ABSTRACT
The 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (ICHC), secured a high number of ratifications in a short space of time.1 This reflects the concern of the international community to respond urgently to threats to this vulnerable heritage. The willingness of so many states to commit themselves to this Convention is noteworthy, particularly in view of the fact that this represents an important departure in terms of the cultural heritage regulation, and is a unique instrument in the cultural heritage field. This departure is mainly as a result of the character of its subject matter – one that is primarily without material form and whose expressions and physical manifestations are, in fact, secondary. In this sense, it is the mirror image of the previous cultural heritage Conventions where the material heritage (movable cultural property, monuments and sites) was the central subject of protection and any intangible values contingent on these. For example, in the 1972 World Heritage Convention, under the 2002 revision of the Operational Guidelines, the ‘associated intangible values’ of cultural properties were recognised as an element in the value for which such properties might be inscribed on the World Heritage List (Luxen 2000; Deacon and Beazley 2007), while the spiritual significance of movable items of cultural property is also recognised in the 1970 Convention.2 UNESCO’s 1989 Recommendation on Safeguarding Traditional Culture and Folklore opened the path for the development of this Convention, but was much more limited in its ambitions and did not impose on member states any binding obligations. One of the most significant aspects of this Convention, and a focus of this
chapter, is the central role it gives to the cultural communities (and groups and, in some cases, individuals) associated with ICH that is unprecedented in this area of international law. This is a response to the very specific character of ICH that exists only in its enactment by practitioners and, therefore, whose continued practice depends wholly on the ability and willingness of the cultural
group and/or community concerned. This introduces a clear cultural rights dimension to the safeguarding of ICH that, although present in other areas of cultural heritage protection, is much more explicitly drawn in relation to intangible cultural heritage and is another noteworthy characteristic of this Convention. With the introduction of intangible cultural heritage into the picture,
cultural heritage preservation has become a much more complex and political question than it was when preservation institutions restricted their interest to monuments and artefacts. Since ICH is embedded in the social and cultural lives of the cultural communities, safeguarding when exercised as a public policy will interfere directly in processes taking place in the present and developed by real, human collectives (Arantes 2007). Moreover, inclusion of the idea of ICH within the broader rubric of cultural heritage provides opportunities to democratise the process by which we give value to heritage, giving a larger role to local people especially in the developing world. Indeed, the question of assigning value or significance to ICH raises a further one – is it necessary for ICH expressions or practices to be highly valued outside the immediate cultural community in order to be defined officially as heritage? (Deacon et al. 2004: 11). The implications of these and other questions run deep and must be addressed. The purpose of this chapter, then, is to explore the implications of this
new approach in cultural heritage treaty-making and, in particular, what it means for the implementation of the Convention itself and national cultural policy-making. In order to do this, I attempt to place the 2003 ICHC in the wider context of the evolution in thinking about ‘culture’ in international policy-making over the last quarter century – moving from a high art to a more anthropological conception – and how this has informed both the development of cultural heritage law and human rights thinking. I also situate the references to the community (group and individual) of the 2003 ICHC within international law, in particular human rights and environmental law in which these notions are much more often applied. However, before taking this discussion further, it is useful to present a
brief outline of the main elements of the Convention itself, with a focus on the references in the text to the role of the cultural community (see also Aikawa-Faure this volume).
