The Convention for the
Safeguarding of the Intangible
Cultural Heritage:the legal
framework and universally
recognized principles
by Mohammed Bedjaoui
Mohammed Bedjaoui,former Minister of Justice,former ambassador of Algeria,former
president of the International Court of Justice in The Hague and member of the Institute of
International Law,is president of the Constitutional Council in Algeria.He presided over the
meeting of government experts in charge of developing the Convention which is examined here.
Approximately200billion human beings have
successively followed one another on our planet
since the origin of the species.Approximately
20,000peoples and ethnic groups have left their
mark on our habits and customs,our folklores and
choreographies,our music and?ne arts,our rituals
and our savoir-faire.
They established relationships between
human beings,humans and nature,humans and
the cosmogony of the Universe.They gave rhythm
to human temporality,organizing its earthly
passage.
Today,a special effort is expected from
current generations to safeguard the best of this
extremely rich heritage that expresses the
identities of peoples and embodies the long
evolutionary chain of the humanity of living
beings.
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The value and fragility of intangible cultural
heritage
Today,a Convention?nally exists to provide this ‘poor relation’of culture(intangible heritage), with a legal framework and to‘?nd a set of universally acceptable principles for comprehending situations and constantly evolving information.Rather than imposing a strict de?nition of these various forms,it instead gives meaning,form and signi?cance to a potential collective duty for the identi?cation, recognition and appreciation of the value of this heritage.’1
The General Conference of UNESCO,at its thirty-?rst session,‘aware of the importance of intangible cultural heritage and the urgency of its protection’had,in fact,decided to regulate this question through an international convention. Even though this was only yesterday,it seems distant given the efforts that have been expended and all the ground covered.Now we are?nally equipped with such a convention.Our ambition has therefore been achieved.After several years of effort,there now exists a framework that can serve the participatory states,providing as much assistance as they wish to safeguard their intangible cultural heritage,thanks to a Convention that excludes rigidity and tries to relieve their own efforts thanks to the solidarity of the international community.
Despite its complexity,this notion of intangible cultural heritage has been af?rmed and accepted by all of us as a fundamental notion for clearly establishing cultural identities and justifying their safeguard.
Through successive steps,meeting after meeting,a text took shape.We arrived at a custom-made instrument,hand-stitched in a way, an instrument as removed as necessary from the Convention of1972,but also as close as would permit this convention-model.To pursue the metaphor,I would say that we were the tailors who did our best to create the desired custom-made garment adequately to clothe intangible heritage that up until now was dressed in rags, when it was not left simply unclothed.The former legal framework was,in fact,insuf?cient. The safeguarding of intangible cultural heritage was,prior to now,only partially or insuf?ciently ensured by a few standardized instruments, essentially related to material or natural heritage, or intellectual property rights.In this last case,it was a question of texts having demonstrated their speci?cities and their limits.Whether it was a question of the important Convention for the Protection of Cultural Property in the Event of Armed Con?ict of the Hague of1954and its appendixes,or those of1970and1995, concerning cultural objects,the intangible was hardly mentioned.Even the prestigious UNESCO Convention of1972concerning the protection of world cultural heritage does not directly include this domain.
The?rst semblance of a legal instrument targeting the safeguarding of intangible cultural heritage dates from1989,but did not lead to constraints for Member States.This refers to the Recommendation for the Safeguarding of Traditional Culture and Folklore.Some ten years later,at the national level,certain countries,including Brazil2 and Algeria,3were equipped with avant-garde legislation in this regard.Then the march towards
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standardization was gradually speeded up,because the world?nally became aware that in order to arm itself ef?ciently against the dangers of globalization (a phenomenon that could only undermine cultural diversity in all its forms),it became urgent to develop a new international,standardized instrument.4
It was an ambitious objective and very
dif?cult to achieve given the scale of the stakes and complexity of the task.We could not limit ourselves to an idle‘pastiche’of the Convention of1972 concerning world cultural and natural heritage.It was advisable to avoid a sentiment that was not truthfully justi?ed,either from the legal,technical point of view for the development of international instruments,or in terms of the content.
In her study entitled Development of a New Standardized Instrument for the Safeguarding of Intangible Cultural Heritage–Elements for
Re?ection,Janet Blake5evokes,among other possibilities,a Convention that would be based on the one from1972.It appeared perfectly clear that we should not be content with‘extending’the Convention of1972to cultural heritage that was speci?cally intangible.Priority should be given to clarity,precision and the ef?cacy of
stipulations
27.The cultural space of Jemaa el-Fna square,Marrakesh,Morocco,proclaimed by UNESCO as a masterpiece of the oral and intangible heritage of humanity in2001.óU N E S C O / J a n e W r i g h t 27
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speci?c to each domain,despite their points in common.It is,after all,a fairly common legal technique in developing international legal instruments,to seek inspiration from a
‘Convention-model’in order to draft another related convention without extending the original to encompass and regulate this neighbouring domain.6Consider as proof the works of the United Nations Commission for International Law which developed various‘satellite’conventions on the basis of a‘convention-model’.7
The quasi-similarity in the codi?cation of each of the two domains was even more welcome given that experience acquired on the basis of the Convention of1972was judged satisfactory. However,it was necessary to break imperatively with the text of1972concerning:(a)the
de?nition,terminology and development of a vocabulary speci?c to intangible cultural heritage, (b)the?eld of application and the notion of universality,(c)the criteria mandating the safeguarding and(d)the association of creators and local communities with this operation.
These are several of the main thrusts that enabled the speci?city of intangible cultural heritage to be af?rmed,beyond the similarities that it shares with cultural and natural heritage. The signi?cance of the notion of‘creator’had to be clari?ed(ensuring translation into legal terms) in relation to the notion of‘that which faithfully transmits intangible cultural heritage to future generations’.These are,in fact,two distinct tasks that both merit safeguarding within the framework of differentiated legal regulations. Intangible cultural heritage,living heritage par excellence,cannot be controlled,frozen and?nally trapped in a legal mould that would eliminate its vitality and?exibility.Living,it must imperatively stay that way.As its distinctive mark demonstrates,whether ordinary or exceptional,it must remain between tradition and innovation. Heritage is to nations what the soul is to human beings.It must stay at the crossroads of codes,at the intersection of moral law,religious norms and legal regulations.
We wanted to respect the rite where the manifestation of humankind is illuminated by the invisible but present light from the solidarity of the social group,through its habits and customs. We have not therefore harmed the in?nite cultural diversity of humanity.
The objectives and stakes of the Convention
During the course of our research,with a view to safeguarding this universe of the intangible,we have constantly observed that the past,present and future of peoples constitute a historic chain in their destiny,which had imperatively to be maintained. Much of the future of the planet can be read in this intangible heritage;memory of the world, conscience of human society,foundation of speech,gesture and movement.
The main objective of the Convention was to prevent humankind’s intangible heritage from disappearing.In this quest for the most effective safeguard,we were able to build dykes that save this heritage.The supreme paradox of our work resided in the fact that it was our differences that drew us together.In this joint effort,the grating question of funding swallowed up our time and energy.This problem gave rise to the anxiety of
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not being able to?nance the Convention,a legitimate preoccupation for both those who feared the obligatory nature of contributions (which risked discouraging rati?cation of the Convention),as well as for those who felt that the voluntary nature of contributions would jeopardize the?nancial viability of the whole venture.The will to succeed?nally triumphed over all the obstacles.A famous French writer who was,moreover,a senior diplomat,once said that a treaty between two states was nothing other than an agreement between two ulterior motives. We have demonstrated to the spirits of this author that,on the contrary,it was possible to develop a convention exclusively constructed on the convergence of clearly formulated thoughts.
The solutions?nally accepted for funding are realistic and do not make a mockery of the future.They give every possible chance to the Convention to conciliate contradictory demands, and to reason and wisdom to prevail by eliminating extreme solutions in favour of those that are balanced and fair.
Another theme underlies the Convention, namely,the notion of‘sustainable development’which,in modern times,has become a leitmotif invoked on all occasions.It is,however,most frequently mentioned in regard to our precious material resources,while ignoring the vital fact that it should concern,?rst and foremost,the mobilization of irreplaceable human resources.It is for this reason that‘cultural sustainability’should be the concern of each and every one of us. Our responsibility towards future generations necessitates the consecration and safeguarding of our intangible heritage.
Today,we are all struck by the confusion of young people who are losing their points of reference and anxiously asking themselves what culture,what heritage will we hand down to them. Our Convention will probably not provide answers to all their questions,but it will have largely contributed to safeguarding the irreplaceable
‘cultural sustainability’which is an essential element for the‘sustainable’development of humanity.
Each word of this Convention is a grateful tribute to the creators and artisans of this wonderful heritage,to the great as well as the humble and anonymous,to the authors,to the guardians of the temple of the traditions and knowledge of peoples.
NOTES
1Ko?¨chiro Matsuura:Speech from22January2002in Rio de Janeiro,on the occasion of the international meeting of experts concerning intangible cultural heritage.
2EDEC/IPHAN,Para?metros metodologicos para o resgaje do intangible heigage no es estado de Sa?o Paulo,Sa?o Paulo,1999.
3‘Universal Declaration of Peoples’Rights’(‘De′claration universelle des droits des peuples’),Alger,1976,Document presented by a group of lawyers and academics.
4Ivan Bernier and He′le`ne Ruis Fabri,Evaluation de la faisabilite′juridique d’un instrument international sur la diversite′culturelle(Evaluation of the Legal Feasibility of an International Instrument for Cultural Diversity), Que′bec City,Bibliothe`que Nationale du Que′bec,2002.
5Janet Blake,Development of a New Standardized Instrument for the Safeguarding of Intangible Cultural Heritage-Elements for Re?ection. Paris,UNESCO,2001.
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Mohammed Bedjaoui
6Bernard Corelon,‘Regard juridique sur la hie′rarchie des normes[A
Legal View of the Hierarchy of Standards]’,in La Gouvernance mondiale,
Paris,La Documentation franc?aise,2002.
7We should remember,in this regard,the codi?cation work concerning
the succession of states,in terms of treaties and those relating to goods,
debts and archives;work on relations between states and international
organizations or between international organizations and the separate
conventions which remain very similar related to diplomatic status,the
status of consular agents,‘special assignments’,etc.See Leila,Lankarani
El-Zein,‘Les contrats d’Etats a`l’e′preuve du droit international’[State
Contracts Put to the Test of International Law]’,in Collection de droit
international,Brussels,E′ditions.Bruylant,2001.
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