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This chapter uses monuments as heritage, and a means to create new symbols to cement an oppressive regime. As these regimes fall, these symbols are erased or replaced. Monuments are known in cultural heritage jargon as movable cultural heritage or cultural objects. The chapter focuses primarily on efforts to remove or relocate statues and other monuments that are associated with oppressive periods in a nation’s history. It examines tensions around monuments and symbols in the controversies around statue removals in the United States (US Civil War), and Eastern Europe (Soviet Regime). Particularly with respect to the latter, it also investigates in-depth the creation of Memento Park in Budapest, a park that houses Soviet monuments removed from Hungary’s capital after the end of the Soviet regime.
The chapter summarizes the book’s main findings, underscoring the reverberations of the research on the fields of transitional justice and cultural heritage law, and set out questions for future research in other contexts. It ties together the multiple strings of truth, accountability, reparations, and guarantees of non-repetition (the four key transitional justice mechanisms), and their relationship to heritage, as well as the influence of human rights on both transitional justice and cultural heritage law. Bringing together the fields of transitional justice and cultural heritage law creates powerful opportunities for pragmatically rebuilding societies, and cultural heritage is a part of reshaping identity for the future.
This chapter focuses on making new heritage that marks atrocity and transition. It analyses the creation of atrocity museums, particularly in East Asia, Eastern Europe, and Latin America, to come to terms with a difficult past and re-narrate the nation moving into the future through artefacts. The chapter also looks at the Guatemalan National Police Archives and archives as a type of heritage that can be used to promote prosecution efforts in transitioning societies. The chapter examines underwater cultural heritage as well, and the regime of the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage in relation to human corpses, which are given stronger protections than human remains receive in other heritage regimes. The history behind this treaty reveals that the reason for these stronger protections has precisely to do with the bodies of fallen soldiers during the World Wars. Australia is an example of a country that, after initially rejecting the treaty, is now considering its ratification at the behest of civil society representing war veterans, thus becoming an example of how underwater heritage can also have an important role in transitional contexts.
This chapter returns to the main normative claims of the book, by re-engaging, in more depth, the debates around anti-impunity in the law around transitional justice. The chapter offers cultural heritage law as a space where more pragmatic engagement with transitional justice mechanisms is possible and necessary in the law. In doing so, it also engages with the need for pragmatism around cultural heritage, beyond the conservation paradigm, given the malleable nature of the narratives of history, nation, and identity that are made through cultural heritage. It uses the development of memory laws in countries like Poland as a case study of the far-reaching consequences of neglecting the connection between law and memory and cultural identity.
This chapter undertakes a systematic review of the literature on memory and transitional justice to provide support for the central premise of the book: that law and memory studies miss each other in transitional justice. In doing so, this thick description of the literature provides the key background for the case studies in other chapters. Further, the chapter examines the regime for the protection of cultural heritage in wartime of the 1954 Hague Convention and its Protocols as a paradigmatic case study of cultural heritage law’s reluctance to engage with transitional efforts. The chapter’s engagement with the idea of anti-anti-politics in the context of the conservation paradigm or the Authorized Heritage Discourse also aligns the book with critical work on the anti-impunity move in the international human rights movement.
Cultural heritage is a feature of transitioning societies, from museums commemorating the end of a dictatorship to adding places like the Auschwitz-Birkenau concentration camp to the World Heritage List. These processes are governed by specific laws, and yet transitional justice discourses tend to ignore law's role, assuming that memory in transition emerges organically. This book debunks this assumption, showing how cultural heritage law is integral to what memory and cultural identity is possible in transition. Lixinski attempts to reengage with the original promise of transitional justice: to pragmatically advance societies towards a future where atrocities will no longer happen. The promise in the UNESCO Constitution of lasting peace through cultural understanding is possible through focusing on the intersection of cultural heritage law and transitional justice, as Lixinski shows in this ground-breaking book.
The introduction outlines the key objectives of the book. It argues that there are different strands in the transitional justice literature that largely miss each other. On the one hand, there is a rich body of literature on memorialization processes and the role of memory and heritage in transition. This body of knowledge does not engage with the law, due to a perception that the law’s main focus is on accountability and prosecutions. On the other hand, the bulk of legal literature on transitional justice indeed tends to focus on accountability, neglecting its role in promoting reparations and guarantees of non-repetition, which are central to the success of transitional justice efforts. The chapter shows that, as a result of these two bodies not engaging one another, the law around culture, and cultural heritage in particular, is left at the mercy of other political forces in the transitional process, forces which tend to align with the pre-transition status quo, and therefore cultural heritage law unwittingly becomes a point of resistance to transitional efforts.
This chapter focuses on better-known examples of transitional justice’s interaction with cultural heritage law, as well as the literature on dissonant heritage. The chapter engages with the recognizable framework of the World Heritage Convention, examining it through the World Heritage Sites of Auschwitz-Birkenau (Poland), Hiroshima Peace Memorial Park (Japan), and the Cape Region Floral Area and Robben Island (both in South Africa). The chapter analyses law’s role in shaping the narratives around these sites, and their role in promoting transitional efforts. The chapter also engages with the uses of intangible cultural heritage (colloquially known as folklore) as a living culture in transitional societies, focusing particularly on the efforts to revitalize, through international listing, intangible cultural heritage in North Macedonia (Glasoechko, male two-part singing in Dolni Polog), which is under threat of disappearing because of the dispersal of the community of heritage practitioners during and in the aftermath of the wars that led to the dissolution of Yugoslavia. An example of intangible cultural heritage safeguarding arising from the Colombian conflict is also discussed.
The last decade or so has seen a fundamental shift in Aboriginal cultural heritage law in Australia. A number of subnational jurisdictions in Australia have undergone major reforms to their Aboriginal heritage legislation. Other subnational jurisdictions are currently in the reform process or have promised reform in coming years. We use the latest (and, at the time of writing, ongoing) process to reform Aboriginal heritage legislation in the state of New South Wales (NSW) to explore some of the legal issues and themes emanating from the Australian experience. The NSW example is a useful case study for thinking about how minority heritage regulation can not only serve broader social movements but also undercut some of its own possibilities. We argue that even law that is ostensibly in place to promote the control of communities over their own heritage can cause difficult balancing acts that may default to a dependency path and effectively detract from its own projected goals.
This chapter examines the Inter-American Court of Human Rights’ practice with respect to consensus interpretation. Contrasted with the well-settled practice of the European Court of Human Rights, one can see that the Inter-American Court’s practice seems to rely on consensus when it supports a progressive, teleological interpretation of human rights, rather than being primarily a legitimacy-building device. The chapter argues that the Inter-American Court’s selective engagement eliminates the latter possibilities of the consensus method of interpretation. Instead, the Court’s seeking legitimacy not from State parties, but other stakeholders, does not seem particularly concerned with legitimacy costs (even if it probably should).
This article focuses on the issue of framing of food in international law, as a means to highlight the specific dimensions of food that are the focus of food as heritage under the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. The specific example of Mexican traditional cuisine is used as a prism through which to analyze regulatory choices across a range of organizations in the United Nations System, yielding a number of frames: food as heritage, food as a human right, food as indigeneity, food as biodiversity, and food as a regulatory object. The frames are natural consequences of the mandates of the bodies addressing food, and the article argues that food as heritage needs to be more clearly engaged with other dimensions of food in international law, lest food becomes just a tourist attraction under the intangible heritage regime.
This article proposes a new model for the engagement of sub-state units with the international legal order. “Trialogical subsidiarity” acknowledges that some areas are best regulated locally, but it also argues that international law has an increasing say in areas traditionally reserved for local law. The implementation of an international cultural heritage treaty by constituent units (CUs) in federal states, despite objections of the federal authorities, is a case study for the possibilities and implications of the use of international law by CUs without the filtering of the central state. This use enhances the legitimacy of international law and can lead to better outcomes for local populations, moving international law closer to its promise of being a law of peoples rather than of states.