Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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PAUL KURUK[*]
The adoption of the Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention) on 17 October 2003 marked an important milestone in the United Nations Educational and Scientific Organization’s (UNESCO) program on cultural heritage.[1] Since the early 1970s, the organization has worked in earnest to define and shape the contours of an international regulatory framework.[2] In conjunction with the World Intellectual Property Organization (WIPO) it established a Committee of Experts in 1973 to draw up model provisions for national laws based on intellectual property law principles.[3] This was followed by the development in 1976 of the Tunis Model Copyright Law (‘Tunis Model Law’)[4] for use as a guideline in drafting national copyright legislation. Earlier, it had adopted two important instruments on cultural heritage: the Convention on Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970 (‘Illicit Trade Convention’)[5] and the Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 (‘The World Heritage Convention’).[6] In 1989, it also came out with a Recommendation for the Safeguarding of Folklore.[7]
Written by a member of the Committee of Experts tasked by the Director-General of UNESCO with producing the preliminary draft ICH Convention (ICH Experts Committee), this article provides an insight into the practical, but sometimes controversial viewpoints that informed the final text of the ICH Convention. The article traces the genesis of UNESCO’s formal work program on intangible cultural heritage and concludes with a critical analysis of the ICH Convention. Section One provides useful background information on the ICH Convention generally, followed by a description of various provisions of the ICH Convention in Section Two. With reference to earlier recommended models advocated or supported by UNESCO, a critique of the ICH Convention from the perspective of indigenous peoples is offered in Section Three. On the whole, while the ICH Convention remedies a conspicuous defect in UNESCO’s original program on cultural heritage as reflected in the World Heritage Convention, its failure to address important issues related to indigenous groups could be viewed as a missed opportunity to provide for an effective protection of traditional and indigenous knowledge.
To the extent UNESCO’s work for the safeguarding of intangible cultural heritage was propelled by the need to address inadequacies in the World Heritage Convention,[8] the background of the ICH Convention cannot be understood without reference to the World Heritage Convention. In general, the World Heritage Convention was adopted by UNESCO to encourage international cooperation for the protection of the cultural and natural heritage of mankind. This was necessitated by concerns that cultural heritage and the natural heritage were ‘increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction’.[9] There was also the recognition that ‘the deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world’.[10]
Subject matter protected under the World Heritage Convention as cultural heritage are monuments, groups of buildings and sites. In this context, the term ‘monuments’ includes:
architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science … [11]
while ‘groups of buildings’ are defined as:
groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science.[12]
The World Heritage Convention referred to sites as ‘works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view’.[13]
For items protected as natural heritage, the World Heritage Convention identified first, natural features, consisting of ‘physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view’;[14] second, geological and physiographical formations and precisely delineated areas ‘which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation’;[15] and finally, natural sites or precisely delineated natural areas ‘of outstanding universal value from the point of view of science, conservation or natural beauty’.[16]
Contrary to general perception, the World Heritage Convention does not apply generally to tangible property. In fact, it applies only to certain forms of immoveable property. Thus, all movable tangible property are excluded from the scope of the World Heritage Convention, including those associated with intangible cultural heritage. Although UNESCO’s Illicit Trade Convention picks up some of the slack,[17] regrettably, it is relevant only to illegal transfers and theft of such items and not to other measures contemplated under the notion of safeguarding.[18]
The World Heritage Convention encouraged international cooperation in the efforts to protect cultural and natural heritage and called upon the international community to ‘help in the identification, protection, conservation and presentation of such heritage’[19] and not to ‘take any deliberate measures which might damage directly or indirectly the cultural and natural heritage ... situated on the territory of other States ...’.[20] To facilitate such international cooperation, the Convention established a World Heritage Committee[21] charged with preparing and publishing a World Heritage List[22] comprising properties it considers to have ‘outstanding universal value’.[23]
Defining the term ‘outstanding value’ has not been easy for the World Heritage Committee. Beginning in 1992, it has adopted flexible criteria for the protection of cultural properties of ‘outstanding universal value’.[24] For example, to be eligible for inclusion in the World Heritage List under the 1996 Operational Guidelines, the property must represent ‘a masterpiece of human creative genius’ or exhibit ‘an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design’ or bear ‘a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared’.[25] The List may also include property deemed to be ‘an outstanding example of a type of building or architectural or technological ensemble of landscape which illustrates significant stage(s) in human history’ or ‘an outstanding example of a traditional human settlement or land-use which is representative of a culture (or cultures), especially when it has become vulnerable under the impact of irreversible change’ or is ‘directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance’.[26]
However, preparation of the World Heritage List authorized under the World Heritage Convention revealed a growing imbalance reflected by a gross over-representation of items from the developed nations.[27] UNESCO attributed this to:
a weakness in the organizations’s historic focus on the protection of tangible heritage, rather than intangible heritage thereby marginalizing a vast range of cultural expressions which belong to the countries of the “South” and which are crucial for the map of cultural diversity.[28]
To remedy the situation, UNESCO made the revitalization of intangible heritage a major priority.
In 1996, UNESCO launched its Living Human Treasures Program to promote the transmission of intangible cultural heritage.[29] The program called on member states to submit national lists of ‘Living Human Treasures’ for inclusion in a future UNESCO World List. Under guidelines established for the program, ‘Living Human Treasures’ were defined as:
persons who embody, who have in the very highest degree, the skills and techniques necessary for the production of selected aspects of the cultural life of a people and the continued existence of their material cultural heritage.[30]
The rationale behind the program was stated as follows:
One of the most effective ways of safeguarding the intangible heritage is to conserve it by collecting, recording and archiving. Even more effective would be to ensure that the bearers of that heritage continue to acquire further knowledge and skills and transmit them to future generations.[31]
As one commentator observes:
[b]y identifying the bearers of this heritage and their ability to transmit the skills, techniques and knowledge to “apprentices” as the focus of protection, it recognizes that its existence depends on the social and economic well-being of its holders and their way of life.[32]
Furthermore, ‘the program also places the skills and techniques of those who practice traditional culture and folklore at the centre of preservation, an element so far missing from the international protection of cultural heritage’.[33] One important criterion for the selection of living human treasures was the danger of extinction of associated knowledge and skills due to disuse or lack of recognition.[34]
Two years later, UNESCO adopted a Proclamation on Masterpieces of the Oral and Intangible Heritage of Humanity to encourage governments, non-governmental organizations (NGOs) and local communities to identify, safeguard, revitalize and promote their oral intangible cultural heritage.[35] The specific objectives of the Proclamation were stated as follows:
(a) to sensitize and mobilize opinion in favour of the recognition of the value of oral and intangible heritage and of the need to safeguard and revitalize it;
(b) to evaluate and list the oral and intangible heritage sites in the world;
(c) to encourage countries to establish national inventories of the oral and intangible heritage and to take legal and administrative measures to protect it;
(d) to promote the participation of traditional artists and local practitioners in the identification and renewal of the intangible heritage.[36]
The Proclamation set up a procedure for selection and special mention by the Director General of UNESCO, of cultural spaces[37] or forms of intangible cultural expression[38] deemed to be of outstanding value. Member States were invited to submit candidatures listing forms of cultural expression or cultural space located in their territories. On the basis of recommendations made by an International Jury following review of information provided, the Director General of UNESCO would then proclaim a list of Masterpieces of Oral and Intangible Heritage of Humanity. Under the terms of the Proclamation, the Director General on May 18, 2001, for the first time, proclaimed 19 of the world’s most remarkable examples of oral and intangible heritage.[39]
Continuing its focus on intangible cultural heritage,[40] UNESCO’s General Conference adopted a Resolution at its 31st session calling for the creation of a new standard-setting instrument for the safeguarding of intangible cultural heritage.[41] The Resolution required the Director-General to submit to the General Conference at its 32nd Session, a report on the possible scope of such an instrument along with a preliminary draft international convention.[42]
Pursuant to the terms of the resolution, the Director General convened a meeting of the ICH Experts Committee to begin work on the preliminary draft of an instrument for the protection of intangible cultural heritage.[43] The Committee, chaired by Justice Mohammed Bedjaoui, former President of the International Court of Justice, proceeded to use the 1972 World Heritage Convention as a model for the preparation of the new instrument. After several meetings in Paris, the ICH Experts Committee came out with a preliminary draft instrument that was presented to the Director-General at the end of July 2002. He in turn, submitted it to UNESCO Member States two weeks later. After review by a government team, the draft instrument was presented to the 32nd General Conference and adopted as a Convention on 17 October 2003.[44]
The objectives of the ICH Convention are ‘to safeguard intangible cultural heritage’[45] and ensure respect for the intangible cultural heritage of communities, groups and individuals.[46] Safeguarding in the context of the ICH Convention includes:
measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.[47]
The ICH Convention is viewed as complementary to, and therefore does not affect obligations of State parties under, existing international instruments on intellectual property rights or use of biological and ecological resources.[48] The term ‘intangible cultural heritage’ is defined rather broadly, and includes:
the practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artefacts and cultural spaces associated therewith - that communities, groups and, in some cases, individuals recognize as part of their heritage.[49]
Characteristically, the heritage is:
transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.[50]
However, to come within the scope of the ICH Convention, such intangible cultural heritage must be ‘compatible with existing international human rights instruments, with the requirement of mutual respect among communities, groups and individuals, and with sustainable development’.[51] Examples of domains falling within the definition of ‘intangible cultural heritage’ include:
(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
(b) the performing arts;
(c) social practices, rituals and festive events;
(d) knowledge and practices concerning nature and the universe;
(e) traditional craftsmanship.[52]
Under the ICH Convention, each State party is obligated to take the necessary measures to ensure the safeguarding of intangible cultural heritage present in its territory including the identification and definition of the various elements of such intangible cultural heritage with the participation of communities, groups and relevant non-governmental organizations.[53] To facilitate the process of identification, the State is also required to draw up inventories of intangible cultural heritage.[54] Other measures which the State should endeavour to implement include the integration of the safeguarding of such heritage into planning programs,[55] the designation of competent authorities to oversee the management and safeguarding of intangible cultural heritage,[56] as well as the support of scientific, technical and artistic studies and research relevant to an effective safeguarding of such heritage, particularly those in danger.[57] The State is also to endeavour to implement appropriate legal, technical and administrative steps to strengthen institutions for training in the management of intangible cultural heritage and the transmission of such heritage through forums and spaces intended for the performance or expression thereof; providing access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage; and establishing documentation institutions for the intangible cultural heritage and facilitating access to them.[58]
In addition, each State Party should endeavour to ensure the recognition and enhancement of intangible cultural heritage through measures such as awareness-raising and information programmes aimed at the general public; specific educational and training programmes within the communities and groups concerned; managerial and scientific research capacity-building activities for the safeguarding of the intangible cultural heritage; and non-formal means of transmitting knowledge.[59] Furthermore, the State Party is to endeavour to keep the public informed of the dangers threatening such heritage, and promote education for the protection of natural spaces[60] and places of memory whose existence is necessary for expressing the intangible cultural heritage.[61] The State Party should also endeavour to ensure the widest possible participation of communities, groups and, in some cases, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.[62] Finally, States Parties are required to provide regular reports on the legislative, regulatory and other measures taken for the implementation of this Convention.[63]
To assist in the implementation of the ICH Convention, an Intergovernmental Committee for the Safeguarding of Intangible Cultural Property (ICH Intergovernmental Committee) was set up to inter alia, ‘promote the objectives of the Commission, and to encourage and monitor the implementation thereof’ as well as ‘provide guidance on best practices and make recommendations on measures for the safeguarding of the intangible cultural heritage’.[64] Initial membership in the ICH Intergovernmental Committee is limited to 18 State Party Representatives, with the possibility of expanding it to 24 once the number of State Parties reached 50.[65] The ICH Intergovernmental Committee is answerable to General Assembly established under the Convention[66] and to which the ICH Intergovernmental Committee is required to report its activities and decisions.[67] The ICH Intergovernmental Committee is authorized to propose to the General Assembly the accreditation of non-governmental organizations with recognized competence in the field of intangible cultural heritage to act in an advisory capacity to the Committee.[68]
To ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity, the ICH Intergovernmental Committee, upon the proposal of the States Parties concerned, is required to establish a Representative List of the Intangible Cultural Heritage of Humanity.[69] The ICH Intergovernmental Committee is also required to establish, keep up to date and publish a List of the Intangible Cultural Heritage in Need of Urgent Safeguarding, and to inscribe such heritage on the List at the request of the State Party concerned.[70]
On the basis of proposals submitted by States Parties, the ICH Intergovernmental Committee is authorized to select and promote national, subregional and regional programmes, projects and activities for the safeguarding of the heritage which it considers best reflect the principles and objectives of the ICH Convention, taking into account the special needs of developing countries.[71] It is required to accompany the implementation of such projects, programmes and activities by disseminating best practices using means to be determined by it.[72]
The ICH Convention provides for international cooperation and assistance in the safeguarding of intangible cultural heritage, including the exchange of information and experience, joint initiatives, and the establishment of a mechanism of assistance to States Parties.[73] Specifically, international assistance is to be made available for the preparation of inventories, the safeguarding of the heritage inscribed on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding and for the support of relevant programmes, projects and activities carried out at the national, subregional and regional levels.[74]
International assistance by the ICH Intergovernmental Committee to a State Party could take various forms, including studies concerning various aspects of safeguarding, the provision of experts and practitioners, the training of all necessary staff, the elaboration of standard-setting and other measures, the creation and operation of infrastructures, the supply of equipment and know-how and other forms of financial and technical assistance, including the granting of low-interest loans and donations.[75] Requests to the ICH Intergovernmental Committee for international assistance can be made by each State in connection with the intangible cultural heritage within its territories, but without prejudice to the submission of joint applications by two or more States.[76]
The ICH Convention also establishes a Fund for the Safeguarding of Intangible Cultural Heritage (ICH Fund)[77] which consists of contributions made by States Parties, funds appropriated by the General Conference of UNESCO, gifts or bequests from other States, international organizations including the United Nations system as well as public or private bodies or individuals.[78] State contributions to the ICH Fund, payable at least every two years, are assessed by the General Assembly subject to the proviso that in no case shall an assessed contribution exceed one per cent of the State’s contribution to the regular budget of UNESCO.[79] The ICH Convention also provides for voluntary supplementary contributions[80] and encourages State support of international fund-raising campaigns organized by UNESCO to benefit the Fund.[81]
No doubt, by adopting the ICH Convention, UNESCO has accomplished its major objective to provide formally for the protection of intangible cultural heritage and thereby remedy the deficiency occasioned by its disproportionate emphasis on tangible cultural heritage as evidenced in the implementation of the terms of the World Heritage Convention. With the notable exception regarding subject-matter which may be protected, the ICH Convention is remarkably similar to the World Heritage Convention particularly in relation to the method of protecting cultural heritage through its identification in a list developed by an international committee. The development of a comparable list for intangible cultural heritage will ensure that greater attention is paid by the global community to measures to enhance the protection of intangible cultural heritage, the bulk of which is found in the developing world.
The ICH Convention recognizes the important role played by indigenous communities in the ‘production, safeguarding, maintenance and recreation of intangible cultural heritage’.[82] To meet the goal of ensuring respect for such heritage, it requires States to identify and define the elements of intangible cultural heritage ‘with the participation of communities’.[83] In addition, it obligates States to ‘ensure the widest possible participation of communities, groups ... that create, maintain and transmit such heritage and to involve them actively in its management’.[84] Furthermore, any measure undertaken to provide access to intangible cultural heritage must respect ‘customary practices governing access to specific aspects of such heritage’.[85] The discretion given to the ICH Intergovernmental Committee to invite NGOs to work with it in an advisory capacity is also significant as this creates an opportunity for qualified indigenous organizations to become associated with, and thereby possibly influence the policies of the ICH Intergovernmental Committee.[86]
However, the ICH Convention should not be seen as providing the comprehensive solution for protecting cultural knowledge that many indigenous groups have constantly advocated.[87] Measured against earlier international model provisions proposed or supported by UNESCO, the ICH Convention has some shortcomings regarding scope, rights and obligations, and enforcement measures.[88]
The generality of the definition of intangible cultural heritage in the ICH Convention[89] may give rise to a difficulty in understanding the precise scope of the Convention. Unlike the practice in other instruments, such as the Bangui Agreement adopted by the African Intellectual Property Organization (OAPI),[90] the ICH Convention does not provide an illustrative list of elements falling within the definition of intangible cultural heritage.[91]
Significantly, examples of the domains referred to in the definition of intangible cultural heritage were incorporated in an annex to the preliminary draft instrument submitted by the ICH Experts Committee to the Director-General of UNESCO in July 2002.[92] That annex elaborated on the domain of knowledge and practices about nature as follows:
Conceptions relating to the natural environment, such as temporal and spatial frameworks; agricultural activities and knowledge; ecological knowledge and practices; medical pharmacopea and therapeutic practices; cosmologies; navigational knowledge; prophecies and oracles; magical, spiritual, prophetical, cosmological and religious beliefs and practices relating to nature, oceanography, volcanology, environmental conservation [and] practices, astronomy and meteorology; metallurgical knowledge; numeral and counting systems; animal husbandry; aquaculture; food preservation, preparation, processing and fermentation; floral arts; and textile knowledge and arts.[93]
However, the annex was deleted subsequently during the review of the draft instrument by UNESCO Member States. Retention of the list could have provided a clearer guidance on the subject matter covered under the ICH Convention.[94] It would have left no doubts whatsoever that an item currently of interest to pharmaceutical companies - indigenous knowledge of the medicinal value of plants – falls within the ambit of the ICH Convention.
There was quite an animated debate in the ICH Experts Committee as to whether to associate the definition of intangible cultural heritage with human rights. The minority view[95] was to define intangible cultural heritage in terms of what the relevant customary practices are without reference to human rights standards, but then to provide in a different provision of the ICH Convention that such practices would be protected under the ICH Convention only to the extent they were not inconsistent with human rights. Thus, the minority view, which did not carry the day, would have, for purposes of clarity, separated issues of definition from questions regarding the propriety of enforcing such practices. The concern expressed in the minority view was that what constitutes a valid indigenous custom or practice should first be ascertained without reference to western value judgements (i.e. as reflected in human rights instruments) but without prejudice to the rights of States to decide whether to protect them or not. In this sense, the minority view should not be taken as one opposed to the application of human rights per se, but rather an insistence that a customary practice could be recognized as such even though unenforceable under ICH Convention.
During the deliberations of the ICH Experts Committee, an argument was made for the inclusion of national competent bodies to enhance the protective regime:[96]
[I would recommend] creating a national competent body to oversee the protection of cultural heritage. There is nothing novel about this proposal. It is found in the OAU Model Law, the OAPI Agreement, the Tunis Model Law, UNESCO-WIPO Model Provisions, the UNESCO-WIPO Draft Treaty, and the 1967 revision of the Berne Convention. Since a significant number of the instruments in this area already recognize the usefulness of creating a national agency, providing for it in the proposed instrument will probably not generate any serious opposition as an encroachment on national sovereignty.[97]
This principle is now incorporated in the ICH Convention.[98] However, although the ICH Convention, like the Model Provisions[99] and the Draft Treaty[100] refers to a competent authority to oversee the protection of relevant subject matter, the ICH Convention does not provide for specific rights and responsibilities of the competent authority in relation to the commercialization of protected matter. Unlike the other instruments, nowhere does the ICH Convention for example, refer to the need to seek the approval of the competent authority prior to uses of intangible cultural heritage.[101] It was also argued before the ICH Experts Committee that ‘[w]ith respect to composition of the body, perhaps the proposed instrument should leave it open to each state to decide on the number and qualifications of members of the competent body’.[102] Furthermore, ‘[i]n setting up this body, it would be useful to include representatives of local communities’.[103] The inclusion of a significant number of indigenous experts in the national competent body was urged as a means of ensuring that the body would be more responsive to the needs of indigenous groups and thereby limit the role of the State which has often been perceived as not necessarily one in consonance with the best interests of indigenous peoples. While the suggestion to specifically mandate the inclusion of indigenous groups was not adopted, there remains the hope that States would consider incorporating it in any legislation they may adopt regarding the protection of intangible cultural heritage.
A proposal was put before the ICH Experts Committee regarding the rights of indigenous people and the duty to consult with them.
With respect to the safeguarding of an item of intangible heritage, the national body must be required to consult with the relevant traditional groups on all matters necessary for safeguarding of intangible cultural heritage as specified in the draft Convention. The duty to consult is reflected in the more recent instruments on cultural heritage, including the OAU Model Law. In the proposed instrument, local communities should be allowed to initiate discussions with the national body regarding the safeguarding of the identified forms of intangible cultural heritage. Furthermore, no measure should be adopted by a state that meets significant opposition from a substantial section of the local community.[104]
The principle of consultation is important as a way of limiting the adverse consequences occasioned by granting the State the sole discretion to decide how and when to protect cultural heritage as found in the World Heritage Convention.[105] Consultation is also consistent with democratic principles since it ensures that the people who are going to be most affected by a proposed measure on intangible heritage are given a key role in the decision-making process.[106] The ICH Convention does not explicitly mandate a duty to consult, but to the extent it calls on States to ensure the participation of communities in the definition, identification[107] and management of intangible cultural heritage,[108] a duty to consult may be implied.
However, it is not clear in the ICH Convention how such communities, including indigenous groups, can effectively influence government policy. For it appears under the ICH Convention that unless invited to do so by the State, indigenous groups cannot on their own, initiate safeguarding measures for the government’s consideration, neither can they block State supported programs that they are opposed to. The ICH Convention could have been clearer on the rights of indigenous groups to request the inclusion or exclusion of certain aspects of intangible cultural heritage from the government’s program. More importantly, the ICH Convention could have affirmed the inalienable rights of indigenous communities to their intangible cultural heritage. As currently worded, the ICH Convention leaves the impression that the State has exclusive rights to intangible cultural heritage found within its territories and ignores the rights of others, including indigenous groups. Before his colleagues in the ICH Experts Committee, the author of this article pointed out that similar rights of exclusivity in the World Heritage Convention had fundamentally weakened that instrument[109] and urged his colleagues not to repeat the same mistakes in the draft Convention. The argument for a right of intervention on behalf of other States in cultural property matters[110] is equally valid for indigenous groups. Like such States, indigenous groups as owners and custodians of intangible cultural heritage should have an automatic right of intervention in all matters concerning such heritage.
The following observations were made regarding the role of the State under the then proposed Convention:
Duties imposed on the state with respect to safeguarding intangible heritage should be clear and contained in unambiguous language. The use of best-efforts clauses should be avoided, it being understood that states would make every effort to comply with their international commitments. Diluting state duties with reference to ‘best efforts’ would defeat the objective of the proposed instrument. It is useful to note in this context that the TRIPs Agreement exemplifies an emerging trend. It states a clear mandatory duty on all contracting states to protect intellectual property rights. That should be the approach in any serious international instrument which is what I think the proposed instrument on intangible cultural heritage is.[111]
Regrettably, consensus did not develop around this line of thinking. Some members took the view that strongly worded provisions would be inconsistent with the principle of State sovereignty and therefore that the incorporation of such language would offend many states and make it difficult to obtain significant support for the instrument at the international level to make it a worthwhile instrument.
Consequently, the provisions regarding State responsibilities in the ICH Convention have been qualified by such language as ‘shall endeavour’.[112] This exhortatory term, which is part of a genre of best efforts clauses,[113] weakens substantially the force of the duties imposed on States regarding the safeguarding of intangible cultural heritage. While the notion of state sovereignty has come to stay as an important concept underlying statehood, its relevance to the protection of cultural property is questionable.[114] For an effective safeguarding of intangible cultural heritage, state sovereignty must be tempered through the imposition of mandatory duties on states in clear and unambiguous language.[115]
The ICH Convention does not address an issue of global importance regarding intangible cultural heritage, namely the improper and unauthorized uses of such heritage which precipitated efforts by UNESCO and WIPO over the years to adopt measures to protect folklore and cultural heritage.[116] There is considerable emphasis in the Convention on the safeguarding of items through inclusion in an Intangible Heritage List.[117] That is a helpful start. However, there are abuses in the exploitation of intangible cultural heritage which threaten to destroy such heritage and put traditional communities at a distinct social and economic disadvantage, but which cannot be remedied under the Heritage List system. For example, indigenous music and dance are frequently copied by non-indigenous persons and presented as original compositions or choreography with the economic returns going to such non-indigenous persons rather than the indigenous groups that created the forms of music and dance in the first place.[118] There are also problems of authentication where items of intangible cultural heritage, including artefacts, are sold and misrepresent communal values.[119] To be a genuine instrument for ‘safeguarding’ cultural heritage, the proposed instrument should also have taken up the issue of improper and unauthorized uses of cultural heritage. Indeed, the 1989 Recommendation recognized the significance of this by stating that protection through a system of rights and remedies would promote ‘further development, maintenance and dissemination of culture’.[120] To this extent, the Convention is weakened by its failure to provide for the rights of indigenous groups in intangible cultural heritage and their control of its uses as a way of safeguarding it.
The Model Provisions[121] and the Draft Treaty[122] both provide for a system of rights and remedies as a way of enhancing the protection of cultural heritage. Specifically, they provide for the payment of fees for commercial uses of cultural heritage with the funds being used for purposes benefiting cultural heritage generally.[123] The ICH Convention does not address the commercial uses of intangible cultural heritage specifically although going by the definition of intangible cultural heritage in the ICH Convention, it is quite apparent that many of the aspects of such heritage would be commercially significant. For example, scientific knowledge and works, including practices and products of medicine and of pharmacopoeia of traditional groups, considered as valid categories of cultural heritage[124] are of commercial interest to pharmaceutical and other biotechnology companies. Because the exploitation of such matter has resulted in a number of abuses, including biopiracy, many indigenous groups have called for the establishment of adequate protective measures.[125] Before the ICH Experts Committee, the author of this article was unsuccessful in persuading other members to provide for the regulation of uses of this and other types of intangible cultural heritage as a way of checking the abuses that have occurred.
The Convention on Biological Diversity (CBD) was the first major international instrument to link the question of access to genetic resources in exchange for the equitable sharing of benefits under mutually agreed upon terms.[126] The hope in part was that the provision of incentives would encourage the promotion and safeguarding of indigenous practices relevant to the conservation and sustainable use of biological resources.[127] Unfortunately, the CBD did not elaborate on these significant provisions. To the extent some biological resources constitute intangible cultural heritage,[128] some thought could also have been given in the ICH Convention to the conditioning of access to intangible cultural heritage in return for equitable sharing of benefits.
In this context, the ICH Convention merely calls on State parties to:
endeavour to implement appropriate legal, technical and administrative steps ... providing access to intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage.[129]
This provision, already weakened by the exhortatory language as argued above,[130] to the extent it contemplates national action, suffers from an additional limitation by ignoring the fact that the abuses regarding access have international dimensions such as jurisdictional and enforcement issues that national measures cannot adequately remedy.[131] Some of these issues were dealt with in the Draft Treaty,[132] but unfortunately, have not been replicated in the ICH Convention.
The argument was also made before the ICH Experts Committee for ‘a provision for moral rights, including the rights of paternity, and integrity’.[133] Such rights it was contended, would allow the State to prohibit uses of intangible cultural heritage in a manner considered to distort or discredit it.[134] Additionally, they would require the community associated with the heritage to be acknowledged in uses of such heritage.[135] Moral rights are critical to the success of any instrument on cultural heritage[136] and it is therefore not surprising to find them provided for in the Tunis Model Law,[137] Model Provisions,[138] the Draft Treaty,[139] and numerous state laws.[140] Understandably, moral rights were not included in the World Heritage Convention because the World Heritage Convention’s subject-matter (such as buildings and monuments) was not readily amenable to the application of moral rights. But this is not the case with intangible cultural heritage and the failure to provide for moral rights in the ICH Convention is therefore to be regretted.
Finally, the ICH Convention does not address the consequences of a failure to abide by the regulations adopted in the State for the safeguarding of the cultural heritage. Other international model laws have provided for appropriate enforcement mechanisms. For example, the Model Provisions allowed criminal penalties to be imposed for: failing to obtain the required written consent prior to use of protected folklore;[141] failing to acknowledge the source of folklore;[142] misrepresenting the origin of expressions of folklore;[143] and distorting works of folklore in any manner considered prejudicial to the honor, dignity or cultural interests of the community from which it originates.[144] In addition, objects made in violation of the Model Provisions and any profits made therefrom could be seized.[145] These remedies could be imposed along with damages and other civil remedies.[146] Following the lead in the Model Provisions, the ICH Convention could also have urged the imposition of civil and criminal penalties to facilitate the safeguarding of intangible cultural heritage. Without the provision of suitable enforcement mechanisms, any state measures for the safeguarding of intangible cultural heritage may not be taken seriously.
The article has noted UNESCO’s desire to rectify its disproportionate emphasis on tangible cultural heritage as the impetus for various initiatives that culminated in the adoption of the ICH Convention. Quite significant is the recognition in the ICH Convention of the important role played by indigenous groups in the creation and maintenance of intangible cultural heritage, and also of the need to ensure their participation in relevant safeguarding measures.
Nevertheless, the ICH Convention’s provisions regarding the State’s obligations and the rights of indigenous groups are far too general and fail to address specifically a number of issues that matter to indigenous groups including recognition of the rights of indigenous peoples as owners or custodians of intangible cultural heritage. Moreover, the ICH Convention is silent on moral rights and does not also refer explicitly to civil and criminal remedies for violations of its terms.
In fairness to the ICH Convention, the instrument could best be seen as providing general guidelines in the hope that contracting States would ‘adopt appropriate legal, technical, administrative and financial’[147] measures. However, the failure to provide specific rules governing the access to and use of intangible cultural heritage coupled with the reference to the State’s obligations in rather exhortatory terms weakens the ICH Convention as an instrument for tackling cases of misappropriation and unauthorized use of cultural heritage. To this extent, the ICH Convention may come to be viewed as a missed opportunity to enhance the protection of indigenous knowledge.
[*] LLB (Hons), University of Ghana; LLM, Temple University School of Law; JSD, Stanford Law School; Professor of Law, Cumberland School of Law of Samford University; Visiting Professor, Emory Law School; Vice-Chair, Commission on Environmental Law of the World Conservation Union. The author is grateful to Professors Michael Jeffery, QC, and Donna Craig of the Centre for Environmental Law of Macquarie University, for their encouragement and support during the writing of this article.
[1] A copy of the Convention for the Safeguarding of Intangible Cultural Heritage is available at http://unesdoc.unesco.org/images/0013/001325/132540e.pdf (visited 1 December 2003)
[2] P Kuruk, ‘Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States’ (1999) 48 Am Univ L Rev 769, 812-822 (describing the efforts of UNESCO and the World Intellectual Property Organization to develop schemes for the protection of folklore and cultural heritage).
[3] Report on the Working Group on the Intellectual Property Aspects of Folklore Protection (1981) XV(2) Copyright Bulletin 19. In 1982, the Committee of Experts came out with the final text of its Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (Model Provisions). See: Report of the Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore, 28 June to 2 July 1982 (1982) 16(4) Copyright Bulletin (1982) 62.
[4] Tunis Model Law on Copyright (1976) reprinted in 12 (1976) Copyright: Monthly Rev World Intell Prop Org 165.
[5] The Illicit Trade Convention was adopted in recognition of the importance of cultural property as ‘one of the basic elements of civilization and national culture’ which makes it ‘incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation and illicit export’: Illicit Trade Convention preamble. Cultural property is defined under the Illicit Trade Convention as ‘property which on religious or secular ground, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science...’ ibid. To ensure the protection of such property against illicit import, export and transfer of ownership, contracting states are obligated to set up appropriate national services, require export certificates, and prevent the acquisition by museums of illegally imported property. They are also to prohibit the importation of stolen property, and at the request of the country from which the property was removed, take appropriate steps to recover and return the property. Ibid Articles 6 and 7. The Convention envisages international cooperation in tackling the problems posed by illicit trade in cultural property. Ibid Article 9.
[6] Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) ILM 1358 (hereinafter World Heritage Convention). The relevant provisions of the World Heritage Convention are described below n 8-28 and accompanying text.
[7] The 1989 Recommendation called upon member states to take the necessary legislative steps to give effect to various identification, conservation, preservation, dissemination, protection and international cooperation measures outlined therein. The 1989 Recommendation suggested as identification methods the creation of national inventories of institutions concerned with folklore, and the development of recording systems and comprehensive registries. Conservation measures could center on the establishment of national archives and museums, harmonization of collection and archiving methods, duplication of folklore materials and training of specialists in conservation work. Relevant preservation measures include the teaching and study of folklore, guarantees of access of cultural communities to their folklore, establishment of national coordination bodies and promotion of scientific research on folklore. Dissemination of folklore was expected to be ensured through such events as fairs, festivals, films, exhibitions and workshops, coverage of folklore in the media, creation of job opportunities for folklorists, and exchanges of persons and groups concerned with folklore. The 1989 Recommendation also urged enhanced privacy and confidentiality rights for informants as the transmitters of tradition, and also for collectors through proper archiving and safeguarding of materials against misuse. Finally, the 1989 Recommendation called for international cooperation with other states, international and regional institutions in the field of knowledge, dissemination and protection of folklore.
[8] UNESCO, ‘Operational Guidelines for the Implementation of the World Heritage Convention’; See: UNESCO Doc WHC/2/Revised, February 1996, para 24.
[9] Ibid.
[10] Ibid.
[11] Ibid Article 1.
[12] Ibid.
[13] Ibid.
[14] Ibid, Article 2.
[15] Ibid.
[16] Ibid.
[17] Categories of cultural property protected under the Illicit Trade Convention include: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; and (g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary Article and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments. Ibid Article 1.
[18] ICH Convention, above n 1, Article 1(a) and accompanying text.
[19] Ibid Article 6(2).
[20] Ibid Article 6(3).
[21] Ibid Article 8(1).
[22] The list is compiled from information on local natural and cultural heritage that each state is required to submit to the Heritage Committee. Ibid Article 11(1).
[23] Ibid Article 11(2).
[24] J Blake, Developing a New Standard Setting Instrument for the Safeguarding of Intangible Cultural Heritage: Elements for Consideration CLT-2001/WS/8 (2001) 73-75.
[25] UNESCO, above n 8 and accompany text.
[26] Ibid.
[27] UNESCO, ‘First Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity’ (2001) 2 (hereinafter First Proclamation).
[28] Ibid.
[29] This was originally proposed by the Executive Board of UNESCO in 1993 to facilitate the implementation of the 1989 Recommendation. See: Blake, above n 24, 45.
[30] UNESCO, ‘Operational Guildelines: Human Living Treasures’ para 9. Undated publication (hereinafter Operational Guidelines). A copy of the document is on file with the author.
[31] Ibid para 1.
[32] Blake, above n 24, 45.
[33] Ibid.
[34] Operational Guidelines, above n 30, para 30.
[35] First Proclamation, above n 27, 1-2.
[36] UNESCO, Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity: Guide for the Presentation of Candidature Files (2001) 4 (hereinafter Proclamation of Masterpieces).
[37] A cultural space is defined as ‘a place which brings together a concentration of popular and traditional cultural activities and also as a time for a normally regularly occurring event’. Ibid 6.
[38] Examples of cultural expressions include musical or theatrical performances, rituals or diverse festivities. Ibid.
[39] These included the Garifuna Language, Dance and Music, proposed by Belize and supported by Honduras and Nicaragua; the Oral Heritage of the Gelede, proposed by Benin and supported by Nigeria and Togo; the Oruro Carnival, proposed by Bolivia; the Gbofe of Afounkaha: the Music of the Transverse Trumpets of the Tagbana Community, proposed by Cote d’Ivoire; the Cultural Space of the Brotherhood of the Holy Spirit of the Congos of Villa Mella, proposed by the Dominican Republic; and the Oral Heritage and Cultural Manifestations of the Zapara People, proposed by Ecuador-Peru.
Others were Georgian Polyphonic Singing, proposed by Georgia; the Cultural Space of ‘Sosso-Bala’ in Niagassola, proposed by Guinea; the Kuttiyattam, Sanskrit Theatre, proposed by India; the Opera dei Pupi, Sicilian Puppet Theatre, proposed by Italy; Nogaku Theatre, proposed by Japan; Cross Crafting and its Symbolism in Lithuania, proposed by Lithuania; and the Cultural Space of Djamaa el-Fna Square, proposed by Morocco.
The rest were Hudhud Chants of the Ifugao, proposed by the Philippines; the Royal Ancestral Rite and Ritual Music in Jongmyo Shrine, proposed by Korea; the Cultural Space and Oral Culture of the Semeiskie, proposed by the Russian Federation; the Mystery Play of Elche; and the Cultural Space of the Boysun District, proposed by Uzbekistan. Ibid 8-27.
[40] In addition to its programs on Living Human Treasures as well Masterpieces of the Oral and Intangible Cultural Heritage of Humanity, UNESCO also established a Programme for the Preservation and Revitalization of Intangible Cultural Heritage designed to assist tradition bearers and support documentation efforts through a publication series. The first volume produced under the auspices of the program is a Handbook for the Study of Traditional Music and Musical Instruments. Plans are underway for the publication of another volume on the study of vernacular architectural styles.
[41] UNESCO, 31 C/Resolution 30 (2001).
[42] Ibid.
[43] The members of the ICH Experts Committee were Justice M Mohammed Bedjaoui, Mr Joseph-Marie Bipoun-Woum, Miss Janet Blake, Ms Maria del Rosario Camprubi, Professor Pierre-Marie Dupuy, Professor Francesco Francioni, Professor Toshiyuki Kono, Professor Paul Kuruk, Mr. Ralph Regenvanu and Professor Sompong Sucharitkul.
[44] http://unesdoc.unesco.org/images/0013/001321/132141e.pdf#page=16 (visited 1 December 2003).
[45] ICH Convention, above n 1, Article 1(a).
[46] Ibid Article 1(b).
[47] Ibid Article 2(3).
[48] Ibid Article 3(b).
[49] Ibid Article 2(1).
[50] Ibid.
[51] Ibid.
[52] Ibid Article 2(2).
[53] Ibid Article 11.
[54] Ibid Article 13(a).
[55] Ibid Article 13(b).
[56] Ibid Article 13(b).
[57] Ibid Article 13(c).
[58] Ibid Article 13(d).
[59] Ibid Article 14(a).
[60] Ibid Article 14(b).
[61] Ibid Article 14(c).
[62] Ibid Article 15.
[63] Ibid Article 29.
[64] Ibid Article 7.
[65] Ibid Article 5(2).
[66] Ibid Article 4.
[67] Ibid Article 8(1).
[68] Ibid Article 9(1).
[69] Ibid Article 16.
[70] Ibid Article 17.
[71] Ibid Article 18(1).
[72] Ibid Article 18(2).
[73] Ibid Article 19(1).
[74] Ibid Article 20.
[75] Ibid Article 21.
[76] Ibid Article 23
[77] Ibid Article 25(1).
[78] Ibid Article 25(3).
[79] Ibid Article 26
[80] Ibid Article 27.
[81] Ibid Article 28.
[82] Preamble to the ICH Convention above n 1.
[83] Ibid Article 11(b).
[84] Ibid Article 15.
[85] Ibid Article 13(d)(ii).
[86] Ibid Article 9(1).
[87] For example, as one commentator has noted: Indigenous societies find themselves poked, probed and examined as never before. The very cultural heritage that gives indigenous peoples their identity, now far more than in the past, is under real or potential assault from those who would gather it up, strip away its honored meanings, convert it to a product, and sell it. Each time that happens the heritage itself dies a little, and with it its people ... Indigenous communities, indigenous leaders, and advocates for indigenous rights have sought ways to gain some control in a rapidly worsening situation. ... The most urgent reason to establish that control is to preserve meaning and due honor for elements of cultural knowledge and to insure that these traditional universes, and their peoples, maintain their vitality. Subsidiary ... goals are to manage the degree and process by which parts of that cultural knowledge are shared with outsiders, and in some instances, to be justly compensated for it. Tom Greaves, ‘IPR: A Current Survey’ in Tom Greaves (ed), Intellectual Property Rights for Indigenous Peoples: A Sourcebook (1994).
[88] For example, Sarah Eagen contends, ‘Perhaps the largest weakness in the World Heritage Convention is the power it gives source nations to determine the fate of cultural objects within their national territories. Under the Convention, non-source nations have no authority to ensure that cultural objects are being protected. ... Although the concept of territorial sovereignty is firmly established throughout the world as a method of establishing power, political independence, and maintaining order, its use does not make sense in the context of cultural property preservation. M Catherine Vernon states that ‘current national boundaries often have no connection or alignment with the peoples that inhabited the land in past centuries and left cultural clutter as evidence of their existence. Culture is defined by linguistic, religious, or other criteria, not by an artificially placed boundary line.’ Sarah Eagen, ‘Preserving Cultural Property: Our Public Duty: A Look at How and Why We Must Create International Laws that Support International Action’ (2001) 13 Pace Int’l L Rev 407, 430-443.
[89] See: ICH Convention, above n 1, Article 2(1).
[90] See, eg: Agreement Revising the Bangui Agreement of 2 March 1977, on the Creation of an Intellectual Property Organization, adopted at (Bangui (Central African Republic) on 24 February 1999). The Agreement defines ‘cultural heritage’ to consist of ‘all those material or immaterial human productions that are characteristic of a nation over time and space’ including folklore; sites and monuments; and ensembles, Article 67. The following are listed as part of cultural heritage: (a) literary works of all kinds, whether in oral or written form, stories. legends, proverbs, epics, chronicles, myths, riddles; (b) artistic styles and productions such as dances, musical productions of all kinds, dramatic, dramatico-musical, choreographic and pantomime productions, styles and productions of fine art and decorative art by any process, architectural styles; (c) religious traditions and celebrations such as rites and rituals, objects, vestments and places of worship, initiations; (d) educational traditions such as sports, games, codes of manners and social conventions; (e) scientific knowledge and works such as practices and products of medicine and of the pharmacopoeia, theoretical and practical attainments in the fields of natural science, physics, mathematics and astronomy; (f) technical knowledge and productions such as metallurgical and textile industries, agricultural techniques, hunting and fishing techniques. Article 68.
[91] Although the Convention refers to domains, these are equally problematic as being rather general.
[92] UNESCO, First Preliminary Draft of an International Convention for the Safeguarding of the Intangible Cultural Heritage, UNESCO Doc. CLT-2002/CONF.203/3 (2002).
[93] Ibid.
[94] The annex contained the following examples of social practices, rituals and festive events: sports; kinship and ritual kinship ceremonies; settlement patterns; culinary arts; designation of status and prestige ceremonies; seasonal ceremonies; gender-specific social practices; practices relating to hunting, fishing and gathering; geonymic and patronymic nomenclature; silk culture and crafts (production [fabrication], sewing, dyeing, cloth designs); wood carving; textiles; body-art (tattooing, piercing, painting). Ibid.
[95] The author of this article was the primary proponent of this view.
[96] P Kuruk, Uruk, Proposals for Consideration in the Preliminary Draft of the Convention for the Safeguarding of Intangible Cultural Heritage UNESCO Doc GRR2/CH/2002/WD/7 (2001) (hereinafter Proposals for Consideration). A copy of this document is on file with the author.
[97] Ibid.
[98] ICH Convention, above n 1, Article 13(b).
[99] Due to the fact that in many countries the rights to folklore vest in the state, the Model Provisions avoided the concept of ownership, preferring instead to identify a ‘competent authority’ as the main repository of rights to folklore. Model Provisions, above n 3, Article 11. See also: D Posey, ‘Effecting International Change Cultural’ (1991) Survival Quarterly 29, 31.
[100] Under this instrument, each contracting state was expected to designate a competent authority to administer the protection of expressions of folklore within the state. ‘Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions’ (Draft Treaty) reprinted (1985) 19(2) Copyright Bulletin Article 3.
[101] Under the Model Provisions, where protected expressions of folklore were to be used both with gainful intent and outside their traditional or customary context, prior approval had to be obtained from such authority. However, permission would not be required where the use of folklore is for educational purposes, incorporated in the original work of an author or is incidental. Model Provisions, above n 3, Articles 3 and 4.
[102] Proposals for Consideration, above n 96.
[103] Ibid.
[104] Ibid.
[105] One commentator cautions against the danger posed by granting States the sole right to determine which items of cultural property are worthy of protection. She is concerned that the provisions of the World Heritage Convention would allow states to refuse to protect otherwise eligible cultural heritage purely for improper reasons. The generality in the category descriptions allows each state to subjectively specify the content and scope of which cultural objects are to be subject to the Convention's protective terms. ... As a result, there is great diversity among the various national legal systems in establishing their respective criteria for determining which objects, if any, are to be protected ... While this theory might recognize the unique contribution of each state to the cultural heritage of mankind ... granting each state the right to subjectively specify the scope and content of cultural property includes the right to exclude property from protection that others outside the state might find more culturally valuable. It also permits an exclusion from protection on grounds of domestic budget concerns ie, if not designated, no funds need be allocated to that artifact for protective efforts. A nationally controlled, self-designated cultural property framework cannot truly promote common outside cultural property interests. Since UNESCO 1970, ‘protection’ of cultural property has in reality become a euphemism for ‘retention’ or ‘protection against removal’ with little regard for the Convention's other language promoting a common cultural property concept. ... Once again, the foundational support for common protective efforts, including rights of intervention, are found in the treaty's noble ambitions laid down in its introduction. Yet the treaty's text defaults to traditional territorial concepts for its protective legal framework, a framework susceptible to the situs government's self-serving motivations, domestic political persuasion, and internal economic conditions. Catherine Vernon, ‘Common Cultural Property: The Search for Rights of Protective Intervention’ (1994) 26 Case W Res J Int’l L 435, 467.
[106] With reference to the World Heritage Convention, Darrell Posey, a world renowned expert in the area of cultural heritage notes the importance of genuine consultation with indigenous groups for an effective implementation of its provisions. The World Heritage Convention can be useful in protecting the cultural heritage of some indigenous peoples, traditional societies and local communities, depending on: (a) whether governments are willing to consult indigenous peoples by involving them in World Heritage conservation processes – such as identification, assessment, monitoring, evaluation by advisory bodies, management, etc ... and (c) whether the world Heritage Committee is prepared to recognise that cultural and natural properties important to an indigenous people constitute part of the heritage of humankind of sufficient importance to justify their protection. Darrell A Posey, Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities (1996) 81.
[107] Ibid Article 11(b).
[108] Ibid Article 15.
[109] Bemoaning the absence in the World Heritage Convention of rights of states other than the host states to intervene in the protection of cultural property, Catherine Vernon observes, ‘[The] common culture under the World Heritage Convention remains dependent upon the willingness and ability of the host state to provide protection; placing the territorial control of the nation-state above any worldwide or regional interest in the cultural heritage of mankind. This has, and will continue to create situations where domestic concerns take priority over common cultural property preservation, sometimes to the detriment of the world community's interests. A right of intervention could correct this international legal void by allowing protective cultural intercession in the event improved preservation is warranted.’ Vernon, above n 105, 471.
[110] Vernon argues as follows, ‘The treaty does provide for the creation and maintenance of a World Heritage List and a List of World Heritage in Danger ... Yet the Convention relies on each State that is a party to submit to the World Heritage Committee an inventory of property forming part of what it subjectively considers to be cultural and natural heritage, situated in its territory, with an outstanding universal value to the formation of the cultural heritage and natural heritage ... The Convention has an express stipulation that "inclusion of a property in the World Heritage List requires the consent of the State concerned". ... The World Heritage Convention established The World Heritage Committee to consider requests from any State Party for international assistance for property of universal value located within its territory, ... and indicates what forms of assistance will be granted. ... While these ... are applaudable programs, again they are restricted to impetus from the territorial state. Despite the treaty's regard for the world's heritage, the world receives no rights of protection; only States have such rights. The assistance provisions need to be expanded to include a right for any State, not just the one where the cultural heritage is situated, to invoke the help and funding of this UNESCO Committee. The assistance granted by the Committee under the Convention cannot be truly protective of common property rights without such recognized intervention provisions. Ibid 469-470.
[111] Proposals for Consideration, above n 96.
[112] See: ICH Convention, above n 1, Articles 13, 14 and 15.
[113] Ben Boer, ‘World Heritage Disputes in Australia’ (1992) 7 J Envtl & Litig 247, 252.
[114] See: above n 88.
[115] Eagen further writes, ‘Although national boundaries are likely to remain a force in international cultural property laws, efforts must be made to decrease the amount of power that source nations have under these laws, by giving non-source nations a voice in preservation decisions. Additionally, a right of action at some level must be acknowledged, because the current international treaties illustrate that positive intent is of little use until it can be implemented. Until such steps are taken, the fate of our cultural heritage remains in the hands of, and at the discretion of host nations. Ibid.
[116] Kuruk, above n 2, 812-819.
[117] ICH Convention, above n 1, Articles 16 and 17.
[118] Kuruk, above n 2, 770-775.
[119] Ibid.
[120] See: 1989 Recommendation, above n 7.
[121] Under the Model Provisions, applications to use an expression of folklore were to be made in writing to the competent authority which could impose fees for such use with the understanding that the revenues so collected would be used to promote or safeguard national folklore. Model Provisions, above note 3, Article 10.
[122] Ibid.
[123] Ibid.
[124] See: for example, Article 68 of the Bangui Agreement defining cultural heritage to include ‘practices and products of medicine and of the pharmacopoeia’. Bangui Agreement, above n 90, Article 70.
[125] Greaves, above n 87, ix.
[126] Convention on Biological Diversity, Article 15.
[127] Preamble to the Convention on Biological Diversity, ibid.
[128] One of the domains recognized under the ICH Convention for the manifestation of intangible cultural heritage includes ‘knowledge and practices concerning nature and the universe’. Article. 2(2)(d). Genetic resources, including the use of plants for medicinal purposes would appear to fit in this category. As noted, such matter was referred to in annex to the preliminary draft convention developed by ICH Experts Committee. See: above n 92 and accompanying text.
[129] ICH Convention, above n 1, Article 13(d).
[130] See: above n 112 and accompanying text.
[131] For example, the best drafted resource access contract is meaningless if the user party moves out of the State where the contract was entered into. An effective solution would require the cooperation of the second country in enforcing any judgment rendered against the party.
[132] Under the Draft Treaty, the competent authority could request that other states protect expressions originating in the contracting state’s own territory. Draft Treaty, above n 100, Article 3. Written permission of that authority would be required prior to permitting commercial uses of folklore in other contracting states. Such uses include the publication, reproduction, distribution or importation, for the purpose of distribution to the public, of reproductions or recordings of recitations or performances of expressions of folklore; or for the public recitation or performance of expressions of folklore, as well as any broadcast of expressions of folklore, Article 4(1). To facilitate the implementation of this provision, the state-appointed authority was required to provide information pertaining to the main characteristics and the source of expressions of folklore originating in its territory, Article 4(2). The request to use an expression of folklore would be made to the competent authority in the state in which the expression of folklore originates, Article 5(1). With few exceptions, authorization was expected to be automatic and expeditious, but could be conditioned on the payment of adequate compensation which would be fixed by the competent authority in the absence of agreement. Permission was not required from the competent body where the use of folklore is for educational purposes, for creating original literary or artistic works or for incidental use, Article 6(1).
[133] Proposals for Considerations, above n 96.
[134] Scholars have called for the recognition of moral rights as a solution to problems of distortion, misrepresentation and authenticity that frequently accompany the unauthorized use of cultural heritage. Kamal Puri, ‘Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action’ (1995) 9 Intell Prop J 293, 332. They argue for example, that such rights would be especially useful in protecting folklore from being ‘published without ... authorization, published without attribution, reproduced in poor quality, reproduced only partially causing the image to be distorted... or put to a use which would be inappropriate to the nature of the original work’. Christine Haight Farley, ‘Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?’ (1997) 30 Conn L Rev 1, 48.
[135] The moral right of divulgation allows the author to determine if and when his or her work will be made public. See: Melville B Nimmer and David Ninner, Copyright (1978) Section 8 [D] [05] 58.
[136] One commentator notes for example, that an effective instrument on cultural heritage must include ‘the assurance of safeguards and respect for intangible cultural property, by implementing for example, a minimum of paternity and integrity rights’. Catherine Berryman, ‘Toward a More Universal Protection of Intangible Cultural Property’ 1 (1994) J Intell Cultural Property 293, 333.
[137] See: Tunis Model Law on Copyright, above n 4.
[138] The Model Provisions required the origin of folklore be acknowledged in printed publications and other communications to the public by mentioning the community or geographic place from where the expression was derived. The requirement, however, did not apply to creations of original works inspired by expressions of folklore or to incidental uses of expressions of folklore. Model Provisions above n 3, Article. 5.
[139] Under the Draft Treaty, request to use folklore could be denied where the intended use would be prejudicial to the honor or dignity of the originating country or community. However, the competent authority is required to justify in writing, any decision it has taken to denying a request. Ibid Article 5(2).
[140] See, eg: Copyright Decree (Nigeria) Section 28(1) (19 December 1988) reprinted in 25 Copyright Monthly Rev World Intell Prop Org text 1-01, 8.
[141] ICH Convention, above n 1, Article 6(2).
[142] Ibid Article 6(1).
[143] Ibid Article 6(3).
[144] Ibid Article 6(4).
[145] Ibid Article 7.
[146] Ibid Article 8.
[147] Ibid Article 13(d).
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