ABSTRACT
Cultural heritage can be considered as the concrete and supreme expression of the identity of human persons and communities, as well as the inheritance left by each of them to future generations. It contributes to making the passage of individuals and communities in this world meaningful, through maintaining their memory alive. It is what makes each of us unique, priceless, and unrepeatable. It includes the whole complex of values which give significance to life. As a fact, heritage therefore represents a fundamental element characterizing our own existence and distinctiveness. In this respect, heritage has two co-existing dimensions. In its “internal dimension,” heritage is a creative process of the person, developed alone or shared with others, together with the tangible results of such a process, and an interior component of her/his personality. The “external dimension” of heritage is represented by its status of common value from which the human person can benefit as a tool for growth and personal – or “communitarian” – enrichment. As a natural fact of such paramount importance for the human being, heritage should be considered as a fundamental parameter, of both empirical and metaphysical character, to be taken into account – to the extent possible – in the phase of adjudication of the legal situations involving a person. Indeed, law cannot be considered as being fairly applied if in a legal dispute only the “principal” fact(s) is/are taken into account, extrapolated from the “surrounding” elements influencing – and often determining – the ontological reality and idiosyncratic uniqueness of such fact(s). One of the main purposes of law is in fact the achievement of equality among human beings, which – consistent with the famous Aristotelian formula of substantial equality – implies that different persons should be treated differently, in consideration of the diverse factual circumstances characterizing their respective living conditions. This idea is very well entrenched in the context of law in general and international law in particular, as epitomized by the 1935 Permanent Court of International Justice’s Advisory Opinion on Minority Schools in Albania. Heritage is one of the factual circumstances – undoubtedly one of the most important – to which Judge Tanaka of the International Court of Justice referred in his historic dissenting opinion in the South West Africa cases when explaining the meaning of equality and non-discrimination. The fact of whether or not the idea just described is actually translated into the practice of legal disputes depends on the sensibility and capacity of the legal operator (i.e. the judge) to properly perceive the importance of heritage as a fact influencing the determination of law and allowing persons or communities to have their case legally adjudicated consistent with their own expectations, as shaped, inter alia, by heritage itself. This may only be achieved by means of the operation considered by Kelsen as the legal ascertainment of a natural fact, through which the latter is transformed by the judge into a legal fact, being included in the quaestio juris of the dispute and hence becoming a source of “hard law” in the definition of the dispute itself. In this context – of course – heritage may become a legal fact for both (or all) the parties involved in the dispute. In this case, a problem of fairness arises, which puts the judge in the difficult position of carrying out a delicate operation consisting of balancing the specific weight that heritage – as a legal fact – may attain for each (or all) of the parties involved in the dispute. This problem, however, cannot be avoided and is included among the many necessary aspects that a judge is “forced” to deal with when settling a dispute. Obviously, the more heritage is entrenched, as a fact, in one given society, the more it should influence legal disputes involving members of such a society. The influence of heritage as a (natural-turned-into-legal) fact in the determination of international law is epitomized by the progressively growing influence recognized to culture and cultural heritage in the adjudication of human rights – a process which this author has defined as culturalization of human rights law. A formidable example of this process is represented by the jurisprudence of the Inter-American Court of Human Rights (IACtHR) concerning Indigenous peoples’ rights, in the context of which – in synthesis – the fact that a given element is part of the heritage of an Indigenous community, and, a fortiori, an essential element of its cultural identity, usually persuades the Court to consider such an element as a legal fact influencing the interpretation of the legal standards included in the American Convention on Human Rights. In following this approach, the IACtHR allows heritage to become a decisive element in determining the adjudication of (human rights) law and in shaping its effective meaning and contents.
