Indigenous Cultural Heritage In Europe

Introduction

This report presents a discussion on the issue of cultural heritage of the indigenous peoples and discusses how effectively the regional systems of Europe are indigenous rights in this context. At the outset, it needs to be mentioned that indigenous and non-indigenous people formulate knowledge about culture and cultural heritage in different ways; indigenous culture is usually best expressed by those who experience it as their own culture. Indigenous epistemology is unique in that it is derived from the fact that indigenous cultures are “living cultures”. This unique aspect of the indigenous culture deserves special consideration from the perspective of indigenous cultural heritage.

The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2003 defines cultural heritage as “practices, representations, expressions, and knowledge recognised by communities and groups as part of their cultural heritage”. The key concept in this definition is that it is the communities and the groups that can define their cultural heritage. In other words, any discourse on cultural heritage also involves important issues of representation of the issues of cultural heritage.

Cultural heritage is an important issue and theme in the protection of rights of indigenous people and it is a theme that is common to indigenous people concerns in different parts of the world. Also attached to the issue of cultural heritage is that of representation of indigenous peoples in the discourse on cultural heritage. The related themes are those of autonomy and self-determination, which play a role in how cultural heritage of the indigenous people is defined and the protective mechanisms in international and regional systems created. These themes have gained significance in the postcolonial world where the critique on appropriation of cultural heritage discourse has become significant.

Cultural heritage of the indigenous people is a complex area of discussion because it includes both tangible and intangible cultural heritage. There is now an increasing consciousness about the way cultural heritage cannot be limited to tangible cultural heritage, which consists of material property like buildings or works of art, and are easily identifiable as cultural heritage. Cultural heritage also includes intangible cultural heritage, which is not easy to define, and is difficult to identify because it is not material in nature. This is the reason why the autonomy, self-determination and the representation of the indigenous people becomes relevant because it is only the concerned indigenous communities that can be involved in identifying the intangible cultural heritage.

Cultural heritage and its protection has gained much in importance in the postcolonial world, especially with respect to the cultural heritage of indigenous peoples who are considered to be vulnerable populations. The United Nations General Assembly Declaration on the Rights of Indigenous peoples 2007 is an example of international law measures on protection of indigenous peoples’ rights. Some of the important provisions of this treaty relates to the protection of the right of indigenous people to safeguard their language, culture and religion. These are aligned to cultural rights of indigenous peoples and mark the significance of the cultural heritage of the indigenous people.

Preservation of cultural heritage of the indigenous peoples may also be linked to the right to development of the indigenous peoples. The UN Declaration on the Right to Development defines development “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development.” The UN Declaration on the Rights of Indigenous People mentions in its Annex that it recognises the “urgent need to respect and promote” the rights of indigenous peoples that derive, inter alia, “from their cultures, spiritual traditions, histories and philosophies.”Article 11 of the Declaration on the Rights of Indigenous People specifically mentions the right of the indigenous people to protect “past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.” Therefore, cultural heritage includes a variety of cultural properties that are to be protected.

The starting point of how these rights can be ensured is however the identification of the indigenous identity so that those whose rights are safeguarded in this context can be identified. It is important to define and identify indigenous peoples because that is the starting point for commencing a global perspective on indigenous peoples’ development, after which point data and its representability can be considered with respect to indigenous people’s cultural heritage. Defining indigeneity is required for the purpose of empirical assessment in this area. However, it has been a complex exercise to define indigeneity. Different international institutions have attempted to define indigeneity; for instance, the International Labour Organization Convention on the Rights of Indigenous and Tribal Peoples, which was adopted in 1969, defined indigenous or tribal peoples as those that can be distinguished from the rest of society on the basis of their social, cultural and economic conditions. There are many countries around the world that identify the indigenous peoples in their territories. For instance, Nepal identifies more than 61 categories of indigenous peoples. New Zealand identifies Maoris as indigenous. Indigenous identity has also been defined as follows:

“indigenous identity arises contextually as a part of a series of nested dichotomisations in relation to the social distance between oneself and one’s interlocutors. Unlike these other identities, however, indigenous identity is an apical and universal category that subsumes others within it – without however challenging or diluting their identity their integrity or existence.”

As the “social distance between oneself and one’s interlocutors” is one of the aspects of indigenous experiences in articulating their identity and articulating their ideas of culture and heritage, the issues of representation, autonomy and self-determination become central to any legitimate discourse on cultural heritage. There is a binary involved in indigenous identity because the identity itself is articulated by those who espouse it by placing everyone else who are not recognised to have that identity to be outside the indigenous group, thereby creating a social distance mentioned above. This social distance becomes problematic because in many instances, indigenous people articulate their concerns through interlocutors. When seen against the background of colonialism and the existing relationships of power between the colonisers and the colonised, the social distance is problematic because the dominant representation of indigenous culture has been made by those who are outside the group.

Representation of indigenous people has also been complicated by the fact that the period of colonisation saw the creation of dominant discourse on indigenous culture developed without the actual representation of indigenous groups as the latter was thought to be incapable of representing themselves:

“The juggernaut of modern society, by its very nature and often by design, has moved to extinguish the indigenous voice. Its language, institutions and rituals have become dominant. Modernity’s law in particular has imprinted itself on indigenous peoples, following the sword of conquest and the ratio of innovation in the Western hemisphere and beyond. Its domination of indigenous ways of life was, in some ways, to be expected.”

The current international law emphasis on representation of indigenous people has to be seen against the background of colonialism and the loss of representation of cultural heritage that divested indigenous people of control over their own culture and heritage. An important point in the discourse on cultural heritage of the indigenous people is that of the impact of ‘Western’ notions of intellectual property with a focus on tangible cultural symbols, which takes away from the intangible cultural property. Examples of the creation of a dominant discourse on indigenous culture can be related to the representation of the cultures of the Aboriginal people in Australia and Canada, and the Maori in New Zealand; these peoples were at one time were colonised by Western countries and notions of cultural heritage have been represented in the Western scholarship. These notions may neglect the intangible heritage. Cultural heritage of the indigenous people also involves songs, fables, stories, and other immaterial properties of the indigenous peoples, which cannot be explained from the perspective of the Western notions of scientific identification of cultural property but has to be left to the people who may express their cultural heritage. This is so because cultural heritage has a deep connection with the identity of the group that owns that heritage.

One of the tasks for international law has been to respond appropriately to the appropriation of the heritage of indigenous groups through relationships of power. International law, such as that which is contained in the United Nations General Assembly Declaration on the Rights of Indigenous peoples 2007, responds to this by treating right to cultural heritage as part of human rights of the indigenous peoples. Another measure of international law is to link right to cultural heritage with right to self-determination. By treating self-determination claims as the first step for preserving autonomy of the indigenous people and protection of their indigenous culture, the international law recognises the fact that it is only the indigenous people who can determine their intangible and tangible cultural heritage. The International Covenant on Economic, Social and Cultural Rights 1966 is one of the international law measures that recognises this link between culture and self-determination in Article 1.

The Treaty of Waitangi between the British Crown and the Maori peoples is another example of the recognition of the link between the right to self-determination and preservation of culture. However, the Treaty of Waitangi aside, there have been serious transgressions against Maori culture once the British established their government in New Zealand. One of the examples of transgressions can be found in the English language policy of the New Zealand government in the native schools of the 1930s and 1940s, when punishments were meted out to students speaking in Maori so as to ensure that they would speak in English. Clearly, the objective of this policy was to decrease the significance of the Maori languages and increase the use and significance of the English language. Language being one of the aspects of cultural heritage, this experience in New Zealand indicates the influence of colonisation on the cultural heritage of the indigenous peoples. There are other similar examples which provide a sobering reflection on how far colonisation had impacted the indigenous societies around the world. In New Zealand, a policy of assimilation was implemented by the government between 1847 to 1960, which saw the placing of Maori children in extended families. Apart from a language policy, the assimilation policy involved placing of children in non Maori homes to bring the Maori culture in close contact with the Western culture. It is only in the 1960s, that an integration policy was adopted to ensure the safeguarding of the cultural and social independence of the Maori.

A process of assimilation was also followed in Australia with respect to Aboriginal peoples of that country, with the purpose of assimilating the Aboriginal with the dominant White group. The Australian government followed the policy of assimilation which also involved the placing of Aboriginal children in foster care or White families so as to ensure this assimilation; this had an impact on the cultural practices and values of the Aboriginal people. There was a definite negative impact of the assimilation policy of the Australian government on the Aboriginal cultural heritage of the Aboriginal people.

Often the representation of the culture of the indigenous peoples is made from the dominant Western point of view, which may misrepresent the culture or stereotype it. For instance, a dominant representation of indigenous culture may be created for the purpose of stereotyping the culture for the purpose of developing it as a commodity. This is noted by a writer with relation to the New Zealand tourist culture and the misrepresentation of the same: “there was a time when foreigners would have been excused for thinking, by posters and videos they saw, that New Zealand existed solely of flax-skirted Maori jumping in and out of steaming pools.” This is the commodification of culture of the indigenous community for the purpose of profit or gain and such commodification is also a threat to indigenous cultures and peoples. The binary worldview with which outsiders may consider local communities and indigenous cultures is also a theme in discourse of protection of indigenous culture.

International law has come to gradually recognise the rights of indigenous people as belonging to the domain of international law of human rights. For the purpose of protecting cultural rights and cultural heritage specifically, the international law has taken an approach that takes into consideration the concept of intangible cultural heritage. This is clear from the General Comment 23 (1994): “With regard to the exercise of the cultural rights protected under Article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples.”

The European regional system has created a human rights framework within which the rights of indigenous people are also protected. The principal instruments of this framework include the Eurupean Convention of Human Rights (ECHR) and the Framework Convention for the Protection of National Minorities 1995. The rights protected under the ECHR and the enforcement mechanisms of the ECHR, which includes the jusrisdiction of the European Court of Human Rights (ECtHR) has been employed by indigenous communities in Europe to claim certain protections for their rights. At the same time, the Framework Convention for the Protection of National Minorities also includes a reporting mechanism which has been used by indigenous people to report violations of their rights by national governments. There are indigenous groups in Europe, notably in Eastern Europe and Northern Europe. These indigenous groups are subject to the mechanism of the European instruments on human rights like the ECHR.

Consequently, questions regarding ethnic indigenous identity and cultural rights of the indigenous peoples in Europe have come before the ECtHR from time to time. An early example of such a case is the case of Ahmet Sadiq v Greece, in which case the petitioner, a candidate in Greece elections, had published communiques referring to the Turkish minority in Greece instead of Greek minority of Muslim faith. The Greek Court of Cassation came to the conclusion that there are no Turkish minorities in Greece. Although, the case was not heard by the ECtHR due to the issue of non-exhaustion of domestic remedies, a dissent was issued by Judges Martens and Foighel, in which they emphasised that the essence of this case was the rights of the minorities in which the judgments of the even the national courts could not be relied upon. In Sidiropoulos v Greece, the ECtHR noted that the existence of indigenous and ethnic minorities are historical facts that cannot be denied by any state where such minorities do exist and that their rights have to be protected by the state as per the provisions of the ECHR. In this case, the petitioners were not allowed to register a non-profit under the name “Home of the Macedonian Civilisation”, which was challenged under Artice 11 of the ECHR, which provides the freedom of association.

One of the important provisions in ECHR that goes to protect the rights of the indigenous minorities is contained in Article 14, which reads as follows:

In the case of Belgian Linguistics Group, the ECtHR had the opportunity to explain the nature of the rights covered under Article 14 with an emphasis on treatment of different linguistic groups by noting that “the principle of equality of treatment is violated if the distinction has no reasonable or objective justification.” Thus, from very early on, the ECtHR has come to recognise that there can be differential treatment given to different language groups in a country, which can be justified only through reasonable and objective justification. Nevertheless, linguistic rights are not protected to a great extent under the ECHR, which may be a gap in the convention with respect to indigenous rights. Article 6.3e does provide the right to assistance from interpreter in case the accused cannot understand the language of the court, but there is no right to use language as a choice.

Article 3 of the ECHR protects the right to dignity; it provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This right to dignity may have special connections to the rights of indigenous peoples. In Kalderas Gypsies v Federal Republic of Germany and the Netherlands, forty eight Kalderas Gypsies belonging to Germany and the Netherlands were refused identification papers by their respective governments. The court held that such refusal may be a violation of right to dignity protected by Article 3 and discriminatory as per the provisions of Article 14 of the ECHR. Article 3 was also employed in another case involving Bulgarian Roma community members in the case Assenov and others v Bulgaria, in which the petitioner claimed to be ill-treated by the police after arrest and that the Bulgarian authorities did not carry out any investigations into the allegations of ill-treatment. The ECtHR considered this to violate Article 3 of the ECHR and also held that Article 13 has been violated. Article 13 protects the right to an effective remedy, which the court in this instance held to have been denied to the petitioner by the failure of the Bulgarian authorities to conduct investigation.

While the European regional mechanisms do provide the right to education, including education in conformity with one’s religion or philosophical convictions in Article 2 of the Protocol I, the court has held that this right does not create any obligation of the state to provide religious or philosophical oriented education at its own expense. In Cyprus v Turkey, the European Commission did however broaden the scope of Article 2 of Protocol I. In this case, some schools in northern Cyprus were providing English or Turkish as medium of instruction. Greek Cypriots could take admission to these schools but they had to choose one of the two languages as their medium of instruction. The background of this issue also included allegations that the authorities had either abolished Greek Cypriot schools in the past or they had not allowed such schools to come up in the present, which led to a situation of a complete absence of schools that offered Greek Cypriot as the medium of instruction. This was held by the Commission to be denial of the substance of right to education, which includes education that relates to religion and philosophical convictions.

Indigenous cultural and cultural heritage may also be closely linked to the religion of the group. In this context, Article 9 of the ECHR becomes relevant. Article 9 protects the freedom of thought, conscience and religion and the right can be exercised “either alone or in community with others”, which indicates that this is a communal and group right. In X v UK, the court had held that the state cannot reduce Article 9 right to religion to be a purely private activity. In Serif v Greece, the issue of autonomy of a minority religious group came into focus, in which case the court held that the state cannot interfere with the autonomy of the religious group.

It may be recalled from the discussion in the previous section that the right to autonomy is closely linked with the protection of the rights of indigenous people to their cultural heritage. Cases like Serif may not be directly linked to the protection of cultural heritage of the indigenous people, but they lay down principles that can be applied in cases pertaining to the indigenous people’s rights to cultural property and heritage, which includes, language and religion as well. There is a close interlink between language, religion, and the indigenous peoples’ rights as discussed in the previous section. The cases that have been discussed so far with respect to the European system, indicate that there is a strong base for protection of indigenous rights to cultural heritage, which includes autonomy and self-determination to determine the nature of such cultural heritage.

Right over property is also an essential component of the rights of indigenous peoples’ to their cultural heritage. Article 1 of the Protocol I to the ECHR protects the peaceful enjoyment of possessions and property. A case involving the indigenous Saami people brought the attention to the right to property from an indigenous perspective. This case involved the question of hunting and fishing rights of the Saami peoples in the area by the Swedish authorities who had passed some regulations restricting the hunting and fishing practices. The Saami claimed exclusive hunting and fishing rights in the area, while the regulations passed by the Swedish authorities aimed to give wider public access to hunting and fishing in the region. The European Commission held that reindeer hunting, fishing, and hunting were fundamental elements of the Saami culture and that the right to hunt and fish could be regarded as possessions within the meaning of Article 1 of the Protocol I. Although the Commission could not finally decide on the nature of the exclusive right of the Saami people in this case due to admissibility issues, the case is important in showing the interpretation of the word possessions can be done from an indigenous perspective where hunting and fishing rights can be considered to be possessions based on the link between these activities and the culture of the peoples. It may be noted that for the indigenous people, there is a close link between land and culture, as noted by one commentator as follows:

Compared to the UN system, the European regional system lags behind in the protection of indigenous cultural heritage because there are no indigenous rights specific instruments in Europe, while UN has already adopted the United Nations Declaration on the Rights of Indigenous Peoples 2007. Moreover, many states in Europe are yet to ratify the ILO Convention No. 169. Therefore, what is seen in the European system is the “eclectic interpretations of human rights conventions which protect certain minority traditions, as in the jurisprudence of the European Court of Human Rights regarding the Roma, and there have been specific treaties, albeit not widely ratified, which protect indigenous peoples.” Till such time that treaties are adopted specifically for the protection of indigenous rights, those who belong to these groups will have to depend on the provisions of the ECHR.

Conclusion

Indigenous rights, particularly rights related to cultural capital and cultural heritage have come to be recognised in international law through a number of treaties. Cultural heritage includes both tangible and intangible cultural heritage. The arbiters of what this heritage means are the indigenous groups themselves. Through a process of colonisation, indigenous groups had lost their representation, self-determination and autonomy, which are essential to represent their own culture and its icons and heritage. The international law seeks to correct this situation by recognising autonomy and self-determination as essential components of protecting cultural rights. The ICECSR is one of the important declarations in this regard. The European regional system does not have specific instruments for protecting the rights of indigenous people, but the ECHR has been engaged on a number of occasions for this purpose. The treatment of these cases however remains eclectic at this point.

Cases

• Ahmet Sadiq v Greece No. 18877/91, Judgment of 15 November 1996.
• Belgian Linguistics Group Judgment of 23 July 1968.
• Isop v Austria, Appln. No. 808/60, 5 YBECHR (1962).
• Kalderas Gypsies v Federal Republic of Germany and the Netherlands No 7823/ 77 and 7824/77 , 11 DR (1977) 221.
• Konkama and 28 other Saami Villages v Sweden No. 27033/95, DR 77/78.
• Serif v Greece No. 38178/97, Judgment of 14 December 1999.
• Sidiropoulos v Greece 57/1997/841/1047, Judgment of 10 July 1998.
• X v UK No 8169/78, DR 22 (1981).

Journals

Lenzerini F, ‘Intangible cultural heritage: The living culture of peoples’ (2011) 22 (1) European Journal of International Law 101.

Paterson RK and Karjala DS, ‘Looking beyond intellectual property in resolving protection of the intangible cultural heritage of indigenous peoples’ (2003) 11 Cardozo J. Int'l & Comp. L. 633.

Schwartz SJ, Unger JB, Zamboanga BL and Szapocznik J, ‘Rethinking the concept of acculturation: Implications for theory and research’ (2010) 65 (4) American Psychologist 237.

Ughi C, ‘The “Right to Development” of Indigenous Peoples: A Critical Approach Through a Comparative Study of Cases Brought Before the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights’ (2012) 9 The BSIS Journal of International Studies 78.

Wiessner S, ‘The cultural rights of indigenous peoples: achievements and continuing challenges’ (2011) 22 (1) European Journal of International Law 1219.