Kimjang: Making and Sharing Kimchi in the Republic of Korea

Kimjang—the traditional process of preparation of kimchi, a spicy Korean vegetable dish—was inscribed in 2013, nominated by the Republic of Korea (South Korea).^{Footnote 35} Kimchi, a food that is the tangible product of Kimjang, is defined as “Korean-style^{Footnote 36} preserved vegetables seasoned with local spices and fermented seafood.”^{Footnote 37} Kimchi serves as a ubiquitous sidedish in Korea, and the nomination file expounds on the tradition. The kimjang narrative refers to the geographical seclusion of the Korean peninsula, its long winters, harsh terrain, twentieth-century poverty, reliance on the fruit of the sea, and its people’s resilience.^{Footnote 38} Moreover, kimchi is associated with positive health effects including the relative absence of obesity among Koreans.^{Footnote 39} From a commercial perspective, however, Korean kimchi is now in crisis, with significantly reduced domestic consumption,^{Footnote 40} and a marked rise in the importation of commercial-grade kimchi,^{Footnote 41} much of it from China, eaten in restaurants. The nomination file cites a 2011 study, according to which only 6.8 percent of kimchi consumed in Korea is commercially produced, but recent data shows that Chinese kimchi alone makes up 13 percent of consumption,^{Footnote 42} and 17 percent in 2016.^{Footnote 43}

Kimjang is therefore not only ICH, but it also has a commercial interest, with a market worth close to US $1 billion in Korea. Consequentially, Korea has employed international law to influence Korean kimchi’s international commercial position. In the 1990s, troubled by the popularity of a Japanese version of kimchi (called “kimuchi”), which does not involve fermentation processes,^{Footnote 44} Korea campaigned for the adoption of an international Codex Alimentarius standard for kimchi that emphasizes fermentation, which was ultimately approved in 2001.^{Footnote 45} The standard, however, has another far less traditional qualification, whereby kimchi must use Chinese cabbage (paechu).^{Footnote 46} This is by far the most popular type of kimchi, though rivaled by Daikon radish kimchi (Kkakdugi), but kimchi is highly diverse, with hundreds of types utilizing many different basic ingredients in different regional (Korean) styles.^{Footnote 47} Yet the standard promoted by Korea—which may have WTO implications^{Footnote 48}—exclusively requires Chinese cabbage, and this may derive from trade interests; Chinese cabbage is the predominant basis for industrial kimchi, and Korea is among its top five producers globally, with the highest per capita production among the major producers.^{Footnote 49}

Korea has also turned on several occasions to international law to protect its international kimchi trade interests vis-à-vis China,^{Footnote 50} predominantly related to industrial, wholesale kimchi.^{Footnote 51} In recent years, China reclassified Korean kimchi as a pickled product that does not meet its health standards, effectively barring Korean imports to China—a topic that has strained trade relations.^{Footnote 52} Korea has attempted to promote legal protection through a very broad geographical listing in at least one bilateral trade agreement (Chile),^{Footnote 53} with no notable effect. “Changnyeong onions”—onions used in some localized kimchi making, coming from a particular locale in Korea—have reportedly been listed as a geographical indication (GI) in Korea and recognized as a GI under the South Korea–European Union (EU) Free Trade Agreement.^{Footnote 54}

Beer Culture in Belgium

The application for inscription of Belgian beer culture was submitted by the country’s German-speaking community, also on behalf of the French and Flemish communities of Belgium, with support from brewers’ organizations, beer-tasting organizations, beer promoters, specialized non-governmental organizations, and educational institutions.^{Footnote 55} The nomination file emphasizes the diversity of brewing practices throughout Belgium, the transmission of brewing knowledge, the social role of beer in communities and social settings, and its contribution to sustainable development.^{Footnote 56}

The application itself was prepared by a trade association, Belgian Brewers, which is a federation of almost all of the breweries in Belgium.^{Footnote 57} This is noteworthy as far as international trade is concerned. Members of the federation are not limited to “the craft and/or speciality beers in Cistercian Trappist breweries, family breweries, ‘abbey’ breweries” that the nomination file focuses on.^{Footnote 58} Rather, the federation includes, among others, Duvel Moortgat, a corporation with a diverse portfolio of internationally marketed Belgian beers (for example, Duvel, Maredsous, d’Achouffe, and De Koninck), and 2015 a consolidated turnover of €315.6 million.^{Footnote 59} More importantly, it includes the Leuwen-based multinational Anheuser-Busch (AB) InBev, the world’s largest brewer, with US $55 billion in global annual sales and an estimated global market share of 28 percent.^{Footnote 60} AB InBev’s Belgian brands include Jupiler, Belgium’s leading lager beer, as well as a series of recognized international brands brewed in Belgium, such as Stella Artois, Leffe, and Hoegaarden. In recent years, as beer consumption in Belgium has dropped, large-scale Belgian brewers have turned to an expanding global market.^{Footnote 61}

Thus, the nomination of Belgian beer culture in UNESCO paralleled a corporate international marketing drive, in which the Belgian government has economic interests, as does the EU. Beer production is said to be 1 percent of Belgium’s gross domestic product,^{Footnote 62} generating 50,000 jobs in retail, hospitality, supply, and brewing.^{Footnote 63} These commercial dynamics can certainly lead to international legal frictions, even with cultural dimensions. Famously, within the EU, the European Commission brought action against Germany in the Court of Justice of the European Union in 1987, at the behest of French brewers who could not sell their products under the label “beer” due to the German purity laws (Reinheitsgebot) of 1516. The Court determined that this constituted a restriction on the freedom of movement of goods that could not be justified on public health grounds.^{Footnote 64} In the WTO, the EU filed a complaint against Canada in 2006, regarding its tax exemptions and reductions for wine and beer, arguing, inter alia, that these measures discriminated against European beer in favor of Canadian beverages.^{Footnote 65} As we shall see below, cultural descriptions of production methods and styles inscribed in ICH items may potentially impact such questions.

In Belgium itself, there are hopes that the inscription will be a boon for international tourism and hospitality services, with Prime Minister Charles Michel calling for tourists to visit in order to taste the beers.^{Footnote 66} Further, as part of the nomination of the beer culture of Belgium to the ICH list, tourist-friendly safeguarding efforts of regions were detailed, ranging from a “beer routes” project in the Flemish community to the planned opening of an “interactive center for discovering beer” in Brussels, which will position itself as the “Beer Capital.”^{Footnote 67}

Yoga

Yoga, which was inscribed in 2016 at the nomination of India,^{Footnote 68} is worth briefly considering within the ICH/trade nexus for several reasons. First, while originating in India, it is a practice of global reach, which has raised explicit concerns of commodification and even cultural (and neoliberal) misappropriation.^{Footnote 69} Second, beyond its Western accessorization—the trend toward the consumption of products associated with yoga, such as yoga pants and mats—yoga has distinct elements of health, leisure, education, and tourism that may relate directly to international service trade and IP. Third, yoga has become an incredibly profitable international industry, for lack of a better word; in the United States, for example, there are an estimated 36 million practitioners, and the industry is worth US $16 billion.^{Footnote 70}

The Indian government has criticized this commodification, though it may also be a beneficiary. On the first United Nations (UN) International Day of Yoga in 2015, Indian Prime Minister Narenda Modi declared that “[y]oga is not a commodity … if we make yoga into a commodity, we will cause maximum damage to it,” and he stated further that “yoga is not India’s property, and should not be seen as an Indian brand.”^{Footnote 71} At the same time, the Union (federal) minister in charge of Ayurveda, yoga, Unani, siddha, and homoeopathy (AYUSH) called for the regulation of yoga: “Regulations are necessary to standardise yoga practices and bring authenticity to yoga teachers.”^{Footnote 72} Such regulation may have international legal implications. Also in the legal realm, the Indian government is attempting to prevent the appropriation of yoga as IP. In the ICH nomination file for yoga, it was indicated that the existing literature on yoga and other traditional systems—including, so far, some 1,680 ‘asanas’ (roughly, yoga positions or exercises)—are being digitally transcribed in order to prevent misappropriation and to provide defense against IP claims.^{Footnote 73} This comes after an American court found that Bikram Choudhri, the founder of Bikram yoga, could not copyright a series of yogic asanas.^{Footnote 74} Yoga and the “AYUSH” sector also hold economic potential for transnational service provision. India’s wellness industry was estimated in 2016 to be worth 490 billion rupees, and the AYUSH sector has an annual turnover of some 120 billion rupees.^{Footnote 75} The global “wellness” economy was worth US $3.7 trillion in 2015, of which wellness tourism made up US $536 billion,^{Footnote 76} which is a fact not lost on Indian officials, who see yoga tours and medical tourism as a way to draw travelers and foreign currency.^{Footnote 77}

Idea and Practice of Organizing Shared Interests in Cooperatives

This is an interesting, even peculiar, ICH item inscribed at the nomination of Germany in 2016.^{Footnote 78} It is unusual because it essentially refers to a “form of self-organization” with distinct economic goals, including the provision of services and other involvement in the market, that are extremely common in Germany and elsewhere.^{Footnote 79} In other words, in contrast to most of the ICH items discussed in this article, in which a cultural activity gains an economic dimension, one could say that cooperatives could be defined first as a socioeconomic activity that Germany and the inscription process considered to have gained the character of ICH. In this respect, one need not go far to see how cooperatives may interact with international trade law. As service providers—say, in the financial sector—should they be granted regulatory preferences on the basis of their acknowledged cultural uniqueness in comparison with regular commercial banks? Should they be treated as private or public entities? And what about subsidies regulation, which may apply under the WTO? These are not theoretical questions.

In the EU context of state aid regulation, the EU Commission issued a notice in the same year as the inscription, whereby “[g]enerally, cooperative societies are not in a comparable factual and legal situation to that of commercial companies and consequently do not entail State aid, provided that: (i) they operate in the economic interest of their members; (ii) the relations with their members are personal and individual; (iii) the members are actively engaged in the work of the cooperatives and (iv) they are entitled to equitable distribution of their economic results.”^{Footnote 80} Whether such a position would withstand scrutiny under global subsidies regulation (discussed later in this article), perhaps invoking public morals or public order exceptions^{Footnote 81} and taking into account the CSICH, is of course, at this time, a hypothetical question. We take a step back now to examine the status of ICH items from the perspective of general international law and international trade law more specifically.

The (Meagre) International Legal Implications of CSICH Inscriptions

The CSICH entered into force on 20 April 2006 and currently has 172 state parties. While the Convention is undoubtedly legally binding under international law, the scope of legal obligation (and right) that can be derived from it is questionable. Its main requirements are at the national level and highly deferential at that—namely, state parties are merely instructed to create inventories of intangible cultural heritage within their respective territories, “in a manner geared to [each party’s] own situation,”^{Footnote 82} and to take “necessary measures” to ensure ICH safeguarding.^{Footnote 83} State parties are also instructed to “endeavor, by all appropriate means,” to ensure education, awareness raising, and capacity building^{Footnote 84} with respect to ICH in their territory (regardless of inventory inclusion or listing) and to include “communities, groups and individuals” in the framework of their respective safeguarding activities.^{Footnote 85}

At the international level, the CSICH mandates the establishment of two lists: the first, a “Representative List of the Intangible Cultural Heritage of Humanity” (Representative List),^{Footnote 86} and the second, a “List of Intangible Cultural Heritage in Need of Urgent Safeguarding” (“Urgent Safeguarding List”).^{Footnote 87} Inclusion in either of these lists is determined by the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (CSICH Committee) at the proposal of the state parties concerned; the purpose of the Representative List is to “ensure better visibility … and awareness of [the ICH’s] significance,” while inscription in the Urgent Safeguarding List makes the relevant heritage eligible for international assistance.^{Footnote 88} Thus, it might be said that inscription simply reflects the strong preference of a state party to the Convention—and the political approval of the CSICH Committee (composed of 18 state parties)—that the ICH in question is worthy of recognition and safeguarding. The “safeguarding” aspect does not mandate any specific action but, rather, suggests a range of policies that should apply to all ICH, whether listed or not.^{Footnote 89} Indeed, simply put, there do not seem to be any explicit “hard” legal consequences to inscription stemming from the CSICH.^{Footnote 90}

ICH inscription nominations must include a detailed list of measures that the submitting state intends to take in order to safeguard the inscribed ICH item.^{Footnote 91} However, while Article 29 of the CSICH subjects contracting parties to periodical review, there is nothing in the CSICH indicating a penalty or sanction in case of non-compliance, such as formally “de-listing” the inscription. The possibility of de-listing is quite fleetingly noted in the OD,^{Footnote 92} according to which “[a]n element shall be removed from the Representative List … by the Committee when it determines that [the element] no longer satisfies one or more criteria for inscription on that list.” It remains unclear to what extent this OD provision can be employed as a compliance measure, if a state party does not pursue the safeguarding measures as committed in the nomination file. To date, there have been no such occurrences.

By contrast, looking at tangible world heritage law, while the UNESCO WHC itself similarly does not include any provisions for the removal of a listing, the WHC Operational Guidelines include much more concrete and specific criteria for de-listing, in cases where “the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World Heritage List” and “where the intrinsic qualities of a World Heritage site were already threatened at the time of its nomination by human action and where the necessary corrective measures as outlined by the State Party at the time, have not been taken within the time proposed.”^{Footnote 93} To date, there have been only two instances of WHC de-listing: Oman’s Arabian Oryx Sanctuary in 2007, due to reductions in the size of the sanctuary and plans for hydrocarbon prospection (with the de-listing taking place at Oman’s own suggestion),^{Footnote 94} and Germany’s Dresden Elbe Valley in 2009, due to the construction of a four-lane bridge across the river.^{Footnote 95} Both of these came after years of efforts by the WHC Committee to convince the states in question to comply with the regime, including site visits and meetings with local officials, and this under the WHC’s system of “reactive monitoring.”^{Footnote 96} It is at least hypothetically possible that a similar situation could emerge under the CSICH regime, but, stricto sensu, that is not the current reading of the law and OD.

In sum, the general international legal implications of CSICH inscription would appear to be quite limited, entailing a good faith obligation to pursue safeguarding measures in the broadest sense of the term, with the worst case scenario of de-listing, in circumstances that have not yet been fleshed out in practice. Let us turn now to examine the legal status and implications of CSICH-based inventories and inscriptions in the WTO’s legal system.

The (Potential) Status of National Inventories and CSICH Items in the WTO

In the WTO, national lists and domestic ICH-related measures would normally be considered as municipal legislation. In the WTO system—and, indeed, under international law as a whole—a country’s domestic legislation cannot excuse it from fulfilling its international obligations.^{Footnote 97} Within the WTO, municipal law can serve as evidence of facts (in casu, whether a particular product or service is considered as ICH under domestic law and which of its characteristics justify this status) or as compliance or non-compliance with international obligations.^{Footnote 98} Moreover, the manner in which a measure is characterized under municipal law, or the “label” that is given to it, is not dispositive and may be characterized differently in the WTO system.^{Footnote 99}

Domestic lists could therefore become relevant as evidence of the protected status of ICH in domestic law, as mandated by the CSICH, for various trade law purposes; however, the fact that a state has itself declared an element of its heritage as “safeguarded ICH” would not, in and of itself, grant that element privileged status in the WTO. Indeed, domestic safeguarding measures (such as subsidies or preferred taxation and regulatory treatment) are precisely the type of measures whose WTO consistency may come into question, requiring review, whether in WTO dispute settlement or in other settings.

At the international law level, regarding CSICH inscriptions, as adopted by the CSICH Committee, it should first be noted that the jurisdiction of the WTO Dispute Settlement Body (DSB) is limited to claims under the ‘covered agreements’ of WTO law,^{Footnote 100} of which the CSICH is of course not one. In other words, an ICH item could not of itself be the basis for a WTO claim (such as if a trade measure taken by one WTO member is detrimental to the safeguarding of an ICH item, in which another member has a trade interest; the basis of such a claim would be WTO law itself, not the CSICH). Nonetheless, applicable law in the WTO is not necessarily limited to WTO-covered agreements.^{Footnote 101} An internationally recognized UNESCO ICH inscription could be introduced into the WTO system in several ways, which are discussed in more detail in the next section, depending on the specific legal context.

Non-WTO norms such as ICH items, including “soft law” and non-binding agreements, generally play an interpretive role in the WTO or serve as factual evidence and support. This has been demonstrated in several disputes. In the United States – Shrimp dispute, the Panel and Appellate Body took into account several non-WTO agreements in interpreting the term “exhaustible natural resources” under Article XX(g) of the General Agreement on Tariffs and Trade (GATT).^{Footnote 102} In particular, they found sea turtles to be factually in danger of extinction, with reference to a list of such species appended to an international agreement (the appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora),^{Footnote 103} which may be considered similar to CSICH inscription.^{Footnote 104} In United States – Clove Cigarettes, both parties referred to the World Health Organization’s (WHO) Framework Convention on Tobacco Control (FCTC) (neither of which had ratified it) and the non-binding Partial Guidelines for Implementation of Articles 9 and 10 of the WHO Framework Convention on Tobacco Control, 20 Nov 2010, FCTC/COP3(7). ^{Footnote 105} The Panel used the inclusion of sales prohibitions as recommended measures under the Partial Guidelines to support its finding that Indonesia had failed to demonstrate that the US ban on clove cigarettes was not “more trade restrictive than necessary” to fulfill its legitimate objective.^{Footnote 106} This may be analogized to the CSICH’s recommended safeguarding measures.

However, this approach may be significantly qualified. In European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC – GMOs), for example, the Panel accepted that reference to other relevant rules of international law may be informative for interpretative purposes but, in practice, declined to take into account provisions of certain non-WTO international agreements, finding that it was not “necessary or appropriate” to do so.^{Footnote 107} Nevertheless, the Panel actively sought (and received information) from a variety of international organizations^{Footnote 108} and, indeed, took terminologies adopted by them (essentially as “soft law”) as informing the “ordinary meaning” of treaty terms relevant to the dispute (for example, the UN Food and Agriculture Organization’s Glossary of Biotechnology for Food and Agriculture).^{Footnote 109}

Regarding treaty interpretation, Article 3.2 of the WTO’s Dispute Settlement Understanding (DSU) asserts the WTO dispute settlement system’s role in “[clarifying] the existing provisions of those agreements in accordance with customary rules of interpretation of public international law,”^{Footnote 110} which has been taken to mean primarily Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT).^{Footnote 111} This should in principle include taking into account “any relevant rules of international law applicable in the relations between the parties,” pursuant to Article 31(3)(c) of the VCLT. “Relevance,” in such situations, is determined on a case-by-case basis^{Footnote 112} and, in any event, requires that the rule must deal with the same subject matter as the term being interpreted.^{Footnote 113} However, it may be that the use of Article 31(3)(c) of the VCLT is appropriate only if all WTO parties, and not just the parties to the dispute, are members of the Convention,^{Footnote 114} as the EC – GMOs Panel indeed held.^{Footnote 115} This issue has been the subject of much debate^{Footnote 116} and has essentially been sidestepped by the Appellate Body through the exercise of judicial economy.^{Footnote 117}

For present purposes, without establishing the precise manner of the introduction of ICH items into WTO law, suffice it to say that, depending on the legal and factual circumstances, an ICH inscription may serve for the purposes of factual determination and interpretation under WTO law. This article now turns to discuss norm-specific situations in which this may have impacts in WTO law contexts (but with a broad brush, without in any way proffering an exhaustive or overly detailed legal analysis).

Non-Discrimination – ICH Items as Product or Service Distinctions

The most elementary situation in which a CSICH inscription might be taken into account under WTO law is a scenario in which the status of an inscribed ICH item, as well as its substantive content, would inform a determination of WTO-inconsistent trade discrimination, whether under Article I or III of GATT,^{Footnote 118} Article II or XVII of the General Agreement on Trade in Services (GATS),^{Footnote 119} or other relevant WTO disciplines.^{Footnote 120} All WTO members are bound by GATT’s very first provision to grant “any advantage, favour, privilege or immunity” on a non-discriminatory basis to any “like product,” “originating in or destined for any other country” (general most-favored nation treatment [MFN])^{Footnote 121} and to apply internal taxes to foreign products not “in excess” of the taxation of “like” domestic products and not “less favourable” to foreign “directly competitive and substitutable” products (Article III:2 of GATT). Regulatory measures applied to foreign products shall provide “treatment no less favourable” than accorded “like domestic products” (Article III:4 of GATT) (national treatment [NT]). Similarly, WTO members are bound to “accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable” than that accorded to “like services and service suppliers” of any other country (MFN on services trade) and, in specified sectors, must also provide foreign services and service suppliers the same treatment granted to “like” domestic equivalents (NT in services).^{Footnote 122}

The “likeness” of products, services, and service suppliers is therefore a key question in findings of discrimination, and the role of cultural content of goods and services has arisen to some extent in WTO jurisprudence and scholarship, albeit not with respect to the CSICH.^{Footnote 123} Regarding goods, the following four criteria have traditionally been examined in determining the competitive relationship between products: (1) the product’s end uses; (2) consumers’ tastes and habits; (3) the product’s nature, properties, and quality (physical characteristics); and supplementarily, (4) the customs classification of the products.^{Footnote 124} This has been extended mutatis mutandis—but not without difficulty—to the question of “like services.”^{Footnote 125}

One could consider several ways in which the inscription of an ICH item could be evaluated within this framework.^{Footnote 126} For example, a “widget” produced in circumstances and conditions that have merited ICH inscription—say, traditionally produced kimchi—may be functionally substitutable for another widget, though for particular cultural end uses of ceremonial or otherwise anthropological nature, only the actually inscribed item will do. Moreover, it cannot be presumed that relevant consumers would be indifferent to the cultural values that come with the circumstances and conditions that underwrite the ICH inscription, just as it cannot be presumed that they would be indifferent to the health implications of a widget.^{Footnote 127} In some cases, the authenticity of the ICH embedded within a product may be considered as a distinctive physical characteristic of the product, certainly if identifiable as a production and processing method^{Footnote 128} that distinguishes the ICH product from its functional substitutes. Much the same could be said, in principle, about services that have an ICH dimension to them, while competing on the marketplace with non-ICH services (for example, health services, entertainment services, or educational services).

An alternative approach to identifying discrimination has focused less on competitive market comparators and more on the “regulatory purpose” of the measure in question.^{Footnote 129} Along this line of thinking, which is still controversial in trade law, a trade restriction whose bona fide regulatory purpose is clearly aimed at safeguarding an ICH item, rather than protecting economic interests as such, may perhaps not be considered discriminatory. Of course, to the extent that some ICH inscriptions have strong origin-related criteria, the burden of demonstrating that the measure is based on a regulatory distinction that goes beyond the origin of the product (or service, as the case may be) could be high. In short, ICH inscriptions may have the incidental (at least) effect of providing evidentiary and interpretative information that influences product and service likeness that can be determinative of findings of WTO inconsistency in terms of GATT and GATS MFN and NT discrimination.

General Exceptions – Public Morals and Others

A second potential interaction between ICH inscribed items and WTO law would be within the realm of general exceptions, under Article XX of GATT or Article XIV of GATS, that could in principle justify any violation of GATT or GATS rules respectively (although the actual success rate of exceptions in this regard is very modest). There are in essence three relevant possibilities: a public morals defense (Article XX(a) of GATT or Article XIV(a) of GATS [in the latter case encompassing public order as well]); the necessity of securing compliance with otherwise not WTO-inconsistent domestic rules (Article XX(d) of GATT and Article XIV(c) of GATS); and the currently untested defense of Article XX(f) of GATT “imposed for the protection of national treasures of artistic, historic or archaeological value.”

The GATT/GATS public morals exception has been interpreted as relying upon “standards of right and wrong conduct maintained by or on behalf of community or nation.”^{Footnote 130} The reference to a community or nation defies universality, and, broadly read, standards of right or wrong could encompass some cultural practices—including those inscribed as ICH items—that define the intangible characteristics of tradeable goods and services. Insofar as descriptions of cultural production practices in goods and services (such as national inventories of ICH)^{Footnote 131} are not in themselves violative of GATT/WTO law—and there is no reason a priori to see them in this light—domestic measures taken to enforce their safeguarding may be protected under Article XX(d) of GATT and its corollary in Article XIV(c) of GATS. Inscription at the CSICH level, with the election to the Representative List by the CSICH Committee, can provide evidence of non-discriminatory purposes. Furthermore, the Article XX(f) GATT exception, which has never been applied in practice so far, may also be relevant, if the meaning of the phrase “national treasures” were interpreted to include ICH elements, even if in principle they should be considered of a universal character. A similar approach has also been suggested in the context of the CCD.^{Footnote 132} To be sure, the application of the public morals and “securing compliance” exceptions would have to satisfy the conditions of necessity.^{Footnote 133}

All three exceptions would have to pass the hurdles of the respective chapeaux of Article XX of GATT and/or Article XIV of GATS that require that the excepted measure is not “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.” This is not a simple feat in practice.^{Footnote 134} In the European Communities – Seals dispute, another GATT Article XX scenario arose: cultural heritage as a factor in the chapeau rather than in the substantive exception. The measure in question, a European Community (EC) ban on seal products, which the EC justified on the Article XX(a) public morals exception for reasons of animal cruelty, included an exception applying to “subsistence” seal hunts of Indigenous communities leading to the “partial use” of the products “within the communities according to their traditions.” While open to the possibility that traditional hunts could receive such special treatment, the Appellate Body found that the Indigenous exception (which, in practice, only benefited Inuit communities in Greenland but not in Canada or Norway) did not pass the chapeau test, inter alia because the criteria for benefiting from it were too ambiguous to ensure that seal products from commercial hunts by Indigenous peoples would not enter the EC market under the exception.^{Footnote 135} Not only does this present a real example of the theoretical duality of heritage and commerce, but it also raises the question how might the scrutiny of the Indigenous exception have been informed had there existed an ICH item for the traditional Inuit seal hunt (not an entirely theoretical possibility, given that the CSICH does not expressly preclude inscription of practices that may be detrimental to animal welfare). These scenarios suggest that the inscription of an ICH element under the CSICH, with the commensurate national inventory listing, may have an impact on the legal recognition of an exception in the WTO, potentially sustaining a domestic measure, subject to the conditions of WTO law.

ICH Items as Technical Regulations, Standards, or SPS Measures

A third way in which ICH items inscribed under the CSICH or national inventories could become relevant in WTO law, at least insofar as trade in goods is concerned,^{Footnote 136} is under the TBT Agreement and/or the SPS Agreement. There are two sides of the coin to consider in this respect, which are to be dealt with differently under each agreement. First, whether ICH items listed in the national inventories, and the measures taken to safeguard them, could be considered technical regulations or standards, as defined in Annex 1 of the TBT or SPS measures as defined in Annex A of the TBT or SPS Agreements, thus requiring conformity with the substantive provisions of each agreement, respectively. Second, if the answer to the first question were positive, CSICH inscriptions could be considered “relevant international standards” under the TBT Agreement, or “international standards, guidelines or recommendations” under the SPS Agreement, providing national measures based on them with a default defense of WTO consistency.

A national ICH inventory item, whether based upon a CSICH inscription or not, or measures taken to safeguard ICH, may qualify as technical regulations under the TBT Agreement. Technical regulations are to be implemented in order to meet ‘legitimate objectives’, which under the TBT Agreement, include “inter alia, national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment.”^{Footnote 137} Some of these, especially the prevention of deceptive practices, may be objectives of ICH measures, consonant with safeguarding, respect, and awareness building regarding ICH (Article 1 of the CSICH on purposes of the Convention), but the list is non-exhaustive, and there is no reason not to view the safeguarding of cultural heritage as a ‘legitimate objective’ in itself. Whether that is indeed the objective of a measure would require case-specific factual analysis.

In the interpretation of Article 1, Annex 1, of the TBT Agreement, a “technical regulation” has been found to involve three cumulative criteria: “First, the document must apply to an identifiable product or group of products. … Second, the document must lay down one or more characteristics of the product. … Third, compliance with the product characteristics must be mandatory.”^{Footnote 138} The technical regulation may also define “related process and production methods” and can include “symbols, packaging, marking or labelling requirements.”^{Footnote 139} All of these may be relevant either to the listing itself or to product-related safeguarding measures taken with respect to it.

The third criterion—that compliance be ‘mandatory’—is important especially for the distinction between “technical regulations,” on the one hand, and “standards,” “with which compliance is not mandatory” (Article 2, Annex 1, of the TBT Agreement), on the other hand. Compliance is mandatory if the document containing the criteria “[regulates] in a legally binding or compulsory fashion the characteristics at issue, and if it thus prescribes or imposes in a binding or compulsory fashion that certain product must or must not possess certain characteristics … or that it must or must not be produced by using certain processes.”^{Footnote 140} The panel in the United States – Tuna II (Mexico) dispute was divided on the meaning of “mandatory.”^{Footnote 141} The majority ruled that the fact that tuna products marketed in the United States could not carry a “dolphin-safe” label unless certain criteria were met—in essence, that they regulated the conditions under which a product may be labeled dolphin safe—made the regulation “mandatory.”^{Footnote 142} That said, one panel member opined that the fact that tuna could be marketed with or without meeting the “labelling requirements” meant that the labeling scheme was, in fact, voluntary.^{Footnote 143} The Appellate Body ultimately sided with the Panel majority on this issue.^{Footnote 144}

In any case, this opens the door to recognition of ICH safeguarding measures as technical regulations, which would be subjected to the rigorous requirements of Article 2 of the TBT Agreement, including not only non-discrimination (both MFN and NT) similar to those discussed above with respect to GATT but also to the Article 2.2 of the TBT Agreement requirement that technical regulations “shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.” In principle, “[m]embers shall use [international standards], or the relevant parts of them, as a basis for their technical regulations” (Article 2.4 of the TBT Agreement). This would raise the question of whether CSICH inscriptions constitute international standards for this purpose, which would require further analysis, in particular, given the TBT’s reference to the terminology of the second International Organization of Standardization / International Electrotechnical Commission Guide,^{Footnote 145} and some discussion of a related issue by the Panel in United States – Tuna II (Mexico).^{Footnote 146} However, if CSICH inscriptions were not considered to be international standards, this would not detract from the potential characterization of such inscriptions as technical regulations for the purposes of the TBT Agreement. If they were considered to be international standards, national measures (such as listing on inventories and safeguarding measures) might benefit from this international acknowledgment to the extent that the international standard could be shown to be “an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued” (Article 2.4 of the TBT Agreement). Moreover, if recognized as an international standard “prepared, adopted or applied for one of the legitimate objectives explicitly mentioned” in Article 2.2 (such as prevention of deceptive practices), the technical regulation would be “rebuttably presumed not to create an unnecessary obstacle to international trade” (Article 2.5, second sentence, of the TBT Agreement). In short, there is room to consider in greater depth the implications of international and national ICH listings, as they may constitute measures reviewable under the TBT Agreement.

The scope for envisioning ICH-related measures—inscriptions and safeguarding measures—as SPS measures is narrower than the TBT context. The definition of SPS measures in Article 1, Annex A, of the SPS Agreement clearly emphasizes that SPS measures are measures applied to protect human, animal, or plant life or health from a variety of risks arising from pests, diseases, additives, contaminants, and so on. SPS measures must also be “based on scientific principles and … not [be] maintained without sufficient scientific evidence” (Article 2.2 of the SPS Agreement). While, at first glance, both of these requirements would seem to cut across the grain of measures adopted for cultural reasons on the basis of cultural beliefs and preferences, it is worth recalling that many inscribed ICH items do in fact relate to human food consumption and/or to agricultural practices that address animal and plant health concerns. Some are explicitly justified in terms of human, animal, and plant life or health, and refer to the inclusion or exclusion of ingredients that may be considered additives and contaminants, in the nomination files.^{Footnote 147} The complex relationship between culture and health is on UNESCO’s working agenda.^{Footnote 148} Thus, an ICH national inventory listing or a related safeguarding measure should not ab initio be excluded from the scope of SPS measures, depending, inter alia, on the importance of the health dimension embedded in the ICH. However, absent a scientific basis for the measure itself, the cultural dimension of the measure would certainly face challenges under SPS scrutiny.

National SPS measures “based on” international standards, guidelines, or recommendations are presumed to be WTO consistent (Article 3.2 of the SPS Agreement), providing an example of the “hardening” of soft law.^{Footnote 149} It would thus be of cardinal importance to examine whether CSICH inscriptions might qualify as international standards under the SPS Agreement, which generally specifies a closed list of standard-setting bodies.^{Footnote 150} Such standard setting, however, would not be unheard of; kimchi, which is the end product of CSICH-inscribed kimjang, has been accorded a Codex Alimentarius Committee standard. It is therefore conceivable that an ICH measure may at the same time be accepted as an international SPS standard.

Market Access in Services Trade

Some ICH inscriptions, such as yoga, cooperatives, and beer discussed previously, may be commodified in strong relation to various services, including tourism, travel, education, health, finance, and more. As another example, acupuncture, which is on the UNESCO Representative List, is also classified under the UN Services Central Product Classification (CPC) as a sub-class (93191) of “human health services.”^{Footnote 151} We have also already discussed possible ICH-based distinctions between “like services,” in the context of MFN and NT. To complete the picture, such services may also raise issues relating to market access (Article XVI of GATS). It bears noting that, depending on their specific attributes, such ICH-based services may be traded internationally under all four “modes of supply” under GATS. Thus, to continue with the example of acupuncture, it may be provided under Mode 2 (a consumer travelling to the acupuncturist’s country), Mode 3 (commercial establishment of a business providing acupuncture treatment in a foreign jurisdiction), or Mode 4 (an acupuncturist travelling to a foreign country to provide acupuncture treatment). Thus, specific commitments undertaken by WTO members in medical services may apply to acupuncture services, potentially raising problems of gaps between formal accreditation in a host country, as a restriction on market access, on the one hand, and traditional definitions of acupuncture as noted in the relevant ICH item, on the other hand.

In some of these sectors, WTO members have already taken cognizance of the potential economic and regulatory role of ICH items in domestic tourism, health, and so on. For example, Vietnam’s Law on Tourism (2001), as notified to the WTO, explicitly refers to ICH as a set of “humanity tourism resources” to be protected.^{Footnote 152} Yet Vietnam’s GATS schedule of specific commitments lists, in the sector of “travel agencies and tour operator services” (CPC 7471) lists only one restriction on foreign market access under Mode 3 (commercial establishment)—a requirement that foreign service providers enter into joint ventures with Vietnamese partners. Foreign tourism services operating in Vietnam may encounter restrictions relating to the protection of cultural heritage, which may in turn be covered by the public morals/public order exception in Article XIV(a) of GATS—ultimately requiring a determination of which interests qualify as protected ICH—in which case, the UNESCO lists and national inventory may be resorted to for interpretative and definitional purposes, as previously described.^{Footnote 153}

Cultural Heritage and International Subsidies Disciplines

As Jingxia Shi notes, subsidization is a “highly sensitive matter in international trade relations.”^{Footnote 154} It is also a legally and economically nebulous issue.^{Footnote 155} The design of a subsidy can have critical implications for WTO consistency. For example, in a case relating to a cultural claim, in the Canada – Periodicals dispute, Canada supported its domestic print magazines, inter alia, through subsidized postal distribution rates that were not offered to US magazines, raising a claim of discrimination under Article III of GATT.^{Footnote 156} Canada invoked Article III(8)(b) of GATT as a defense, a provision that excludes from the NT discipline “payment of subsidies exclusively to domestic producers.” The Appellate Body did not accept this argument under the circumstances because the subsidies were not paid directly to the publishers.^{Footnote 157} Subsequently, direct subsidies were put in place.

WTO rules on subsidies can be quite complex, and the following is just a taste of some terminology that could be relevant to ICH. Much simplified, Article 1 of the WTO’s SCM Agreement defines subsidies (in trade in goods) as a government/public “financial contribution” (including, but not limited to, direct transfers of funds, loans, and loan guarantees, foregone government revenue, and provision of goods or services) that confers a “benefit.”^{Footnote 158} In addition, and perhaps most importantly to the present discussion, it must be “specific,” as defined in Article 2 of the SCM Agreement: specific to an enterprise or industry or group of enterprises or industries. Subsidies contingent on export performance, or on the use of domestic goods in production, are generally prohibited.^{Footnote 159} Subsidies that cause adverse effects to the interests of other members as defined in Article 5 of the SCM Agreement may be “Actionable,” giving rise to WTO disputes or (subject to an additional set conditions applying Article VI of GATT as detailed in the SCM Agreement) countervailing measures taken by an injured member.

As far as subsidization of services is concerned, it is clearly outside the scope of the GATT and the SCM Agreeement, and, because Article XV of GATS mandates detailed negotiation on rules in that area (which have not yet culminated in concrete results),^{Footnote 160} it is often considered to be unregulated by GATS.^{Footnote 161} However, that is not entirely correct; MFN and NT non-discrimination rules may apply since GATS does not have a corollary to Article III(8)(b) of GATT, the provision that excludes subsidies from these disciplines.^{Footnote 162} Subsidies are a significant issue in cultural policy, having provoked many debates on effectiveness and efficiency, particularly with respect to governmental support of performing arts and audiovisual industries.^{Footnote 163} In the area of ICH, the CSICH OD include many references to financial measures in a variety of contexts, which can be understood as encouragement of subsidization. Indeed, one study by a cultural heritage expert has noted that “[e]conomic incentives to safeguard intangible cultural heritage will probably play the largest role of all in encouraging transmission and re-enactment of intangible heritage.”^{Footnote 164} In some jurisdictions, such as the EU, ICH subsidization is clearly permissible, but this would not necessarily imply WTO consistency.^{Footnote 165} Some national subsidization programs, especially those that provide financial support for the training of “successors”—younger individuals who are incentivized to learn traditional crafts and practices from their elders, such as Japan’s Living National Treasures program^{Footnote 166} and France’s Les Maîtres d’Art^{Footnote 167}—may formally be considered as specific subsidies that could in theory be prohibited (for example, if contingent on the use of domestic goods) or actionable, although given the small scale of these operations, international “adverse effects” required for action against subsidies are unlikely.

All this is said merely to raise the possibility that some subsidies for ICH may cross the lines of specificity and discrimination, especially if they feed into international economic competition in resultant goods or services and, in particular circumstances (such as when more than one WTO member produces a product or supplies a service based on ICH or when cultural arguments are abused in the context of commodification), may also create grounds for consideration and action under WTO law.

IP, Notwithstanding

As noted above, Article 3(b) of the CSICH precludes any effect of the Convention on “rights and obligations deriving from any international instrument relating to intellectual property rights.” This would seem to draw a bright line between ICH law and TRIPS obligations as a significant component of world trade law. Nonetheless, some interactions may occur and will be only briefly mentioned here in the sole context of the above analysis’s focus on the potential role of ICH items, as a potential issue that has not been dealt with so far in the literature. An international or domestic authority, acting with respect to Article 22 of the TRIPS Agreement or national law implementing it with respect to geographical indications, may be required to determine if a geographical indication can be ascribed to “a given quality, reputation or other characteristic … essentially attributable to its geographical origin.” ICH inscriptions are not themselves “the Convention” and often have both explicit and implicit geographical dimensions that could be useful in factual determinations regarding geographical indications and perhaps in informing conflicts between trademarks and geographical indications, such as in the ongoing Budweiser issue.^{Footnote 168}