Refugee Protection, Safeguarding Intangible Cultural Heritage and Human Rights
Résumés
Le patrimoine culturel fait partie intégrante de la définition des réfugiés, et une protection des réfugiés devrait inclure la sauvegarde de leur patrimoine culturel. Le principal instrument de droit international pour la protection des réfugiés est la Convention relative au statut des réfugiés et le Protocole relatif au statut des réfugiés, dont certaines parties relèvent du droit international coutumier. Bien que le droit international des réfugiés ne puisse pas concerner directement le patrimoine culturel, l’interprétation de la Convention relative aux réfugiés et du Protocole relatif aux réfugiés doit être conforme au sens ordinaire de leurs termes dans leur contexte et à la lumière de leurs objets et buts. La notion de « culturel » en matière de patrimoine (ou de propriété) fait référence à des critères de qualification, tels qu’historiques ou ethnographiques. On peut soutenir que la Convention relative aux réfugiés et le Protocole relatif aux réfugiés abordent le patrimoine culturel des réfugiés, notamment à travers la définition du réfugié. Par exemple, les motifs de persécution dans la définition de réfugié dans la Convention relative aux réfugiés sont liés au patrimoine culturel des réfugiés. Un réfugié est défini comme une personne « craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social particulier ou de ses opinions politiques ». La race a été interprétée comme faisant référence à « la race, la couleur, l’ascendance ou l’origine nationale ou ethnique ». La religion comprend la pensée, la conscience et la religion en tant que croyances théistes, non théistes et athées. La nationalité a été interprétée non seulement comme l’origine nationale, mais aussi, au sens large, comme incluant l’origine et l’appartenance à des communautés ethniques, religieuses, culturelles et linguistiques particulières. L’appartenance à un groupe social particulier fait référence à des « intérêts, valeurs ou antécédents partagés ». L’opinion politique a également été interprétée au sens large pour englober l’opinion sur toute question dans laquelle la politique est engagée. Le document examine l’engagement de la Convention relative aux réfugiés et du Protocole relatif aux réfugiés avec le patrimoine culturel immatériel des réfugiés et la mesure dans laquelle cet engagement crée des tensions avec d’autres cadres autour du patrimoine culturel et des droits de l’homme, en raison de tensions ancrées dans les différents traitements des réfugiés en tant qu’individus ou groupes et de l’essentialisation potentielle des identités des réfugiés. Je le fais en conceptualisant le patrimoine culturel immatériel pour intégrer les relations entre les réfugiés et leur patrimoine culturel matériel.
Entrées d’index
Mots-clés :
patrimoine culturel, patrimoine culturel immatériel, réfugié, convention sur les réfugiés, définition de réfugié, protection des réfugié, sauvegarde du patrimoine, droits de l’homme, essentialisationKeywords:
cultural heritage, intangible cultural heritage, refugees, refugee convention, refugee definition, refugee protection, heritage safeguarding, human rights, essentialisationPlan
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- 1 Manlio Frigo, “Cultural property v. cultural heritage: A ‘battle of concepts’ in international law? (...)
- 2 Convention for the Safeguarding of the Intangible Cultural Heritage, 20 April 2006, art. 1, 2.
- 3 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 18 March 2007.
1Cultural heritage refers to “historical” or “ethnographic” inheritance from previous generations.1 Intangible cultural heritage includes “practices, representations, expressions, knowledge, skills” in addition to “instruments, objects, artefacts and cultural spaces associated therewith”.2 The Convention for the Diversity of Cultural Expressions3 complements the Convention for the Safeguarding of the Intangible Cultural Heritage to address human rights considerations as to whose intangible cultural heritage should be the object of safeguarding under international law and “which” cultural identities are being protected.
- 4 Sherine Al Shallah, “Refugee Protection through Safeguarding Intangible Cultural Heritage of the Ho (...)
- 5 Convention Relating to the Status of Refugees, art. 1A (2).
2I argue that whereas the protection of refugees is only complete with the safeguarding of refugee intangible cultural heritage,4 the ensuing risk of essentialisation of refugee identities stands in tension with their rights both under international cultural heritage and human rights law. Refugees are assessed as such due to a well-founded fear of persecution in the origin state on the basis of at least one of the five grounds of race, religion, nationality, membership of a particular social group or political opinion.5 The tensions underlying the safeguarding of intangible cultural heritage are related to the risk of the inappropriate extension of attributes to other refugees from the same or different origin societies, other migrants from the same origin society or other members of the same racial, religious, national, particular social or political group whose persecution also gives rise to the obligation for international protection.
- 6 Elizabeth Holzer, “What Happens to Law in a Refugee Camp?”, Law & Society Review, no 47(4), 2013, p (...)
3The paper entrenches the dialogue between international refugee law and other legal and rights frameworks that apply to intangible cultural heritage6 with the aim of examining whether the intangible cultural heritage identification under international refugee law constrains the safeguarding of refugee intangible cultural heritage or the realisation of human rights by all refugees through an essentialisation of refugee intangible cultural heritage and identity—for example, whether the extension of the duty of protection of Rohingya refugees to cover their intangible cultural heritage essentialises them as Muslim and is thus in contradiction with their human rights to choose another religion unassociated with the Muslim faith. The first section discusses the link between refugee status determination and the refugee definition under international refugee law, and cultural heritage, to examine implications on the identification of refugee intangible cultural heritage. The second section discusses tensions with international cultural heritage law and international human rights law resulting from the link between refugee protection and intangible cultural heritage safeguarding.
Refugee protection and safeguarding intangible cultural heritage
- 7 Erich Hatala Matthes, “‘Saving Lives or Saving Stones?’ The Ethics of Cultural Heritage Protection (...)
- 8 UNESCO, UN Security Council adopts historic resolution for the protection of heritage (News, 24 Mar (...)
- 9 UNESCO, Karima Bennoune: Cultural heritage is a human rights issue (News, 26 October 2016). Online: (...)
- 10 Thomas Weiss and Nina Connelly, “Protecting cultural heritage in war zones”, Third World Quarterly, (...)
- 11 Erich Hatala Matthes, “‘Saving Lives or Saving Stones?’ The Ethics of Cultural Heritage Protection (...)
- 12 UNESCO, Karima Bennoune: Cultural heritage is a human rights issue, op. cit.
- 13 William Bulow and Joshua Lewis Thomas, “Cultural Heritage Protection and the Reconciliation Thesis” (...)
- 14 Ibid., p. 107.
4The principle of inseparability implies that protecting the lives of refugees and safeguarding their intangible cultural heritage are “inseparable” objectives and inextricably linked.7 United Nations Educational, Scientific and Cultural Organisation’s (UNESCO) Director-General Irina Bokova stated in 2015 that there was no need to choose between saving heritage and saving lives as the two are inseparable, such that “[d]efending cultural heritage is more than a cultural issue—it is a security imperative, inseparable from that of defending human lives”.8 Haider Oraibi, the Director of the National Museum of Iraq, said when extremists attacked Mosul’s museum: “it was like someone wanted to kill you, like a murder”.9 As such, safeguarding the intangible cultural heritage of refugees and the protection of their lives become “conceptually and operationally inseparable”.10 Refugee protection becomes concerned with the safeguarding of refugee intangible cultural heritage “not for their own sakes, but for the sake of the people who care about them”,11 and because it “is impossible to separate a people’s cultural heritage from the people itself and that people’s rights”.12 Scholars arguing against the inseparability principle of legal interpretation bring up the point that cultural heritage could be reconstituted, whereas human lives cannot and as such the inseparability principle is overridden by the duty to protect peoples’ lives.13 A compromissory approach applies the inseparability principle only to the extent that the value of safeguarding intangible cultural heritage is derived from a justification of implications on long term reconciliation with the refugees.14
- 15 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, D (...)
- 16 Río Negro Massacres v. Guatemala (Judgment, Preliminary objection, merits, reparations and costs), (...)
- 17 International Criminal Court, The Office of The Prosecutor, Policy on Cultural Heritage, op. cit., (...)
- 18 The Prosecutor v. Ahmad Al Faqi Al Mahdi (Reparations Order), International Criminal Court, Trial C (...)
5Part of the reason for the establishment of International Refugee Organization in the immediate aftermath of the Second World War was to encourage and assist in any way possible refugees’ early return to their countries.15 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 to pass them on to future generations.16 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 and thus compromise the safety of the community and its chances of returning once the fear of persecution subsides.17 Crimes against or affecting cultural heritage, such as acts to suppress the cultural practices of a community, could constitute coercion that forces the displacement of some members of the community in order to perform their cultural heritage practices or rituals.18
- 19 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (ent (...)
- 20 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, o (...)
6Legal scholarship has not delved into persecution in the refugee context to examine the implications of refugee protection for cultural heritage protection and safeguarding from a doctrinal perspective rather than from a legal theory perspective in international refugee law. The rest of this section examines the linkages between the refugee definition under international refugee law and the cultural heritage of the refugee. In referring to “refugee definition’, this section covers “convention refugees’ who are unable or unwilling to seek or avail themselves of the protection of the country of origin when such inability or unwillingness is “owing to [a] well-founded fear of being persecuted’; and the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.19 In doing so, the section reckons with the potential of pursuant essentialisation of refugee identities to their assessed persecution grounds. The section studies holistically the relationship of the refugee definition with intangible cultural heritage in relation to the nature of the harm (whether it amounts to persecution), ground(s), well-founded fear of occurrence, and nexus requirement across all three.20 As international refugee law does, the section applies international human rights law in the interpretation of the refugee definition.
Refugee definition and intangible cultural heritage
- 21 Canada (Attorney General) v Ward (La Forest J).
7The refugee definition is interlinked with the cultural heritage of refugees, implying that refugee protection must cover the protection and safeguarding of refugee intangible cultural heritage. However such a safeguarded intangible cultural heritage could be linked to the persecution of particular refugee identifications with other refugees, migrants or members of the destination society. Courts have found that persecution on the basis of one or more of the five grounds may only be due to the perception of the persecutor rather than actual belonging, practice or belief.21 This subsection reviews each of the five persecution grounds, its link to cultural heritage and the implications of the link for the identification of the refugee cultural group and intangible cultural heritage to be safeguarded.
- 22 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 43; International Convention on (...)
- 23 Ian Haney Lopez, White by Law: The Legal Construction of Race, New York, New York university Press, (...)
- 24 Carola Lingaas, The Concept of Race in International Criminal Law, Milton Park, Routledge, 2020, p. (...)
- 25 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 26 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 27 James Hathaway, “The Development of the Refugee Definition in International Law”, art. cit., p. 141
- 28 King-Ansell, p. 533, line 50, (Woodhouse J) in Refugee Law Centre, Caselaw on the Refugee Conventio (...)
- 29 King-Ansell, p. 533, line 50, (Richardson J) in Refugee Law Centre, Caselaw on the Refugee Conventi (...)
- 30 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 31 Manlio Frigo, “Cultural Property v. Cultural Heritage: A ‘battle of concepts’ in international law? (...)
8Race has been interpreted to refer to “race, colour, descent, or national or ethnic origin”,22 and “the historically contingent social systems of meaning that attach to elements of morphology and ancestry”.23 Race has referred to “collective identities” that are “socially constructed”, “imagined” and “perceived”.24 The United Nations High Commissioner for Refugees (UNHCR) Handbook states that race “has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage” and to frequently entail “membership of a specific social group of common descent forming a minority within a larger population”.25 Race is understood as any kind of distinctive ethnic characteristic or particular attribute of a minority group,26 and interpreted to include ethnic groups or tribes within a country , covering “all persons of identifiable ethnicity”.27 Judges in the United Kingdom have defined race as that “which is concerned, not with genetic processes, but with shared characteristics of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations”.28 Refugee status determination cases in the United Kingdom have articulated the “real test” to be whether the individual or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins based on a belief shared by members of the group.29 Whereas the mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim to refugee status, in situations where circumstances particularly affect the group such membership will in itself be sufficient ground to fear persecution.30 The interpretation of race as a persecution ground in the refugee definition is therefore interlinked with the ethnographic character of “culture” and “cultural heritage”.31 A person determined to be a refugee due to a well-founded fear of persecution on the basis of race has been assessed as belonging or perceived to be belonging to a racial group that is being persecuted—as such identifying with the intangible cultural heritage of the racial group.
- 32 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 44-45; Declaration on the Elimi (...)
- 33 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 34 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, o (...)
- 35 Universal Declaration of Human Rights, 10 December 1948, art. 18.
- 36 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 37 Ibid.
- 38 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
9Religion includes thought, conscience, in addition to theistic, non-theistic and atheistic beliefs,32 referring not only to the established institutionalised religions but also to “any system of belief—that is, convictions or values about a divine or ultimate reality, or the spiritual destiny of mankind.”33 Religion has been understood to refer to both beliefs and actions.34 Under the Universal Declaration of Human Rights (UDHR), the “freedom of thought, conscience and religion” includes “freedom, either alone or in community with others and in public or private, to manifest his religion or belief”.35 Freedom of religion includes the right to have or not to have a religion, practice one’s religion and to change religions.36 Religious claims may involve “elements related to religious belief (or the fact of not having a belief, religious identity or religion as a way of life)”.37 The UNHCR Handbook states that persecution on the ground of religion may assume the form of “prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community” and that there are special circumstances where “[m]ere membership of a particular religious community” can be a sufficient ground.38 Religion covers expressions, practices and religious community memberships that all constitute part of cultural heritage. Persecution on the basis of religion is linked to membership of a religious community that is being persecuted, and the intangible cultural heritage that is safeguarded in connection with refugee protection is linked to the religious identity of the community.
- 39 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p (...)
- 40 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 45; London Borough of Ealing v (...)
- 41 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 42 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 43 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 44 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
10International refugee law scholars have found that the only way to make sense of nationality as a ground of persecution in the context of refugees is to interpret nationality under a broad cultural definition39 to include origin and membership of particular ethnic, religious, cultural, and linguistic communities.40 The UNHCR Handbook confirms this interpretation and states that “nationality” in the context of the refugee definition is not to be understood only as citizenship, but “refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term ‘race‘’”.41 Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well‑founded fear of persecution. 42Persecution on the ground of nationality extends to groups of people “defined through their real or perceived ethnic, religious, cultural or linguistic identity, regardless of whether this difference has been formalised legally.”43 The UNHCR denotes national groups as “ethnic, linguistic”—both “cultural” qualifications44, protection of whose members safeguards the associated national intangible cultural heritage.
- 45 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p (...)
- 46 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 47; Mirko Bagaric and James McC (...)
- 47 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 48 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 49 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 50 International Covenant on Civil and Political Rights, 23 March 1976, art. 26.
- 51 International Covenant on Economic, Social and Cultural Rights, 3 January 1976, art. 2.
- 52 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining (...)
- 53 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p (...)
11Determinants of a social group are cultural, to include ethnic or other cultural factors, education, family background, status, national or social origin (in the context of anti-discrimination), shared values, outlook or aspirations.45 Membership of a particular social group refers to “shared interests, values, or background”—46 which all factor into cultural heritage. The interpretation of social group is aligned with the interpretation of social origin as a basis of discrimination under international human rights law—which covers other “cultural” factors such as race, language, religion, national and social origin.47 The UNHCR Handbook describes “social group” to comprise persons of similar background, habits or social status, and to overlap with other grounds such as “race, religion or nationality”.48 The ground has been interpreted to refer to belonging to a group of persons who share a common characteristic other than the risk of being persecuted or who are perceived as a group by society, with the characteristic being innate, unchangeable (relating to past history) or otherwise fundamental to identity, conscience or exercise of human rights.49 The International Covenant on Civil and Political Rights (ICCPR) refers to “social origin” in the context of anti-discrimination,50 and so does the International Covenant on Economic, Social and Cultural Rights (ICESCR).51 Membership of a particular social group may be at the root of persecution because “there is no confidence in the group’s loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government’s policies”.52 Social group thus becomes that which is beyond the power of an individual to change, or fundamental to their identity or consciousness such that they should not be required to change—for example, shared past experience, affiliation, common interest or association.53
- 54 Manlio Frigo, “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in international law? (...)
- 55 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UN (...)
- 56 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, o (...)
- 57 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a r (...)
- 58 Refugee Law Centre, Caselaw on the Refugee Convention: the United Kingdom’s Interpretation in the l (...)
- 59 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, o (...)
12Political opinion has been broadly interpreted to incorporate opinion on any matter that engages policy—which aligns with the notion of cultural heritage as historical or ethnographic.54 Political opinion is interpreted in the context of freedom of expression “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.55 Whereas broad generalisations about what is political are inaccurate without reference to actual country conditions,56 political opinion is interpreted in a broad sense and goes beyond identification with a specific political party or recognised ideology.57 Prediction of refugees’ future political activity is based on the extent to which the activity is necessary and integral to the defining characteristic of the group upon which the applicant founds their refugee application.58 Political opinion has also been understood to refer to “imputed” political opinion in the context of a well-founded fear of persecution on the basis of being also falsely accused of holding a political opinion.59
Refugee intangible cultural heritage and protected groups
13Acknowledging the relationship of the refugee definition to refugee cultural heritage and particularly to intangible cultural heritage introduces a collective dimension to refugee assessment. Such assessment may be both implied and necessary due to the nature of persecution as targeting groups of persons. The relationship also highlights the cultural heritage “group” of a refugee that is decided on the basis of their assessment—for example, a refugee being associated with a particular racial, religious, national, social or political group (such as Muslim in Rakhine state) and therefore having the corresponding identity (such as Rohingya).
14Whereas linking the refugee definition to cultural heritage extends refugee protection to the safeguard of intangible cultural heritage, the question arises as to whether the intangible cultural heritage that is safeguarded is only that which is linked to one or more of the grounds upon which refugee status is determined and the resulting accord or discord of the refugee with their destination society and with their personal freedom. In which case, whether the safeguarding and identity association effectively essentialises refugee identity. This tension is discussed in the next section.
Tensions around safeguarding refugee intangible cultural heritage in destination societies
- 60 Claudia Maria Hofmann, “Leitkultur Meets German Angst: On the Role of Values and Needs in the Germa (...)
- 61 French Office for Immigration and Integration, The Republican Integration Contract. Online: https:/ (...)
- 62 Poland: Development of Migration Strategy for 2025-2030, European Website on Integration, 14 March (...)
- 63 Melanie O’Brien and Gerhard Hoffstaedter, “There We Are Nothing, Here We Are Nothing!—The Enduring (...)
- 64 Victoria Esses, “Immigration, Migration, and Culture”, Oxford Research Encyclopedias, 28 March 2018 (...)
- 65 Richard Y. Bourhis, Elisa Montaruli, Shaha El-Geledi, Simon Pierre Harvey and Geneviève Barrette, “ (...)
15Case examples such Germany’s Leitkultur (leading culture) legislation on guiding culture for refugees and migrants60, France’s “Republican Integration Contract”61 and Poland’s planned Act on Foreigners62 contradict the fundamental notion that wider society cannot impose an external cultural identity on a community or group, and subordinate groups to the priorities of the state. If the state continues to dominate representations of intangible cultural heritage, the experiences, concerns, and rights of refugee groups are likely to be at best occluded by state concerns—which as argued in the previous section, contravenes the duty of refugee protection. In the context of the forced displacement of the Rohingya, it has been argued that the requirement for cultural assimilation constitutes a continued persecution of this refugee group.63 Anthropology literature on migration (including forced migration) has discussed “acculturation” phenomena that occur when “groups of individuals having different cultures come into contact, with subsequent changes in the original culture patterns of either or both groups”.64 As such, refugees may have specific preferences for how they wish to “fit” into the destination society, and destination society may allow or obstruct this acculturation. If the destination society does not allow refugees to maintain their cultural heritage, then this may be reflected in discrimination and anti-immigration policies.65
- 66 Vienna Convention on the Law of Treaties, art. 31(3)(c).
- 67 Campbell Mclachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Conve (...)
16International law is intended to apply as a holistic system and the interpretation of a treaty (or convention) should consider other treaties (and conventions) that bind the same parties and cover the same matters.66 Refugees in destination societies are not subject only to international refugee law. This section integrates international cultural heritage law and international human rights law along with international refugee law67 to both articulate the holistic framework that governs the safeguarding of refugee intangible cultural heritage in destination societies, and analyse the embedded tensions in the identification of intangible cultural heritage to be safeguarded.
Refugee intangible cultural heritage in destination societies under international cultural heritage law
- 68 Convention for Safeguarding the Intangible Cultural Heritage, art. 1,2.
- 69 Convention for Safeguarding the Intangible Cultural Heritage, art. 2(3).
- 70 Lucas Lixinski, International Heritage Law for Communities: Exclusion and Re-Imagination, Oxford, O (...)
17The ICH Convention aims at the respect and safeguarding of intangible cultural heritage, which includes “practices, representations, expressions, knowledge, skills”.68 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 revitalisation of the various aspects of such heritage”.69 Anthropologists are joined by legal scholars in probing the reconsideration of the mechanisms of identification, classification and nomination of heritage, and urging that refugees replace states to take their rightful place as the “central agency through which we distribute the ‘spiritual heritage of mankind’”.70
- 71 Francesco Francioni, “The Human Dimension of International Cultural Heritage Law: An Introduction”, (...)
- 72 Janet Blake, “Protection of Intangible Cultural Heritage in the Event of Armed Conflict: An Imperat (...)
- 73 Ibid., p. 77.
18The ICH Convention has been characterised as shifting emphasis from the protection of physical cultural heritage to the safeguarding of social structures and cultural processes. 71This shift is intended to benefit “cultural communities and human groups” broadly, and particularly minorities whose cultural traditions are the “real object” of safeguarding under international law.72 Persecuted minorities and other refugees fleeing conflict would fit into the category of communities and groups whose intangible cultural heritage is the object of safeguarding. Not only does intangible cultural heritage provide refugees with the know-how that is essential to surviving under challenging conditions, but it also provides the “norms and social arrangements necessary for such groups of people to continue to live as a community”.73
- 74 Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage”, Inte (...)
- 75 Ingrid Burkett, “Traversing the Swampy Terrain of Postmodern Communities: Towards Theoretical Revis (...)
- 76 Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage”, art. (...)
- 77 Fraser, Nancy, “Social Justice in the Age of Identity Politics: Redistribution, Recognition and Par (...)
19A challenge facing the safeguarding of refugee intangible cultural heritage is the heritage scholars’ argument that the heritage sector engages insufficiently with some groups,74 such as refugees. This under-engagement or disengagement deepens existing power imbalances.75 More significantly for refugees, power relations lead to the legitimisation of only some understandings of heritage and as such discredits nuances and misrecognises entire communities.76 The misrecognition of communities is worsened by interaction which is not “on parity”, due to lack of adjudication capacity or of access to resources. Such misrecognition may cause exclusion from decisions on what is or is not heritage.77 Access to educational 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.
- 78 Human Rights Council, General Report of the Special Rapporteur in the Field of Cultural Rights: Pro (...)
- 79 Ibid.
- 80 Plan de Sánchez Massacre, para. 42(7).
- 81 Geraldine Chatelard, Survey report: Intangible Cultural Heritage of Displaced Syrians, UNESCO, 2017 (...)
20The relationship between refugee persecution and cultural heritage destruction also poses challenges to the safeguarding of the intangible cultural heritage of refugees under international cultural heritage law. Tangible and intangible heritage overlap, and attacks on tangible and intangible cultural heritage are interconnected.78 For example, the destruction of mausoleums and ancient Islamic manuscripts in northern Mali signified attacks on various forms of cultural practice which greatly affected whole populations. Similarly, loss of ancient languages and religious practices tied to sacred spaces and structures in northern Iraq and the Syrian Arab Republic were the result of forced displacement and physical destruction.79 The Inter-American Court of Human Rights has recognised that the genocidal extermination of Mayan communities violated their right to ethnic or cultural identity and the right to express and disseminate their cultural heritage.80 The intangible cultural heritage of displaced Syrians has been the subject of an examination that has provided recommendations for the “international community” and “national authorities” to safeguard “living heritage” in order to “promote social cohesion”.81 Surveys showed that intangible cultural heritage provides a sense of belonging and helps mediate conflicts by fostering intercultural communication and mutual appreciation. However, the continued transmission of intangible cultural heritage in the particular circumstances of displacement is challenged by the new context and destination society.
- 82 Janet Blake, “On Defining the Cultural Heritage”, International and Comparative Law Quarterly, no 4 (...)
- 83 United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, Gener (...)
- 84 Emma Hill, Máiréad Nic Craith and Cristina Clopot, “At the Limits of Cultural Heritage Rights? Th (...)
- 85 Janet Blake, “On Defining the Cultural Heritage”, art. cit., p. 61.
- 86 Universal Declaration on Cultural Diversity, 2 November 2001, art. 7. (Emphasis added)
21International cultural heritage law has not excluded nor included any particular notions of culture, heritage or identity from the definition of cultural heritage.82 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”.83 The ICH Convention argues for an understanding of intangible cultural heritage as being practiced, elastic, and changeable.84 This understanding aligns with the original objective of international heritage law as “reconciliation and [...] prevention of future conflicts”85 with the conception that “cultural heritage must be preserved, developed, enriched and transmitted to future generations as a record of human experience”.86 Refugee intangible cultural heritage includes not only the intangible cultural heritage associated with the protected group, but also of the refugee experience as a human experience of exile and resettlement. Safeguarding refugee intangible cultural heritage enables refugees to choose their cultural identity in line with their experiences.
- 87 Emma Hill, Máiréad Nic Craith and Cristina Clopot, “At the Limits of Cultural Heritage Rights? Th (...)
22A case study of Bajuni refugees from Senegal living in Glasgow highlighted how the success of the applications for asylum was linked to cultural heritage “tests” to assess persecution grounds in the absence of supportive documentation. 87The case study highlighted that refugee intangible cultural heritage that is connected with refugee protection is not the cultural heritage of the Bajuni community in Senegal but rather the Bajuni community that is seeking protection and has been living in the United Kingdom practicing and teaching an evolved Bajuni dialect. Refugees may find that they share intangible cultural heritage not with the group of others fearing persecution in the same country on the same ground (for example, Afghan Hazaras in Australia), but with other refugees in the same destination society (for example, refugees from Syria living in Australia) or migrants from the same origin country (for example, Afghan Baluch migrants in Australia).
- 88 Janet Blake, “On Defining the Cultural Heritage”, art. cit.
23The rights language and “rights” references of heritage conventions has been evidenced as an increasingly human rights approach that links cultural heritage to identity and human dignity. Intangible cultural heritage safeguarding is linked to both the protection of the heritage element itself, as well as to the preservation of the cultural identity of the communities and groups that practice it.88 The ICH Convention does not only safeguard intangible cultural heritage as the end-result of a human practice, but protects “the agents of the communities and groups that produce, enact, and perpetuate the intangible cultural heritage element concerned, as well to the conditions within which intangible cultural heritage is practiced”.
Refugee intangible cultural heritage in destination societies under international human rights law
24International human rights law is a system of individual rights that are elaborated in a number of instruments, including the ICCPR and ICESCR. There are no explicit references to cultural heritage in international human rights treaties, and there exists no express international provision containing a right to cultural heritage. The applicability of international human rights law in destination states creates a tension for refugees who are persecuted or are at risk of persecution in the country of origin and whose rights are violated as groups but whose rights are protected as individuals. This section analyses the tension in the context of individual refugee rights to their intangible cultural heritage and discusses whether international human rights law highlights or counteracts essentialised refugee identities.
- 89 Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Pe (...)
- 90 Human Rights Council, Promotion and protection of all human rights, civil, political, economic, soc (...)
- 91 Human Rights Council, General Report of the Special Rapporteur in the field of cultural rights: Pro (...)
- 92 Universal Declaration of Human Rights, art. 22. The UDHR is legally binding as a result of its inte (...)
- 93 Janet Blake, “Protection of Intangible Cultural Heritage in the Event of Armed Conflict: An Imperat (...)
25Human rights instruments include provisions for the positive protection and promotion of cultural, religious, and linguistic rights.89 Respect for cultural rights is considered to presuppose respect for human rights, and cultural right protection is regarded as promoting respect for other human rights.90 The right of access to and enjoyment of cultural heritage forms part of international human rights law and cultural heritage is linked to human dignity and identity.91 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”.92 The right to choose one’s cultural identity includes the right not to have an alien culture imposed upon one, the right of each cultural group to preserve, develop and maintain its own specific cultural heritage, and the right to positive discrimination in favour of the participation of minorities in the cultural life of the wider community.93
- 94 Universal Declaration of Human Rights, art. 18, 26-27; International Covenant on Civil and Politica (...)
- 95 International Covenant on Economic, Social and Cultural Rights, art. 11,13 and 14; United Nations E (...)
- 96 Abdi Ibrahim v Norway; Convention for the Protection of Human Rights and Fundamental Freedoms, art. (...)
26The safeguarding of the intangible cultural heritage of refugees is enshrined in individual foundational rights around the freedom of expression, freedom of thought, conscience and religion, the right to education and economic rights.94 Cultural rights or 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” and “which helps to foster an atmosphere of mutual understanding and respect for cultural values”.95 The European Court of Human Rights has 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.96
- 97 International Covenant on Economic, Social and Cultural Rights, art. 1; United Nations Economic and (...)
- 98 Río Negro Massacres v. Guatemala; Human Rights Council, Report of the independent expert in the fi (...)
- 99 Human Rights Watch, Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh, December 1994.
- 100 Chiragov and Others v Armenia, para. 43, 257.
27The collective right of peoples to self-determination is also interdependent with the right to intangible cultural heritage.97 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.98 In the context of the forced displacement of 30,000 Azeris after the capture of Lachin,99 the Court linked together evidence on the definition of the Armenian “people”, their continuous link with their “home”, their right to return, and their “undisputed ethnic, religious, linguistic and cultural identity and its historical bond to that territory” in order to reach a decision which found a violation of the right to private and family life in the lack of cultural protection.100
- 101 Rome Statute of the International Criminal Court, art. 21(3); Report by the Special Rapporteur in t (...)
- 102 International Covenant on Economic, Social and Cultural Rights, art. 13-15.
- 103 United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, Gener (...)
- 104 International Covenant on Civil and Political Rights, art. 27.
- 105 International Criminal Court, The Office of The Prosecutor, Policy on Cultural Heritage, op. cit., (...)
28Safeguarding of refugee intangible cultural heritage is also the subject of cultural 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, and the right of minorities to enjoy their own culture.101 The ICESCR outlines specific substantive rights to be protected such as 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.102 Further, the right to take part in cultural life covers a positive obligation on states to protect for individuals not only the preconditions for participation, facilitation and promotion of cultural life, but also “access to and preservation of cultural goods”.103 The ICCPR places an obligation on destination states to safeguard refugee intangible cultural heritage, in 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 practise their own religion, or to use their own language”.104 The International Criminal Court considers that attacks on cultural heritage may violate not only international humanitarian and criminal law, but also international human rights law because these attacks destroy conditions that allow people to access, participate in and contribute to cultural life.105
- 106 International Convention on the Protection of the Rights of All Migrant Workers and Members of thei (...)
- 107 International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(e)(vi).
- 108 Convention on the Rights of the Child, art. 8(1), 20, 30.
- 109 Convention on the Elimination of All Forms of Discrimination Against Women, 3 September 1981, art. (...)
29International human rights law instruments around minority rights also grant individual protection to rights to cultural heritage. 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”.106 The 1969 International Convention on the Elimination of All Forms of Racial Discrimination guarantees to everyone the right to equal participation in cultural activities.107 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 to deny “a child belonging to [...] a minority [...] the right, in community with other members of his or her group, to enjoy his or her own culture”.108 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.109
- 110 Human Rights Council, Promotion and Protection of all Human Rights, Civil, Political, Economic, Soc (...)
30The Convention for the Diversity of Cultural Expressions addresses to some extent the question of whose intangible cultural heritage should be the object of safeguarding under international law. There is an inherent tension in applying the Convention for the Diversity of Cultural Expressions to refugees because it may not be clear which “diverse” group they belong or would like to belong to. Particularly for refugees, they have the right to “exit” from an intangible cultural heritage they are associated with as part of being a refugee and if they no longer agree with the values it embodies.110 As such, the parameters of the cultural group can be identified based on the intangible cultural heritage that each refugee identifies with.
- 111 Kalliopi Chainoglu, “The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving t (...)
- 112 Yvonne Donders, “Cultural Heritage and Human Rights”, in Francioni, F. and Vrdoljak, A. F. (dir.), (...)
- 113 International Covenant on Civil and Political Rights, art. 27.
- 114 William Logan, “Playing the Devil’s Advocate: Protecting Intangible Cultural Heritage and the Infri (...)
31The material application of the ICH Convention “extends protection to […] the agents who give life to the intangible heritage in question” and “places the safeguarding of intangible cultural heritage within the basic premises of human rights law, which guarantees the exercise of the right to participate in cultural life; the right to access and enjoy cultural heritage; the right to freedom from discrimination; the right to freedom of thought, conscience, and religion; and the right to freedom of artistic expression and creativity”.111 Although cultural rights and rights to cultural heritage are individual, they have a “strong collective dimension”—explicitly so as “not be denied the right, in community with the other members of their group, to enjoy their own culture” and implicitly in relation to the right to take part in cultural life.112 The right to take part in cultural life has been linked to “the existence of a cultural life linked to a cultural community” as “the right to take part in cultural life can only be enjoyed in the context of a cultural collectivity”.113 The protection of refugee rights to intangible cultural heritage and safeguarding refugee intangible cultural heritage are both interconnected with decision-making power. For refugees to take an active part in cultural life, refugees must have the right to take part in the decision-making process concerning cultural life. All aspects of participation, access, enjoyment, and contribution must be covered to address the obstruction to refugee involvement in decision-making as related to refugee cultural heritage.114 As such, human rights connected with intangible cultural heritage guarantee a freedom to choose a cultural heritage group and to dissociate from another cultural heritage group. Following through with the example of Rohingya refugees, their protection must extend to the safeguarding of the intangible cultural heritage of exile since at least 2017 that includes musical traditions performed by “third gender” artists as a practice of a human right.
Concluding remarks
- 115 Lucas Lixinski, “Moving cultures: Engaging Refugee and Migrant Cultural Rights in International Her (...)
32While international refugee law may not directly address cultural heritage,115 the paper has examined the significance of the refugee definition in international refugee law for refugee intangible cultural heritage in the interpretation of persecution and its grounds. The paper argues that refugee protection extends to the safeguarding of refugee intangible cultural heritage under international law. It then reckons with the implications of this argument on “which” cultural heritage is the object of safeguarding, and whether international law is in effect only concerned with essentialised refugee identities. I proposed that not only do the persecution grounds in the refugee definition link to intangible cultural heritage in such a way that to safeguard it is an extension to the duty of refugee protection, but also that a true interpretation of intangible cultural heritage law addresses implied tensions in covering the intangible cultural heritage of the refugee experience and complements international human rights law to allow refugees to freely identify with a cultural heritage of their choosing. When refugees choose the cultural heritage that they identify with and legal interpretation protects their rights to do so, refugee identities are no longer essentialized to the home country heritage nor persecution grounds—but cover the rich singular experience of every refugee.
33Laying out the legal framework for refugee cultural heritage and rights protection opens the discussion as to whose heritage it is, what enjoying the heritage looks like, who is entitled to this enjoyment, what makes it heritage and whether the meaning of the heritage is static or open to change. Intangible cultural heritage provides a sense of belonging for refugees who face violence, suffering, and changes in cultural practices due to a radical separation from their places and communities of origin. If we were to depart from viewing refugees under a dehumanising label, as we should, then we must appreciate their experiences and fulfil our obligations to protect their rights to whichever intangible cultural heritage they identify with—which may not be linked to a protected ground or to a single understanding of the refugee experience.
Notes
1 Manlio Frigo, “Cultural property v. cultural heritage: A ‘battle of concepts’ in international law?”, art. cit., p. 376.
2 Convention for the Safeguarding of the Intangible Cultural Heritage, 20 April 2006, art. 1, 2.
3 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 18 March 2007.
4 Sherine Al Shallah, “Refugee Protection through Safeguarding Intangible Cultural Heritage of the Home Country and Refugee Journey”, International Journal of Cultural Property, no 30 (3), 2023, p. 280.
5 Convention Relating to the Status of Refugees, art. 1A (2).
6 Elizabeth Holzer, “What Happens to Law in a Refugee Camp?”, Law & Society Review, no 47(4), 2013, p. 837.
7 Erich Hatala Matthes, “‘Saving Lives or Saving Stones?’ The Ethics of Cultural Heritage Protection in War", Public Affairs Quarterly, no 32(1), 2018, p. 68; Robert Bevan, Attacks on Culture Can Be Crimes against Humanity, Art Newspaper, 2016, online: http://theartnewspaper.com/comment/attacks-on-culture-can-be-crimes-against -humanity/; Robert Bevan, The Destruction of Memory: Architecture at War, Chicago, Reaktion Books, 2016; Helen Frowe and Derek Matravers, “Conflict and Cultural Heritage: A Moral Analysis of the Challenges of Heritage Protection”, Paul Getty Trust Occasional Papers in Cultural Heritage Policy, 2019, p. 3, online: https://www.getty.edu/publications/occasional-papers-3/.
8 UNESCO, UN Security Council adopts historic resolution for the protection of heritage (News, 24 March 2017). Online: https://whc.unesco.org/en/news/1648.
9 UNESCO, Karima Bennoune: Cultural heritage is a human rights issue (News, 26 October 2016). Online: https://whc.unesco.org/en/news/1581.
10 Thomas Weiss and Nina Connelly, “Protecting cultural heritage in war zones”, Third World Quarterly, no 40(1), 2019, p. 2.
11 Erich Hatala Matthes, “‘Saving Lives or Saving Stones?’ The Ethics of Cultural Heritage Protection in War”, art. cit., p. 69.
12 UNESCO, Karima Bennoune: Cultural heritage is a human rights issue, op. cit.
13 William Bulow and Joshua Lewis Thomas, “Cultural Heritage Protection and the Reconciliation Thesis”, in William Bulow, Helen Frowe, Derek Matravers and Joshua Lewis Thomas, Heritage and War: Ethical Issues, Oxford, Oxford University Press, 2023, p. 103-104.
14 Ibid., p. 107.
15 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, Durham, Carolina Academic Press, 1997, p. 21; Constitution of the International Refugee Organization, 1947, art. 2 (1) (a).
16 Río Negro Massacres v. Guatemala (Judgment, Preliminary objection, merits, reparations and costs), Inter-American Court of Human Rights, 4 September 2012, para. 153-165.
17 International Criminal Court, The Office of The Prosecutor, Policy on Cultural Heritage, op. cit., p. 26.
18 The Prosecutor v. Ahmad Al Faqi Al Mahdi (Reparations Order), International Criminal Court, Trial Chamber VIII, Case no ICC-01/12-01/15-236, 17 August 2017, para. 85.
19 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art. 1; Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, Oxford, Oxford University Press, 2021, p. 41.
20 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, op. cit., p. 458.
21 Canada (Attorney General) v Ward (La Forest J).
22 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 43; International Convention on the Elimination of All Forms of Racial Discrimination, art. 1.
23 Ian Haney Lopez, White by Law: The Legal Construction of Race, New York, New York university Press, 2006, p. 10; Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p. 95-96.
24 Carola Lingaas, The Concept of Race in International Criminal Law, Milton Park, Routledge, 2020, p. 6.
25 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 2019, para. 68. Online: https://www.unhcr.org/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967.
26 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee (Self-study module 2, 1 September 2005), p. 35.
27 James Hathaway, “The Development of the Refugee Definition in International Law”, art. cit., p. 141.
28 King-Ansell, p. 533, line 50, (Woodhouse J) in Refugee Law Centre, Caselaw on the Refugee Convention: the United Kingdom’s Interpretation in the light of the International Authorities, 31 December 2000.
29 King-Ansell, p. 533, line 50, (Richardson J) in Refugee Law Centre, Caselaw on the Refugee Convention: the United Kingdom’s Interpretation in the light of the International Authorities, op. cit.
30 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 70.
31 Manlio Frigo, “Cultural Property v. Cultural Heritage: A ‘battle of concepts’ in international law?”, art. cit., p. 376.
32 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 44-45; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief, art. 1.
33 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee, op. cit., p. 36.
34 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, op. cit., p. 460.
35 Universal Declaration of Human Rights, 10 December 1948, art. 18.
36 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee, op. cit., p. 36.
37 Ibid.
38 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 71-73.
39 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p. 99-100.
40 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 45; London Borough of Ealing v Race Relations Board; International Covenant on Economic, Social and Cultural Rights, art. 27.
41 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 74.
42 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 75.
43 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee, op. cit., p. 36.
44 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 74-75.
45 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p. 100-106.
46 Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 47; Mirko Bagaric and James McConvill, “Refugee Law: Moving to a More Humane Approach—Ignoring the Framers’ Intentions”, art. cit., p. 120-121.
47 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 74-75.
48 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 78.
49 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee, op. cit., p. 36-37.
50 International Covenant on Civil and Political Rights, 23 March 1976, art. 26.
51 International Covenant on Economic, Social and Cultural Rights, 3 January 1976, art. 2.
52 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, op. cit., para. 78.
53 Guy S. Goodwin-Gill and Jane McAdam with Emma Dunlop, The Refugee in International Law, op. cit., p. 100-106.
54 Manlio Frigo, “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in international law?”, art. cit., p. 376; Guy S. Goodwin-Gill, The Refugee in International Law, op. cit., p. 49; Canada (Attorney General) v Ward.
55 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art. 19.
56 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, op. cit., p. 354.
57 United Nations High Commissioner for Refugees, Refugee Status Determination: Identifying who is a refugee, op. cit., p. 37.
58 Refugee Law Centre, Caselaw on the Refugee Convention: the United Kingdom’s Interpretation in the light of the International Authorities, op. cit., p. 152.
59 Karen Musalo, Jennifer Moore and Richard A. Boswell, Refugee Law and Policy: Cases and Materials, op. cit., p. 354.
60 Claudia Maria Hofmann, “Leitkultur Meets German Angst: On the Role of Values and Needs in the German Debate on the Integration of Refugees”, in Évelyne Lagrange, Stefan Oeter and Robert Uerpmann-Wittzack (dir.), Cultural Heritage and International Law: Objects, Means and Ends of International Protection, New York, Springer International Publishing, 2018, p. 239.
61 French Office for Immigration and Integration, The Republican Integration Contract. Online: https://refugies.info/fr/dispositif/605c972be5424d0014b4c827.
62 Poland: Development of Migration Strategy for 2025-2030, European Website on Integration, 14 March 2024. Online: https://migrant-integration.ec.europa.eu/news/poland-development-migration-strategy-2025-2030_en.
63 Melanie O’Brien and Gerhard Hoffstaedter, “There We Are Nothing, Here We Are Nothing!—The Enduring Effects of the Rohingya Genocide”, Journal of Social Sciences, no 9, 2020, p. 209.
64 Victoria Esses, “Immigration, Migration, and Culture”, Oxford Research Encyclopedias, 28 March 2018; Robert Redfield, Ralph Linton and Melville J. Herskovits, “Memorandum for the study of acculturation”, American Anthropologist, no 8(1), 1936, p. 149.
65 Richard Y. Bourhis, Elisa Montaruli, Shaha El-Geledi, Simon Pierre Harvey and Geneviève Barrette, “Acculturation in Multiple Host Community Settings”, Journal of Social Issues, no 66, 2010, p. 780; Rupert Brown and Hanna Zagefka, “The Dynamics of Acculturation: An intergroup perspective”, Advances in Experimental Social Psychology, no 44, 2011, p. 129.
66 Vienna Convention on the Law of Treaties, art. 31(3)(c).
67 Campbell Mclachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”, International & Comparative Law Quarterly, no 54(2), 2005, p. 279.
68 Convention for Safeguarding the Intangible Cultural Heritage, art. 1,2.
69 Convention for Safeguarding the Intangible Cultural Heritage, art. 2(3).
70 Lucas Lixinski, International Heritage Law for Communities: Exclusion and Re-Imagination, Oxford, Oxford University Press, 2019, ch. 1.
71 Francesco Francioni, “The Human Dimension of International Cultural Heritage Law: An Introduction”, European Journal of International Law, no 22(1), 2011, p. 9.
72 Janet Blake, “Protection of Intangible Cultural Heritage in the Event of Armed Conflict: An Imperative for Cultural Heritage, Humanitarian and Human Rights Law”, Europa Ethnica, no 74(3/4), 2017.
73 Ibid., p. 77.
74 Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage”, International Journal of Heritage Studies, no 16, 2010, p. 1-2, and p. 4-15.
75 Ingrid Burkett, “Traversing the Swampy Terrain of Postmodern Communities: Towards Theoretical Revisionings of Community Development”, European Journal of Social Work, no 4(3), 2001, p. 233-246; Majid Yar, “Community in absentia?”, Res Publica, no 8, 2002, p. 179-198; Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage.», art. cit., p. 1-2, and p. 4-15.
76 Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage”, art. cit.
77 Fraser, Nancy, “Social Justice in the Age of Identity Politics: Redistribution, Recognition and Participation”, in Nancy Fraser and Axel Honneth (dir.), Redistribution or Recognition? A political‐philosophical exchange, London, Verso, 2003; Emma Waterton and Laurajane Smith, “The Recognition and Misrecognition of Community Heritage”, art. cit., p. 1-2, and p. 4-15.
78 Human Rights Council, General Report of the Special Rapporteur in the Field of Cultural Rights: Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 31st session, Agenda Item 3, UN Doc A/HRC/31/59 Distr., 3 February 2016, p. 17.
79 Ibid.
80 Plan de Sánchez Massacre, para. 42(7).
81 Geraldine Chatelard, Survey report: Intangible Cultural Heritage of Displaced Syrians, UNESCO, 2017. Online: https://ich.unesco.org/doc/src/38275-EN.pdf.
82 Janet Blake, “On Defining the Cultural Heritage”, International and Comparative Law Quarterly, no 49(1), 2000), p. 61.
83 United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, General comment 21, para. 11. Online: https://www.ohchr.org/en/resources/educators/human-rights-education-training/i-general-comment-no-21-right-everyone-take-part-cultural-life-article-15-para-1-international.
84 Emma Hill, Máiréad Nic Craith and Cristina Clopot, “At the Limits of Cultural Heritage Rights? The Glasgow Bajuni Campaign and the UK Immigration System: A Case Study”, art. cit., p. 35.
85 Janet Blake, “On Defining the Cultural Heritage”, art. cit., p. 61.
86 Universal Declaration on Cultural Diversity, 2 November 2001, art. 7. (Emphasis added)
87 Emma Hill, Máiréad Nic Craith and Cristina Clopot, “At the Limits of Cultural Heritage Rights? The Glasgow Bajuni Campaign and the UK Immigration System: A Case Study”, art. cit.; Somalia v. Secretary of State for the Home Department.
88 Janet Blake, “On Defining the Cultural Heritage”, art. cit.
89 Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 4 April 2005. Online: https://digitallibrary.un.org/record/547650?ln=en&v=pdf; Ana Filipa Vrdoljak, “Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity”, The European Journal of International Law, no 22(1), 2011, p. 39-40.
90 Human Rights Council, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, 49th session, Agenda item 3, UN Doc A/HRC/49/54. 31 January 2022, Advance Unedited Version, p. 10.
91 Human Rights Council, General Report of the Special Rapporteur in the field of cultural rights: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, 31st session, Agenda Item 3, UN Doc A/HRC/31/59 Distr. 3 February 2016, English Report of the Special Rapporteur in the Field of Cultural Rights, p. 20.
92 Universal Declaration of Human Rights, art. 22. The UDHR is legally binding as a result of its integration in the ICCPR and ICESCR: Alessandro Chechi, “‘Migrants’ Cultural Rights at the Confluence of International Human Rights Law and International Cultural Heritage Law”, International Human Rights Law Review, no 5(1), 2016, p. 40.
93 Janet Blake, “Protection of Intangible Cultural Heritage in the Event of Armed Conflict: An Imperative for Cultural Heritage, Humanitarian and Human Rights Law”, art. cit., p. 80.
94 Universal Declaration of Human Rights, art. 18, 26-27; International Covenant on Civil and Political Rights, art. 18-19; International Covenant on Economic, Social and Cultural Rights, art. 13, 15; Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, Submitted Pursuant to Resolution 10/23, UN Doc A/HRC/14/36, 22 March 2010; International Criminal Court, Policy on Cultural Heritage, op. cit., p. 10-11; Convention on the Rights of the Child, 2 September 1990, art. 28-29; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), art. 9-10; Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1-2; American Convention on Human Rights, art. 12-13, 26.
95 International Covenant on Economic, Social and Cultural Rights, art. 11,13 and 14; United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, General Comment 21, para. 2.
96 Abdi Ibrahim v Norway; Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8.
97 International Covenant on Economic, Social and Cultural Rights, art. 1; United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, General comment 21, para. 2.
98 Río Negro Massacres v. Guatemala; Human Rights Council, Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23, op. cit.
99 Human Rights Watch, Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh, December 1994.
100 Chiragov and Others v Armenia, para. 43, 257.
101 Rome Statute of the International Criminal Court, art. 21(3); Report by the Special Rapporteur in the field of cultural rights, para. 14; Universal Declaration of Human Rights, art. 27(1); International Covenant on Economic, Social and Cultural Rights, art. 15(1)(a).
102 International Covenant on Economic, Social and Cultural Rights, art. 13-15.
103 United Nations Economic and Social Council Committee on Economic, Social and Cultural Rights, General Comment 21, para. 6.
104 International Covenant on Civil and Political Rights, art. 27.
105 International Criminal Court, The Office of The Prosecutor, Policy on Cultural Heritage, op. cit., p. 10-11.
106 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1 July 2003, art. 31.
107 International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(e)(vi).
108 Convention on the Rights of the Child, art. 8(1), 20, 30.
109 Convention on the Elimination of All Forms of Discrimination Against Women, 3 September 1981, art. 13(c).
110 Human Rights Council, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 49th session, Agenda item 3, UN Doc A/HRC/49/54. 31 January 2022, Advance Unedited Version.
111 Kalliopi Chainoglu, “The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving the Boundaries Between the Existing Legal Regimes?”, Santander Art & Culture Law Review, no 2, 2017, p. 3.
112 Yvonne Donders, “Cultural Heritage and Human Rights”, in Francioni, F. and Vrdoljak, A. F. (dir.), The Oxford Handbook of International Cultural Heritage Law, Oxford, Oxford University Press, 2020.
113 International Covenant on Civil and Political Rights, art. 27.
114 William Logan, “Playing the Devil’s Advocate: Protecting Intangible Cultural Heritage and the Infringement of Human Rights.”, Historic Environment, no 22(3), 2009, p. 14.
115 Lucas Lixinski, “Moving cultures: Engaging Refugee and Migrant Cultural Rights in International Heritage Law”, Indonesian Journal of International Law, no 16(1), 2018, p. 1-2.
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Sherine Al Shallah, « Refugee Protection, Safeguarding Intangible Cultural Heritage and Human Rights », Sociétés & représentations, 60 | -0001, 75-94.
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Sherine Al Shallah, « Refugee Protection, Safeguarding Intangible Cultural Heritage and Human Rights », Sociétés & représentations [En ligne], 60 | 2025, mis en ligne le 17 décembre 2025, consulté le 12 février 2026. URL : http://journals.openedition.org/socrep/983 ; DOI : https://doi.org/10.4000/15dh7
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