The field of cultural property or heritage, as it appears to an outsider, is bedeviled by different, perhaps contradictory fundamental values and structuring metaphors, on one hand, and by large practical problems of enforcement and unintended consequence, on the other. I am an outsider to the field. I was asked to write a report with the hope that I might be able to provide a different perspective precisely because I am not a practitioner. I am taking it on faith that my lack of authority is, for the purposes of this essay, authoritative.¹

I will focus on questions that seem important to me and suggest some answers that seem reasonable to me. I leave it in the hands of the readers to decide whether the exercise serves any purpose for them.

What is the field of cultural property/heritage²

good for? What does it hope to achieve? We can imagine five goals:

1. Preservation of cultural diversity
2. Knowledge of human behavior
3. Personal or cultural self-determination or autonomy
4. The positive right of prosperity
5. Genuineness or authenticity of culture, the guarantee of which can sometimes be treated as an end in itself

Are these goals compatible? If not, which should be prioritized? What are the real problems associated with achieving them and what are the false problems? These are among the most important questions for the field. I will address the question of ultimate end as the framing device for this essay.

The logical conclusion of the discussion of ends, according to my understanding, is as follows: The goals can be grouped into two sets. Goals 1, 2, and 5 seek a certain quality, which can be evaluated without much reference to the human subjects from whose actions diversity, knowledge, or authenticity result. Knowledge, it is assumed, derives from the study of as many different patterns of human behavior as possible; diversity ensures an effective laboratory. Further, it is a given that each of the diverse cultures must be genuinely itself and distinct from other cultures. Therefore, the ends of knowledge and authenticity can be subsumed under the single rubric of cultural diversity. Goals 3 and 4 concern something akin to rights, where it is crucial to consider the subjectivity of the actors. As one participant said, “It's about giving people maximum choice.”

We end up then with the two goals of cultural diversity and human rights. In many instances, these are compatible goals; in others, however, they may conflict. When the push for diversity comes to the shove for rights, which should prevail? My impression is that diversity is a flawed goal. When conceived as the ultimate end of the heritage movement, it lacks theoretical coherence and, for this reason, gives rise to false problems. Moreover, acting to ensure diversity can create worse problems—for both diversity and rights—than it solves. The heritage movement would be best served by adopting rights as its ultimate end.

The history of heritage predisposes one to view rights as the paramount concern. The heritage movement originated in an approach to the spoils of war. It conceived of heritage in material terms, monuments or artifacts, as property to be transferred between owners. The terminology that resulted was cultural property. Property has the consequence of emphasizing individual rights; it implies the possibility, therefore, of the object being alienated. Negotiation over such property was adversarial: Claims and counterclaims formed the foundation for heritage law. As a result, many normative frameworks tend to rely on remedies of demand and response. Since then, the field has broadened beyond property rights and tangible heritage. To conceive of the field in those limited terms risks violating other, more valuable rights. There are two, linked developments. First, in some circles cultural heritage has replaced cultural property as the term of choice. Heritage emphasizes group rights; it steers us away from a well-defined idea of control or possession and toward a sense of belonging, a domain more difficult to characterize. Heritage also allows us to recognize the value of intangible culture more easily than property. The second development, then, is that intangible culture has been included within the sphere of what is to be valued and protected. This change has benefited some cultural groups. It corrected for the fact that the distribution of tangible and, often, monumental heritage was unbalanced; heritage assistance went disproportionately toward countries with a history of monumentalization. This constitutes an unjustified prejudice in defining valuable culture; moreover, it meant that the poorest countries were denied resources.³

The movement from property to heritage, then, has the potential to expand the domain of rights in question and, in so doing, empower individuals and groups currently disempowered. According to this narrative, the heritage movement began on the basis of property rights, and its recent history has unfolded in relation to concern for human rights.

It makes sense to start looking forward with a framing question: Which of two competing theories of Culture-with-a-capital-C should the cultural heritage movement adopt? The theoretical approaches to Culture effectively organize many issues in the field. The older, positivist understanding is essentialist and objectivist. It views Culture as a collection of cultural objects, somehow external to human agents. In other words, it makes culture out to be property-like and tends to prejudice us toward tangible heritage. The closed, positivist perspective on Culture—let's call it object-Culture—presumes that the goal of the heritage movement is to preserve and protect discreet cultural objects, be they tangible monuments or intangible practices. Most academics would endorse a different approach, stressing that Culture is unbounded, that it can't be owned, and that to act on it is to change it (but, in changing, it becomes no less Culture than it was before). This constructivist approach locates Culture in the thoughts and practices of a group; everything people do is Culture. As such, it provides support for the movement away from conceptions of culture as property and toward heritage. It also gives more credence to the value of intangible culture, because such living cultural practices are dynamic by definition. It is impossible, within the constructivist frame, to valorize one example of Culture qua Culture over another. Moreover, the idea that Culture is not essential but exists dynamically in the evolving actions and ideas of people has the effect of emphasizing the status of culture-holders as subjects. For both reasons, it focuses us on human rights.

Participants in the field may endorse the constructivist perspective, however, while simultaneously suffering a kind of conceptual hangover whereby the positivist perspective continues to influence their thinking. This can lead to some confusion, one example of which lies in the instinct to declare some pieces of Culture valuable as such. If we are to avoid the confusion, the theoretical question must be addressed explicitly.

These competing theories of Culture correspond to different justificatory analogies for their different understandings of the goals of the heritage movement. The constructivist perspective corresponds, at least insofar as it emphasizes the status of culture-holders as subjects, to discourse on rights or, perhaps better, on the freedom of expression. Culture is the means by which people articulate meaning. The only limits that ought to be placed on this expression are to ensure that one group's expression does not do harm to others. It is fitting, then, that the heritage movement is linked historically to the international human rights movement. The constructivist view tends toward a neutrality on the content of cultural practices. What matters is the consequence of a cultural practice for the rights of others, which we evaluate in relational terms. A good example of this comes when populations employ the object-culture perspective in representing the value of their culture to outsiders: strategic essentialism. The term, meaningful as a cultural practice only from the constructivist perspective, recognizes that subordinated peoples may need to essentialize their own culture to act effectively in a domain ruled by powers beyond their control.

The object-culture perspective derives justification from a different analogy. The argument for the preservation of cultural diversity has often had reference to the recognized value of biological diversity. Thus, the heritage movement is analogous to the environmental movement: The primary goal is to preserve as diverse a material ecology as possible because, as the argument goes, once a cultural object has become extinct we are deprived of options in deciding what to do with it. In other words, preservation is the sine qua non of any heritage movement. But this metaphor has problems both of descriptive accuracy and prescriptive force. First, even putting aside whether there are useful mechanistic parallels to reproductive fitness, one crucial difference is culture's ability to rapidly form new combinations; so the creation of new culture moves at exactly the same pace as the destruction of old. This difference highlights the fundamental confusion in the analogy. When a species becomes extinct, the individuals who make it up die and future generations of individuals lose the chance to come into existence. When a culture disappears, the culture-holders have not died; they have only changed how they behave. Second, it is not even clear that the metaphor provides support for the goal of the preservation of particular cultures. Uses of the metaphor tend to emphasize extinction. But extinction is often the result of evolution; that is, it results from natural selection for reproductive fitness. It is inevitable that, as the cultural environment changes, certain ways of doing things will die out and be replaced by others. This happens with species; why should it not happen with cultures? Taking this metaphor to its logical conclusion actually lends support to some of the claims of the open, constructivist perspective, which values the transformative capacity of Culture. It was suggested—and I agree—that our instinct to preserve a culture has less to do with biological diversity and more to do with human rights and ideas of equity and fairness. The notion of cultural diversity is something we like to valorize on the basis of its being fair—humans have the right to remain as they want to be. The real payoff has more to do with rights than diversity as such.

Evaluating theories of Culture and their associated goals allows us to separate the real problems the heritage movement faces. Indeed, certain issues, which present difficulties from the objectivist perspective, disappear when viewed through a constructivist lens.

The problem of preservation asks, what is risked or lost in the attempt to preserve? It is often remarked that any attempt to preserve culture risks fossilizing it. If we are interested in preserving cultural diversity as a means to the end of learning from it about patterns of human behavior, this is not a serious problem. Essentializing a cultural practice in a museum display or by academic documentation does not prevent our deriving knowledge from it; indeed, this end may require some degree of essentialism. The concern about preservation for its own sake, however, results from a theoretical ambivalence. A recognition that much of the value of Culture lies in its being a vibrant part of lived experience and open to ongoing renegotiation tends toward the constructivist view. However, the priority placed on preservation per se only really makes sense within an objectivist frame, where cultural practices of a specific kind have value as such. The constructivist perspective argues that culture is going on all around us; the destruction of national monuments is just as much an act of culture as the series of actions through which they came to exist and continue to have meaning. It asks why we should prefer one set of cultural actions over the other. If there is a point in preservation, it is to assist the aspirations of cultural actors. But at that point, we recognize that preservation is simply a cultural strategy; cultural practices fossilized in the process need not detract from the usefulness of the strategy (indeed, again, it may aid the strategists). This is strategic essentialism, as explained previously.

Another potentially false problem is cultural homogeneity, sometimes a bugaboo in conversations about diversity. The fear is that the processes of globalization will result in a world where one place and people look much the same as another. As an argument for the active preservation of diversity, however, it runs into two problems. First, a theoretical confusion: On what level do we identify cultural diversity? India is notable for its linguistic diversity, even now; but linguistic nationalists, for example, have argued that the increasing prevalence of English poses a threat to this glorious variety. But the use of Indian English is very different from the British or American versions, characterized, for example, by a remarkable species of code-switching between languages. So, too, the voice of the Indian author writing in English is distinctive; it has produced culturally unique styles and narratives. The Indian case exemplifies the process of cultural hybridization, and it indicates that globalization is unlikely to result in homogeneity.⁴

Second, the quest to preserve diversity may lead to a practical contradiction, deriving from the fact that heritage value creates economic value. The World Heritage List might recognize one locale for, say, its ceramic production; in so defining the locale's value, it will direct tourism and shoppers to this exemplary culture. As a result neighboring villages will imitate the practices that have acquired a new economic value and abandon their own (equally culturally valuable) local practices. In other words, specifying examples of diversity can itself speed cultural extinction and homogenization. The question remains to ask: Is there anything wrong with this? Rather than emphasize extinction, we might highlight processes of evolution, where fitness is understood to be the ability to achieve prosperity.⁵

The false problem of authenticity or quality evinces another confusion between the objectivist and constructivist perspectives, this time in the notion of value. One consequence of the rebalancing of heritage priorities, which placed intangible culture alongside tangible, is inflation in the concept of heritage. When only monuments, artifacts, and objets d'art are valued, there is more or less a fixed set of cultural property. The notion that everything is Culture, the constructivist view, encourages us to value cultural practices as such but also makes it difficult to assign differential value to examples of Culture. The resulting increase in officially acknowledged heritage on, say, the UNESCO World Heritage List, therefore risks cheapening the concept of heritage: If everywhere is a historic site, there is no meaning or historical value.⁶

But the concept of inflation is only possible from the objectivist perspective. When considering the value of a cultural practice or object separately from the culture-holders who produce it, differential value can be assigned to such practices or objects. The very debate about authenticity—what is real heritage—is created by the forces of transnational capitalism, whereby notions of authenticity, via the law of supply and demand, construct a scarcity that has value in the marketplace.⁷ The inflation in heritage, therefore, is no metaphor: What is perceived to have cultural value has, by virtue of the designation, economic value. It is important to consider, however, the reason for the increasing number of applications to the World Heritage List. There is a sense that to exist in the community of nations, it is necessary to have a place on the list. The reasons for claims to valuable heritage have little to do with value as such or with the particular pasts they valorize. Claiming value in the past is all about claiming prestige in the present—strategic essentialism once again. Indeed, it is unclear that inflation matters to anyone outside the narrow group of professionals—academics and dealers—who have their own strategic interest in preserving value and authenticity as the basis for their prestige and profit. Culture-holders who get on the World Heritage List likely will simply feel proud to be recognized. Such ideological value or cultural prestige is not subject to the laws of supply and demand. If we are worried about economic consequences rather than what this means for Culture, however, we should commit ourselves fully to this concern. Considering the situation in explicitly economic terms makes clear the importance to local populations of having their cultural objects officially designated as valuable heritage. Heritage often means tourism for countries that need the income, and creative industries related to heritage are increasingly viewed as a growth sector in the economy.⁸ Worrying about inflation in the concept of heritage seems to miss the more important issues at stake.

Attempts to preserve diversity may end up, in fact, reducing it. This alone suggests that diversity may be a flawed goal. Nevertheless, we should pay attention to the reasons the contradiction is likely to arise. In many cases it is because those whose culture we are hoping to protect have different ideas about what's good for them. The real problem of preservation practices is in their potential to deny culture-holders autonomy or positive rights. A world of cultural diversity is attractive to those who inhabit dominant cultural modes; the material benefits we derive from our cultural power afford us the opportunity to derive aesthetic satisfaction from different cultures. The view from an endangered culture will be very different. A member of that culture may justly resent her lack of access to important resources and seek to change her cultural situation to gain that access. A similar question can be asked about the problem of limited resources: Is it right to promote heritage when the funds might be better used to advance the well-being of the culture-holders by providing, say, education or health care? Recognizing that preservation for its own sake is a flawed goal should help the society address the conflict between the rights of Culture and the rights of people, when it exists.

Where does all of this take us? Is there some payoff to clarifying the goal of the heritage movement? Putting rights before objects and buying fully into a constructivist view of Culture has some potential to transform how ownership claims are negotiated. Past responses to historical injustices of theft, combat, or imperialism have sought remedy in an adversarial mode. Possession of cultural objects tends to be an all-or-nothing issue. We may make greater headway by asking what human aspirations the objects in question can serve. Today, under the rubric of stewardship, multiple examples of successful collaboration are available, in which the cooperating parties each benefit from the relationship. So collaboration can work well, but how often? The problem involved in stewardship is proving that it is more than just a new word to lay on top of old practices. Proof lies ultimately in the perceived self-interest and the guiding culture of institutions of stewardship. The innovative practices reported at the conference⁹

do suggest that a new normativity of cooperation is developing, in which heritage advocates can find some reason for optimism.

It may be productive to pay more attention to the norm of collaboration and the phenomenon of normativity itself in working our way through yet more complicated situations where rights are threatened or contradictory. UNESCO's role in promoting world heritage gets us quickly into the middle of this problem and can serve as a testing ground for the usefulness of focusing on human rights.

UNESCO conventions—such as the World Heritage List, the 2003 Convention on Intangible Heritage, and the 2005 Convention on Cultural Diversity—raise problems of conceptualization and enforcement. It starts with the fact that the conventions do not deal with the conflictual nature of cultural diversity. We can identify this conflict on two levels. First, the conventions fail to resolve, in themselves, potential conflict between the rights to cultural expression and other human rights. Although the conventions state that they cannot be used for anything that constitutes an infringement of human rights, it remains unclear whether this allows specific cultural practices that might violate human rights to be protected. This is essentially the thorny problem of unattractive heritage: Do we protect a cultural practice that does harm? An example is a tribal dispute settlement procedure practiced in Ethiopia that is only open to men. Does such gender specificity offend against international human rights?

Second, under the conventions member states are responsible for determining the kinds of policies that promote heritage. This state of affairs reflects the fact that the structure and administration of heritage derives from the structure of the nation-state. Also, as each state emerged, it developed a narrative around the historical remains contained within its bounds. The narratives tend to assert ancient, sometimes quasi-autochthonous origins and a teleology that sees the given nation as the natural outcome of the history of its place. There is a basic contradiction, however, between the nation-state's interests in its asserted homogeneity and the goal of cultural diversity—specifically, the mission of protecting the culture of national or indigenous minorities. Does one trust the French government to responsibly promote Moroccan culture? This is connected to a different problem. The fact of diasporic populations poses a direct challenge to a central assumption of much heritage work, namely, that its subject is a bounded culture tied to stability and continuity in a certain place. Heritage supports the dissemination of the central narrative throughout the nation, even (or especially) to national minorities, be they indigenous or diasporic. This results in a kind of injustice. These narratives make little or no room for minority heritage, such as that of Jews, Muslims, or Gypsies in European countries. It is with respect to this second scenario that the practical problems of enforcement arise. The UNESCO conventions contain no real mechanism for enforcement at all—for the end of ensuring either diversity or human rights.

There is another broader problem in using international norms and procedures at all to promote particular local heritages. To do so may create a tendency toward uniformity that threatens the goals of preserving diversity: The language and norms in which international law requires people to frame their claims may, in the process, do violence to the full range of human aspirations. For example, using intellectual property—with its time limits—as a framework may contradict indigenous desires to assert that their culture is eternal. If autonomy of expression is a fundamental goal, the very modes used to protect that goal may, because of their particular cultural articulation, contradict it. Unfortunately, empowering expression on that level may turn out to be impossible. That's a fact. Is it a problem?

We need to dispose of that last question before we can turn to the others. Recognizing that diversity per se is not a fundamental goal may take some of the sting out of whatever standardization of culture results from globalizing promotion of heritage. Moreover, if a people need help protecting heritage in the first place, it is because they have joined the international community in one way or another (including by simply having become subject to international forces). The international community, however, possesses its own particular culture. It developed out and now reproduces the norms of a culture of internationalism. Internationalism is a special sort of culture: a metaculture, as it were, whose practices and ideology developed in response to the need to allow distinct national and cultural communities to interact productively. Its salient features are a commitment to fundamental rights and consensual procedures for mediating disagreements. Recognizing the fact and value of this culture is fully in line with the constructivist school of thought on Culture. That same perspective tells us that the culture of internationalism belongs equally to whoever participates in it. Is it too much to ask local cultures that participate in this international culture to respect it? Is it acceptable if norms are, in fact, normative?

The salient features of internationalism characterize much of the institutional apparatus for promoting heritage. These features suggest a promising direction for the heritage movement. It appears that both the problems of the conflictual nature of diversity and enforcement can be addressed (more and less) productively by substantive and procedural international norms. Let us take the suggested problems in turn.

Does the gender specificity of the Ethiopian tribal dispute settlement procedure offend against international human rights? Perhaps, but rather than attempting to answer that question in advance, let the nomination of the procedure to a list of valuable heritage be a forum for Ethiopian women to object to it. Any controversial nomination would provide a new and powerful platform for the oppressed to register their complaints. This would result in a net benefit for those whose rights were being violated. The nomination process is sufficiently political that a practice that did violate local rights would have a hard time finding a place on the heritage list. If it did, however, that would likely either be the result of a compromise or of the final judgment that human rights were best served by approving the nomination. Leaving aside the question of diversity for its own sake obviates the need to compare apples and oranges prescriptively. It allows us to think more productively about balancing different rights claims.

The broader framework of normative political processes also will likely make it harder for nation-states to oppress indigenous groups or national minorities. UNESCO heritage administration does put states in charge, but the treaty also obliges them morally to respect cultural diversity. It is true that, within the terms of the UNESCO conventions, there is no mechanism to enforce rights or claims. It is also true that rights are only as good as the ability to defend them. But neither is that ability limited to what the UNESCO conventions contain. The complaint about enforcement may view the stage of action too narrowly. The question is not simply what are the conventions capable of doing but also, what will be the consequences of the conventions? UNESCO conventions can be used as a tool by which to place pressure on those who would infringe against its principles. The convention on cultural diversity contains assertions that would not have been possible to make in chauvinistic countries in Africa, Latin America, and Asia, where the political repression of national minorities begins with the demonizing of their culture. Many countries that signed the convention will now be accountable to its logic, opening new room for the political affirmation of democracy. The convention may not spell out that internal culture can conflict with national culture, but neither does it preclude that reading. The history of similar assertions, like the Helsinki Accords' declaration on human rights, shows that they may likely empower opposition to repression. The diversity convention might be best viewed as a negotiating tactic: an argument that values and norms have changed and that the World Trade Organization or the International Court of Justice, for example, should respect the change. The discourse on human rights provides a compelling context for such claims.

Soft instruments sometimes prefigure hard ones. In cases of state oppression, if UNESCO norms are not legally enforceable, they are still norms and they represent incremental progress toward a world in which disrespect and disruption are less acceptable and, ultimately, less imaginable. The concept of stewardship and more explicit deployment of international norms underscore an idea that seems entirely appropriate to the work of a community dedicated to cultural protection: that serving culture and its peoples depends on the development of a culture that does so.