A framework for the protection of intangible cultural heritage in international law

Abstract

The thesis discusses the avenues for legally protecting intangible cultural heritage (ICH) in international law. This is a new topic in international cultural heritage law, and it has a deep impact on the way one looks at international cultural heritage law generally. The thesis argues that efforts to protect ICH can be examined from two different perspectives. On the one hand, ICH can be protected by institutions acting within their mandates. This happens on three different levels: international, regional and national. At the international level, the foremost initiative is the specific UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage, which not only offers the most sophisticated legal definition of intangible cultural heritage, but also creates a listing mechanism aimed at drawing attention to ICH and the need for its safeguarding. While the system is imperfect in many instances, as it gives too much authority for States to determine what intangible heritage is worth protecting (sometimes at the expense of national cultural minorities), the system has already been reformed since its creation, and the reforms have taken decisive steps towards more community inclusion. At the regional level, initiatives happen both in schemes of ?political? integration and ?economic? integration. In the former, the protection of intangible heritage is usually justified in relation to human rights, whereas in the latter it has to be justified in relation to market effects and the economic potential of ICH. In both of these forms of regionalism, a common thread is that ICH helps promote a common identity for the region, becoming thus a desirable staple of integration. Domestically, responses vary quite a bit, ranging from strong constitutional forms of protection until rather weak policy initiatives aimed primarily at attracting foreign aid. The second part of the thesis focuses on the substantive means of protecting intangible heritage, looking at human rights law, intellectual property tools and contractual approaches. Human rights law is a useful tool, to the extent the protection of intangible heritage is often justified in relation to cultural identity, but it disregards the important group dimension of ICH. Intellectual property offers the strongest form of protection, but it easily commodifies and ossified heritage. Finally, contractual approaches, despite rather expensive to implement, are the most sophisticated type of solution, and the one that can more easily address idiosyncrasies within each community regarding the control over their heritage. All of these solutions operate on a sliding scale, and the type of solution chosen will depend on the type of harm the misappropriation of heritage inflicts upon communities, as well as the extent of commodification that would be desirable towards a given manifestation of heritage. Ultimately, contractual approaches seem to be the most nuanced form of protection, and for that reason the one with the most potential to adequately protecting intangible cultural heritage.