ESIL – International Human Rights Law Symposium: International Human Rights Law and International Cultural Heritage Law: Cooperation, Conflict or Cooption?

Beyond being “the law of pretty things”, international cultural heritage law (ICHL) is an important site for the enactment and contestation of the boundaries of international law. It is the law, mostly under UNESCO, that deals with objects, sites and practices that create, shape and conform identity. It is in close relationships to human rights, but these relationships are often under-theorized. This post reflects on some of those relationships, and suggests that there are lessons to be drawn more generally for international human rights law (IHRL). IHRL has the (limited) power to politicize other specialized fields of international law, but it can also coopt them in sometimes un- or counterproductive ways.

Because IHRL is (a) such a broad field, (b) popular among international lawyers, (c) with its own international enforcement machinery, and (d) also with the naming and shaming rhetorical power that few other specialized areas of international law could claim for themselves, it wields enormous power as a means to elevate smaller fields of international law. But it also has its own limitations, institutionally and doctrinally, and, whenever a concern is articulated in the language of IHRL, something is bound to be missed in the process (see David Kennedy’s work, for instance). In other words, the powerful center of gravity of IHRL not only attracts other fields to its orbit, but in the process it also has the potential to displace parts of those fields and shift them out of consideration.

Cultural heritage, and international cultural heritage law with it, has been consistently used over time as a means to build identities, and human rights have become a cogent legal discourse to safeguard those identities. The example of the movement for promoting the human rights of indigenous peoples is particularly telling: the international indigenous movement since the 1970s has chosen to use culture as the main banner behind which to rally support for the indigenous cause, and therefore the catalyst for the very idea of human rights of indigenous peoples (the work of Karen Engle is particularly significant in this respect). A human right to heritage is difficult to establish, and, when proclaimed, is difficult to enforce.

IHRL and ICHL are also seen as mutually reinforcing with respect to rights to access and participation in decision-making on heritage matters, necessary for the promotion of the much-hailed notion of community participation in heritage governance, and stemming largely from human rights notions. This idea of promoting community participation, even if it is also difficult to enforce and implement in light of the existing legal framework, gets one closer to the idea of a human rights approach to heritage management and governance.

At the same time, though, heritage is often in opposition to narratives of progress in human rights discourses. The definition of heritage contained in the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention) says that “consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments” (Article 2.1 of the ICH Convention).

All the while, and parallel to these tensions, there is a real risk of a “human dimension of heritage” being expanded so as to co-opt all of heritage under the umbrella of a “human rights approach”. While a human rights approach can be helpful, and it is certainly an important means for the international enforcement of legal claims surrounding culture, there is also much that can be obscured by a treatment of heritage as being a human rights concern.

The relationship between human rights and cultural heritage can be looked at in at least two principal disciplinary ways. One way of going about describing this relationship is to think of the extent human rights establish claims to historical narrative by assigning roles of victims and perpetrators. This relationship, alongside other relationships, describes human rights generally in terms broader than human rights “law”. Another way is the idea of community participation in the management, conservation and safeguarding of heritage (and human rights as an enabler of participation). But one big obstacle from an international legal standpoint is the notion that state sovereignty is still paramount in the field of heritage, whereas (contemporary) international human rights law is largely premised on the erosion or cession of sovereign attributes by states (as suggested by Janet Blake).

A direct connection between heritage and human rights in the realm of community participation makes problematic assumptions about the ways in which heritage obligations are met. The most common mechanism for heritage protection at the international level is that of listing. The most famous such list is the World Heritage List, with over one thousand properties listed in over one hundred and fifty countries around the globe. However, the listing of heritage is not necessarily conducive to the idea of a human rights approach to heritage, as it is largely dependent on state sovereignty, and does not include communities in the international selection and management of their heritage. Perhaps the most problematic aspect of heritage listing as the primary means of (international) heritage protection, which creates tension with human rights idea, is the gap that exists between what is promised to communities when their heritage is being “prepared” for inscription in a UNESCO list, and what they actually get. For instance, heritage listing can foreground one specific aspect of a place’s history, and in the process erase other histories people might be more connected to, or expect local skills in the management of a heritage area that are not present among the local population. Or it can impair the right of local inhabitants of a heritage site to privacy and to live their everyday lives without being surrounded by tourists, with their quest for an “authentic” insight into the place and its people.

Another important instance in which there is a tension between heritage and human rights in the listing process is when the heritage itself is seen as potentially conflicting with human rights. The ‘human rights exception’ in Article 2(1) of the ICH Convention speaks to that, and has been analyzed in more detail elsewhere. One example is that of the human towers, a Spanish manifestation of heritage that stirred considerable debate when first proposed for inclusion in the Representative List of the Intangible Cultural Heritage of Humanity, because of its potential for violating human rights. What this particular type of tension seems to do is replay the debates between universalism and relativism in human rights law, now using cultural heritage as a proxy. Because cultural heritage is in some ways more “institutionalized” than “cultural practices” (at least listed heritage is), it seems to lend new breath to the otherwise tired and largely overcome debates on universalism and relativism of international human rights law. I would suggest this is a counterproductive move, as it tends to antagonize cultural heritage and downplay its contribution to community cohesion that allowed for the birth of notions of rights to begin with.

The possible relationships between IHRL and ICHL are often obscured by a focus on trying to understand how human rights and heritage relate to each other not as bodies of law, but simply as broader sets of ideas and practices, not necessarily connected to the legal field. While there is some liberating appeal in not necessarily focusing on the narrow legality of these categories and the institutions around them, the legal dimension is nevertheless important, at least to the extent law is a language of power which can aid in advancing any common goals that may exist between human rights and heritage.

Translating these ideas more broadly to the topic of this symposium (“IHRL and…”), I would like to suggest that the example of heritage can carry important lessons in thinking about the power of IHRL in creating an impression of politicization of otherwise very technical specialized fields of international law. But IHRL can also be read as simply adding another layer of expert rule, which can be problematic, but less so in the sense that it is at least a layer that articulates claims in a language of power.

Nevertheless, and this is the second big lesson I suggest can be drawn from this example, there is only so much power that can come from articulation of international law in IHRL terms. The translation of legal concerns into individualized, opposable and enforceable rights may lend some effectiveness, but it also steals away from other possible objectives. Inasmuch as IHRL helps highlight other fields of international law, one must be mindful that it highlights only very specific aspects of those fields, and large chunks can easily end up in even more difficulty than before. There are choices to be made in deciding whether to use an IHRL framework to think strategically about one’s own field and raise its profile.