Dr Janet Blake
Faculty of Law
Shahid Beheshti University
Dynamism of cultural heritage law
Deliberate destruction of cultural property in wartime is now
accepted as a crime against humanity and often by non-state
Cultural heritage and natural heritage - under the 1972 World
Heritage Convention, they are no longer viewed as separate
Trafficking in cultural property - the 1970 UNESCO Convention a
primarily diplomatic framework, 1995 UNIDROIT Convention
to facilitate the process of return/restitution and international
litigation, the ‘Palermo’ Convention of 2000 treats it as part of
Fundamental shift in how States think about heritage –
epitomised most clearly in the 2003 Intangible Heritage
2003 Convention - a paradigm shift
towards human rights and sustainability
It represented major new ways of thinking about heritage in
response to developments that had occurred in international
policy-making (both cultural and in other areas) from the
(1) The centrality of the role accorded to “communities, groups
and … individuals” in all stages of safeguarding, from
identification to designing and implementing safeguarding
plans is unique in a global cultural heritage treaty.
(2) It was the first international treaty to make explicit (in its
Preamble) the role of intangible heritage in preserving
cultural diversity, a human rights value in itself
(3) It also stressed the importance of safeguarding ICH fo r
ensuring truly sustainable forms of development.
Why a new treaty for ICH?
It is also notable that this Convention was particularly
championed by countries of the ‘global South’ which felt
their interests had not been met in previous UNESCO
cultural heritage instruments, especially the World
Evolutions in International Policy from
the 1990s: Heritage, Development and
This talk is strategically situated within two important and inter-
connected discourses, namely that of human rights and sustainable
development. This is a vital context for ensuring sustainability of
communities and of safeguarding their heritage and is as important
for urban contexts as well as rural ones.
Recent international policy documents on sustainable development
and the post-2015 development agenda set out the three
fundamental principles of sustainable development as:
Evolutions in International
Policy from the 1990s 
During the early to mid-1990s, important new thinking
occurred in international development theory with the
evolution of the twin notions of:
Human development – a human rights-based view of
development (moving away from a purely economic
Sustainable development – humans remain at the centre,
and seen as based on three ‘pillars’
(environmental/economic/socio-cultural); notion of inter-
generational equity; recognition of the value of local and
indigenous cultures and heritage as ‘resources’
Where is cultural heritage in this?
Report of World Commission on Culture and Development
(UNESCO, 1995) saw culture as a constituent element in the
development process, not just contingent to it.
Important elements of this are:
An explicit connection is made in this document between
heritage as a holistic concept (combining tangible and
The inter-action between its cultural and natural elements
The imperative to safeguard it and pass it on to future
generations (hopefully in an enhanced condition)
The role of heritage in the formation of group identity.
Excluding culture from the
international development paradigm
Millenium Development Goals (2000-2015) - noexplicit
cultural goal, although those relating to education and
health clearly contain important cultural components.
Outcome document of the 2012 Rio+20 meeting – made
direct reference to culture and emphasised that all three
dimensions of sustainable development should all be
given importance in UN programming for sustainability.
The 2015-2030 Sustainable Development Goals ….
Putting culture back into
The adoption of the 2003 Convention and the Convention
on Diversity of Cultural Expressions in 2005 led to greater
consideration of the relationship between cultural
heritage, creativity and the sustainability of development.
UNESCO has begun working to place culture much more
firmly in this development agenda, not as an adjunct (or
even an obstacle to) development but as a key driver of it.
There remains much work to be done before culture is
accorded its proper place in setting international
development goals and their implementation.
Hangzhou Declaration (UNESCO, 2013)
International Congress on Culture: Key to Sustainable
Development in Hangzhou (China) in 2013 aiming:
To examine more profoundly the linkages between culture and
To provide a sound basis for future policy-making and
The Hangzhou Declaration called for:
An international development Goal in the post-2015 UN
development agenda “based on heritage, diversity, creativity
and the transmission of knowledge and [should include] clear
targets and indicators that relate culture to all dimensions of
Further evolution in International Policy:
Heritage and Human (Cultural) Rights
Each of these development approaches also has strong human rights
dimensions which reflect the need to develop human capacities (as
supported by human rights) and social justice.
In parallel, during the 1990s, cultural rights received belated international
attention. In UNESCO, a programme initiated in the late 1990s to codify
cultural rights led to the adoption in 2001 of the Universal Declaration
on Cultural Diversity: This had provided a very significant background
for the later adoption of both the 2003 and 2005 Conventions.
In a related development, ECOSOC had been working since the early
1990s towards a Declaration on indigenous rights and, eventually in
2007 the UN General Assembly adopted the UN Declaration on
Indigenous Peoples’ Rights.
Human rights and cultural
The 2011 Human Rights Council (HRC) Report on the right of
access to and enjoyment of cultural heritage was ground-
breaking in giving formal recognition of cultural heritage
as a proper subject for human rights.
At paragraph 1 it stated:
“As reflected in international law and practice, the need to
preserve/safeguard cultural heritage is a human rights
issue. Cultural heritage is important not only in itself, but
also in relation to its human dimension, in particular its
significance for individuals and communities and their
identity and development processes.”
A human right to cultural heritage
Asserting a human right to access to and enjoyment of cultural
heritage (including the right of communities, groups and individuals
to participate in the safeguarding process) raises some challenging
Which and whose cultural heritage deserves protection? Who
defines cultural heritage and its significance?
How far can/do individuals and communities participate in the
interpretation, preservation and safeguarding of cultural heritage?
To what extent do they have access to and enjoy it?
How can conflicts and competing interests over cultural heritage be
What are the possible limitations on a right to cultural heritage?
Cultural heritage and human dignity
Cultural heritage plays a central role in the construction of
individual and collective cultural identities.
Preservation of their cultural identities is of crucial importance
to the well-being and self-respect that lie at the heart of an
individual’s, and also a community’s, human dignity.
The 2003 Convention clearly acknowledges the linkage between
cultural identity, human dignity and cultural diversity and
recognises that respect for individual and collective dignity
implies respect for cultural differences.
ICH also contains the potential to contribute towards social
inclusiveness. In this way, an ICH element that represents the
cultural identity of the dominant group should also open itself
up to new-comers (e.g. Human Towers element in Catalonia).
Sustainable development and the
Preamble: ICH is “a mainspring of cultural diversity” and a
“guarantee of truly sustainable development”.
Article 2(1): "...consideration will be given solely to such
intangible cultural heritage as is compatible with … the
requirements of … sustainable development."
This broadening out of the conception of the role of cultural
heritage in society provides Parties with a framework
within which to develop heritage-based policies related to
a wide number of aspects of government
Parallelism of ICH safeguarding and
sustainable development goals
ICH mirrors the sustainable development agenda in its cross-
sectoral character: It encompasses the activities of a number
of non-cultural sectors (e.g. health, food security, education)
Effective safeguarding of ICH requires a similarly horizontal
cooperation between governmental bodies and regional and
local authorities as do the procedural aspects of sustainable
The importance given to community (and group) participation in
safeguarding ICH in the 2003 Convention responds directly to a
procedural principle of sustainable development
Operational Directives for the 2003 Convention
(2016) on sustainable development
This shows its breadth as a policy question:
Quality education for all as part of inclusive social development
Environmental sustainability through stronger community-based resilience
to natural disasters and climate change
Income generation through productive employment and decent work
Tourism towards sustaining livelihoods
Inclusive economic development
Contributing to the peace and security dimension of sustainable
development through preventing disputes and post-conflict resolution
Integration of ICH into non-
cultural policy areas
This is a significant aspect policy-making for ICH
safeguarding and has become a priority line of action
within the national development planning in several
Parties over the past ten years or so.
The 2012 and 2013 Periodic Reporting cycles of States
Parties to the Convention showed that almost 75% of
reporting countries had established some kind of new ICH
safeguarding policy; 24 of these had sought to integrate
ICH safeguarding into other policy areas, mostly
Sustainability and tradition
Truly sustainable models of development depend upon
innovation while the ability to innovate is often built upon
ICH (cultural heritage more generally) is not something stuck in
the past but, rather, a set of skills, know-how, understandings
that have been passed on through generations and have
acquired new shapes and additional elements over time.
ICH is a living heritage and this, in turn, is an essential basis of its
potential to contribute in various ways to sustainability of
communities and their livelihoods, of the environment and of
our human co-existence.
Framework Convention on the Value
of Cultural Heritage for Society (‘Faro’
A strong human rights approach underpins the Faro
Convention is notable: The concept of the ‘common
heritage of Europe’ is viewed as a commitment to
fundamental values, in particular human rights,
democracy and participation.
It presents to heritage protection paradigm as the
sustainable management of the cultural heritage and
attempts to reconcile the economic and non-economic
aspects of cultural heritage through the operation of a
multi-dimensional concept of ‘value’.
Faro Convention and sustainability
The rich and diverse cultures of modern Europe derive from
heritage which is a ‘cultural capital’, through human
innovation and application.
Measures taken to safeguard cultural heritage are not some
peripheral activity, but constitute essential actions for
sustaining and utilizing assets that are vital both to the
quality of contemporary life and to future progress.
The treaty places an emphasis how cultural heritage can be
used sustainably to create economic and social conditions
favourable to the survival of diverse communities.
A heritage community is not one based necessarily on fixed,
shared characteristics such as language, religion, or
ethnicity, but is one whose membership can shift and
change and whose cooperation with other similar
communities in Europe can be beneficial (Art. 2(b)).
This again underpins a democratic approach and responds
to the requirement for cultural citizenship. It is based on
the notion that, without a community to create, practise
and maintain it, there can be no cultural life.