IDENTIFYING FOOD HERITAGE, AFFIRMING A CULTURAL DOMAIN

Food is not just a biological necessity. It plays an integral role in the way we organize our society. Consider the social structures that surround the production, conservation, distribution, and consumption of food.^{Footnote 13} Food also finds its way into the diverse and meaningful responses that humans bring to questions about life, sickness, and death. It is these responses that constitute cultures—that is, ways of thinking about the world, thinking in the world, and acting within the world.^{Footnote 14} Cultures express themselves through food in a variety of different ways: beliefs, rites, practices, customs, and so on. And these ways relate to humanity’s relationship with nature to ensure the production of foodstuffs—provided by nature or by human intervention—including food processing and preservation processes, which comprise the culinary act that renders them edible, digestible, and generally good to eat; acts that relate to the distribution of foodstuffs; and, finally, the forms of socialization developed around the act of eating food, including rituals both shared and practiced that structure social links and hierarchies and celebrations of the life cycle of individuals and groups. Food is a cultural domain through which we affirm our identities, distinguish one community from another, and affirm our allegiances.^{Footnote 15} Food combines practices that together constitute a chain that goes from obtaining raw materials to the act of consumption.

In this sense, “food heritage” (or “alimentary heritage”) has purchase in each—or as a combination—of the five cultural domains listed by the CSICH. Food is intimately connected with “oral traditions and expressions, including language as a vehicle of the intangible cultural heritage,” insofar as it may be found in specific lexicons, proverbs, literature, songs, speeches, and so on, which articulate, celebrate, recount, and transmit it. In the field of “performing arts,” food production, transformation, and consumption is staged and made into the spectacle of song, dance, music, procession, and costume. Organized around the “social events, rituals and festive events,” food accompanies the life cycles of individuals and groups according to the seasonal, agricultural, or religious calendar. As for “knowledge and practices concerning nature and the universe,” consider the know-how that food requires and promotes in such domains as agriculture, forestry, fisheries, food supply, conservation, culinary transformation, dietary health, and environmental stewardship. Finally, food processing is a kind of “traditional craftsmanship” if we take into account the knowledge that is both acquired and transmitted by families and groups and, more generally, by professional bakers, cheese makers, wine producers, confectioners, chefs, and pastry chefs.

Over and above these intersections with the five cultural domains, I propose to read food as its own specific cultural domain in the Representative List and the Urgent Safeguarding List. I exclude from this analysis those practices that involve food preparation or consumption intended for another purpose—that is, those cases in which food serves, more than anything, to affirm the eaters’ belonging to a particular community. These include, for instance, “meshrep” (China, Urgent Safeguarding List, 2010) or the “male-child cleansing ceremony of the Lango of central northern Uganda” (Uganda, Urgent Safeguarding List, 2014), among other examples, which demonstrate the sometimes tautological relationship that can exist between ICH and food practice. Similarly, I exclude that which relates to the know-how concerning the production of utensils used in culinary preparations, such as the “earthenware pottery-making skills in Botswana’s Kgatleng District (Botswana, Urgent Safeguarding List, 2012) or “traditional brass and copper craft of utensil making among the Thatheras of Jandiala Guru, Punjab, India” (India, Representative List, 2014).

Now that these exclusions have been specified, we can begin to organize alimentary heritage according to six categories, none of which are entirely distinct from the other—that is to say, a cultural item can belong to more than one category.

INTANGIBLE HERITAGE DESIGNATION AS A MEANS OF SAFEGUARDING AND VALUING FOOD PRODUCTS

The corpus—the inscriptions made from 2009 to 2015—was subjected to a particular kind of close reading. The emerging data was prompted by the following questions: what artifacts are at the center of each registration in the name of intangibility; what kinds of communities possess and seek to protect this intangible heritage; who is responsible for putting such safeguard measures into place on behalf of those communities;^{Footnote 18} and what are the parameters of the proposed procedures? This analysis gives us a clearer understanding of the stakes—be they cultural, economic, and/or societal—involved in these alimentary-inflected inscriptions on UNESCO’s ICH lists.

The first finding arises from the fact that, with the exception of the French dossier, these alimentary-inflected inscriptions, as I have characterized them, have a food product at their core, an ingredient or dish that is either produced locally or at least processed locally. This should not be surprising since the CSICH specifies that material dimensions are always intimately linked to elements of intangible culture. These are the “instruments, objects, artefacts and cultural spaces” in, or through, which the intangible element will be incarnated (Article 2 of the CSICH). In the case of alimentary heritage, it is therefore through agricultural, food, and culinary products that immaterial heritages are embodied.

The second finding incites us to divide the various communities into four distinct groups. The first group refers to a “people” in the broadest sense of the term since we find as many ethnic groups and regional minorities as national peoples (sometimes even multinational peoples) or “inhabitants” of a village (Belgium, 2010) or a state party (Turkey, 2013). The second group consists of those organizations through which ordinary people practice, participate, and/or consume a particular cultural item and, in so doing, promote and disseminate it. These associations also bring together those professionals involved in the cultural, institutional, economic, and touristic valuation of the cultural item. The third group is made up solely of professionals—that is, those who possess knowledge and know-how specific to the production of the item concerned: producers or individual craftspeople or cooperatives, trade unions or associations representing sectoral interests, and production and marketing firms. The last group, which takes into account the vast majority of the cases selected (16 out of 29 or 55 percent), groups together several communities, each with different and complementary roles in preserving, producing, and promoting a cultural item; it brings together institutions, associations, and consumers, represented at various levels—local, national, and multinational—and even includes a tourist population (Turkey, 2012).

The third finding has to do with identifying those persons or organizations responsible for managing the safeguarding measures. The very design of the application form renders this task somewhat difficult, but, in all cases and, more generally speaking, in cases involving multiple communities, the management is entrusted to a set of organizations across which custodial communities are diffused. In most cases, those responsible are cultural and heritage institutions, municipalities or regions, and companies involved in production, tourism, marketing, or event promotion. The fact that multiple communities, government institutions, organizations, and associations are involved, all of which have separate (and perhaps competing claims) to make on the inscription tempers somewhat the CSICH’s assurance of effective representation.

Finally, the last finding calls for an examination of the proposed safeguarding measures. As more submissions are made to the program, these measures increasingly revolve around the economic, commercial, and touristic valuation of a particular form of cultural immaterial expression.^{Footnote 19} In the realm of cultural policy, this valuation is understood as a form of leverage, capable of ensuring the viability of a given cultural heritage—that is to say, its sustainability and its transmission to future generations, all while promoting economic development for the producers and territories involved.^{Footnote 20} With the exception of the French (2010), South Korean (2013), and North Korean (2015) cases, the safeguarding plans included in the files identified have a separate or cumulative series of measures that can be organized into two categories.

The first set of measures involves framing and positioning the form of cultural expression as a tourist destination.^{Footnote 21} What is now designated as ICH has been linked, in international parlance since the 1980s, to tourism and sustainable local development,^{Footnote 22} specifically by UNESCO’s parallel programs promoting cultural tourism development and agreements,^{Footnote 23} such as those signed with the World Tourism Organization, which have repeatedly referred to the heritage aspects of the natural and agricultural resources of a given territory.^{Footnote 24} These past formulations and negotiations are intrinsic to current ICH inscriptions. The “Malian Sanké mon” submission of 2009 makes reference to the need not only to preserve the food-giving resource that is Sanké Lake but also to promote the collective fishing rite as part of a tourist circuit. The 2010 submission on “traditional Mexican cuisine” seeks to make local cuisine the focus of its tourist routes. “The Mibu no Hana Taue” of 2011 makes known its ambition to encourage more tourists from around the world. Croatia’s “gingerbread” plan involves collaboration with the tourism sector and even the creation of virtual boutiques through which this artisanal product might be distributed beyond national borders.^{Footnote 25} Belgium’s “Houtem Jaarmarkt” submission outlines an elaborate tourist development plan involving increased parking spaces, better signage, and more connecting roads. Belgium’s “bread and fire feast” explicitly touts its appeal to tourists.

In short, tourism is central to all inscriptions in the years that follow. The town of Séfrou predicts an increase in national and international visitors as a direct result of its inscription. Belgium’s “shrimp fishing on horseback,” which is practiced “on the beach in the surf zone, creates a need for specialist tour guides and draws attention to the shrimp festival that already attracts 10,000 local and international visitors annually.” The “Turkish Coffee” plan involves smartphone applications that map out those cafés where “real” Turkish coffee is being served. The Armenian “lavash” program is centered on tourism in the city of Goris, its bakeries, its hotels, and the creation of a tourist circuit of bread festivals. Chios is at the center of a plan to promote the mastiha through agritourism and a festival. The traditional agricultural practice of cultivating the vite ad alberello (head-trained bush vines) in the community of Pantelleria makes mention of a complete program of festivities including tastings and training open to tourists. The tug-of-war ritual and games and the Fichee-Chambalalala seek to draw attention to the ways of life and customs of the communities concerned. The multinational café Arabe dossier presents a plan for tourism development not only in the countries concerned but also internationally around the rise of coffee shops and promotional activities around the world.

The second category of safeguarding measures aims to stimulate, in view of defending sustainable food, those agricultural and food products through which ICH is embodied. This economic stimulus involves support not only for production or marketing companies but also for the establishment of production standards and better (read international) branding.^{Footnote 26} Over time and with experience, those submitting a dossier have gained a better understanding of the CSICH and its offerings, and, as such, this category of measures has become more focused, and sometimes arrogant, in its open evocation of commercial competition and sector-specific financial interests. In the interest of not getting lost in excessive detail, this article cites only the most striking examples. In 2010, the evocation of commercial interests, where they exist, is still relatively restrained. These are presented as serving localized and economically disadvantaged populations. Mexico frames its submission as an instrument for the protection and promotion of small-scale agricultural and catering businesses producing local foods. Croatia’s submission in 2010 outlines a national program of support for small- to medium-sized gingerbread-making businesses. This plan “to preserve the authenticity of gingerbread products and create standards for the promotion and branding of these products” through inscription paves the way for a new use of the CSICH. Following the inscription of keskek, the Turkish Ministry of Agriculture launched a program to encourage buckwheat cultivation. The country also lent support to those cooks who work with buckwheat and those artisans producing the tools needed to prepare it. As of 2012, plans to safeguard products, standards, and brands are more overtly articulated. In 2012, Morocco aimed to use the Séfrou festival as a means of “promoting its cherries as well as the jams and jellies that are produced from them, and from the terroir in general.” In 2013, inscriptions leaned even more toward private interests. Belgium views its inscription as a means of boosting the production and consumption of shrimp; those writing on behalf of the “Mediterranean Diet” point to the possible valorization, and also valuation, of all Mediterranean food production, including “crops, harvesting, gathering, fishing, rearing, conservation, processing, cooking—made possible by its producers.” Other dossiers are even more explicit.

The combined efforts of the National Wine Agency of Georgia, the National Tasting Commission, the Georgian National Intellectual Property Center, which also oversees legal matters, and the Wine Club, as well as a group of producers and distributors of Georgian wines, are to be drawn upon in support of small producers, farmers, and wine companies. Citing the Georgian Vine and Wine Codex, which was endorsed by an act of law in 1998, Georgia aims to use UNESCO’s program to improve “the legislative framework to protect and support endemic varieties,” to resituate “the traditional Qvevri wine-making practices in the context of world culture,” and to “give Georgian wines visibility and competitive clout.” The Japanese government is taking advantage of UNESCO’s inscription to launch a system of geographical indications and certifications aimed at encouraging local producers and traditional cooks. Japan has encouraged, in both domestic and foreign markets, the revival of the consumption of washoku, “naturally occurring and locally produced ingredients such as rice, fish, vegetables and wild edible plants,” in the same way that it promotes commercially prepared products using local techniques of growing and processing food. The Turkish coffee inscription of 2013 makes use of a sensory evaluation, a technique/tool often employed in the realm of agro-business, to identify a coffee’s organoleptic characteristics. This as a way to promote normalization, to secure trademark rights for build brands, and to counter the threat that instant coffee represents. Beyond that, the plan also includes the promotion of cafés as cultural spaces—that is to say, spaces where culture is consumed, practiced, and transmitted. As for the more mercantile-minded use of the UNESCO label, there is clear mention of signage marked: “Here, coffee is prepared according to the standards of traditional Turkish coffee,” as a means of promoting those establishments serving the beverage according to traditional standards.^{Footnote 27}

It is therefore not surprising that the 2014 and 2015 alimentary-inflected submissions are even more markedly commercial in tone and approach. The UNESCO label given to the mastiha de Chios can be added to the “Appellation d’Origine Contrôlée” (AOC), which it has benefited from since 1997 at the national level, before being listed on the Community List of AOC Products. The argan dossier is similar in its having benefited from protected geographical indications (PGI) and the National Agency for Argane and Oasis Zones (linked to the Department of Agriculture) since 2010. The inscription would improve the chances for yet another PGI, at the international level this time. Along the same lines as “café arabe” in 2015, the plan being to “establish written standards for the preparation of coffee so as to protect it from negative influences that threaten to change it” and to provide “financial and governmental aid in the way of ensuring that the tools needed to prepare the coffee and the supplies (beans and spices to flavour it) are readily available.”

We thus observe the extent to which the elements inscribed by UNESCO since the CSICH have favored commercial approaches and the marketing of intangible and collective heritage.

REFLECTIONS ON A COLLECTIVE HERITAGE BRAND FOR A DIVERSE CULTURAL ECONOMY

The analysis of this corpus of alimentary-inflected inscriptions leads us to the following hypotheses and observations. The first observation has to do with this food heritage as implicated in the political underpinnings of the CSICH,^{Footnote 28} specifically Arjun Appadurai’s “gastropolitics”^{Footnote 29} or the “gastro-diplomatic” theory,^{Footnote 30} which recognizes gastronomy as one of the most effective instruments for promoting tourism and foreign trade.^{Footnote 31} We note also the increasing competition for this tourism and trade, as the multiple submissions from the two Koreas around kimchi, or from Armenia and Azerbaijan, Iran, Kazakhstan, Kyrgyzstan, and Turkey around the lavash registry in 2014 and 2016, demonstrate.

The second observation, related to the first, concerns the economic uses that are made of the CSICH. This is one of its mandates. The operational guidelines make direct reference to this, inviting states not only “to take full advantage of intangible cultural heritage as a powerful force for inclusive and equitable economic development, encompassing a diversity of productive activities with both monetary and non-monetary value” (Articles 183 and 184)^{Footnote 32} but also “to assess the potential of intangible cultural heritage for sustainable tourism, provided that it is sustainable (Article 187), and for “commercial activities that can emerge from certain forms of intangible cultural heritage,” notably through “trade in cultural goods and services related to the intangible cultural heritage” (Article 116).^{Footnote 33}

From these observations, and having examined the kinds of communities involved in these ICH inscriptions and the kinds of commercial and touristic value ascribed therein, we might ask: who is set to benefit—not just symbolically but also financially—from these safeguarding measures and, beyond that, from any element inscribed on the national inventories of the ICH. And, on a related note, to whom do these intangible, collective, and widespread heritages legally belong?^{Footnote 34} This question, we know, will be a challenge to and for legislators in the years to come. And yet, even as early as 1982, Article 23 of the Mexico City Declaration on Cultural Policies, in its efforts to expand the concept of culture and cultural heritage, drew attention to the matter:

The question of legal protection extends to artists, architects, musicians, writers, and academics but not to “the work of anonymous artists, expressions of people’s spirituality” nor to “the values which give meaning to life,” for which protective measures have yet to be implemented.^{Footnote 36} A few years later, UNESCO’s 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore raised the same question, while opening up the institutional processes of patrimonialization to “traditional and popular culture,” the contours and limits of which are equally difficult to determine, “among other things, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”^{Footnote 37}

Despite the work carried out by the World Intellectual Property Organization for over 20 years on the subject,^{Footnote 38} no international legal response has been made to the question of food heritage property (collective practice or shared knowledge).^{Footnote 39} Specifically, not all food products that interest us here have a status that gives them legal protection as PGIs.^{Footnote 40} From the cases studied in the context of this study, however, two possible responses emerge. The first response concerns the transformation of a heritage designation, one that is commonly shared, into a trademark that benefits either collective or private interests. A trademark request on the part of a community implicated in the practice of a particular and circumscribed cultural item, and responsible for safeguarding it, might be seen as a straightforward undertaking, at least to laypersons; Alençon lace and Aubusson tapestries being two obvious examples. Yet this becomes less obvious when an element, or know-how, a social practice, knowledge, a ritual, or a festive event is inscribed in the name of a large community (for example, a people, an ethnic group, inhabitants of a region, a village, and so on) or of multiple communities, as is the case for the vast majority of food heritage-related dossiers. Should that item be filed by a state, which would thus ensure its protection for the common good intended for common uses? Such a reading might be applied to the cases of Croatian gingerbread, Turkish coffee, Moroccan Argon oil, and a few others. This raises the question of the legal status of the name given to the collective heritage. A brand is a protected label associated with products and services, with the exception of well-known brands where the legal regime is clearly defined. Could being inscribed on the ICH lists refer back to this regime?

The case of the “gastronomic meal of the French,” which seeks to prohibit any “misuse of the inscription for private commercial gain,” presents an even more complicated matter. Here, the status of the inscribed item is somewhat paradoxical. It was registered for trademark at the French National Institute of Intellectual Property not by the French state but, rather, by the French mission for heritage and food cultures (Mission française du patrimoine et des cultures alimentaires, which is governed by a 1901 law), who was not in fact the owner of this registered cultural heritage belonging to all French citizens. The French state financed the UNESCO application process, and all levels of government (mayors, regional councilors, members of parliament, ministers) supported the nomination on behalf of all citizens. Here, a group of lobbyists thus appropriated the trademark, a privileged position given that this is a shared cultural heritage. This example raises two issues, the first relative to the French state. Can the ministry of culture, for example, be considered a person “having the interest to act” and, hence, able to request the nullification of a brand registration? The second concerns UNESCO and the production of a private logo, the “gastronomic meal of the French—intangible cultural heritage of humanity.” This case leads me to assert that private logos such as this can be used to circumvent UNESCO’s strict rules regarding the use of its logo. In other words, regardless of UNESCO’s protective measures, nothing prohibits anyone from producing a logo “item X—intangible cultural heritage of humanity.” This legal vacuum contributes to the increased granting of private logos claiming UNESCO affiliation. The fact that this form of appropriation and exploitation benefits private interests at the expense of custodial communities is cause for concern.^{Footnote 41}

The second response to the matter of ownership of ICH has to do not with private interests but, rather, with public policy relating to culture and the economy of cultural diversity. It is within this framework that a “heritage trademark,” as a collective heritage brand, could be conceived for the common good. This is the hypothesis that I now submit to the specialists not of intellectual property or trademark but, rather, of the legislation of cultural heritage. The question, thus, is how to guarantee that a name given for the inscription of a collective ICH (customs, ways of life, values, traditions of anonymous creation)—to UNESCO or on national lists—remains available to all?

A first hypothesis refers to the principle according to which, at least under French law, a brand should be distinctive, not descriptive, and that there must be a certain degree of arbitrariness between the chosen label and the products and services to which the former refers. According to this principle, one could thus use the mechanism that obstructs at the registration stage to make a brand of the name of an ICH. That said, mobilizing such a condition is not always advantageous; the label “gastronomic meal of the French” might not be distinctive enough for catering products and services, but it would be relative to different products and services. One might also seek to demonstrate that a brand is unlawful—a hypothesis foreseen by French law in cases that run counter to the public order or accepted standards of good behavior, although this remains conditional on a subjective assessment.

A second hypothesis refers to the creation of a specific legal tool that would not form part of the initial logic of trademark law and private reservation. “Heritage brands,” for example, could be integrated into the Cultural Heritage Code that exists in France,^{Footnote 42} so as to protect anonymous creations, leaving them at the disposal of a community. At the same time, it would indubitably be necessary to supplement trademark law by clearly stating the unlawful nature of any brand constituted by a name given to a collective heritage inscribed on the ICH national inventories.^{Footnote 43} Certain labels are in fact explicitly excluded from any private reservation through trademark rights. This is true of armorial bearings, flags, and other state emblems of European countries. The list of “unlawful brands” could therefore be extended.

The impacts of such a measure could affect markets. In fact, the CSICH cannot but be informed by a set of international laws and agreements, binding or not, that support and sustain it. The 2001 Universal Declaration on Cultural Diversity^{Footnote 44} paves the way for the CSICH and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Convention on Cultural Expressions).^{Footnote 45} These legally binding mechanisms have two distinct functions. One defines the role that cultural expression plays in sustainable development and international cooperation as it pertains to the economy of culture. The other introduces a form of protection of the cultural heritage of humanity inscriptions in order to protect and promote the diversity of cultural expressions.^{Footnote 46} UNESCO gives but a vague definition of “cultural expressions.”^{Footnote 47} Meanwhile, the notion of cultural diversity in the Convention on Cultural Expressions brings to the fore the fact that cultural diversity can only exist through governance; political and economic instruments that alone can preserve and protect cultures most at risk from those industrialized cultures imposing their models on the marketplace, according to the directives of the World Trade Organization (WTO).

To limit this influence and preserve diversity, the notion of cultural diversity emerged, based on the initiative of Quebec and France.^{Footnote 48} This was an evolved response to cultural exception, a political concept introduced and accepted under the 1994 General Agreement on Tariffs and Trade.^{Footnote 49} These negotiations resulted in national policies for the support, protection, and promotion of certain cultural industries whose claims to copyright and creative and intellectual property would not be seen to contravene the rules and laws of international trade or free trade.^{Footnote 50} With cultural diversity, the terms of the debate shifted away from the question of the status of cultural goods and services in international trade. How trade liberalization affects cultural identities instead became the focus.^{Footnote 51} In order to extract cultural diversity from the WTO’s field of action and intervention, a request was made that it be promoted and defended by UNESCO, through international conventions.

It must be noted that UNESCO conventions are not as legally binding as those of the WTO or of bilateral trade agreements. But, by introducing the notion of cultural diversity into international law, by recognizing the superior and unique value of culture and of human creation and intervention, and by devising plans to safeguard and promote economic development, these conventions have potential. This potential will depend on the way in which they are used and implemented by states in future trade negotiations. Only those policies applied to areas recognized as “cultural” are likely to oppose the exemption regime currently enjoyed by goods and services under the auspices of cultural exception, which has now become cultural diversity.

The inscriptions on the UNESCO lists, or on national ICH inventories, could evolve into a kind of protective legislation that, through the mechanism of the economy of cultural diversity, would assign a “heritage trademark” to the benefit of the custodial communities concerned. The producers of foodstuffs inscribed as ICH—farmers, craftsmen, restaurateurs, retailers, and the training, culture, and tourism sectors—might also benefit from access to developmental aid and credit measures as well as access to markets. More broadly speaking, intangible cultural food heritage—as well as the artifacts and cultural spaces through which they are incarnated—inscribed within, and thus recognized by, a systemic and specific instrument could free communities from the rules of free trade, which dictate increasingly stringent standards under the influence of the most powerful industries. These standards have their disadvantages, including the impoverishment of agriculture and food crops and the loss of food sovereignty. The CSICH is thus a new instrument of global governance in the era of new globalization, which has incorporated economic, financial, ecological, and cultural phenomena since the 1990s.^{Footnote 52}