Ensuring the Viability of Cultural Heritage: The Role of International Heritage Law for Pacific Island States

Part of the Global Environmental Studies book series (GENVST)

Abstract

In recent decades, there has been increasing recognition of the economic, environmental and social importance and value of cultural heritage. At the same time cultural heritage has come under increasing pressure as the processes of modernization and globalization have been compounded by environmental degradation, with the threat of further losses due to climate change. The international community has responded with a rapid expansion of international law concerned with protecting all aspects of cultural heritage. In the past, greater attention was given to monumental heritage but more recently the focus has turned to include intangible elements, providing greater universality in the coverage of international heritage law. This chapter will focus upon the small island developing states of the Pacific and the approaches taken to cultural heritage conservation in that region. Particular attention will be drawn to governance gaps and the opportunities that the Convention on the Safeguarding of Intangible Cultural Heritage may offer. Barriers to implementation will also be explored as they remain significant issues for the small island developing states in the Pacific region which have considerable cultural heritage but less legal recognition and protection of it.

Keywords

Cultural diversity Cultural heritage Culture Intangible heritage International law Legal pluralism Pacific 

Introduction

The concept of ‘culture’ embodies all the characteristics of human societies. In that sense it is amorphous and inherently difficult to define. Nevertheless, the United Nations Educational, Scientific and Cultural Organization (hereinafter ‘UNESCO’) has described ‘culture’ as “the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”.1 ‘Cultural heritage’ is the expression of this living culture, embodying its “history, values and beliefs” (Wendland 2004). Cultural heritage can take many forms, including monumental built heritage, craftsmanship, artistic, linguistic and musical expression, traditional knowledge and customary practices, to name a few.

Cultural heritage is intrinsically valuable and safeguarding its diversity is “as necessary for humankind as biodiversity is for nature”.2 This value is applicable to individuals and communities at all levels of society. Cultural heritage plays an important part in cultural identity, contributes to communal cohesion, and can support the fabric of society by assisting to build partnerships between the public and private sectors, and between the state and civil society.

More recently, there has also been an acknowledgement of the economic and environmental importance of cultural heritage. Crucially, it may be key to successfully achieving sustainable development. Cultural goods and services are unique commodities and may contribute to sustainable development through the establishment of viable and competitive cultural industries. From an environmental management perspective, the inextricable link between cultural and biological diversity is well established, both in the social and natural sciences (Maffi 2007). Many parts of the world are both culturally and biologically diverse. This occurrence is not coincidental as traditional natural resource management practices have contributed to the maintenance of genetic diversity (Posey 1999). In the context of law and policy, the concept of sustainable development, involving the integration of economic, social–cultural and environmental elements, recognizes these important linkages between people and nature.

The safeguarding of cultural heritage raises important legal issues. Law can, for example, provide a framework for cultural rights, mechanisms to safeguard and protect heritage, and regulations to prevent the misappropriation and exploitation of expressions of culture. International law has an important role to play in this context. For example, human rights law establishes the legal foundation to assert rights to practice culture3 and work continues on the development of a global framework for the protection of cultural expression and folklore.4 While the legal issues surrounding the utilization of cultural heritage remain crucial, they presuppose its continued existence. The world is facing cultural heritage extinctions just as significant as biological ones. In particular, it was recognized several decades ago that “Indigenous cultures around the world are being disrupted and destroyed”5; and, with the added pressure placed upon many communities by climate change, anthropologists now “fear a wave of cultural extinction” (Rosenthal 2010). It is in this context that the safeguarding and preservation of existing cultural heritage is of critical importance.

UNESCO has been the principal inter-governmental organization with responsibility for the protection of cultural heritage. Its mandate includes promoting culture and cultural diversity, acting as a forum for and taking an active role in standard setting, awareness raising and capacity building for the safeguarding of culture and cultural heritage. Maintaining cultural diversity means safeguarding different types of heritage – tangible and intangible, movable and immoveable – as well as pluralities of culture within different communities. From a legal perspective UNESCO’s early work focused on the tangible heritage: monumental, built heritage in particular. However, more recently, there has been greater attention given to ensuring more universal recognition of all types of heritage, including intangible elements. This has led to a rapid increase in heritage treaties as well as other legal instruments and supporting programs and initiatives. In total, seven international cultural heritage treaties have now been adopted.6 The Convention on the Safe­guarding of Intangible Cultural Heritage (hereinafter ‘CSICH’) is one of the most recent and an important addition to the global regime.

This chapter will focus upon the intangible cultural heritage of the Pacific island region and in particular the relevant legal frameworks for its protection. Current threats to heritage and the efforts to safeguard it will be explored. The CSICH will be described and the opportunities and barriers to its implementation analysed. The chapter concludes with recommendations to ensure that the intangible heritage of this culturally diverse region will be secured for the future.

The Pacific Context

The Pacific Ocean covers millions of square kilometres and contains thousands of islands. There are about 22 Pacific Island nations but the focus here is upon the independent small island developing states (SIDS).7 The unique biological and cultural diversity of the Pacific region has been internationally recognized and well documented by the UNESCO World Heritage Centre (UNESCO 1997), the International Council on Monuments and Sites (ICOMOS) (Smith and Jones 2007), the International Union for Conservation of Nature (IUCN) (Gerbeaux et al. 2007) and others. Historically the peoples of this region had no writing and the archaeological record of their cultures includes few monuments. The safeguarding of intangible heritage is therefore of particular importance. The Pacific region provides examples of many different categories of intangible cultural heritage. These include environmental ethical perspectives and belief systems, languages, customary practices and governance structures, traditional knowledge and cultural expressions. Despite the great diversity amongst the peoples and cultures, there is a common historical experience as the pattern of settlement of the Pacific islands was interlinked and cultural heritage was shared “through common voyaging, kinship, trade and other relationships” (Smith and Jones 2007: 6). Most states in the region have had a period of colonial rule by countries that were physically and culturally remote, but their culture survived and the majority of the indigenous peoples continue to live at least a partially traditional lifestyle. Thus while each nation, and in some cases each island, may have its own specific heritage, the many cultural and historical commonalities support the regional approach taken here.

Today, the Pacific SIDS face similar social, economic and environmental concerns, including large and rapidly growing populations (following a period of outward migration), urbanization, limited land and financial resources, environmental fragility and the desire for economic development. Heritage, and particularly intangible cultural heritage, is at risk from multiple processes. Globalization and modernization have tended to have a homogenizing influence and cultural diversity is being lost as pressures to develop impact heavily on heritage. For example, modern farming and fishing techniques are replacing traditional methods, western medicine and science has replaced traditional knowledge, and formal education has tended to be mono-linguistic (mainly English or French). These impacts are compounded by environmental degradation which is likely to intensify with contemporary climate change. Environmental issues, such as pollution, waste management, over-fishing and land clearing, impact traditional lifestyles, customary lands and cultural spaces. The physical impacts are compounded by the damage to intangible heritage, as customs, traditional knowledge and practices are directly affected by the loss of cultural spaces and sacred sites and species. Extinction of species also results in loss of traditional knowledge in relation to ecology, medicine, arts and crafts. The predicted effects of climate change are likely to disrupt or displace whole communities and the ensuing assimilation may cause further loss of intangible heritage and possibly the complete disappearance of individual minority cultures.

Cultural Heritage Protection in the Pacific

Pacific SIDS have long recognized the need to conserve cultural heritage. There are many national museums, organizations, government departments, programs and projects aimed specifically at protecting heritage. In addition some regional approaches have also been taken. These are explored in further detail below.

National Initiatives

Many of the Pacific nations have well-established national bodies tasked with conserving cultural heritage. For example, in Fiji there are three flagship organi­zations: the National Trust of Fiji, the National Museum and the Fiji Arts Council. In particular, two departments of the Fiji Museum are involved in the recording of oral tradition: the Archaeology Department and the Collections Department (Buadromo and Ramos 2001). The Fiji Arts Council is also relevant as its work involves preserving traditional knowledge and facilitating cultural tourism. In Vanuatu, the National Cultural Council has responsibility for the preservation, protection and development of cultural heritage. This work is carried out by the Vanuatu Cultural Centre, which was one of the first to be established in the region and today has four Units: National Library, National Film and Sound Unit, National Museum, and the Cultural and Historic Sites Survey. In Samoa, the Ministry of Education, Sports and Culture has primary responsibility for heritage issues, including the management of the Samoa Museum and National Archives.

Many countries in the region have established heritage mapping programs. In Vanuatu the Oral Traditions Collections Project commenced in 1976 and this led to the Fieldworkers Program, whereby fieldworkers are chosen from the local community, trained, and provided with recording equipment and then take oral histories and make dictionaries and genealogies (Kartal 2001). Fiji also has a cultural mapping program which commenced in 2004. In Fiji, the fieldworker model was not considered appropriate and so the staff of the Ministry of Indigenous Affairs – Institute of Fijian Language and Culture collect information, following the traditional protocols for seeking permission. Six mappers (three men and three women) are involved and have recorded cultural heritage in nearly 400 villages,8 completing mapping of five of the 14 provinces.9

There are also many examples of specific programs aimed at revitalizing traditional arts and crafts. These range from workshops to revitalise the use of traditional pottery glazes in Fiji, to established programs for the revival of traditional fine mat weaving in Samoa. Education plays a critical role in maintaining cultural diversity. In the post-colonial Pacific, the majority of countries adopted a British or Australian school curriculum. However, more recently greater local culture has been incorporated. For example, in most countries vernacular languages are now taught in school. Vanuatu has gone further: through a UNESCO-LINKS10 program, and with the involvement of local communities, teachers, resource managers and culture specialists, is seeking to re-introduce traditional ecological knowledge and resource management into the school science curricula.11

These institutions and programs have gone a long way in safeguarding cultural heritage. Administrative fragmentation across governmental departments, however, has in some cases resulted in duplication of effort. Centralized guiding policies are needed and both Samoa and Fiji are in the process of developing these. Furthermore, situations in which cultural heritage might be a vehicle for sustainable development need to be proactively identified. Cultural tourism is one such area and there are some examples of successful enterprises in the region. As will be seen below, these examples illustrate the potential benefits of CSICH ratification at both the national level and in terms of international assistance.

Legal Governance

While conservation work is undertaken at the national level, few laws protect cultural heritage. This legislative gap can have serious consequences if, for example, there are no mechanisms to list and protect specific threatened cultural heritage, laws to assess impacts of future activities, or regulations to prevent misappropriation of heritage.

Most of the countries have legislation establishing the institutions referred to above: for example, the Vanuatu National Cultural Council Act and the Fiji Museum Act. In addition, some have intellectual property laws based upon western legislative models: for example, the Vanuatu Copyright and Related Rights Act 2000 and Fiji Copyright Act 1999. In Samoa, the Copyright Act 1998 also provides for the protection of expressions of folklore and therefore offers some protection against reproduction, communication and performance beyond the customary context. Other relevant pieces of legislation, such as the Vanuatu Preservation of Sites and Artefacts Act and Fijian Preservation of Objects of Archaeological and Paleontological Interest Act, relate to the protection of tangible and moveable heritage. Many of these statutes have been in place for some time or were not designed to protect intangible heritage.

Fiji is one of the first countries in the region to be developing specific heritage law. The draft Heritage Decree is designed to meet the World Heritage Operational Guidelines as a lack of legislation has been seen to be a barrier to the listing of heritage sites in Fiji.12 A National Heritage Register will be established and managed by a National Heritage Council, with locally significant sites to be managed at the local level. The Fiji Environmental Management Act includes ‘heritage’ values as one of its components and in this regard the Department of the Environment is required to liaise with the Fiji Museum in undertaking impact assessments. The new Heritage Decree will specifically provide for cultural impact assessment.

In Vanuatu, the Environmental Management and Conservation Act 2002 provides for the registration of Community Conservation Areas which can include sites possessing “unique” cultural resources.13 It also provides for environmental impact assessment where activities are likely to cause significant “custom impacts”.14 Recent amendments to the Preservation of Sites and Artefacts Act provide for the classifi­cation of sites and objects of historical, archaeological, ethnological or artistic signi­ficance as national heritage.15 It also provides that such heritage must not be altered without approval, nor exported, and that heritage inspectors will be appointed.

Again, this is an area where CSICH and UNESCO might assist the Pacific island nations. As will be explored below, initiatives such as the UNESCO–WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit and Other Prejudicial Actions and UNESCO Database of National Cultural Heritage Laws could build regional capacity and also provide an opportunity for individual countries to share their experiences and assist the development of law and policy in other nations. Thus national and local experiences may help shape regional and global efforts. This in itself is a form of global recognition and facilitates indigenous regional voices being heard at the international level.

Regional Efforts

At the regional level, key associations include the Pacific Islands Forum Secretariat (PIFS)16 and the Secretariat of the Pacific Community (SPC).17 The Pacific Plan is the principal document which addresses the challenges facing Pacific island nations. Its goals include strengthening regional cooperation and integration by enhancing and stimulating regional economic growth, sustainable development, good governance and security. It includes as one of its sustainable development objectives recognising and protecting “cultural values, identities and traditional knowledge”. More specifically the Plan supports the development of a “strategy to maintain and strengthen Pacific cultural identity”, and the establishment of an “institution to advocate for, and protect, traditional knowledge and intellectual property rights”. As a milestone in achieving this latter objective, reference is made to the creation of an institution and development of national heritage plans. However, no further details are provided as to how this is to be done.

SPC is a hub for youth, gender and cultural initiatives; it is developing a regional culture strategy in collaboration with the Council of Pacific Arts-Working Group on Culture and Education.18 In 2002 SPC also developed the Model Law on Traditional Knowledge and Expressions of Culture. These laws provide a framework for ownership of traditional cultural rights, prior informed consent, and utilization of traditional knowledge. Currently, PIFS is leading an inter-agency collaboration for development of national legislation based on this law.19 The Traditional Knowledge Implementation Action Plan20 was prepared in response to member countries’ requests for technical assistance to advance the Model Law and develop national systems. The Action Plan addresses the protection of traditional knowledge through the development of national and regional frameworks at two levels: traditional biological resources, including the protection of plant genetic resources and knowledge; and traditional knowledge and expressions of culture, including traditional arts, songs, and dances. The Action Plan includes a pilot program aimed at developing traditional knowledge bills in six Pacific states: Cook Islands, Fiji, Kiribati, Palau, Papua New Guinea and Vanuatu.

International Heritage Law

Contemporaneously with the development of cultural heritage initiatives at the national and regional levels, the international community has similarly worked to protect these resources, mostly through the work of UNESCO. The most well known is the World Heritage Convention which provides for the international listing of sites of natural and cultural heritage that have outstanding universal value. Unique and globally significant sites thus receive international recognition. While the World Heritage Convention is an important element in the suite of UNESCO’s heritage treaties, its focus is upon built and natural heritage, with no protection of intangible heritage per se. Furthermore, many indigenous and traditional cultures have proportionately less monumental heritage than Eurocentric communities whose cultural heritage dominates the World Heritage List. This inadequacy stimulated development of international law aimed at protecting a broader range of heritage types.

Convention on the Safeguarding of Intangible Cultural Heritage

UNESCO began to focus on the safeguarding of intangible cultural heritage in 1971, with the first normative instrument being the Recommendation on the Safeguarding of Traditional Culture and Folklore in 1989 (Aikawa 2004). This was followed by the Universal Declaration on Cultural Diversity in 2001 and the Istanbul Declaration in 2002. In addition, the Proclamation of the Masterpieces of the Oral and Intangible Heritage of Humanity commenced in 2001 to raise awareness of intangible cultural heritage. It was with this background that the CSICH was adopted in 2003 and came into force in 2006.

The CSICH recognizes the interdependence of intangible and tangible cultural heritage and natural heritage, threats to its survival, and the important role of communities (particularly indigenous communities) in the “production, safeguarding, maintenance and recreation of the intangible cultural heritage”.21 The aims of the CSICH include safeguarding, ensuring respect for, and raising awareness of, the importance of intangible cultural heritage and providing international cooperation and assistance.22 ‘Intangible heritage’ is defined broadly and the five domains in which it may be manifested are noted as: oral traditions and expressions, including language; performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship.23 The definition of ‘safeguarding’, under Article 2, focuses on ensuring the viability of the intangible cultural heritage, its transmission and, where necessary, revitalization. The role of education, both informal and formal is also emphasized. An Intergovernmental Committee is established to promote the objects of the Convention, provide guidance, make recommendations on measures for the safeguarding of intangible cultural heritage, as well as establish procedures for inscription on the CSICH lists.24 The obligations of state parties are set out in Part III and include the identification of intangible heritage within their territories and the preparation of inventories. Relevant heritage is to be identified with full participation of all stakeholders, with the form of the inventories to be determined by the individual countries. Thereafter the obligations are to safeguard heritage by developing a national policy, designating a relevant body, fostering research, and adopting legal, technical, financial and administrative measures.25 The treaty also provides specific guidance to facilitate protection, including education, awareness raising and capacity building and the full participation, consent and involvement of communities.26 The only other state responsibilities include periodic reporting on legislative, regulatory and other measures taken.27 Reciprocally, the international obligations include general provisions for cooperation28 and assistance29 as well as specific measures including the establishment of a Fund for the Safeguarding of the Intangible Cultural Heritage30 a Representative List of the Intangible Cultural Heritage of Humanity, 31 and a List of Intangible Cultural Heritage in Need of Urgent Safeguarding to ensure the visibility of, and raise awareness about, ICH.32 Importantly, under Article 18, the Committee is to select and promote programs, projects and activities for the safeguarding of ICH and include best practice means of implementing them. One such initiative is the Living Human Treasure program which facilitates the transmission of knowledge, skills and the meaning of ICH by encouraging member states to officially recognize persons who possess a high degree of knowledge and skills required for performing or re-creating ICH, and assisting these individuals to transmit knowledge and skills to younger generations.33 Projects and activities in the Pacific region include: language revitalization projects, establishing and promoting Traditional Money Banks in Vanuatu, safeguarding of Vanuatu Sand Drawings, establishing a National Living Human Treasures system in Fiji and safeguarding of the Lakalaka Sung Speeches with Choreographed Movements in Tonga.34 The UNESCO website includes a wealth of information and resources in relation to inventorying, safeguarding, transmission and protection of ICH. These include a sample of an outline for inventorying ICH, a Register of Good Practices of Language Preservation, a register of NGOs, centres and experts working on safeguarding ICH, UNESCO Database of National Cultural Heritage Laws and the Asia-Pacific Database on ICH.35 In addition an online exchange platform has been established on Facebook© where communities, organizations and individuals can share information on safeguarding ICH.36

Unlike the World Heritage Convention, CSICH is more focused upon the process of safeguarding heritage rather than protecting its products. Two aspects in particular stand out: the emphasis on community recognition of intangible cultural heritage and community consent and co-operation in its identification and management; as well as the focus on the living nature of cultural heritage and the necessity for its continued relevance, value and practice (Kurin 2007). CSICH therefore supports the maintenance of cultural diversity both quantitatively and qualitatively by encouraging all member states to identify and protect intangible heritage within their jurisdictions and safeguard it in ways which maintain its functional relevance. CSICH will likely be ratified by the Pacific SIDS, principally because it offers opportunities for safeguarding intangible heritage but imposes few additional obligations on the state. This is explored in further detail below.

Opportunities Offered by CSICH

A significant benefit arising from ratification of CSICH would be the international recognition of intangible heritage. At present, regionally listed intangible heritage includes only the Vanuatu Sand Drawings and Tongan Lakalaka Dances.37 Including additional items on the Representative List would draw international attention to Pacific heritage. This is important for two reasons: first is the wealth of intangible heritage in the Pacific representing a “significant enrichment of the global heritage catalogue” (Smith and O’Keefe 2004: 12). Second is the rather poor recognition of Pacific sites on the World Heritage List, with the Kuk Early Agricultural Site in Papua New Guinea and Vanuatu’s Chief Roi Mata’s Domain being the only cultural heritage inscriptions in the region.38 To a certain extent, this lack of representation is due to the small amount of monumental heritage in the region. This leads to the second benefit of CSICH in that it complements the protection of tangible sites under the World Heritage Convention, greatly expanding the range of heritage acknowledged as globally significant.

From a more practical perspective, CSICH can play an important standard-setting role and provide normative guidance on safeguarding mechanisms. This would assist regional programs by harmonising approaches and providing guidance in circumstances where national and regional resources are poor. In terms of developing legislative frameworks, the international assistance provided by UNESCO is a further powerful advantage.

CSICH, and more particularly the programs and projects developed by UNESCO, offers safeguarding options which could be adapted by Pacific states. For example, a Living Human Treasure program has already been established in Fiji and may be suitable to other Pacific SIDS as well.39 UNESCO provides a forum for sharing best practice regionally and globally and this can be seen from the registers and database referred to above. These might also provide guidance to Pacific states. In this sense, ratification of CSICH would allow Pacific nations to share experiences with other SIDS beyond the region. This could be facilitated through the UNESCO regional office in Samoa.

Capacity building and awareness raising is also a focus for UNESCO. Ratification of CSICH would facilitate this and may also provide a focus for international aid where projects are based upon UNESCO and CSICH programs.

Barriers and Challenges

While the ratification of CSICH may provide opportunities to enhance protection of Pacific heritage, there are also some barriers. Many SIDS have limited financial and technical capacity and therefore may be reluctant to take on new obligations under international law that divert resources from other projects. Yet, in the context of CSICH, it can be seen that most of the state responsibilities are already being addressed. CSICH requires states to identify heritage, prepare an inventory, establish a national focal point and develop a national policy. The above analysis shows that these measures are either being done or planned for the near future. However, additional obligations such as treaty reporting requirements are often seen as a practical barrier to ratification of international treaties in the region (Jalal 2006).

Drafting legislation is another significant challenge to the Pacific SIDS. Difficulties in developing national legislation have obstructed World Heritage inscriptions and will likely pose a challenge in the implementation of CSICH too. Designing new laws is no simple matter. The SIDS are now independent, but have been left with a common law legal system which was imposed during colonial times on a strong tradition of customary law and practices. This situation is what commentators refer to as “legal pluralism” (Merry 1988). Customary laws and traditional practices have guided Pacific communities for generations (Colding and Folke 2000). It is clear that there were customary laws to protect heritage and cultural expression (RaoRane 2006) as well as other social norms, such as secrecy (Zagala 2004). New legislation that conflicts with customary law is unlikely to succeed, so the two frameworks must be reconciled if positive outcomes are to be achieved. This legally pluralist context complicates the development of new law and places additional pressure upon national governments. While the UNESCO databases may offer some guidance, it is clear that new laws would need to be designed on a state-by-state basis. The Pacific SIDS are in a poor position to make extensive legislative assessments and revisions as they lack financial resources and an appropriate pool of expertise. Perhaps this is an area where UNESCO could take the lead and conduct research focused on assisting legally pluralist nations. Similar work has been done in relation to legal pluralism and human rights (International Council on Human Rights 2009) and environmental law (UNEP 2009).

A further consideration, one not well addressed by CSICH, is the economic reality in the Pacific: issues of economic development remain dominant. As noted above, cultural heritage has important economic value and could provide one avenue for sustainable development. While CSICH focuses on maintaining the functional use and relevance of intangible heritage, it does not articulate how this might be achieved in the context of development. To a certain extent the problem has been addressed through the adoption of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which focuses upon, inter alia, the integration of culture in sustainable development.40 The Convention suggests aiding the emergence of viable cultural industries, strengthening cultural activities and the production and distribution of cultural goods and services, facilitating wider access to global markets and networks, and encouraging appropriate collaborations between developed and developing countries in areas, such as music and film.41 Ratification of this treaty should also be considered in tandem with CSICH.

The Way Forward

While law alone cannot safeguard heritage, it plays an important role in protecting vulnerable heritage and creating an environment conducive to the establishment of indigenous enterprises based upon cultural goods and services. International heritage law can set global standards and catalyse normative action. It is important therefore that the Pacific SIDS consider ratification of CSICH as the above analysis confirms that the benefits far outweigh the added state responsibilities that this would entail.

In order to be effective, international law needs to be implemented at the regional and national level. Particular regional issues must be recognized and therefore action at that level must be facilitated. The UNESCO Pacific sub-regional office has a role to play, as do Pacific organizations such as SPC and PIFS. The lack of appropriate national legislation can be a barrier to both the recognition and safeguarding of cultural heritage and leave indigenous traditional knowledge and cultural expression, in particular, open to exploitation and misappropriation. There is little doubt that loss of cultural diversity is a global problem requiring international attention, but there is unlikely to be a single law and policy framework that suits every country. Indeed, even with the best of intentions, when international law is translated into national action, it may damage customary law and undermine local governance. Culturally relevant domestic legislation is therefore needed. For this to be achieved, national governments need to engage effectively with the communities and individuals who are custodians of intangible cultural heritage. In designing new laws in the Pacific, the legally pluralist context needs to be taken into account. Legislative approaches which conflict with deeply ingrained customary laws and norms are unlikely to be effective. Therefore the participation of local people is essential: not only in the implementation of laws, but also in their design.

While heritage law and policy provides a solid foundation for the recognition and safeguarding of cultural heritage, it does not operate in isolation. In order to truly safeguard intangible cultural heritage, and ensure that it continues to evolve, it is necessary to facilitate its functional use. The threats to heritage are, at least in part, a result of contemporary social and economic activities and therefore approaches to the safeguarding of intangible cultural heritage must engage with the broader pressures placed upon it. Thus, Pacific SIDS would do well to integrate heritage conservation with broader socio-economic and environmental objectives. Simultaneously, approaches to sustainable development would ideally facilitate the maintenance of cultural heritage, rather than threaten it.

Conclusion

Pacific island states have a rich cultural heritage which has to date received limited global recognition. This cultural heritage is now under considerable threat and concerted effort is essential if it is to be safeguarded. Pacific SIDS have come a long way in establishing programs specifically aimed at protecting their intangible cultural heritage. Many are now in the process of developing specific cultural laws, policies and strategies. Lacunae still remain, however, and international law such as the CSICH offer opportunities to fill these gaps. This chapter has identified the ways in which CSICH might be utilized by the Pacific region SIDS to boost their existing programs and catalyse further action. It is clear, though, that effort is needed at all levels of governance to ensure that this region’s rich culture heritage is globally recognized, viably safeguarded and sustainably utilized by and for present and future generations.

Footnotes

  1. 1.

    This definition appears in the Preamble to the UNESCO Universal Declaration on Cultural Diversity, 2001: see unesdoc.unesco.org/images/0012/001271/127160m.pdf. It is noted there as being in line with the conclusions of previous conferences and reports including the World Conference on Cultural Policies, held in Mexico City in 1982; the report of the World Commission on Culture and Development, Our Creative Diversity, 1995; and the Intergovernmental Conference on Cultural Policies for Development, held in Stockholm in 1998: see notes to Preamble, p. 12.

  2. 2.

    Article 1, UNESCO Universal Declaration on Cultural Diversity, 2001.

  3. 3.

    For example, the International Covenant on Economic, Social and Cultural Rights, 1966 (see http://www2.ohchr.org/english/law/cescr.htm) refers to the freedom to pursue cultural development. In addition, indigenous collective rights in respect of culture are articulated in ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (see http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169) and in the United Nations Declaration on the Rights of Indigenous Peoples, 2007 (see http://www.iwgia.org/sw248.asp) including respect for and protection of cultural values and practices and the right to practise and revitalize cultural traditions and customs.

  4. 4.

    For example, the World Intellectual Property Organizations (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore met in July 2010 to discuss draft text for an international agreement on the protection of traditional cultural expressions and expressions of folklore (WIPO 2010): see http://wipo.int/meetings/en/topic.jsp?group_id=110.

  5. 5.

    Declaration of Belém, 1988 which is also well known for being the first international instrument to note the “inextricable link between cultural and biological diversity”: see www.ethnobiology.net/global_coalition/declaration.php.

  6. 6.

    These are the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict1954; UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property1970; UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972; UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects1995; UNESCO Convention on the Safeguarding of Intangible Cultural Heritage2003; UNESCO Convention on the Protection of the Underwater Cultural Heritage2001; and UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions2005. For access to the full text of the treaties see http://portal.unesco.org/culture/.

  7. 7.

    These include the Federated States of Micronesia, Fiji Islands, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. Other island jurisdictions in the region include American Samoa, Cook Islands, French Polynesia, New Caledonia, Niue, Northern Mariana Islands, Pitcairn Islands, Tokelau and Wallis and Futuna; however, these are overseas territories of other countries, and not independent states.

  8. 8.

    Personal Communication Adi Meretui Ratunabuabua, Department of Culture and Heritage, Fiji, 24 May 2010.

  9. 9.

    Personal Communication Setoki Qalubau, Ministry of Indigenous Affairs, Fiji, 26 May 2010.

  10. 10.

    Local and Indigenous Knowledge Systems in a Global Society.

  11. 11.
  12. 12.

    For example, in Fiji, Levuka has been on the tentative list for some time; but it has not yet been nominated for inscription.

  13. 13.

    Section 35(a).

  14. 14.

    Section 12(1)(a).

  15. 15.

    Preservation of Sites and Artefacts (Amendment) Act 2008.

  16. 16.

    The Pacific Islands Forum Secretariat (PIFS) has 16 member countries and is the intergovernmental organization that coordinates the implementation of the Pacific Plan: http://www.forumsec.org.fj/.

  17. 17.

    The Secretariat of the Pacific Community (SPC) was founded in 1947 and provides technical, research, educational, and planning services to its 26 member states: http://www.spc.int/.

  18. 18.
  19. 19.

    Collaborators include SPC, Secretariat of the Pacific Regional Environment Program, and World Intellectual Property Organization.

  20. 20.
  21. 21.

    Preamble to the Convention on the Safeguarding of Intangible Cultural Heritage.

  22. 22.

    Article 1 of the Convention on the Safeguarding of Intangible Cultural Heritage.

  23. 23.

    In particular noting that it must be “recognized” by a community, group or individual and is being “constantly recreated”; also that it includes associated tangible heritage such as “cultural spaces” and “instruments, objects and artefacts”: Article 2.

  24. 24.

    Articles 5 and 7 of the Convention on the Safeguarding of Intangible Cultural Heritage.

  25. 25.

    Particular reference is made to establishing training and documentation institutions and ensuring access to the intangible cultural heritage while respecting customary practices: Article 13 of the Convention on the Safeguarding of Intangible Cultural Heritage.

  26. 26.

    Articles 14 and 15 respectively.

  27. 27.

    Article 29 of the Convention on the Safeguarding of Intangible Cultural Heritage.

  28. 28.

    Article 19.

  29. 29.

    Articles 20–24.

  30. 30.

    Articles 25–28.

  31. 31.

    Such list to include items previously listed as Masterpieces of the Oral and Intangible Heritage of Humanity: Article 31.

  32. 32.

    Articles 16 and 17 respectively.

  33. 33.
  34. 34.
  35. 35.
  36. 36.
  37. 37.

    State signatories to CSICH, in the Pacific region, include Fiji, Papua New Guinea, Tonga and Vanuatu: http://www.unesco.org/culture/ich/index.php?lg=en&pg=00024.

  38. 38.

    The Bikini Atoll in the Marshall Islands has also been inscribed but for its significance as a nuclear test site rather than indigenous cultural heritage. Regionally there are three other sites all of which are inscribed for natural values: East Rennell in the Solomon Islands, the Phoenix Islands in Kiribati and the Lagoons of New Caledonia. There are, however, many sites in the region on the tentative list.

  39. 39.
  40. 40.

    Article 13.

  41. 41.

    Article 14.

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Copyright information

© Springer 2011

Authors and Affiliations

  1. 1.Centre for International & Environmental Law, Macquarie Law SchoolMacquarie UniversitySydneyAustralia

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