Mapping the Potential Interactions between UNESCO's Intangible Cultural Heritage Regime and World Trade Law

Abstract

The 2003 Convention for the Safeguarding of Intangible Cultural Heritage (CSICH) was not intended to have legal repercussions in international trade. Nevertheless, ICH may interact with trade regulation under various scenarios. The CSICH “Representative List” inscribes numerous ICH elements with real and potential international commercial aspects, and consequent trade law implications. These emergent trade law-ICH regime dynamics require not only some critical reflection (e.g., is safeguarding of ICH ultimately dependent on commodification or at least in some cases significantly prone to commercial capture?), but also doctrinal legal analysis. This article undertakes a survey of many plausible ICH-trade interactions (generally excluding intellectual property issues), providing an analytical framework with reference to a series of case-sketches of selected CSICH inscriptions such as Kimjang, Beer Culture in Belgium and Yoga. These and other cases may indeed raise issues under world trade law, including GATT, GATS, TBT/SPS, and subsidies regulation. Trade law may have underestimated the significance of ICH as a growing field. At the same time, ICH law may be developing without thinking through how it is impacted by commercial interests and international trade law.