HUMANITY
Document ITH/12/7.COM/13.a Decision 7.COM 13.a
910. Recalling that the first of the four reflections was requested by the General Assembly in June 2012, the Chairperson remarked that any or all of them could lead to proposed amendments to the Operational Directives for examination by the General Assembly at its fifth session. Thus, the Committee was not requested to examine concrete proposals, but rather to discuss whether it wished to see specific amendments at its next session. The Chairperson emphasized that the Committee was not under any obligation to propose a revision of the Operational Directives, but could instead decide that the Committee had sufficiently reflected.
911. Drawing attention to the working document 13.a, but also the report of the Subsidiary Body, the Secretary recalled that the referral option had initially been proposed by the first Subsidiary Body in 2009 that already ‘regretted that the Operational Directives did not provide for a deferral of evaluation, as such a decision would spare the submitting State Party the four year delay required before being permitted to re-submit an element if the Committee decided not to inscribe it’ (Document ITH/09/4.COM/ CONF.209/INF.6). At its fourth session in Abu Dhabi in 2009, the Committee recommended amending the Operational Directives that provided, ‘After evaluation the Committee decides whether an element shall or shall not be inscribed on the Representative List, or whether to refer the nomination to the submitting State’. Paragraph 3613 of the Operational Directives was later adopted with minor amends by the General Assembly in 2010. It was important to note that the referral option was available only to the Representative List because it was the sole mechanism imposing a four-year waiting period before resubmission (in paragraph 37 of the Operational Directives). By 2011, the Subsidiary Body could apply the rule and recommend a referral, with the first decision on referrals taken at the Committee’s sixth session in Bali. The Subsidiary Body report highlighted the mixed feelings among members on receiving referral recommendations as Committee members in 2011 and then having to evaluate the referred files resubmitted in 2012.
912. The Secretary remarked that the resubmission of referred files brought about its own specific problems from those already encountered with the resubmission of withdrawn files – a provision that allows a submitting State to withdraw its file at any time during the evaluation process and before the Committee’s examination. The Secretary explained that referred files would have already been evaluated by the Subsidiary Body with some of the criteria already deemed satisfied, while withdrawn files would not have been scrutinised by the Committee and thus not be subject to a decision. Thus, the Subsidiary Body was free to review the resubmitted file that had previously been withdrawn in its entirety, which was not necessarily the case for referred files since some of the criteria was said by the Committee to have already been satisfied. It was noted that the Subsidiary Body had evaluated 8 resubmissions (after withdrawal) in 2010, and 8 in 2011. There were no such files in 2012, but 3 in 2013; 4 withdrawn files were still in the backlog. As pointed out by several of the subsidiary bodies, the fact that the interpretation of criteria evolved and improved meant that there was a need to balance predictability and coherency in the decisions, i.e. as the
13 . Paragraph 36: Nominations for the Representative List of the Intangible Cultural Heritage of Humanity that the Committee decides to refer to the submitting State for additional information may be resubmitted to the Committee for examination during a following cycle, after having been updated and supplemented.
criteria evolved so too would the documentary evidence that the criteria were still satisfied a couple of years later. The Secretary explained that the issue of consistency from year to year for resubmitted files was therefore a broader issue than the referral itself owing to the more stringent requirements to meet the criteria. The Secretary cited as an example the recently recommended minimum number of words in the nomination form. The question was whether the previously satisfied criteria could now be rejected based on a technicality.
913. The Secretary also highlighted the second major problem, which was how to distinguish a ‘no’ from a ‘refer’ recommendation so that ‘refer’ was not considered a ‘polite’
or ‘soft’ no, i.e. the question was whether it served the interests of the submitting States or the Committee. Another issue concerned the problem of consistency between the Representative List (with the referral option) and the Urgent Safeguarding List (with no referral option), since it was noted that there were more options provided to files for the Representative List than the Urgent Safeguarding List, even though greater consideration was sought for the Urgent Safeguarding List and less for the Representative List. The result was that there were now two different standards of evaluation for the two lists. The Secretary surmised that should the Committee consider that it wished to retain the referral option, then a clearer distinction could be made between a ‘yes’, ‘no’ and ‘refer’, or it could adopt the referral option for the Urgent Safeguarding List or remove the four-year waiting period. Thus document 13.a proposed two options: i) to continue reflecting on the issue; or ii) to draft specific Operational Directives reflecting the comments and recommendations during the debate for examination at the Committee’s eighth session for adoption by the General Assembly in 2014.
914. The Chairperson thanked the Secretary for her explanation of the complicated subject.
915. The delegation of Spain believed that the document prepared by the Secretariat reflected all the elements of the debates so far, and also that further reflection was required.
Hence, the delegation supported Option A.
916. The delegation of Greece spoke of its concern with regard to the voting procedures conducted yesterday in which the Committee encountered a confusing situation that saw a decision with 11 favourable votes rejected (since 13 votes were apparently required), while in the same session a decision was adopted with 9 favourable votes (since there were only 5 votes against). The delegation found that the inconsistent voting process was a blow to the credibility of the Committee and violated the principle of equal treatment by fuelling discriminating practices. The delegation had requested the Chairperson of the Bureau to rectify the situation, but the request was declined, adding that it hoped that the regrettable decision experienced by Greece would not happen again and suggested that the voting rules be incorporated into the Rules of Procedure. The Committee should agree that when a decision could not be reached through consensus, then a formal vote should take place, which would prevent such conflicting situations from reoccurring.
917. Thanking Greece for its intervention and recommendation, the Chairperson concurred that the Bureau members had earlier listened and discussed Greece’s concern, believing that Greece’s experience should better guide the working of the Committee and strengthen the recommendations made.
918. The delegation of Nigeria recommended the introduction of a ceiling on the number of referrals, suggesting that the 4-year rule before re-submission be aligned with the Urgent Safeguarding List, as suggested by the Secretariat.
919. The delegation of Belgium endorsed the remarks by Greece, adding that there should be greater clarity in the procedures. Referring to paragraph 8 of decision 7.COM 11, the delegation explained that the Subsidiary Body was asked to only apply the referral option in exceptional cases. The delegation emphasized the importance of capacity-building so as to improve the nomination, particularly with regard to the new nomination form. The delegation therefore sought a reflection in the eighth Committee session with regard to this point, and therefore supported Option A.
920. The delegation of Latvia believed that the referral was a good option from three perspectives: i) in the case of a submitting State presenting a nomination file for the first time and therefore lacking experience; ii) when technical gaps in the nomination required clarification; and iii) for the purpose of public relations that allowed the submitting State to better communicate with the media, while avoiding terms such as ‘rejected’ and ‘not supported’, which were inappropriate when speaking of intangible cultural heritage. The delegation noted that submitting States tended to view referrals as negative decisions, and not as an opportunity to consider the advice so as to clarify aspects of the nomination file.
921. The delegation of Burkina Faso remarked that the referral was an opportunity to clarify minor technical questions that could be quickly rectified, but that it had been applied in such a way that it had lost its purpose and was considered more as a polite No, rendering it open to different interpretations. The question was whether the option should be maintained.
922. Referring to the points raised by the Secretary, notably whether the referral should be applied to the Urgent Safeguarding List, the delegation of Czech Republic believed that the mechanisms could not be applied in the latter because they were quite different, for example, the information required on safeguarding measures in U.3 was more extensive.
With regard to the second issue raised, the delegation did not believe that the Subsidiary Body should have unlimited possibilities to refer the files for additional information and suggested that referrals be limited to one or two. The third point concerning whether only the sections covered by the referral and not the entire file be revisited, the delegation found the issue more complicated as the criteria were markedly different, with some criteria requiring an in-depth examination of the other criteria at the same time, for example, in the case of evidence of community participation, which could not be determined hastily.
923. The delegation of Brazil remarked that the four criteria in the Representative List and the Urgent Safeguarding List were essentially the same and that greater consistency should be sought with regard to the two mechanisms. The delegation found that paragraph 37, pertaining to the 4-year delay, unnecessarily differentiated the two lists. Moreover, the referral option would not be required if paragraph 37 were to be deleted. Thus, the delegation favoured a reflection on concrete proposals and thus supported Option B.
924. The delegation of Morocco remarked that the reflection on the referral was additional proof of the Committee’s concern to constantly strive to improve the procedures in the implementation of the Convention. The delegation wished to highlight two important and differentiating aspects. Firstly, the absence of technical details in the nomination form, notably in R.4 and R.5, which were easy to rectify as they concerned the submission of physical evidence. However, the interpretation and justification provided by the submitting States, notably in the first three criteria, represented a different dimension of the nomination and was the likely cause of the uncertainty, as observed during the debates.
925. Referring to the recommendation by the Subsidiary Body that the referral be applied only to technical issues, the delegation of Grenada reiterated that the referral should not be a polite No, since it only opened the possibility of reversing decisions. The delegation agreed with Brazil that greater consistency was needed between the two mechanisms and it suggested a recommendation to the General Assembly to delete paragraph 37, and thus it favoured Option B. The delegation also agreed with Greece that the Committee’s working methodology should be clear and transparent.
926. The delegation of Japan found the referral to be a good tool that facilitated the work of the States Parties, and as a new initiative deserved further reflection, though concrete and clear guidance was required. The delegation believed that both Option A and Option B could be combined such that the Committee could continue its reflection in both directions, while requesting the Secretariat to propose concrete draft amendments.
927. The delegation of Belgium supported the remarks by Japan in that the two options provided were not exclusive.
928. The Chairperson thanked the Committee whose comments would strengthen the Convention, surmising that the referral itself was not the source of the problem but rather the States Parties’ interpretation of the option. Returning to paragraph 5 of the draft decision and the options provided, the Chairperson noted that there was support for Option B and support to adopt both options. The Chairperson noted support for the latter from Indonesia, Grenada, Belgium, Czech Republic, Peru, Latvia, Uganda, Nigeria, Nicaragua, Morocco, Tunisia and Azerbaijan. Noting a consensus to adopt both options, the Chairperson turned to paragraphs 1–4 of the draft decision, which were duly adopted.
As a result of the consensus in paragraph 5, two separate paragraphs (corresponding to the two proposed options) were proposed.
929. The delegation of Belgium proposed to add ‘eighth session’ in conformity with paragraph 8 of Decision 7.COM 11, which would help determine whether the referral option functioned correctly. With regard to Option B, the delegation remarked that the timing was such that the Secretariat had already to reflect on the eighth session should the Committee wish to draft amendments to the General Assembly, which had to be reflected in the decision.
930. The Chairperson then turned to the proposed amendment in paragraph 5, which would read: ‘Decides to continue its reflection on the experience gained in implementing the referral option at its eighth session in conformity with paragraph 8 of Decision 7.COM 11 and invites the Subsidiary Body to address this topic in its 2013 report to the Committee’.
The Chairperson noted support for the amendment from Grenada, Peru, Azerbaijan, Albania, Nicaragua, Czech Republic, Kyrgyzstan and Latvia. With no objections to amended paragraph 5 and paragraph 6, they were duly adopted.
931. With no further comments or objections, the Chairperson declared adopted Decision 7.COM 13.a.
932. Before leaving the podium, the Chairperson took the opportunity to thank the interpreters.
[The Vice-Chairperson from Morocco took over from the Chairperson]
ITEM 13.b OF THE AGENDA :
REFLECTION ON THE RIGHT SCALE OR SCOPE OF AN ELEMENT