2. The Authorized Heritage Discourse and the Role of Expertise in Heritage Regime Making

Experts play a key role in determining what is relevant in a certain field of knowledge. Expertise is a discourse, and according to Foucault, discourses do not simply reflect their objects of analysis, but in fact create them, and in the process position and license certain people to speak about it at the expense of others.^{Footnote 6} Additionally, the language—the professional grammar in which these things are expressed—contains within itself the tools for its proliferation.^{Footnote 7} In other words, and using the cultural heritage example, cultural heritage experts not only describe what cultural heritage is, they also in fact create (or destroy) heritage by their affirmation that something does (or does not) qualify as “heritage.” By creating the category of heritage, they offer cultural manifestations a second life as representations of themselves.^{Footnote 8} In a play between utopia and the territorialization of heritage appears the expert, the savant, specialized in humanities, asked to advise and direct.^{Footnote 9}

Heritage is defined and governed by philosophies that go back to a specific Euro-American way of imagining the relationship between the past and the present, and a late-modern obsession with vulnerability, uncertainty, and risk.^{Footnote 10} These philosophies, while originating historically for the most part from laypeople,^{Footnote 11} have since been captured by experts, who are the official spokespeople for what heritage is and what it should mean. The risk of losing our heritage, our memory, is calculated and defined by experts, who make that risk manageable.

This is the basic premise behind Laurajane Smith’s critique of the AHD. According to her,

The AHD is thus a self-referential discourse that engenders a set of consequences. Mainly, the AHD needs to establish its own reality and thus create its own boundaries. One of these is the disconnection of heritage from the present and present-day values. The other is that heritage passes on to the near-exclusive domain of experts in determining the meaning and nature of heritage.^{Footnote 13} Even in early efforts to institutionalize heritage, experts assumed a prominent role. For instance, in the U.S. National Park Service, the figure of the “park ranger” was from the beginning the sole interpreter of the material traces of human and natural history, and the only one capable of translating them to tourists. The past and nature thus became separate from the people visiting the parks and needed to be translated in terms ordinary citizens could understand.^{Footnote 14}

What the AHD means for international law is the transposition of the basic claims and assumptions of the AHD to the legal-institutional level through UNESCO and the many instruments adopted under its umbrella. Law drafted due to the encouragement of experts tends to rely on experts for its own drafting and, consequently, for its implementation, enabling experts to create self-perpetuating mechanisms to ensure their own relevance and the relevance of their espoused views. Importantly, too, expert rule, while giving experts the prerogatives, exempts them from responsibilities, rendering them virtually unaccountable, and their actions not susceptible to challenge.^{Footnote 15} They lay down the rules, but it is up to states and other actors to implement them.

Importantly, expertise does not seem to be the driving motor at the beginning of international law making in the heritage field. Shortly after the creation of UNESCO, archival documents show that it was local citizen associations and even consortia of city mayors who were pushing for the implementation of UNESCO’s cultural mandate in the heritage field.^{Footnote 16} It was only later on, when the Cold War gained momentum and UNESCO needed to be de-politicized, sanitized, and “scientificized,” that communities were pushed aside, and “neutral” experts who could “discipline” the political unevenness of heritage into a normalized field became the central figures of the heritage process.^{Footnote 17} The scientification of heritage work also meant that the need for preserving heritage could be conveyed to a broader, global audience. The international heritage system is also partly set up in ways to route around political problems, to avoid international law being involved in disputes over ownership, territory, and property. Thus the values of the law in this moment work to distance the community actors, because as nonexperts they will want to articulate much broader claims about their rights as particular people, rather than one single claim about the abstracted heritage of humankind. The subsequent growth of international human rights law—and its collusion with international heritage law—has worked as an avenue to address many of these grievances, but one that is not built into heritage mechanisms.

The first international campaign to safeguard heritage is an example of what the move towards technique over politics meant internationally. This campaign, concerning the construction of a dam on the Nile and the subsequent flooding of a large area of Egypt containing a significant number of artefacts, monuments, and buildings, was deemed a success of preservation efforts because it was driven by archaeologists. It was also a success because international donor money for the excavations was justified by a simple quid pro quo: access would be granted to the site for excavation, and exactly half of the excavated material would be transferred to Western museums and research institutions. As a result, entire temples were moved to museums in New York, Leiden, Madrid, Turin, and West Berlin. In order to justify moving the relics away from the Egyptian people, more than curiosity (and certainly more than “selfless altruism”) had to be at stake: The science of archaeology was the answer, that is, the reason why Westerners should be granted access to (and property rights over) Egyptian artefacts that only meant something culturally to Egyptians themselves, even if the meaning was largely generated only by the act of excavation.^{Footnote 18}

In addition to the 1954 Hague Convention (examined below), other early international instruments on heritage conservation such as the 1964 International Charter for the Conservation and Restoration of Monuments and Sites (better known in heritage circles as the Venice Charter), adopted by International Council on Monuments and Sites (ICOMOS), set the tone marking the shift from community-driven heritage protection to expert rule. The Venice Charter, drafted primarily by archaeologists and a landmark in international heritage law, is essentially an agreement on technical standards that skips altogether the discussion about the meaning of conservation practices.^{Footnote 19} The political left the field of heritage and came back only much later, through experts from disciplines other than archaeology, such as anthropology and the then nascent “area studies.” By then, though, the foundations of “heritage” as a field, discourse, and analytical category had already been laid down, and attempts to repoliticize the field were made more difficult by the need of anthropology to justify itself as a “scientific” discipline. Anthropologists became hostages to the same notion that, in order to justify themselves, they needed to become experts in much the same way as the archaeologists with whom they now shared the field. International heritage law thus became by and large the product of “apolitical” expert rule.

The inevitable consequence of a heritage governance system that privileges expert rule is that other stakeholders, in particular cultural owners themselves, are excluded. And cultural owners, while often connected to and proud of their own heritage, also have other interests in heritage conservation beyond conserving heritage for heritage’s sake, or may also have other interests altogether that take precedence over heritage. One example is the well-known destruction of the Bamiyan Buddhas in Afghanistan by the Taliban regime in 2001. It has been stated that the destruction of these statues marked a turning point in the decision to invade Afghanistan and overthrow the Taliban regime. It has also been stated that “[t]he act of destroying the statues came to be viewed as an explicit defiance of international conventions and a form of symbolic violence that was directed at the world’s heritage, and hence at the whole world.”^{Footnote 20}

And, while the predominant narrative about the destruction of the Buddhas states that they were destroyed out of religious intolerance (after all, the Buddhas stood defiantly as symbols of a religion of infidels),^{Footnote 21} an alternative account by Sayed Rahmatullah Hashimi suggests that the statues were destroyed instead because of the reluctance of international (heritage) bodies (more specifically, the UNESCO delegation in Afghanistan to investigate the destruction of artefacts in the Kabul Museum) to perceive interests other than those of heritage conservation:

Granted, the mandate of the organizations offering money for the conservation of the statues only allowed them to do that, but that is precisely the problem. By foregrounding only the preservation of heritage in the terms established by experts, without regard for the aspirations of the communities affected, the regime neglected background conditions that were necessary for creating an environment conducive to preserving relics of a past that had little to no cultural meaning in that community’s everyday life. Instead, a situation was created in which the statues had an effect on that community’s life, but a negative one, that needed to be eliminated. Further, the reality of this localized conflict and its history also created the institutional need for culture experts to “decode” the context, and the context was decoded in the experts’ vocabulary, backfiring in the worst possible way from the experts’ standpoint.

Leaving aside these anecdotal examples, how has expertise been built into the constitutive rules of international heritage regimes? Are these regimes in fact tied to the AHD, as I suggest, and, if so, to what extent? The next section explores these issues.

3. Expert Rule in International Cultural Heritage Regimes

Cultural heritage instruments under UNESCO all offer some degree of deference to expert rule. The Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention), for instance, determines that personnel engaged in the protection of cultural heritage are to be respected and allowed to continue their work even if they fall into enemy hands.^{Footnote 23} This broad protective measure for cultural heritage experts already points out to the importance of expert rule in the regime. Expertise becomes central to this system 45 years later, when the Second Protocol to the Hague Convention was approved.^{Footnote 24} When describing the requirements for granting enhanced protection for certain cultural heritage, the Second Protocol highlights the role of experts in proposing properties for inclusion in the enhanced protection list.

Enhanced protection is granted only to “cultural heritage of the greatest importance for humanity,”^{Footnote 25} and it is up to experts or states (the latter being validated by the Committee for the Protection of Cultural Property in the Event of Armed Conflict that is established by the Second Protocol, which is also composed of experts “qualified in the fields of cultural heritage, defense or international law”)^{Footnote 26} to determine what that is.^{Footnote 27}

Experts thus operate at least on the same level as states (arguably, a level above, seen as experts also form the committee, which is the single decider of what heritage qualifies for enhanced protection) in delineating the scope of application of the provisions of the Second Protocol, and ultimately determine what cultural heritage is for the purposes of the law. Even if those experts are nominated by states, and act in the role of state representatives, they are still experts as opposed to delegates.^{Footnote 28} This choice represents a compromise in the negotiations of the Second Protocol, which oscillated between a pure expert body and a pure intergovernmental committee.^{Footnote 29}

The World Heritage Convention,^{Footnote 30} perhaps the central instrument regarding heritage protection in the UNESCO system, is also very deferential to expert rule. The preamble mentions that protection cannot be complete without the use of experts, and that it is essential that protection mechanisms be “organized on a permanent basis and in accordance with modern scientific methods.” The convention was drafted with the advice of the ICOMOS,^{Footnote 31} a leading NGO of cultural heritage experts. Having been drafted by experts, it is only natural that the role of experts is central to the operation of the instrument. Even though the convention attributes to the State Party the primary duty of identifying cultural heritage properties situated in its territory,^{Footnote 32} and of protecting heritage, the protective duties are expected to be discharged through scientific and technical assistance.^{Footnote 33} Little to no mention is made to community involvement in protecting heritage, and, more specifically, in determining what their heritage actually is. While Article 5, on the measures for the protection of heritage, does mention the need to adopt policies aiming “to give the cultural and natural heritage a function in the life of the community” in its first paragraph, the remaining four paragraphs refer to the importance of expertise and expert training,^{Footnote 34} which shows an imbalance in how experts and cultural owners are perceived in the international legal process of heritage protection.

Also significantly, the World Heritage Committee, the main administering body responsible for the implementation of the World Heritage Convention, is composed of representatives of States Parties assisted by NGOs composed of experts in cultural heritage issues, with grassroots organizations largely excluded from the process.^{Footnote 35} The same can be said of the secretariat, the bureaucratic arm of the World Heritage Convention, which can be assisted by expert NGOs, but seemingly not by grassroots organizations.^{Footnote 36} Even States Parties are encouraged, in their activities to implement the convention, to bring together their own experts and expert representatives from other bodies.^{Footnote 37} The committee relies on these expert NGOs for decisions going from inscription on the World Heritage List (which, according to the Operational Guidelines to the convention, must be based on “objective and scientific considerations”)^{Footnote 38} to the discharge of funds for heritage protection assistance.^{Footnote 39} These funds, incidentally, may be used only for activities aimed at generating or consolidating cultural heritage expertise.^{Footnote 40} One of the few mentions to community involvement in the world heritage system is the idea of local communities acting as “partners” in the protection and conservation of world heritage.^{Footnote 41} It is telling that communities are not mentioned as having anything to do with the process of actually indicating what the world heritage actually is. In this way, the World Heritage Convention ends up creating a cultural and discursive climate in which expert values and ideologies become dominant in determining cultural development and change.^{Footnote 42} Local communities are only marginally involved in the process, in an almost tokenistic fashion.

The 2001 Convention on the Protection of the Underwater Cultural Heritage,^{Footnote 43} in turn, does not consider community involvement at all and is purely an expert-driven instrument. The main governing body of the convention is the Meeting of the State Parties, which has created a Scientific and Technical Advisory Body, composed solely of experts, whose function is to implement the rules annexed to the convention.^{Footnote 44} These rules further reinforce the exclusivity claim of experts over the realm of underwater heritage, by containing rules dedicated to archaeological exploitation of this heritage, and imposing high thresholds of technical knowledge for access to heritage. Even the cultural connections to heritage are to be documented through strict regulations overseeing scientific activities.^{Footnote 45} A recent recommendation by the Advisory Body on the inclusion of NGOs in the implementation of the convention recommends that only NGOs with proven “competence, expertise and experience” in underwater cultural heritage be allowed to participate, thus excluding NGOs who might have experience with underwater heritage, but lack expert backing to direct the meanings that can be attributed to underwater heritage.^{Footnote 46}

The preamble of the Underwater Heritage Convention mentions “the public at large” as a party whose cooperation is essential in the protection of this type of heritage, but the actual text of the convention does not mention the participation of communities or “the public,” restricting itself to the setting up of means for expert action to protect underwater heritage by conserving it preferably in situ, and access by nonexpert actors is deemed acceptable only to the extent it is nonintrusive.^{Footnote 47} In this way, underwater heritage is actually frozen and stripped of any possible meaningful cultural connection to local communities. Heritage is to be appreciated from a distance, not to be interacted with, not to be really experienced, but just gazed at. States can claim a stake on underwater cultural heritage by proving cultural, historical, or archaeological ties,^{Footnote 48} but it is still the state’s prerogative to make the actual claim, and nowhere in the instrument or the recommendations of the advisory body is it indicated that communities are to be involved in this process.

Finally, the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 (ICH Convention)^{Footnote 49} is the most recent key instrument under UNESCO relating to cultural heritage.^{Footnote 50} It came largely in response to claims that attacked the monumentality of Western heritage and is meant to be more inclusive and less oriented towards “outstanding value,” and to give primacy to the “representativeness” of heritage. The ICH Convention emulates the listing mechanism of the World Heritage Convention and ends up replicating the biases of that instrument with regards to implementation. Even though community involvement is an important part of the system created by the 2003 Convention,^{Footnote 51} in practice, it has not lived up to its promise in the early years of the implementation of the instrument.^{Footnote 52}

According to the Operational Directives of the convention, States Parties should consult not only communities, groups, and individuals who are bearers of ICH, but also experts and research institutes. States Parties are encouraged to create consultative bodies to bring together communities and experts to help in the identification of ICH, the drawing of inventories, and the preparation of nomination files, among other activities.^{Footnote 53}

This is an important shift from the original text of the convention, which did not really speak about expert participation in the implementation of the convention. It is seen, however, as an important element, since one of the great shortcomings of the convention is precisely the lack of expert knowledge on intangible heritage. The Subsidiary Body on Modalities of Participation has studied the matter and concluded that communities must be returned the research results of work on ICH.^{Footnote 54}

Article 15 of the ICH Convention determines that, at the national level, communities, groups, and individuals concerned with intangible heritage shall participate in policymaking regarding and management of their own intangible heritage. While this is a valuable development, this inclusion is limited to the national level (where there is much less international control and less uniformity of practice), and it does not necessarily compensate for the overall exclusion of community input during the drafting of the convention and its safeguarding system.

Janet Blake, in her study that served as the basis for the drafting of the ICH Convention, highlighted the importance of involvement of communities in the implementation of the convention.^{Footnote 55} According to the convention and the early practice under it, however, community participation is restricted to the national level, and communities seem to not have a space at the international level of implementation of the convention. Instead, it seems that communities are replaced by experts at the international level. Bulgaria has warned against this shift and called attention to the need to preserve communities as the essential nonstate actor in terms of ICH safeguarding.^{Footnote 56}

Such shift refers back to the AHD, which is perpetuated by the prominent role of heritage professionals over that of heritage bearers. This differentiation between communities and experts has been supported by several states, most notably Norway. According to the Norwegian delegation during the negotiations of the ICH Convention, communities must be excluded from participation at the international level because they lack the required expertise to contribute effectively to international cooperation and should thus have the primary role to perform, maintain, and distribute ICH, but at the local or national level.^{Footnote 57} Further, experts would have roles to play both at the national and international level, while communities would be restricted to the national level.^{Footnote 58}

The Intergovernmental Committee responsible for implementing the ICH Convention has adopted a text on modalities of participation of communities and experts.^{Footnote 59} Communities, groups, and individuals may be called by the committee to play a role in the following instances: (1) consultation for the inscription in one of the lists, (2) evaluation and selection of best practices, (3) provision of experts and practitioners to evaluate requests for international assistance, (4) evaluation of status of safeguarding of elements concerning them, (5) preparation of documents on manifestations of ICH concerning them, and (6) the establishment of operational directives for the implementation of the convention.^{Footnote 60} Regarding experts, on the other hand, their role includes the following functions: (1) evaluation of nomination files for inscription on the lists, (2) evaluate and select best practices, (3) provide experts and practitioners to evaluate requests for international assistance, (4) examination of reports of implementation of safeguarding measures, (5) examination of requests for international assistance, and (6) examination of the periodic reports by States Parties and the Intergovernmental Committee.^{Footnote 61}

Experts thus have a much more decisive role, that is, in “evaluating” requests for funding and inscription, whereas communities play a supporting role at best. Experts in a way become the implementers of the convention and act as “culture brokers” or mediators rendering the culture of a group accessible to the population at large.^{Footnote 62} Cultural owners themselves are props (or, at best, bit players) in the spectacle of heritage, rather than its stars. The stars are the experts, where their eagerness to create the category of heritage leads to a global project consisting in privileging aspects of artistic creation connected to an almost “show business” understanding of heritage worth protecting: heritage appealing to a broad public will be that which offers the glitz and blitz of a cabaret show, instead of more subtle forms of heritage.^{Footnote 63} The “traditional” structures of the local communities are far from having their authority reinforced;^{Footnote 64} rather, “traditional” in the heritage context is associated with primitive, and needs to be disregarded, or at least it becomes part of the heritage product itself. In a sense, then, background rules become merged with their own object of protection, only reinforcing the notion that international workers will end up missing “opportunities for weaving their efforts into the existing local context.”^{Footnote 65}

Not all is gloomy in the domain of community participation, however. A new set of operational directives for the ICH Convention aimed at raising awareness about intangible heritage has been approved in June 2010 (and left intact in the 2012 revision), which advances much stronger forms of community involvement, and uses much stronger language in referring to states’ obligation to involve communities. Even though these rules refer to a rather harmless aspect of the ICH Convention, they can be read as a backdoor through which stronger views about the legal bite of the convention and more effective means of community involvement are sneaked into the system. These revised directives include principles on awareness raising, which require not only that free, prior, and informed consent be sought, but also that control over the uses of heritage be ultimately given to the communities, rather than the state seeking an eventual nomination.^{Footnote 66} Additionally, the UNESCO Recommendation on the Historic Urban Landscape of 2011^{Footnote 67} attempts to include more community participation and bottom-up approaches to governance in the World Heritage Convention system. As a recommendation, though, it is a soft law instrument, and as such, it is not binding upon UNESCO Member States, or on the body in charge of implementing the World Heritage Convention.^{Footnote 68}

Therefore, it seems that for the most part communities are once again placed in the backseat of international standard setting and safeguarding of cultural heritage. There are positive steps forward, but they still fall short of fully empowering communities to control their own heritage and influence decision making regarding it internationally.^{Footnote 69} Communities should be able to control the meaning of their heritage and the different uses of it. In a way, communities are defined and justified because of their heritage, and that heritage is fostered and sustained by the creation of community.^{Footnote 70}

What is gained from including communities is, for one, to displace traditional constructions of culture away from its normal understanding as something to be gazed upon towards something that is effectively lived and renewed.^{Footnote 71} Of course, there is always a risk that community involvement in heritage processes will result in tokenistic and unsustainable projects,^{Footnote 72} and that the promise of community participation will remain unfulfilled.^{Footnote 73} It is always necessary to negotiate with a range of actors and understand their motivations and needs as part of the management process.^{Footnote 74} There is a diversity of forms of community engagement with heritage across the globe, and they are contingent upon local conditions.^{Footnote 75} At the global level, there is a sense in which this diversity has been filtered internationally and become precisely expert participation. But that is not enough internationally, and I would suggest means need to be developed through which communities can be in charge of their heritage’s management also internationally.

The analysis of the provisions from these four conventions suggests that community involvement in the international governance of heritage is barred precisely by the required expert participation, which is by its turn made a requirement by experts themselves (jointly with states who fear the consequences of ceding authority to communities). The politics of expertise in heritage processes prevents the actual custodians of heritage from being meaningfully involved in law making that affects their own heritage. Naturally, such a process makes it more difficult to fully safeguard heritage. More importantly, it creates dissonances about what heritage means, with experts and states more often than not sticking together, sometimes in opposition to community-grown sentiments and aspirations.

What does this state of affairs mean for heritage as a discourse, a field, a vocabulary of governance? How do experts fit into the larger picture, and how can cultural owners themselves be brought in more effectively? To this discussion I move next.

4. Expert Roles and Rule: What about Lawyers?

Experts often fail to represent communities and other heritage holders in the context of heritage law. One instance of failure is the case of the city of Dresden, Germany. The Dresden Elbe Valley was inscribed on the World Heritage List in 2004, as a cultural landscape (i.e., a mixture of cultural and natural elements). The 18th- and 19th-century cultural landscape of Dresden Elbe Valley stretches over some 18 km and is crowned by the Pillnitz Palace as well as numerous monuments and parks from the 16th to 20th centuries in the city of Dresden. In 2006, the property was moved to the List of World Heritage in Danger because of the planned Waldschlösschen Bridge, which had the purpose of ameliorating traffic congestion in Dresden’s city center.

The project was highly criticized by UNESCO, and the German federal government too opposed the construction of the bridge. However, federalism rules in the German Basic Law made the construction of the bridge a decision to be made only at the local level, and the majority of the affected community chose to go ahead, even if it meant that Dresden would be deleted from the World Heritage List, which happened in 2009. Heritage experts, by focusing on the need to preserve heritage for heritage’s sake, were out of tune with the choices of the community in Dresden, who felt that the construction of a plain bridge would not significantly affect their enjoyment of their own heritage. The law was unable to accommodate community aspirations with regard to their own heritage, and experts were unable to translate community aspirations when Dresden was initially included in the World Heritage List as a landscape that would not be open to much change.^{Footnote 76}

Norms play in the foreground, background, and context of the legal universe, but most of the activity happens in the background, thus highlighting the importance of expertise, as Figure 1 (borrowed from David Kennedy) shows. Experts mediate between the context and the foreground, making the decisions about what is context, what is background, and what is foreground. They decide what deserves the attention of the law, and they legalize and institutionalize their own agendas, which includes not only their own needs with regard to validating and securing their relevance, but also their assumptions and prejudices about their subject matter (in our case, heritage).^{Footnote 77}

Figure 1. Background norms and institutions, in Kennedy, “Challenging Expert Rule,” et 8.

Were Figure 1 to be adjusted to include its own column for heritage, two visions or accounts would be possible, as shown in Figure 2. In both columns, communities and other bearers or custodians of heritage are condemned to being only context. In the first column, the AHD is the background, serving the lawyers in the foreground, who will then draft the rules that will validate and enable the AHD. In the second column, the AHD and lawyers are both in the background, cooperating and competing for the attention of the decision maker, regulator, or prince (Figure 2).

Figure 2. Two views of heritage background norms and institutions

The first column is controversial because it subordinates the knowledge of heritage to that of lawyers, who are in that scenario welcome to learn from experts, but will ultimately always prevail over them. This is the view espoused by Marett Leiboff, in an article about the underappreciated role of art experts in legal disputes involving art.^{Footnote 78} Even if her text is about art, and not heritage specifically, much of Leiboff’s argument is valid here, given the similarities between the legal categories of art and cultural heritage.

Leiboff argues that “[w]hile law is unable to trust its judgment about the artistic and cultural, it will still make art experts and institution[s] subject to the overriding truth of the law.”^{Footnote 79} According to her, law lacks an effective way to connect to the cultural thing in the way its material form connects to the intangible values, identity, or status.^{Footnote 80} Law does, in this context, precisely what Laurajane Smith charges the AHD with doing—closing the time and space in which creative work (or, in our case, heritage) develops.^{Footnote 81}

That is, if heritage experts are subordinated to law, law will have the final say on what heritage actually is, and what values are at stake. The problem with this view is that it fails to fully take into account the views of heritage experts and blows law’s role out of proportion. The polarization of the two, which assumes a positivist fantasy of law and a science-oriented understanding of heritage, is dangerous, as there clearly are seepages and pretensions to interdisciplinarity in play in both directions here.

However, if lawyers are automatically at the foreground in the normative and institutional arrangement of heritage, and the same happens in other areas of international law relying heavily on nonlegal expert knowledge (e.g., international humanitarian law, international environmental law, international financial law, and international trade law,^{Footnote 82} to name a few), the chances that lawyers in each of these subfields will actually talk to lawyers in other subfields seem to be increased. Lawyers in this context are to a certain extent freed from their subordinated class of experts (and, certainly, from the overwhelming diversity of views of the context) from the moment the legal norms of the field are laid down, and can then consider other norms also at the foreground and how they relate to one another. However, this does not seem to be the case, or not nearly as many pages would be devoted to the topic of fragmentation of international law.

Further, the separation between lawyers and experts creates a screen behind which both lawyers and experts can hide and assign blame for the unintended consequences of their regimes. More specifically, the lawyers can say, for example, that it is the experts’ fault that communities are not included in heritage management, and that they (the lawyers) were only listening to what the experts had to say and deferring to them (even if in fact the lawyers have willingly signed off on the mechanisms excluding communities). By the same token, the heritage experts can blame the lawyers, for example, for imposing too much rigidity on heritage governance by creating the need for excessive categorization for the sake of legal certainty (even if the idea of listing and categorization in fact is at the very core of disciplines like archaeology, which, as we have seen, formed the basis upon which the flawed edifice of heritage law is built). So, if reliance on experts seems to be unable to “filter reality down” to the point where the international lawyer can consider the requirements of each specialized field against the broader picture of general international law, what is the real added value of blind reliance on expertise?

I suggest instead that we ought to explore the relationship pictured in the second column as a more accurate description of the current state of affairs, wherein lawyers are (or ought to be) in the background alongside heritage experts, in a relationship that is both cooperative and competitive. There is competition between lawyers and heritage experts, to the extent both representatives of the AHD and lawyers wish to have the final say in cultural heritage matters. And, on the cooperative side, lawyers do indeed justify and enable the AHD, but they do so because they (often blindly) rely on the AHD to give them the roadmap.

What changes, then, other than an apparent capitis deminutio of lawyers (which is overall unappealing, especially from a lawyer’s perspective)? A very important advantage of putting lawyers also in the background is that it suggests the possibility that lawyers do not rely solely on heritage experts, but can consult directly with cultural owners in the design of norms affecting heritage. Lawyers thus are forced to confront the differences between working on the field and working on the problem, and focus on the latter.^{Footnote 83} It creates therefore the means for a counter-narrative of sorts to the AHD, even if it is still plagued with the problems of any type of expert knowledge. To be sure, lawyers are themselves a class of experts, just as focused in preserving their own relevance as heritage experts. Of course, there are great limitations to relying this much on lawyers, but at the same time, because lawyers are normally trained more to serve people as opposed to their own discipline (which I would suggest is the training of many heritage experts), lawyers are in a position to actually think back to communities and be better representatives of communities and traditional holders. And, even though this characterization can be read as a different account of reality, as opposed to an aspiration for future developments (lex lata vs. lex ferenda), it is one that seems to show more room for improvement.

Lawyers need to (and can) take a more active and critical stance in heritage matters, because lawyers can make a difference precisely by opening up different avenues through which claims by traditional holders can be heard and influence the makeup of heritage governance. In this way, the function of the lawyer is akin to that of promoting a sort of human rights agenda in the field of heritage, by bringing in ideas about participation for all stakeholders in the matter, as opposed to only experts.

A variation on this second reading would be what Michel Callon and others have called “dialogical democracy” through “hybrid forums.”^{Footnote 84} These forums bring together experts, nonexperts, laypersons (in our case, community cultural owners), and politicians together as a means to breach the bureaucratic divide between the expert and layperson poles and to correct asymmetries between them. The nonexpert groups can then rebalance the interests at stake and generate their own forms of knowledge that have a bearing on governance. Further, general principles are relativized and made case-sensitive, thus acknowledging and taking into account the needs of local communities. Cultural owners thus move from context to the background themselves and have an active role in informing the decisions of the prince.

In that sense, one can see the abandonment of the idea of “documentary” expertise in favor of one of “participative” expertise. More specifically, expertise stops being a profession and becomes a position that gives free course to the confrontation of expertises, of expert vocabularies; in other words, the plural capabilities of speaking of something, thus engaging with dialogical democracy more fully.^{Footnote 85}

This idea of “dialogical democracy” is connected to that of “participatory development,” defined as involving local community actors in decisions about their development (including, in our case, decisions about heritage management, inasmuch as heritage can be seen as a vehicle for promoting development). But a critique of participatory development inspired by the work of Slavoj Žižek and articulated by Ilan Kapoor suggests that this model, to a large extent, still relies on expertise as a means to outline the “rules of the game.” More specifically, experts are still responsible for determining the rules of participation, who gets to be a community, when communities get to speak, and in what contexts. It reflects to a large extent the experience of the ICH Convention, which, nominally, includes communities, but the actual rules drafted by experts on community participation in effect exclude local actors. But, because the rules on their face call for community participation, they create a “‘feel good’ community experience, but elide[] the behind-the-scenes stage management. [They] promote[] the sharing of power, but manage[] to centralize power by personalizing and mythologizing the role of the facilitator.”^{Footnote 86} In other words, even mediators, be they lawyers, experts, or both, are still in a far too powerful position and affect governance in invisible yet very palpable ways. One set of experts needs to be checked by another set of experts.

But I would suggest that lawyers can still act as mediators (in exercising an almost humanitarian vocation by representing communities), and as a cultural heritage lawyer, I find myself naturally comfortable supporting this suggestion, in no small part because it justifies my presence in the process. However, there is more to the presence of lawyers in this context than justifying one’s professional position: I would suggest that lawyers, because they are used to being put in the position of readers and writers of the language of emancipatory projects, would be in a position to assist communities in their relationship with experts and to mediate the aspirations of those two categories of groups without losing sight of the reason why heritage should be protected to begin with: for the benefit of those practicing that heritage as part of their cultural lives. They can act as checks on or counterparts to other heritage experts, thus undermining the monopoly of stage management Ilan Kapoor warns against.

5. Concluding Remarks

The reliance on expert knowledge for the making of international law seems to problematize international legal governance in the field of heritage, by creating a dichotomy between heritage holders and heritage experts. Lawyers, when added to the equation, are often put in a position to simply reinforce this dichotomy, to the extent they respond solely to the discourse fed to them by heritage experts, and are thus hostages to the AHD. The function of heritage experts as “translators” of the aspirations of cultural owners does not seem to function well enough to warrant their monopoly over the background. I do not advocate here that heritage experts be disregarded—much to the contrary. They still provide the fundamental tools for us to understand what heritage is and what is at stake when we think about heritage safeguarding. But lawyers should take expert advice critically and be willing to move themselves to the background on the same level as heritage experts, where they will be in a position to check whether the objectives of heritage safeguarding presented to them by heritage experts actually match those of cultural owners. By developing a symbiotic, but nonexclusive, relationship to heritage experts, heritage lawyers will be in a much better position to address the needs of the central stakeholders in the field of heritage. Enhancing the role of lawyers has the potential to break the dichotomy between heritage holders and experts. By being more central to the formation of the professional vocabulary of heritage, lawyers can address the asymmetries that projects such as dialogical democracy are keen to tackle.