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Prof. Janet Blake (Shahid Beheshti University, Iran) - Cultural heritage as a resource and enabler of sustainability under international law

Cultural heritage as a resource and enabler of sustainability under
international law

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Prof. Janet Blake (Shahid Beheshti University, Iran) - Cultural heritage as a resource and enabler of sustainability under international law

  1. 1. CReW Cultural Relations at Work - Jean Monnet project Reinforcing cooperation on cultural heritage in the EU Neighborhood South The Royal Society, London (October 22-23, 2018) Cultural heritage as a resource and enabler of sustainability under international law Speaker: Prof. Janet Blake, Shahid Beheshti University, Iran I hope that my presentation will address a couple of questions that have already been raised today. First of all, what is cultural heritage, how should we understand what cultural heritage is, and I add to that what is European Heritage, which is a really deep question. I was in the Council of Europe in 1993 to 1994 in charge of what is now known as the European Plan for Archaeology, and the effort to identify European heritage was been put under way. We live in an enormously diverse culture in Europe and trying to identify heritage with regard to that is a key issue. What I am going to do today is to take you on a rapid journey through cultural heritage law-making at the international level, looking at the different waves of law-making, trying to understand them in a broader policy context, with a particular emphasis on one of the later waves which looks at cultural heritage as en enabler of sustainability. The dynamism of cultural heritage law makes it a very exciting field to be in because it moves forward at a surprisingly rapid pace for a legal field. We can just identify several quite recent developments, for example: the destruction of cultural property in the event of armed conflict is increasingly seen as a crime against humanity and is increasingly related to non-state actors. Both facts really shifted how we address this question. I mean that the approach of the Hague Convention has had to be substantially reviewed to respond to this. Also, international criminal law is taking a major role in responding than before. Under the World Heritage Convention (1972) the separate categories of cultural and natural heritage are no longer separate, they are seen as a continuum. What for me is very interesting is that when the two come together is very often when the aspects of intangible heritage are found. If we look at trafficking in cultural property, we are still using the diplomatic framework of the 1970 Convention, but it has limitations. In 1995 there was an attempt to facilitate that process of restitution and international litigation. Today, and particularly after the “Palermo Convention” of 2003, we look at it as part of a wider picture transnational organized criminality. The fundamental shift is in how states understand heritage, and I think that this is well expressed in the 2003 Convention on Intangible Heritage. I should state my personal interest here, because I was one of the original drafters of that convention. What it does is that it reflects a recognition of these aspects of heritage that today we are talking about, and the fact that intangible cultural heritage was not invented by that convention, it simply hadn’t been fully recognized formally before that convention. Nowadays we see much more this discourse about how heritage can answer to the requirements of sustainability, especially the sustainability of communities associated with heritage. Heritage as a form of cultural and economic resource. The two key elements of the shift with that convention are: giving a much clearer place to human rights within legal international law- making; there is no question that the context of that convention is human rights, the human rights of the communities, groups, and the individuals who enact, who produce, who perform that
  2. 2. heritage; and it’s not unconnected to the idea of self-sustainability, because truly sustainable development is a form of development that takes account of human rights of communities. These are the two clear contextual issues that were around when the convention was being developed. The preamble makes it clear. First, it places the human rights instrument as the top precept and focuses on the twin notions of cultural diversity and sustainability. The reference to truly sustainable development for the heritage and the communities is important. The notion of cultural diversity is also prominent, which is itself a human rights value. Why was there a push for a new treaty at that time, from the mid- to late 1990s? first of all, because there was a strong sense from the countries of the Global South that their heritage was not well reflected in UNESCO treaty-making, especially within the World Heritage Convention, which is always seen as the main heritage convention and focuses heavily on tangible aspects of heritage. Interestingly enough, not only countries from Africa and Latin America pushed for this convention, also some European countries, Italy being particularly a driver during the negotiations, and later other European countries, except for the United Kingdom, as the UK government for various reasons has not wished to adopt the convention. I am focusing on the Intangible Heritage Convention simply because as a more recent treaty it reflects best more recent evolutions in policy-making. If we look at those evolutions that were occurring during the 1990s with regard to heritage, one side of it was linking heritage with development and sustainability, and the idea that it is a vital context for ensuring the sustainability of the communities themselves as well as their heritage, both in rural and urban settings. I think with regard to intangible heritage we have tended to ignore urban intangible heritage, mainly because the countries that have been the most engaged where those were intangible heritage was predominantly rural, but in fact within the European context particularly we are talking very often about urban forms of heritage. There is an issue with regard to that, it is that intangible cultural heritage at the moment is understood to be heritage that has been practiced for at least three to four generations. There is a debate on whether we could start to include more recent forms of heritage or not. If we look at the post-2015 development agenda, we see three notions being prominent: human rights, equality, and sustainability. If we put equality within human rights, this is the human rights/sustainability context that we are talking about. Of course, just to remind ourselves briefly with regard to the development agenda, we had in the 1990s several steps. During the early to mid-1990s, important new thinking occurred in international development theory with the evolution of the twin notions of Human development and Sustainable development. In 1990, the notion of human development was expressed by Amartya Sen and others; it is important because it stresses that development is not just about the economy, it’s not just about the GDP. It’s about the capacity that people have to live a life of quality, their social capacities. This view of development led us to the notion that we now have of sustainable development. In my view, the human development notion is perhaps more fundamental, but sustainable development was brought in because of the need to reconcile competing interests of developed and developing countries with regard to environmental protection. As a marker I would like to put down that when speaking of sustainable development what we are really talking about is the fundamental idea of human development, the human rights understanding of development. Heritage builds on three pillars: environmental, economic, and socio-cultural. It can provide an economic resource to communities, it can be a basis for social and cultural resilience, and it also often has a strong environmental aspect, either it is environmentally friendly or an environmental resource; equally, the notion of inter-generational equity here is clearly an heritage concept.
  3. 3. How does this fit in the broader international agenda? UNESCO had a meeting in 1995 (World Commission on Culture and Development), and it remains significant. It clearly puts on the table what is the role of cultural heritage: - first of all, it stresses the holistic character of heritage and I would like to stress this. We have a separate treaty for intangible cultural heritage. Why do we have that? Because not enough recognition was given to this aspect of heritage in the earlier conventions, but of course heritage is both tangible and intangible. Intangible heritage has tangible aspects as much as tangible heritage has intangible aspects. Therefore, regarding heritage as holistic is a much more useful way to understand it; - also, there is an interaction between natural and cultural elements; - the imperative to safeguard for future generations. Heritage in the legal sense is understood as something received from the past that we today hold and trust for the future. If you are a trustee, your role is at minimum to keep it as it is, but what you are really supposed to do is to improve the asset that you pass on to the next generation. That is our role with regard to heritage; - the role of heritage in the formation of individual identities, the multiple identities each of us enjoy. I would like to come back to the development agenda. As we know we had the Millennium Development Goals (2000-2015), with no explicit reference to culture, although those related to education and health have clearly cultural aspects attached to them, but it wasn’t very explicit. Then we had the 2012 Rio + 20 Meeting, twenty years after the SD notion was formalized in international law. The Meeting does make reference to all the three pillars (economic, environmental, socio-cultural) of sustainable development but it does not go any further than that. Then we are currently in the period of the 2015-2030 Sustainable Development Goals. UNESCO has been working very hard to try to put culture back into the development agenda. There is no question that the adoption of the 2003 Convention on Intangible Heritage and the later 2005 Convention on diversity of cultural expression was part of a process to recognize the cultural aspect of development and the economic character of cultural heritage. Despite the hard work of UNESCO to persuade the international community that culture should not be seen as an adjunct to development, it should be seen as a key driver of development and seen positively. Unfortunately, very often traditional cultures have been understood as a break on development rather than something that can facilitate it. That very much depends on where are you coming from. If you are an expert from a Western European country who has been flown to a country of the South you are not really familiar with, it is quite possible that you will perceive the traditional culture as a break on your plan for development. The message is to say that if we spend time to understand local cultures, then first of all it goes along the development goals but also it can actually help to define cultural development. A lot of work still has to be done. One of the meetings that UNESCO held before the SDGs were adopted was the Hangzhou Meeting in 2013 (International Congress on Culture: Key to Sustainable Development), where the goal was to look much more deeply at this linkage between culture and sustainable development and to try to show that it should be a basis for international policy-making. If we look at the declaration from that meeting, it calls for an International Development Goal in the post2015 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 sustainable development". Sadly, the SDGs, when adopted, had no specific goal on culture. Those of us who work in the field of culture and heritage, we are in a position to make a change. It is important to have this understanding. I find that one of the ways to sell intangible cultural heritage policy- making to governments is to show them how, by making policies on cultural heritage, they can comply with some of the obligations with regard to sustainable development.
  4. 4. 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. Therefore, the other very broad context is the one that has to do with cultural rights. In 1966, the International Covenant on Economic, Social and Cultural Rights was adopted but until the 1990s you would have not believed that cultural rights were part of that covenant. For example, a number of academic treatises have been written with the title “economic and social rights”. Only since the 1990s the push has been internationally to have cultural rights recognized. Of course, they are very challenging, they suggest giving a range of rights to cultural minorities, and many governments oppose this. But, in parallel with all these developments happening, over time governments have started to understand the value of recognizing diversity within their countries. In UNESCO, a programme initiated in the late 1990s to codify cultural rights resulted in the 2001 Universal Declaration on Cultural Diversity. That was the basis for the two treaties of 2003 and 2005. 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. Since there has been a Special Rapporteur in the Human Rights Council on Cultural Rights, more prominence has been given to the issue and resulted in a very important report in 2011, the Human Rights Council (HRC) Report on the right of access to and enjoyment of cultural heritage- where it is clearly stated that cultural heritage is a human right issue, that protecting cultural heritage is part of human rights obligations of governments, and that is significant for individuals and communities, and their identities and their development process1. Of course, asserting a human right with regard to cultural heritage is not simple, it raises a number of challenging questions, such as: — Which and whose cultural heritage deserves protection? Who defines cultural heritage and its significance? This is one of the areas where the 2003 Convention has gone further than other treaties, by stating that the primary actors are the communities, groups, and individuals right for the step of identification of cultural heritage. This is politically challenging. — 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 resolved? — What are the possible limitations on a right to cultural heritage? 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 where migrants are now part of the performance of the element). 1 At paragraph 1, the Report 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.”
  5. 5. In the 2003 Convention we have a clear statement with regard to sustainability: Article 2(1) states: "...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. However, it is not just in a positive sense, but also in a negative sense that any intangible heritage that is not compatible with those goals is not to be covered by that treaty. It also clearly says so, that safeguarding intangible cultural heritage is a part of the broader policy- making by governments with regard to sustainability. There is a clear parallelism between the goals of ICH and sustainable development goals; for example, ICH mirrors the sustainable development agenda in its cross-sectoral character. This is may be one of its most important aspects. ICH addresses a number of policy areas, including non-cultural sectors (agriculture, health, environmental protection, trade…). Both safeguarding ICH and sustainable development also require horizontal cooperation between governmental bodies and regional and local authorities which we all know is extremely difficult to achieve. Finally, the importance given to community (and group) participation in safeguarding ICH in the 2003 Convention responds directly to a procedural principle of sustainable development Member parties to this convention faced a problem, “how do we do it?”. In the operational directives to the convention, in 2016, there was a new chapter added which sets how safeguarding cultural heritage can be embedded in sustainable development at policy level. The list is quite broad: Food security, Health care, 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. The last point is important because at the moment many governments are concerned with the immediate issue of responding to the effects of armed conflicts. What this suggests is that intangible cultural heritage can actually contribute towards the prevention of conflicts. What is very important is that around the world many states parties to that convention are now actively integrating safeguarding intangible heritage into a wide range of policy areas, which is a really innovative phenomenon that did not occur before. This is a significant aspect of 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 development-oriented. I will end with this thought about the relationship between sustainability and tradition. What exactly is tradition? People tend to think that tradition is something stuck in the past. In fact, traditions are things that we inherited from the past, but we keep them because they respond to needs that we have today. Truly sustainable models of development depend upon innovation while the ability to innovate is often built upon inherited “traditions”. 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. So, in these terms intangible cultural heritage is a living form of heritage, one that can be highly responsive to different social, economic needs of the present. This 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.
  6. 6. I would like to add something on the framework convention on the value of cultural heritage for society (2005, Faro Convention) of the Council of Europe. 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’. 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. I urge you to familiarize with it, and I urge you to look at the Council of Europe as an inspiration for your work.

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