12.00 Intangible Cultural Heritage: The International Legal Framework for Cultural Safeguarding and Legal Protection
This paper examines the ‘ownership’ and ‘possession’ of intangible cultural heritage (ICH) in the international legal framework. Intangible cultural heritage is living heritage, it is the cultural ‘practices, representations, expressions, knowledge and skills manifest in domains such as ‘dances, song, storytelling and crafts. It has been given an exalted status, described as “the most important vehicle of cultural diversity." It has political, social, economic and environmental values and ‘heritage (as) justice’ is one of the ‘uses’ of this heritage.
In the international legal framework, these intangible elements are distinguished from tangible properties (monuments, sites and places) protected under UNESCO’s regime for world cultural heritage. There has been significant interest in examining the international law and ethics around the ownership, possession and restitution of tangible cultural heritage, particularly artwork or archaeological objects. The safeguarding of ICH and the identification of beneficiaries and their rights is less prominent and less well defined.
The international legal framework is a wide umbrella and rights to ICH can be assigned by instruments seeking to safeguard cultural heritage, to protect intellectual property and trade and manage the traditional knowledge of genetic resources.
This paper explores whether there is ‘cultural property’ in ICH and how international conventions and agencies negotiate States claim rights to ‘possess’, ‘own’, ‘use’, ‘control’ or ‘practice’ it. It identifies the actors and interests at play in this sought after ‘property’ and how human rights, as cultural rights, are framing the discussion.
The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage is not concerned with ICH as cultural property, it’s purpose is, inter alia, is to safeguard the viability and continuance of ICH. Some elements of ICH, however, such as traditional knowledge and traditional cultural expressions, may be protected as intellectual property, and like real property, may be sold or conveyed.
This paper explores how the international legal framework addresses the ‘use’, trade and control of ICH, seemingly at a remove from the communities who create it. It addresses how the international legal framework reflects ideas of ‘ownership’ of intangible cultural heritage? Which ICH is a common heritage of humanity, or a common concern of humanity, which is for the public domain and which is exclusive?
It discusses the consideration of intangible cultural heritage as intellectual property. The United Nation’s World Intellectual Property Organisation is concerned with the protection of intellectual property rights for ‘traditional cultural expressions’ and ‘traditional knowledge’ and its member States have been negotiating draft articles towards international agreements for some 15 years, without conclusion. In the meantime, the primary cultural heritage instrument, the ‘soft law’ of the Intangible Cultural Heritage Convention of 2003 has achieved almost universal acceptance.
Other international legal conventions, such as the Convention for Biological Diversity 1992 and provides protection for the knowledge and practices of indigenous and traditional communities and the ‘equitable sharing’ of benefits arising from the use of those knowledge and practices.