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Editors --- "Convention for the Safeguarding of the Intangible Cultural Heritage - Digest" [2005] AUIndigLawRpr 16; (2005) 9(1) Australian Indigenous Law Reporter 97

International Developments

Convention for the Safeguarding of the Intangible Cultural Heritage

United Nations Educational, Scientific and Cultural Organisation

Introduction

On 17 October 2003 the General Conference of the United Nations Educational, Scientific and Cultural Organisation (‘UNESCO’) adopted the Convention for the Safeguarding of the Intangible Cultural Heritage (‘the Convention’). To date, the Convention has been accepted, approved or ratified by eleven States^[1] and requires the commitment of an additional two States before it shall enter into force. Australia has not signed the Convention and appears to have no intention of signing in the future.^[2]

International law has historically recognised and emphasised preservation of the tangible elements of cultural heritage from pillage, illicit excavations, traffic in art objects, and destruction in the course of armed conflict – recently, even, intentional destruction. The intangible cultural heritage (‘ICH’) has been neglected, however, for a considerable period of time. The Convention aims to remedy this inequality and protect aspects of cultural heritage which are equally vulnerable to loss and destruction.

The Convention evolved out of a resolution adopted by the UNESCO General Conference in 1989 on the Safeguarding of Traditional Culture and Folklore. This non-binding recommendation was reflected upon within UNESCO for more than a decade and culminated in the adoption of the Convention in 2003, which is binding on those States which decide to become parties to it.

ICH is defined in article 2 as comprising:

the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.

ICH is transmitted and developed from generation to generation. It is thus inherently vulnerable and in need of safeguarding for three main reasons: it is not always visible, and is therefore liable to be forgotten or little known; it depends on successful transmission from one generation to the next; and finally, the conditions by which inter-generational transmission can take place are often under threat.

ICH is important because it provides people with a sense of identity and continuity, and its safeguarding promotes, sustains, and develops cultural diversity and human creativity. To this end, the Convention fosters the conditions under which the ICH may continue to exist and encourages communities and groups to continue to enact, and indeed recreate, the expressions, representations and practices which make up their living cultural heritage.

UNESCO’s 7^th regional meeting for the promotion of the Convention will be held in Fiji from 24–28 of May 2005. Six regional meetings have already been conducted in various regions globally to facilitate State understanding of the nature and importance of ICH and to promote ratification of the Convention.

Extract of the Convention for the Safeguarding of the Intangible Cultural Heritage

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Preamble

Referring to existing international human rights instruments, in particular to the Universal Declaration on Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, and the International Covenant on Civil and Political Rights of 1966,

Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development, as underscored in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989, in the UNESCO Universal Declaration on Cultural Diversity of 2001, and in the Istanbul Declaration of 2002 adopted by the Third Round Table of Ministers of Culture,

Considering the deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage,

Recognizing that the processes of globalization and social transformation, alongside the conditions they create for renewed dialogue among communities, also give rise, as does the phenomenon of intolerance, to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage, in particular owing to a lack of resources for safeguarding such heritage,

Being aware of the universal will and the common concern to safeguard the intangible cultural heritage of humanity,

Recognizing that communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and recreation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity,

Noting the far-reaching impact of the activities of UNESCO in establishing normative instruments for the protection of the cultural heritage, in particular the Convention for the Protection of the World Cultural and Natural Heritage of 1972,

Noting further that no binding multilateral instrument as yet exists for the safeguarding of the intangible cultural heritage,

Considering that existing international agreements, recommendations and resolutions concerning the cultural and natural heritage need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage,

Considering the need to build greater awareness, especially among the younger generations, of the importance of the intangible cultural heritage and of its safeguarding,

Considering that the international community should contribute, together with the States Parties to this Convention, to the safeguarding of such heritage in a spirit of cooperation and mutual assistance,

Recalling UNESCO’s programmes relating to the intangible cultural heritage, in particular the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity,

Considering the invaluable role of the intangible cultural heritage as a factor in bringing human beings closer together and ensuring exchange and understanding among them,

Adopts this Convention on this seventeenth day of October 2003.

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I General provisions

Article 1 – Purposes of the Convention

The purposes of this Convention are:

(a) to safeguard the intangible cultural heritage;

(b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned;

(c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof;

(d) to provide for international cooperation and assistance.

Article 2 – Definitions

For the purposes of this Convention,

1. The ‘intangible cultural heritage’ means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.

2. The ‘intangible cultural heritage’, as defined in paragraph 1 above, is manifested inter alia in the following domains:

(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;

(b) performing arts;

(c) social practices, rituals and festive events;

(d) knowledge and practices concerning nature and the universe;

(e) traditional craftsmanship.

3. ‘Safeguarding’ means measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.

4. ‘States Parties’ means States which are bound by this Convention and among which this Convention is in force.

5. This Convention applies mutatis mutandis to the territories referred to in Article 33 which become Parties to this Convention in accordance with the conditions set out in that Article. To that extent the expression ‘States Parties’ also refers to such territories.

Article 3 – Relationship to other international instruments

Nothing in this Convention may be interpreted as:

(a) altering the status or diminishing the level of protection under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage of World Heritage properties with which an item of the intangible cultural heritage is directly associated; or

(b) affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights or to the use of biological and ecological resources to which they are parties.

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III Safeguarding of the intangible cultural heritage at the national level

Article 11 – Role of States Parties

Each State Party shall:

(a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;

(b) among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

Article 12 – Inventories

1. To ensure identification with a view to safeguarding, each State Party shall draw up, in a manner geared to its own situation, one or more inventories of the intangible cultural heritage present in its territory. These inventories shall be regularly updated.

2. When each State Party periodically submits its report to the Committee, in accordance with Article 29, it shall provide relevant information on such inventories.

Article 13 – Other measures for safeguarding

To ensure the safeguarding, development and promotion of the intangible cultural heritage present in its territory, each State Party shall endeavour to:

(a) adopt a general policy aimed at promoting the function of the intangible cultural heritage in society, and at integrating the safeguarding of such heritage into planning programmes;

(b) designate or establish one or more competent bodies for the safeguarding of the intangible cultural heritage present in its territory;

(c) foster scientific, technical and artistic studies, as well as research methodologies, with a view to effective safeguarding of the intangible cultural heritage, in particular the intangible cultural heritage in danger;

(d) adopt appropriate legal, technical, administrative and financial measures aimed at:

(i) fostering the creation or strengthening of institutions for training in the management of the intangible cultural heritage and the transmission of such heritage through forums and spaces intended for the performance or expression thereof;

(ii) ensuring access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage;

(iii) establishing documentation institutions for the intangible cultural heritage and facilitating access to them.

Article 14 – Education, awareness-raising and capacity-building

Each State Party shall endeavour, by all appropriate means, to:

(a) ensure recognition of, respect for, and enhancement of the intangible cultural heritage in society, in particular through:

(i) educational, awareness-raising and information programmes, aimed at the general public, in particular young people;

(ii) specific educational and training programmes within the communities and groups concerned;

(iii) capacity-building activities for the safeguarding of the intangible cultural heritage, in particular management and scientific research; and

(iv) non-formal means of transmitting knowledge;

(b) keep the public informed of the dangers threatening such heritage, and of the activities carried out in pursuance of this Convention;

(c) promote education for the protection of natural spaces and places of memory whose existence is necessary for expressing the intangible cultural heritage.

Article 15 – Participation of communities, groups and individuals

Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.

IV Safeguarding of the intangible cultural heritage at the international level

Article 16 – Representative List of the Intangible Cultural Heritage of Humanity

1. In order to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity, the Committee, upon the proposal of the States Parties concerned, shall establish, keep up to date and publish a Representative List of the Intangible Cultural Heritage of Humanity.

2. The Committee shall draw up and submit to the General Assembly for approval the criteria for the establishment, updating and publication of this Representative List.

Article 17 – List of Intangible Cultural Heritage in Need of Urgent Safeguarding

1. With a view to taking appropriate safeguarding measures, the Committee shall establish, keep up to date and publish a List of Intangible Cultural Heritage in Need of Urgent Safeguarding, and shall inscribe such heritage on the List at the request of the State Party concerned.

2. The Committee shall draw up and submit to the General Assembly for approval the criteria for the establishment, updating and publication of this List.

3. In cases of extreme urgency – the objective criteria of which shall be approved by the General Assembly upon the proposal of the Committee – the Committee may inscribe an item of the heritage concerned on the List mentioned in paragraph 1, in consultation with the State Party concerned.

Article 18 – Programmes, projects and activities for the safeguarding of the intangible cultural heritage

1. On the basis of proposals submitted by States Parties, and in accordance with criteria to be defined by the Committee and approved by the General Assembly, the Committee shall periodically select and promote national, subregional and regional programmes, projects and activities for the safeguarding of the heritage which it considers best reflect the principles and objectives of this Convention, taking into account the special needs of developing countries.

2. To this end, it shall receive, examine and approve requests for international assistance from States Parties for the preparation of such proposals.

3. The Committee shall accompany the implementation of such projects, programmes and activities by disseminating best practices using means to be determined by it.

Further information on the Convention is available online via the UNESCO Information kit for Promoting the Convention for the Safeguarding of the Intangible Cultural Heritage at <http://portal.unesco.org/culture/en/ev.php-URL_ID=2225 & URL_DO=DO_TOPIC & URL_SECTION=201.html> .

Endnotes

^[1] Algeria, Mauritius, Japan, Gabon, Panama, China, Central African Republic, Latvia, Lithuania, Belarus and Republic of Korea.

^[2] In the newsletter from the Australian National Commission for UNESCO for February 2004 (p 3) it was stated that,

Australia, in its plenary intervention, had expressed concern that UNESCO’s international instruments should symbolise the highest quality. This concern was relevant in particular to the International Convention for the Safeguarding of the Intangible Cultural Heritage, which was passed at the conference but which is a far from perfect document ...