Towards a human-rights approach to cultural heritage protection

Mónica Palmero Fernández

The concept of cultural heritage and its value is constantly evolving. One can trace its origins to European antiquarianism in the modern period, when it was limited to tangible assets such as objects, buildings and monuments as a means to underpin the national identity of nation-states. A cabinet of curiosities or the idea of containing ‘the world in one room’ illustrates this notion. It is only within the last quarter of a century that the concept has broadened to incorporate intangible assets. Such a broadening reflects the influence of collaboration with non-Western and indigenous communities. Today, ‘cultural heritage’, broadly defined, encompasses the legacy of expressions of ways of living including customs, practices, places, objects, artistic expressions and values that have been developed by a community and passed on for the benefit of future generations. Despite this inclusive definition and its enshrinement in all current international agreements on the subject, the value and protection of cultural heritage continues to fall under the remit of nation-states rather than communities, and continued emphasis on tangible assets impedes the full realization of cultural rights for all.

The question of who owns cultural heritage and the boundaries between local and universal claims to its value continue to provoke discussions and underpin political struggles, to the extent that the tensions between local and universal claims have become ammunition in recent conflict settings, such as the rise of Daesh in conflict-ridden Middle Eastern countries such as Syria and Iraq. The definition of ‘cultural heritage’ and its value within the context of international law and cooperation is important because it forms the legal basis to which all countries are bound. However, the historical context in which the idea of cultural heritage emerged and how it has evolved as a legal concept places some question marks on its use in defining, identifying and protecting cultural heritage as understood today. As the main intergovernmental organisation responsible for setting worldwide policy regarding the definition and protocols for heritage management, expression, and preservation, UNESCO has played a key role in the definition of ‘cultural heritage’ as a legal term and its value to society. However, its main limitation lies precisely in its dependence on states as sole determiners of its value.

Recent developments in the field of human rights offer different ways of thinking, including different legal tools which should help individuals, groups and communities to reshape cultural heritage protection into cultural practice and thus help tackle the current divide. Our current research and advocacy work at RASHID International demonstrates how this approach can help diversify narratives about cultural heritage and enhance its enjoyment by all.

UNESCO and the universal discourse on cultural heritage

The emergence of the concept of cultural heritage is intrinsically attached to ideas of protection and conservation, and its history can be traced alongside that of UNESCO and its World Heritage List. UNESCO was founded on the back of the aftermath of World War II and the creation of the United Nations. Its creation in 1946 introduced specific legal provisions relating to the protection of cultural heritage to which almost all UN member states are now bound.

The notion of ‘world heritage’ was already reflected in UNESCO’s Constitution. Its Preamble states ‘that ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war.’ Article 1(2)(b) provides further clarification, stating that the organisation will maintain, increase and diffuse knowledge ‘by assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions.’ However, it was not until the 1972 World Heritage Convention that the notion of ‘world heritage’ and its protection became enshrined in the legal instruments that now bind the international community to protect cultural heritage of significant importance to humanity and prevent its deliberate destruction. As of May 2017, the Convention has been ratified by 193 states parties including 189 UN member states; only four UN member states have not ratified it: Liechtenstein, Nauru, Somalia and Tuvalu.

The 1972 World Heritage Convention created a precedent for ‘outstanding universal value’ which established exceptionality as a quality to be equally valued by all people in the world. Although a laudable objective, it has fallen short of expectations in practice. The Convention enshrined a particular interpretation of heritage as, typically, built heritage that is most at home in Western thought and the historical context of the nation-state. The formation of a national identity relied on a coherent national heritage that adhered to the territorial borders of the state. As a result, despite the Convention’s global character, its international committee effectively relies on state governments to identify and safeguard those elements of cultural heritage in their territory they consider of ‘outstanding universal value’ within the framework of the World Heritage List. In practice, this meant that for a long time the majority of properties proposed for the List were limited to the “traditional” categories of chateaux, churches, mosques, historic cities, forts, and to lesser extent archaeological excavations. The cost and necessary knowledge about the established principles of built heritage protection required to inscribe properties also contributed to tip the balance in favour of Western countries with a longer tradition in heritage conservation. A notable exception is India’s string of cultural sites inscriptions in 1986-1987, yet these seem to coincide with the funding of the ‘Cultural Zones of India’ programme launched by then-Prime Minister Rajiv Gandhi with the goal of strengthening India’s national identity through cultural cohesion.

Limitations of UNESCO and world heritage

One of the main limitations of UNESCO’s remit is that it is bound by the concept of the nation-state woven into the fabric of its constitution. Just like the 1972 World Heritage Convention, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit import, Export and Transfer of Ownership of Cultural Property explicitly only recognizes as cultural property such ‘property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’ (emphasis added). However, states are not necessarily best suited to the task of determining the value of heritage because their governments often have political agendas of their own and may not be representative of all the communities living within their territory. The use and manipulation of heritage for political means is a well-known phenomenon. In the Middle East, a prominent example of this is found in the use made by Iraqi secular nationalist governments of the country’s pre-Islamic heritage to build a sense of collective identity for the modern state of Iraq. President Saddam Hussein famously presented himself as the reincarnation of king Nebuchadnezzar, sometimes having himself depicted on posters in this fashion. This kind of propaganda arguably underpinned to some extent the iconoclastic reaction against ancient Mesopotamian heritage by Daesh (Isakhan & González Zarandona 2018).

The power of UNESCO to recognize the cultural heritage that is meaningful to all communities across the world and to humanity at large is also limited by its own organizational structure. Given the principle of sovereignty, states are ultimately responsible for determining the value of cultural heritage. As the most important organization concerning cultural heritage, UNESCO should in principle ensure that ways to collaborate between experts in the field of cultural heritage from all states are set in place in order to ensure neutrality in the process of reviewing state practice concerning the safeguarding and enhancement of cultural heritage. However, a detailed analysis of the operational structure of UNESCO by archaeologist Lynn Meskell revealed critical deficiencies (Meskell 2013). In a study to mark its 40th anniversary in 2012, Meskell found Committee representation is dominated by state-appointed ambassadors and politicians rather than archaeological or ecological experts. Furthermore, the excessive lobbying of nominating nations has caused loss of meaning and significance of the process, with its resulting politization and a general emphasis placed on inscription as an end in itself. It seems that national agendas are eclipsing real discussions about the merit of nominations, the benefits to local communities and the participation of indigenous stakeholders in consultation, while threats from mining and land exploitation are minimized when convenient to the nominating state.

The roots of this shift within UNESCO may be qualified further, however. As Meskell (2013) also pointed out, a long-standing obstacle in the nomination process is the fact that Advisory Bodies do not directly participate or assist countries to prepare, revise, or review their tentative lists. There are two external advisory bodies concerning cultural heritage, the International Centre for the Study of Preservation and Restoration of Cultural Property (ICCROM) and the International Council on Monuments and Sites (ICOMOS). While the former is dedicated to conservation, the latter is largely involved in the evaluation of state nominations for the World Heritage List. However, ICOMOS’s expert base is largely engineers and architects, not heritage practitioners. As mentioned, ICOMOS positions itself as an evaluator rather than a collaborator. Together with the fact that state representation is increasingly made up of political appointments, it is partly understandable that countries that require assistance and support may fall back on their political agendas resulting in inscriptions becoming the main objective instead of developing feasible, holistic management plans.

World heritage as a divisive force and expanding cultural heritage beyond the nation-state

The concept of a global heritage and the goals UNESCO set out to achieve in its Constitution are therefore largely impeded by the politization of its organization and the disjunction between evaluation and collaboration in the nomination process. They remain laudable goals but in a context in which the value of cultural heritage is largely produced through diplomatic and bureaucratic channels, it should come as no surprise that what was supposed to unite people and foster intercultural understanding may actually incite and divide. UNESCO’s position tends to support national cultural self-determination as the basis from which to identify, protect, and enhance world heritage, but it has virtually no power to legally intervene in the internal affairs of a member state. This situation leaves a vacuum in which minorities and underrepresented groups (mainly) may see their rights to their cultural heritage unrealized or undermined. In a context of escalating political tension, cultural heritage may also be weaponized. In the face of this, the legal response has been inconsistent. The intentional destruction of religious and cultural sites during the 1990s wars in the former Yugoslavia became the first cases of cultural property destruction to be prosecuted at an international court of justice (the ICTY) as part of wider cases of genocide and crimes against humanity, ruling that the destruction of cultural heritage destruction constituted genocidal intent. Earlier during the Nuremberg trials, Article 6(b) of the 1945 IMT Charter listed the “wanton destruction of cities, towns or villages, or devastation not justified by military necessity” as a war crime. Despite these precedents, subsequent acts of cultural heritage destruction have not always been prosecuted. In 2001, the Taliban regime blew up the Bamiyan Buddhas ostensibly for ideological reasons, yet no Taliban or al-Qaida leader has been charged with their destruction to date. By contrast, at the request of the government of Mali, the ICC investigated war crimes and crimes against humanity in its own territory, leading to the conviction in 2016 of Ahmad al-Faqi al-Mahdi for the intentional destruction of world cultural heritage in Timbuktu. In the case of the intentional destruction of cultural heritage by Daesh in Syria and Iraq between 2014 and 2017, no leaders have yet been prosecuted despite several international resolutions to that effect.

Crimes against cultural property are specified in international conventions including the 1954 Hague Convention and, in particular, its 1999 Second Protocol; the ICC Statute; as well as the precedent set by the ICTY ruling that attacks against cultural property can amount to genocide and crimes against humanity when committed with persecutorial intent. Criminalization strengthens group and individual accountability for actions of destruction, especially during conflict. However, this may not prevent neglect or inaction by sovereign governments, which may lead to internal dissatisfaction and even, ultimately, conflict. A different approach is required to build a strong foundation which reaches all facets of society and strengthens the cultural rights of every individual on the ground. As the often-cited passage in the UNESCO’s Constitution’s Preamble states, 'since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.'

Despite awareness by UNESCO and the international community of the limitations imposed by the established legal definition of 'cultural heritage', it took over thirty years - since the 1972 World Heritage Convention - to develop normative instruments addressing cultural identity and diversity that incorporated non-Western and non-state views more fully. The result was the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Article 2(1) of the 2003 UNESCO Convention defines intangible cultural heritage and highlights that it provides a sense of identity and promotes respect for cultural diversity. However, there is a qualification; that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments’ and that it must meet the requirements of mutual respect and sustainable development. In a similar way, Article 2(1) of the 2005 UNESCO Convention enshrines the principle of respect for human rights and fundamental freedoms, whilst Article 2(2) upholds the principle of sovereignty as the regulatory body for ensuring the former are respected and upheld.

The 2003 and 2005 UNESCO Convention thus introduced key terminology that bound the safeguarding of cultural heritage to the remits of international human rights and sustainable development. Although they enriched and supplemented existing international agreements concerning cultural heritage, they maintained the role of states as sole determiners of the value of heritage. In light of UNESCO’s limitations noted above, on the ground the organization’s capacity to achieve its own objectives through the remit of World Heritage was significantly impeded by its own Committee structure and function.

Cultural practice and a human-rights approach to heritage

To effectively implement its vision of protecting world cultural heritage, UNESCO needs stronger international instruments to support and strengthen its objectives beyond its walls and across borders. The incorporation of notions of human rights, cultural diversity, and sustainable development formed the pillars, but required further elaboration to become fully effective. The term 'cultural rights' broadly covers the area of human rights that concerns cultural heritage, but until recently they were fairly unknown and the least respected of all human rights. Therefore, on the back of the impetus generated by the 2003 and 2005 UNESCO Conventions, The UN Human Rights Council established a new special procedure entitled “independent expert in the field of cultural rights” in 2009 with a mandate to elaborate and enhance them. UNHRC Resolution 10/23 of 26 March 2009 explicitly stressed that ‘while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (UN Doc A/HRC/10/23).’

The creation of the role of Independent Expert in the field of cultural rights and its subsequent extension into the Mandate of the Special Rapporteur in the field of cultural rights meant the establishment of a necessary forum which draws on collaborative efforts between states, experts and civil society organisations, relevant UN agencies, funds and other programmes, other international organisations, and cultural rights defenders involved in the protection of cultural heritage. Between 2009 and 2019, two key resolutions have been adopted by the UN Human Rights Council concerning cultural rights. Resolution 33/20 of 6 October 2016 marked a turning point and enabled the celebration of an intersessional seminar in July 2017 to which experts, civil society and international organisations, and cultural rights defenders were invited alongside states and relevant UN agencies (UN Doc A/HRC/RES/33/20; UN Doc A/HRC/RES/37/29). The results of this seminar fed into Resolution 37/17, adopted on 22 March 2018, which elaborated on the previous one (UN Doc A/HRC/RES/37/17). Together, these resolutions clarify and provide specific legal provisions in the field of cultural rights to which all member states are bound. Furthermore, they offer a set of necessary tools with which to protect and enhance cultural heritage from the bottom up by enshrining cooperation among stakeholders and setting priorities for action. They make a stronger case for decision-makers and cultural heritage professionals to adopt a human rights foundation for their work and utilise these tools to advocate for, set priorities, and collaborate in the safeguarding and enhancement of cultural heritage for everyone.

The limitations of a protection and conservation approach to (tangible) cultural heritage may be overcome through adopting a human-rights approach that understands heritage management – its safeguarding and enhancement – as cultural practice (Logan 2012). Our own research and work at RASHID International demonstrate the value and efficacy of investing in this approach. Our submissions to the UNHRC Special Rapporteur in the field of cultural rights and participation in the intersessional seminar of 2017 contributed to shape the wording of the resolutions adopted by the Council (RASHID International 2016; 2017a; 2017b; 2018).

So, in what ways can a human-rights approach to cultural heritage protection be beneficial to all?

Recognition of cultural heritage as a human right

UNHRC Res. 33/20 specifically enjoins that the right of everyone to take part in cultural life includes the ability to access and enjoy cultural heritage. The right to take part in cultural life was already enshrined in Art 15 (1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Art. 27(1) of the Universal Declaration of Human Rights (UDHR), though it remained vague in relation with cultural heritage specifically. As the result of the intersessional seminar, UNHRC Res. 37/17 further recognizes ‘that the violation or abuse of the right of everyone to take part in cultural life, including the ability to access and enjoy cultural heritage, may threaten stability, social cohesion and cultural identity, and constitutes an aggravating factor in conflict and a major obstacle to dialogue, peace and reconciliation.’ These provisions offer much stronger legal grounds for the inclusion of cultural heritage in state practice and the incorporation of cultural rights in review processes such as the UNHRC Universal Periodic Review (UPR). For example, neither the thematic list of recommendations made by states, nor the report of the working group for the UPR Second Cycle concerning the Republic of Iraq, mentioned cultural rights, cultural heritage or cultural property beyond a formulaic mention of ‘economic, social and cultural rights.’ RASHID International’s recent submission to the Third Cycle aims to correct this situation and demonstrates how international collaboration between heritage practitioners and law experts can offer fruitful advances in cultural heritage practice.

Minority communities

UNHRC Res. 37/17 stresses the power dynamics inherent in a state-based approach to heritage and incorporates key provisions to redress imbalances through ‘the protection of the cultural heritage of minority communities from intentional destruction aimed at erasing evidence of their presence and the engagement of indigenous peoples and local communities in international debates on cultural heritage protection.’ The irruption of non-state actors (ANSAs) with specific agendas targeting cultural heritage requires further elaboration under international humanitarian law as the recent Geneva Call Report Culture Under Fire highlights. A human-rights based approach has the potential to inform and value the input ANSAs can have on cultural heritage protection and curb intentional destruction through educational initiatives whilst continuing to legally prosecute individuals and groups who act in full knowledge and with intent.

Gender and cultural diversity

UNHRC Res. 37/17 incorporates the language of gender and cultural diversity. In this case, it encourages states ‘to adopt a gender-sensitive and inclusive approach to the protection of cultural heritage and the safeguarding of cultural rights that is respectful of cultural diversity […]’, as well as ‘to address limitations of cultural rights […] and promote respect for cultural diversity.’ Although cultural diversity remains hard to grasp and could incentivise misuse of the term to protect deleterious practices, Art. 2(1) of the 2003 UNESCO Convention clearly states that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments’, which effectively means that no cultural right claim on the basis of cultural diversity may infringe individual rights. For example, practices such as female genital mutilation can never be defended on the basis of cultural tradition or diversity. This constitutes strong legal protection for cultural groups without leaving individuals vulnerable to deleterious practices.

Cultural heritage and humanitarian assistance

UNHRC Res. 37/17 makes a strong case for recognising cultural heritage within the remit of humanitarian assistance and thus fortify the mechanisms for incorporating cultural heritage in peace-building processes and in post-conflict reconciliation initiatives. It calls for ‘the development of partnerships between competent national authorities and civil society, in particular grass-roots institutions, with the aim of creating a safe and enabling environment to enhance the protection of cultural rights […]’. This provision specifically binds governments to ensure the establishment of these partnerships. It also strengthens the case for international cooperation, which cultural heritage practitioners can draw on to build international advocacy partnerships (such as RASHID International) and exert influence on state practice.

Cultural heritage and sustainable development

Although not typified in the resolutions adopted by the UNHRC, the results of the intersessional seminar stressed ‘[t]the positive impact that cultural heritage could have on sustainable development’. This, perhaps timid, advance is further qualified in the context of the 2030 UN Agenda for Sustainable Development, which includes 17 Sustainable Development Goals (SDGs), adopted during the 70th UN General Assembly (UN Doc. A/RES/70/1). However, the sole references to culture and heritage are in SDG 4 (Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all) Art. 4(7) ‘appreciation of cultural diversity and of culture’s contribution to sustainable development’, and SDG 11 (Make cities and human settlement inclusive, safe, resilient and sustainable) Art. 11(4) ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’. Nevertheless, initiatives are taking place to develop this theme. For example, The Middle East Neolithic Transition: Integrated Community Approaches (MENTICA) project, based at the University of Reading and in which RASHID International is a partner, incorporates a sustainability framework to the study of the past and cultural heritage management by focusing on issues affecting society today – including climate change or food security health and the built environment – and working with local communities to develop new museum galleries that explore deep-time perspectives on global challenges and that examine how communities faced these issues in the past.

References

Isakhan, B., and J.A. González Zarandona. 2018. “Layers of religious and political iconoclasm under the Islamic State: symbolic sectarianism and pre-monotheistic iconoclasm.” International Journal of Heritage Studies 24(1): 1-16.

Logan, W. 2012. “Cultural Diversity, Cultural Heritage and Human Rights: Towards Heritage Management as Human Rights-Based Cultural Practice.” International Journal of Heritage Studies 18 (3): 231–244. doi:10.1080/13527258.2011.637573.

Meskell, L. 2013. “UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation.” Current Anthropology 54 (4): 483–494. doi:10.1086/671136.

RASHID International. 2016. The Intentional Destruction of Cultural Heritage in Iraq [online]. Available at: http://www.ohchr.org/Documents/Issues/CulturalRights/DestructionHeritage/NGOS/RASHID.pdf

RASHID International. 2017a. The Impact of Fundamentalism and Extremism on the Cultural Rights of Women in Iraq [online]. Available at: https://rashid-international.org/downloads/RASHID_Fundamentalism_Women_Cultural_Rights.pdf

RASHID International. 2017b. Advancing Cultural Rights and the Protection of Cultural Heritage in Iraq [online]. Available at: https://rashid-international.org/downloads/RASHID_Advancing_Cultural_Rights_In_Iraq.pdf

RASHID International. 2018. The Implementation of Cultural Rights in Iraq [online]. Available at: https://www.rashid-international.org/downloads/RASHID_SR_10th_Anniversary_Report-final.pdf

Captions

Figure 1. Destroyed Great Mosque of al-Nuri, Mosul © Syaz351, CC BY-SA 4.0

Figure 2 & 3. Image courtesy of RASHID International e.V

About the author

Mónica Palmero Fernández is a researcher with the NGO RASHID International e.V. and is based at Reading University, England. RASHID's main focus is on protecting the heritage of Iraq in Danger. The organisation collects and shares information, research and expert knowledge, works to raise public awareness and both develops and executes strategies to protect heritage sites and other cultural property through international cooperation, advocacy and technical assistance. Some of the ideas presented here are developed in her recent co-authored article Heritage and Cultural Healing: Iraq in a Post-Daesh Era, published in The International Journal of Heritage Studies, April 2019, as well as the various reports RASHID has submitted to the UNHRC Special Rapporteur in the field of cultural rights.

Disclaimer: Any views or opinions expressed on the Heritage in War blog are those of the post author(s) and do not necessarily reflect the views of members of the Heritage in War project, the Arts and Humanities Research Council, the Open University or Stockholm University.