Standard setting national and international instruments often provide a
benchmark for assessing and ensuring best practice that respects human rights of
all people. While soft law instruments such as charters, declarations and
recommendations provide frameworks for voluntary policy development and
practice, hard law instruments such as conventions and treaties that are
ratified, ensure implementation is mandatory. In several respects, all these
are aspirational with the national policy and legislative frameworks providing
for variation and adaptation customising agreed international standards within
local and national contexts.
The Australian Human Rights Commission, through it charter, aspires to
ensure that Australians of all cultural backgrounds, irrespective of linguistic
and cultural diversity, enjoy certain basic rights. Hence, the
Commission’s interest in the 2003 UNESCO Convention for Safeguarding of
Intangible Cultural Heritage.
The Convention for the Safeguarding of Intangible Cultural Heritage is often
considered as the complementary instrument to the 1972 World Heritage
Convention, which mainly focussed on immovable natural and cultural heritage.
Inscriptions with mixed values of both natural and cultural, as applied for
example to Uluru-Kata Tjuta, consider intangible heritage values to a certain
extent under the criteria dealing with cultural landscapes.
The Commission’s advocacy for Australia’s ratification of the
Convention is with respect to all Australians. Often, intangible cultural
heritage in Australia is focussed on Indigenous heritage only. While this is
vital, as the unique intangible cultural heritage of Indigenous Australians is
of global significance, the intangible cultural heritage of disappearing
cultural landscapes of Australians of all other linguistic and culturally
diverse backgrounds require different methodologies and approaches and are
rarely given due attention.
The Commission recognises intangible cultural heritage as described by the
United Nations Education, Scientific and Cultural Organisation (UNESCO), that it
is manifested through:
oral traditions (thus making the maintenance of languages a critical aspect
of preserving intangible cultural heritage)
performing arts (such as theatre, dance and music)
rituals, festivals and social practices
traditional craftsmanship, and
knowledge concerning nature, the environment and the
Intangible cultural heritage is:
transmitted across generations
constantly being recreated by communities and groups, in response to their
environment and interaction with the natural world – it is thus both
traditional, living and evolving, all at the same time
provides groups with an identity and sense of continuity
compatible with values of human rights, cultural diversity, sustainable
development and cross-cultural respect.
As noted in the UNESCO Universal Declaration of Cultural Diversity (2001),
culture – and this includes intangible cultural heritage - is a shared
heritage of all humanity; it is the mainspring of cultural maintenance and a
guarantee for continuing human creativity. Understood as being a critical nexus
between human and environmental ecologies, intangible cultural heritage is a
glue that holds together humanity’s relationship with the physical world
and between groups that make civil societies.
At a time, therefore, of global concern about the effects of human-made
climate change, this convention is an important international treaty that will
complement Australia’s contribution to combating this most compelling of
challenges for human survival in the 21st century.
However, intangible cultural heritage is under threat from many fronts:
the uniformization of policies, and state polices within many nations
failures of inter-generational transference
erosion of traditional lifestyles, urbanisation and mono-culturalism
climate change and other environmental factors
In Australia, intangible cultural heritage can be loosely categorised into
three broad groups:
Firstly, and most significantly, is the heritage of Australia’s
Indigenous peoples. This heritage is recognised internationally as ancient,
unique living cultures with a special relationship with the physical
Secondly, Australia is in many regards an immigrant nation. Other than its
First Peoples, all other Australians have been born here or arrived over the
last 220 years. The cultural heritage of immigrant communities is a living link
to their home countries, as well as being new and evolving diaspora
Thirdly, Australia has developed its own distinctive cultural practices, as
is common in those countries with a strong rural, pioneering history, albeit a
relatively short one. This heritage of largely European settlement and often
still manifest in certain rural industries (for example, wool and wine
production, or uniquely Australian Heritage Trades now addressed as a national
priority through the Cobb & Co Museum in Toowoomba) is also worthy of
For these reasons, let alone the important human rights factors, the
Commission believes this convention is critical and should be supported by the
As of 12 September 2008 there were 102 state parties to the Convention
representing more than half the member states of the United Nations having
supported it, many of these are European countries as well as many of our
Australian ratification of the Convention will both preserve our varied and
significant intangible cultural heritage, but will also do so as a cultural, and
therefore, human right. The Universal Declaration of Human Rights of 1948
(article 27) first articulates this basic right, which is then elaborated in
more detail in later treaties such as the International Covenant on Economic,
Social and Cultural Rights (which came into force in 1976).
Subsequently, other treaties have recognised that various ethnic or other
minorities within states have not adequately enjoyed their rights, and that
rights to cultural practice and maintenance are particularly important. The
International Covenant on Civil and Political Rights (which came into force in
1976) and the Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious or Linguistic Minorities (1993), for example, emphasize the
importance of cultural practice and maintenance as basic human rights.
However, it tends to be the daily, lived experience of culture that is most
significant and real for the vast majority of humanity, not the tangible,
immovable and iconic manifestations of culture (important though these are).
Intangible cultural heritage is therefore a critical issue for all Australians,
whether they be Indigenous, recent immigrant, or have a long family connection
to the country.
Australia’s commitment to intangible cultural heritage may also have
impacts in the region, especially if it is linked to foreign aid. In many
developing countries intangible cultural heritage is essential to the human
development of its people, and can also be linked to environmental protection.
By funding programs related to culture and development Australia will enhance
its reputation internationally.
The average number of cultural and heritage activities per international
visitor was 2.2. For domestic overnight visitors it was 1.3 and for domestic day
visitors, 1.1. Between 1999 and 2006 cultural and heritage tourism for
international visitors had an average annual growth of 4 per cent, increasing to
2.6 million visitors. For domestic overnight tourists, there was an increase to
9.8 million visitors in the same period.
The Commission notes that the Convention states that not more than 1% of
member states’ annual contributions to UNESCO may be required to cover the
costs associated with ratification. In Australia’s case, this is likely
to be in the order of only $70,000 per year and although there are also costs
associated with ratification including attendance at various international fora,
these are very marginal.
Of greater cost will be other compulsory activities, most notably,
designating or establishing a body to co-ordinate and maintain intangible
cultural heritage inventories, as well as policy and program development.
Whatever costs are associated with these tasks they will only represent a
fraction of the financial benefits which accrued from maintaining
Australia’s heritage from cultural, tourism, arts and other industries.
As noted above, there are also likely cost savings, especially in the health and
other social policy areas, from preserving cultural identities of Australia
Ratification of the Convention will complement a range of important
initiatives in the area both national international.
For example, one such is the recent establishment of a new institute liked
to the United Nations University (UNU). UNU studies the way human activities
are altering the world; it was established by the United Nations
General Assembly in 1972 to be an international community of scholars
engaged in research, advanced training, and the dissemination of knowledge
related to global problems of human survival and development. The University
mainly focuses on peace and governance, environment and sustainable development,
and science and technology.
Since 2004, UNU explored the feasibility of establishing a research and
training centre of traditional knowledge (or a traditional knowledge institute)
which would play an important role investigating threats, methods to maintain,
and the resilience of indigenous traditional knowledge systems.
The University’s first pilot research program on traditional knowledge
was established in December 2007 with funding from the Christensen Fund (a
US-based foundation active in the areas of cultural and biological diversity)
and the Northern Territory
Government at the Charles Darwin University School of Australian Indigenous
Knowledge Systems. This is regarded as an important international step in the
process towards the establishment of a permanent traditional knowledge
Ratification of the Convention will also reinforce the requirements of the
current legislative framework, including the Native Title Act 1993 (Cth) and the
Aboriginal and Torres Strait Islander Heritage Protection Act 1986, to
strengthen the recognition and protection provided for intangible cultural
heritage held by Indigenous Australians. This is also becoming increasingly
important in the development of a national response to climate change and a
national emissions trading scheme.
The Australian Human Rights Commission considers the intangible cultural
heritage of all Australians as an integral part of the set of standards that
constitute cultural rights under various international instruments.
In the 1970s, the Piggot Committee of Inquiry dealt with tangible movable
cultural property while the Hope Committee of Inquiry focused on immovable
heritage. Unfortunately, intangible cultural heritage was then considered as
‘folk-life’ and the respective inquiry never received the same
attention or follow-up as the other two inquiries.
This lack of appreciation of intangible cultural heritage was largely due to
the global concern with movable and immovable heritage that is tangible, and the
broader relegation of intangible cultural heritage to the domain of folk-lore or
However, Australia has had a more enlightened approach to the intangible
cultural heritage of its Indigenous Australians. When the Australian Institute
of Aboriginal and Torres Strait Islander Studies (AIATSIS) was established in
1962, it was an emergency response to fast disappearing Indigenous living
cultures as, at that time, they were considered destined for demise or
assimilation into the wider Australian values informed by the colonial paradigm
of culture and heritage. This was radically revised when the Board of AIATSIS
from early 1970s began to ensure and support the continuity of Indigenous
intangible cultural heritage.
It is widely argued by peak advocacy bodies such as the Federation of Ethnic
Communities Councils’ of Australia (FECCA) that we are yet to
systematically address living heritage of immigrants.
The Convention for the Safeguarding of Intangible Cultural Heritage provides
an opportunity for Australia to reconsider its practice of heritage and
rethinking focusing on the non-duality of both the tangible and intangible
Ratification of the intangible cultural heritage convention would enhance
the capacity of the Commission in the way it engages with the safeguarding of
the human rights of all Australians.
In particular, the rights of Indigenous Australians would be better
understood and ensured. For instance, the 2007 United Nations Declaration on
the Rights of Indigenous Peoples emphasizes in several places the importance of
indigenous heritage in all aspects, and the importance of living heritage for
the continuity of cultures. Australia is at present considering its recognition
of this Declaration, being only one of four nations which did not last year, if
so, this would have significant monitoring and reporting responsibilities for
The Commission is also concerned with inter-faith dialogue and awareness
about religious diversity of all Australians. It is involved in a significant
way with monitoring and ensuring the rights of all Australian with regard to
religious diversity, for example, we are currently undertaking the largest
report into freedom of religion and belief ever conducted in Australia and which
should be finalized by early 2010.
Intangible cultural heritage informs this religious diversity and, at
present, the lack of appropriate research and understanding is a major concern
– not solely for cultural purposes but also for community harmony, social
inclusion, and security. Australia, by becoming a state party to the
convention, would assist in many ways the roles of responsibilities of the
Commission in addressing religious diversity.
Religious diversity, religious vilification and religious freedom are all
relevant and connected. The existing legislation focuses on ‘race’,
but this is a contentious term and the concept of the
‘ethno-religious’ category (previously applied solely to Jews) is
contested, especially with the rise of what is now described as Islamophobia.
Increasingly, therefore, the intangible cultural heritage aspects of faith will
require protecting and maintaining and will fall under the mandate of the
The question of inventories is a significant one. Listing the intangible
cultural heritage of Indigenous peoples, especially secret and sacred knowledge
(while important from the point of safeguarding) may pose serious issues of
privacy and access. Moreover, the responsibility for such inventories could be
exclusively custodial to the host communities and need appropriate measures to
ensure that the listing does not violate traditional rights. It must be
emphasized that any responsibilities of cultural institutions dealing with
intangible cultural heritage is different from the way they have dealt with
tangible heritage where safekeeping has been a practice.
Listing could also have serious implications for protecting the intellectual
and cultural property rights of Australian Indigenous peoples. This is an area
that is inadequately addressed in both the Convention and its operational
directives (the guiding text for the implementation of the Convention).
However, Australia, with its significant knowledge and practice in this area
could make a major contribution to the State Parties of the Convention.
Moreover, through such engagement, the Australian Human Rights Commission, which
works closely with the similar institutions in the Asia Pacific (for example,
through the Asia Pacific Forum) could make a difference for other Indigenous
people in the region.
The World Intellectual and Cultural Property Organisation has been
consulting in the region on intangible cultural heritage and indigenous
knowledge systems. It has initiated pilot studies in countries such as Kenya.
It is also engaging with Pacific countries such as Vanuatu in safeguarding
traditional knowledge systems. Some of the outcomes of these studies could have
implications in the way the Commission interprets its obligations both within
Australia and at a broader regional level.
Linguistic diversity and multi-lingualism are a concern as language is
critical for the carriers of intangible cultural heritage. The capacity of
cultural institutions in dealing with the diversity of languages could be an
issue. Intangible cultural heritage, a significant but oft neglected dimension
of cultural diversity, would become critical in the way the Commission addresses
State-of-the-Nation reporting on social justice issues.
In particular, the Commission notes that, among all the standard-setting
conventions dealing with culture, the intangible cultural heritage convention is
the first one that expressly states the role of communities as the carriers of
It further provides for non-government organizations at the national level
but also those accredited at an international level. Some of our Pacific
neighbours such as Vanuatu are in the process of becoming State Parties to the
convention. Others, such as Papua New Guinea, have within recent weeks. For
the first time it will bring a different dimension to the intangible cultural
heritage of Australian South Sea Islanders in who have re-established their
cultural connections to their countries and communities of origin.
In several ways, Australia’s ratification of the Convention would
facilitate the Commission’s role to bring together the carriers of
intangible cultural heritage, individuals and communities and the relevant
research agencies, cultural institutions and government authorities in ensuring
the safeguarding of Australia’s unique and highly diverse intangible
It is noted that given the rich cultural diversity of Australia and the
origin of our populations and their descendents, there are implications for the
intangible cultural heritage of our immigrant communities. It should also be
noted that the greater majority of countries from which immigrant Australians
come from are already state parties to the convention. Australia becoming a
State Party to the Convention for the Safeguarding of Intangible Cultural
Heritage could add a significant dimension to the way we safeguard the cultural
diversity of our immigrant heritage.