ABSTRACT
This chapter considers both the human rights law dimension of heritage and the role that heritage plays in protecting and realizing all human rights, comprising cultural rights. It argues that human rights law is central to the legal operationalization of heritage as it responds to the increasing global awareness of the value of heritage for societal relations, intergenerational and inter-community dialogue, development, and peace. Moreover, this particular role of human rights law also reflects an important anthropological shift in legal theory and practice of the expanding field of cultural heritage since the 1970s, at least. Hence, this chapter first explains that although heritage legislation and human rights law have long developed separately, their methodological and practical boundaries have gradually been broken. Accordingly, the underlying doctrinal and historical reasons as well as merely functional premises of the human rights law approach to heritage are scrutinized. Second, human rights that have a direct link with heritage are examined: the rights of access to and enjoyment of cultural heritage. While referring to the practice of international human rights monitoring bodies, with special focus on the mandate and activity of the UN Human Rights Council and the work of the Special Rapporteur in the Field of Cultural Rights, this chapter endeavours to demonstrate how human rights law may today contribute to the protection, enhancement, and enjoyment of heritage, and to the recovery of past cultural injustices and wrongs. Next, it discusses to what extent heritage is or may be considered as a fundamental resource for other human rights, such as freedom of thought, conscience and religion, freedom of expression, and right to privacy and family life. It also emphasizes the core role of heritage in creating the content and scope of group and community rights, particularly the rights of minorities and Indigenous peoples. In this regard, the instrumental role of heritage in ensuring human rights and developing standards of their protection is addressed. The following layer of the discussion offered in this chapter concerns both real and alleged conflicts between heritage and its practices, on the one hand, and the observance and promotion of human rights law, on the other. While referring to the caselaw of regional human rights courts, this chapter explains that the judicial resolution of such conflicts, often perceived as irreconcilable, may have far-reaching (both positive and negative) effects either on heritage and its diversity or on the realization of human (fundamental) rights. This chapter concludes by demonstrating how current international and regional agendas on inclusive, participatory governance of heritage tend to overcome such clashes by offering new spaces for dialogue and cooperation among diverse heritage stake- and right-holders.
