INTRODUCTION
The centrality of the role assigned to communities, groups, and, in some cases, individuals (CGIs)Footnote 1 in the safeguarding of their intangible cultural heritage (ICH) is explicitly acknowledged in the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) 2003 Convention for the Safeguarding of Intangible Cultural Heritage (ICHC).Footnote 2 This includes their involvement in the international mechanisms administered by states parties and the treaty bodies for such actions as the international inscription of ICH elements, the provision of international assistance from the fund established by the Convention, and the preparation of the periodic reports submitted by states parties every six years. There is no doubt that, on the national level,Footnote 3 this has required a rethinking of the paradigm by which government agencies identify and protect (safeguard) “national” heritage. Although it is the implications of engaging and integrating CGIs into the aforementioned intergovernmental processes of the Convention that I wish to address in this article, this question cannot be wholly separated from how their deeper involvement in national policy- and decision-making for ICH safeguarding is to be ensured.
The ICHC has established a new international heritage protection paradigm (Blake Reference Blake, Davis and Stefano2016), envisaging a far more participatory and democratic relationship between the state and CGIs in the safeguarding process.Footnote 4 Previously, much ICH was safeguarded without any official involvement or framework, but the adoption of the ICHC now encourages the development of national legislative, administrative, financial, and other measures for this purpose. CGIs continue to create, enact, maintain, and transmit ICH elements as a matter of course and as a part of their way of life, frequently operating through cultural associations and similar bodies. In this article, I consider who (or what) are the CGIs, as understood by the ICHC, how do they relate to other collectivities conceived of under international law, and what specific role is accorded to them under the ICHC. By examining examples from a number of different treaty bodies and intergovernmental organizations, I will attempt to identify some recommendations for the deeper and more meaningful engagement of CGIs in the international organs and operations of the ICHC.
The international bodies I will take as potential models for civil society participation in intergovernmental processes include: the World Intellectual Property Organization (WIPO); the United Nations (UN) generally (with regard to Indigenous peoples); the Food and Agriculture Organization; the UN Convention to Combat Desertification (UNCDC); the UN Framework Convention on Climate Change; the UN Convention on Biological Diversity (CBD); the UN Economic and Social Council (ECOSOC); the International Labour Organization (ILO); the World Heritage Committee, and the treaty bodies of UNESCO’s 2005 Convention on the Protection and the Promotion of the Diversity of Cultural Expressions (Convention on Cultural Expression).Footnote 5 Developments that have already taken place within the statutory bodies of the ICHC will also be examined in order to identify future possibilities.
DEVELOPMENT OF THE ICHC
When the effectiveness of the 1989 Recommendation on Traditional Culture and Folklore was reviewed,Footnote 6 the need to accord greater recognition to the agency of CGIs in safeguarding ICH, and to their specific expertise, was emphasized. This was confirmed by a technical and legal study that was the basis for the ICHCFootnote 7 as well as by an expert meeting held in 2001.Footnote 8 A restricted drafting group of non-governmental experts that convened to prepare a preliminary draft for the Convention during 2002 proposed a Scientific Committee comprising non-governmental and community-based experts.Footnote 9 This was intended to serve as a consultative body to the Intergovernmental Committee (IGC) and provide advice on the scientific and technical aspects of its deliberations.Footnote 10 Despite some support from member states,Footnote 11 this draft article was not retained in the final version of the tmreaty adopted by UNESCO’s General Conference in November 2003.
Noriko Aikawa-Faure makes the pertinent observation that, although the significant roles of CGIs were strongly endorsed during the three IGC sessions,Footnote 12 their representatives were not present at any of these meetings as observers.Footnote 13 This demonstrates the great challenges for an intergovernmental body to engage with community-based organizations.Footnote 14 For example, when the accreditation of non-governmental organizations (NGOs) to act in an advisory capacity to the IGC (as provided for under Article 9 of the Convention) was discussed at the first intergovernmental session, member states expressed concern about creating a small number of overly dominant NGOs (as is the case with the World Heritage Convention and the International Union for Conservation of Nature (IUCN), the International Council on Monuments and Sites (ICOMOS), and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM)).Footnote 15 Since many centers of expertise and research institutions competent in the field of ICH are not organized, as NGOs exist in developing countries, the committee decided at the beginning of its operation not to establish such an “umbrella advisory body.” However, over time, the role of NGOs has expanded within the work of the committee (as is discussed further below), and reflection on this role was launched with an electronic consultation during September and October 2018 and continued at a consultation meeting held on 18 April 2019.Footnote 16 In a document prepared by the Secretariat for the April meeting, three possible ways forward for improving the operation of the NGO accreditation system were proposed—namely, to maintain and adjust the existing system; to establish an “umbrella organization” that is responsible for the accreditation system and for improving coordination of the contribution of NGOs to the committee’s work; and to establish a hybrid system that allows for two or more types of accreditation for different types of NGOs.Footnote 17
At a meeting held in Tokyo in 2007, the Intangible Heritage Committee decided not to separate CGIs from (other) experts and centers of expertise to underline the importance of involving all of these various groups as closely as possible in implementing the Convention.Footnote 18 In 2008, the General Assembly of States Parties authorized entities such as public or private bodies, private persons, practitioners, and experts to provide advisory services to the IGC.Footnote 19 As Aikawa-Faure notes, this created an imbalance since “NGOs will need accreditation to offer advice, in conformity with Article 9 of the convention, other ‘entities’ will not.”Footnote 20
The approach taken in the ICHC toward participation (by CGIs, experts, and centers of expertise) is in large part a response to the very specific character of ICH, which owes its existence primarily to the continued practice and enactment of the related CGIs. This participation sets up new challenges at the intergovernmental level; most international participatory mechanisms have been developed to cater to Indigenous peoples who enjoy a special status in international law not accorded to most CGIs who are more likely to fall under the rubric of linguistic and ethnic minorities.Footnote 21 Not only is it crucial to identify the bodies that represent CGIs and the role accorded to them, but it is also vital that we understand what their “participation” in the international operation of the Convention implies.
WHO ARE THE “CGIs” OF THE ICHC
As has been discussed in more detail elsewhere, the terms “minority,” “group,” and “community” are relatively interchangeable in international law, and the way in which we use these terms is, to a large degree, context dependent.Footnote 22 Under the ICHC, CGIs are defined in relation to their ICH and, importantly, their self-identification with this ICH.Footnote 23 Hence, the communities and groups of the Convention do not need to be tied by ethnic links but may be brought together by a shared interest in safeguarding a particular ICH element as a community of practice.Footnote 24 Moreover, if we read this alongside the definition of “safeguarding” in Article 2(3), the central role to be played by CGIs in the identification, safeguarding, and managing of ICH, and in ensuring its continued viability, is undoubted. Although the Convention is not wholly aligned with the “heritage community” of the Council of Europe’s Faro Convention,Footnote 25 Lauso Zagato suggests that, if the CGIs of the ICHC could be understood in these same terms, it could strengthen this Convention’s participatory potential.Footnote 26
In considering the range of actors involved in the work of safeguarding ICH, it is helpful to draw upon the report on cultural heritage and human rights issued by Farida Shaheed as the UN Special Rapporteur on Cultural Rights.Footnote 27 She identifies the differing degrees of access and enjoyment to cultural heritage according to the relationship of different social groups to the heritage. First, there are the “source communities” who are the custodians/bearers of a specific cultural heritage (the CGIs of the ICHC) and have the most direct interest in it. Then, there are other individuals, social groups, and communities who consider the heritage in question to be a part of the life of their broader community, but who are not actively involved in it. Further removed are scientists, other experts, artists, and the general public. We might add the international community (acting on behalf of humanity), as the final group in this list.
COMMUNITY PARTICIPATION WITHIN THE ICHC
Although the “participation” of CGIs in the implementation of the ICHC was seen as a significant principle throughout the development of the Convention and even during the early intergovernmental meetings,Footnote 28 it is unclear as to what this should mean in practice at the various levels of implementation.Footnote 29 Moreover, and of specific interest in this article, they still enjoy no formal role in the work of the Convention’s organs.Footnote 30 According to Chiara Bortolotto, this apparently progressive approach has turned out to be “an opaque move,”Footnote 31 and the continuing lack of clarity on this question after 12 years of operation of the ICHC (which entered into force in April 2006) has been strongly criticized, even by representatives of the states parties.Footnote 32 Safeguarding ICH within an intergovernmental framework is intrinsically paradoxical since it can only be achieved through recognizing the central role of CGIs in its creation and safeguarding.Footnote 33 It must also be remembered that the requirement placed on states parties (by Article 15) to operate in as participatory a manner as possible is couched more in exhortatory terms than in obligatory terms, allowing the parties choice in how they do this.Footnote 34
Community-based strategies toward ICH safeguarding under the ICHC are not yet well understood and require much deeper consideration.Footnote 35 However, it is clear that the Convention does not follow the (hitherto) standard state-driven approach to cultural heritage protection, and this is emphasized later in this article, setting out the specific safeguarding measures to be taken on the national level to ensure the continued viability of ICH.Footnote 36 The most explicit and far-reaching reference to the role that the Convention envisages for communities and others is found in Article 15, which calls on states parties to “endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage” in safeguarding ICH and “to involve them actively in its management”.Footnote 37 This encourages parties to take an effective participatory approach toward safeguarding actions, including identification, documentation and research, preservation and protection, promotion, enhancement, transmission (particularly through formal and non-formal education), and revitalization, as well as management.Footnote 38 It would be beneficial to add a broader human rights understanding to these aims since safeguarding also implies supporting the conditions for ICH to continue to be viable, particularly for the economic, social, and political rights of CGIs. According to the periodic reports submitted thus far to the IGC,Footnote 39 most states parties have made some effort to ensure CGI involvement in inventorying and safeguarding ICH in general. However, the degrees of actual participation may differ widely.Footnote 40
As with the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (FAO) and the 1992 CBD,Footnote 41 community participation is explicitly required under the ICHC in order to undertake in the functions of the Treaty. How this is to be achieved with regard to the international aspects of ICH safeguarding is not yet clear. Some very specific requirements have now been included in the 2001 FAO treaty’s operational directives for evidence of community participation and consent, including the nomination of ICH elements to the Representative List of the Intangible Cultural Heritage of Humanity (Representative List), List of Intangible Heritage in Need of Urgent Safeguarding (Urgent Safeguarding List) and in the periodic reporting on the inscribed elements. In 2010, a series of directives on awareness raising detail how the participation of CGIs, as well as experts, centers of expertise, and research institutes in various safeguarding activities should be realized. Although these operational directives relate mainly to national-level measures,Footnote 42 they encourage states parties to facilitate the participation of CGIs, experts, centers of expertise, and research institutes in the removal of an ICH element from one (international) list or its transfer from one to the other (paragraph 80(e)). In addition, parties are encouraged in this section to develop joint approaches and share ICH-related documentation relating to ICH located in another state (paragraphs 86–88).
These new operational directives, if put into effect, will greatly help to ensure more meaningful CGI involvement in all stages of implementation. However, the mechanisms for ensuring real and effective community participation in the operation of the Convention remain weak, despite the importance apparently given to this approach when drafting the 2001 FAO treaty.Footnote 43 In 2014, an evaluation body (EB) comprising six individual experts and six representatives from accredited NGOs was established by the IGC to evaluate nominations to the Representative List, the Urgent Safeguarding List, and the Register of Good Practices in Safeguarding (RGSP), and International Assistance (IA) requests over $25,000 (subsequently raised to $100,000).Footnote 44 This brings the Convention’s implementation at the international level closer to the spirit of Article 10bis of the aforementioned 2002 preliminary expert draft. However, experience from its meeting in 2016 where the IGC ignored approximately 80 percent of the EB’s recommendations regarding nomination filesFootnote 45 suggests that the effective involvement of non-state actors in the committee’s determinations is still relatively limited.Footnote 46
Despite these caveats, the operational directives adopted in 2010 and 2014 effectively dilute the privileges reserved for states under the Convention, particularly with regard to national-level safeguarding measures. However, two levels of application may be emerging with parties retaining a high degree of control over the international listing mechanism and a much more community-oriented approach at the national level.Footnote 47 How, then, can the shift in the heritage paradigm enshrined in the ICHC be effected at the intergovernmental level and to what degree is it possible to involve CGIs in the intergovernmental policy- and decision-making processes? It should be remembered that the ICHC preserves a high degree of state sovereignty in the international aspects of implementation. For this reason, it is important to draw attention to the participatory mechanisms that states parties have already accepted in other treaty and intergovernmental bodies. It will still remain challenging to achieve a strong role for non-Indigenous CGIs in the intergovernmental process since they do not enjoy the same exceptional status that Indigenous peoples do under international law.Footnote 48
As shall be seen in the next section dealing with the different models of participation within international law (intergovernmental bodies and treaty frameworks), different levels of involvement can be found that may include the adoption of decisions and measures; the elaboration of new international instruments; benefit sharing; the creation of mechanisms and procedures; and the utilization of a property.Footnote 49
EXAMPLES FROM VARIOUS INTERGOVERNMENTAL ORGANIZATIONS
Most of the models shown below relate to mechanisms established to ensure better representation of Indigenous peoples in treaty and other intergovernmental processes and are not specifically related to CGIs per se. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that Indigenous peoples “have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions”.Footnote 50 In binding law, the poorly ratified 1989 ILO Convention on the Rights of Indigenous and Tribal Peoples called on governments in applying the Convention to “establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decisions-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them”.Footnote 51
This approach is based on the special status rights now accorded to Indigenous peoples in international law, including their right to a form of internal self-determination that includes control over ancestral lands, their natural resources, and social, cultural, and economic policymaking. Of course, this goes much further than the rights generally ascribed to other local and cultural communities, and so it is important to understand that the mechanisms established for respecting those rights of Indigenous peoples in intergovernmental fora do not automatically extend to non-Indigenous groups.Footnote 52
Intergovernmental Mechanisms Solely for Indigenous Peoples
The over-arching organization for representing Indigenous interests in intergovernmental bodies is the UN Permanent Forum on Indigenous Issues, which was established in July 2000 as an advisory body to ECOSOC. Made up of 16 members, who act in an individual capacity as independent experts on Indigenous issues, the permanent forum holds a two-week session each year that is open to delegates from Indigenous organizations and NGOs working on Indigenous issues.Footnote 53 Reflecting the principle of full participation by all Indigenous organizations and communities, such bodies participate in its meetings as observers; this follows procedures previously developed within its predecessor, the Working Group on Indigenous Populations, which was open to all Indigenous peoples’ organizations, regardless of whether they enjoyed consultative status with ECOSOC or not. In addition, states, UN bodies and organs, intergovernmental organizations, and other NGOs that have consultative status with ECOSOC may also participate as observers. Its mandate covers such areas as providing expert advice and recommendations to ECOSOC; raising awareness and promoting the integration and coordination of activities related to Indigenous issues within the UN system; and preparing and disseminating information on Indigenous issues.
Other than this umbrella organization representing Indigenous interests within ECOSOC, there are also arrangements made within an international intergovernmental body, a regional human rights treaty body, and a UN treaty framework. The Indigenous Peoples’ Forum at the International Fund for Agricultural Development (IFAD), a specialized UN agency and financial institution, was established in 2011 as part of IFAD’s Policy on Engagement with Indigenous Peoples.Footnote 54 This was seen as a way to institutionalize consultation and dialogue with Indigenous peoples and to improve the organization’s accountability to one of its major target groups. Made up of members of relevant UN mechanisms, representatives of Indigenous peoples’ communities involved in IFAD-supported programs, and representatives of national and regional Indigenous peoples’ organizations, the forum meets every two years in parallel with IFAD’s annual Governing Council. It is governed by a Steering Committee comprising seven representatives from Indigenous peoples’ organizations, one representative of the Indigenous Peoples’ Assistance Facility Board, one representative of the UN Permanent Forum on Indigenous Issues, and four IFAD representatives. With the forum’s participation, the thirty-eighth session of IFAD’s Governing Council in 2016 featured a Panel on Indigenous Peoples and Sustainable Food Systems, which had clear ICH dimensions and which was attended by 173 representatives of IFAD’s member states.
Since the twenty-ninth session of the African Commission on Human and Peoples’ Rights in 2001, several Indigenous organizations have applied for observer status.Footnote 55 Organizations with observer status include the Mainyoito Pastoralist Integrated Development Organization (Kenya), the Ogiek Welfare Council (Kenya), the Ogiek Peoples Development Program (Kenya), the Mbororo Socio-Cultural and Develpment Association (Cameroon), the Unissons-Nous pour la Promotion des Batwa (Burundi), and the Communautés des Potiers du Rwanda (Rwanda).Footnote 56 Within the 1992 UNFCCC, there is again a focus on the right of NGOs representing Indigenous peoples to apply for observer status under the Convention and to nominate participants for the sessions of the different bodies established under the Convention.Footnote 57 The International Indigenous Peoples’ Forum on Climate Change, open to all Indigenous activists that wish to engage in UNFCCC negotiations, was also established to serve as the joint Indigenous peoples’ caucus and to coordinate their efforts and activities. With regard to the ICHC, it is worth noting that Chapter VI to the operational directives (on sustainable development) adopted in 2016 clearly demonstrates that safeguarding ICH can contribute toward reducing the environmental impacts of climate change and mitigating its impacts.Footnote 58
Intergovernmental Mechanisms with a Broader Constituency
WIPO is an intergovernmental body that has welcomed increased involvement by Indigenous and local community representatives in its operations. In 2000, WIPO established the Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folklore of the World Intellectual Property Organization (WIPO IGC). This move followed a series of consultations held in 1998–99 with Indigenous and local communities aimed at identifying sui generis approaches for the IP protection of their traditional culture and practices.Footnote 59 Following this, the WIPO IGC invited Indigenous and local community representatives to observe and participate in its work, and WIPO now works with an Indigenous caucus that helps newcomers to become familiar with the culture and mode of negotiation within WIPO.Footnote 60 Local communities are represented in the WIPO IGC by NGOs with observer status,Footnote 61 and, although observer status does not allow NGOs to present proposals, amendments, or motions to WIPO’s treaty bodies,Footnote 62 the WIPO IGC has always allowed observers to intervene during its sessions on all agenda items and to make proposals, and NGO interventions are included in documents under discussion if they secure the support of one or more member states. In addition, a panel of representatives of Indigenous and local communities make presentations at the start of each WIPO IGC session, conveying their views on the protection, promotion, and preservation of traditional knowledge, traditional cultural expressions, and genetic resources.Footnote 63 As a pertinent example, the WIPO IGC identified 10 key questions relating to the protection of traditional cultural expressions/expressions of folklore and traditional knowledge at its tenth session in 2006.Footnote 64 A consultation process followed, after which the WIPO IGC held an extensive review of the issues and commissioned factual extractionsFootnote 65 of the comments and viewpoints made on these issues. Of the seven responses received from accredited observers to the WIPO IGC, only one (the Ogiek community) would appear to be from an association representing a particular Indigenous and/or local community.Footnote 66
Recognizing a broader constituency than Indigenous peoples alone, Article 8(j) of the CBD makes explicit that Indigenous and local communities hold “knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”.Footnote 67 It therefore places obligations on states parties relating to promoting the wider application of these lifestyles and the involvement of the holders as well as encouraging the equitable sharing of benefits arising from their utilization. Its use of the term “communities,” reference to the principle of participation, and direct reference to the role played by the “knowledge, innovations and practices of local and Indigenous communities embodying traditional lifestyles” for the preservation of biodiversity all have a resonance for safeguarding ICH under the ICHC. In order to make this article internationally operational, the ninth Conference of the Parties (COP) of the CBD established an Ad Hoc Open-ended Inter-Sessional Working Group (Working Group on Article 8(j)) in 1998 to advance further work on the implementation of Article 8(j) and related provisions and give representatives of Indigenous and local communities “the widest possible extent in its deliberations in accordance with the rules of procedure”.Footnote 68 One relevant action resulting from its activities was the adoption by COP-7 in 2004 of the Akwé: Kon Guidelines governing cultural, environmental and social impact assessments on proposed developments to likely to impact on sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities.Footnote 69 This mechanism has now expanded to include participation in discussions within the Working Group on Access and Benefit-Sharing, the Working Group on Protected Areas, and various other thematic and crosscutting issues.
The UNCDC is a treaty that enshrines a highly participatory approach to national measures, encouraging parties to ensure that decisions on the design and implementation of programs “are taken with the participation of populations and local communities”.Footnote 70 In order to give this a more concrete form at the international level, COP-5 established the Committee for the Review of the Implementation of the Convention (CRIC) in 2001 to act as a subsidiary body to the COP that meets annually. This subsidiary body reviews and analyzes national reports submitted to the COP describing the status of the Convention’s implementation by parties and observers, which are the equivalent of the periodic reports submitted by states parties to the ICHC. The involvement of CRIC in this activity, aimed at improving the coherence and impact of policies and programs for restoring agroecological balance in arid lands, is notable when considering the future possibility of “shadow” periodic reporting on the implementation of the ICHC by NGOs.
Within UNESCO
Inter-Sectoral Activities
In order to give better recognition of the holistic nature of Indigenous worldviews, UNESCO began in the late 1990s to encourage the five program sectors (education, natural science, culture, social and human sciences, and communication) to work in a more inter-sectoral manner and to pay particular attention to issues concerning Indigenous communities. The main program known as the Local and Indigenous Knowledge Systems (LINKS) program was established in 2002 as an inter-sectoral process made up of resource persons from all areas of UNESCO’s operational activities. LINKS provides a forum for, and partnership with, traditional knowledge holders, natural and social scientists, resource managers, and decision-makers. Through this, it aims to strengthen the role of Indigenous knowledge and peoples in areas concerning biodiversity management and governance and to reinforce the transmission of Indigenous knowledge from one generation to the next.
Implementation of the World Heritage Convention (WHC) is governed by the intergovernmental World Heritage Committee, which is made up of 21 states parties to the Convention.Footnote 71 This committee administers the international lists of the WHC and oversees the protection and management of inscribed properties so that they are adequately safeguarded for the benefit of future generations. The WHC is supported by UNESCO’s World Heritage Centre, which acts as the Secretariat for the Convention, as well as by three official advisory bodies—namely, ICOMOS, the IUCN, and ICCROM. Although a large number of the recognized world heritage properties are located in the territories of Indigenous peoples, the existence and role of the Indigenous peoples living in these sites is often not adequately reflected in the decisions of the World Heritage Committee. The proposal to establish a World Heritage Indigenous People Council of Experts was discussed at the twenty-fourth session of the WHC held in Cairns, Australia, in 2000.Footnote 72 The World Heritage Committee commissioned a feasibility study on this proposal, which was presented at the twenty-fifth session of the Bureau of the WHCFootnote 73 but was ultimately rejected by the WHC since its states members felt that it raised a number of complex legal concerns and issues relating to the funding, legal status, role, and relationships with states parties, advisory bodies, the World Heritage Committee, and the World Heritage Centre.
Since 2005, the Operational Guidelines to the WHCFootnote 74 have promoted a “partnership approach to nomination, management and monitoring”,Footnote 75 and, in 2007, the WHC adopted a fifth strategic objective (“fifth C” on communities)Footnote 76 in order “to enhance the role of communities in the implementation of the World Heritage Convention.” Furthermore, the involvement of both Indigenous peoples and local communities in the decision-making relating to, the monitoring of, and the evaluation of the state of conservation of world heritage properties was supported by the WHC in 2011. In the following year, an International Expert Workshop on Indigenous Peoples and the WHC was organized in Copenhagen in order to formulate appropriate recommendation for the WHC. As a follow-up, the Operational Guidelines were amended in 2015 to include specific references to Indigenous peoples in paragraphs 40 and 123. In addition, the Sustainable Development Policy adopted by the WHC in 2015 makes specific reference to “respecting, consulting and involving Indigenous peoples and local communities” and emphasizes that recognizing the rights and the full involvement of Indigenous peoples and local communities lies at the heart of sustainable development.
Given that the role of civil society (and partnerships with civil society) plays a central role in implementing the 2005 Convention on Cultural Expression, it is worth considering how the IGC for this Convention has addressed its participation in the organs of the Convention. Under the terms of the Rules of Procedure for the IGC, “[c]ivil society is encouraged to contribute to the work of the organs of the Convention according to the modalities to be defined by these organs” (paragraph 7). In addition, the committee may consult public or private organizations and individuals at any time on specific issues.Footnote 77 Moreover, its Rules of Procedure allow the committee to invite them to attend a particular meeting of the committee, “regardless of whether the organization or group has been accredited to participate in the sessions of the Committee” (paragraph 8). Civil society organizations may also be authorized to participate as observers in both the Conference of Parties and the Intergovernmental Committee.Footnote 78 Their activities in this role may include maintaining a dialogue with parties “in an interactive manner with regard to their positive contribution to the implementation of the Convention, preferably, as appropriate, before the sessions of the organs”; participating in the meetings of these bodies; being given the floor by the chairperson of the respective body; and submitting written contributions relevant to the work of the respective bodies when authorized by the chairperson, to be circulated to all delegations and observers by the Secretariat to the Convention as information documents. A notable point is that the participation of civil society in the International Fund for Cultural Diversity (IFCD) is formalized within the treaty’s framework, and the regulations for this are addressed within the framework of the Operational Guidelines on the use of the resources of the fund.Footnote 79 According to the IFCD’s Rules of Procedure, beneficiaries of the fund include NGOs “coming from developing countries that are Parties to the 2005 Convention” and international NGOs, both of which need to “meet the definition of civil society” and the criteria regulating admission of its representatives at meetings of organs of the Convention on Cultural Expression.Footnote 80 Therefore, this would seem to be more inclusive than most other intergovernmental frameworks in terms of the range of civil society organizations and, importantly, explicitly allows them access to the fund established by that treaty.
ACCREDITED NGOs AS CGI REPRESENTATIVES IN THE INTERGOVERNMENTAL MECHANISMS OF THE CONVENTION
One of the problematic issues surrounding the representation of Indigenous peoples and other CGIs in the international implementation by the IGC of the ICHC surrounds the question as to who (or what entities) should represent them. Predominantly, this has been fulfilled in a formal sense by NGOs accredited to the General Assembly of States Parties, with heritage professionals (“experts,” according to the wording of the operational directives) playing a lead role. This section considers how much they are actually representative of the interests of CGIs and how their roles can be further developed.
In 2008, the IGC discussed the idea of creating an umbrella NGO for evaluation of the Representative List/Urgent Safeguarding List nominations files and for other international implementing actions, essentially playing a role equivalent to that of the IUCN and ICOMOS in the 1972 Convention. This was not pursued, partly because ICH is such a disparate field that it is hard to imagine any single NGO (or even two or three NGOs) that is (are) sufficiently representative to cover this vast and various heritage. In addition, the existence of three powerful international NGOs (with intergovernmental dimensions) within the operation of the WHC has resulted in the real participation of local and Indigenous communities in the implementation of that treaty on many levels. As Anthony Seeger notes in his assessment of the role played by the International Council of Traditional Music NGO in the evaluation of masterpieces,Footnote 81 “[t]he UNESCO objective of involving artists and tradition bearers in these processes has had mixed results ... many of the nominations failed to provide evidence of the inclusion of artists and tradition bearers in the planning and realisation of the action plans submitted as part of their nominations”.Footnote 82 This, then, would suggest that NGOs do not alone provide the answer to the challenge facing the IGC in seeking to develop a mechanism for stronger community involvement in the intergovernmental process.
Under Article 9, NGOs are given a role in the international operations of the ICHC through becoming accredited to the General Assembly, which sets the necessary “criteria and modalities”.Footnote 83 There are now 164 NGOs accredited to the IGCFootnote 84 that have expertise in the field of ICH,Footnote 85 and their role includes providing “advisory services” to the IGC as set out in Operational Directive 96.Footnote 86 The diversity of types and objectives of these NGOs is notable, comprising small local organizations engaged in community projects for large national (government-sponsored NGOs) that play a major role in the Convention’s implementation at the national level.Footnote 87 Accredited NGOs may attend the sessions of the statutory organs of the Convention, mostly acting as observers (although they also serve as advisors to the IGC).Footnote 88 As such, they can only speak during general debates held before the discussions leading to the adoption of decisions, speaking after other observers (states parties are not members of the committee), and this means that they may be given little time to say what they want to say.Footnote 89 The first NGO Forum was organized in 2010 in order to strengthen the voice of NGOs within the IGC meetings and to increase coordination among the accredited NGOs. The forum established a Steering Committee in 2015 that allows for a structured (but informal) relationship with the Secretariat through which they are able to follow up on, and coordinate evolutions in implementing the Convention, develop projects consistent with UNESCO’s priorities, and hold discussions during the sessions of the statutory bodies.Footnote 90 The NGO Forum has also begun to develop a capacity-building program (in cooperation with UNESCO) that will be rolled out to NGOs in all regions and will be launching and developing the regional NGO networks in 2017.
An evaluation conducted by UNESCO’s Internal Oversight Service conducted in 2013, however, found that several accredited NGOs were dissatisfied by the level of influence they could actually wield within the Convention’s international mechanisms.Footnote 91 The fact that the IGC ignored around 80 percent of the decisions proposed to it by the Evaluation Body in 2016 is a good case in point (and resulted in the resignation of the Ugandan NGO delegate).Footnote 92 A further issue is that, in a number of countries, NGOs are not independent of state control and so cannot really be regarded as representing the communities of the Convention in any real sense. The geographical spread of accredited NGOs remains heavily weighted toward Group 1 (Europe and North America), and, in this area, it is important to note that there are many countries from other electoral groups where NGOs related to ICH are not well established but where other forms of civil society/cultural associations represent cultural communities.Footnote 93
A further important issue to address is that, although NGOs may well act as the representatives of ICH-related CGIs, they also frequently represent expert interests. Moreover, experts in different domains of ICH—anthropologists and ethnographers, in particular—advise both CGIs and governmental bodies, and it is worth noting that they frequently have a dual role both as academics/researchers and as experts or officials within the governmental bodies. Experts from outside CGIs continue to play a prominent role in drafting nomination files, which raises the question as to how far direct CGI involvement in this process is possible in many countries.Footnote 94 Heritage professionals certainly play an important role as cultural brokers in ICH safeguarding and policymaking as well as in advising the IGC and even as governmental representatives at its meetings.Footnote 95 The good governance paradigm does regard the scientific/academic community as a bridge between government and the (lay) public. However, they also have their own agendas that may conflict with the interests of CGIs, which was a major criticism of the 1989 recommendation.Footnote 96 Moreover, the interests of heritage professionals and those of CGIs do not always coincide.Footnote 97
As a result, the relationship between “heritage experts” and CGIs needs to be renegotiated, and this falls within a grey zone in implementing the ICHC since specific operational directives on mediation between these actors have not yet been developed.Footnote 98 Indeed, there is a new tension in this that is not found under the previous top-down heritage management paradigm.Footnote 99 Indeed, the expert/community dichotomy can itself be questioned, with many experts also being CGIs. Some commentators have viewed capacity building (for Indigenous peoples) to operate in the intergovernmental context as a form of “acculturation” in the intergovernmental process,Footnote 100 which may transform community representatives into “convenient interlocutors,” thus limiting their ability to contest the decisions and approaches taken.Footnote 101 At the end of the day, however, it will always be the states parties who hold the ultimate decision-making powerFootnote 102 and determine the terms of engagement with Indigenous organizations and CGIs
Given that CGIs per se have been accorded no specific status under the Convention to be represented in its intergovernmental procedures (other than in an ad hoc advisory capacity if invited by the IGC under Article 8(4)), a mechanism built around the existing NGO Forum is probably the most appropriate way to achieve greater CGI involvement in the work of the statutory bodies. However, although the NGO Forum has gained greater traction in recent years, this still needs to be developed in order for them to have a sufficient influence within the IGC framework. The statements made by the NGO Forum since the seventh IGC held in 2012 suggest some of the different contributions that NGOs can make to the intergovernmental process and how they can (have) benefit(ed) from it. Accreditation of NGOs from developing countries (many with CGI members) aligns their work with “accepted international standard working concepts and methods”,Footnote 103 and, as stakeholders and intermediaries, they can “activate, mediate and connect” and so contribute to a participatory approach.Footnote 104 In terms of expanding their role in the future, the following areas have been suggested by the forum: they can provide a number of advisory functions to the IGC and parallel NGO periodic reports alongside the periodic reports of the state parties;Footnote 105 they can participate directly in the debates of the IGC, giving expert opinions;Footnote 106 they could access the fund directly in order to contribute to the implementation of the ICHC;Footnote 107 and there is the potential for the participation by NGOs “in the mechanics of the Convention” in non-party states and operating more generally in an international capacity.Footnote 108
Access to funding is often a major hurdle for NGOs wishing to engage more directly in international governance structures and is a likely reason for the overrepresentation of Group 1 among NGOs accredited to the General Assembly; others NGOs may well have the motivation and the expertise to take part, but financial constraints prevent them from doing so. The operational directives do provide for use of the fund’s resources (at paragraph 67) for “(e) for the costs of participation of public or private bodies, as well as private persons, notably members of communities and groups, that have been invited by the Committee to its meetings to be consulted on specific matters.” However, this relates to those invited by the IGC under Article 8(4) and does not cover the regular attendance of accredited NGOs in its meetings. Moreover, the fund can also be used for covering “(d) … the costs of advisory services to be provided, at the request of the Committee, by non-governmental and non-profit-making organizations, public or private bodies and private persons.” These operational directives may provide the opportunity to develop CGI participation in the work of the IGC, especially in view of the poor uptake by the parties of the fund, but this has not yet been used by the committee and, importantly, would only be on an ad hoc basis.
CONCLUSION
This discussion suggests that the answer is not to be found in creating further layers of institutional structures to achieve greater CGI involvement but, rather, to develop the existing NGO Forum. In order to achieve this, it is helpful to concentrate on the following approaches: working to increase the numbers of accredited NGOs that truly represent CGI (rather than expert) interests; increasing the number of accredited NGOs from currently underrepresented regions; revisiting the criteria for accredited NGOs in order to allow for as broad a range of cultural and traditional associations as possible; building and strengthening capacities in these bodies to work more effectively at the international level; providing funding for accredited NGOs from developing countries to attend meetings of the statutory bodies; improving the flow of information and dialogue between states parties and non-state actors; and raising awareness among states parties of the capacities available among the members of the NGO Forum to support the committee’s work.
It is crucial that whatever mechanism is developed it reflect as highly as possible participatory approaches. Certain requirements for this can be identified as creating effective national level mechanisms for the involvement of CGIs in ICH safeguarding (at all stages);Footnote 109 national level capacity-building of NGOs to developing their capacity to intervene at the intergovernmental level; a set of accreditation criteria that allow for the inclusion of a relatively wide range of types of NGOs and similar associations;Footnote 110 providing accredited organizations with name plaques at IGC meetings and giving them speaking rights (if invited by the chair); ensuring sufficient financial and administrative support for community-based NGOs to attend meetings, other working groups, and so on of the IGC;Footnote 111 and ensuring access to information so that community-based NGOs can participate in decision-making in an informed manner.Footnote 112
In view of the shortcomings of the various mechanisms available in other treaty systems to ensure effective participation by Indigenous and/or local communities and other groups in policymaking and implementation at the international level, this might present an opportunity for the ICHC to be at the forefront of creating more participatory structures. At its twelfth meeting, the IGC took the decision to “invite the Secretariat and the informal ad hoc working group to reflect, in consultation with accredited NGOs, on the possible ways in which the participation of NGOs under the ICHC could be further enhanced and how this would be reflected in the accreditation and renewal mechanisms of NGOs”.Footnote 113 This is a hopeful sign that states parties are coming, albeit reluctantly, to realize the usefulness of greater NGO involvement, if only to provide greater legitimacy for its decisions and actions. Over time, this has the potential to lead to the further evolution of some of the approaches recommended in this article. If it does, then the ICHC will truly be fulfilling its human rights obligations with regard to the principle of participation.
