Cultural heritage and human rights

Summary:

This project examines the intersections between human rights and cultural heritage in international law. It also explores heritage as both an obstacle to human rights and as a means of facilitating a human right to cultural heritage, in an attempt to refine mechanisms for a community governance of their cultural heritage via human rights concepts. Project Director: Dr Lucas Lixinski


Project Description:

During the drafting of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention), the latest instrument by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the issue of the relationship between human rights and heritage was discussed. As a result, the definition of heritage contained in that instrument 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). This provision was drafted under the fear that certain traditional cultural practices (female circumcision was the example discussed), which have a negative impact on the enjoyment of universally recognized human rights would try to achieve some sort of international legitimacy through inscription on international heritage lists.

This choice, the only mention to "human rights" in the main text of the ICH Convention, is telling of a movement that places culture as anathema to human rights. The choice of female circumcision is telling, because the opposition between rights and culture has its roots in the international feminist movement, which has consistently denounced cultural and religious practices in third world as violating universal human rights standards.

The problem with this framework is that it misses the fact that human rights can in fact be of great aid to culture and cultural heritage. That happens particularly with respect to indigenous peoples, seen as much of 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. Heritage instruments traditionally do not contain specific mentions to indigenous peoples or indigenous heritage, so it is unsurprising that the idea of a right to heritage has eluded drafters at UNESCO.

The United Nations Declaration on the Rights of Indigenous Peoples, approved in 2007, contains several references to indigenous heritage and a human right of indigenous peoples to their own heritage. However, the instrument is not binding, and it is hard to make the case for the provisions on heritage crystallizing any sort of customary international norm. The Council of Europe’s 2005 Faro Framework Convention on the Value of Cultural Heritage for Society does mention the existence of a right to heritage outside of the indigenous context in its Article 4, but even that instrument fails to make the right to heritage an enforceable right. 


Aims:

The aims of this project are:

  • To understand the means through which human rights and cultural heritage instruments in international law can be mutually supportive of one another;
  • To use human rights standards as a means to promote better heritage governance by communities, thereby breaching state monopolies over the meanings and uses of heritage at the international level.

Expected Outcomes:

This project fits in with a larger project entitled "A Geography of International Cultural Heritage Law" (at http://www.law.unsw.edu.au/centres/networks-groups/international-law-policy-group/current-research-projects). Outcomes for the specific human rights component include publications on the possible uses of heritage for human rights advocacy, and on the uses of human rights for heritage protection.


Publications:

Book Editor:

Heritage, Culture and Rights Challenging Legal Discourses (Oxford, Hart Publishing, 2017) (In Press, accepted October 2016, proofs dated 10 January 2017) (with Andrea Durbach) (300 pages).

Book Chapters:

Heritage Listing as Self-determination, In: Heritage, Culture and Rights: Challenging Legal Discourses 227-249 (Andrea Durbach, Lucas Lixinski eds.) (Oxford, Hart Publishing 2017) (In Press, accepted October 2016, proofs dated 10 January 2017).

Opening the Toolbox of International Human Rights Law in the Safeguarding of Cultural Heritage, In: Heritage, Culture and Rights: Challenging Legal Discourses 11-34 (Andrea Durbach, Lucas Lixinski eds.) (Oxford, Hart Publishing 2017) (In Press, accepted October 2016, proofs dated 10 January 2017) (with Francesco Francioni).

Introduction, In: Heritage, Culture and Rights: Challenging Legal Discourses 1-7 (Andrea Durbach, Lucas Lixinski eds.) (Oxford, Hart Publishing 2017) (In Press, accepted October 2016, proofs dated 10 January 2017) (with Andrea Durbach).

‘Falling Short: the UNESCO Intangible Cultural Heritage Regime, Indigenous heritage and the UN Declaration on the Rights of Indigenous Peoples’, In: Indigenous Rights: Changes and Challenges for the 21st Century 37-54 (Sarah Sargent and Jo Samanta eds.) (Buckingham, Buckingham University Press 2016).

‘Family and Succession Law’, In: Introduction to Brazilian Law 51-72 (Fabiano Defenti and Welber Barral eds.) (2nd Edition. The Hague, Kluwer Law 2017) (with Claudia Lima Marques).

‘Intangible Cultural Heritage’, In: Culture and Human Rights – The Wroclaw Commentaries 189-191 (Andreas J Wiesand, Kalliopi Chainoglou, Anna Sledzinska-Simon and Yvonne Donders eds.) (Berlin, De Gruyter 2016) .

 

Articles:

‘The Limits of Framing in International Law: The Shortcomings of International Heritage Protection in the Isis Conflicts’, RUMLAE Research Paper No. 17-4 (2017) (with Lara Schreiber).

‘Heritage values and legal rules: Identification and treatment of the historic environment via an adaptive regulatory framework (part 1)’, 6(3) Journal of Cultural Heritage Management and Sustainable Development 345-364 (2016) (with Jeremy C Wells).

Lucas Lixinski, Selecting Heritage: The Interplay of Art, Law and Politics, 22(1) European Journal of International Law 81-100 (2011).

Lucas Lixinski, Heritage for Whom? Individuals and Communities’ Roles in International Cultural Heritage Lawin International Law for Common Goods: Studies in Honor of Francesco Francioni (Ana Filipa Vrdoljak and Federico Lenzerini eds) (forthcoming 2014).

Between Orthodoxy and Heterodoxy: the Troubled Relationships between Heritage Studies and Heritage Law, International Journal of Heritage Studies (advance publication 2014).

A Tale of Two Heritages: Claims of Ownership over Intangible Cultural Heritage and the Myth of "Authenticity", 11(2) Transnational Dispute Management (2014).

International Cultural Heritage Regimes, International Law and the Politics of Expertise, 20(4) International Journal of Cultural Property 407-429 (2013).

 

Media and submissions:

L Lixinski, S Williams, ‘The ICC’s Al-Mahdi ruling protects cultural heritage, but didn’t go far enough’, The Conversation (19 October 2016), at https://theconversation.com/the-iccs-al-mahdi-ruling-protects-cultural-heritage-but-didnt-go-far-enough-67071