From Traditional Culture and Folklore to Intangible Cultural Heritage: Evolution of a Treaty

The purpose of this article is to explore the evolution of the 2003 Convention in particular by examining the international policy priorities that led up to this process and also the relevant prevailing international law. Moreover, this process involved moving from seeking to safeguard “traditional culture and folklore”, then to regulating the neologism (in international law, at least) of “intangible cultural heritage” and the implications of that shift. One of these, of course, is the participatory heritage safeguarding model advocated by the 2003 Convention, highlighting its strongly human rights-based orientation. Furthermore, the relationship of the Convention with intellectual property (IP) rules and that of UNESCO with the WIPO in this endeavour is also explored, both up to the adoption of the 2003 Convention and the subsequent work in WIPO to develop sui generis IP rules to protect traditional knowledge and cultural expressions. In view of the divergence between UNESCO’s broader cultural approach and WIPO’s narrower focus on IP rules, the similarity of the 2003 Convention to the model of the 1972 Convention and the potential for overlap that exists between both these treaties in terms of their subject-matter, the role and positioning of the 2003 Convention vis-à-vis the 1972 Convention are also examined here.