Heritage Destruction, Human Rights and International Law, edited by Amy Strecker and Joseph Powderly, Brill 2023, 502 pages, €216
If law mirrors the general norms of society, then the increasing recognition by international law can be read as a reflection of a general public consensus that finds heritage destruction unacceptable, even if violations occur. Yet, despite the proclamation of heritage destruction in situations of conflict as an international wrong, no such assertion can be made for the equivalent in peacetime. The most developed jurisprudence on cultural heritage destruction has been made in the context of international criminal law, yet conversely it is the area with the most limited conceptualization of cultural heritage. (p. 1)
In Spring 2018, an international symposium on Heritage Destruction, Human Rights and International Law was held at Leiden University, funded by Leiden Global Interactions and the Leiden-Delft-Erasmus Centre for Global Heritage and Development. The hosts, Professor Amy Strecker of Sutherland School of Law and Joseph Powderly of Leiden University, with an impressive ensemble of academics with deep knowledge and practical experience in international cultural heritage law and heritage studies, examined various branches of international law understood to relate to heritage destruction from human rights perspectives during armed conflict and in peacetime. Among the questions explored were:
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- What is the level of state responsibility regarding heritage destruction in times of conflict and in peace?
- What are the corresponding rights relating to cultural heritage and what are the recent developments in the field?
- What is the appropriate level for balancing heritage protection imperatives with development and investment interests such as resource extraction or infrastructural projects?
- Does the concept of universality continue to be useful in relation to cultural heritage?
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The answers to these questions and more resulting from the symposium are found in Heritage Destruction, Human Rights and International Law, edited by Strecker and Powderly.
We are so used to thinking of heritage destruction in the context of armed conflict that we often fail to notice or fully appreciate the amount of widespread heritage destruction in peacetime. Much of the destruction is due to or done in the name of economic progress. We might hear of the destruction, of the negative environmental impact it might cause, the dislocation of people, and maybe the disruption such destruction may have on communities, but we rarely think of it in terms of heritage destruction – in all its various forms. It rarely registers that this destruction relates to intangible cultural heritage referred to in Part Two
According to Strecker and Powderly (and as shown throughout Heritage Destruction, Human Rights and International Law), there are consequential gaps in international and national law concerning “heritage protection, especially heritage sites and cultural landscapes affected by large-scale resource extraction or infrastructural projects.” Right as they may be, the question that begs answering is whether heritage protection is a matter for global heritage governance, as seems to be suggest.
Some would argue no – sovereign states are entitled to protect or destroy heritage sites, especially when relevant for the economic wellbeing of individuals as well as communities. The common heritage of humanity cannot and should not get in the way of domestic affairs, such as building infrastructure on what otherwise would/should be protected heritage land. But is there also not an obligation, presumably a legal one under international norms, to ensure that cultural heritage is preserved and made assessable as a matter of various human rights afforded under international legal instruments binding on states?
Based on Strecker and Powderly (and others) understanding of the 1954 Hague Convention and the 1972 World Heritage Convention, read expansively, and in conjunction with other international norms, it is suggested that the common heritage of humanity concept is getting traction; that there is:
a conceptual shift beyond the national interest of the state to which the cultural heritage belongs, to also include the general interest of humanity in conserving the cultural or natural site because of its perceived universal importance. Accordingly, states have the obligation to protect such heritage within their borders, and a fortiori, a responsibility to refrain from any action which may damage or destroy such heritage.
Then the is the “human rights dimension to cultural heritage,” with legal advances in three international law areas according to Strecker and Powderly:
a) the development of the concept of cultural heritage within international cultural heritage law to include a more anthropological understanding of culture, thereby bringing it in closer symbiosis to identity, way of life, and cultural practice;
b) the recognition that access to cultural heritage forms an inherent part of the right to take part in cultural life within the human rights framework; and
c) through international criminal law, for its instrumental use in proving the mens rea or specific intent element of genocide and persecution. Simultaneously in the field of heritage studies, there has been a proliferation and assertion of rights in relation to heritage protection.
Perhaps things are moving in the right direction from an international normative perspective, but by their own admission, “ascertaining the exact nature of those rights remains a challenge, especially in terms of accessing justice for heritage under threat beyond the framework of international criminal law.” And as they rightly point out, human rights tend to focus on individual rights.
Yet heritage is a collective good, and as such, cannot be measured in terms of personal injury in the same way that the loss of property can. As a consequence, it is difficult to make a case before a human rights court for heritage destruction or heritage under threat, even though cultural heritage forms an inherent part of cultural rights.
Nonetheless, Strecker and Powderly, along with the other contributors, find that there are sound reasons to advocate for human rights based approaches to heritage, principally to ground their claims “on the substance of legal rights,” while also attempting “to humanize heritage governance, often accused of being elitist and exclusionary.” The arguments are as compelling as they are persuasive.
Divided thematically in two parts – a. heritage destruction in armed conflict and recent developments; and b. heritage destruction in peacetime and human rights – Heritage Destruction, Human Rights and International Law is comprised of 15 chapters plus an introduction and an afterword.
Difficult as it is to cogently summarize each chapter while keeping this post modestly short (the introduction provides a fine synopsis of each chapter), it is even more difficult to point to any one chapter that stood out. All chapters are excellent, insightful, and thought-provoking.
To give you a flavor of this outstanding book on heritage destruction, here is the table of contents:
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- Introduction: Heritage Destruction, Human Rights, and International Law in Times of Conflict and in Peace, by Amy Strecker and Joseph Powderly
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- Chapter 1: Is International Law Ready for the Recognition of a General Obligation to Prevent and Avoid Destruction of Cultural Heritage? by Francesco Francioni
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- Chapter 2: The Genealogy of ‘Universality’ within Cultural Heritage Law, by Sophie Starrenburg
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- Chapter 3: Grave Crimes: Conservation, Conflict and Criminality in Timbuktu, by Lynn Meskell
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- Chapter 4: Heritage Destruction as a Collective Harm: Challenges and Pitfalls of International Cultural Justice, by Andrzej Jakubowski
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- Chapter 5: Intentional Destruction of Cultural Heritage: Sentencing and Reparations, by Ana Filipa Vrdoljak
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- Chapter 7: Toward a Human Rights-Based Approach as an Element in Post-conflict Cultural Heritage Reconstruction, by Patty Gerstenblith
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- Chapter 8: Cultural Heritage Losses in Peacetime: Challenges and Lingering Questions, by Alessandro Chechi
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- Chapter 9: Balancing Economic Interests with Cultural Preservation in Development Contexts: Insight into the Meaning of “Imperatives of Development”, by Berenika Drazewska
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- Chapter 10: Right to Cultural Life: Panacea or Problem?, by Lucas Lixinski
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- Chapter 11: The Destruction of Indigenous Peoples’ Heritage and International Law, by Federico Lenzerini
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- Chapter 12: Environmental Law Principles and Heritage: An Australian Perspective, by Ben Boer
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- Chapter 13: Beyond Sovereignty: Tara, the M3, and Access to Justice for Cultural Landscape Destruction in Ireland, by Amy Strecker and Conor Newman
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- Chapter 14: Virtual Enclosure, Spatial Injustice and Heritage Destruction in the Caribbean: The Case of Camerhogne Park, Grenada, by Amanda Byer
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- Chapter 15: The Notion of ‘Heritage Title’ for Contested Cultural Objects, by Evelien Campfens
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- Afterword: Heritage Destruction and the War on Ukraine, by Joseph Powderly and Amy Strecker
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Each chapter stands on its own. All are cogent, well written, and appropriately sourced. There is some repetition when discussing certain international instruments but considering that they are often discussed from a different contextual viewpoint, I found this to be rather helpful to my understanding of the points being made. What makes the compilation of essays work is that they are logically connected, complementing, and reinforce the overarching theme of the book resulting from what obviously must have been a fascinating and compelling symposium.
The topics discussed in this book make it exceptionally useful to both scholars and practitioners. It also serves well as a primer for anyone wishing to venture into this area of international law. Simply, anyone interested in a wide-range treatment on the normative potentials and limitations in preserving heritage, especially during peace time, should consult Heritage Destruction, Human Rights and International Law. I highly recommend this book.
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PARTING THOUGHTS ON THIS SERIES
More and more museums are coming under pressure to return claimed objects. And yes, more and more efforts are being made to protect heritage from destruction during armed conflict and in peacetime. But let’s face it, the laws of the past are as inadequate and inequitable for the return of claimed cultural objects as they are for prohibiting the destruction of cultural heritage in peacetime. Gaps exist. The question is whether and to what extent these gaps can be bridged.
Cultural heritage is more than about the claimed object, it encompasses intangibles – oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe, or the knowledge and skills to produce traditional crafts – providing a sense of identity and belonging to a community to be transmitted from generation to generation. If that is so, how valid, or better yet, how compelling is the notion that cultural heritage has a sense of universality to the extent that it should trump the particularity of a community’s wishes and claims?
As curious as I am about cultures and traditions and as much as I appreciate museums as a source of knowledge and as much as museums make accessible cultural objects to the masses who would not other have the means or time to visit the places of origin where many claimed cultural objects were wrongly removed from, the concept of universality should be left to the state or community to decide where they will be displayed.
This brings us back to one of the other assertions often made by encyclopedic museums. Because cultural objects are the heritage of humanity, they should be kept and protected and displayed by those best poised to do so, thus making them universally accessible to humanity to the greatest extent. As noted in Part One, these are bogus excuses often couched in neo-colonialist big brother and The White Man’s Burden rhetoric, not legitimate claims of title.
Fittingly, relevant to this series I noticed a couple of news stories this past week worth discussing.
The first story has to do with the British agreeing to a long-term loan of Asante gold artifacts to Ghana that had been looted and forcibly extracted from the Asantehene, or Asante king during the 1823-1900 Anglo-Ashanti-wars. Is this really a win-win outcome? Think about it. The loan not only whitewashes the means and methods by which the artifacts were wrongly removed, but it also launders the title – as lawful owner the artifacts the British Museum magnanimously is willing to temporarily part with them in a spirit of good will. How white of the British Museum to loan cultural artifacts to the rightful owners of them. Better than nothing. But is this not perpetuating a wrongful taking? Is this not enabling a perversion of historical facts? Interestingly, its been reported that the British Government and British Museum see this as a potential formula for what it refers to as the “Elgin Marbles”, were illegally ripped -off from the Parthenon, and eventually sold to the British Government after laundering the title by an act of Parliament (discussed more fully in my review of Catharine Titi’s The Parthenon Marbles and International Law). By refereeing the Parthenon Marbles as “Elgin”, the British Museum attempts to legitimize ownership and legal title. Were the Greek Government (heaven forbid) agree to a loan in lieu of a no-strings attached return of the stolen marbles, it effectively would be renouncing Greece’s title to them. It would also be complicit in perpetuating the lies that Elgin had lawful permission to do irreparable harm to the Parthenon in stripping it of marbles and that, having legal title of them, it was within his right to peddle them to the British Government – thus whitewashing historical facts and laundering ownership title.
The second story is related to the display of Native American artifacts at The American Museum of Natural History. Responding to new federal regulations that require museums to obtain consent from tribes before displaying or performing research on cultural items, two major halls exhibiting Native American artifacts. In the words of Sean Decatur, the museum’s president, “The halls we are closing are artifacts of an era when museums such as ours did not respect the values, perspectives and indeed shared humanity of Indigenous peoples … Actions that may feel sudden to some may seem long overdue to others.” Archaeologist and curator with the Pechanga Band of Indians, Myra Masiel-Zamora, aptly noted, “We’re finally being heard — and it’s not a fight, it’s a conversation.” Some of the artifacts may never be displayed again. The removal of the artifacts obviously will deprive the reported 4.5 million visitors per year. So be it. It is not about universality or shared humanity but about cultural respect and ownership, and title. Let the descendants, the Native American tribes, decide what should or should not be displayed. Their artifacts, their culture, their ownership.
As for the protection of cultural heritage sites in peacetime, we need to accept that sovereignty and non-interference – principles of the 1648 Treaty of Westphalia that ushered in the modern nation-state as we know it today – allow states to manage cultural heritage on their territory. Whether cultural heritage sites are protected and made accessible, or altered or destroyed for economic development is up to the state.
Simply, there is no international law (customary or otherwise) that prohibits the destruction of cultural heritage in peacetime. This does not, however, foreclose all available avenues in making colorable legal arguments that states do not have carte blanche in disposing of cultural heritage. Save for a state having ratified the cultural heritage treaties restricting a state’s sovereign right to use/destroy cultural heritage, arguments related to human rights such as right to access one’s culture, right to property, freedom of religion – all of which are found in international conventions to which virtually all states have ratified – can be persuasive, even perhaps authoritative.
In closing, my intention in this series was merely to raise certain issues and provide a bit of grist for the mill in thinking about cultural objects and cultural heritage. Keen as my interests may be in the return of claimed cultural objects and against heritage destruction, by no means do I pretend to be an expert in this area, just as by no means has this series touched upon the myriad of issues involved in this area of international (and national) law. There are lots of good books out there and plenty on the horizon on the topics discussed in this series. But whether you are looking for fresh perspectives or just interested in getting more than a cursory glimpse of the legal intricacies involved in claimed cultural objects and the preservation/destruction of cultural heritage, you will profit from reading CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture and Heritage Destruction, Human Rights and International Law.
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