10 com ith/15/10. Com/4 Paris, 27 October 2015 Original: English

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Document ITH/14/9.COM/13.c

Decision 9.COM 13.c

1059.The Chairperson then turned to agenda item 13.c, giving the floor to the Secretary.

1060.The Secretary recalled that in June 2012, the General Assembly invited the Committee to reflect on the experience gained in the implementation of the referral option that was introduced in 2010 only for the Representative List. At its seventh and eighth sessions in 2012 and 2013, the Committee considered two options: keep the existing Operational Directives, requesting that the Subsidiary Body continue to make a coherent and limited use of the referral option, or delete the referral option and paragraph 37 of the Operational Directives, i.e. remove the 4-year waiting period following a decision not to inscribe. Thus, either an element was inscribed or the submitting State could return with a revised nomination already in the subsequent cycle if the element was not inscribed. During discussions at its eighth session, several Members of the Committee were in favour of maintaining the referral option, while emphasizing that one of the objectives of the referral was to avoid disappointment among the communities, and that a ‘no’ was more severe than a referral. The referral option was therefore considered as a simpler way to reject a nomination when based on a lack of technical detail or essential information. Many Members stressed however that Decision 7.COM 11, recalling the instruction to use the referral option only when there was a lack of technical details, had not defined ‘technical details’, which led to different interpretations within the Subsidiary Body and the Committee. The Committee finally decided not to recommend amendments to the Operational Directives at that time and to continue its reflection. It was noted that this was the fourth year that the referral option was in place. Document 13.c included a table that summarized the trends of the Subsidiary Body in its choice between the three options, namely, inscription, non-inscription and referral. The Secretary remarked that the Rapporteur of the Subsidiary Body in its 2014 report, made earlier in the week, had pointed out that when the submitting State had correctly demonstrated that a criterion had been met, it was easy for Members to unanimously confer a ‘yes’. Conversely, when all the Members had agreed that they could not confer a ‘yes’, long debates were needed to decide whether the nomination should be referred due to a lack of technical detail, or conferred a ‘no’ due to a lack of crucial information that prevented the Body from determining that the criterion could be satisfied. The fact that a recommendation ‘not to inscribe’ was clearly a huge disappointment to the State and the communities concerned, the Subsidiary Body concluded that the referral option might be the only alternative to an inscription of an element, without engaging the Committee to a later inscription. It was considered that the most important thing was to explain the reasons behind non-inscription at that stage, whether for technical or more fundamental reasons. The Subsidiary Body also pointed out that the period of four years, in case of non-inscription, would thus be unnecessary and recommended its removal. The draft decision reflected the Body’s suggestion to only keep two options: the inscription of an element on the Representative List, or the referral of the nomination to the submitting State, while eliminating the 4-year period. It thus requested the Secretariat to propose an amendment text that reflected the Committee’s decision in this regard, based on the discussions that would ensue in the present debate. Moreover, it seemed appropriate to the Subsidiary Body (now the new Evaluation Body) that all the mechanisms should be subject to the same number of options, whatever the decision of the Committee.

1061.The Chairperson opened the floor for comments.

1062.The delegation of the Republic of Korea believed that the process of examining nominations rather than evaluating cultural heritage per se and the results of a technical examination showed the various levels of maturity of submitted nominations for inscription on the Representative List. The delegation surmised that the Subsidiary Body could find that a nomination required at least four more years to be improved upon to meet the criteria for inscription, or it might deem from the outset that the nomination was incompatible with the Convention’s purpose. The delegation believed that in such cases, the ‘not to inscribe’ option had value and thus should remain in the system. Nevertheless, the Committee should pay special attention to the side effects that a ‘not to inscribe’ decision brought to the bearer communities, as this could give the communities a wrong impression that their cultural heritage was not worth inscribing, even though the decision was a result of the technical examination of the submitted files, not the heritage per se. However, the delegation also believed that eliminating the ‘not-to-inscribe’ option was an excessive measure, adding that instead the Committee should minimize the side effects of this option. For this, it was necessary to introduce a new wording to replace ‘not to inscribe’. It was noted that some Members had suggested that the withdrawal of nominations that received a recommendation ‘not-to-inscribe’ could undermine the value of such decisions. However, it maintained that the draft decision served as a good signal for submitting States in their work to resubmit their nomination in the future. Considering all these aspects, the delegation felt, as in the World Heritage context, that it could be worth rephrasing the option ‘not to inscribe’, as well as considering ‘referral for better preparation of the file’.

1063.The delegation of Namibia remarked that the referral option was challenging in many ways in that it was only applied to the Representative List in cases where the level of technical detail had been identified. However, the definition of ‘lack of technical detail’ was not clearly defined, as indicated in paragraph 4. Furthermore, when the referral option was introduced during the 2011–2012 cycle, it was an addition to two clear-cut concepts, namely, ‘to inscribe’ or ‘not to inscribe’. There was a view that the referral option was a softer ‘no’. The delegation added that States Parties submitted their nominations with the hope of inscription, and a soft ‘no’ was not at all consoling. In fact, in the way it was applied, the referral option had the same effect as a non-inscription. In addition, there was the 4-year waiting period during which time a file that was recommended ‘not to inscribe’ could not be resubmitted. Nevertheless, the delegation supported the draft decision.

1064.The delegation of Saint Lucia understood from the draft decision that it proposed that the Committee could no longer decide that an element could not be inscribed, and it questioned whether that was a reasonable decision. The delegation wished to know whether the draft decision implied that a State Party could continue referring its nomination indefinitely in the case of a referral. It was clear that there were instances when the element could not be inscribed, i.e. if there were issues of human rights, or if the element was not intangible heritage. It thus suggested enlarging the notion of referral, adding that a nomination could be referred when it could not be inscribed immediately because of missing information, whether substantial or technical, and that it could come back in a year. It agreed with the abolition of the 4-year period, while the referral option would be enlarged to all nomination files that could not be inscribed immediately for one reason or another. In this way, the ‘no’ would be retained in a very reduced scope and applied only when the element cannot be inscribed, adding that a referral in this case was not fair to the State Party or the communities. The State should thus refrain from submitting these kinds of elements.

1065.The delegation of India tended to support the recommendations by the Subsidiary Body when evaluating files. It had noted that the Subsidiary Body found it more difficult to choose between ‘no’ and the referral option, adding that more time was spent on deciding between a ‘no’ and a referral than between a ‘yes’ and ‘no’. It also noted the importance of the Body’s recommendations to the State Party on the missing information, technical or substantive, which helped the submitting State rework its nomination or decide not to submit its nomination. The delegation strongly felt that the 4-year period for resubmission was unnecessary and should be avoided. It thus agreed with the draft decision, adding that it could go along with a proposal in the nomenclature, which was not a big issue.

1066.The delegation of Egypt fully agreed with Saint Lucia and India that the 4-year waiting period should be discontinued, or the Committee should find an acceptable alternative solution. For example, it could ask the submitting State to provide missing information and in this way it could choose the option of postponing for one year.

1067.The delegation of Brazil believed that there was a large consensus that the Committee should get rid of the 4-year rule, especially as States Parties could withdraw their nominations before they reached the Committee, so it was never fully applied. Considering the proposal to simplify the decision to two options: inscription or referral, the delegation tended to agree with Saint Lucia that it was good to have three options, and be able to confer a ‘no’. The delegation felt that if the Evaluation Body had problems deciding whether the nomination was a referral or a ‘no’, it should expect the Committee to make the final decision to confirm the decision either way. Thus, it was good to have the three options, with the Evaluation Body tasked to make comments on the criteria, which was the most important thing, as these helped the Committee decide whether the nomination was a resounding ‘no’ or a referral. The delegation reiterated that it had doubts on whether it would be helpful to get rid of the ‘no’, as otherwise these nominations would continue to be resubmitted.

1068.The Chairperson opened the floor to Norway as an observer.

1069.The delegation of Norway conveyed that it had followed the day’s debate with great interest and believed that the matter at hand was of much broader significance than merely the question of referral or non-inscription. Referring to the discussions that had taken place during the present session, the delegation believed that a wider reflection was needed on the principles relating to the Committee’s treatment of the files and, not least, the common understanding of the Convention. These principles should be kept in mind and adhered to in a consistent manner, which was necessary for the credibility of the Convention and for the very safeguarding of intangible heritage. Thus it was indeed a time for reflection, and it hoped to have the opportunity to discuss this further at the next General Assembly.

1070.The delegation of Kyrgyzstan wished to draw attention to the opinions of its members within its Electoral Group IV who did not agree with the draft decision and preferred to have three options. In addition, Kyrgyzstan, as Member of the Subsidiary Body, spoke of how difficult the evaluation process was and therefore felt that it was much better to have three options that included the referral.

1071.As member of the Subsidiary Body this year, the delegation of Latvia, clarified that the work conducted was mainly based on the decision that was taken by the Committee at its seventh session, which stated that the referral option should only be adopted in cases concerning technical detail. Thus, the wording should be maintained, as the Evaluation Body working this year would take that decision into consideration. Referring to the point by Saint Lucia, and its own experience, the delegation believed that the referral option could be applied to much broader cases, i.e. not only with regard to technical details, as this was something that the Secretariat already dealt with, but also more substantively. Thus, it supported broadening the referral option, while considering that there might be cases, i.e. with regard to human rights, or when a nomination did not constitute intangible cultural heritage, that the Committee could be in a position to also adopt a negative decision.

1072.As a member of the Subsidiary Body, the delegation of Greece also reflected on the treatment of the files, adding that the present discussion was very fruitful and a step forward on this issue. The delegation remarked that over the last two or three years, the Committee was concerned about the definition of a referral, whereas today it was more concerned about the definition of a ‘no’ and its meaning, which it felt was a better starting point for reflection. The delegation referred to the remarks by Saint Lucia on the case for a ‘no’, which was also somehow mentioned in the draft decision, i.e. that a ‘no’ should be applied in cases where the element proposed did not constitute intangible cultural heritage, or when it violated basic human rights. The delegation felt that this scenario was a better place to reflect and redefine the cases where the referral and ‘no’ was applied. It was therefore happy that the discussion took this direction, which was more fruitful than previous discussions on the referral option.

1073.Noting the general consensus, the Secretary summarized that the Committee wished to see the removal of the 4-year waiting period, to maintain the ‘no’ option, and to enlarge the application of the referral, on the understanding that the Committee had the freedom to move from one category to another. The Secretary also noted that there was an agreement, including among members of the Subsidiary Body who had initially proposed to only keep the referral, to accept that a ‘no’ could be applied in some cases, albeit exceptionally. The Secretary therefore suggested proposing amendments to the draft decision that reflected the consensus.

1074.The Chairperson proposed to review the amendments proposed by the Secretary later in the day, and thus moved to agenda item 14.

1075.The delegation of Kyrgyzstan believed that Latvia’s comments should be taken into consideration in that the scope and nature of the referral should be considered thoroughly.

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