Cultural Heritage Protection and Sacred Spaces: Considering Alternative Approaches from Within the Human Rights Framework

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Leonard Hammer (B.A., J.D., LL.M., Ph.D) lectures at Hebrew University, Israel, and the University of Arizona, United States.

In many respects, the international system fails to protect cultural heritage. Both in times of warfare and civil strife and in times of peace, existing avenues for cultural heritage protection do not always succeed at preserving important cultural heritage sites. Even when the international community seeks to protect cultural heritage through judicial oversight, the effort is usually ex post facto and thus too late to actually preserve the destroyed cultural heritage. Challenges to cultural heritage protection are exacerbated considering that sacred spaces might not solely be a focus for preservation, but also include notions of use and protection given the spiritual significance of the site itself. Sacred space protection not only aims to preserve cultural property for the welfare of humankind writ large, but also considers the use of such space for religious practices or pilgrimages and seeks to ensure the preservation of a holy site on behalf of a particular group given its spiritual connection to a space. The unique nature of sacred space further suggests that it merits some form of international protection beyond what is available under the current cultural heritage regime. This Article will analyze potential sources for sacred space protection under the cultural heritage protection regime, noting some of the problems created by the current framework and the challenges they present for sacred space protection. The Article will then offer a potential source for protection of sacred spaces based on the international human right to freedom of religion or belief, pursuant to the current interpretation accorded to the right. Previous attempts to use the freedom of religion to protect sacred space have relied on the right when the use of the sacred space is part of a mandated and necessarily manifested religious act or when the sacred site is used by indigenous peoples. The interpretation of the right to freedom of religion or belief in this Article embraces an emerging group approach that includes indigenous people and centers on defining the contours of a belief. It also reflects broader understandings emerging in international human rights bodies and tribunals. The Article also will incorporate into its analysis a social constructivist approach to human rights, whereby the socialization process of human rights may encourage reliance on the human right to freedom of religion or belief as a potential ground for long-term sacred space protection. Reliance on freedom of religion, as opposed to cultural heritage protection, provides a relevant and conceptually-aligned basis for sacred space protection that better encapsulates the interests and meaning of necessary protection.

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