HUMANITY
Document ITH/13/8.COM/13.b Decision 8.COM 13.b
985. The Chairperson turned to an item that had been the subject of debate for many years: the referral option for nominations submitted to the Representative List.
986. The Secretary recalled that the referral option had been introduced in the Operational Directives by the General Assembly in June 2010 upon the Committee’s recommendation in 2009, which itself received a proposal from the Subsidiary Body, and was used for the first time in 2011. As a result, the fourth General Assembly in 2012 requested the Committee to reflect on the experience gained in implementing the referral option for the Representative List. Moreover, at its seventh session, the Committee requested the Subsidiary Body to limit its use so that it only applied to cases concerning the lack of technical detail in the nomination file [Decision7.COM 11]. However, the Committee also decided to continue its reflection at the present session and invited the Subsidiary Body to address this topic in its 2013 report to the Committee. It was also ready to examine possible draft amendments and requested the Secretariat to propose such amendments [Decision 7.COM 13.a]. The key point was that the referral option provided flexibility without having to provide an unfavourable recommendation and a four-year delay before resubmission.
However, it was generally agreed that the referral option was not intended to function as a
‘polite no’ when one or more criteria were not met. No referral option was available for the Urgent Safeguarding List or the other mechanisms, leading to possible confusion. In response to decision 7.COM 11, the 2013 Subsidiary Body used the referral option in only a single case. This was achieved, however, only by exercising flexibility in evaluating criteria R.4, R.2 and R.5. Members of the 2013 Subsidiary Body were not unanimous regarding the referral option. Some were in favour of its elimination, while others wanted to retain it with an option that submitting States could report in three years’ time on any weaknesses, or ask the Secretariat to expand its scope of treatment. The draft decision contained two options. Option A proposed no changes to the Operational Directives, with Decision 7.COM 11 remaining in effect and requesting the Subsidiary Body to continue making limited use of the referral. Option B recommended revisions to the Operational Directives that would delete the referral option together with paragraph 37, which prohibited the resubmission of a file within four years, in this way eliminating the necessity to use the referral option. Any amendments would be examined by the General Assembly at its next session in 2014.
987. With no questions raised, the Chairperson moved to the draft decision on a paragraph-by-paragraph basis. With no comments or objections, paragraph-by-paragraphs 1–4 were pronounced adopted. The Chairperson moved to the discussion on the two available options.
988. The delegation of Morocco remarked that it was in favour of retaining the referral option but only if it applied to technical issues. However, if the referral in such cases could not be guaranteed, then it was in favour of Option B.
989. The delegation of Nicaragua remarked that although the two options were interesting, it favoured Option A in which the Committee should continue to reflect on the issue and only use the referral under exceptional circumstances.
990. The delegation of China recalled that one of the purposes of referral was to mitigate the disappointment of both communities and the submitting States, and as such preferred Option A. In this way, States would be encouraged to take the time necessary before resubmitting a revised file, and this was a more acceptable approach to dealing with questions and confusion that might arise from the communities and the groups concerned.
991. The delegation of Latvia noted that the referral option in the present session had been used in three cases: one based on lack of explicitness in safeguarding measures (criterion R.3); and two nominations having raised substantial debate on criterion R.1 and the identification of intangible cultural heritage, a crucial and long-debated issue on the scope of the element. The delegation believed that in the two cases based on criterion R.1, the decision to use the referral option was grounded, comparable and consistent. As regards possible amendments to the Operational Directives, it maintained its position that in certain cases the referral option might be relevant, while respecting the decision to apply this option as rarely as possible. In cases where inscription was not convincing or not clearly or sufficiently grounded, the delegation considered that the referral option could be used exceptionally. In this respect, it was in favour of Option A: to continue the reflection on the referral option, as proposed by China. Lastly, the delegation pointed out an error in paragraph 5 and the use of ‘Consultative Body’ in place of ‘Subsidiary Body’.
992. The delegation of Burkina Faso believed that the referral option was indeed a very good option for those nominations lacking a minor technical detail, which was the rationale behind its adoption. However, in light of the remarks by Latvia and Morocco, it was clear that the Committee had not defined ‘lack of technical detail’, which opened the door to many other things. As such, it considered it preferable to delete the referral option, together with the four-year waiting period, and implement Option B. The delegation reiterated Latvia’s remarks that if there was uncertainty in the identification of criteria R.1 and R.2, the referral option had lost the original purpose for which it had been adopted.
993. The delegation of Egypt noted from the examination of files in recent years that there was a difference in the abilities, experience and expertise in every country, and therefore favoured retaining the referral option. It noted that the Committee granted the referral option upon the judicious recommendations of the Subsidiary Body. In this case, the use of the referral option had been appropriate.
994. The delegation of Indonesia considered the discussion on the Operational Directives as very important, adding that they should be exhaustive before arriving at any consensus or compromise on the issue. It associated itself with the comments by Nicaragua, and strongly supported the spirit of the intervention by China.
995. The delegation of Spain believed that such a radical change in direction had many repercussions, especially for the communities, and as such required further reflection. It explained that it was very discouraging for a community to receive a ‘No’ with little chance of changing the file because of a series of formal technical issues. The result was that it provided little incentive to communities and would only add to their frustrations. The referral was therefore a softer option for communities that would have worked for a long time on a file.
996. The delegation of Peru was inclined to follow China and Spain, adding that a ‘No’ had an enormous effect on the communities. A referral was thus a softer and easier way of saying
‘No’, and was more acceptable, knowing that it was based on a lack of information either for technical reasons or about general content with a view to improving the file, which encouraged the resubmission of an improved file. Moreover, regardless of how much the Committee insisted that the ‘No’ referred to a deficient file, it would still be perceived by the community as a ‘No’ to the element. For this reason, it preferred Option A: to retain the referral, adding that the present Committee was a demonstration of its satisfactory use.
997. The delegation of Czech Republic associated itself with the remarks by Morocco and Burkina Faso, supporting the flexible use of the referral option in the case of files lacking technical detail. Unfortunately however, the criteria for its proper use had not been clearly defined. The delegation recalled that the Committee had previously debated the issue in an effort to find a good solution, but felt that it was better to have Option B, to inscribe or not to inscribe an element, until the Committee managed to have clear criteria and thus fair decisions.
998. The delegation of Belgium endorsed the comments by Burkina Faso, the Czech Republic and Morocco. Nevertheless, it was not in favour of deleting the referral option, but was in favour of rethinking the referral. It noted the difficulty during the present debates in applying the referral option, as the precise nature of the technical details and criteria were unclear.
The delegation thus favoured Option A, and defining the criteria more precisely.
999. The delegation of Albania supported the remarks by Belgium, preferring to keep the referral and reflecting on its definition and use, adding that it was a fact that the Committee had used the referral for reasons other than lack of technical information. It was therefore in favour of extending the definition of referral, so that it would be applied not only in cases where there was a lack of technical information, but when the Subsidiary Body or the Committee were unsure whether or not to inscribe the element. It was also true that the Committee could not say ‘No’ to inscriptions such that the referral – from the point of view of the Committee – provided some flexibility and lessened the disappointment of communities and governments. The delegation felt that it was beneficial to keep the option in order to avoid hasty decisions to inscribe. On the other hand, it was not in favour of the proposal by China to delete the ‘No’ because it believed that as a principle the ‘No’ option should continue to exist whenever criteria were not met. Concluding, the delegation favoured Option A and extending the use of the referral beyond the lack of technical information.
1000. The delegation of Kyrgyzstan remarked on the necessity to enhance international assistance for capacity building, recognizing the recurrent problem of capacity in elaborating nomination files. In this context, it was more reasonable to keep the referral option, and as such it supported the point made by Albania that the referral option should probably not only be applied for technical issues. In this way, it would provide a wider, more powerful and flexible tool to bring about a common platform.
1001. The delegation of Namibia felt that the core of the matter was the lack of definition of what was implied by technical detail in the referral, and it supported those who sought to continue the reflection in this regard. The delegation therefore favoured Option A.
1002. The delegation of Azerbaijan believed that the Committee should take into account the opinions of the Subsidiary Body, adding to the remarks by Morocco, Burkina Faso and others who experienced problems with the identification of technical problems. It explained that it was indeed a very difficult task to apply the referral as it created misunderstandings and did not send a good message to the State Parties. Taking this into account, it supported Morocco, Burkina Faso, Egypt and the Czech Republic, and thus Option B.
1003. The delegation of Uruguay favoured Option A for the reasons mentioned by others, but also from the experience of the eighth session in which the Subsidiary Body only recommended one referral out of 31 nominations, which were minimal percentages quantitatively speaking and was not going to change the quality of nominations.
1004. The delegation of Grenada favoured Option A.
1005. The delegation of Tunisia considered the referral option as a sort of polite ‘No’, but even though the referral was restricted to technical matters, it led to misunderstandings and disappointments vis-à-vis the submitting countries. The referral option therefore had to be clearly defined, as well as the context in which it would be applicable. The delegation therefore called for greater reflection and thus generally preferred Option B.
1006. From personal experience in the Subsidiary Body, the delegation of Nigeria saw the referral option as a polite ‘No’, providing a wider ambit of opportunity to reassess the whole nomination file. It therefore supported Option A.
1007. The delegation of Madagascar understood that the issue was indeed very delicate, but in light of the remarks supported Option A.
1008. The delegation of Greece remarked more on the underlying issues than simply the referral or ‘no inscription’ options. It explained that the Representative List by definition should represent a list of the cultural heritage of the world and as such was strongly inclined to go with China, Indonesia and Peru. Nevertheless, it was in favour of postponing the decision, as the crux of the problem was not the referral option, but the Committee’s expectations vis-à-vis the Representative List, i.e. its structure, and on how many elements it could absorb every year. The delegation thus favoured Option A with a view to widening this discussion on the character of the Representative List and how the criteria were implemented and interpreted. It was thus neither strongly in favour of referral nor strongly against it.
1009. The Chairperson noted the opposing proposals, and invited the Secretary to assist the Committee in clarifying the situation.
1010. The Secretary did not find the various interventions necessarily contradictory, adding that the explanations given did not fully correspond to either Option A or Option B, but rather an Option C. The Secretary noted three key questions. Firstly, did the Committee agree to abolish the principle of the four-year delay? It was noted that the consequences of the delay often incited the Committee to decide on a referral in place of a ‘No’. Secondly, did the Committee recognize the usefulness of the referral option, and could it differentiate it from the ‘No’ option, and thus extend it to the other mechanisms? Thirdly, did the Committee agree to the referral, to extend its scope to other mechanisms, and also to extend its scale to include other issues of criteria that would benefit from reworking in addition to technical details? The ‘No’ option would be retained and applied whenever the Committee and the Subsidiary Body were fully convinced that the criteria had not been met. The referral would thus not be abolished and applied whenever there was a possibility to clarify the nomination. The Secretary therefore proposed that the Committee first reflect on the three questions, which would then help formulate concrete amendments.
1011. The delegation of Spain agreed that there were too many questions with very different consequences and that the Committee would not be able to solve this at the present session, and sought further reflection on the issue.
1012. The delegation of Indonesia agreed that the discussion reflected the situation and that there was no differentiation among the Committee Members who all wished to seek better Operational Directives. It reiterated its strong support for the spirit of China’s intervention.
The issue of referral was of course important for everyone and required cautious reflection as it had real implications for local communities. The delegation added that if the Committee was unable to have exhaustive discussions on the issue during the present session than more time was needed for further reflection.
1013. The delegation of Uganda had other issues other than the technical issues that were the main reason for the referral option and in view of the limited number of years since its application and the considerable efforts made by the communities to nominate their files, supported the option of continuing to experiment with the referral option.
1014. The delegation of Brazil remarked that the referral option in the 1972 Convention was applied when the outstanding universal value (OUV) of the property was verified, but there were other problems in the management and/or conservation plan. The delegation noted that in the present session, the main problems were found to be in the safeguarding measures, surmising that the referral could be used to allow the State Party to review those safeguarding measures and return the following year with a better safeguarding plan. From the debate, the delegation noted that the Committee was not fully inclined to propose solutions to the General Assembly and thus should continue its reflection. Noting that there was no opposition voiced to eliminating the four-year delay, it suggested eliminating the four-year delay and continuing the reflection, and also to apply the referral option to the Urgent Safeguarding List.
1015. The Chairperson remarked that the comments expressed were in line with his own vision, adding that there was another option to consider, which was to remove paragraph 37 from the Operational Directives that would eliminate the time limit and enable States Parties to submit nominations within a shorter time frame. Once this was clarified, it would be easier to apply the referral option to the other mechanisms, whose files would be considered equally.
1016. The delegation of Greece agreed with the Chairperson’s proposal and said that the Secretariat should consider the issues and draft an amendment. It supported removing the four-year waiting period as well as extending referral to the other lists, while still reflecting on how to make the Convention function better.
1017. The delegation of Egypt noted that the option to maintain the referral option received the majority support, and it also supported the remarks by Greece.
1018. The delegation of Nicaragua agreed on continuing the reflection process, as this was more than a technical issue since it involved communities and their likely disappointment, adding that communities should be encouraged so that their cultural practices could be recognized as part of intangible cultural heritage. In addition, it wished to examine the files that were still pending. For instance, no one knew when the withdrawn files from the present session would be treated, as there were still about 50 files in the backlog. Time was thus needed to find a satisfactory alternative.
1019. The delegation of Albania thanked the Secretary for structuring the discussion. With regard to the four-year delay, it was not opposed to its removal, but held that a firm consensus or an overwhelming majority was needed in the Committee in order to change the Operational Guidelines. With regard to the second question, it believed that referral was indeed useful, more so for the Committee than the Subsidiary Body, providing that it was used sparingly by the Subsidiary Body. The question was whether the extension of referral to the other mechanisms was useful, as the sole purpose of referral in the Representative List was to avoid the four-year delay, which did not exist for the other mechanisms. In this case, a ‘No’
had the same impact as a referral. It invited the Secretary to reply in this regard. On the third question, the delegation agreed that the Committee should define the scope, perhaps even enlarging it, adding that it was important to differentiate between the referral option of the 2003 Convention and the 1972 Convention. It also believed that referral should be clarified so that it was understood that it did not imply that the element would automatically
had the same impact as a referral. It invited the Secretary to reply in this regard. On the third question, the delegation agreed that the Committee should define the scope, perhaps even enlarging it, adding that it was important to differentiate between the referral option of the 2003 Convention and the 1972 Convention. It also believed that referral should be clarified so that it was understood that it did not imply that the element would automatically