Cultural Heritage in Transit Pennsylvania sTudies in Human RigHTs Bert B. lockwood, Jr., series editor a complete list of books in the series is available from the publisher. Cultural Heritage in Transit intangible Rights as Human Rights Edited by deborah Kapchan univeRsiTy of Pennsylvania PRess PHiladelPHia Copyright © 2014 university of Pennsylvania Press all rights reserved. except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by university of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the united states of america on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Cultural heritage in transit : intangible rights as human rights / edited by deborah Kapchan. — 1st ed. p. cm. — (Pennsylvania studies in human rights) includes bibliographical references and index. isBn 978-0-8122-4594-3 (hardcover : alk. paper) 1. Cultural property—Protection—law and legislation. 2. intellectual property. 3. Culture and law. 4. group identity. 5. Human rights. i. Kapchan, deborah a. (deborah anne) author editor of compilation. ii. series: Pennsylvania studies in human rights. K487.C8C86 2014 323.1—dc23 2013046746 22602 C o n t e n t s introduction. intangible Rights: Cultural Heritage in Transit 1 PaRT i. Redefining CulTuRal RigHTs 1. Protection as dispossession: government in the vernacular 25 Valdimar Tr. Hafstein 2. Heritage, legacy, Zombie: How to Bury the undead Past 58 Dorothy Noyes 3. The Right to Remain Cultural: is Culture a Right in the neoliberal Caribbean? 87 Philip W. Scher PaRT ii. THe iRonies of HeRiTage 4. Cultural Heritage, Human Rights, and Reform ideologies: The Case of swedish folklife Research 113 Barbro Klein 5. Balkan Romani Culture, Human Rights, and the state: Whose Heritage? 125 Carol Silverman vi Contents 6. intangible Rites: Heritage sites, the Reburial issue, and modern Pagan Religions in Britain 148 Sabina Magliocco PaRT iii. maKing sense of Human and CulTuRal RigHTs 7. intangible Heritage in Transit: goytisolo’s Rescue and moroccan Cultural Rights 177 Deborah Kapchan notes 195 Bibliography 207 list of Contributors 233 index 237 I n t r o d u c t i o n Intangible Rights: Cultural Heritage in Transit Human rights. Are they universal? Our immediate response is “yes, of course.” However that simple affirma- tion assumes agreement about definitions of the “human” as well as what a human is entitled to under law, bringing us quickly to concepts such as “free- dom,” “property in the person,” and the “inalienability” of both.1 The assumption that we all mean the same thing by these terms carries much political import, especially given the fact that different communities (national, ethnic, religious, gendered) enact some the most basic categories of human experience (self, home, freedom, sovereignty) differently. This is why when organizations such as the United Nations draft charters, like the Univer- sal Declaration of Human Rights (UDHR), a great deal of time is spent choos- ing the language (Groth 2012). Indeed, in the very preamble of this document we find a key concept of the notion of rights as what is “inalienable,” that is, unable to be separated from the self: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” There is a debate in political philosophy about what, if anything, is in- alienable in the human being (Pateman 2002, 1988). The term is associated with “property in the person,” a concept that for much of American history was applied to free male subjects who (unlike slaves) owned first and fore- most themselves as well as other alienable objects, including their wives and children (Pateman 1988). Personal freedoms were defined against the nega- tive benchmark of human chattel. Thus defining the human as possessing “property in the person” assumes that one can do what one likes with that “property,” including alienating its own labor (a sovereign person can con- ceivably contract her- or himself into servitude). Carole Pateman thus calls 2 Introduction the notion of “inalienable rights” a “political fiction,”2 for although one can- not actually sever one’s mind from one’s laboring body, the ability to contract one’s labor to an employer demonstrates that human labor is in fact alienable as a value (1988). I will not review this debate here; however I mention it to forefront the fact that legal parameters of the “person” are not now and have never been unproblematic, yet they undergird the most basic discussions of human rights. That the Western subject has been defined as a property owner has deep implications. It associates sovereignty and freedom with private property and its tangible possession (see article 17 of the UDHR, for example).3 However what is “private” has also undergone serious transformation in light of inno- vations in virtual media, cyborg realities, and the posthuman, as have the parameters of the human it/her/himself (Haraway 1985; Hardt and Negri 2000; Coole and Frost 2010). Indeed, studies in the philosophy of the emo- tions, as well as what Patricia Brennan calls “psychoneuroendocrinology,” demonstrate that rather than being separate until proven coextensive with others (in “liminal” experiences such as religious ritual, art, music, and sexual union), people are actually together (in intangible but measurable ways) until their separateness is consciously enacted through gendered, cultural, and in- stitutional education (Brennan 2004). “Property in the person” can no longer circulate as a general definition of the self, if it ever legitimately could, and is certainly not a universal category. What’s more, this political fiction is a very dangerous one, especially when we recognize, following Michel Serres, that property ownership goes hand in hand with one’s the ability to pollute (Serres 2011).4 The rational and sovereign Western subject not only presides over himself (I use the masculine pronoun, as historically the unmarked political subject was assumed to be male), but has deeply misrecognized the rights of other life forms, objectifying and dominating land, animals, plants, and other forms of biological life, and rendering them fodder for capitalist consump- tion and the detritus it produces. Tangible Intangibilities As we inquire further into the relation of “property in the person” and human rights we inevitably land in the territory of the cultural and the everyday practices that compose it. Definitions of a legal entity (a person) as one who is able to determine his or her own destiny often contradicts what we know Cultural Heritage in Transit 3 about how cultural practices overdetermine the subject, limiting his or her agency by creating (unconscious) desires and motivations that collude with the state or other hegemonic systems (Boddy 1989; Foucault 1972, 1977). We appear to have, for example, unlimited freedom to consume— at least in the West— but less freedom to opt out of consumption (Hardt and Negri 2000) While there are copyright laws protecting the creations (i.e., the property) of the individual, as well as corporations, it is much more difficult to insure the rights of the community. Can we even think in terms of “property in (the) common”? In a postsecular era, when religious communities are reforming around affective and aesthetic practices, it is perhaps time to do so. But where would be its bounds and its defenses? What’s more, the current ability to pat- ent and copyright forms of nature, such as seeds, as well as other genetic material further skews our intuitions about the limits of the human and what belongs to whom. Indeed the ethics (or the unethical “nature”) of biopolitics provide the most pressing studies in rapidly transforming notions of self, na- ture, and nation (see Scher, this volume). Political fictions are the stuff of human rights. The discourses that circu- late about alienability, sovereignty, and agency create our social unconscious and manifest in the material world as the “way it is,” our “natural” and in- alienable rights as individuals. What’s more, these fictions produce our phe- nomenological experience of our own bodies and communities. These are necessary and often worthy fictions that do important political work, but we must recognize that discourses of universalism are also political fictions, or what Gayatri Spivak called “strategic essentialisms” (Spivak 1999; cf. Jakobsen and Pellegrini 2005; Mahmood 2004; Tsing 2011).5 They are motivated. They work for some, and not for others. The notion of property in the person insists on the presence of a body and its effects. Implicit in this historical formation, however, is the idea of a ratio- nal owner, one who possesses the property and can dispose of its values and attributes. This focus on the discrete rational actor is no longer sufficient to account for the many factors that contribute to social change and creativity, particularly when it comes to intangible culture, which is, after all, inextrica- ble from practice: singing, dancing, storytelling, feting. Are the people who enact these practices their “owners”? Is it sufficient to practice them to pos- sess them? What are the claims that history and precedent make? And how do our political fictions about the subject and its community collude to pro- duce particular sociopolitical formations, especially in the realm of the heri- tage industry?