E15 Transcript

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Transcript Commences

Chris Patterson 00:06
Hello and welcome to the Law Down Under Podcast with barrister Chris Patterson. We will provide you with insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire your interest in the law and provide you with a greater understanding of the legal issues that have helped shape our justice system down under. We thank you for tuning in and hope you enjoy the podcast. With me today, I am delighted to have Dr. Lucas Lixinski. He is a professor at the Faculty of Law and Justice at the University of New South Wales, where he researches and teaches across fields of international law, primarily international cultural heritage and international human rights. Lucas holds a PhD in international law from the European University Institute in Florence, Italy, a Master of Law degree in human rights law from the Central European University in Budapest. He has a Bachelor of Laws from the Federal University of Rio Grande do Sul in Brazil. Prior to joining the law faculty at the University of New South Wales, Sydney, Lucas was a postgraduate fellow at the Bernard and Andre Report Center of Human Rights and Justice at the University of Texas Law School, as well as serving on multiple boards. He is the Vice President of the Association of Critical Heritage Studies, a rapporteur to the International Law Association Committee on Participation and Global Cultural Heritage Governance. In 2021, Lucas published his book, "Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice Goals," which provides an engaging analysis and exploration of creative uses of heritage as a conduit for the fulfillment of transitional justice goals. Welcome, Lucas, and good morning. How are you today?

Lucas Lixinski 01:59
I am very well, Chris. Thank you for having me. How are you?

Chris Patterson 02:01
I'm very good. Thank you. We've been experiencing a lot of heavy rain here in Auckland in the last couple of days, but not as much as you've been getting in Sydney. Has it affected you at all?

Lucas Lixinski 02:13
Yeah, it's been quite something here.

Chris Patterson 02:15
Yeah, yeah. Well, this is what happens this time of the year and during winter. Now, let's start talking about cultural heritage law. But before we do, what sparked your interest? How did you get involved in international and indigenous laws?

Lucas Lixinski 02:36
As a kid, I was part of a folk dance group in southern Brazil, where I grew up and was born. I always had an interest in the protection of folklore and traditional culture in one way or another. As I got into law school, I became more interested in intellectual property law as well. At some point, I wanted to combine intellectual property law and the issue of cultural heritage, leading me to stumble upon the idea of human rights for indigenous peoples in relation to the control over their own culture.

Chris Patterson 03:21
Fascinating. Absolutely fascinating. It's an area that I've looked at recently and hasn't had a lot of focus or attention, but it appears to be an emerging area, particularly in international and some domestic laws. I noted that there are several organizations putting a lot of energy and resources into critical heritage. One of the organizations I noticed is the Association of Critical Heritage Studies, of which you are the Vice President. Can you tell us about that association and your involvement in it?

Lucas Lixinski 04:07
The Association of Critical Heritage Studies is one of the largest associations for academics and professionals in the field of heritage, which is highly interdisciplinary. We have members from various backgrounds, including anthropologists, archaeologists, lawyers, political scientists, musicologists, and architects, who all come together to explore the concept of heritage as not just something that exists, but as a realm where power relationships are prevalent. Heritage can act as a catalyst or a lightning rod for power relations and shifts around them. We have over 1,000 members across 80+ countries worldwide. Our flagship event is a conference that occurs every other year, and the next one will be in Santiago, Chile. We explore themes related to intercultural reality and continue to hold conferences on similar topics in the future.

Chris Patterson 05:52
One of the other organizations you are involved with is the International Law Association's Committee on Participation in Global Cultural Heritage Governance, where you are responsible for recording minutes and related tasks. How long has this committee been in existence?

Lucas Lixinski 06:15
The International Law Association itself has existed for 150 years, with the specific Committee on Participation being created more recently. It succeeded a broader cultural heritage committee within the association, which had been active since the 1990s. This committee started at a conference in Sydney in 2018 and focused on the idea of participation within and beyond the heritage field, emphasizing the importance of involving non-state actors in international organizations. This kind of participation significantly enhances heritage governance and outcomes.

Chris Patterson 07:46
Okay, so, I mean, the committee presumably has projects, produces reports, and recommendations for the International Law Association. Are there any particular projects that are of interest to you at the moment?

Lucas Lixinski 08:02
Yeah, so my major project right now is to look at how heritage is affected by massive change. Because we have all these norms out there that deal with situations of significant change, like disasters, or post-conflict transitional justice kind of situations. A lot of the norms focus on the protection of human beings as biological entities. We're trying to protect life, making sure people are fed, have shelter, and so on, all of which are key priorities. But one thing that tends to fall by the wayside very quickly is the protection of culture, which, in my view, is a bit short-sighted. Because if we don't protect culture, we're losing sight of the thing that transforms a group of individuals into a society. So when a disaster occurs, when the waters recede, or when a conflict ends, we're left with a situation where we don't have the right tools to ensure that society can come together and use social resilience to become a better version of itself. So my project aims to bring cultural heritage back into those conversations about the significant changes that human societies experience.

Chris Patterson 09:47
Okay, now, the third organization I came across was the International Council on Monuments and Sites. Have you had any involvement with them? What kind of work does that council do?

Lucas Lixinski 10:01
Yeah, so I'm an observer of ICOMOS, the International Council on Monuments and Sites, and I'm not directly a member. But they are an incredibly influential organization primarily composed of architects, conservationists, and heritage managers. Their main goal is to preserve and safeguard heritage all over the world. They are proficient at creating codes of conduct and codes of practice for heritage professionals and architects. One of their key roles in the world of international heritage law is that no cultural site can be added to the World Heritage List without ICOMOS' approval. They played a central role in drafting the World Heritage Convention, ensuring that there was a provision stating that no site can be added to the World Heritage list without expert endorsement. The experts for cultural sites are primarily from ICOMOS. They are pivotal in the international landscape of heritage preservation and promotion.

Chris Patterson 11:33
Some listeners might recall that there have been some quite shocking examples of the deliberate destruction of heritage sites. One example that comes to mind is during ISIS's occupation in Iraq and Syria in 2015. There was a video that circulated on the news and social media, showing ISIS fighters using bulldozers and explosives to level a historic Syrian site in Palmyra. They destroyed a large temple dedicated to one of the ancient gods as part of their propaganda campaign to assert their views. However, it resulted in the loss of thousands of years of history within just a few days. Is this type of behavior something that international law needs to address?

Lucas Lixinski 13:01
Absolutely. This is a significant area of development within international law. While the law cannot always prevent such acts directly, it plays a crucial role in prosecuting those responsible, creating cooperative tools for reconstruction, and addressing the aftermath. It is worth noting that the success of UNESCO and international heritage law has made these sites targets because they have more ideological value, often becoming pawns in geopolitical conflicts. Once sites are recognized by UNESCO, local communities may lose power, which is problematic in some respects. The destruction of heritage sites by armed groups is increasingly driven by shock value and symbolism.

Chris Patterson 14:58
Understood. Sometimes, the issue of Confederate monuments has been controversial in the United States. Dr. Lixinski, your book contains a chapter titled "Erasing or Replacing Symbols," focusing in part on the Confederate monuments controversy. Could you share any insights from your research into this topic and how it might relate to situations in New Zealand and Australia? Both New Zealand and Australia were colonized by the British, and there were conflicts and monuments with figures that might be seen differently today. What can we learn from the Confederate monuments controversy in the US?

Chris Patterson 26:26
I believe that both in Australia and New Zealand, we have a lot of work to do to repair the damage caused by the historical approach to cultural heritage. For a long time, the law discouraged the maintenance of cultural heritage. One example in New Zealand is the discouragement of Maori language and culture. Only in recent decades have we made positive developments to encourage and support the revitalization of Maori culture. Historically, New Zealand and Australia followed the common colonial pattern of erasing the cultural identity of the indigenous populations as part of an assimilation process into a European identity. Have you encountered similar experiences in your research?

Lucas Lixinski 27:54
Absolutely. One of the intriguing aspects of treating indigenous culture as heritage is the notion that cultural heritage is employed to promote a national narrative. The key question we need to address before protecting culture is why we are protecting culture. The answer to the "why" question often centers on preserving culture to strengthen the fabric of society, especially during nation-building. This concept becomes challenging when dealing with indigenous culture. Indigenous culture is crucial for establishing distinctiveness from the colonial power, so the presence of indigenous peoples and their culture is important for creating a sense of uniqueness. However, this culture was often manipulated for the purpose of differentiation, not as a source of power. Indigenous culture was used briefly to set the colonial power apart and was then discarded, with the hope that it would fade away. The treatment of indigenous culture as something frozen in time rather than a dynamic, living entity is a recurring issue. We need to recognize that indigenous culture should not only endure but also serve as a source of power for indigenous communities.

Chris Patterson 31:28
Is there an underlying assumption that cultural heritage will naturally evolve and transition over time? Is there a belief that cultural heritage law has no role in addressing these changes?

Lucas Lixinski 31:53
Memory does naturally change, and that's okay. However, cultural heritage law has traditionally been less adaptable to change. The field has been slow to embrace change, and the terminology used to describe heritage often implies static preservation rather than adaptation. Cultural heritage law has not been well-equipped to manage change, and there's been resistance to shifting the longstanding assumptions in the field.

Chris Patterson 33:05
One area where heritage is often lost is in conflict. ANZAC Day is a significant day for both Australia and New Zealand, as well as in Turkey, to remember the Gallipoli campaign and honor the soldiers who fought there. There are many unidentified ANZAC soldiers who remain at Gallipoli. Do you believe that ANZAC heritage should be protected to ensure it is not lost due to the conflict that occurred over a century ago, as it is an integral part of our national identity?

Lucas Lixinski 34:38
ANZAC heritage is unique because it was not heritage destroyed by conflict but heritage created by conflict. It served the purpose of cementing a common identity and narrative for the nation. The protection of ANZAC heritage is enforced through legal controls on the use of the term, organization of parades, and the erection of monuments. It has been safeguarded to maintain a particular national myth. While ANZAC heritage is important for unifying the nation, the legal controls have led to various pressures and movements in heritage law. An example is the underwater cultural heritage Convention, where Australia initially rejected it but later embraced it for the protection of underwater heritage associated with ANZAC-related wrecks and artifacts.

Chris Patterson 39:14
It's interesting to note that the Australian Commonwealth Underwater Cultural Heritage Act of 2018 sets a 75-year threshold, which extends protection for underwater heritage by 25 years. This act provides statutory protection to shipwrecks, sunken aircraft, and their associated artifacts, even if their exact locations are known. This legal protection ensures these artifacts remain intact for current and future generations.

Lucas Lixinski 41:17
Underwater heritage offers a unique perspective on preserving a fixed historical narrative, as it is often perceived as a time capsule. The legal framework surrounding underwater heritage primarily focuses on preservation, which is at odds with the dynamic nature of culture and heritage. People generally connect with underwater heritage through curated images or by visiting underwater sites, but such access often requires specialized equipment and resources. While this approach allows people to form strong emotional connections, it keeps heritage at arm's length. It is essential to consider that using underwater heritage for transitional justice or reconciliation processes reinforces the idea of heritage as something unchanging. While there are well-intentioned efforts to use these tools for positive ends, there is always the potential for misuse and abuse.

Chris Patterson 43:22
You mentioned the Rainbow Warrior, a famous shipwreck dive site in New Zealand. The Rainbow Warrior was infamously sunk by the French Secret Service agents in Auckland Harbour, leading to the death of a photographer on board. This event marked a significant point in New Zealand's history and international attention. Despite the Rainbow Warrior not meeting the 100-year threshold, it is considered a piece of domestic cultural heritage and has been preserved. This preservation serves as a reminder of the event's impact on New Zealand's national identity. Do you see this kind of decision to preserve and protect such artifacts as important for maintaining national and cultural identity?

Lucas Lixinski 46:15
Absolutely. There is sometimes a mismatch between international and domestic law regarding underwater heritage. International law tends to focus on older shipwrecks and artifacts due to historical criteria, while domestic law can be more progressive in recognizing the cultural and historical significance of more contemporary underwater sites. The Rainbow Warrior is an excellent example of this, and there are other cases like it, such as underwater sculptures in the Caribbean that commemorate the history of slavery. These artifacts and sites hold powerful meanings and help initiate important conversations about history and heritage. While international law may exclude some of these sites due to the age criteria, they still play a vital role in preserving cultural and national identity.

Chris Patterson 48:25
There is a passage from your book titled "One Second Sentence about Tyranny" which ends with the line, "where there is tyranny, everyone has a link in the chain that stench emanates and spreads from you to tyranny." In your book, you express your dissatisfaction with the traditional "investigate, prosecute, punish" triad in transitional justice. What do you mean by "cultural heritage as being pragmatism"?

Lucas Lixinski 49:24
What I mean by that is that there is a tendency to think of cultural heritage in technical terms, often as a time capsule of the past. However, when we acknowledge that cultural heritage changes and isn't meant to be static, we can approach it in a more pragmatic way. Rather than just trying to protect a version of the past, we need to recognize that this version is political. Cultural heritage should be viewed through the lens of transitional justice, allowing us to wield the power of heritage to challenge the status quo, as is happening with the preservation of the Rainbow Warrior as a heritage site and the creation of underwater sculptures in the Caribbean. Thinking pragmatically about heritage can help us create a better society and challenge the way things have been done.

Chris Patterson 51:17
Indeed, this is happening now in both New Zealand and Australia. The residential property markets have surged, leading to issues related to housing, density, and the protection of heritage listings. Many cities are grappling with these challenges, as increasing population and housing needs collide with preserving cultural and historic heritage. Your book provides insights into these issues, helping us consider the consequences of protecting heritage and the evolving nature of heritage conservation.

Chris Patterson 53:10
Thank you, Dr. Lucas Lixinski, for joining me on The Law Down Under Podcast. Our discussion has been insightful and thought-provoking. We appreciate your contribution to the conversation.

Lucas Lixinski 54:16
Thank you for having me. I had a great time.

Chris Patterson 54:19
Thank you for tuning in to this episode of The Law Down Under Podcast. You're welcome to join the discussion on my podcast page, which you can access at patterson.co.nz. Thanks for supporting the podcast, and stay tuned for more insights on the law, its application, and the future of the legal landscape in the Southern Hemisphere.