Despite the good intentions of the Mexico Declaration (English), it took more than 20 years for the international community to develop normative instruments addressing cultural identity and cultural diversity as main elements of a development policy.

At the end of the ‘90s experts concluded, after a long series of regional meetings, a conference entitled ‘A Global Assessment of the 1989 Recommendation on the Safeguarding of Traditional Cultural and Folklore: Local Empowerment and International Cooperation’ which was jointly organized in Washington by the Smithsonian Institution, the United States and UNESCO. The Conference came to the conclusion that a legally binding instrument was needed in the field of the safeguarding of the intangible cultural heritage. Experts also found that the 1989 Recommendation (English) focused too much on documentation and not enough on the protection of living practices and traditions, or on the groups and communities who are the bearers of these practices and traditions. They underlined the need to use a more inclusive methodology in order to encompass not only artistic products such as tales, songs, etc., but also knowledge and values enabling their production, the creative processes that bring the products into existence and the modes of interaction by which these products are appropriately received and appreciatively acknowledged. The Conference also recommended that the term ‘intangible cultural heritage’ be retained for the new normative instrument instead of the term ‘folklore’ which was felt as demeaning by some communities. The term ‘intangible cultural heritage’ was put forward as being more suitable for designating the peoples’ learned processes – along with the knowledge, skills and creativity that inform and are developed by them, the products they create, and the resources, spaces and other aspects of social and natural context necessary to their sustainability – that provide living communities with a sense of continuity with previous generations and are important to cultural identity, as well as to the safeguarding of cultural diversity and creativity of humanity.

At the request of Member States, the Director-General submitted in 2001 a report on the preliminary study (English) on the advisability of regulating internationally, through a new standard-setting instrument, the protection of traditional culture and folklore. The report came to the conclusion that intellectual property does not give appropriate protection to expressions of intangible cultural heritage and a sui generis regime specific to this purpose needs to be developed. It also concluded that since the instruments that had already been adopted in the field of cultural heritage were principally concerned with the tangible cultural heritage and did not refer specifically to the intangible cultural heritage, they could not provide a satisfactory framework for protection, partly on account of the very nature of the intangible cultural heritage. Therefore the report recommended that a new normative instrument be prepared on the basis of the Universal Declaration of Human Rights (United Nations, 1948) and propose the main principles on which this instrument should be based. These basic principles might be that:

  • intangible cultural heritage be fundamentally safeguarded through creativity and enactment by the agents of the communities that produce and maintain it;
  • the loss of intangible cultural heritage can only be prevented by ensuring that the meanings, enabling conditions and skills involved in its creation, enactment and transmission can be reproduced;
  • any instrument dealing with intangible cultural heritage facilitate, encourage and protect the right and capacity of communities to continue to enact their intangible cultural heritage through developing their own approaches to manage and sustain it;
  • sharing one’s culture and having a cultural dialogue foster greater overall creativity as long as recognition and equitable exchanges are ensured.

Following the recommendations of the Washington Conference, the report proposed the use of the term ‘intangible cultural heritage’ instead of the term ‘folklore’ which was no longer appropriate, drafted a first definition of the term and suggested a series of domains in which such heritage is manifested. The Executive Board of UNESCO (the constitutional organ that ensures the effective and rational execution of the programme and budget approved by the General Conference) called for a more detailed discussion about the conceptual aspects and the definition of intangible cultural heritage, aimed at, in particular, making the retained definition consistent with the one used by the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity. It also noted that the protection of such heritage should not be limited to the normative action and it underlined the need of working closely with WIPO and studying the limits of protection.

In September 2001, the General Conference adopted the Universal Declaration on Cultural Diversity (English), which in its Article 7 remarks that heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures. This declaration served as basis for developing the normative instrument for safeguarding intangible cultural heritage. In the Action Plan attached to the Universal Declaration, the Member States decided to take steps for formulating policies and strategies for the preservation and enhancement of the cultural and natural heritage, notably the oral and intangible cultural heritage. They also referred to the need to respect and protect traditional knowledge, in particular that of indigenous peoples, and recognized the contribution of traditional knowledge with regard to environmental protection and the management of natural resources, as well as to fostering synergies between modern science and local knowledge. In view of this, the General Conference also decided to work towards a new international normative instrument, preferably a convention, in the field of intangible cultural heritage.

That same year (2001), the General Conference adopted the Convention for the Protection of the Underwater Cultural Heritage, which established a standard of protection comparable to that granted by other UNESCO conventions to land-based cultural heritage, now specific to underwater archaeological sites. Its regulations are linked to the 1970 UNESCO Convention and the 1995 UNIDROIT Convention, since it contains detailed provisions concerning the prevention of the illicit trafficking of cultural property recovered from the sea. However, this instrument does not contain a restitution-claim.

In 2002, the United Nations Year for Cultural Heritage, the role that cultural heritage policies, and in particular intangible heritage policies, play in development, reinforced the need to develop a framework for this form of heritage. In September 2002, representatives from 110 Member States, among them 72 culture ministers, participated in a roundtable on Intangible Heritage and Cultural Diversity, in Istanbul, Turkey. They adopted the Istanbul Declaration (English) in which they recognized the value of intangible cultural heritage and recommended the adoption of a new international convention.

During the same month of September 2002 the first Intergovernmental meeting of experts on the preliminary draft convention for the safeguarding of the intangible cultural heritage (English) was convened in Paris. Experts discussed whether or not a broad definition of intangible cultural heritage should be used, since they were afraid that vast and vague interpretation of the term would weaken a rigorous implementation of the Convention. They decided to include a reference to international instruments of human rights and to keep the terms ‘communities’ and ‘groups’ without any kind of qualifying terms that might give rise to different interpretations. Experts preferred the term ‘cultural space’ rather than ‘cultural site’ since the first also included the possibility of referring to buildings. Since intangible cultural heritage is a constantly evolving living heritage, experts decided to add ‘transmitted from generation to generation’ to the definition. Concerning the inclusion of languages as one of the domains in which intangible cultural heritage is manifested, a compromise was reached between the pros and cons with the wording ‘language as a vehicle of the intangible cultural heritage’. Also, it was decided by consensus not to include any reference to religion within the domain of ‘social practices, rituals and festive events’.

Almost all of the experts supported the proposal of States playing a prominent role in safeguarding intangible cultural heritage. Their main obligation would be to identify and define intangible cultural heritage present in their territories in consultation and cooperation with the concerned cultural communities, nongovernmental organizations and other interested parties. It was also decided to create an international register of intangible cultural heritage supplied with inventoried heritage at the national level. This register (the future Representative List) would aim at ensuring the visibility of intangible cultural heritage and would contribute to promote cultural diversity.

Several other intergovernmental meetings followed in charge of drafting the Convention. Consensus was reached on the main topics, in particular concerning the importance of the role to be played by Member States, the importance of the international principles of cooperation and solidarity and the establishment of a flexible and effective mechanism of safeguarding, of an intergovernmental committee subordinated to the General Assembly of the States Parties and of a Fund for the Safeguarding of the Intangible Cultural Heritage.

In November 2003, the Culture Commission of UNESCO’s General Conference recommended that the plenary of the General Conference adopt by consensus, as a UNESCO Convention, the International Convention for the Safeguarding of the Intangible Cultural Heritage. The Convention for the Safeguarding of the Intangible Cultural Heritage was adopted on 17 October 2003, with 120 votes in favour, 8 abstentions and no votes against. The Convention entered into force on 20 April 2006, three months after the deposit of the thirtieth instrument of ratification. (See the updated list of States Parties). More than half of UNESCO’s Member States have already signed up. The exceptionally rapid ratification of the Convention reflects the great interest in intangible heritage worldwide. It also shows a widespread awareness of the urgent need for the Convention’s international protection, given the possible threat posed by contemporary lifestyles and the process of globalization. The innumerable activities already being carried out at the national level, and the many (intergovernmental) meetings organized at the international level, show that the adoption of this Convention and its swift implementation are a milestone in UNESCO’s long-standing campaign to safeguard the world’s living heritage.

The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, whose structure is also based on the programmatic approach of the 1972 Convention, places emphasis on the equal recognition of expressions and traditions with no hierarchical distinctions among them. The concept of ‘outstanding universal value’ embodied in the 1972 Convention does therefore not apply to the safeguarding of intangible cultural heritage. International recognition is based on the importance of this living heritage for the sense of identity and continuity of the communities in which it is created, transmitted and re-created. Such recognition is given by providing visibility to their heritage, which is the main purpose of the list foreseen in its Article 16. The Convention focuses principally on safeguarding activities and the exchange of good practices, rather than the listing system.

Another legal instrument within the field of culture has entered into force since2003: the 2005 Convention (English) on the Protection and Promotion of the Diversity of Cultural Expressions. While the 2003 Convention deals primarily with the processes of transmission of knowledge within the communities and groups that bear this heritage, the 2005 Convention is devoted to the production of cultural expressions, as circulated and shared through cultural activities, goods and services. It complements the set of legal instruments deployed by UNESCO to foster diversity and a global environment in which the creativity of individuals and peoples is encouraged in their rich diversity thereby contributing to their economic development and to the promotion and preservation of the world’s cultural diversity.

Culture has thus, for the first time in the history of international law, found its place on the political agenda, out of a desire to humanize globalization. In this proactive context, culture has become a genuine platform for dialogue and development, thereby opening up new areas of solidarity.