During the annual Smithsonian Folklife Festival in Washington D.C. on June 20, 1999, a group of UNESCO delegates, outside observers and Smithsonian staff held meetings to investigate the state of traditional culture and consider the protection of the world's intangible cultural heritage. The conference was part of an evaluation requested by UNESCO on the content and efficacy of the 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore.
The UNESCO Recommendation is the only international instrument that specifically addresses the needs of traditional or local culture, and attempts to further recognition of intangible heritage as a recent development in international cultural heritage laws. (Blake)(1) While considering the problem of what to protect, several conference discussions centered on the need to redress some of the concepts and language used in the document itself, such as notions of "traditional" (first noted in the 1972 World Heritage Convention), and the problematic of discussing "culture" as an external artifact rather than a set of processes and practices (McCann et al.). The conference invited community cultural activists, scholars, and members of UNESCO National Commissions from twenty-seven countries to formulate new policy recommendations to UNESCO and its Member States.
The internationalist model upon which UN bodies are based relies upon the stability of nations and states. As early as 1970, Boutros-Ghali cautioned Member States to be cognizant of the structural inequalities within and between them, especially with respect to resources. (B. Boutros-Ghali, 1970) An international concern with global heritage must continue to incorporate this understanding. As a component of national identity, the perspectives of traditional and folk cultures have become increasingly important in defining transnational agenda. In Latin America, for example, concerns over cultural preservation have resulted in new policies aimed at deterring the destruction of historic and archaeological sites, generally thought to be reminiscent of an "Indian" (i.e., less desirable) past. Now these monuments of cultural heritage stand as assertions of national identity; in Peru, for example, Incan cultural sites hold prominence in public political debates (Atwood, 2000). These contests over cultural preservation have enabled some indigenous peoples to assert their identities in making claims to a heritage very much lived. As McCann et al. note:
The policy to be developed...must be systematically informed by this fact: there can be no folklore without the folk, no traditional culture without living participants in a tradition.
With this in mind, planning for the conference proceeded in two principal directions: increased representation of local, community-based cultural workers, and greater emphasis on issues concerning the protection of living traditions.
Working Group 1: Intangible and Tangible Cultural Heritage
The first of the working groups was composed of cultural workers and scholars, many of whom are active members of the local communities they work in and study. Their knowledge and perspectives reflect their years of struggle to help local cultures survive.
In her paper, "Everything Relates, or a Holistic Approach to Aboriginal Indigenous Cultural Heritage," Australian Robyne Bancroft articulated two sets of related issues that emerged from the grassroots perspectives in the group. Her paper both asserts the holistic connections between land, women's matters, justice, and burial rights (among other forms of cultural knowledge and practices), and indicates the importance of such an integrated perspective in developing and administering legal protections for local communities. These two sets of issues -- holistic perspectives on, and legal protections of, local communities -- emerged in discussion in several forms.
The necessary relationships between cultural knowledge, economic production, and administrative practice were expressed at a more general level in the explicit rejection of some of the UNESCO-mandated dichotomy between tangible and intangible cultural heritage. Participants felt that the two are often entwined in relationships of mutual support and interrelated meaning. Even the more general distinction between natural and cultural heritage was challenged by Hawaiian hula scholar and cultural activist Pualani Kanaka'ole Kanahele, who observed:
My cultural identity is that of a native Hawaiian, someone who comes from the oceans. We are ocean people. We are island people. And if we identify ourselves with our environment, then what will our cultural identity be twenty years from now, when [because of commercial exploitation] there is little or no environment left?
Thus, a framing consideration of the Action Plan states that the conference is "[c]ognizant of the impossibility of separating tangible, intangible and natural heritage in many communities." This also calls into question a Western institutional perspective that draws distinctions between kinds of culture. The group affirmed a holistic understanding of UNESCO's cultural focus and urged the organization to purposefully situate its work within the context of other international organizations that affect the lives of local communities.
The importance of finding legal means for protecting local cultures finds expression in the approved Action Plan, namely, in the need to "[d]evelop legal and administrative instruments for protecting traditional communities -- who create and nurture traditional culture and folklore -- from poverty, exploitation and marginalization." Three Native American spokespeople added their voices to Robyne Bancroft's and drew conclusions from their experiences. Miguel Puwainchir, an Ecuadorian, spoke of his Shuar peoples' struggle to create a legal and administrative space for local cultures to assert their needs within the apparatus of nation-states. He stressed the utility of "interculturality" -- a mutual, publicly expressed respect for the cultures of the communities within a nation -- as a civic value in creating a space to live. Russell Collier reported on the strategic gains made in his Git...an peoples' land case wherein oral traditions were collected as legal evidence and have been accepted by a Canadian court in the re-territorialization of indigenous land boundaries. Andy Abeita (Isleta Pueblo) described his efforts to have trademark protection applied to Native American crafts and his success as a key spokesperson working within the Department of the Interior's American Indian Arts and Crafts Board to forge these protective measures (see excerpts from "American Indian Arts and Crafts: A Study on Handcrafts and the Industry").
Working Group 2: Legal Issues
Issues raised in Working Groups 1 and 2 necessarily overlap. Overviews of legal problems included assessments of various approaches taken by UNESCO (Prott, Carneiro da Cunha, Thomas), and the variety of intellectual property rights (IPR) and protections of cultural heritage (Blake, Simon). Legal applications apply to trademark, patent, trade secrets, and copyright. (Posey, CSQ 15:3) These mechanisms are largely deemed inadequate to address the needs of indigenous and folk communities.
In light of perceived gaps in the law, several recommendations were made. First, the group recognized that some cultural restrictions serve as reasonable protective steps against appropriation without compensation. Certain provisions find parallel in the law, such as in "silent" contracts in uniform commercial codes (e.g., warranties). Berman raised issues of silence and secrecy in relation to the public domain. She linked land rights to art rights in indigenous peoples' claims to cultural and intellectual properties. She further suggested that claims to title might make a stronger case than claims to copyright in asserting rights to cultural property.
Second, the group suggested the creation of a non-governmental body that would serve as a channeling function, controlled by tradition bearers such as collective rights organizations. Summary statements of regional and national concerns -- for example, the concerted work of the Aboriginal and Torres Strait Islander Commission (ATSIC) presented by Australian representatives Preston Thomas and Mike Davies -- highlighted the problem of copyright enforcement for Australian Aboriginal artists.
Related issues emerged in relation to living languages and educational programs aimed at their continuation. Differing levels of protection (access to sacred sites as opposed to preservation and repatriation of sacred objects, for example) raised the overarching question: "What do communities want to protect?" An objective for policy-makers developed: match the kinds of protection with the kinds of needs communities have. The resulting recommendation was to enable sui generis approaches to IPR law, and its application to a wide range of cultural expressions -- from cultural knowledge about biodiversity to traditional expressions of music and the arts. Underlying issues focused on the relationships between legal and non-legal means of protection, and on the problem of consensus regarding threats and perceived threats to traditional knowledge and cultural practices. The group recognized potential harm to community-based structures as a result of uneven power relations embedded in political institutions (Ribot, 1996). The related question, "What roles do govern-ments play?" thus became a central concern in forging international recommendations and protections at the state level.
Working Group 3: Local, National, Regional and International Policies
The third working group was given the task of considering local, national, regional and international policies, with particular reference to the transmission, revita-lization, and documentation of intangible cultural heritage. For some, the question of definition was of vital concern, while others stressed the need for practical considerations. As one representative put it: "...let's propose what would be more effective recommendations for policies, rather than getting bogged down defining terms." This position, while understandable within the constraints of timely discussion, glosses over attempts to specify terminology and disables adequate consideration of concepts like "orality" or "transmission." Still, three points remain clear: first, the lives of those involved in so-called oral traditions should be considered in their full social and historical complexity; second, transmission of many kinds of tradition is under threat; and third, communities whose members' lives are being documented should have more access to and involvement in the documentation process. Participation, above and beyond consultation, was a key theme throughout.
Recommendations to Member States at the final plenary session covered a range of measures to develop institutional, educational, technological, and financial supports for traditional culture and folklore, and appealed for an increase in accessibility and cultural awareness training. Implementation of these recommendations is part of an ongoing process.
Discussion
Some positive results of the UNESCO working groups are obvious in the resulting documents, especially the position papers drafted by community-based representatives. The call to create networks of information and collaborations at inter-governmental and non-governmental levels was more readily answered through the active exchange between ministers of culture and grassroots advocates. The results of these exchanges find evidence in program developments, such as new artistic exchanges and regional training programs. Other missives stressed the need for appointments in education and research, consultations at local community levels with national and international officials, and, significantly, mediation in conflict prevention in Africa and the Pacific as it pertains to the revitalization of traditional knowledge. This latter goal is in keeping with the UN's mission as a peacekeeping force but raises other problems with respect to local control and participation.
Additional areas of impact point to the inclusion of UNESCO liaisons from Cuba, Palestine, and other countries gaining a stronger foothold in international cultural policy. Indigenous Nations also impact levels of policy as the movement to disband the United Nations' International Indigenous Working Groups in favor of a high commission gains momentum.
The notion that international policy can guide such diverse cultural and political terrain presupposes not only a willingness to implement policy, but the structural mechanisms for adhering to recommendations. While a suggestion of collective copyright, for instance, might make sense in countries where a western property regime prevails, large areas of the law, including those considered basic human rights by UN Convention, are weak or lacking in much of the world. UNESCO recommends feasibility studies for the elaboration of legal protections, but we think that the directives must be understood within the overarching historical mission of the United Nations to assure human rights in accordance with the UNESCO report.
References & further reading
Atwood, R. (2000, June). Standing Up to Smugglers. Art News 99:6, pp 118-123.
Blake, J. (Forthcoming). Safeguarding Traditional Culture and Folklore -- Existing International Law and Future Developments.
Boutros-Ghali, B. (1970). The right to culture and the Universal.
Carneiro da Cunha, M. (Forthcoming). The Role of UNESCO in the Defense of Traditional Knowledge.
Declaration of Human Rights. Cultural Rights as Human Rights: UNESCO Studies and Documents on the Cultural Policies. Geneva: UNESCO.
McCann, A., with Horowitz, A., Kurin, R., Prosterman, L., Early, J., Seeger A. & Seitel, P. (Forthcoming). The 1989 Recommendation Ten Years Along: Towards a Critical Analysis.
Posey, D. (1991). Effecting International Change. Cultural Survival Quarterly 15:3, pp 29-35.
Prott, L.V. (Forthcoming). Some Considerations on the Protection of the Intangible Heritage: Claims and Remedies.
Ribot, J. (1996). Participation without Representation. Cultural Survival Quarterly 20(3), pp 40-44.
Thomas, P. (Forthcoming). The 1989 UNESCO Recommendation and Aboriginal and Torres Strait Islander Peoples' Intellectual Property Rights.
(1). Unless otherwise noted, all citations refer to the working papers of the UNESCO conference, to be published by the Smithsonian Institution, Washington, D.C.
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