The work of inventorying undertaken thus far by parties shows clear local specificities both in the domains employed and the criteria applied. In Egypt, for example, ICH domains include protective devices (under oral expressions) and practices for preventing evil deeds (under social practices) while, in Peru, they cover also indigenous languages and oral traditions, traditional political institutions, ethno-medicine, ethno-botany, and gastronomy. Similarly, the Mexican criteria include a set of three general criteria of community participation. The criteria of Mongolia include specific criteria for identifying the bearers of ICH as well as the role of the environment in maintaining the ICH.

Community participation and involvement in identification and inventorying ICH is, of course, a key aspect of the 2003 Convention^{Footnote 27} that sets it apart from other cultural heritage treaties. Although most parties have made efforts to ensure community involvement in inventorying and safeguarding in general, the degree of actual participation may differ widely: This ranges from Flanders (Belgium), where two NGOs and “heritage cells” undertake much of this work, to other parties, where the community involvement is much more superficial, involving a single consultation by the authorities with selected community representatives and even, in some cases, establishment of state-sponsored NGOs specifically for the purposes of ICH identification and management. The question of NGO involvement in the operation of the Convention, both at local and international levels, is a complex one and is an area requiring much development: NGOs clearly have a key role to play and can provide a depth of knowledge and expertise not available elsewhere. However, in many countries, the NGO community in this sector is not well developed and this is a question for future consideration; equally, the treaty lacks any international NGO(s) to play an equivalent role to that of the International Union for Conservation of Nature (IUCN) and International Council on Monuments and Sites (ICOMOS) for the 1972 World Heritage Convention.^{Footnote 28}

Other issues that require further consideration and development include the following: the relative roles of important stakeholders, including central and regional government agencies, practitioner associations, academic institutions, national artistic academies, local (non-bearer) communities, individuals, and so forth; the role local government authorities can play in facilitating ICH safeguarding, such as providing suitable spaces, financing, and/or the associated tangible elements; the role the private sector may play in ICH safeguarding and the overlap with UNESCO’s 2005 Convention;^{Footnote 29} defining more clearly policies to harness the potential of ICH to contribute to sustainable development and how to exploit ICH for tourism and local economic development without distortion of the element, disruption of the physical environment, or the abusive exploitation of its cultural community; and how to address the dependency of many elements on the natural environment and their vulnerability to climate change, deforestation, and the resulting rural-urban migration; the interaction between established religions and ICH. With reference to UNESCO’s 2005 Convention, the interactions and synergies that exist with it are likely to become increasingly important in the future implementation of the 2003 Convention. In particular, the 2005 Convention may offer some guidance in the way forward for protecting the intellectual property rights of communities (and groups and individuals) that create, practice, and transmit ICH, which are not effectively protected under the 2003 Convention.^{Footnote 30} However, it is worth noting here that the 2005 Convention has been criticized since its inception both for the speed with which it was developed^{Footnote 31} and for an apparent lack of coherence of its legal approaches, namely: is it a trade-related, cultural, intellectual property, or human rights approach, or a mixture of these?

An interesting example of the fluid and dynamic picture of experience thus far of implementing the Convention relates to two aspects of ICH that were not directly covered in the Convention text^{Footnote 32}—language and indigenous heritage^{Footnote 33}—both of which are now being safeguarded by parties under the Convention. Several parties in Africa and Latin America list language as an ICH domain and explicitly recognize its role in transmission.^{Footnote 34} Latin American and Pacific parties,^{Footnote 35} in particular, have chosen to focus much of their safeguarding activities on indigenous ICH, reflecting specific cultural policymaking approaches. Another unspoken issue of the Convention and its implementation relates to the gender dynamics of ICH practice and safeguarding and how to address apparently discriminatory forms.^{Footnote 36} Many ICH elements have very clearly defined gender roles in their practice and/or performance but this does not necessarily imply gender-based discrimination. However, in cases where there is a clear conflict between ICH elements and the spirit of the Convention,^{Footnote 37} creative approaches will need to be found for this. In such cases, is it appropriate for parties and the Intergovernmental Conference (IGC) (or the subsidiary body) to encourage transformations in an ICH element that sanitize it while keeping its core value?