The Ethics of/in Negotiating and Regulating Cultural Property

The protection of traditional culture and associated material and immaterial resources and practices has been on the agenda of both national and international organizations for several decades. In terms of legally binding rights, however, the survey of what has been accomplished so far is rather sobering. Especially indigenous organizations, minority groups and developing countries have been fobbed off with declarations and conventions contributing little to solving specific grievances. This shouldn’t come as much of a surprise, of course, as the ideals of human rights, equality or transnational justice are very rarely in accordance with social, much less economic reality.

The ideologies efficacious for the nexus of culture and its protection, preservation, or safeguarding entail conceptions of traditional culture compatible with codified law and political structures. As Dorry Noyes has argued:

…the public rhetoric is wholly disconnected from the workings of traditional culture (that is, all culture) in practice. This is a major cause of the perverse effects of many protection efforts. Terms like “community” and “identity” draw on modern Western conceptions of both individuals and polities as bounded entities, which in different ways have shaped the intellectual property law promoted by WIPO, the romantic ideology of community informing UNESCO, and the modern order of nation-states that regulates the operations of both intergovernmental organizations. In formalizing these ideologies, institutions fail to capture the actual social organization of cultural invention. (Noyes 2010:2)[1. Noyes, Dorothy: Traditional Culture: How does it work? CP101 Concepts and Institutions in Cultural Property Working Paper 1/2010 (PDF)]

Unsurprisingly, instead of juxtaposing the obvious mismatches between such conceptions—and furthermore those between state sovereignty and indigenous struggles for self-determination; or intellectual property legislation and alternative property notions—, actors in international negotiations on cultural property make use of communicative strategies preventing their explication.

Our research in the first phase of the DFG Research Unit on Cultural Property has shown that one way to achieve this is by using highly ideological referential frames acknowledging human rights (and their subsets of economic, social, and cultural or indigenous rights) and broader normative frameworks as the basis for negotiations. According to these referential frame, cultural property negotiations are legitimated by ethical concerns. Yet, this acknowledgement of an ethical basis for negotiations is often turned on its head: when every single actor at the negotiation table seemingly agrees to the rights claims to prevent the misappropriation of traditional culture, the problem becomes a technical or procedural one, and not a political one. Not discussions about rights or justice, but questions about how to integrate claims in existing legal and political frameworks are in the spotlight of deliberations.

Accordingly, ethical issues in negotiations on cultural property are addressed only on rare occasions. The dynamics of negotiating are often conceptualized as a sufficient realization of ethical claims leading to the installation of a committee or a working group, so that by some actors—mostly state actors—the explication of ethical aspects during the course of negotiations is seen as a hindrance or an annoyance. This leads to the paradoxical situation that fundamentally ethical discourses delegitimize the explication of their ethical basis, privileging instead technicalized formal language and procedural discussions lacking references to ethics. Ethical concerns are viewed as valid and partially constructed as a reason for the implementation of a specific committee or decision-making body, but they are simultaneously neglected and thrust aside as irrelevant for the purposes of negotiations and appear non-pertinent in legal and contractual frameworks. The voicing of specific ethical concerns, e.g. by NGOs or indigenous observers and participants in such meetings is accordingly viewed as insubstantial for the specific procedural and technical matters.

The sub-project “The Ethics of/in Negotiating and Regulating Cultural Property” sets out to map and deconstruct moral grammars and their sparseness in international organizations in order to contribute to a broader understanding of the ethics of and in negotiating and regulating cultural property. Central to ethical questions in cultural property debates are concepts of morality, legitimacy, and justice, each presupposing and at the same time constituting ideologies in negotiations on and regulatory practices of cultural property. Focusing on international organisations dealing directly or indirectly with matters of cultural property as well as on the case studies from the DFG Research Unit on Cultural Property, the sub-project employs an analytical framework derived from linguistic anthropology to examine these rhetorics implicit or explicit in communicative interactions.

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