Punching Up or Down: International Law’s Fraught Relationship to History As Illustrated Through Cultural Heritage – Lucas Lixinski

The “turn to history” in international law makes us more aware of our role in creating the history with which we grapple. Cultural heritage law in particular plays a direct role in making and querying the historical record, and recent controversies in Australia surrounding the destruction of Indigenous heritage and the obstinate protection of colonial heritage showcase our responsibility in ‘selecting’ the past for the benefit of present and future generations. Australian can and should do better, and international law offers tools to help us make better choices about the history we protect.

International law has long had a difficult relationship with the past. While many international lawyers fancy themselves historians, with a much-discussed “turn to history” in international legal scholarship, there is not enough recognition that international law freezes history in time, erases difficult pasts, and allows us to perpetuate injustice at home and globally. Cultural heritage law illustrates this relationship in vivid detail, while also making it clear that the law still has a role it can play in constructing a better present and future on the basis of that past. As Anne Orford argues, we have a role in using history to make, rather than simply understand, international law.

In Australia, two examples underscore the inconsistencies of international law’s relationship to history: first, the destruction of Juukan Gorge, which, decried as it was, was not illegal at the time it happened; and second, the calls for the tearing down of Captain Cook monuments, which are in fact illegal.

The function of heritage laws

Governments around the world protect statues under heritage laws and charge those who attempt to deface or remove them with property destruction, as evidenced in Sydney in 2020, when people were charged with defacing statues of Captain James Cook. In the United States, United Kingdom, and Belgium, governments have similarly protected controversial monuments, including statues of confederate generals, slave owners, and cruel colonial overlords under cultural heritage laws.

However, such actions by states betray the spirit of the heritage laws that governments notionally seek to uphold. When the United Nations Educational, Scientific, and Cultural Organization (UNESCO) was created after the Second World War, its mandate included the protection of cultural heritage.Since then, it has shaped how heritage is protected in the 193 countries that are parties to it. 

The UNESCO Constitution states that culture is important to safeguard peace and that ignorance about each other’s cultures often contributes to conflict. In this way, culture, and cultural heritage more specifically, is about the society we want to be, not the society we once were. As George Orwell famously put it, “Who controls the past controls the future; who controls the present controls the past”.

That is the spirit in which laws protecting heritage need to be applied: does that heritage tell an important message about our aspirations?

Australia’s protection of Captain Cook statues and destruction of Indigenous heritage

A society that reinforces the exploitation of minorities, or protects symbols designed to oppress them, is not a society we should aspire to be. In the United States, most confederate monuments were created during the height of the civil rights movement in that country. Those monuments were meant to intimidate and belittle African Americans.

While the intent behind erecting Captain Cook statues in Australia may be different, the effect is the same: they reinforce a worldview in which icons of the past, the ones that oppressed the first nations peoples of this country, are valued over Indigenous peoples themselves, much in line with the timing of their erection in the late 1800s. In this way, heritage law becomes another weapon in the legal arsenal that has long oppressed Indigenous peoples.

While the government says no to the removal of James Cook statues, it simultaneously takes no issue with the destruction of Indigenous heritage in Western Australia to favour mining interests, misleading the Indigenous owners of the land as they tried to stop the destruction. Despite the apology of the mining corporation in question in relation to Juukan Gorge, the fact remains that any form of reparation will be difficult, and in many respects be unable to compensate for what was there before. This act of Indigenous heritage destruction goes without legal consequence while the alleged defacers of Sydney’s Captain Cook statues are charged.

In other words, when we are punching down on Indigenous Australians by destroying their heritage, even if we tend to couch their identity on said heritage by arguing how that heritage is evidence of Indigenous peoples’ relationships to their own lands, the law says little. When the issue is the destruction of a cultural statue that speaks to those who hold power and does not claim an intrinsic connection between that symbol and the identity of the dominant group, and we punch up to make a point about power disparities and the ills of colonisation brought about by that person whose likeness is literally on a pedestal, all of a sudden we cry foul.

Those arguing for an indiscriminate commitment to protecting the past should at least be consistent and apply it across the board – which would include Indigenous heritage. They must justify why it is acceptable to punch down and destroy Indigenous heritage but not to punch up and remove colonial heritage.

Black and Indigenous peoples have waited long enough for the rest of us to change the narratives around oppressive monuments, and to protect the heritage Australia promotes around the world as part of its distinctive appeal. Now is the time to make way for the society we want to be, and to understand that the purpose of heritage law is not to protect an oppressive past but lead us to a better future and help communicate something of our identity as a country.

The role of international law

International heritage law can help shed light on the law’s relationship to the past, the way it enshrines a version of the past as objective truth, but also leaves openings for us to re-examine that same past.

International heritage law is a field that falls primarily under UNESCO’s umbrella and that, most famously, includes the World Heritage List, which includes Uluru and the Sydney Opera House, among many other Australian sites. It also covers many other markers of culture, including Indigenous heritage and monuments like Captain Cook statues. As the interim report of the Australian Senate inquiry into the destruction of the Juukan Gorge indicates, international law has a role to play on these matters, particularly in benchmarking domestic Australian law.

International heritage law, like other areas of the law, protects the past by wiping the slate clean, often to the exclusion of communities who create it and keep it alive: once something becomes the object of legal protection, it is the history told at the moment of protection that becomes the one narrative around which the important of the heritage is narrated. However, even if heritage is about the past, and in fact enshrines the past, it does not do so with an eye on the past. After all, law operates in the now, and the objective is to safeguard heritage for future generations. In other words, international legal regimes choose one version of history, and then try their best to safeguard it above all other competing narratives. International heritage law, in selecting a version of history as heritage, makes it.

In practice, this means that the law operates to keep monuments like Captain Cook statues in place, protected by law just like Confederate Monuments. This history, once chosen, is not normally open for reinterpretation. Indigenous heritage like the Juukan Gorge, on the other hand, tend to get excluded because those narratives (historical or otherwise) do not suit the territorial state, who holds the monopoly. Outside of legal protection, it is easy to attempt to erase that history. (International) Law, under the guise of neutrality, privileges one version of the past at the expense of other possibilities.

When these possibilities invoke difficult pasts, international law pushes further still with this appeal for neutrality, which I call the conservation paradigm: heritage, once chosen outside the law, becomes a fact that the law no longer questions, and only protects. Heritage is then selected to tell a positive story that reflects positively on the territorial state, and being a perpetrator of colonialism is not usually part of that story.

However, there are avenues within international law to break through this shield. Transitional Justice (TJ) is a well-known set of legal mechanisms aimed at shining a light on a difficult past to undo the legal structures of the present that allow for the perpetuation of harm to human groups. The Uluru Statement from the Heart refers to TJ when it calls for “Truth” as one of its three prongs.

TJ allows us to critically examine this troubling relationship of deference to the past and make the law an active participant in that past, as well as shaping a future on that basis. Applied to cultural heritage, it means that we must, indeed, acknowledge that heritage is not history – it makes history, with the help of the law. We can write better history if we embrace, rather than deny, our roles as makers of that history.

Lucas Lixinski is a Professor at the Faculty of Law & Justice, UNSW Sydney and author of Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice. Twitter: @IntHeritageLaw.

Suggested citation: Lucas Lixinski, ‘Punching Up or Down: International Law’s Fraught Relationship to History As Illustrated Through Cultural Heritage’ on ILA Reporter (14 July 2021) <https://ilareporter.org.au/2021/07/punching-up-or-down-international-laws-fraught-relationship-to-history-as-illustrated-through-cultural-heritage-lucas-lixinski/>