9
Legislating to Safeguard Asia’s Intangible Cultural Heritage
The disciplines of heritage law and cultural governance are increasingly being defined by shifting international discourse, evolving theories and emerging regulatory norms. In recent decades, these influences have steered the disciplines to encompass a broader conceptual understanding of heritage. The concept of cultural heritage has moved away from the focus on monumental and physical heritage or ‘cultural property’ to include notions of underwater heritage, living human treasures, traditional knowledge, language, cultural diversity and performing arts (Blake 2000). Frigo (2004: 369) recognises that the definition of cultural heritage in international heritage law is diverging from the prevailing definition of heritage as monuments and objects by providing that ‘the non-material cultural elements (like dance, folklore, etc) [are] more recently deemed entitled to legal protection at the international level’. It is clear that a broader understanding of what encapsulates cultural heritage has driven UNESCO’s normative action over the last decade and has lead to the drafting and adoption of international conventions, protocols, declarations and recommendations specifically for the protection of intangible heritage and cultural diversity. This shift within international heritage law is characterised by the recent adoption of three treaties; the Convention on the Protection of the Underwater Cultural Heritage (2001), the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).
This chapter explores the shifts that have taken place recently to accommodate and legislate for the notion of intangible cultural heritage (ICH) in Asia. One of the key factors here is the legislative instruments and mechanisms for safeguarding ICH which emerged from ‘western’ conceptions of heritage conservation and legal norms. This approach is not necessarily reconcilable with the notion of ICH, or the local realities of Asian legal systems or understandings of heritage. The Convention for the Safeguarding of Intangible Cultural Heritage places strong emphasis on community participation. However, it calls for bottom-up community safeguarding measures, which would incorporate local customary laws and values, while relying heavily on top-down state-legal systems. This presents a number of clear inconsistencies. This is particularly the case in some Asian countries where customary legal systems are ICH and themselves the object of safeguarding measures, leading to potential conflicts with state-legal systems.
Such issues present major challenges for the protection of ICH in Asia. The chapter argues that to legislate for the safeguarding of ICH it is important to draw on principles found in international law and soft law and incorporate local customary law. In addition, emphasis needs to be further placed on local communities’ involvement in safeguarding measures. This requires a fundamental power shift and a move away from state-based legislation as the sole means to protect ICH. It will be argued that the use of localised culturally sensitive policy approaches that incorporate community-based legal systems and cultural rights theory is one possible solution. It is necessary to explore an approach for safeguarding that is founded on local ideologies and ‘bottom-up’ culturally sensitive mechanisms.
Foundations of Intangible Cultural Heritage and Challenges for its Safeguarding
The safeguarding of intangible cultural heritage within Asia draws on previous legal and theoretical definitions of cultural heritage. The concept of cultural heritage finds its underpinnings in Western conservation philosophy within which heritage was perceived as sites, monuments and objects (Ahmad 2006). Ziegler (2007: 4) argues that the use of the term cultural heritage has often been interchangeable with cultural property ‘which reflects a narrower Western concept’. While there has been a conceptual shift as mentioned above, cultural heritage is still frequently associated with tangible elements and international legislative instruments and mechanisms for safeguarding ICH have emerged from Western conceptions of heritage conservation and legal norms. This finding has significant implications when legislating to safeguard intangible cultural heritage at a national level.
The conceptual foundations of ICH have strongly influenced national legal instruments. Despite acknowledging that many new legal instruments with a broader foundational concept of cultural heritage have been drafted and adopted in recent years, most domestic legal frameworks for heritage protection continue to be strongly materialistic and monument focused, drawing on Western conservation theory. Existing national legal frameworks, in Asia and elsewhere, typically reflect narrower definitions of heritage that are based on classifications found in earlier international heritage laws including the World Heritage Convention. While these definitions of heritage are now ‘found to be overly restrictive, out of tune of current sensibilities and guilty of European parochialism in a global arena’ (Hafstein 2004: ii), they form the basis upon which heritage continues to be protected. This presents a challenge for the safeguarding of intangible cultural heritage. There are potential conflicts that arise when applying existing domestic legal measures to the safeguarding of intangible heritage.
Intangible cultural heritage is, by its nature, a very different form of heritage that requires specialised safeguarding measures that may differ from those used for heritage monuments and objects. Unlike the subject matter of most current heritage laws, ICH is dynamic and may evolve and change over time. It has intergenerational value yet can be subjective. A single form of ICH can have a diversity of different representations or modes that are equally legitimate and contain significance to the bearer. Furthermore ICH is practiced and transmitted on a local scale. These characteristics do not lend themselves to a rigid standardised protection framework established and managed at a state level.
There may be other inconsistencies between traditional notions of heritage and how heritage is perceived in an Asian context. Hafstein (2004: 20) explores what he terms an important paradigm shift from ‘Western precepts of conservation that are grounded in materialism and a relationship to the past mediated through stone monuments’ to an East Asian paradigm drawing on the Japanese and Korean heritage philosophies. Asian philosophies of heritage often reorientate the focus of heritage from a physical historical connection with the past to an ongoing cultural or metaphysical connection. Heritage in Asian contexts often differs from the commonly perceived heritage forms of historic monuments and ‘high culture’, instead embracing the meaning of sites that may be ‘ordinary, everyday landscapes’ (Taylor 2004: 420). There is a greater emphasis placed on associations and cultural connections from which heritage sites derive their value.
Asian cultures have a spiritual view of what is culturally valuable from the past; the past lives on in memory of people, of events and of places through time rather than concentrating on the material fabric which can change or be replaced.
(Taylor 2004: 423)
A further challenge for the protection of ICH may exist in the nature of state legal systems and traditional methods of heritage protection and legislation. The very notion of the state in Asia is not a uniform political entity and the interaction of states and cultural heritage management is hugely complex. Cultural governance is closely linked with identity politics and nationalism, which are key defining elements of intangible heritage. Modes of cultural governance throughout the region, including stabilising democratic frameworks, emerging decentralisation policies, rising influences of civil society and centralised power structures, have critical implications for the protection of ICH and the manifestation of protection measures in line with the ethos and nature of legal systems and political processes (Callahan 2006). The cultural agenda of one nation will be significantly different to that of its neighbour. In some cases the political agenda of a nation, or internal ministry, may result in the abuse of cultural rights or authoritarian approaches that lead to national cultural profiling (Logan 2007). How political mandates are expressed by each state, and by specific institutions and ministries within a state, will have far reaching implications for the development of cultural protection measures. This is particularly the case when the focus of protection measures is closely linked with the expression of cultural identity, cultural diversity and cultural rights. While the complexity of political influences both between and within countries and the resultant modes of cultural governance cannot be explored in detail here, these factors cannot be ignored when discussing safeguarding approaches for ICH.
It is further important to consider whether regimes of state protection and management of heritage are compatible with the legal realities of many Asian countries. In many Asian nations, legal pluralism is common where the boundaries of customary law and state law are often not defined. Traditional value systems, which are often visible at the village level, can include religious moral codes, animism and social relationships as legitimate sources of authority. These sources of authority may dictate methods of dispute resolution and regulate social harmony. They also represent significant forms of intangible cultural heritage and therefore should themselves be subject to protection measures (as discussed by Bräuchler in Chapter 10 of this volume). Yet, standardised regimes of state protection may be counter to, in conflict with, or fail to include, customary laws. A failure to recognise customary law as a legitimate source of heritage, or to rely on a standardised system of heritage protection and fail to incorporate customary law into safeguarding measures for ICH, can have devastating effects.
[C]ommunity based legal systems tend on the whole to be enforced through tradition, culture and – at times – religious belief systems (…) Traditionally, the relationship between the two systems [community-based and state-based] has been antagonistic (…) The hegemony of state-based legal systems is manifested in a number of ways: historic rights derived from community-based legal systems have been revoked, nationalized and, at best, reduced to permit-based rights; community historical uses have been criminalised; community rights have been opened up to exploitation and used by persons who are typically considered outsiders by the community; community-based traditional leaders and authority systems have been invalidated and replaced by state-appointed leaders; and community enforcement systems have been invalidated and derided. The effect has been to alienate local communities from their heritage.
(Mumma 2003: 44)
In order to legislate to safeguard intangible cultural heritage, the potential inconsistencies and conflicts with current national heritage laws must be recognised and alternate approaches must be investigated and adopted. These approaches should incorporate the principles put forward in recent international heritage treaties and the growing body of cultural heritage soft law. Approaches must also draw on local customary law and balance state measures with community participation.
Components of ICH Legislation
Incorporating Principles Found in International Law
Intangible heritage law has developed greatly in the last decade with the adoption of the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). The principles found within these documents embody the purpose of such laws and can provide a basis upon which the conventions are interpreted.1 As such, these principles can be informative when drafting legislation for the safeguarding of intangible cultural heritage. Earlier analysis of the Conventions (Lloyd 2009) establishes that the principles manifested throughout the Conventions which may be used to inform legislation and safeguarding measures include principles of:
Cultural rights are a fundamental component of the human rights lexicon (Ziegler 2007). The recognition of cultural rights and the principles of human rights are clearly stated in the Preamble of the ICH Convention by making specific reference to human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (1966). This recognition is furthermore implicit under the definition of ICH in Article 2(1), where it states that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments’. The stipulated existing human rights instruments include the Universal Declaration of Human Rights (1948), the International Covenant for Economic, Social and Cultural Rights (1966), the Recommendation on the Participation by the Peoples at Large in Cultural Life and their Contribution to it (1976) and the Fribourg Declaration on Cultural Rights (2007). These instruments, together with a number of others established a range of cultural rights including:
The Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005) establishes in Article 2 the essential role of human rights to guarantee the diversity of cultural expressions. This Article also reinforces cultural rights by emphasising the importance of respect for all cultures and equitable access to culture.
These Conventions highlight the importance of human rights in the safeguarding of culture, yet such references also represent an area of contention and difficulty. The complexities of cultural rights, women’s rights and other human rights and the protection of living cultures, particularly traditional social practices, are numerous. Moghadam and Bagheritari (2005) critically explore the intersection of maintaining traditions and cultures while ensuring the human rights of women are upheld. They argue that culture has been used as a justification for gender inequality and that there is potential for such inequalities to be legitimised through biased state implementation of cultural conventions. Logan (2007) has argued that the expression of political agendas and misappropriation of cultural conventions can lead to the state abusing heritage and culturally profiling the nation, resulting in the marginalisation of minority cultures and the denial of cultural rights. Such reservations are further established by Kurin (2007: 13) as he states that ‘[t]he biggest problem with government control over ICH safeguarding is one of freedom and human rights (…) Government inventories of cultural practice may seem too much like cultural registries – officialising and de-officialising cultural practice, allowing for all sorts of misuses of information’. Kurin (2007: 18) further argues that the ICH Convention ‘could be misused as a means of government control and regulation of community-based culture in the guise of actually supporting it’. Given these issues, it is important not to oversimplify the implementation of human rights found in cultural conventions and the development of legislation based on international legal obligations as there is the potential for states to misuse such processes to meet political agendas.
Despite the complexities of human rights and the safeguarding of ICH, the recognition of cultural rights has a key role in the safeguarding of intangible cultural heritage. Intangible heritage cannot be adequately protected, created, maintained and passed from one generation to another without recognising and respecting cultural rights. Denying the cultural rights of a person is tantamount to preventing the safeguarding of ICH. Blake (2002: 5) likewise argues that the ‘articulation of a right to a culture and the assertion of the right to cultural identity are highly relevant to the safeguarding of intangible heritage essential to the continuing social and cultural identity of the group that creates and maintains it’. Within a regulatory or management framework, cultural rights may be expressed as individual rights that can function independently or within a community. The establishment of such local community rights in connection with the protection of intangible heritage are particularly necessary at heritage sites with minority groups, numerous conflicting stakeholders or contested heritage. At some heritage sites, for example Luang Prabang in Laos or Angkor in Cambodia, the recognition of cultural rights may be necessary to balance tourism development with heritage protection.
The principle of educational rights, likewise, has a role to play in the protection of intangible heritage, balancing tourism development and the rights of communities. The way that information about cultural heritage is managed and who it is managed by, can have a direct impact on its safeguarding. This is illustrated in Section E of the 2009 Hoi An Protocols for Best Conservation Practice in Asia:
The problem is that too often the ‘packaging and presentation’ of heritage is carried out by the tourism industry for the benefit of its members and not by those responsible for the safeguarding of cultural heritage. As a result, both the physical fabric of a heritage property and its intangible aspects are trivialised and compromised. When we promote culture for tourism we tend to make the mistake of promoting simple repetition or replication of cultural forms. The same dance is performed over and over again, repeated night after night for changing audiences of tourists. This repetition is not transmission and it results in the interruption of the process and the atrophy of cultural forms into marketable products. We de-contextualise (…) our intangible heritage when we put on dinner dance shows and treat these expressions of art and ritual as some kind of dessert for trivial consumption. This de-contextualisation of our culture is a very serious problem because it destroys the authenticity of cultural expression. Policies of preservation that have led us to look upon our cultural resources as tourism products are the reason for our relative lack of success in conservation.
The role of education and awareness-raising permeates the ICH Convention from its preamble and stated purposes, through to measures for the safeguarding of ICH. The preamble draws attention to the ‘need to build greater awareness, especially among the younger generations, of the importance of the intangible cultural heritage and of its safeguarding’. To meet this need, one of the purposes of the Convention stipulated in Article 1(c), is proclaimed to be to ‘raise awareness of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof’. Education further forms the central subject matter of Article 14 of the Convention. This Article establishes the obligation of each State Party to:
Ensure recognition of, respect for, and enhancement of the intangible heritage in society, in particular through:
Article 14(c) also calls upon States Parties to ‘promote education for the protection of natural spaces and places of memory whose existence is necessary for expressing the intangible cultural heritage’.
One of the ways to access culture and understand intangible cultural heritage, is through the enjoyment of the rights to education and information.2 In this way, the role of education and information are central both to the fulfilment of cultural rights and to the safeguarding of intangible cultural heritage. Cultural education can provide an avenue for the transmission of cultural traditions and the teaching and training of artistic forms. Through the teaching and training of traditional cultural elements, local communities can ensure custodianship of ICH. This is particularly important for artistic practices that have locally specific forms which are often performed by troupes from other areas for economic benefit, as can be seen in Indonesia and Vietnam. Cultural education should play a role in developing respect for an individual’s culture and the cultures of others, as well as developing knowledge of heritage in its diversity.
The provision of information to the general population is essential for the development of cultural awareness, cultural diversity and respect. This is further advocated in the Recommendations to the Intergovernmental Committee by the experts of the 2007 UNESCO-ACCU meeting on Transmission and Safeguarding of Intangible Cultural Heritage through Formal and Non-formal Education. The information should promote cultural diversity and the fair exercise of cultural rights. Of equal importance is the need to distribute information about local religious beliefs and the intangible cultural heritage associated with traditional livelihoods and agricultural traditions. This information should be widely distributed to both domestic and foreign visitors. The dissemination of information about living traditions and cultural associations can raise the awareness of visitors to a heritage site and can lead to respect, appreciation and interest in such traditions. However, it is of the utmost importance that research and the subsequent creation of education materials about the significance of ICH is done in a manner that is regulated by those whose heritage it is and not done by outsiders to generate profit. Thus, the safeguarding of intangible cultural heritage and the realisation of educational and cultural, rights necessitates community participation.
The focus on the involvement of communities, groups and individuals is clear in the ICH Convention as necessary for the safeguarding of ICH. Indeed, as Hafstein (2007: 8) notes, the very definition of ICH in the Convention is subject to recognition by these groups.
[T]he question [of what is ICH] is not what experts recognize as intangible cultural heritage, it is not what ministries classify as intangible heritage, and it is not what museums or universities define as intangible heritage. The question posed to us by the Convention is what practices, representations, expressions, knowledge and skills communities, groups, and individuals recognize as their heritage.
Thus, to determine exactly what ICH is, there is a need to consult with local peoples and therefore they have a fundamental right to play a strong role in the implementation of the ICH Convention. The notion of ICH belonging to communities and groups is found also within the purposes of the Convention, as it states in Article 1(b) that the purpose of the Convention is to ensure respect for the ICH of the communities, groups and individuals concerned. Kurin (2007) accurately recognises that the ICH Convention envisages ‘community’ as a rising, alternative holder, and centre, of power to the state.
The preamble of the Convention recognises ‘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’. This is extended further in Articles 11 and 15 which obligate states to identify heritage ‘with the participation of communities, groups and relevant non-governmental organisations’ and ‘ensure the widest possible participation of communities, groups (…) that create, maintain and transmit such heritage, and to involve them actively in its management’. The Convention also recognises customary practices of communities in relation to access to ICH under Article 13(d)(ii). Chapter 3.1 of the Operational Directives for the Convention elaborates the ‘participation of communities, groups and where applicable, individuals’ in the implementation of the Convention. That chapter implores and encourages ‘States Parties to establish functional and complementary cooperation among communities, groups and, where applicable, individuals who create, maintain and transmit intangible cultural heritage’. In particular, in the identification and definition of elements of ICH, the drawing up of inventories, the elaboration and implementation of programmes, projects and activities, the preparation of nomination files for inscription on the lists or the removal/transfer of an item from a list.
It is clear that the principle of community participation is a strong focus within international law governing the safeguarding of ICH. The 2006 UNESCO-ACCU Recommendation on Community Involvement in Safeguarding Intangible Cultural Heritage, put forward at a meeting of experts in Tokyo in 2006, further highlights that this is a fundamental aspect of protection measures. Yet, the involvement of communities, groups and individuals can be a complex endeavour and how this will be achieved is not immediately clear. The relationship between community participation and state mechanisms for heritage protection represents a further challenge for the safeguarding of ICH. These issues must be considered when creating legislation for ICH and are explored further in the section on ‘Balancing community participation and state mechanisms’ found in this chapter.
Soft Law Principles
In a constantly evolving body of international law, such as intangible heritage law, many defining founding principles are established within soft law documents. In addition to the three principles of cultural rights, education and community participation found in international treaties, those found in soft law documents are equally valuable and informative when drafting legislation to safeguard intangible heritage. The term ‘soft law’ is used to describe regional and international treaties not in force, codes of practice, recommendations, guidelines, standards and declarations of principles adopted as resolutions. These are not instruments that provide legally binding obligations. These documents are not ‘law’ as such; however in rapidly developing fields of law, including heritage law; soft law is frequently referred to. Birnie and Boyle (2002: 17) state that ‘soft-law guidelines and norms manifest general consent to certain basic principles that are acceptable and practicable for both developed and developing countries (…) it contributes to the evolution of new international and national law’. Soft law instruments are significant in the role that they play in the development of fundamental legal precepts which often develop to become part of customary international law or jus cogens. There are currently twelve soft law documents which have been particularly important in contributing to the development of ICH law (Lloyd 2009). The precepts found within these documents are essential to inform safeguarding measures in legislative or policy documents.
Prior to the drafting of the ICH Convention, there were several existing soft law documents that informed its drafting process and are reflected within its text. The first of the soft law documents is the 1966 UNESCO Declaration of the Principles of International Cultural Co-operation. Others include the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore, the 2001 UNESCO Declaration on Cultural Diversity and the 2002 Istanbul Declaration. Additional soft law documents that developed prior to the ICH Convention include the 1994 Nara Document on Authenticity, the 1999 Burra Charter, the 2000 ASEAN Declaration on Cultural Heritage and the 2002 Shanghai Charter.
These soft laws have developed general principles that should be included in legislation and policies that seek to protect ICH. These include the fundamental right of a person to culture and cultural development found in Article 1 of the UNESCO Declaration on Principles of International Cultural Co-operation and the right to participate in cultural life and conduct cultural practices found in Article 5 of the UNESCO Declaration on Cultural Diversity. The Recommendation on the Safeguarding of Traditional Culture and Folklore establishes the importance of safeguarding culture by and for the group whose identity it expresses. Similarly, the Nara Document on Authenticity emphasises in paragraph 8 that ‘responsibility for cultural heritage and the management of it belongs, in the first place, to the cultural community that has generated it’. The Shanghai Charter clearly establishes that community groups are the custodians of intangible heritage in paragraph 7.
Following the adoption of the ICH Convention in 2003, numerous regional and international meetings have led to the creation of soft law documents. These have advanced and made an important contribution to ICH law. Regional meetings of experts have led to the development of informative regional soft law instruments such as the 2004 Okinawa Declaration on Intangible and Tangible Cultural Heritage and the 2009 Hoi An Protocols for Best Conservation Practice in Asia. The Okinawa Declaration was drafted by participants from Thailand, Taiwan, Philippines, Japan and Cambodia and reflects the views of those involved in the safeguarding of ICH in Asia. It emphasises the rapidly changing social environments of Asian countries and the potential impact this has on cultural values particularly in the younger generations. It also focuses on the impacts of unsustainable tourism and the importance of awareness-raising.
Other documents that have developed after the ICH Convention have attempted to incorporate tangible and intangible heritage. The 2004 Yamato Declaration addresses the integration of the ICH Convention with existing heritage law documents to ensure holistic protection measures. The 2005 Xi’an Declaration seeks to broaden the understanding of tangible heritage as protected under the WHC by understanding their setting. The final and most recent international soft law instrument that has contributed to the further development of ICH law, and principles for the safeguarding of ICH, is the 2007 UN Declaration on the Rights of Indigenous Peoples. This Declaration is significant in solidifying the role of cultural rights in the safeguarding of heritage and, while the Declaration focuses specifically on indigenous peoples, the precept of cultural rights developed here goes beyond this scope and can be situated more broadly within ICH law.
As a whole, the body of soft law has led to the development of eight general principles or precepts that may be considered essential for the safeguarding of ICH and thus should be included in legislation. These precepts are likely to develop further to become part of customary international law:
Balancing Community Participation and State Mechanisms
The relationship between community participation and state mechanisms was highlighted previously as a challenge that must be considered when legislating to safeguard intangible cultural heritage. The argument for community participation is compelling. Sites of cultural significance in Asia often have particular value on a local scale with the sites having localised spiritual or historic significance that is passed on between generations through oral transmission. Examples of this can be seen at Borobudur (Taylor 2004) and Angkor (Lloyd 2009). At these sites, it is seen that intangible cultural heritage is often expressed predominantly on a local scale. Communities gain a sense of identity and continuity from these expressions. Within this context, it is on a localised scale that the definition of intangible cultural heritage, as defined by the ICH Convention, is embodied. The definition expressing:
[t]he ‘intangible cultural heritage’ means the practices, representations, expressions, knowledge, skills (…) that communities, groups, and in some cases, individuals recognize as part of their cultural heritage. This intangible heritage, transmitted from generation to generation, is constantly recreated by communities (…) and provides them with a sense of identity and continuity.
(UNESCO 2003, emphasis added)
Thus it can be argued that the protection of ICH should also predominately occur at this scale, in close collaboration with local community. Indeed as established above, Article 15 of the Convention makes particular reference to, and places emphasis on, the participation of communities. The focus on community participation and localised safeguarding measures within the Convention suggests that they are essential for the successful safeguarding of ICH.
The importance of community participation in the safeguarding of ICH is further clarified, as they – the ‘practicing community’ – are central to the processes of transmission, recreation and renewal by which ICH may be safeguarded. The traditional practitioners of culture, the practicing community, have certain rights to their cultural heritage and its safeguarding. These rights emphasise that the local community are the guardians of their culture. As such the management of heritage should be determined in accordance with the local community’s customs, laws and practices. This is established within Guideline 13 of the 1995 Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples. Thus the recognition of the practicing community can mean that the community may regulate and manage how their heritage is renewed and recreated.
Representatives of the practicing communities may wish to control who may perform a particular ritual, who may make certain objects, or perform medical services, who may wear a specific headdress and so on.
(Deacon et al. 2004: 68)
This approach for the safeguarding of heritage is a divergence away from past legal mechanisms for heritage protection which relied heavily on state bodies and a national institutional framework. It is a further divergence away from the ideology of the ‘universal heritage of humanity’ that is used in connection with the World Heritage Convention. Blake (2000: 64) argues that the very character of intangible cultural heritage ‘its intimate relationship to the identity of a specific community or people – is in opposition to the idea of it being a “heritage of mankind” in any but a very distant sense’. Thus when legislating for the safeguarding of ICH, it is important to acknowledge, as established above, a necessary power shift away from the role of state bodies in the safeguarding of ICH to the role of local communities in its regulation and protection.3
Given this argument, how are communities contextualised? Communities, like many other social constructions, can be complex entities. The ICH Convention is an important reference point when discussing the notion of a community. However, the notion of community within the convention is not finitely defined; indeed communities are referred to in a ‘non-specific way’ (UNESCO 2010). UNESCO (2010) establishes that ‘[t]he spirit of the Convention is such that communities should be seen as having an open character, not necessarily linked to specific territories’. No further clarification is found in the Convention’s Operational Directives. The discussion of a ‘community’ within Southeast Asia often refers to a simplified entity of a congregation of individuals within a single village locality who share similar social characteristics. However, communities also exist in different environments where multiple ethnicities, complex social group dynamics and a heterogeneity of interests are common (Kono 2006). Clarification in light of the arguments presented here may be gleaned through the idea of a practicing community. The community being those who create, carry and transmit intangible cultural heritage, i.e., the bearers of ICH. The UNESCO/ACCU Expert Meeting on Community Involvement in the Safeguarding of ICH (2006: 1) concluded that for the purposes of safeguarding ICH, ‘communities are networks of people whose sense of identity or connectedness emerges from a shared historical relationship that is rooted in the practice and transmission of, or engagement with, their ICH’. This conceptualisation of a community is adopted here specifically with reference to the discussion of customary law presented below.
The recognised role of the community in the safeguarding of intangible cultural heritage raises questions about the role of state bodies in the safeguarding of ICH. Given that this chapter stresses the role of local communities in the regulation and protection of ICH, how does this accord with the legal obligations of states to implement protective measures through government institutions and what of the sovereign powers of the state to cede power to institutions to meet these obligations?
Under the ICH Convention, the state maintains control of the safeguarding of ICH, despite the acknowledgment of the necessary role of communities. The Convention as an international normative instrument obligates governments to implement protective measures. This transfers responsibility for heritage preservation to a national level and requires some degree of governmental intervention. The state is, as under the World Heritage Convention, the sole body who can nominate forms of ICH for listing under the Convention. However, it is apparent that the Convention establishes that to adequately protect ICH, it is necessary to have a bottom-up mechanism which relies strongly on local safeguarding measures developed by, or in comprehensive consultation with, local communities. It appears that international law for the protection of ICH has not yet reconciled its emphasis on the participation of communities and their central role in the safeguarding of ICH with the role of the state.
The doctrine of state sovereignty is doubtless the reason for an apparent oversight such as this. The Intergovernmental Committee of the ICH Convention will be unable to require or mandate that every state cedes power to local communities to safeguard ICH or guarantees the widest possible participation of communities without being seen as intervening with state politics and sovereign rights. When legislating for the safeguarding of ICH it will be the responsibility individual states to honour the principle of community participation and legally define and bestow the cultural rights of communities as the guardians of intangible heritage.
Local Customary Law
Traditional legal systems or customary laws are common in many Asian countries. These systems contain traditional value systems which are fundamental to the identity of a group of people. The value systems can include informal power relationships, village social dynamics, animism and the role of religious institutions in society. The values shape the social, economic and political patterns of the group. In this way customary law embodies and is representative of, the intangible cultural heritage of the community. Therefore the traditional value systems that comprise customary law should be the subject of protection measures and incorporated into legal mechanisms that safeguard intangible cultural heritage.
Understanding local value systems is an integral aspect for the safeguarding of intangible heritage. These systems are the basis for many of the practiced forms of heritage. Locally-attributed cultural values, which are frequently distinct from nationally-attributed values and the values attributed by external visitors/academics/conservators etc., provide context for heritage features and can assist in the interpretation of heritage (Black and Wall 2001). In addition, understanding local community-based legal systems and social values is a requirement for the implementation of the bottom-up community-based approach to conservation.
Within some communities, customary law may be the dominant practiced form of law. State law may have little influence at the village level. Villages may not be administered by state-based laws but by elderly men chosen within the village, local religious figures, or knowledgeable members of the community such as healers. This can be seen, for example, within Indonesia, Laos and Malaysia. Conflicts in such cases would be resolved below the state-based legal system within local community-based legal systems which rely strongly on alternative dispute resolution mechanisms and the appeasement of local spirits through ceremonial means (see Bräuchler, chapter 10 in this volume). In these situations, the exclusion of customary law and insertion of state mechanisms to protect ICH could be coupled with a breakdown of traditional justice mechanisms, which are forms of cultural heritage that are typically participatory and maintain traditional social relationships.
For the safeguarding of ICH it would be inappropriate to simply apply mechanisms for cultural preservation which are developed in different spheres, whether these are international, regional or national, without an analysis of culture within the specific community. Safeguarding measures developed based on international norms or national approaches to heritage conservation is not necessarily compatible with heritage ideologies at a local scale.
International law is frequently applied in diverse national legal systems and thought to be relevant globally, but this is not necessarily an appropriate situation for international laws which seek to protect intangible culture. Clearly, ICH laws must not simply emulate international ideals but incorporate local culture. Legislation should be consistent with the purpose of the international provisions, but without assuming that those provisions are strictly prescriptive such that local cultural concepts and customary law cannot be taken into account.
It is necessary to explore an approach for safeguarding that is founded on local ideologies and bottom-up culturally sensitive mechanisms. In these circumstances, policy, in addition to legislation, can play a particularly important role especially at the level of individual heritage sites.
Conclusion
Developing legislation to safeguard ICH in Asia requires a novel approach that does not depend on past theories of heritage preservation or standardised international frameworks based purely on international legal obligations. Direct implementation of international law within state law can lead to a state-based legal system which may be representative of international dialogue and/or internal political agendas, but does not reflect the ICH found within that country nor adequately safeguard it. For the safeguarding of intangible cultural heritage, it is essential that international heritage laws are implemented in a culturally sensitive manner which incorporates local value systems and customary laws which are the foundation of ICH itself. Legislation should be founded on and embody the principles of cultural rights, educational rights and community participation found in international law, while also incorporating the principles found within soft law documents.
National legislation has the capacity to incorporate these proposed approaches for the safeguarding of ICH. Legislation can be utilised to reinforce the cultural rights of bearers of culture, outline the principal role of practicing communities in the safeguarding and management of their intangible heritage and establish the need for localised policy documents that incorporate customary law. Legislation can provide legitimacy to traditional value systems that underpin local intangible heritage. Condominas (2003: 24) suggests that legal measures can be extended to protect local customs and prevent interference from authorities that may be unfamiliar with these customs. The safeguarding of ICH is not removed from issues of politicisation or national idealism and manipulation. However, by adopting legislation that incorporates the components presented above, ICH may be practiced, renewed, revitalised, developed and transmitted from one generation to the next.
Notes
1 Article 31(1) of the Vienna Convention on the Law of Treaties outlines that international law should be interpreted by States in light of a treaty’s ‘object and purpose’. The purposive approach to legal interpretation requires states to look outside the literal wording of the document and construe meaning from simple principles stated within the document with consideration of the purpose of the treaty.
2 Article 3(c) of the 2007 Fribourg Declaration states that everyone has the right ‘to access, notably through the enjoyment of the rights to education and information, cultural heritages that constitute the expression of different cultures’.
3 Kurin (2007) raises several pertinent points regarding the role of governments in the safeguarding of ICH including the desire for some governments to support power accorded to local communities to safeguard ICH particularly when the community is regarded as marginal. Kurin emphasises that governments could potentially misuse the ICH Convention as a means to regulate cultural practice among groups. Such arguments further establish the importance of communities in the regulation and safeguarding of their ICH.
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