Our Europe. Ethnography Ethnology Anthropology of Culture Vol. 2/2013 p. 235 242 Intangible Cultural Heritage Institute of Ethnology and Folklore Studies with Ethnographic Museum Bulgarian Academy of Sciences Human Rights and Intangible Cultural Heritage 1 Abstract: The text outlines meaningful relations between fundamental international documents on man s status in society and a very fragile side of his creativity observed in its aspect of cultural heritage. These are The Universal Declaration of the United Nations on Human Rights (1948) and The Convention of UNESCO on Preservation of Intangible Cultural Heritage (2003). We also have referred to The Stockholm Declaration of IKOMOS (1998), The Declaration of the United Nations on the Rights of Indigenous Peoples (2007) and others. It is emphasized that these types of documents focus on the processes of human cultural identity. Some specific features of Intangible Cultural Heritage (ICH) are outlined as possessing ancient cultural roots being at the same time live heritage, its bearers being living people directly leading us to the issues of cultural transmission. The specific analysis of texts from The Universal Declaration and The Convention outline the figure of man as being the focus of both documents. But since in the first document man has been recognized as an individual bearer, the second one outlines three types of bearers preserving and recreating the intangible cultural heritage: communities, groups and individuals. The texts of the Convention elaborate two-fold rights of man: as an individual perceiver of cultural heritage taking part in its preservation and an individual bearer of cultural heritage who is subjected to safeguarding. The specific features of the subject of Intangible Cultural Heritage point towards the phenomenon of the so called group subject in traditional cultures whose model is recreated in the sphere of Intangible Cultural Heritage. Creativity in the sphere of Intangible Cultural Heritage relates to the so called group subject founded on its part in the community form of cultural being. Contemporary legal documents more and more recognize the group subject as active presence completely manifesting in the conditions of traditional indigenous communities and more and more acknowledge its collective rights on intellectual property which should be preserved as right of the human creator of cultural values. Keywords: intangible cultural heritage; human rights The acceptance of The Universal Declaration of Human Rights (Universal Declaration 1948) by the General Assembly of the United Nations more than sixty years ago is undoubtedly an extremely important step that humankind made in the complicated process of building up its own self-awareness. The document stated concisely the main parameters of human presence, its basic human, cultural and social parameters. Explaining already in its Preamble the need of a general understanding of these rights and freedoms, it turned into a main instrument of people and of humankind for their own protection. Numbering several decades already, the years that followed the acceptance of the Declaration, showed however that its clear and concise texts with a span of around 5 pages are organized in such a way that enable opportunities for undertaking and interpreting even 1 Version of this text was published in Bulgarian language, cf.: Sanova Mila (2010), Pravata na choveka i nematerialnoto kulturno nasledstvo [Human Rights and Intangible Cultural Heritage], Balgarski folklor 3 4, pp. 150 159.
236 much wider fields than those that are directly stated in the separate formulations. Somebody may argue that the texts of the Universal Declaration have appeared polysemic. Thus, for example, in 1998 through its Stockholm Declaration (followed later also by newer documents of different international organizations (e.g. the Council of Europe), ICOMOS finding grounds in the Universal Declaration interpreted the right of cultural heritage as an inherent part of human rights (Krastev 2009). Taking a closer look at the texts of the Declaration provides a basis or offers possibilities also for other contemporary readings. Here is one such interpretation: PREAMBLE Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 18 Everyone has the right to freedom of thought, conscience and religion Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 26. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Article 27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advance ment and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic produc tion of which he is the author. (Universal Declaration 1948 my underlining, M.S.) Far from being the only ones, the underlined formulations in the selected paragraphs of the Preamble and of separate articles of the Universal Declaration of Human Rights point out at an extremely important aspect of human presence and activity, whose enhanced interest in identification and studying dates back to recent times. Human dignity, equality, freedom of convictions, education, culture, the moral and material values, etc., which are treated in the document, draw the attention to identification, the human right of cultural identification. Actually, without formulating explicitly this extremely important and delicate sphere of human rights, The Universal Declaration unambiguously refers to it in almost all its texts. In the complex processes of human identification, the intangible heritage has a key role. Its elements are among the main elements of identity formation. The Convention of UNESCO for the Safeguarding of Intangible Cultural Heritage, accepted at the General Con-
Human Rights and Intangible Cultural Heritage 237 ference of the United Nations Educational, Scientific and Cultural Organization on 17 October 2003 (called Convention 2003) explicitly states: [] This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity (Art. 2.1). In fact Convention of UNESCO for the Safeguarding of Intangible Cultural Heritage is nowadays the only international document in this sphere and until October 2011 it has been ratified by 137 countries in the world. As the only document that relates to this part of the cultural heritage, on whose content the member states have reached a consensus, this Convention turns into a major instrument in countries around the world for the protection of the intangible cultural heritage. Already in its Preamble, Convention 2003 states at the first place its direct connection to the existing international human rights instruments, in particular to the Universal Declaration on Human Rights of 1948 (Convention 2003). Intangible cultural heritage is a basic part of the cultural heritage of mankind material, intangible and natural (Convention 2003, Preamble). The comparison between the intangible cultural heritage and the material one outlines some substantial differences between the two types of cultural heritage, whereas in the foreground, some core specificities prop out. On the one side, intangible cultural heritage usually has deep roots, in some cases reaching at the dawn of human civilization (concepts, structures, notions). According to specialists, for example, the archaic bi-vocal singing from Shoplouk region, which is performed until today by Bistritsa grannies (and is the first Bulgarian masterpieces included in the Representative List of the Intangible Cultural Heritage of Humanity) is a mark and expression namely of such extremely old cultural layers. But, on the other hand, as this can be seen even by the very mentioning of Bistritsa grannies, the intangible cultural heritage is a living heritage. It is maintained and reproduced in contemporary society by living people. We may try to imagine in concrete parameters the substantial differences between the material and intangible cultural heritage, using as a reference two widely known Bulgarian examples of inclusion in the World Lists: Boyana Church 2 and The Bistritsa Babi Archaic Polyphony, Dances and Rituals from the Shoplouk Region. 3 To the grand and the proud centuries-old silence of the temple in Boyana, we can oppose the living performance of the specific tremolo, called shaking of the female singers from Bistritsa. The differences are so apparent that we hardly need to describe them here. What is most essential is that, in contrast to the silent world of artifacts from the sphere of material cultural heritage, in the basis and the center of the intangible cultural heritage is the living person, his or her knowledge and skills, his or her abilities to recreate what was learnt from ancestors and to transfer it to the following generations. Man is the main object of interest both in the Universal Declaration, and in the 2003 Convention of UNESCO. By intangible cultural heritage, the Convention of UNESCO for the Safeguarding of Intangible Cultural Heritage understands: Article 2 Definitions 1. The intangible cultural heritage means the practices, representations, expressions, knowledge, skills as well as the instruments, objects, artefacts and cultural spaces associated therewith that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interac- 2 World Heritage List see in: http://whc.unesco.org/en/list/42/ last accessed 8 May 2013. 3 Representative List of the Intangible Cultural Heritage of Humanity see in: http://www.unesco.org/culture/ich/index.php?lg=en&pg=00011&rl=00095/ last accessed 8 May 2013.
238 tion with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development. 2. The intangible cultural heritage, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship. (Convention 2003 my underlining, M. S.). Following the definition of the quoted article 2.3 of Convention 2003, an interesting dichotomy can be formulated. According to it, a possibility for a direct expression of human rights in the sphere of intangible cultural heritage will provide mutual respect between communities, groups and separate individuals (subjects). Human rights mutual respect of communities, groups and separate individuals (subjects) Aside from stating yet again the presence of direct connections and internal relationships between the two world documents: The Universal Declaration of Human Rights и Convention of UNESCO for the Safeguarding of Intangible Cultural Heritage, article 2.1 of the Convention (unlike the Universal Declaration that speaks exclusively about the separate person) in practice introduces as a major concept three important forms of human presence, three important types of subjects that are central to Convention 2003. Their presence directly refers to the basic human right of identification. In fact, identification finds expression in the different forms of relationships of the three types of subjects with the forms of intangible cultural heritage (see article 2.2 quoted above). What is essential here is that the three types of subjects are holders of intangible cultural heritage. In order to avoid the varying and divergent interpretation of the contents of terms such as communities, groups and individuals, in March 2006 UNESCO organized a special expert consultative meeting that took place in Tokyo, Japan, whose goal was to provide a relevant working definition of the three terms. Here are the results of its work: Communities are networks of people whose sense of identity or connectedness emerges from a shared historical relationship that is rooted in the practice and transmission of, or engagement with, their ICH; Groups comprise people within or across communities who share characteristics such as skills, experience and special knowledge, and thus perform specific roles in the present and future practice,re creation and/or transmission of their intangible cultural heritage Individuals are those within or across communities who have distinct skills, knowledge, experience or other characteristics, and thus perform specific roles in the present and future practice, re creation and/or transmission of their intangible cultural heritage (Expert Meeting 2006). The need of including communities, groups and, where appropriate, individuals (Convention 2003, Art. 15) in the safeguarding of intangible cultural heritage is justified in a series of ar-
Human Rights and Intangible Cultural Heritage 239 ticles of the Convention for the Safeguarding of Intangible Cultural Heritage, such as: article 2.1 that demands the identification of intangible cultural heritage by communities, groups and, where appropriate, individuals; article 11 that demands their participation in the identification and definition of the intangible cultural heritage that is inherent to them; article 12 that refers to the identification and registering of the intangible cultural heritage; article 13 that encourages states parties to ensure access to the intangible cultural heritage, treating customary practices in full respect; article 15 that appeals to member states to ensure the widest possible participation of communities, groups and, where appropriate, individuals in the safeguarding of their intangible cultural heritage, etc. And this active presence in the texts of the Convention means at least two essential things. It is apparent that on the one hand, about the intangible heritage, it is validated by all clauses of the international documents related to: recognition; identification and definition; the access, safeguarding, etc., of cultural heritage in general. These are by themselves clauses connected in principle with the human rights about the safeguarding of the cultural heritage (Krastev 2009). But, there is a slight specificity, which is related to the circumstance that in the sphere of intangible cultural heritage, targets of safeguarding are not artifacts that originate from different epochs, but the living person as a bearer of traditional knowledge and skills. In such a way, with the intangible cultural heritage, people step into an ambiguous position. Man has rights: as a subject-consumer of cultural heritage and participant in its safeguarding (this role coincides with the one that people have with regards to the material cultural heritage); as a subject object of safeguarding, as long as he is a holder and performer of the different forms of intangible cultural heritage, and as long as he or she carries out the transmission of the knowledge about it to the following generations. With regards to the first position, contemporary society has accumulated substantial experience and several already established and practically used mechanisms of protection. The pertinent issue both to the international community and to the Bulgarian state in particular is the care about the rights of the subject of intangible cultural heritage, the rights of the holder of traditional knowledge and skills, or, in other words the position of the human being as an object of protection. In Bulgaria, the holders of intangible cultural heritage have as their brand territory the National system Living Human Treasures Bulgaria. 4 It was carried out within the starting program of UNESCO 5, which offered a possibility of adaptation on a national level, in adherence with the national specificities. According to the hitherto accepted in Bulgaria principles of system s functioning as developed by an expert team from the Institute of Folklore at the Bulgarian Academy of Sciences 6, nominations for elements of intangible cul- 4 http://mc.government.bg/reg/index.php?act=content&do=detailed&rec=670/last accessed 7 May (in Bulgarian). 5 http://www.unesco.org/culture/ich/index.php?lg=en&pg=00061/ last accessed 9 May 2013. 6 Since 2010 Institute of Ethnology and Folklore Studies with Ethnographic Museum at the Bulgarian Academy of Sciences.
240 tural heritage are made every two years. The rights to prepare nominations belong to institutional structures of cultural centers (chitalishte) 7 and museums in the country, as well to experts. The nominations are selected by expert commissions on a regional level, appointed by an Order of the Minister of Culture. This first selection leads to the outlining of one candidate from each administrative district in the country. The twenty-eight selected candidates (twenty-eight districts) are discussed by the National expert council of intangible cultural heritage and five of them are selected. These five candidates are included in the National representative list of elements of intangible cultural heritage. The holders of intangible cultural heritage of these five nominations are provided with certain material stimulus (in a similar way, it is expected that the still about to be created National list of elements of intangible cultural heritage needing urgent protection will also function). Hereby we reach an interesting moment connected with the person as a subject-holder of intangible cultural heritage who reproduces cultural values. It has become clear already that in the intangible sphere of the cultural heritage, people have, so to say, triple appearance as realized through communities, groups and, where appropriate, individuals (Convention 2003). According to article 31 of United Nations Declaration on the Rights of Indigenous Peoples (United Nations Declaration 2007): Article 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights. In fact, the problem touches closely at the phenomenon of the so called collective subject in traditional cultures (Santova 2001), whose model is reproduced in the sphere of intangible cultural heritage. It is well known that creativity in the realm of intangible cultural heritage is connected with the so called collective subject, who is on its turn based upon the communal form of cultural being. In contemporary legal sphere, the collective subject, whose active presence is revealed at its utmost in the conditions of traditional autochtonous communities, is increasingly recognized through the notion of collective rights of intellectual property that has to be safeguarded as a right of the human being creator of cultural values. In synchrony to article 31.2 of United Nations Declaration on the Rights of Indigenous Peoples (United Nations Declaration 2007), the Bulgarian state could search for efficient measures for recognizing these rights and ensuring protection to the holders of the performances. Here the issue relates to the fact that in conditions of a state such as Bulgaria, the role of communities and groups nowadays is largely dissolved within the parameters of the civil society. In the Bulgarian conditions, we can outline the leading role of civil society. Thus, for example, it is not occasional that Bulgarian cultural centers, which are institutional formations based mainly upon the territorial communal structure (Law of cultural centers, article 2, article 3 et al.), are described mainly as civic associations based upon the 7 The cultural centers (chitalishte) are typical for Bulgaria cultural institutions with nearly 200 years of history.
Human Rights and Intangible Cultural Heritage 241 presumption of the civil society. Their goal as traditional self-managing cultural and educational associations is to satisfy citizens needs; a separate stress among them falls on cultural needs. It is hardly occasional too that the very Convention for the Safeguarding of Intangible Cultural Heritage already in its Preamble directly connects the three subjects with the notion of community-society: Recognizing that communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity. All this, accompanied by availability of respective conditions, can provide grounds to the state to identify itself as holding the intellectual right in the sphere of intangible cultural heritage. The Law of authorship rights and its related rights that currently functions in Bulgaria indisputably states in article 4.3 that: Folklore works are not objects of authorship right (Law of authorship rights). What this formulation can show, however, is at least a serious lag behind the practice worldwide. In case the state decides to recognize itself as a holder of intellectual right in the sphere of intangible cultural heritage, it can create a National fund of intangible cultural heritage, which would accumulate financial means addressed directly to support people who are objects of safeguarding in this sphere of cultural heritage, thus ensuring their rights. Concentrating their interest upon the person-holder of traditional knowledge and skills, the National fund of intangible cultural heritage could facilitate the viability and transmission of elements of intangible cultural heritage, grounding its work on a special Regulation. In such a way, the Fund will practically protect the rights of people on the existence and viability of their own intangible cultural heritage. The main activities of the Fund should be directed to the maintenance of the living traditional forms of intangible cultural heritage, by supporting the holders of the elements of the intangible heritage. Special emphasis should fall on those elements that are threatened and need urgent protection. In accordance with the regulations of Convention 2003, the Fund can support the research on intangible cultural heritage. It may finance target-oriented projects related to this heritage. It is indeed natural that, once created, such a Fund would receive subsidies from the state and from donations. However, it can also regularly receive financial means from author s remuneration for presenting works in the sphere of intangible cultural heritage, as well as for works and performances based on elements and artifacts of this heritage. Bibliography Convention (2003), Convention for the Safeguarding of Intangible Cultural Heritage, Paris, 17 October 2003, http://www.unesco.org/culture/ich/index.php?lg=en&pg=00006/ last accessed 5 May 2013. Expert Meeting (2006), Expert Meeting on Community Involvement in Safeguarding Intangible Cultural Heritage: Towards the Implementation of the 2003 Convention, 13 15 March 2006, Tokyo, Japan, http://www.unesco.org/culture/ich/doc/src/00034-en.pdf/ last accessed 9 May 2013. Krastev Todor (2009), Pravata na choveka i kulturnoto nasledstvo [Human Rights and Cultural Heritage], Kultura 42 (2569), 01 December 2009 (in Bulgarian). Santova Mila (2001), Problems of the Protection of Folklore as Intellectual Property at the Dawn of the 21st century, Document prepared by Mrs., Director, Institute of Folklore, Bulgarian Academy of Sciences (BAS), Sofia. International Conference on Intellectual Property, the Internet, Electronic Commerce and Traditional Knowledge
242 (WIPO/ECTK/SOF/01/3.3), www.wipo.int/edocs/mdocs/ip-conf.../wipo.../wipo_ectk_ sof_01_3_3.doc/ last accessed 8 May 2013. United Nations Declaration (2007), United Nations Declaration on the Rights of Indigenous Peoples, Resolution 61/295 adopted by the General Assembly on 13 September 2007, http://daccess-dds-ny.un.org/doc/undoc/gen/n06/512/07/pdf/n0651207. pdf?openelement/ last accessed 9 May 2013. Universal Declaration (1948), The Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly Resolution 217 A (III) of 10 December 1948, http:// www.un.org/events/humanrights/2007/hrphotos/declaration%20_eng.pdf/ last accessed 24 January 2013. Law of cultural centers: Law of cultural centers in Bulgaria, http://mc.government.bg/reg/ index.php?act=content&rec=24/last accessed 23 November 2012 (in Bulgarian). Law of authorship rights: Law of authorship rights and its related rights, http://www. bcnl.org/doc.php?did=75/ last accessed 25 October 2012 (in Bulgarian). Biographical note: D. Sci is Professor at the Institute of Ethnology and Folklore Studies with Ethnographic Museum at Bulgarian Academy of Sciences. She is National expert of Intangible Cultural Heritage, President of National Committee of ICOM and Vice President of IOV. E-mail: mila_santova@yahoo.com