ICH Implementation beyond the State: Responses from the EU and the Council of

Responses to challenges in implementing Intangible Cultural Heritage have proven to be scarce at regional levels. This might partly be derived from inter-institutional gaps among international organisations and similar institutional or mandated actors persisting until today. In that sense, implementation faces yet another challenge, particularly as far as regional legal orders are concerned. This could be illustrated by regional IOs or similar institutions and their reluctance to obeying international law. In the case of the EU, for instance, overriding doctrines such as ‘direct effect’ and ‘supremacy’ require respective responses within domestic orders and policies. While being bound to international law, the EU would not necessarily assume prime responsibility when taking implementing action where States remain primordially accountable to peoples’/people’s living in their jurisdictions. In that sense, State sovereignty prevails over regional legal orders. The ra-ther fragmented international legal landscape, however, does not reveal similar binding effects, owing to the quasi-judicial nature of some instances; the voluntariness of submit-ting to monitoring or ad hoc revision; or limited fields of application such as human rights without streamlining effects beyond clearly demarcated frameworks, to name a few.

In the light of such persisting gaps between international and regional frameworks, cultural bearers and their advocates are called upon to engage in a creative reading of existing sources. Confronted with steadily growing human rights frameworks at regional levels and their binding effects for Member States, questions arise as to the altering status of international legal commitments towards, for instance, cultural rights and international ICH regimes. In the following, we will thus trace and discuss legal sources and policies adopted by the EU and the Council of Europe, providing some form of answer to the ICH implementation dilemma.

While several legal instruments have been adopted by the Council of Europe includ-ing minorities and language rights standards, these do not guarantee direct associations with or extending their protective mechanisms to Intangible Cultural Heritage per se. In a similar vein, European Union institutions have refrained from developing legally binding standards in the specific field of ICH and respective cultural rights regimes. However, existing ‘hard law’ instruments could inspire developments in the intangible sector by sensitising decision-makers in the subject area and, in turn, incentivise standard-setting.

Generally, EU institutions enjoy broad mandates under EU law and the Lisbon Treaty in particular. The very principle of cultural diversity is embedded in the Lisbon frame-work; cultural diversity is explicitly to be mainstreamed in all EU cultural policies.²⁸ The Treaty on European Union (TEU) further stipulates the Union’s mandate in the cultural heritage sector, namely its role in respecting ‘its cultural and linguistic diversity’ and ensuring that ‘Europe’s cultural heritage’ is safeguarded and enhanced (Art.3, TEU).

Interestingly, the term ‘safeguarding’ is employed which at least suggests that cultural heritage is protected in a way that resembles the UNESCO framework. Similarly, the Treaty on the Functioning of the European Union (TFEU) provides some general orienta-tion in terms of the Union’s approach and core responsibilities in the cultural heritage sector. Accordingly, the Union is to ‘contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’ (Art.167(1), TFEU). This context equally reflects the spirit that is promoted by CSICH and CPPDCE in the sense that it allows promoting cultural heritage while considering diversity and pluralism.

Yet, critical questions could be raised in terms of what constitutes ‘the cultures of the Member States’ which is ultimately determined by the very Member States and in that way does not preclude homogenous assimilationist narratives to be promoted at domestic level. Conversely, the same provision establishes protection regimes that resemble the ones established by TEU: the Union’s actions ‘shall be aimed at (…) the conservation and safeguarding of cultural heritage of European significance’ (Art.167(2)TFEU). The very terms of the provision indicate a considerable mandate, including conserving and safe-guarding cultural heritage that may be relevant beyond Europe’s borders such as its role in external policies and development cooperation. The open and flexible wording might also encourage promoting recently recognised cultural practices and expressions such as knowledge that is transmitted by newly arrived migrants such as refugees to future gen-erations. Finally, the terms ‘conservation’ and ‘safeguarding’ suggest that both material and Intangible Cultural Heritage have acquired legal status and entered common termi-nology to the EU legal framework.

Apart from the general mandate that is established by TEU and TFEU, particular em-phasis is placed on the movement of cultural goods in the EU legal order, clearly empha-sising the significance of material rather than Intangible Cultural Heritage. This is

28 Interview with Francesco Francioni (Professor Emeritus of International Law at the European Universi-ty Institute and Professor of Int.l Cultural Heritage Law at LUISS UniversiUniversi-ty).

ed in EU-IO agreements in the area of trafficking cultural goods. It also includes a range of legislative acts dealing with, for instance, the return of cultural objects unlawfully re-moved from the territory of a Member State (e.g. Directive 2014/60/EU) or regulations on the export of cultural goods (e.g. Council Regulation (EC) 116/2009). Additionally, the Council of the European Union and the representatives of the governments of the Member States have committed themselves to promoting cultural diversity and intercultural dia-logue in the external relations of the Union and its Member States in order to strengthen the

‘role of culture in the policies and programmes conducted within the framework of ex-ternal relations and promoting cooperation with third countries and international or-ganisations with responsibility in the field of culture, in particular UNESCO and the Council of Europe (…)’ (OH C 320, 2008)

Despite this broad mandate in recent cultural policies and programmes, Intangible Cultural Heritage remains at the very surface of policies with a few exceptions.

Similar to the aforementioned CPPDCE, the Council of Europe adopted the Declara-tion on Cultural Diversity in 2000 and thereby explicitly protects cultural diversity under-stood as culturally different practices and culturally different services and products. Some informal safeguards are provided by relating cultural diversity to free creative expression and freedom of information. Interestingly, the instrument embarks on other fields and rights by linking cultural diversity and sustainable development with the objective of enabling future generations to engage in culturally diverse practices, constituting at the same time one of the core elements in the ICH regime and transmission practice. The Declaration further proposes specific measures to promote and respect cultural diversity in the area of cultural and audio-visual policies in relation to trade, the knowledge econ-omy, cultural industries that encourage linguistic diversity, public service broadcasting, education, professional and user training. A final role is played, it could be argued, by the Convention on the Value of Cultural Heritage for Society (Faro Convention)²⁹ adopted in 2005 which would accommodate cultural traditions, mutual cultural understanding and respect for pluralism.³⁰

29 Other CoE instruments of possible relevance include The Declaration on Intercultural Dialogue and Conflict Prevention (2003), the Faro Declaration on the Council of Europe’s Strategy for Developing Intercultural Dialogue (2005) or the Parliamentary Assembly of the Council of Europe Recommendation 1277 (1995) on migrants, ethnic minorities and media.

30 Interview with Francesco Francioni (Professor Emeritus of International Law European at the Universi-ty Institute and Professor of Int.l Cultural Heritage Law at LUISS UniversiUniversi-ty).

4. Intangible Cultural Heritage and its Imminent Extinction: Contemporary Risks