Intangible cultural heritage (ICH) is a relatively recent addition to the corpus of international heritage law. Traditional conservation theory, which is the foundation of heritage law, has long delineated heritage only through physical manifestations such as monuments, sites and objects. Intangible heritage does not fit into these categories. To accommodate the introduction of living, non-material forms of heritage, the notion of cultural heritage, as defined in legal instruments, is undergoing a phase of re-conceptualisation. This thesis explores the shifts and divergence that have taken place within the heritage discourse to accommodate the notion of ICH. It explores the transformation of cultural heritage from its focus on tangible manifestations to a broader understanding of heritage in both tangible and intangible forms and the links between them. The conceptual development of intangible heritage reflects an intellectual shift stemming from discourse in international forums and a general criticism that monuments do not embody all forms of cultural heritage. This thesis also examines the delineation of intangible cultural heritage within heritage law and the broader discourse. It proposes to broaden the concept of ICH, as currently conceived, as a set of characteristics which constitute the concept.
This thesis further explores how legislation relating to the heritage has been drafted and how safeguarding mechanisms have been developed. The development of intangible heritage theory and ICH law is shown to have been driven substantially by the work of UNESCO. This work has culminated in the adoption of the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) (ICH Convention) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). In addition to these binding normative instruments, intangible heritage law finds its source in soft law instruments—i.e. legal instruments that do not provide legally-binding obligations. Soft law instruments are fundamental for the role that they play in the development of legal precepts which often develop to become customary law or jus cogens. Twelve soft law instruments are identified as having made a substantial contribution to the development of ICH law. The precepts enshrined within these documents inform safeguarding measures in legislative and policy documents. This thesis presents a critical analysis of both hard and soft law instruments. It is argued that ICH law draws upon, and finds its foundation in, three fundamental principles—the principles of cultural rights, the right to education and the right to community participation. These rights are framed, in the context of this study, as principles which developed within soft law and are further clarified within the ICH Convention.
The critical analytical approach to intangible heritage law taken in this exploration reveals a number of issues. The first issue is that the national legislative instruments, and the mechanisms for safeguarding outlined within them, are still largely founded in Western conservation theory and legal norms. This approach is not necessarily reconcilable with the notion of ICH or the local realities of Asian legal systems. The legal systems of many countries in Asia comprise not only state-based legal systems but also unofficial legal systems based on social power structures and customary/community law. The second issue is that there is a fundamental inconsistency between the international and national legal frameworks on heritage conservation. The Convention for the Safeguarding of Intangible Cultural Heritage places strong emphasis on community participation. However, legislating at the national level for the safeguarding of ICH to meet State Party obligations established by the Convention results in a top-down approach that largely transposes Western legal norms into non-Western legal contexts. On the one hand the Convention calls for bottom-up community safeguarding measures, which would incorporate local customary laws and values, and on the other it still relies heavily on top-down state legal systems. This is particularly manifested in some Asian countries where aspects of customary legal systems are themselves an element of the countries’ ICH and as such are the object of safeguarding measures, yet may be in conflict with state legal systems.
Through a practical examination of Cambodian heritage law, as applied to the Angkor World Heritage Site, this thesis indicates that the legal framework that protects Angkor is overwhelmingly focused on tangible heritage. The existing framework is largely unchanged from that of the former French administration and reflects an outdated Eurocentric notion of heritage in its physical form. The focus on the tangible has been perpetuated since the World Heritage Convention was introduced by the international emphasis placed on the preservation of the monuments. This thesis shifts the focus to Angkor’s intangible cultural heritage. The analysis highlights a substantive gap in the legal framework and the need for a holistic management approach that incorporates the safeguarding of both the physical and the intangible cultural heritage. The thesis further explores, through the case study of Angkor, how international obligations are interpreted and implemented at a local level. The divergent ideologies of international law and policy, and of states and local communities are further highlighted. The role of local customary systems, in the practice of intangible heritage, presents further conundrums that need to be examined.
In order to safeguard intangible heritage values a fine line must be walked between the freezing of culture, the commodification of tradition, the commercialisation of customs, the authenticity of practice, the maintenance of ethnicity and identity, the realisation of cultural rights and the politicisation of heritage. The tackling of these issues implies the need for a balance of competing forces–state and local, private and public, law and custom – and presents both challenges and opportunities for the protection of ICH. The findings presented in this thesis conclude that the safeguarding of ICH necessitates a broader approach than that inherent in the ICH Convention. It argues that further emphasis needs to be placed on local communities’ involvement in safeguarding measures. This requires a fundamental power shift and a move away from state-based regulatory frameworks as the sole means of protecting ICH. The use of localised culturally-sensitive policy approaches, which incorporate community-based legal systems and cultural rights theory, is one possible solution. This broader approach goes beyond the development of an inventory or list of intangible heritage items, nor is it based solely on legal mechanisms. Instead, the analysis of heritage law and the findings at Angkor, suggest the development of a localised culturally-sensitive mixed policy and law approach that is founded on the principles of cultural rights, community participation and education incorporating local ideologies and ‘bottom-up’ mechanisms. The thesis concludes that a full appreciation of the outstanding universal value of heritage sites requires the research, respect and safeguarding of intangible heritage. A draft policy document, which draws on these conclusions, has been developed and is put forward to contribute to the safeguarding of ICH both at Angkor and globally.