A Study On Issues Of Safeguarding Intangible Cultural Heritage In International Law

This paper boils down the issue of international legal protection of intangible cultural heritage to three major problems:Why should international law protect intangible cultural heritage; How can international law protect intangible cultural heritage; How can China establish and improve legal system for protecting intangible cultural heritage.Why should international laws protect intangible cultural heritage. The solution to this problem is the logic starting point in international legal protection of intangible cultural heritage. The first chapter of this paper is devoted to this problem. Intangible cultural heritage is important and precious for the entire humanity, but is currently facing increasing threats and problems world-wide. Therefore, it’s urgent to reinforce the protection of intangible cultural heritage. Intangible cultural heritage was originally in the jurisdiction of domestic laws instead of international law. However, international legal protection of intangible cultural heritage has been developing rapidly nowadays. Then, why should international law include intangible cultural heritage in its protection? The fundamental reason lies in the legitimacy of this protection, which has gained international recognition. The legitimacy of international legal protection of intangible cultural heritage is mainly demonstrated in the following two aspects:on the one hand, international law possesses important function in protecting intangible cultural heritage. As international law sets down basic norms in coordinating different countries, it can bring international powers in line to protect intangible cultural heritage, which is an advantage not possessed by domestic law. Thus, international law has become the fundamental method in protecting intangible cultural heritage. On the other hand, international legal protection of intangible cultural heritage incarnates basic values and ideas of international law. Intangible cultural heritage is at the same time the reflection of international cultural diversity, basic human rights, as well as the common interest of humanity. In modern international law, "the common interest of humanity" has become its basic ideal and highest value, while guaranteeing human rights has become its basic value. Therefore, international legal protection of intangible cultural heritage represents the basic idea and value of protecting the common interest of humanity and human rights in modern international law, which is of far-reaching importance for preserving and promoting human civilization.How can international law protect intangible cultural heritage. This is the core problem of international legal protection of intangible cultural heritage. In this paper, Chapter Two to Chapter Six discuss this problem from the following five aspects respectively. First, it analyzes and interprets the Convention for the Safeguarding of Intangible Cultural Heritage. The paramount issue in studying how international law protects intangible cultural heritage is to analyze what kind of international law is suitable for the protection of intangible cultural heritage. Convention for the Safeguarding of tangible Cultural Heritage is the only special convention and important international legal document for protecting intangible cultural heritage. Therefore, we need to conduct systematic and in-depth analysis on the Convention for the Safeguarding of Tangible Cultural Heritage, which was enacted based on the Convention for the Protection of the World Cultural and Natural Heritage, while making innovations of its own. The basic contents of the convention include the following:definition, protection principles, organizations and mechanisms of intangible cultural heritage, obligations of state parties of the convention and etc. These are also the basic contents of international legal protection of intangible cultural heritage. The convention certainly has some defects in public participation, mandatory implementation and other aspects, but its advantages in protecting intangible cultural heritage far exceeded these defects. The second aspect is about legal protection of intangible cultural heritage in international human rights. This involves many complicated problems:not only domestic mechanisms and international mechanisms have overlapping functions that are difficult to be joined together, many conflicts of rights often arise in practice. The key to solving the coordination problem of domestic mechanisms and international mechanisms lies in endowing relevant international institutions with more human right judicial review. Conflicts of right are mainly represented in the conflicts between cultural rights and intellectual property rights, and the conflicts between cultural rights and other basic human rights. The solutions vary according to the varying degrees and different types of conflicts. In the conflicts between cultural rights and intellectual property rights, cultural rights should be prioritized moderately; for obvious and intense conflicts between cultural rights and other basic human rights, other basic human rights should be prioritized; for unobvious and common conflicts between cultural rights and other basic human rights, cultural rights should be prioritized. The third aspect is about international intellectual property rights protection of intangible cultural heritage, which is the most important way in private legal protection mode of intangible cultural heritage. However, traditional intellectual property rights meet many legal obstacles in its protection of intangible cultural heritage. For example, group rights of intangible cultural heritage are hard to be guaranteed; permanent protection of intangible cultural heritage is hard to be satisfied; Intangible cultural heritage cannot meet the requirements of innovation and etc. To some extent, new intellectual property rights may break through obstacles that traditional intellectual property rights face. Therefore, under the current intellectual property rights system, new intellectual property rights like trade secret rights, geographical indication rights can be effective methods for intangible cultural heritage. Yet, reform and innovations to the current international intellectual property rights are necessary for fundamental breakthrough of the above obstacles. These reforms and innovations must be based on the basic ideas and institutions of current international intellectual property rights law, and expand the protection system and contents. At present, the major mode of reform and innovation of international intellectual property rights system is multi-layer protection method for different types of intangible cultural heritage. The fourth aspect is about international legal protection of traditional knowledge of indigenous people. International legal protection of traditional knowledge of indigenous people is a typical case in international legal protection of intangible cultural heritage. At present, basic framework of international legal protection for traditional knowledge of indigenous people has been established internationally. The key of this protection lies in solving three important and complex problems:the status of right to cultural self-determination in the international legal protection of traditional knowledge of indigenous people; collective rights in international intellectual protection of traditional knowledge of indigenous people; customary law in the protection of traditional knowledge of indigenous people. Right to cultural self-determination is the basis and core content of international legal protection of traditional knowledge of indigenous people. Collective rights problem remains the biggest challenge in international intellectual property rights protection of traditional knowledge of indigenous people. With the development of international intellectual property rights system, collective rights problem has been overcome in some degree. Formed gradually and naturally in the long history of indigenous people, customary law possesses natural law characteristics, which is very suitable for protection of traditional knowledge of indigenous people. At present, legislation and judicial practice in international law and domestic laws in many countries have acknowledges customary law’s protection of traditional knowledge of indigenous people. The fifth aspect is about multinational dispute resolution mechanism of intangible cultural heritage, which has become a prominent problem in international legal protection of intangible cultural heritage. Many defects of multinational dispute resolution mechanism exist. These defects are mainly represented in the following aspects:lack of international institutions for the purpose and incomplete procedures in solving multinational disputes in intangible cultural heritage protection. These defects cause practical solutions of these disputes to lapse into gravely difficult situations. Therefore, international society should establish special international dispute resolution mechanisms and improve relevant procedures and norms to promote just, reasonable and timely solutions to these disputes.How can China establish and improve legal system for protecting intangible cultural heritage. The fundamental purpose in studying international legal protection of intangible cultural heritage lies in discussing the establishment and improvement of legal system for protecting intangible cultural heritage in China. Chapter Seven in this paper is devoted to this problem. As a nation with rich intangible cultural resources, China still face great challenges and difficulties in protecting these precious resources. The fundamental reason is the serious lack of relevant laws. Therefore, it’s urgent to improve legal system for protecting intangible cultural heritage in China, which must be established in the international scope. The basic idea in improving Chinese legal system for protecting intangible cultural heritage is as follows:with the prerequisites of following the relevant provisions of international law as well as learning about other national experiences, and on the basis of Intangible Cultural Heritage Protection Law of the People’s Republic of China (draft), we should insist combining static and dynamic protection, establish legal system with the basic law as the core and local legislation as supplements, and adopt protection mode that combines substantive laws and procedural laws.In summary, this paper is divided into seven chapters and three questions:why should international law protection intangible cultural heritage; How can international law protection intangible cultural heritage; How can China establish and improve legal system for protecting intangible cultural heritage. These three questions cover important theoretical, legislative as well as practical problems, and constitute the logical starting point, core content as well as fundamental purpose of international legal protection study.