Abstract
After a preliminary introduction about the aims and the method of a comparative law on the subject of ICH, the final chapter intends to offer a final, structured analysis, with a comparative approach, on the basis of the contributions provided by the previous chapters to elaborate some conclusions for a general overview of the legislative and policy measures adopted both at the central and local level to ensure the due implementation of the UNESCO 2003 Convention. Particularly, the word focuses on the protection tools already set for the protection of the ICH, before the UNESCO Convention, letting three different models emerge, to consequently concentrate the investigations toward the effects and perspectives on national legislations after the approval of the UNESCO 2003 multilateral agreement. This framework naturally leads to questioning the existence, on an international scale, of a global legal protection for the ICH, also as per the new fields of action and challenges for the national regulators in the overall UN agenda and as related to the arising notion of biocultural diversity, and to the emerging adaptation of laws and systems of the States Parties in raising the level of legal protection of cultural and identity rights.
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Notes
- 1.
Blake (2009); see also Morbidelli, Il valore immateriale dei beni culturali, in Aedon, 1, 2014, whose analyses move from the M.S.Giannini’s juridical thesis according to which “the cultural asset is always an intangible asset outlined by the cultural value”.
- 2.
See Maffi (2007). In illustrating the concept of biocultural diversity, the Author refers also to the question of the environmental degradation, considered as a severe threat for the place-based societies, by remarking the key role of the “traditional environmental knowledge” (TEK), transmitted from generation to generation, through language and practical teachings, thus shaping ways of life, worldviews, and sense of place.
- 3.
Zweigert and Kötz (1992), edited by di Majo A. e Gambaro A., Milan 1992, 7.
- 4.
Zweigert and Kötz (1992). On this topic see de Vergottini (2007) stating that “according to a persuasive evaluation, the most certain way of proceeding to overcome the uncertainties and defining divergences, and to not to stop in front of the perplexities caused by the use of different organizational solutions, is given by the identification of the function to which a given institute responds “ (63, italique as per the Author).
- 5.
Ibidem, 49-50. For these Authors, in fact, “the institutions of different systems can be profitably compared only if they perform the same function” (ibidem). Equally, Reitz (1998).
- 6.
As underlined by Scarciglia (2006) who notes the, in fact, “the tertium comparationis represents a common starting point of the comparative analysis, but could not be considered a reference model if we would confuse it with the national model” (86).
- 7.
Pegoraro and Rinella (2007), cit., 71.
- 8.
- 9.
This will be done bearing in mind that “whatever its philosophical belonging, the public comparatist must get used to the idea that the normative formant (legislative) is not always the prius of an investigation, to be explored, if necessary, with the analysis of jurisprudence and quotations from the doctrine”. The normative formant, in fact, while representing “the starting point for any macro or micro comparative research in most modern legal systems (...), it assumes a different weight depending on the importance of other sources in each system” (Pegoraro and Rinella 2007, cit., 42).
- 10.
See Chap. “The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. General Remarks”, particularly Sect. 5.
- 11.
Colombo (2002).
- 12.
Equally Parekh (2002).
- 13.
Fortier (2008).
- 14.
- 15.
The reference goes clearly to the essay by Taylor C., Multiculturalism and the Politics of Recognition: An Essay, Princeton University Press (1992); contra see Goldberg (1994).
- 16.
- 17.
See Blake (2006).
- 18.
See Blake (2016).
- 19.
Op. cit., Blake (2016).
- 20.
As debated at the 11th session of the Intergovernmental Committee held in Addis Ababa (November 28–December 2, 2016), namely inviting to “support initiatives to further explore the links between intangible cultural heritage and climate change, as well as other sustainable development issues” (Decision 11.COM 6); appreciating the efforts of the State Parties “to address the contribution of the safeguarding of intangible cultural heritage to sustainable development, notably in terms of environmental sustainability, enhancement of local economies, intercultural or interreligious dialogue”, thus encouraging them “to continue elaborating submissions that address these aspects” (Decision 11.COM 10); including the contribution “to sustainable development for human well-being, dignity and creativity in peaceful and inclusive societies” in the Results map for developing an overall results framework for the Convention (Decision 11.COM 14) as a key indicator to measure the impacts of the ICH’s safeguard by communities, groups and individuals. This workflow continued in the Committee hosted by the Republic of Korea offering a wider debate about the trends of the Convention also thanks to the “Open-ended intergovernmental working group on developing an overall results framework for the Convention” which met in preparation of the Jeju session in Chengdu, China, in June 2017. It should also be noted that these last two sessions of the Committee greatly progressed in the identification of the ICH in the “rural and urban context” as ruled by the new Chapter of the Operational Directives, by inscribing on the Representative List some key elements which played and still play a significant role within their community for the sense of identity they bear and for the effects on their socio-economic framework, such as: the Italian “Art of Neapolitan ‘Pizzaiuolo” (2017, see Chapter 10), the “Craft of the miller operating windmills and watermills” of Netherlands (2017), or the “Beer culture in Belgium” (2016) and the “Flatbread making and sharing culture: Lavash, Katryma, Jupka, Yufka” (2016) by Azerbaijan Iran, Kazakhstan Kyrgyzstan and Turkey.
- 21.
As remarked in para. 176, concluding the introductory part of the Chapter, “States Parties shall endeavour to ensure that inscriptions of intangible cultural heritage on the Convention’s lists (…) and the selection of the best safeguarding practices (…) are used to advance the Convention’s goals of safeguarding and sustainable development and are not misused to the detriment of the intangible cultural heritage and communities, groups or individuals concerned, in particular for short-term economic gain”.
- 22.
In Ethiopia the Committee encouraged “the Secretariat to strive to help States Parties in addressing a number of thematic areas to operationally link the safeguarding of intangible cultural heritage and sustainable development, particularly within the framework of the 2030 Agenda for Sustainable Development” and the States Parties “to underline in their periodic reports the contribution of national policy measures regarding the safeguarding of the intangible cultural heritage to sustainable development, particularly in the context of the role of culture in the achievement of the Sustainable Development Goals” and “to continue to ensure the sustainability and enhancement of the results of the projects” (Decision 11.COM 9.a/c). Further, the Decision 11.COM 5 invited “the Secretariat to expand the outreach and visibility of its activities by consolidating networks and partnerships with UNESCO-related programmes and institutions, as well as educational institutions, civil society and others”.
- 23.
Maffi (2007).
- 24.
Maffi (2001), passim.
- 25.
The partnership was an outcome of a close cooperation between the organizations and development agencies of the indicators of globally biodiversity and it’s the main source of information on the globally biodiversity trends. The Convention on Biological Diversity identified 17 indicators, including the traditional and ritual knowledge, to achieve these goals; see also Santilli (2012).
- 26.
UNEP, Global Environment Outlook, GEO-4, 2007.
- 27.
See also, UNEP/CBD/COP/10/INF/3. This declaration (actually it is much more than a formal declaration) was then adopted as a decision by COP10 of the Convention on Biological Diversity in October 2010 in Nagoya.
- 28.
In March 2011, in Indonesia, in Bali, during the IV session of the Governing Body of the Treaty on the use of the genetic resources, the Ministers of the participating countries, thanks to the Italian government, approved a joint declaration in which they highlighted how the action programs for biological and cultural diversity of CBD, FAO and UNESCO need to be integrated. See Petrillo (2012); see also Petrillo et al. (2015).
- 29.
In February 2012, in Ouro Preto in Brasil, the expert meeting on World Heritage and Sustainable Development organised by UNESCO and composed by experts on sustainable development from all over the world (including, for Europe, a German scientist and the Author of this chapter) finished their works with the approval of a set of recommendations for the UNESCO Convention’s Executive Board on the cultural and natural heritage. Among them, there was the decision to promote the adoption of a UNESCO Universal Declaration on Biocultural Diversity (point no. 39). These recommendations were then adopted by the Committee during its 38th session in 2012 in Saint Petersburg.
- 30.
- 31.
Maffi (2007).
- 32.
Maffi (2010).
- 33.
Posey (1999).
- 34.
- 35.
Buiatti (2007).
- 36.
Blythe and McKenna Brown (2003).
- 37.
See also, Gordon and Newfield (1996).
- 38.
See: https://www.bipindicators.net (accessed December 15, 2018).
- 39.
- 40.
When we are talking about an ethnolinguistic groups, we mean “a human community that shares the same language and the same culture and uses this method to distinguish itself from other groups” (WWF and Terralingua, Report, 2001).
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Petrillo, P.L. (2019). Intangible Cultural Heritage and Comparative Law. Towards a Global Legal Protection of the Intangible Cultural Heritage. In: Petrillo, P.L. (eds) The Legal Protection of the Intangible Cultural Heritage. Springer, Cham. https://doi.org/10.1007/978-3-319-72983-1_11
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