EXP

LHE/21/EXP/3 Rev.Paris, 27 April 2021

Original: English

CONVENTION FOR THE SAFEGUARDING OF THEINTANGIBLE CULTURAL HERITAGE

Expert meeting in the framework of the global reflectionon the listing mechanisms under the 2003 Convention for the

Safeguarding of the Intangible Cultural Heritage

Online7, 26 and 27 May 2021

13h00 – 16h00 (Paris time/ UTC+2)

Overview of the development of the listing mechanismsof the UNESCO Convention for the Safeguarding of the Intangible

Cultural Heritage up to 2008

Rieks Smeets

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Introduction1

1. Since the 1960s, UNESCO has been paying attention to intangible heritage, variously called “folklore”, “non-physical heritage”, “oral heritage”, “oral and intangible heritage” and finally “intangible cultural heritage” or “living heritage”.2 After decades of UNESCO studies, meetings, conferences, texts and programmes, with incentives from East Asian countries, generous funds-in-trust, a motivated Secretariat and a determined Director-General, and – eventually – three sessions of an Intergovernmental Meeting of Experts, UNESCO finally adopted, in October 2003, its Convention for the Safeguarding of the Intangible Cultural Heritage (henceforth: the 2003 Convention or simply the Convention).

2. The 2003 Convention presents, in its Chapter IV, called Safeguarding of the Intangible Cultural Heritage on the International Level, a listing system that consists of two Lists and – since 2008 – a Register.3 These are the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, the Representative List of the Intangible Cultural Heritage of Humanity and what is nowadays commonly referred to as the Register of Good Safeguarding Practices. For the sake of brevity, in this text these mechanisms will often be referred to as the Urgent Safeguarding List, the Representative List and the Register.

3. This paper aims at presenting the gradual rise and development of these listing mechanisms within the early history, the preparation and the early implementation of the 2003 Convention. In doing so, it visits a large number of expert meetings, meetings of organs of UNESCO and other meetings – selectively until 2001, exhaustively from then on. A list with all relevant expert meetings in the period 2001-2008 is given in para 23.

Early developments4. The establishment of lists for intangible cultural heritage in a UNESCO context was

proposed several times. The first such proposal was made in the context of a search for the legal protection of “folklore”. When, in 1973, Bolivia suggested that UNESCO investigate the possibilities for establishing a protocol, to be added to the 1952 UNESCO Universal Copyright Convention, or a discrete convention, for the legal protection of folklore, it also evoked the possible establishment of an International Register of Folkloristic Cultural Property.4 In 1975, in reaction to the Bolivian proposal, and at the request of the Intergovernmental Copyright Committee, UNESCO submitted a Study on the desirability of providing for the protection of folklore on an international scale.5

5. While UNESCO continued reflections and meetings internally, it also developed, together with WIPO (World Intellectual Property Organization), the 1982 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions.6 In 1984, the two organisations even delivered a Draft treaty for the protection of expressions of folklore against illicit

1 . Abbreviations: COM: Committee; GA: General Assembly; IME: Intergovernmental Meeting of Experts; OD: Operational Directive; WIPO: World Intellectual Property Organization; 1.COM: First Committee meeting; 1.EXT.COM: First Extraordinary session of the Committee, etc.

2 . In 2019, the Intangible Cultural Heritage Section was rebaptized as the Living Heritage Entity.3 . The Register is not yet mentioned as such in Article 18 of the Convention. The Organs of the Convention

established the Register at the first occasion, in 2008 - cf. para. 50.4 . IGC/XII/125 . B/EC/IX/11 – IGC/XR.1 (1971)/15 . 6 . https://unesdoc.unesco.org/ark:/48223/pf0000068457/PDF/068457qaab.pdf.multi; para. 5 to 24 of this

document provide a useful overview of UNESCO and WIPO’s action in the field up to 1982.

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exploitation and other prejudicial actions, which was never discussed for adoption. The draft treaty did not foresee listing or inventorying mechanisms.7

Steps ahead in the 1980s6. In the 1980s, the reflections about intangible cultural heritage within UNESCO never

stopped.8 Several programmes were created and numerous expert meetings organized, with intangible heritage becoming ever more visible, within and outside the Organization. The Mexico City Declaration on Cultural Policies, for instance, that was adopted in 1982 at the UNESCO-organized Mondiacult World Conference on Cultural policies, included, in its novel description of cultural heritage, intangible and tangible heritage, on an equal level.9 That Declaration also implicitly introduced intangible heritage practices and expressions in its authoritative, broad definition of culture, which would eventually be included in the 2001 Universal UNESCO Declaration on Cultural Diversity. It also spoke about cultural identity and the cultural dimension of development. In the list of recommendations of the final report of the World Conference, UNESCO is, among many other things, encouraged to make provisions for measures to preserve folklore and folk crafts.10 In 1984, as part of the reorganization of the cultural sector, a Non-Physical Heritage subprogramme was created at UNESCO.

A committee of experts proposes an international list (1985)7. In early 1985, UNESCO organized the so-called Second Committee of Governmental

Experts on the Safeguarding of Folklore, which explored new ways of safeguarding folklore. The experts emphasized that folklore should be protected from commercial exploitation, that “the proceeds from the utilization of folklore should be returned to the communities of origin”, that folklore should not be misrepresented and that “[F]olklore, as intellectual property must be safeguarded by and for the group (familial, occupational, national, regional, religious, ethnic, etc.) whose identity it expresses.” Among the recommendations of that meeting, which were presented to the 121st Executive Board, one finds “establishing an international register of cultural property in the form of folklore” and, on the national level, establishing a “list of popular traditions selected by Member States as being most representative of their folklore heritage”.11 This was the first time in the UNESCO context that the listing of intangible cultural heritage at the international level was proposed for other purposes than for legal protection, that the adjective “representative” was used in relation to intangible heritage and that related listing of intangible heritage was proposed on the national and international level.

A step back, at the end of the 1980s8. In 1989, UNESCO adopted the Recommendation on the Safeguarding of Traditional

Culture and Folklore, which had been prepared without WIPO.12 That text – being a recommendation – did not have a binding character. Partly therefore it did not inspire many States to take action. According to an assessment made in 1999, one of its

7 . UNESCO/WIPO/FOLK/CGE.1/2, p. 20; in the preamble of the Draft Treaty, expressions of folklore are recognized as representing “an important part of the living cultural heritage of mankind.”

8 . For the period up to 1989, see, for instance, Sherkin (2001), for the period up to 2001, see Blake (2001); developments from that period until 2008 are extensively covered in Aikawa (2007) and Aikawa-Faure (2009). Aspects of the development of the Convention are analysed and presented from an ethnographer’s perspective in Hafstein (2018).

9 . https://unesdoc.unesco.org/ark:/48223/pf0000054668/PDF/054668qaab.pdf.multi10 . See Recommendation 79 in:

https://unesdoc.unesco.org/ark:/48223/pf0000052505/PDF/052505engo.pdf.multi11 . UNESCO/PRS/CLT/TPC/II/512 . http://portal.unesco.org/en/ev.php-URL_ID=13141&URL_DO=DO_TOPIC&URL_SECTION=201.html

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shortcomings was that it overfocused on documentation and research, with practitioners functioning at best as informants.13 The 1989 Recommendation does not recommend listing or inventorying of ICH; what it does recommend to the Member States is “to develop a national inventory of institutions concerned with folklore with a view to its inclusion in regional and global registers of folklore institutions” (section B(a)). The Recommendation did not really take into account developments such as were reflected in the 1982 Mexico Declaration, or during the 1985 expert meeting. Although it had been prepared by UNESCO’s Copyright Division,14 it evokes intellectual property protection only in passing.15

New strategies in the 1990s and another crucial meeting (1993)9. In June 1993, an expert meeting, International consultation on new perspectives for

UNESCO’s programme: the Intangible Cultural Heritage, was asked to comment on a new strategy that had been developed by the Secretariat for its intangible cultural heritage programme.16 At the opening, the tone was set when it was announced that Japan had pledged an important fund-in-trust contribution for that programme and that a Korean proposal was being studied to develop a programme “for the compilation of a list of living treasures, actors and exponents of the great intangible heritages.”

In the meeting’s report, novel expressions and ideas abound. The “perpetual evolution” of intangible cultural heritage was emphasized. Focus was to be placed on practitioners, who are to be consulted about, for instance, the “revitalization” of their intangible cultural heritage, who are to be empowered, and who are to benefit from their heritage. Warnings were issued against folklorization, excessive tourism, unbridled commercialization and decontextualization. Special attention was requested for minority and indigenous heritage, for intangible cultural heritage in rural areas and for new popular cultures in urban areas. The meeting’s recommendations further included the creation of an international award for “Living Human Treasures”, and a distinction for “Masterpieces of the Universal Heritage”, to be awarded every year.

Living human treasures – no list yet10. In October 1993, the 142nd Executive Board, following a proposal by the Republic of

Korea and other States, endorsed the creation of the Living Human Treasures programme (142 EX/18, 48; Decision 5.5.5). Living Human Treasure systems had already existed since the 1950s in Japan, and since the 1960s in Korea. The programme was about rewarding and listing at the national level of Living Human Treasures (or Properties), i.e. “persons who possess to a very high degree the knowledge and skills required for performing or recreating specific elements of the Intangible Cultural Heritage.” In its decision, the Executive Board expressed the hope that if the national lists proved successful, UNESCO could, as a next step, establish “a world list of living cultural properties”. The programme, which at the UNESCO level did not attract much funding, was introduced in over twenty States, but was not implemented at the international level.17

13 . Cf. Can (2001).14 . As stated in Aikawa (2007:53).15 . “Member States should: […] regarding the intellectual property aspects: call the attention of relevant

authorities to the important work of WIPO and UNESCO in relation to intellectual property, while recognizing that this work relates to only one aspect of folklore protection and that the need for separate action in a range of areas to safeguard folklore is urgent;” (1989 Recommendation, Section F(a)).

16 . CLT/ACL/93/IH/0117 . When listing mechanisms for the new convention were discussed (2002–2003), UNESCO had ceased

encouraging the establishment of Living Human Treasure systems; by that time, the listing of processes, knowledge and skills was privileged over the listing of persons or objects with outstanding qualities. See the page Living Human Treasures: a former programme of UNESCO, at https://ich.unesco.org/en/living-human-treasures

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Our Creative Diversity11. Meanwhile, in 1996, Our Creative Diversity, the report of the World Commission on

Culture and Development, recalled that intangible heritage was still undervalued as compared to tangible heritage (in particular of the North) and not yet sufficiently covered by international legal texts. Therefore, new modalities would be required, as well as action from UNESCO. In the Final Report of the Intergovernmental Conference on Cultural Policies for Development (Stockholm, 1998), one can read several recommendations that go in that direction.18

Intellectual property protection left to WIPO12. Between 1997 and 1999, UNESCO and WIPO again explored possibilities for

common action. It was then understood that achieving legal protection for intangible cultural heritage by means of an international legal instrument would still be a long fight, in view of opposition from mainly developed countries with industries eager to profit from free access to traditional knowledge everywhere in the world. From then on, UNESCO started preparing for the development of a convention for safeguarding intangible cultural heritage on its own. At about the same time, WIPO courageously started working towards a convention or conventions for the legal protection of traditional knowledge, traditional cultural expressions and genetic resources.19 The drafters of the 2003 Convention explicitly left the legal protection of intangible cultural heritage to WIPO and when listing mechanisms were discussed, it was never suggested that these should have a function in the legal protection of listed heritage.20 It was understood that, indeed, listing, or inventorying, for the sake of legal protection requires different approaches than listing or inventorying in view of safeguarding.

Masterpieces – the first international UNESCO list for intangible cultural heritage13. In 1997/8, UNESCO’s ruling organs approved in several steps the programme of the

Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity. Under that programme, cultural expressions and cultural spaces could be nominated, to be evaluated by an international Jury and, eventually, to be proclaimed “Masterpieces” by the Director-General of UNESCO, who also appointed the programme’s Jury members.

A first recommendation to establish this type of listing had already been made by a 1993 expert meeting (cf. para. 7). In 1997, a detailed proposal, explicitly modelled after the World Heritage listing system, was discussed at an international consultation, called “the Marrakech meeting”.21 A few months later, UNESCO’s 29th General Conference, adopted Draft Resolution 64, that had been tabled by Morocco and a few other States, and thus decided “to highlight the importance of the intangible cultural heritage for peoples and nations by proclaiming spaces or forms of cultural expression part of the “oral heritage of humanity”“.22

Masterpieces – a much debated programme

18 . CLT-98/Conf.210/519 . Since 1999, there has been little interaction between WIPO and UNESCO, which triggered

Recommendation 14 of the 2013 IOS Report: “Strengthen UNESCO’s cooperation with WIPO over traditional knowledge and culture to ensure an ongoing exchange and learning between the two organisations and their Member States […]”.

20 . Cf. Article 3(b) of the Convention: “Nothing in this Convention may be interpreted as: […] (b) affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights […].”

21 . International consultation on the preservation of popular cultural spaces – Declaration of the oral heritage of mankind. 26–28 June 1997, Marrakech; final report: CLT/CH/ITH/07

22 . https://unesdoc.unesco.org/ark:/48223/pf0000110220/PDF/110220eng.pdf.multi

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14. In various sessions of the Executive Board, the programme, which initially was called the Proclamation of Masterpieces of Oral Heritage of Humanity, became the subject of heated debate. The 154th Executive Board (May 1998) discussed the programme, added “and intangible” to its title, while rejecting the proposed regulations. A reworked set of regulations was approved at the 155th Executive Board (October 1998). A progress report about the programme that was submitted to the 157th Executive Board (October 1999) again provoked intense debate, with Group I countries in particular formulating objections concerning terminology and – again - regulations.

15. In various UNESCO documents, the programme was first presented as an “intangible” answer to the World Heritage Convention, and - later on - also as an exercise in listing intangible cultural heritage in view of a possible convention.23 Various States that were critical about aspects of the Masterpieces Programme, in the following years would be critical, too, about the creation of a convention for intangible heritage, or – for instance – about listing under such a convention. A majority of the Member States, however, endorsed the Programme. And indeed, their experiences with the Masterpieces Programme influenced the positions of many delegations when the desirability, the nature and the name of the list that would end up as the Representative List, were under discussion in the years 2002–2003. States that “had” one or more Masterpieces, generally were anxious to secure for them a suitable place within the listing system of the upcoming convention. Three Proclamations took place, in 2001, 2003 and 2005, yielding ninety Masterpieces, proposed by seventy countries in all.

Masterpieces – the criteria16. When they were briefed about the first Proclamation of Masterpieces in May 2001, a

few days after it had taken place, members of the 161st Executive Board criticized the programme’s selection criteria. In reaction, UNESCO organized an extraordinary meeting of the Masterpieces Programme’s Jury in September 2001.24 One of the outcomes of that meeting was that languages would no longer be eligible for proclamation as such, but only as auxiliary aspects of intangible heritage elements, which presaged the way they would be treated less than two years later in Article 2.2 of the Convention.25 Another result of that meeting was a revision of the selection criteria of the Masterpieces Programme, which were from then on:

(i) its outstanding value as a masterpiece of the human creative genius;

(ii) its root in the cultural tradition or cultural history of the community concerned;

(iii) its role as a means of affirming the cultural identity of the peoples and cultural communities concerned, its importance as a source of inspiration and intercultural exchange and as a means of bringing peoples or communities closer together, and its contemporary cultural and social role in the community concerned;

(iv) excellence in the application of the skill and technical qualities displayed;

(v) its value as a unique testimony of a living cultural tradition;

(vi) the risk of its disappearing […].

Outstanding value

23 . Aikawa-Faure (2009:20).24 . Extraordinary meeting of the international jury for the Proclamation by Unesco of Masterpieces of the Oral

and Intangible Heritage of Humanity (Elche, 21–23 September 2001) – Final Report RIO/ITH/2002/INF/625 .As a result, languages, at the moment, cannot be included as such in the Lists of the Convention.

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17. Outstanding value was then interpreted as "outstanding value to the community concerned and for the maintenance of cultural diversity, to be demonstrated in relation to a) other expressions within the same culture/cultural group, b) the expressions of nearby related cultures, and c) universally." A few years later, in the final phase of the official preparation of the Convention, a large proportion of the intergovernmental experts wanted the then future Representative List to be a continuation of the Masterpieces Programme, while others opposed using the principles, criteria or elements of the name of the Masterpieces Programme in that connection. The compromise that eventually was found, included the automatic incorporation in the Representative List of items proclaimed Masterpieces before the entry into force of the Convention (Art. 31.1 of the Convention) and the statement that that incorporation in no way should prejudge the inscription criteria that would be adopted for that List (Art. 31.2).

Leaving behind the 1989 Recommendation18. UNESCO organized eight regional expert meetings between 1995 and 1999 to assess

the 1989 Recommendation. The concluding, ninth meeting, held in 1999 in Washington D.C, discussed the reasons for its lack of success.26 One of the recommendations of the Washington meeting was that Member States should request that the General Conference of UNESCO “undertake a study on the feasibility of adopting a new normative instrument on the safeguarding of traditional culture and folklore.”27 A draft resolution to that effect (30C/DR.84) was duly submitted to the 30th General Conference (October 1999), and got endorsed. The Secretariat could then start to take action.

A determined DG19. That action was guided by the newly elected Director-General of UNESCO, Koichiro

Matsuura, who had made the establishment of an intangible cultural heritage convention one of the main themes of his first term.28 He was elected Director-General in November 1999, after he had served as Chairperson of the World Heritage Committee. The Japanese government financed most of the preparatory meetings for the Convention, as well as most of the costs of the Masterpieces Programme, which included preparatory assistance for many organizations and institutions that wanted to submit nomination files and the financing of a very large number of safeguarding projects for Masterpieces that were recognized under the Programme.

20. The Director-General declared at an information session in May 2001 that the Masterpieces Programme had been launched to compensate for the growing imbalance that was revealed by the World Heritage List with its overrepresentation of tangible heritage from the “North.” He wrote a few months later in the preface of a UNESCO publication that presented the first nineteen Masterpieces, which had been selected in 2001, that “[I]t is clear that the experience acquired in the course of this first Proclamation will contribute significantly to the reflection and debate concerning the normative instrument [i.e. the future convention] and that in time, these two programmes will inevitably become more effective by their combination.” He continued: “We will have at our disposal both a legal instrument and a list of forms of cultural expressions and spaces to be protected by a normative instrument”.29 He then envisaged a convention with a central list that would be a continuation of the list of the Masterpieces.

26 . Cf. Can (2001).27 . Cf. Final Conference Report, page 42; https://ich.unesco.org/doc/src/00111-EN.pdf28 . Cf. Aikawa-Faure (2009:22).29 . https://unesdoc.unesco.org/ark:/48223/pf0000124206/PDF/124206engo.pdf.multi .

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Massive support and vocal opposition (2001-2003)21. The Secretariat ordered a feasibility study30 and organized an initial exploratory expert

meeting in March 2001 in Turin. In May 2001, the Secretariat submitted to the 161st Executive Board an action plan prepared at the Turin meeting, and the feasibility study it had ordered. That session of the Board allowed the Secretariat to continue preparing the ground for the establishment of a new legal text (161EX/Decisions, 3.4.4). In the same spirit, in October 2001, by 31 C/Resolution 30, the General Conference invited “the Director-General to submit to it at its 32nd session a report on the situation calling for standard-setting and on the possible scope of such standard-setting, together with a preliminary draft international convention”. The majority of the Member States at that 31st session supported the view that the new instrument should be based on the World Heritage Convention.

22. A minority of the Member States were not convinced of the need to establish a convention for intangible heritage. In an unusual gesture, during the 31st General Conference eighteen of them, most of them from Electoral group I, some from the Caribbean region, addressed a letter to the Director-General to share their feeling that it was too early to decide what type of document would be elaborated.31 Largely the same group would later be opposed to the principle of following the model of the World Heritage Convention for the future convention, in particular as far as its listing system was concerned.32

Meetings23. The Secretariat organized a large number of dedicated expert meetings on different

levels during the period that the Convention and the Operational Directives were being prepared. It first organized five preparatory expert meetings (the numbers a to e below), then three sessions (the numbers f, g and i) and an “intersession” (h) of an Intergovernmental Meeting of Experts that prepared and finalized the text of the Convention. Between the adoption of the Convention (October 2003) and the adoption by 1.GA of the first set of Operational Directives, the Secretariat organized four more expert meetings (j, k, l, m), to inform the debates in the Organs of the Convention.

EXPERT MEETINGS 2001–2007

(a) International Round Table: Intangible Cultural Heritage, Working Definitions; Turin, 14–17 March 2001;

(b) Intangible Cultural Heritage: Priority Domains for an International Convention; Rio de Janeiro, 22–24 January 2002;

(c) Select Drafting Group on the first draft of an international convention for intangible cultural heritage; Paris, 20–22 March 2002;

(d) Expert meeting on Intangible Cultural Heritage – Establishment of a Glossary; Paris, 10–12 June 2002;

(e) Second meeting of the select drafting group of a preliminary international convention on Intangible Cultural Heritage; Paris, 13–15 June 2002;

(f) First session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage; First IME Session; Paris, 23–27 September 2002;

(g) Second session of the Intergovernmental Meeting of Experts on the

30 . Blake (2001); CLT.2001/WS/8 REV)31 . Cf. Aikawa-Faure (2009 33–34).32 . Hafstein (2018: 73) mentions that the National UNESCO Commissions from the EU countries in 2002

echoed that the Masterpieces Programme was not a convincing precedent for a list-based approach to safeguarding intangible heritage.

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Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage; Second IME Session; Paris, 28 February – 3 March 2003;

(h) Intersessional Working Group of Government Experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage; the Intersession; Paris, 22–30 April 2003;

(i) Third Session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage; Third IME Session; Paris, 2–14 June 2003;

(j) Expert meeting on inventorying Intangible Cultural Heritage; Paris, 17-18 March 2005;

(k) Criteria for inscription on the lists established by the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage; Paris, 5–6 December 2005;

(l) Expert meeting on Community involvement in Safeguarding Intangible Cultural heritage: Towards the Implementation of the 2003 Convention; Tokyo, 13–15 March 2006;

(m) The Lists established in the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage; New Delhi, 2–4 April 2007 – proposed by India, accepted by 1.COM.

Links to these meetings, their working and information documents, and their reports can be found on the website of the Convention under “events” (“see all events”), ordered by year.33

Two exploratory meetings24. UNESCO first organized two exploratory expert meetings:

(a) Turin, 14-17 March 2001: International Round Table: Intangible Cultural Heritage, Working Definitions. This meeting came up with a new definition for “intangible cultural heritage” and discussed the expressions “community”, “ownership” and “human rights” in relation to the possible new legal instrument. The terms “intangible heritage” and “safeguarding” were endorsed; some doubts were raised about the concept of “Masterpieces.” “Outstanding universal value” as a criterion for intangible cultural heritage was rejected, but “outstanding specific value” (i.e. for the community concerned) was retained; hierarchical approaches were to be avoided. For more information, see the meeting’s Final Report. The meeting produced an Action Plan, which was sent for information to the 31st General Conference (October 2001).34

After that session of the General Conference, which had decided that the new instrument would be a convention, another exploratory meeting was organized:

(b) Rio de Janeiro, 22–24 January 2002: Intangible Cultural Heritage: Priority Domains for an International Convention. Among the outcomes of that meeting were: the future convention should be modelled after the World Heritage Convention, with national registers and an international list for intangible cultural heritage, with which the Masterpieces Programme was to merge. UNESCO was advised to convene a drafting group, followed by international meetings of experts, for the elaboration of a draft convention, and for the establishment of a “glossary.” For more information, see the meeting’s Final Report . 35

Two drafting group meetings and a glossary meeting25. UNESCO then organized – as recommended by the Rio meeting – two meetings of a

so-called Select Drafting Group that was to lay the basis for the discussions in the

33 . https://ich.unesco.org/en/events34 . For the Action Plan adopted by the Turin meeting, see CL/359735 . https://ich.unesco.org/doc/src/00074-EN.pdf

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ensuing Intergovernmental Meeting of Experts. Just before the second meeting of that group, a “Glossary meeting” was held.

Most of the meetings (c) to (i) were invited to work on the basis of consecutive draft versions for the Convention that were prepared by the Secretariat. The Secretariat also prepared the usually succinct reports of the various preparatory sessions and meetings.36 In this way, the Secretariat played an essential role in the preparation of the text of the Convention.

(c) 20–22 March 2002; Select Drafting Group on the First Draft of an international convention for intangible cultural heritage. Input: First Draft,37 output: Second Draft; see the Report .

(d) 10–12 June 2002; Expert meeting on Intangible Cultural Heritage – Establishment of a Glossary. Output: a new definition of Intangible Cultural Heritage and a Glossary.38

(e) 13–15 June 2002; Second meeting of the Select Drafting Group of a preliminary international convention on Intangible Cultural Heritage. Input: Second Draft,39 output: Third Draft, see the Report .

26. Between twelve and twenty-five experts were invited to each of the meetings (a) to (e), to speak in their personal capacity. They represented all UNESCO electoral groups; many of them participated in two or more of these meetings; some of them were also members of the Masterpieces Programme’s Jury. Starting with the Rio meeting (the b-meeting) and ending with the last IME session (the i-meeting) eight consecutive meetings were chaired by Mr Mohammed Bedjaoui, a high-ranking Algerian statesman and former president of the International Court of Justice. He did so in close contact with the Director-General, who came to address most of the meetings.

Drafts27. The March 2002 First Draft of the Convention was largely based on the World

Heritage Convention, which would profoundly mark the discussions throughout the process, in particular those about the future listing mechanism. The provisions proposed in the First Draft differed from those in the World Heritage Convention mainly in regard to terminology. The major adaptations were the use of the term “intangible cultural heritage” instead of “world heritage” or “cultural and natural heritage”, and the substitution of the expressions “outstanding universal value”, “protection” and “properties” by “outstanding specific value”, “safeguarding” and “items”, respectively.40

As and when the discussions advanced, new preliminary drafts were produced and submitted to the next meeting. Six drafts were prepared in all.

The listing system proposed in the First Draft 28. Article 10 of the First Draft proposes for discussion:

(article 10.1) States Parties prepare inventories of items suitable for being listed at the international level on the Intangible Cultural Heritage List;

36 . As Hafstein (2018: 25-26) notes, these reports were “instrumental in creating the convergence they portray.”

37 . First draft (March 2002): Proposed text for the preliminary draft convention for the protection of intangible cultural heritage; p. 76-98 of https://ich.unesco.org/doc/src/05352-EN.pdf

38 . For the resulting Glossary, see https://ich.unesco.org/doc/src/00265.pdf39 . Second Draft (10 June 2002): Preliminary-Draft International Convention on Intangible Cultural Heritage;

GRR2/CH/2002/WD/540 . https://whc.unesco.org/archive/convention-en.pdf

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(article 10.2) The Committee establishes an international Intangible Cultural Heritage List on the basis of those inventories, in which it will include intangible cultural heritage that is considered as having outstanding specific value;

Article 10.3: The Committee establishes a List of Intangible Cultural Heritage in Danger for properties on the ICH List for which major action and financial assistance is required.

As one can see, this system is very close to the listing system under the World Heritage Convention, with its inventories that – like the (national) tentative lists in the World Heritage system - cater in the first place for an international intangible heritage list, and with a sub-list for endangered elements.41 The first meeting of the Select Drafting Group left this proposed listing system virtually unchanged, as is testified by the Second Draft that was prepared after that meeting.

29. At the 164th Executive Board, which took place between the two meetings of the Select Drafting Group, several Board Members, while accepting that the World Heritage Convention would be followed as a model for the new convention, had emphasized that the “specificity of the intangible cultural heritage” should be recognized in the preliminary draft for the Convention.

Changes concerning the listing system in the Third Draft30. The Third Draft was prepared after the second meeting of the Select Drafting Group

(the e-meeting), to serve as the basis for discussion for the first IME session (the f-meeting). In that Third Draft, which was entitled First preliminary draft of an international convention for the safeguarding of the intangible cultural heritage, only few changes could be observed, as far as the proposed listing system was concerned.42

The name of the List of Intangible Cultural Heritage in Danger had changed to List of Intangible Cultural Heritage in Need of Urgent Safeguarding, a name that was to stay and that one finds in the final text of the Convention. Another change was that identification for inscription on that list “shall be conducted in consultation with the Scientific Committee […].”43 Further, while article 11 of the Second Draft already had mentioned that “Intangible Cultural Heritage not included in the Intangible Cultural Heritage List may still have outstanding universal value for other purposes,” the second meeting of the Select Drafting Group added that intangible cultural heritage that would not be included in that list, would still fall under the safeguarding obligation of the State.44

The Intergovernmental Meeting of Experts: three sessions and an intersession31. For the final phase of the preparation of the 2003 Convention, the Secretariat

organized an Intergovernmental Meeting of Experts (IME) that consisted of three sessions organized as one ongoing meeting, to save time. The First IME Session started with the blessing of the Third Round Table of Ministers of Culture that was

41 .Cf. Art. 11 of the World Heritage Convention.42 . Third draft (26 July 2002); see CLT-2002/CONF.203/343 . The Scientific Committee remained in the text, though in brackets, until the last but one draft. The Third

IME Session (June 2003) decided not to make a provision for it in the Convention, preferring to give the Committee the possibility to devise itself the way in which it would want to be assisted for the evaluation of nomination files.

44 . The Third Draft (article 6.6) included the requirement for the “widest possible participation of the communities that create, maintain and transmit intangible cultural heritage […] when taking measures to safeguard such heritage […] and to involve these communities in the management of their heritage.” The gist and much of the wording of that article made it all the way to Article 15 of the Convention, which of course speaks about “communities, groups” and ”individuals,” and not of “communities” only.

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called, Intangible cultural heritage, a mirror of cultural diversity, and which was held in Istanbul on 16 and 17 September 2002.45

(f) 23–27 September 2002; First IME Session. Much time was lost on filibustering. Few results were achieved – not enough to justify the preparation of a new preliminary draft. Member States were invited to send in comments and amendments on the Third Draft that had been distributed before the session.46 Many – often very detailed – reactions were received.

(g) 24 February–1 March 2003; Second IME Session. Extensive compilations of comments and amendments received from Member States were made available beforehand. Many of the comments were about the listing of intangible cultural heritage under the proposed convention, on which Member States’ positions differed greatly. A drafting committee of eighteen governmental experts prepared proposals for various articles and reported to the plenary. Although this session made progress on the definitions of “intangible cultural heritage” and “safeguarding”, as well as on the objectives for the proposed convention and the obligation for States Parties to draw up inventories at the national level, the overall progress was not considered to be satisfactory and a so-called Intersessional Working Group was mandated to help advance the discussions.47 There is a short report by the Secretariat of the Second IME Session 48

(h) 22–30 April 2003; Intersessional Working Group of government experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage. The Working Group worked on the basis of a so-called “semi-consolidated” Fourth Draft. This draft marked an important leap forward as it could take into account the comments received from the Member States.49 The Working Group succeeded in formulating proposals for most of the articles that had not yet been discussed in the first two IME sessions. The - revised - articles dealing with the future listing mechanisms were not dealt with in any detail; that job was left to the Third IME Session. After the Intersession, a new, “consolidated” Fifth Draft was prepared.50 For the Report of the Intersession see CLT-2003/CONF.206/3.

(i) 2–14 June 2003; Third IME Session. This session worked under high pressure, since deadlines were tight; it did so on the basis of the Fifth Draft. It produced the final, Sixth Draft, which was called the Preliminary Draft Convention.51 For the report of the session, cf. CLT-2003/CONF.206/4. That last draft was presented to the 167th Executive Board in September 2003. The Board discussed it briefly and sent it on, with positive advice, to the 32nd General Conference, which duly adopted it as the text for the Convention for the Safeguarding of the Intangible Cultural Heritage on 17 October 2003.52 The fact that the 2003 Convention originally was expected to be ready for

45 . The participating and represented ministers in their Final Communiqué (points 7(v) and 7(viii)) expressed, inter alia, their appreciation for the Masterpieces Programme and their support for the establishment of a convention for the safeguarding of intangible cultural heritage - https://ich.unesco.org/doc/src/00072-EN.pdf

46 . CLT-2002/CONF.203/547 . Ten countries were represented by an expert both in the drafting committee and in the Intersessional

Working Group: Greece, Hungary, Czech Republic, Argentina, India, Japan, Senegal, Algeria, Egypt and Oman.

48 . CLT-2003/CONF.205/649 . Fourth draft (April 2003): Semi-consolidated draft version; CLT-2003/CONF-206/150 . Fifth draft (May 2003): Consolidated Preliminary Draft; CLT-2003/CONF.206/251 . Sixth draft (29 July 2003): Preliminary Draft Convention; 167 EX/22, annex III52 . In the literature, one can read that 120 Member States voted in favour of adoption, none against, while

eight abstained. The nought and eight were easily counted (delegations voted by raising their hands). The number of 120 was, however, based on a calculated guess made from the podium of Room I of UNESCO HQ by the ADG for Culture. A fourth category was formed by a few delegations who left the room just before the vote, to re-enter immediately afterwards.

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adoption in 2005 did not leave enough time to reach a solid consensus for a number of issues.53

Evolutions concerning the listing mechanisms during and between the First and Second IME Sessions

32. At the First IME Session (September 2002), it was agreed that the World Heritage Convention could be taken as a source of inspiration, but not as a model. The principle of national inventories feeding into an international list was maintained. The Masterpieces Programme was to be linked to the new convention. Various alternatives were put forward for a list, or lists that would be the intangible heritage counterpart of the World Heritage List, such as: (i) an intangible cultural heritage list of specific and exceptional heritage, with a sub-list of heritage at risk; (ii) a list of intangible cultural heritage at risk only; (iii) a world inventory of intangible cultural heritage only; and (iv) a list of best practices.

There was debate whether criteria for inscription should be taken up in the text of the Convention; it was decided not to do so.54 This first session, however, “did not finish its work.” 55

33. Two weeks before the Second IME Session (February/March 2003) the Secretariat disseminated two preciously informative working documents in which it had presented comments and amendments (mainly to the Third Draft) that it had received from the Member States up till late in January; these were:

- a Compilation of amendments from Member States concerning the Convention for the Safeguarding of the Intangible Cultural Heritage;56 and

- a Compilation of general comments from Member States concerning the preliminary draft Convention for the Safeguarding of Intangible Cultural Heritage.57

At the same time the Secretariat disseminated an information document, entitled Positions of Member States concerning the principle of list(s) of intangible cultural heritage that already had been prepared in October 2002, just after the First IME Session.58

34. It appears from those documents that most Member States from Latin America, Asia, Africa and Eastern Europe were more or less supportive of a listing system as had been proposed in the Third Draft (see para. 28 and 30 above). In UNESCO’s Governing Organs, many of these States had repeatedly expressed support for a convention that would attribute the same value and visibility to intangible heritage as the World Heritage Convention did to tangible heritage.

As a rule, Northern European Member States were rather sceptical about the proposed listing system. Some of them – mainly Scandinavian countries - proposed

53 .Originally, the Secretariat foresaw a preliminary draft for the Convention to be submitted to the 32nd General Conference in 2003, and a final draft, to be submitted for adoption to the 33rd General Conference in 2005, as was indicated by the Director-General in his Preliminary Report on the situation calling for standard-setting and on the possible scope of such standard-setting of July 2002) - CLT-2002/CONF.203/4 . Early in 2003, however, Member States that were more favourable towards the future 2003 Convention and Member States that were more favourable towards the future 2005 Convention, agreed to work constructively towards the adoption of the Convention for the Safeguarding of the Intangible Cultural Heritage in 2003 and of what was to become the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005.

54 .Cf. Blake (2006)’s discussion of Article 16.1 of the Convention.55 .Cf. the first page of the report of the Second IME Session: CLT-2003/CONF.205/656 .CLT-2002/CONF.203/3 Rev: English|French57 .CLT2003/CONF.205/5: English|French58 .https://ich.unesco.org/doc/src/05380.pdf (alternatively in French and English)

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having a list of (best) safeguarding practices, in addition to other mechanisms, or alone. Countries from the “North” generally did not feel a need to give visibility to their intangible cultural heritage. They had not invested deeply in the Masterpieces Programme either, and did not want a convention for intangible cultural heritage to become an additional burden for the budget of the Organization. Consequently, in their written comments some of these countries also resented introducing obligatory contributions to a fund for intangible heritage, or establishing more than one governing organ.

A few States from the Caribbean subregion had serious reservations about the listing system under discussion, and proposed alternative ideas.

35. During the Second IME Session, a majority supported a threefold listing system consisting of (i) National Inventories drawn up by the States Parties ”according to [their] means and circumstances”; (ii) a List or Register of Intangible Cultural Heritage in Need of Urgent Safeguarding; (iii) an International Register (a new name for the Intangible Cultural Heritage List). The latter two would be fed by the national inventories and follow the “logic” of the Masterpieces Programme, “to ensure the visibility of the intangible cultural heritage and promote cultural diversity.” The changes were considerable: the national inventories were no longer meant to include only elements suitable for listing at the international level. The Urgent Safeguarding List, which was placed before the Intangible Cultural Heritage List, was no longer presented as a sub-list of the Intangible Cultural Heritage List.

The Intersessional Working Group (April 2003) and the Fourth Draft36. The Fourth Draft was compiled by the Secretariat on the basis of the discussions at

the first two IME sessions, and - in particular - on its analysis of the close to 1350 comments and amendments that had been sent in by Member States in reaction to the Third Draft and the debates held during the First IME Session.

The Fourth Draft presented in its article 11 a system consisting of:

National Inventories; a Register (or List) of Intangible Cultural Heritage in Need of Urgent

Safeguarding; a List of Treasures (or Masterpieces) of the World Intangible Cultural Heritage

(again a new name for the Intangible Cultural Heritage List); and a new mechanism, entitled Programmes, projects or activities for the

safeguarding of the Intangible Cultural Heritage (Art. 11.D).

The List of Treasures, or Masterpieces, was meant to ensure greater visibility for intangible cultural heritage and to showcase cultural diversity as manifested in that heritage. Elements for that List were to be selected on account of their “cultural importance for the community concerned” and no longer on account of “exceptional value.” The Masterpieces were to be integrated into that list.

37. The new article 11D, which had first been formulated as an amendment by Argentina, at the same reflected suggestions from a number of States from Group I.59 It was not discussed in any detail by the Intersessional Working Group, but was endorsed with some organisational and textual changes at the Third IME Session, and was incorporated into the sixth and Final Draft as its Article 18.

During the meeting of the Intersessional Working Group, four Caribbean States tabled major amendments to the proposed listing mechanisms – see paragraph 40. Their proposals, which were not discussed at that meeting Group, would have an important impact on the discussions during the Third IME Session.

59 . Blake (2006:86-88)

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The Third IME Session working on the basis of the Fifth Draft38. The main features of the listing system that was presented in the Fifth Draft had hardly

changed since the Fourth Draft: National Inventories (Art. 11A); a Register (or List) of Intangible Cultural Heritage in Need of Urgent Safeguarding (Art. 11B); a List of Treasures (or Masterpieces) of the Intangible Cultural Heritage) (Art. 11C) and a mechanism for selecting programmes, projects and activities for the safeguarding of the intangible cultural heritage that best satisfy the principles and objectives of the Convention (Art. 11D).

39. The Third IME Session made some salient changes as to the presentation of the inscription system: the inventorying obligation was moved to Chapter III, Safeguarding of the Intangible Cultural Heritage on the National Level, whereas the international lists and the future Register found their place in Chapter IV, Safeguarding of the Intangible Cultural Heritage on the International Level. The List of Intangible Cultural Heritage in Need of Urgent Safeguarding, which was readily accepted, was placed after the List of Treasures [Masterpieces] of the World Intangible Cultural Heritage, whose name in extremis became the Representative List of the Intangible Cultural Heritage of Humanity.

That change to the order of presentation of the two Lists was proposed by a governmental expert who did not want the Urgent Safeguarding List and the article dealing with the future Register (“both about safeguarding”) to be separated by a list for “healthy” intangible heritage. Another delegation supported that proposal, no one spoke out against it and the President, who had other worries, quickly concluded – on the very last morning of the debates – that that reversed order had been adopted.

A Caribbean proposal for an open-ended register40. During the Third IME Session, four Caribbean States (Saint Lucia, Barbados,

Grenada and Saint Vincent and the Grenadines) finally could present their proposals for an alternative listing mechanism that would include an International Register of the Intangible Cultural Heritage. That register would function as an open-ended list without a selection procedure on the international level, on which States Parties under certain technical conditions could enter intangible heritage elements. This register was proposed instead of the List of Treasures or Masterpieces. It would not be “elitist”, would not introduce hierarchies, and would be radically different from the World Heritage List.60 The proposal was discussed at length, but eventually rejected, since a majority preferred a list that would have a similar modus operandi as the World Heritage List, thus showing that intangible cultural heritage is of no lesser importance than tangible heritage. Some also feared that a more or less open-ended register might ultimately become unmanageable. An open-ended list or register was not attractive either to States looking for a high-status haven for their Masterpieces.

Articles 16 and 17 of the final, Sixth Draft 41. Article 16, which presents the Representative List, and article 17, which presents the

Urgent Safeguarding List, are succinct and precise. They just mention the names of these two Lists, indicate their goals and impose the obligation upon the Committee to prepare, for adoption by the General Assembly, the “criteria for the establishment, updating and publication” of these Lists. In addition to that, article 7(g)(i) of the Convention imposes upon the Committee the obligation to develop “objective selection criteria” for the mechanisms presented in articles 16, 17 and 18. One would like to recall here that the Convention also states that the criteria of the Masterpieces Programme should not prejudge the criteria that the Committee has to develop for the Representative List (cf. Article 31.2).

60 .For a description of the discussion by an observer in the Icelandic delegation, see Hafstein (2018: 73-74).

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Article 18 of the final, Sixth Draft42. Article 18, with the long name Programmes, projects and activities for the

safeguarding of intangible cultural heritage, which presents the Register-to-be, is more descriptive but less precise than articles 16 and 17. It does not mention the mechanism it is meant to introduce.

The Third IME Session accepted, without having the time to discuss it at length, the article. Some editorial changes were made. A proposal to explicitly establish through Article 18 a “corpus”, “list” or “register” of best practices was made by a few Member States, some of whom had already made similar suggestions in their comments on the Third Draft. The proposal was, however, rejected by others and therefore not included from Article 18.

The future functioning of the Register-to-be and the Urgent Safeguarding List have not been discussed in depth during any of the IME sessions, nor at the Intersession.

The Representative List - a non-consensual compromise43. Lack of agreement about the “visibility” list was hidden under a compromise text, or

rather under a compromise name. The expression “Treasures” (or “Masterpieces”) was dropped from its name. The seemingly non-committal term “representative”, which was not defined, was added at the beginning of the name and the expression “of Humanity” (as a counterpart to “World” in the name of the World Heritage List) to the end.61 The result was Representative List of the Intangible Cultural Heritage of Humanity. The objectives of that list are indicated as “to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity” (Article 16.1 of the Convention).

44. That List could be imagined as a counterpart, of sorts, to the World Heritage List by those who wanted to do so, and as a possibly open-ended, non-elitist list by those who were more inclined towards the Caribbean model. When States ratified the Convention, they did so with different interpretations and with different intentions as far as their future use of - in particular - the Representative List was concerned.62

Operational Directives – the Committee’s first task 45. The Convention does not contain any indication about relations between the Lists, nor

about criteria for inscription or selection. It does not contain indications either for provisions about desirable numbers of inscriptions, duration of inscription, nor about procedures for the evaluation and examination of nominations, or for dealing with listed elements that no longer meet the criteria for inscription. Crucial concepts like “representative”, “community”, “groups” and “individuals”, too, were left to be defined, or not to be defined.63

Consequently, and in view of the concise wording of Articles 16 and 17 and the less precise wording of Article 18 of the Convention, the Organs of the Convention had a

61 . In Blake (2006)’s comment on Article 16 one can read that the use of “humanity”, instead of “world”, “allows for international recognition without reducing the level of ‘ownership’ felt by the cultural community to this heritage.”

62 .This background makes it difficult for the Secretariat and the Committee to carry out Recommendation 9 of the 2013 IOS Report: “Clarify to State Parties and other stakeholders all misconceptions regarding the purpose and use of the Representative List.”

63 . The 2013 IOS Report in its paragraph 211 introduced its own interpretation of the adjective “representative”, or rather of a noun that is derived from it: “Moreover, the important notion of ‘representativeness’ that underpins this list (as ‘outstanding value’ does for the World Heritage List) and that represents the contribution of ICH to cultural diversity worldwide is not always understood by State Parties.”

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free hand to rethink the listing mechanisms when ODs for the implementation of Chapter IV of the Convention had to be developed.

The first Committee46. Soon after the entry into force of the Convention (20 April 2006), the first General

Assembly of the States Parties (1.GA, Paris, 27–29 June 2006) elected the first Intergovernmental Committee (1.COM), which held its first ordinary session on 18 and 19 November 2006 in Algiers.64 1.COM, as requested by 1.GA (Resolution 1.GA 7A), started discussions about the development of the first set of Operational Directives that had to include, in accordance with Articles 7.g(i), 16.2, 17.2 and 18.1 of the Convention, inscription criteria and regulations for the Lists and criteria for the selection of safeguarding practices.65

1.COM (Algiers, November 2006)47. The Secretariat submitted to 1.COM a document presenting ten tentative criteria for

the inscription of elements on the Representative List.66 It had prepared itself for this task by organizing an expert meeting, Criteria for inscription on the lists established by the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 5–6 December 2005), and by submitting the results of that meeting to the participants of an Expert meeting on Community involvement in Safeguarding Intangible Cultural heritage: Towards the Implementation of the 2003 Convention (13–15 March 2006, Tokyo).67 At that second meeting, the tentative inscription criteria that had resulted from the first meeting were fine-tuned. The experts had suggested that largely the same criteria, to be expanded with one or two additional criteria, might be used for the Urgent Safeguarding List. The Secretariat also submitted suggestions for starting the discussion about regulations for the management and functioning of the Lists.

48. After an initial round of discussions, the Committee, by means of Decision 1.COM 7, requested the Secretariat to submit to it at its following session a follow-up proposal for inscription criteria for the Representative List that would take into account the suggestions and ideas that had emanated from the debates at its first session, as well as the comments that States Parties had been requested to send to the Secretariat.

The New Delhi expert meeting (April 2007) and 1.EXT.COM (Chengdu, May 2007) 49 1.COM had accepted India’s offer to host an expert meeting to advance the

discussions. That meeting, entitled The Lists established in the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, took place from 2 to 4 April 2007 in New Delhi.68 There, the experts discussed the nature of the two Lists in detail, elaborated draft inscription criteria for the Lists, discussed other regulations related to them and held initial discussions about Article 18. Their findings were transmitted to the Committee, which endorsed the proposed criteria with minor adaptations during a thorough debate at its first extraordinary session (1.EXT.COM, 23-26 May 2007, Chengdu).69

64 . For the summary records of 1.GA see ITH/06/1.GA/CONF.201/865 . For the summary record of 1.COM see ITH/07/1.EXT.COM/CONF.207/1266 . For these draft criteria see ITH/06/1.COM/CONF.204/7 67 .For reports see, respectively, https://ich.unesco.org/doc/src/00035-EN.pdf and

https://ich.unesco.org/doc/src/00034-EN.pdf68 . For the summary report see https://ich.unesco.org/doc/src/00186-EN.pdf; for that meeting’s working

document proposing criteria see https://ich.unesco.org/doc/src/00185-EN.pdf69 . For the summary records of 1.EXT.COM, see ITH/07/2.COM/CONF.208/3

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2.COM (Tokyo, September 2007) and 2.GA (Paris, June 2008)50. The discussions about Operational Directives for the Lists and Register were finalized

at 2.COM (3–7 September 2007, Tokyo).70 At 2.EXT.COM (Sofia, 18–22 February 2008), the Committee finalized the totality of the first set of ODs. At the Sofia session, particular attention had to be paid to Chapter III of the ODs, Participation in the Implementation of the Convention.71 The resulting set of ODs was subsequently discussed and approved by the General Assembly of the States Parties (2.GA, Paris, 16–19 June 2008).72

The first chapter of that first set of ODs included discrete sets of inscription criteria for the two Lists and for the newly created Register of selected programmes, projects and activities.73 It also included procedures for nomination, examination, evaluation, decision making and dissemination for these three mechanisms. It further contained succinct ODs stating that elements may be transferred from one List to the other or be removed from a List, which have not changed since then. A transitional timetable was created for the first inscriptions on the Lists. Consequently, the first inscriptions on the Lists of the Convention could take place in 2009. The Committee had already integrated the ninety elements that had been proclaimed Masterpieces between 2001 and 2005 in the Representative List in 2008, at 3.COM.

Turbulent discussions at 2.COM51. The Secretariat of the Convention had prepared for discussion at 2.COM a preliminary

document concerning possible regulations for the Lists that was based on the discussions and outcomes of 1.EXT.COM. A different version of that document had, however, to be produced following instructions from the Secretariat in the wider sense. That new version (ITH/07/2.COM/CONF.208/6) was sent to the Committee, which raised multiple objections against it since it, i.e. the Committee, found that the document did not faithfully represent the results of its Chengdu session.

Main causes for the objections made by a majority of the Members of the Committee were:

- The Representative List was presented before the Urgent Safeguarding List, while 1.EXT.COM, considering the Urgent Safeguarding List as more central than the Representative List, had given the instruction to present in the ODs the Urgent Safeguarding List before the Representative List, in spite of their mutual order in chapter IV of the Convention (for an earlier movement in the other direction, see para. 39 above).

- Whereas 1.EXT.COM had decided that the Lists would be open-ended, in the revised document the Secretariat proposed that each State Party in principle could send in no more than one nomination per year for the two Lists together. In a footnote that is cited here, the Secretariat further had suggested that the Committee might wish to introduce a ceiling for the total number of nominations to be taken into account annually. Here is the footnote:

“Under the present financial circumstances and human resources available to the Secretariat, the submission of more than one nomination by a State Party per year will not be possible. The Committee may wish to consider fixing in the future an annual limit on the number of nominations which it examines every year. At the World Heritage Committee, the annual limit on the number of nominations it examines is currently set at 45.”

70 . For the summary record of 2.COM see ITH/08/2.EXT.COM/CONF.201/471 . For the summary records of 2.EXT.COM see ITH/08/3.COM/CONF.203/572 . For the summary record of 2.GA see ITH/10/3.GA/CONF.201/INF.1.1 73 . For the first (2008) version of the ODs see https://ich.unesco.org/doc/src/ICH-Operational_Directives-

2.GA-EN.pdf

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- For the evaluation and examination of the two Lists, similar and relatively intensive procedures were proposed, whereas 1.EXT.COM had stated that it wanted a relatively intensive procedure for the Urgent Safeguarding List and a lighter procedure for an open-ended Representative List.

World Heritage Influences52. The Secretariat had not only proposed that the Committee could inscribe or not

inscribe an element, but also that it might refer or defer nominations. That fourfold set of options had been copied from the World Heritage system; it was for that reason quickly rejected.

When it presented the problematic document to 2.COM, the Secretariat had emphasized that it had taken into account the limited capacities of the Secretariat as well as the need to ensure the good quality of the evaluation and examination processes. Some delegations considered, however, that the Secretariat had tried to mould the Representative List into a List of Masterpieces 2.0.

One delegation noted, for instance, that by proposing a limitation for the numbers of nominations that would be processed, the Secretariat had wanted to introduce through the backdoor the World Heritage’s criterion of “outstanding universal value”. At that juncture of time, anything reminding of the mechanism used for inscription on the World Heritage List, was considered as an attempt to introduce that criterion.

The way out53. The turbulent meeting was suspended and the document withdrawn; a new document

(ITH/07/2.COM/CONF.208/6 Rev.) was prepared over lunch on the basis of the Secretariat’s initial document and the Committee at the end of the day obtained the regulations it had envisaged.

In Tokyo, a clear majority of the Committee in fact envisaged an open-ended Representative List, with relatively light procedures, a vision that was close to the Caribbean proposal made at the Third IME Session (see para. 40 above).

Tokyo revisited: 2010–201654. In the following years the Committee had to reconsider some of the proposals it had

rejected at 2.COM. While the wording of the inscription criteria have hardly changed since 2008, the ODs dealing with regulations concerning submission, processing and evaluation of nominations did change in important ways74.

Both Lists, and the Register in principle had been open-ended, but soon, after large numbers of nomination files had been sent in by the States Parties in 2009 and 2010, in particular for the Representative List, a ceiling was imposed on the number of files that could be treated in the course of one cycle.75 The introduction of the ceiling had in the first place to do with limited capacities of the Secretariat to process, and of the Committee and its Body to examine and evaluate nominations.

55. As a result, States are not supposed to send in more than one file per year, while in principle at least one file will be processed per submitting State over a two-year period for the two Lists, the Register and the Fund (for international assistance) taken together (see OD 33 and 34 and Decision 11.COM 12). It was laid down in the ODs that if not all incoming nominations and requests that are received within one cycle can be treated, priority must be given to nominations for the Urgent Safeguarding List,

74 . The forms that States have to use when they want to nominate elements for inscription on the Lists or Register show that the wording, as well as the interpretation and implementation of certain inscription criteria by Secretariat, Evaluation Body and Committee have constantly been changing over time.

75 .See Committee Decision 6.COM 15 (2011) and GA Resolution 4.GA 5 (2012).

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to multi-national files and to States with the lowest number of past successful submissions – in that order (OD 34). The last aspect of the priority mechanism aimed at gradually redressing the considerable imbalances that were found after only two years between numbers of elements inscribed for different States Parties and different regions on the Lists of the Convention.

The introduction of a collective ceiling for diverse mechanisms brought about an administrative interdependence between these mechanisms that had not been foreseen by the intergovernmental experts that drafted the text of the Convention.76

56. In addition to that, procedures for evaluation and examination for the Representative and Urgent Safeguarding Lists later on were further aligned. The Subsidiary Body, consisting of six Committee representatives, which had evaluated nominations to the Representative List, was discontinued. To make up for that, the Consultative Body (consisting of twelve experts and NGO representatives), renamed the Evaluation Body, was from 2014 on tasked with the evaluation of all nominations, and many requests.77 Finally, the Organs of the Convention also accepted, at the proposal of the Evaluation Body, the introduction of a referral option, which – at 2.COM – had been rejected as a tool that was not appropriate for the 2003 Convention.78

CONSULTED PUBLICATIONS

Aikawa, N. 2007. The Conceptual Development of UNESCO’s Programme on Intangible Cultural Heritage. J. Blake (ed.), Intangible Cultural Heritage: Challenges and Approaches. Buillth Wells: Institute of Art and Law, pp. 43–72.

Aikawa, N. 2009. From the Proclamation of Masterpieces to the Convention for the Safeguarding of Intangible Cultural Heritage. L. Smith and N. Akagawa (eds), Intangible Heritage. London – New York: Routledge, pp. 13–44.

Blake, J. 2001. Developing a new standard-setting instrument for the safeguarding of the intangible cultural heritage - Elements for consideration. Paris: UNESCO (Doc. CLT.2001/WS/8 REV . )

Blake, J. 2006. Commentary on the 2003 UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage. Buillth Wells: Institute of Art and Law.

Can, A. et al. 2001. The 1989 Recommendation Ten Years On: Towards a Critical Analysis. P. Seitel (ed.), Safeguarding Traditional Cultures: a Global Assessment. Washington D.C.

Hafstein, V. Tr. 2018. Making Intangible Heritage, El Condor Pasa and Other Stories from UNESCO. Bloomington: Indiana University Press.

IOS Report; see UNESCO 2013.

UNESCO 2013. Evaluation of UNESCO’s Standard-setting Work of the Culture Sector, Part I – 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, IOS FINAL REPORT – prepared by Barbara Torggler and Ekaterina Sediakina-Rivière. Paris: UNESCO - https://ich.unesco.org/doc/src/IOS-EVS-Pl-129_REV.-EN.pdf

76 . The IOS Report (para. 200 and 223) found already in 2013 that the introduction of the ceiling mechanism, had put the four mechanisms that were concerned by it in competition, to which it ascribed the underuse of the Register and the Urgent Safeguarding List.

77 .That move had been recommended in the 2013 IOS Report, which advocated that the same standards be applied in the evaluation of nomination files for both Lists, since “[T]he fact that the members of the Subsidiary Body are representatives of State Parties […] raises considerable discontent and concerns about possible conflicts of interest.” (para 213).

78 .The referral option for the Representative List was introduced in the 2014 version of the ODs, for the other mechanisms it was introduced in the 2016 version.

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Sherkin, S. 2001. A Historical Study on the Preparation of the 1989 Recommendation on the \ Safeguarding of Traditional Culture and Folklore: Preliminary Results. P. Seitel (ed.)

Safeguarding Traditional Cultures: a Global Assessment. Washington D.C.:Smithsonian Center for Folklife and Cultural Heritage.