A diet too far? intangible cultural heritage, cultural diversity, and culinary practices

I. Introduction: Seeking the Limits of (Culinary) Intangible Cultural Heritage Within a book on diversity and intellectual property law, a chapter on intangible cultural heritage (ICH) in general, and on culinary practices in particular, is necessarily an outlier, but also one that is necessary. ICH lies far from mainstream intellectual property. The concept of ICH can clearly overlap, and in particular circumstances may even conflict, with traditional intellectual property rights. However, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (the CSICH) – adopted under the auspices of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) – does not in itself establish intellectual property rights, whether individual or collective. Indeed, the CSICH carefully distances itself from internationally recognized intellectual property disciplines. Moreover, as one informal yet readily available UNESCO commentary states, ICH is “not necessarily original or unique” – hardly the makings of classical intellectual property rights. At the same time, while food, beverage, and culinary practices can undoubtedly be “cultural,” whether in their production or consumption or their social representations of identities, it can surely be said that they tend to lie generally within the penumbra of culture, often in need of special, apologetic justification. Nevertheless, for over a decade (and unlike the other – yet still related – nebulous concept of traditional knowledge), ICH has been ingrained in a dedicated international (formally) “hard” law instrument – the CSICH, which establishes certain international and domestic entitlements, rights, obligations, and protections, as well as increasingly active institutional mechanisms. Additionally, ICH unmistakably (although not entirely clearly) interacts with cultural diversity. Notably, the CSICH goes so far as to state that, even with all its uncertainties, ICH is “a mainspring of cultural diversity.” In particular, the Representative List of the Intangible Cultural Heritage of Humanity under Article 16 of the CSICH (the Representative List) and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding under Article 17 of the same Convention (the Urgent Safeguarding List) now include a broad variety of over 300 “elements” from all around the world, ranging from Madagascan wood-carving 10 to Karabakh horse-riding games.