Draft of Intangible Cultural Heritage Law Limits Research Activities; Xinjiang Case Study Shows Politicization of Heritage (Updated)

February 16, 2011

A recently revised draft law on protecting intangible cultural heritage―such as traditional songs, craftmaking, storytelling, and sports―requires that foreign groups collaborate with a Chinese cultural heritage organization and that foreign individuals receive approval from cultural heritage agencies to carry out survey work in China. The provisions appear to add an additional layer of control over existing restrictions on foreigners' research activities. The draft law also contains provisions requiring that efforts to safeguard intangible cultural heritage benefit state goals such as "ethnic unity" and "a sense of identification with the Chinese nation." Despite some potentially beneficial aspects of the draft law, if passed as currently written, the law could impede the ability of both Chinese and foreigners to investigate China's intangible cultural heritage, due both to the limits on collaborative and foreign research as well as other provisions that allow broad and politically motivated interpretations. A case study from China's far western region of Xinjiang sheds light on how political considerations to date have affected Chinese government policy toward intangible cultural heritage.

Draft Law Includes New Limits

Authorities have revised a draft law on protecting intangible cultural heritage to place explicit controls on foreigners' activities, while retaining a requirement that research benefit state political objectives, provisions that could limit Chinese and foreign efforts to research, interpret, and safeguard intangible cultural heritage. In response to comments to the first draft of the law (available via the National People's Congress (NPC) Web site, posted August 28, 2010), made available for public comment in August, authorities submitted a revised draft in December to require that all foreign organizations carrying out surveys (diaocha) on intangible cultural heritage in China collaborate with a Chinese intangible cultural heritage research organization (xueshu yanjiu jigou) and receive approval for their project from agencies in charge of cultural heritage (wenhua zhuguan bumen) at the provincial level or higher, according to a December 20, 2010, Legal Daily article and December 21 China Daily article. The revised draft also requires foreign individuals (jingwai geren) planning surveys to receive approval at the county level. The draft law does not define the scope of "foreign organizations" or specify whether foreign individuals must be affiliated with certain professions.

Article 13 of the initial draft had required official approval for joint projects between foreign organizations and Chinese counterparts, but did not specify that foreign organizations must collaborate with a Chinese institution or that individuals must receive official approval from a cultural heritage agency. Article 43 suggested that more restrictions were in place beyond what was specified in Article 13, however, by imposing penalties on foreigners, including the possibility of fines of up to 50,000 yuan (USD$7,560) for individuals and 500,000 yuan (USD$75,600) for groups that carry out surveys without official approval. (See the next paragraph for a discussion of restrictions on general survey work already in place in China under an earlier set of measures.) Article 43 also penalizes Chinese organizations other than intangible cultural heritage academic research institutions that collaborate with foreign organizations and individuals, as well as such approved institutions that collaborate without permission. Article 13 of the initial draft on intangible heritage also requires that the results of joint foreign-Chinese surveys be turned over to the agency that approved the surveys, in the form of reports and copies of any data, items, or photographs obtained in the course of the research. The revised draft appears to retain this requirement. (A full copy of the draft law as revised in December appears to be unavailable on the Internet. See a Legal Daily article, via China Legal Publicity, December 21, 2010, for a description of other changes to the draft law.)

Foreign organizations and individuals are already subject to various requirements regarding their research activities and collaboration with Chinese partners. The draft law appears to add an extra layer of control by requiring approval and oversight specifically from a government agency that oversees cultural heritage, although the draft law does not specify the relationship between its requirements and existing restrictions. The 2004 Measures for the Management of Foreign-Affiliated Surveys govern general foreign-affiliated survey work in China. It divides surveys into market surveys and social surveys and defines the latter to include the "activities concerning the collection, arrangement, and analysis of related social information done via questionnaire, interviews, observation, or other methods"(Art. 3). The draft law on intangible cultural heritage does not include a separate definition of surveys. The 2004 measures require that the National Bureau of Statistics (NBS) and lower level NBS bureaus oversee, examine, and approve survey work in advance (Arts. 4, 21); prohibits foreign individuals and groups from directly carrying out their own surveys; and requires foreign collaboration with a Chinese institution that the government has licensed to do foreign-affiliated survey work (Arts. 9, 10). The measures prohibit surveys that may result in "violations of state religious policy or destroy ethnic unity" and "the propagation of cults and superstition," among other acts (Art. 7). Penalties for violating the provisions include fines up to 30,000 yuan (USD$4,540) (Articles 31-33).

Draft Law Promotes Heritage Protection in Line With State Goals

The intangible cultural heritage draft law as a whole focuses on creating government mechanisms for cataloging, protecting, and promoting intangible cultural heritage. As defined in Article 2 of the draft law, intangible cultural heritage refers to traditional cultural expressions and to related objects and sites, including oral literature, arts, music, dance, traditional crafts, customs, and sports. An explanation of the law's provisions (available with the draft copy of the law) refers to the obligations of States Party to the United Nations Educational, Scientific and Cultural Organization's (UNESCO) Convention for the Safeguarding of Intangible Cultural Heritage, which China ratified in 2004. The provisions on documenting, protecting, and promoting heritage follow the general aims of the UNESCO Convention, though the UNESCO Convention does not place restrictions on the nationality of those involved in work related to intangible cultural heritage.

Despite some potentially beneficial aspects of the draft law, if passed as currently written, the law could impede the ability of both Chinese and foreigners to investigate China's intangible cultural heritage, due both to the limits on collaborative and foreign research as well as other provisions that allow broad and politically motivated interpretations. Article 4 of the draft law requires that protecting intangible cultural heritage "be beneficial to strengthening cultural identification with the Chinese nation (zhonghua minzu)" and "be beneficial to upholding the unification of the state and ethnic unity" as well as to "promoting social harmony," provisions that provide a basis for rejecting or censoring the results of survey proposals and findings that do not adhere to officially sanctioned narratives connected to cultural practices. Article 11 calls for cultural heritage agencies to keep public files and databases on intangible heritage available to the public, except for "parts that should be secret." The draft law does not include criteria for determining which items should be kept from public access.

The China Daily article suggests political motivations for restricting foreign research and application of the intangible cultural heritage law to a wide range of activities. A specialist was paraphrased in the article as saying that "[s]ome organizations and individuals from abroad have taken advantage of this legal loophole [allowing foreign access to intangible cultural heritage] to survey, collect, purchase and videotape China's intangible cultural heritage." A law professor cited in the article, who recalled encountering ethnic Qiang villagers who "told all they know about the endangered and highly protected Shibi (shamanic) culture to inquisitive foreign researchers," said that research by foreigners could contribute to promoting China's cultural heritage but that "laws and regulations must be enacted to safeguard China's cultural security."

Case Study: The Uyghur Meshrep

The process of identifying intangible cultural heritage through country nominations to UNESCO allows for the possibility of governments privileging some variations of intangible cultural heritage over others or politicizing the content--a phenomenon not limited to China but nonetheless exacerbated by the Chinese government's tight controls over some cultural practices. A recent example concerning a form of Uyghur intangible cultural heritage from the Xinjiang Uyghur Autonomous Region (XUAR)―a gathering for social rites and musical performance known as the meshrep―illustrates how Chinese authorities to date have imposed politicized controls on intangible cultural heritage, with implications both for how communities enjoy their heritage and how researchers study it. Some controls in the XUAR are unique to the region, but the example of the meshrep also sheds light on broader factors in China that affect intangible cultural heritage. The example also suggests possible implications of China's intangible cultural heritage law, although its final content and ultimate impact remain unknown.

In 2010, UNESCO inscribed the meshrep on its List of Intangible Cultural Heritage in Need of Urgent Safeguarding, following China's nomination of meshrep and two other forms of intangible cultural heritage, as reported in a November 17, 2010, Xinhua article. According to a UNESCO description of its intangible heritage lists, inclusion in the list of heritage in need of safeguarding "help[s] to mobilize international cooperation and assistance for stakeholders to undertake appropriate safeguarding measures," a process which would be subject to requirements in China's draft law on intangible cultural heritage. In addition, "States must pledge to implement special protection plans" and "may benefit from financial assistance from a Fund managed by UNESCO," according to a September 11, 2010, UNESCO press release on inscriptions to its intangible cultural heritage lists.

While the meshrep now stands designated as a form of heritage in need of safeguarding, China's proposed draft law would impose restrictions that could affect research and safeguarding efforts, especially in the case of foreign researchers whose proposals are subject to formal approval. A November 2010 independent review of China's application to UNESCO by ethnomusicologist Rachel Harris (available via download at www.unesco.org/culture/ich/doc/download.php?versionID=06371) illustrates divergent opinions about the meshrep that could face scrutiny under the proposed revised draft of the intangible cultural heritage law. In her review, Harris expressed concern about the Chinese government's portrayal of the meshrep, noting that its submission to UNESCO neglected to address risks to the meshrep's viability including "local restrictions on a range of community-based religious activities and on large public gatherings," as well as the increasing use of Mandarin Chinese in XUAR schools (page 5). Noting that meshrep gatherings may incorporate religious content, she also raised concern about the Chinese government submission's limited reference to Islamic practices incorporated in meshrep (page 8). In response (report available via download at www.unesco.org/culture/ich/doc/download.php?versionID=07602), the XUAR Cultural Department argued meshrep practices respected Islamic customs, but that "Meshrep is a space for traditional cultural practices instead of religious practices" (para. 4.2). It also disputed the stated restrictions on meshrep, on religious activities, on language use, and on large public gatherings (para. 2). In addition, the report took issue with Harris's description of the XUAR as "Chinese Central Asia," because "[s]uch wording has never been used or recognized by the Chinese Government" (para. 1).

Examples from recent years suggest the bases for Harris's concerns about controls over the meshrep and state-defined interpretations of its content. In the mid-1990s, authorities prohibited a form of meshrep gatherings in Yining (Ghulja) city, Ili Kazakh Autonomous Prefecture, that sought to reduce alcohol and drug use and had become active in organizing a boycott of alcohol stores. (See Jay Dautcher, "Public Health and Social Pathologies in Xinjiang," in Xinjiang: China's Muslim Borderland, ed. S. Frederick Starr (Armonk, NY: M.E. Sharpe, 2004), 285-286, for more information). Authorities in the region also continue to exert tight control over religion and take steps to curb religious activities outside government-approved parameters, in line with both national and local directives. XUAR authorities also have taken steps to deter large-scale gatherings. In addition, Mandarin-focused "bilingual" education programs have reduced the scope of Uyghur in XUAR schools.

For more information on conditions in the XUAR, see Section IV―Xinjiang in the CECC 2010 Annual Report.

UPDATE, March 7, 2011: The National People's Congress Standing Committee adopted the Intangible Cultural Heritage Law on February 25, 2011, as reported that day in the People's Daily and Xinhua. The law enters into force on June 1, 2011. In the law as adopted, Article 15 requires that both foreign organizations and individuals receive approval for survey work from agencies in charge of cultural heritage at the provincial level, changing the requirement in the draft that individuals only receive approval at the county level. Though the wording differs in some respects from earlier drafts, the law continues to require that foreign organizations collaborate with a Chinese intangible cultural heritage research organization and that the organizations turn over copies of their research results to the agency that approved the project. Article 41 maintains the same level of possible fines for foreign groups and individuals that violate the provisions in Article 15. It excludes specific mention of penalties for Chinese groups deemed to violate the provisions in Article 15, which were included in the first draft of the law.