Article 3(b): Relationship to Intellectual Property and Environmental Instruments

Abstract

This contribution explores the relationships between the 2003 ICHC and the two key domains of intellectual property law and environmental law. We focus on conceptual overlaps and distinctions, particularly the ‘product versus process’ distinction that is central to the definition of ICH, and inquire into what this distinction means for interpreting the 2003 ICHC in relation to other existing international legal frameworks. Like Article 3(a), the provision of Article 3(b) is an example of a conflict clause performing a supplementation role and renders the regimes for IP and TK clearly prevailing over the 2003 ICHC, in line with Article 30(2) of the Vienna Convention on the Law of Treaties. Rather, we focus on the drafting history of Article 3(b) (inasmuch as there are nuances different from the general history canvassed in the commentary to Article 3(a)); next, we focus on the issue of the relationship to IP, and particularly the developing regime for Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK) within WIPO; after that, we examine the issue of biological and ecological diversity in the context of ICH; we bring these two strands together in discussing some general guidelines for the interpretation and implementation of Article 3(b).

Keywords: intangible cultural heritage, biological diversity, intellectual property, traditional cultural expressions, traditional knowledge, treaty interpretation