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Why is it important for legal professionals to understand ICH?

Training of National Facilitators on Community-based Inventorying in 2018

Why is it important for legal professionals to understand ICH?

Nisit Intamano

By Dr Nisit Intamano
Director, Graduate Programme,
Faculty of Law,
Sripatum University, Bangkok

Although Thailand joined the global community in working towards achieving the Sustainable Development Goals (SDGs) some time ago, and many people in the country have since talked about the SDGs, very few people know how to directly apply the SDGs to their professions. As a law professor tasked with teaching graduate students, conducting research, consulting for development organizations in Thailand, and serving as a legal arbitrator in international trade and intellectual property courts (I am also a member of the Foreign Affairs Committee for the Lawyer’s Association of Thailand), my vision, shared by my faculty, is to produce legal professionals who can contribute to sustainable development. That goal entails not only teaching subjects directly related to business law; indeed, our graduates may one day work in government departments or organizations that have a key mandate to strengthen Thailand’s efforts to achieve some, if not all, of the SDGs. An excellent point of entry into that work is to relate to our students how legal professionals and decision-makers understand, promote and safeguard their intangible heritage laws in our local communities.

When I first applied to join the inaugural training of national facilitators on community-based inventorying of ICH run by CRIHAP-UNESCO, I simply wanted to understand the fundamental difference between intellectual property and intangible cultural heritage. What I gained from these training workshops, however, went well beyond my expectations, as the new knowledge I acquired through them helped me look at issues surrounding heritage and community safeguarding in a way that I had never considered before. As a law professor and graduate programme director, I swiftly found that the knowledge, skills and connections obtained from the two training sessions of national facilitators enabled me to redesign my academic programme to better provide students with a leveraging education on wider living heritage topics.

Much of my own academic study and research in recent years has been directly related to sustainable development, and some of this work connects sustainable development to intangible heritage. One example is my research on promoting community rights in the brewery business sector. The original objective of this research was to study and analyze problems and impacts from the perspective of enforcement of legal measures concerning the production and control of alcoholic beverages in Thailand. These measures have affected the growth of community enterprises in the production and distribution of locally produced liquor. My research on the topic focused on the social costs and impacts of legal measures on the Thai everyday way of life, and on related cultural heritage.

My studies found that the Thai government’s national policy and strategy to promote community enterprises and to encourage community development by using cultural heritage has adversely impacted domestic income distribution. There have been legal challenges regarding measures to permit various degrees of local liquor production, as well as to label control and advertising that have been indiscriminately imposing a single standard of judgment for all types of alcoholic beverages and scales of enterprise. Even though current laws do not outright forbid local businesses to be registered, insensitive legal measures essentially prevent small enterprises from growing and sustaining a legitimate local liquor business in Thailand, as regulations favor large, factory-grade corporate producers.

My study on the domestic situation entailed compiling comparison examples drawn from many countries, among them China, Japan, and Viet Nam, as well as several countries in Europe, where local liquor production is one of the main sources of income for some communities. Comparisons between these sample countries indicates the cost of ‘opportunity loss’ that Thailand is currently bearing by lacking laws supporting small businesses in their potential to grow and to improve production quality. 

Policy recommendations presented to government agencies from the study report include: 1) to prepare and implement supportive policy guidelines and development projects; and 2) to develop new laws that focus on helping community enterprises to produce and market local liquors. Such proactive actions could contribute to the successful implementation at the grassroots level of the ‘12th National Economic and Social Development Plan (2017-2021)’, as well as the articles on community rights in Thailand’s Constitution and the spirit of the United Nations Sustainable Development 2030 Agenda.

My research was completed in 2019; that same year, I participated in the second CRIHAP-UNESCO workshop addressed to training future trainers on the development of safeguarding plans for ICH, which applied a legal perspective to topics of community rights, community ownership of ICH, and sustainable development. That year, I also prepared a related article responding to a call by the National Institute of Development Administration (NIDA), and I was subsequently chosen as one of the three lecturers to speak at NIDA’s annual press conference. The public response to this presentation was essentially, ‘Really? ICH can help lawmakers help local communities and their economies?’

Subsequently, in 2020 I was invited by a member of Thai Parliament to be a guest speaker on this topic. My interpretation of the local liquor issue in Thailand is quite new, in that my research positions the topic in a rather neutral manner, my speaking principally from a ‘cultural rights’ angle, while I am able to explain the surrounding circumstances rather clearly. My perspective on the topic is conceived neither for business gain, nor for any political agenda.

At that time, two years ago, a small public hearing was organized with the participation of representatives from Parliament and stakeholder groups, to reflect on the Alcoholic Beverage Control Act, BE 2551 [2008]. I was then interviewed by journalists because they understood that this research demonstrated that local alcoholic beverage production is a form of intangible cultural heritage, thus conveying a sense of community rights to living practice, as indicated in the country’s National Constitution. It is indeed undeniable that no law in the country can overrule what Thailand’s National Constitution rudimentarily provides.

That public hearing event was a part of an effort to push for the drafting a new Excise Tax Bill, widely dubbed the ‘Progressive Liquor Bill’, which aims to end the oligopoly in Thailand’s alcoholic beverage market that has been generated by the Alcoholic Beverage Control Act. As of 2022, the bill is under consideration by the Cabinet.

This example is one of many ways in which we can use our awareness and understanding of intangible cultural heritage and our aspiration to safeguard it to help people and their communities and further contribute to the ongoing improvement of the nation’s rules and laws.

Many universities in Thailand have expressed interest in this particular interdisciplinary issue. For instance, we have had several lectures on the topic of law, community enterprises and community ICH rights at Sripatum and Ramkamhaeng universities. This attests that many people want to understand the topic.

Knowledge of the topic can ultimately assist those persons who are making and enforcing laws, as well as encourage law students to do more extensive research into how new trade and intellectual property laws can negatively or positively impact people who earn their living through inherited local wisdom, which notably constitutes a large portion of Thailand’s population today.

This is an adapted version of an article translated from Thai into English and published in the report, ‘Capacity-building programme on safeguarding intangible cultural heritage in Thailand: outcomes of CRIHAP-UNESCO Bangkok collaboration’, UNESCO, 2022.

For more information about the important work of the International Training Centre for Intangible Cultural Heritage in the Asia-Pacific Region (CRIHAP), visit: http://en.crihap.cn/

The original article and lecture in Thai can be accessed at: http://ssde.nida.ac.th/en/about-us/video/video/vdo51?start=81