Introduction
The legal literature on refugee cultural heritage is limited, much like the international policy on refugee cultural rights that multiple United Nations Special Rapporteur mandates have put off.Footnote 3 Refugee cultural rights were defined as a priority for the 2015–2018 mandate, “[i]n light of the epic 2015 refugee and migrant crisis that is ongoing,” to find ways “to underscore that protecting the cultural rights of refugees and migrants, including women [for] their well-being, integration, and rehabilitation after trauma.”Footnote 4 In 2022, the Special Rapporteur emphasized “contributing to these continuing debates in the coming years.”Footnote 5 At the same time, cultural rights are part of the law to address issues relevant to refugee cultural heritage appropriately. Cultural heritage speaks to the heart of the definition and the plight of the refugees, who are defined as persecuted on grounds directly linked to cultural heritage.Footnote 6 It could thus be argued that refugee protection must include safeguarding refugees’ cultural heritage.Footnote 7 Moreover, the proportion of the total population of a country that may be affected by refugee flows makes it clear that preserving cultural heritage during and after the conflict or persecution that induced these flows is essential not only for the “identity” and dignity of the refugees themselves but for the “continuity” and existence of entire nations and populations – in line with the 2003 Convention for the Safeguarding of International Cultural Heritage (ICH Convention). That is to say, intangible cultural heritage “transmitted from generation to generation [] is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.”Footnote 8 The current size of the refugee populations (108.4 million forcibly displaced and 35.3 million refugees in 2023) and estimated refugee flows emphasize the urgency for tailored international law and policy consideration of refugee cultural heritage. The forced displacement of refugees from their homes, and the homes of the tangible cultural heritage they are connected to, lend particular significance to their associations and relationships with tangible cultural heritage, in addition to their “practices, representations, expressions, knowledge, [and] skills.”Footnote 9 More broadly, rights related to intangible cultural heritage require protection “for the well-being, health, and development of the individual, the social cohesion of the society, and the evolution of civilization.”Footnote 10
This Article reviews international law around refugees’ intangible cultural heritage, which incorporates refugees’ relationships with their tangible cultural heritage.Footnote 11 The Article frames the discussion around refugees’ intangible cultural heritage in a holistic paradigm that consolidates “refugee home heritage” (refugees’ intangible cultural heritage of their home country) and “refuge heritage” (refugees’ intangible cultural heritage of refugee journey from persecution or conflict to resettlement or return). The paradigm is not constructed along territories of origin, transition, and destination but along the constitution of heritage between “original identity,” heritage of the home, “refugee identity,” and the exile experience. The Article considers refugee home heritage and refuge heritage separately because it argues that, under notions of authorized heritage discourse that constrain what is and what is not cultural heritage, in addition to limitations both from the constitution of rights to culture (language, religion, etc.) and their application to individuals rather than groups and from interpretations of cultural heritage law, refuge heritage is treated differently from refugee home heritage. It is excluded from contemplations of refugee intangible cultural heritage, whereas it is refuge heritage that distinguishes refugees from migrants of the same home country. The paradigm was constructed to avoid the pervasive state- and territory-centric approaches to cultural heritage and to center the refugee narrative on refugee cultural heritage. As such, the Article necessarily overlays analytical intervention from non-legal disciplines and, in some instances, the same international law across the paradigm. The Article finds that, whereas the international law framework lays out the groundwork for such a holistic paradigm, international and national laws, and state policy approaches, it must be reformed to achieve refugee protection in line with international obligations. In doing so, the Article centers on communities in cultural heritage discourses.
Refugee protection and cultural heritage under refugee law
Cultural heritage law does not specifically address refugee cultural heritage, nor does international refugee law directly address cultural heritage. However, examining international refugee law must include its association with cultural heritage protection. The main international law instrument for refugee protection is the 1951 Convention Relating to the Status of Refugees (Refugee Convention), parts of which are considered to be customary international law.Footnote 12 The Refugee Convention directly engages refugee cultural heritage in the refugee definition.Footnote 13 A refugee is defined as a person with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”Footnote 14 The interpretation of the Refugee Convention must be in accordance with the ordinary meaning of its terms in their context and in the light of its objects and purpose.Footnote 15 Race has been interpreted to refer to “race, colour, descent, or national or ethnic origin.”Footnote 16 Religion includes thought, conscience, and religion as theistic, non-theistic, and atheistic beliefs.Footnote 17 Nationality has been interpreted as national origin and consists of the origin and membership of particular ethnic, religious, cultural, and linguistic communities.Footnote 18 Membership of a particular social group refers to “shared interests, values, or background.’Footnote 19 Political opinion has also been broadly interpreted to “be any opinion on any matter in which the machinery of state, government, and policy may be engaged.”Footnote 20 The concept of “cultural” in heritage (or property) refers to qualifying criteria, whether they be historical, archaeological, artistic, or ethnographic.Footnote 21 Therefore, the grounds for persecution under the refugee definition in the Refugee Convention are interlinked with the cultural heritage of refugees.
Linking the grounds for persecution to cultural heritage implies that a refugee group could be defined in terms of their cultural heritage and that their forced displacement and return or resettlement (refugee status) also hinges on the “persecution” of their cultural heritage. Not only does the Convention define who is to be considered a refugee, it also provides a guarantee of “non-refoulement” such that refugees could not be returned to their home country if doing so would subject them to persecution within the meaning of the Convention.Footnote 22 The destruction of cultural heritage is considered to be a risk factor in the persecution of groups and communities.Footnote 23 Besides being a crime against humanity, the notion of persecution is elaborated upon in several international crimes.Footnote 24 The notion of persecution under the Refugee Convention must be interpreted to provide the maximum possible assistance to refugees,Footnote 25 which must include the destruction of cultural heritage. When proposing vandalism as a crime that destroys a group’s material culture, Lemkin argued that “an attack targeting a collectivity can […] take the form of systematic and organized destruction of the art and cultural heritage in which the unique genius and achievement of a collectivity are revealed.”Footnote 26
As victims of “collective attacks” that forced them to flee their home countries, refugee protection centers around the protection of refugees’ cultural heritage.Footnote 27 Crimes against or affecting cultural heritage, such as acts to suppress the culture of a community under occupation, could constitute coercion that causes forced displacement of some community members to practice their culture freely.Footnote 28 The destruction of family and social structures that often accompany forced displacement can have a particularly detrimental impact on intangible cultural heritage by affecting a refugee community’s ability to carry on with certain traditions and pass them on to future generations.Footnote 29 Finally, the forced removal of certain persons from a community, such as religious or spiritual leaders, can have a disastrous effect on that community’s cultural heritage, thus compromising its safety.Footnote 30
The destruction of cultural heritage not only causes persons to flee, it can also dissuade the refugee population from returning and restoring their cultural heritage, which has also been linked to whether refugees return to their home country.Footnote 31 On the other hand, refugee camps are characterized as vibrant “lived spaces” that prefigure a world without borders.Footnote 32 The right of return is enshrined as “refugee law” in several international law instruments. The 1948 Universal Declaration of Human Rights (UDHR) states that “[e]veryone has the right to leave any country, including his own, and to return to his country,”Footnote 33 which the 1966 International Covenant on Civil and Political Rights (ICCPR) also articulates.Footnote 34 It is relevant to note that the notion of “own country” in the ICCPR (and arguably the Refugee Convention) is broader than state or country of nationality as it embraces “special ties to or claims in relation to a given country” and “factors [that] result in the establishment of close and enduring connections between a person and a country.”Footnote 35 It could be implied that cultural ties and heritage connections between a refugee and a “country” would constitute a right of return under international law, further cementing that the cultural heritage component underlies refugee rights in international law. Protecting the cultural rights of refugees and migrants has been characterized as “a critical aspect of ensuring their well-being, integration and rehabilitation.”Footnote 36 Refugee camps have been described as a representation of “intimate connections of solidarity [in which] we glimpse another world becoming possible.”Footnote 37
The 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) implies that “cultures have no fixed borders.”Footnote 38 This notion is aligned with the notion of “people” in international heritage law – such as the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Hague Convention), which states that “each people makes its contribution to the culture of the world,”Footnote 39 possibly foreshadowing the erga omnes obligation owed to the international community as a whole rather than to individual states.Footnote 40 Legal theorists continue to assert that international law continues to expand the framework of cultural rights by adding “people” to states and individuals to achieve adequate protection.Footnote 41 At the same time, international and national law frameworks continue to address refugees as individuals even though refugee persecution and rights violations target them as groups and potentially as “people.”
Safeguarding refugee intangible cultural heritage
Overall framework
The main instrument for safeguarding intangible cultural heritage is the ICH Convention. The ICH Convention aims to respect and safeguard intangible cultural heritage, including “practices, representations, expressions, [and] knowledge, skills,” in addition to “instruments, objects, artifacts and cultural spaces associated therewith.”Footnote 42 The ICH Convention acknowledges the “deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage.”Footnote 43 For the purposes of the ICH Convention, “safeguarding” is related to “measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage.”Footnote 44
The ICH Convention has been characterized as shifting emphasis from protecting cultural objects to safeguarding social structures and cultural processes.Footnote 45 This shift is intended to broadly benefit “cultural communities and human groups,” particularly minorities whose cultural traditions are the “real object of the safeguarding under international law.”Footnote 46 Persecuted minorities and other refugees fleeing conflicts fit into the category of communities and groups whose intangible cultural heritage is the object of safeguarding. The ICCPR places an obligation on receiving states to protect refugee intangible cultural heritage, providing that “[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”Footnote 47 Not only does intangible cultural heritage provide refugees with the know-how that is essential to surviving challenging conditions, it also provides the “norms and social arrangements necessary for such groups of people to continue to live as a community.”Footnote 48 Arguably, refugee intangible cultural heritage should include the cultural heritage of the home or origin and the refugee and exile experience.
Compatibility of state role with statelessness and authorized heritage discourse
The nature of intangible heritage has made their nomination more accessible for communities and minority groups – including refugee groups.Footnote 49 However, the ICH Convention emphasizes the state’s role in identifying and nominating intangible cultural heritage on behalf of communities and groups.Footnote 50 This becomes problematic in the refugee context in which the communities and groups are, by definition, stateless. Anthropologists have questioned whether the United Nations Educational, Scientific and Cultural Organization (UNESCO) should rethink the nomination of cultural heritage by “nation-states” and its attribution to them in a world where millions live stateless as refugees.Footnote 51 Legal scholars join anthropologists in probing the reconsideration of the mechanisms of identification, classification, and nomination of heritage, urging that refugees replace states to take their rightful place as the “central agency through which we distribute the ‘spiritual heritage of mankind.’”Footnote 52
Another challenge facing safeguarding refugee home heritage and refuge heritage is heritage scholars’ argument that the heritage sector engages insufficiently with some groups,Footnote 53 such as refugee groups. This under-engagement or disengagement leads to the emergence of an “authorized heritage discourse,”Footnote 54 which deepens existing power relations.Footnote 55 More significantly, for refuge heritage, authorized heritage discourse only legitimizes some understandings of heritage and, as such, discredits nuances and misrecognizes entire communities.Footnote 56 The misrecognition of communities is deepened further through the inability to interact “on parity” in heritage matters through adjudication capability and access to resources, such as exclusion from decisions on what is or is not heritage.Footnote 57 Access to education and financial resources is arguably another obstacle in the refugee context, such that refugees are faced with foreign languages and unfamiliar education and funding systems. The “normalization” of some collectives and the “subordination” of others suggests how groups could be seen as being unworthy of esteem and how refugees could be dehumanized or “not seen – as a full human being whose presence matters.”Footnote 58
Refugee home heritage
Conceptual overview
Refugee home heritage refers to a refugee group’s background, intangible cultural heritage, or intangible cultural heritage of their original identity and home country. The destruction of the home cultural heritage of forcefully displaced communities has been described as “ruins to the dust of ruins.”Footnote 59 Refugee home heritage is mapped to the refugee experience before and until persecution or conflict and during return or resettlement segments within the refugee home and refugee paradigm that this Article endeavors to conceptualize. As such, the issues of significance to the safeguarding and protection of refugees are their rights in the receiving countries to their cultural heritage and original identity (such as language and religion) and their safeguarding through the protection of cultural heritage sites (and safeguarding of intangible cultural heritage associated therewith) in countries of origin under international humanitarian and criminal law. Refugee rights to intangible cultural heritage are explored under international law. Regional and national frameworks are only referred to as examples rather than examined for a comprehensive framing of rights in different receiving countries.
Refugee Rights to Intangible Cultural Heritage
Refugee rights to the intangible cultural heritage of their home countries are elaborated in several international legal instruments. The Refugee Convention grants refugees the basic cultural rights of freedom of religion and association.Footnote 60 International human rights law has provided prospective protection of refugees’ cultural heritage.Footnote 61 Even though “authorized heritage discourses” may obstruct the approaches of refugee groups to their intangible cultural heritage,Footnote 62 human rights instruments include provisions for the positive protection and promotion of their cultural, religious, and linguistic rights.Footnote 63
Respect for cultural rights presupposes respect for human rights, and cultural right protection is regarded as promoting respect for other human rights.Footnote 64 The right to access and enjoy cultural heritage forms part of international human rights law, and cultural heritage is linked to human dignity and identity.Footnote 65 The protection of refugee home heritage is “reflected” in international human rights, including freedom of expression and thought, conscience, religion, the right to education, and economic rights.Footnote 66 Refugee home heritage protection is also the subject of cultural heritage rights, such as the right of access to and enjoyment of all forms of cultural heritage, including the right to take part in cultural life, the right of minorities to enjoy their own culture, and the right of indigenous peoples not only to cultural heritage but to self-determination.Footnote 67 Violations of the right to self-determination can lead to the destruction of intangible cultural heritage if committed on a large scale or are directed against specific persons of importance to the community.Footnote 68
Refugees’ rights to the intangible cultural heritage of their home countries are also elaborated in other broadly applicable international legal instruments. The UDHR links human dignity to cultural rights, “[e]veryone […] is entitled to […] the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”Footnote 69 The UDHR is legally binding due to its integration into the ICESCR and the ICCPR.Footnote 70 The ICESCR outlines specific substantive rights to be protected, such as the right to education; the right to participate in cultural life; the right to enjoy the benefits of scientific progress and its applications; the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which the person is the author; and the freedom for scientific research and creative activity.Footnote 71 The right of everyone to take part in cultural life is intrinsically linked to the right to education through which “individuals and communities pass on their values, religion, customs, language and other cultural references,” “which helps to foster an atmosphere of mutual understanding and respect for cultural values,”Footnote 72 interdependent on the right of all peoples to self-determination.Footnote 73 Further, the right to participate in cultural life places a positive obligation on states to ensure preconditions for participation, facilitation, and promotion of cultural life and “access to and preservation of cultural goods.”Footnote 74 The ICCPR provides that “[in] those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture.”Footnote 75
International law also protects refugees’ rights to home cultural heritage through instruments for protecting migrant and minority rights. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families places obligations on states to especially protect “the cultural identities of migrants, as well as their language, religion and folklore,” and “not prevent migrants from maintaining their cultural links with their countries of origin.”Footnote 76 The 1969 International Convention on the Elimination of All Forms of Racial Discrimination guarantees everyone the right to equal participation in cultural activities.Footnote 77 The 1989 United Nations Convention on the Rights of the Child places obligations on states “to respect the right of the child to preserve his or her identity,” pay due regard to “the child’s ethnic, religious, cultural and linguistic background” when considering solutions for alternative childcare placement, and not deny “a child belonging to […] a minority […] the right, in [their] community with other members of his or her group, to enjoy his or her own culture.”Footnote 78 The 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women also guarantees non-discrimination in all aspects of cultural life.Footnote 79
The European Court of Human Rights held that the adoption of a refugee child into an upbringing that discontinues their ethnic and linguistic background and breaks with their cultural and religious heritage constitutes a violation of the right to respect for family life.Footnote 80 In the context of the forced displacement of 30,000 Azeris after the capture of Lachin,Footnote 81 the Court found that ethnic hatred was confirmed by the continuing destruction of cultural heritage that compromised the right to self-determination.Footnote 82 Notably, the Court linked the definition of Armenian “people,” their continuous link with their “home,” and their right to return to “undisputed ethnic, religious, linguistic and cultural identity and its historical bond to that territory” to find a violation of the right to private and family life and the lack of cultural protection.Footnote 83
Tangible and intangible heritage overlap and attacks on tangible and intangible cultural heritage are interconnected through a human rights approach.Footnote 84 For example, the destruction of mausoleums and ancient Islamic manuscripts in northern Mali signified attacks on various forms of cultural practice that greatly affected populations in an integrated way, similar to the loss of ancient languages and religious practices tied to sacred spaces and structures in northern Iraq and the Syrian Arab Republic as a result of forced displacement and physical destruction.Footnote 85 The Inter-American Court of Human Rights recognized that the genocidal extermination of Mayan communities violated their right to ethnic or cultural identity and the right to express and disseminate their culture.Footnote 86 The Court also linked cultural rights to protection, having found that “depriving indigenous communities of access to their ancestral territory […] subject[s] them to situations of extreme lack of protection.”Footnote 87 The International Criminal Court (ICC) considers that attacks on cultural heritage may violate international humanitarian and criminal law and human rights because these attacks destroy conditions that allow people to access, participate in, and contribute to cultural life.Footnote 88
International criminal and humanitarian law
Responding to the needs of refugees’ intangible cultural heritage, safeguarding requires refugee law, human rights law, cultural heritage law, international humanitarian law, and international criminal law.Footnote 89 Moreover, the persecution of current mass refugee flows within predominantly non-international armed conflicts with non-state actors implies that the peace/war dividing line between human rights and cultural heritage laws on the one side and humanitarian law on the other is applied less strictly.Footnote 90 The ICC considered that, during armed conflict and in peacetime, objects of cultural value that were “damaged, desecrated, repurposed, or stolen” harmed “the people to whom they are intrinsically linked.”Footnote 91 The protection and safeguarding of tangible and intangible cultural heritage finds its reflection in rules on the protection of cultural property in international humanitarian law.Footnote 92
Under the 1954 Hague Convention, “[a]ll warring parties, including non-state actors, are bound to observe, as a minimum, the provisions relating to respect for cultural property.”Footnote 93 Moreover, designated cultural property could be granted special protection if entered in the “International Register of Cultural Property under Special Protection,” which is maintained by the Director-General of UNESCO.Footnote 94 Special protection could be granted to movable cultural property refuges, monument centers, and immovable cultural property of great importance. It implies that the parties to the 1954 Hague Convention undertake measures to ensure immunity from prosecution for damaging cultural property by acts of hostility in armed conflicts.Footnote 95 However, the literature argues that international humanitarian law does not sufficiently respond to the needs of intangible cultural heritage.Footnote 96
The preoccupation with protecting refugees’ cultural heritage is articulated in the international criminal law concern that the “delicate mosaic” of the shared cultural heritage of all peoples “may be shattered at any time.”Footnote 97 The Statute of the ICC protects cultural heritage and deems its destruction without military necessity to be a war crime.Footnote 98 Whether cultural heritage destruction is a form rather than a manifestation of persecution has been argued, as the destruction of cultural heritage is an attack on the identity of a group. Persecution is defined as a deprivation of fundamental rights contrary to international law because of the group’s identity and as part of a widespread or systematic attack on knowledge.Footnote 99 The destruction of cultural property and heritage has developed beyond the special protection of buildings or sites to securing the interests and rights of those who value those sites.Footnote 100 International heritage law scholars noted that even the 1972 World Heritage Convention presented “the protection of cultural heritage as a matter of public interest, and not only as part of private property rights.”Footnote 101
Refugee protection and safeguarding refugee home heritage
Safeguarding refugees’ home heritage enables refugees to choose their cultural identity in a community with a group from the same home to protect their community constitution. The right to choose one’s cultural identity includes the right not to have an alien culture imposed on one; the right of each cultural group to preserve, develop, and maintain its own specific culture; and the right to positive discrimination in favor of minorities to participate in the cultural life of the wider community.Footnote 102 Whereas broader society cannot impose a cultural identity on a community or group from outside,Footnote 103 Germany’s Leitkultur (leading culture) legislation on guiding culture for refugees and migrants and France’s “Republican Integration Contract”Footnote 104 contradict these fundamental notions. In the context of the forced displacement of the Rohingya, it has even been argued that the requirement for cultural assimilation constitutes the continued persecution of that refugee group.Footnote 105
Communities are subordinated to the state’s priorities, and “groups are subsumed within nation-states and representations of their culture employed within broader nationalist discourses.”Footnote 106 If the state continues to dominate representations of intangible cultural heritage, the experiences, concerns, and rights of minority groups and communities are likely to, at best, become occluded by state concerns. This applies especially to refugee groups, which are regularly the subjects of discourses about the limits of the nation.Footnote 107
Anthropology literature on migration (including forced migration) has discussed the “acculturation” phenomena that occurs when “groups of individuals having different cultures come into continuous first-hand contact, with subsequent changes to the original culture patterns of either or both groups.”Footnote 108 As such, refugees may have specific preferences for how they wish to “fit” into the society of the receiving country, and the receiving society allows or obstructs this acculturation under an acculturation framework that considers assimilation, integration, separation, and marginalization as the four strategy options. The choice of strategy depends, first, on the extent to which individuals wish to maintain their cultural heritage and, second, on their wish to have contact with those who do not share their cultural heritage.Footnote 109 When refugees are interested in preserving their cultural heritage and seeking relationships with the receiving society, the acculturation strategy they adopt is one of integration, but only if the receiving society promotes cultural diversity and does not discriminate against them.Footnote 110 If refugees are not allowed to maintain relationships with their own cultural heritage group, the acculturation strategy adopted is one of marginalization.Footnote 111 If the receiving community does not allow refugees to preserve their cultural heritage, this may be reflected in discrimination and anti-immigration policies.Footnote 112
Safeguarding cultural identity is linked to refugee status under the Refugee Convention, thus protecting refugees in the receiving state. A case study of Bajuni refugees from Senegal in Glasgow highlighted how the success of the asylum cases was linked to cultural heritage “tests” to assess persecution grounds in the absence of supportive documentation, as is the case for most refugees.Footnote 113 The European Court of Human Rights jurisprudence also highlighted the link of cultural heritage claims to property rights.Footnote 114 Dismissing the intangible cultural heritage of refugees could place their fundamental human right to seek asylum and freedom from persecution at risk.
Refuge heritage
Conceptual overview
Refuge heritage refers to intangible cultural heritage linked to the refugee journey from persecution or conflict to resettlement or return. Refuge heritage is mapped to the exile and seeking refuge segment of the refugee experience after persecution and before resettlement within the refugee home and refuge paradigm. Therefore, the issues of significance to safeguarding refuge heritage to protect refugees are related to its recognition and respect under international heritage law, particularly notions of culture, heritage, and community. Notwithstanding the requirement of further understanding of identity from disciplines such as anthropology or ethnography, refuge heritage is explored as it distinguishes refugees from migrants of the same refugee home heritage to protect them within the original reconciliatory objectives of international heritage law. Arguably, integrating refuge heritage allows refugees the “right to exit” from their home heritage if they no longer agree with the values it embodies.Footnote 115 As this concept is underdeveloped and is yet to be refined, two brief case studies of the Dheisheh Refugee Camp world heritage listing proposalFootnote 116 and Conversations from Calais documentation projectFootnote 117 are briefly discussed for illustration. Even though the Dheisheh Refugee Camp has been proposed in the context of tangible cultural heritage, its listing proposal has important conceptual implications for refugee and intangible cultural heritage.
International heritage law
International cultural heritage law has not defined “cultural heritage,” “culture,” or “heritage” to the inclusion or exclusion of some concepts or notions of culture, heritage or identity.Footnote 118 Culture has been understood to refer to a product and a way of life.Footnote 119 Culture is a “broad, inclusive concept encompassing all manifestations of human existence,” and “cultural life” in international legal instruments refers to “culture as a living process, historical, dynamic and evolving, with a past, a present and a future.”Footnote 120
The ICH Convention argues for an understanding of (intangible) cultural heritage as being practiced, elastic, and changeable.Footnote 121 The “changeability” of intangible cultural heritage is closely aligned with what some architecture scholars have referred to as the destabilization of conservation from a notion that “freezes time, space, and culture” to knowledge and practice that reframes the understanding of culture, history, and aesthetics, and pertains to “contested space in which identity and social structures are built and demolished.”Footnote 122 This notion aligns tangible cultural heritage with intangible cultural heritage in framing tangible cultural heritage as spaces of identity, history, and memory. It could also be argued that this interpretation aligns with the original objective of international heritage law as “reconciliation and […] prevention of future conflicts”Footnote 123 with the conception that “cultural heritage must be preserved, developed, enriched and transmitted to future generations as a record of human experience.”Footnote 124
Case studies
Introduction: Documenting Refuge Heritage
Documenting refugees’ lives and practices has been part of several endeavors to understand the conditions of refugees.Footnote 125 Human geographers have argued that refugee camps are “[a]ssemblage[s] of buildings, homes, people, institutions, social relations and practices’ and ‘spaces in which social formations […] are reassembled and sustained in exile, and in which cultures and traditions […] are recreated and performed.’”Footnote 126 Others have coined the term “camp geographies” to refer to refugee camps as sites of biopolitical violence that “determin[e] the actual practices of citizenship today.”Footnote 127 The case studies of Dheisheh Refugee Camp and Conversations from Calais explore the performance of culture and the practice of citizenship in exile to illustrate the constitution of refuge heritage.
Dheisheh refugee camp
The Dheisheh Refugee Camp was established in 1949 to serve 3,000 refugees from 45 villages in western Jerusalem and Hebron.Footnote 128 The Camp is located along the main street in Bethlehem, covering 0.33 square kilometers, and is home to approximately 15,000 refugees with a population density of 45,454 people per square kilometer.
Decolonizing Architecture Art Research (DAAR), non-governmental organizations, and communities from the Dheisheh Refugee Camp prepared and submitted a dossier to nominate the Camp for inclusion on the World Heritage list.Footnote 129 DAAR articulated the bases for nomination as embodiment of the memory of Nakba as the “longest and largest living displacement in the world today,” an expression of “exceptional spatial, social, and political form,” in addition to association “with an exceptional belief in the right to return that has inspired both refugees and non-refugees from around the world in the struggle for justice and equality.”Footnote 130 According to DAAR, refugee camps are meant to have no history and no future and are only established with the intention of being demolished and forgotten.Footnote 131 States erase the history of refugee camps because it represents political failure, and their future is fearfully dismissed by refugee communities for fear of undermining the right of return or resettlement.Footnote 132 At the same time, Dheisheh Refugee Camp’s home stories are narrated through its urban fabric. They document refugee history that represents the refugee journey beyond the simplistic narrative of suffering and displacement.Footnote 133
Through the nomination, the involved organizations and communities seek to “deploy the potential for heritage to be mobilized as an agent of political transformation.”Footnote 134 Moreover, the process of nomination over the course of two years, with the involvement of organizations, individuals, politicians, conservation experts, activists, and governmental and non-governmental representatives, in addition to proximate residents,Footnote 135 addresses the criticism around community disengagement and the inflated role of the state and state actors in heritage nomination, authorized heritage discourse, and UNESCO notions of cultural value and UNESCO mechanisms more generally. The Dheisheh Refugee Camp nomination project invites the rethinking of heritage and the investigation of the complex relationship between memorialization, archiving, and responsibility. According to DAAR, “[i]n a moment in history in which [35.3] million refugees around the world are actively navigating identities defined by their exclusion from statehood, Dheisheh offers a historical perspective onto the contemporary condition of refugeehood and the culture of exile.”Footnote 136
Conversations from Calais
Calais is a port city in northern France, directly across from Dover in the south of England, and the site of the “Jungle” of makeshift camps since the French Minister of the Interior closed the Sangatte refugee center in 2002 – until the French police demolished it in 2016.Footnote 137 Approximately 1,500 refugees around Calais are still trying to get to England to seek asylum.Footnote 138
Mathilda Della Torre started the graphic design project “Conversations from Calais” in October 2019 to “re-humanize” those affected by the refugee crisis by using public spaces to share conversations volunteers had with migrants in Calais.Footnote 139 The project contains a collection of conversations that have been transformed into posters in 15 languages and pasted on the walls of 60 cities worldwide to “remember” and “document” intimate conversations.Footnote 140
As a slum, the “Jungle” provides a “visibility for certain histories and the landscapes of politics.”Footnote 141 Calais has been described as a site of oppression and structural violence that is interwoven with the city of London “historically, politically, socially, culturally and economically.”Footnote 142
Conclusion: Refuge heritage and border injustice
Refugee camps have been described as heritage, a “commemoration of the tireless efforts of all those […] who struggle against border injustice.”Footnote 143 The nomination of the Dheisheh Refugee Camp to the World Heritage List has implications for heritage conservation. In some sense, it became the restoration of a landscape of destruction rather than the memory of something before it was destroyed. By contrast, safeguarding becomes the archiving and documentation of the impact of the destruction on the present.Footnote 144 Conversations from Calais document conversations at a site of “political contestation” that embodies “racialized geopolitics of global borders,” power of division, world-making, and the struggle against segregation.Footnote 145 Both case studies highlight the constitution of refuge heritage, the significance of its safeguarding, and its role in world heritage around border injustice.
Refugee protection and safeguarding refuge heritage
Heritage scholars argue that the heritage sector is dominated by a notion of community that overlooks representations of groups under construction, such as refugee groups, and leads to discrimination and inequality in engagement with cultural heritage.Footnote 146 An “authorized heritage discourse” emerges,Footnote 147 legitimizing some understandings of heritage, discrediting nuances, and misrecognizing entire communities.Footnote 148 The misrecognition of communities is deepened further through the inability to interact “on parity” in heritage matters through adjudication capability and access to resources, such as exclusion from decisions on what is and what is not heritage.Footnote 149 One barrier to adjudication capability is linked to heritage understanding and aesthetic values, which themselves are cultural.Footnote 150 Another is the layer of experts that presides over such assessments.Footnote 151 In the refugee context, policies tend to assimilate communities into an understanding of traditional definitions of heritage rather than serving their cultural and historical experiences, including persecution, conflict, and the refugee journey itself.Footnote 152
Authorized heritage discourse defines heritage as “innately material,” “aesthetically pleasing,” and “good,” such that it fails to recognize competing concepts of heritage or question the link between heritage and identity.Footnote 153 Anthropologists have discussed ways to frame historical injustice, resistance, and perseverance as heritage.Footnote 154 Some suggest that refugee histories and experiences constitute cultural heritage and that if heritage wants to remain relevant as a concept and a practice, it needs to find articulation in new modalities and new understandings.Footnote 155 Self-identification can also be framed as an important aspect of the right to cultural identity.Footnote 156 The right to cultural identity means choosing one’s cultural identity alone or in a community with others.Footnote 157 In some instances, those who have had to flee from persecution because of their culture destroy ties with their home heritage when becoming refugees.Footnote 158 The protection of these refugees may hinge on safeguarding their refuge heritage.
Conclusion
This Article contends that refugee protection provided by the Refugee Convention and other international refugee law includes safeguarding refugee home and refuge heritage. To afford appropriate refugee protection, the safeguarding of refugees’ intangible cultural heritage must cover not only cultural rights but also self-identification. Self-identification faces obstacles of acculturation and authorized heritage discourse, in addition to statelessness, and challenges self-determination. The 1989 Indigenous and Tribal Peoples Convention lays out a sequential relationship between self-identification and self-determination, giving the latter right to communities that identify as such.Footnote 159 Self-determination is an international legal right and a human right triggered by refugee populations that the governments do not generally represent in their home countries or receiving countries, and such that their home governments infringe their human rights.Footnote 160 This has implications for the role of states in terms of departure from their definition as linked to a permanent population and a defined territory.Footnote 161
This Article finds that, whereas the international law framework lays the groundwork for a holistic paradigm that covers home and refuge heritage and international and national laws, state policy approaches must be reformed to achieve refugee protection in line with international obligations. An updated international law would enable international cultural heritage law to safeguard refugees’ intangible cultural heritage, not only in terms of home practices and associations but also knowledge and representations of the refugee experience of each refugee community. Similar reasoning could be applied to protect refugees’ tangible cultural heritage.
In a world with 108.4 million forcibly displaced people and 35.3 million refugees, UNESCO and other international organizations must place refugees on their nominations for cultural heritage to be safeguarded, and reparations in case their heritage is destroyed.Footnote 162 The sharing of the possible benefits that the separation of the cultural heritage has had from its original communities could provide redress to affected communities.Footnote 163 This Article invites further thought on the room for transitional justice in the refugee cultural heritage discourse.
