Uncovering convivencia from the dark depth of modernity: toward intercultural rights to

heritage.

Francesco Orlandi

La esperanza del indio es absolutamente reolucionaria.

Jos Carlos Maritegui, Prlogo a Tempestad en los Andes de L. Valcarcel, 1927
Qhip nayr utasis sarnaqapxaani.
[Looking at the future-past we will walk throughout the present] Aymara proverb

To talk about the role of archaeology in fostering social justice and coexistence within a global
multicultural landscape means to stress the relationship between heritages and rights. As it has been
pointed out (Silverman&Ruggles 2007, Blake 2011, Logan 2014), it was only recently that these
fields have been received more attention in their positive as well as negative mutual relations. This
has been a consequence of the growing concerns for cultural rights of specific categories of persons
belonging to communities which do not fully recognize themselves as part of the dominant national
community, such as minorities and indigenous peoples, but it has also been a response to the
intentional destruction of cultural heritage during armed conflicts, especially after the civil war in
former Yugoslavia, and the deliberate erasure of the material references of the past carried out by
fundamentalist groups, and here we have the images of the statues of Buddha in Bamyian destroyed
by the Talibans in Afghanistan and the more recent attacks against heritage and cultural diversity
perpetrated by Daesh in Syria and Iraq that show the importance and the tragic actuality of cultural
cleansing1 in both contemporary international relations and heritage conservation debates.
It is worth remembering that the United Nations Education, Science and Culture Organization
(UNESCO) plays a crucial role in the development and the strengthening of a human rights based
approach to cultural heritage practices since its constitutional mandate declares that since wars
begin in the minds of men, it is in the minds of men that the defences of peace must be
constructed". However, its inter-governmental nature constrains the Organization from effectively
achieving the universal purpose of promoting and protecting cultural diversity (e.g. Herzfeld
2012:49). Following international legal scholar Janet Blake, cultural heritage means many things
to many people (and group of people) and the challenge facing international law in this field is to
try to satisfy as many of the legitimate interests in heritage as possible, while, at the same time,
operating within a system established by and for sovereign and equal States (2015: 21-22). The
limits of a human rights based approach to cultural heritage, both tangible and intangible, are those
1 Bokova, Irina Heritage and Cultural Diversity at Risk in Iraq and Syria, Report on UNESCO Conference, Paris, 3
December 2014, p.3. Available at
http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/CLT/pdf/IraqSyriaReport-en.pdf
that hinder a full respect of peoples' rights, namely the persistence of States privileges and national
interests (Coombe and Baird 2015; Vrdoljak 2015: 542; Meskell 2010: 849).
A more effective development in reinforcing the relationship between heritage and rights has to be
sought in human rights documents rather than in cultural heritage law, which is more tied to a
national sovereignty approach based on ownership than human rights law whose very aim is to
promote social justice and well being within and among people. It is worth mentioning here the
General Comment No.21 Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the
International Covenant on Economic, Social and Cultural Rights) in which the Committee offers a
definition of culture as a a broad, inclusive concept encompassing all manifestations of human
existence and it fosters a broad interdependence within the rights proclaimed in the Convention as
well as indicates the duties of the States to guarantee the right to take part in cultural life as a
freedom not only concerning the individual relations to the national community, but also regarding
those of minorities and indigenous peoples as individuals and as groups which aspire to safeguard
their cultural life as a living process, historical, dynamic and evolving, with a past, a present and a
future2.
The same efforts have been undertaken by the work of the first Independent Expert in the field of
Cultural Rights of the UN Council of Human Rights, Prof. Farida Shaheed. In her first report
submitted to the Council she addressed specifically to The right of access to and enjoyment of
cultural heritage3 and she stated that [c]onsidering access to and enjoyment of cultural heritage as
a human right is a necessary and complementary approach to the preservation/safeguard of cultural
heritage [] Cultural heritage is linked to human dignity and identity. Accessing and enjoying
cultural heritage is an important feature of being a member of a community, a citizen and, more
widely, a member of society (para. 2). Dealing with the relationship between cultural heritages and
human rights entails straining that [d]epending on their own histories, communities may have
diverging interpretations of a specific cultural heritage, which are not always taken into
consideration in implementing preservation/safeguard programmes. Particular aspects of the past
may be emphasized or removed, in line with political processes and the will to shape public
opinion, to unite or separate peoples and communities (para. 11). That is way Farida Shaheeds
Report underlined that [i]ndividuals and communities cannot be seen as mere beneficiaries or users
of cultural heritage. Access and enjoyment also imply contributing to the identification,
interpretation and development of cultural heritage, as well as to the design and implementation of

2 Committee on Economic, Social and Cultural Rights, General Comment No. 21. Doc. E/C.12/GC/21, 21 December
2009. Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?
Lang=en&TreatyID=9&DocTypeID=11
3 Council of Human Rights, The right of access to and enjoyment of cultural heritage. Report of the Independent
Expert in the field of Cultural Rights, Farida Shaeheed. Doc. A/HRC/17/38, 21 March 2011. Available at
http://www.ohchr.org/EN/Issues/CulturalRights/Pages/AnnualReports.aspx
preservation/safeguard policies and programmes, therefore [e]ffective participation in decision-
making processes relating to cultural heritage is a key element of these concepts (para. 58). As
remembered by Shaheed, cultural heritage [] encompasses both history and memory, thus
memorialization process is another key factor in the relationship between heritages and rights that
has been addressed by Farida Shaheed in another report since [m]emories are subjective processes
anchored in experiences and the material and symbolic markers of specific cultural interpretative
frameworks4. Memorialization processes concern the past but also the present and the future,
wherefore they could be therapeutic inasmuch as they promote a culture of democratic
engagement by stimulating discussion regarding the representation of the past and contemporary
challenges of exclusion and violence (para. 13), and they could also have an emancipatory function
within society that can help design new cultural landscapes, encompassing and reflective of the
plurality of culturally diverse perspectives (para. 47).
Farida Shaheed also remembered that such an awareness of the close relationship between heritages
and rights has been made possible thanks to indigenous peoples claims and perceptions about what
they consider to be their heritage5. It is worth mentioning that Shaheed considers the prior, free
and informed consent as a useful instrument to be implemented for guaranteeing peoples right to
access and enjoyment of heritage6. That is the most important legal instrument enabling indigenous
peoples to pursue a self-determined development as it has been proclaimed in the International
Labour Organization Convention No. 169 and in the United Nations Declaration on the Rights of
Indigenous Peoples7. Moreover, the latter document explicitly refers to the right of indigenous
peoples to maintain, protect and develop the past, present and future manifestations of their
cultures, such as archaeological and historical sites (art. 11), and it makes clear that heritage
issues cannot be separated from questions concerning land rights, control over natural resources and
self-determination (art. 12-31)8. However, this last point is the most controversial in regard to a
fully implementation of indigenous rights within the frame of independent National States that are
sceptical to reduce the sovereignty over their territories.

4 Council of Human Rights, Memorialization Processes. Report of the Special Rapporteur in the field of cultural
rights, Farida Shaheed. Doc. A/HRC/25/49, 23 January 2014, para.13. Available at
http://www.ohchr.org/EN/Issues/CulturalRights/Pages/AnnualReports.aspx
5 Report of the Independent Expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to
resolution 10/23 of the Human Rights Council. Doc. A/HRC/14/36, 22 March 2010, para.19 [t]he approach taken
by indigenous peoples also stimulates further thinking on the subject, as they view culture as holistic and all-
inclusive, such that each and every human rights topic includes a cultural dimension. Available at
http://www.ohchr.org/EN/Issues/CulturalRights/Pages/AnnualReports.aspx
6 Council of Human Rights, The right of access to and enjoyment of cultural heritage. Report of the Independent
Expert in the field of Cultural Rights, Farida Shaeheed. Doc. A/HRC/17/38, 21 March 2011, para. 80(c).
7 Convention concerning Indigenous and Tribal Peoples in Indipendent Countries, ILO 27 June 1989 (entry in force
5 September 1991), available at http://www.ilo.org ; Declaration on the Rights of Indigenous Peoples, United
Nations, 12 September 2007, available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf;
8 Also see the Study of the Expert Mechanism on the Rights of Indigenous Peoples Promotion and protection of the
rights of indigenous peoples with respect to their cultural heritage, Doc. A/HRC/30/53, 19 August 2015, available
at http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/30/53
The point that deserves attention is the emerging links between heritage and rights within the
international debate as a consequence of the two main unfinished project of the XX century, namely
globalization and decolonization (cfr. Clifford 2013:5-6). It is a response to the presumed
homogenisation of cultures delivered by a one-way western globalization, and it entails the crisis of
the alleged emancipatory power of modern national and post-colonial States (Anghie 2006).
Nevertheless, taking cultural diversity into account might also be seen as an attempt to
reformulate the same world legal order that once was implemented to eclipsed or transform the
diversity of indigenous or local minority cultural expressions in the name of national community,
civilization and development (Vrdoljak 2006, Rajagopal 2003, Escobar 1995). The deployment
of these multicultural policies keeps the external production and representation of otherness
unchanged and consequently it still maintains an authoritative control over cultural diversity which
might lead to crystallising the living culture of people into political and economical commodities
or into reframed scientific objects in detriment to free choices and self-determination (e.g. Smith
2007, Benavides 2009). For that reason indigenous claims over their cultural heritage are so closely
related to discourses of human rights, cultural integrity and sovereignty over natural resources
which contrasts with retentionist and internationalist approaches developed by and for national
States (Watkins 2005, Gilbert 2010). By assuming the inherent cultural - that means relational and
political - perspective on freedom, aspirations and rights (Anaya 2009, Stavenhagen 2001),
indigenous peoples' rights to heritage are not a concession from a universal ethical paradigm of
recognition, evolved within a unilaterally western conceptual and scientific frame of reference.
Indeed, I think that they should be advocated as the particular way by which local heritage values
and interpretation of human rights are articulated in a heterogeneous and unequal social landscape
in order to be not merely object but subjects of multicultural policies. Taking indigenous histories
and values seriously entails reconsidering the assumption that cultural diversity is worth being
preserved for the good of humanity and beginning to look at the universalism of human rights
through the difference of experiences and interpretations (Sousa Santos 1997, Engle 2010,
Lenzerini 2014).
This leads to look critically at the politics of recognition upon which multiculturalism is designed
and to reflect on misrecognition where dominant patterns of cultural value (both institutional and
societal) prevent some communities from participating on a par, as peers, with others in social life
(Taylor 1994, Fraser 1999). By doing so I wish to address Seyla Benhabibs interactive univeralism
according to which I can learn the whoness of the other(s) only through their narratives of self-
identification [] I can become aware of the otherness of the others, of those aspects of their
identity that make them concrete others to me, only through their own narratives (2002:14). What
is at stake is human capacity to remember and be remembered as an individual and as a person
within a cultural frame of social relations and democratic iterations [which] not only change
established understandings but also transform what passes as the valid or established view of an
authoritative precedent (Benhabib 2006:48). In Homi Bhabhas words, it is a right to narrate
understood to mean the freedom of performing and developing ones own culture correlated to a
mutual responsibility to hear what ones relevant others have to say and underpinning inter-cultural
conversations (Bhabha 2014). A stronger relationship between heritages and rights is worthwhile
for local histories shaping the global discourse to the extent of establishing a foundation of rights
and citizenships within the scope of interactions among different values, histories and experiences.
Therefore, it raises the question whether or not heritage social practices might be assumed as part of
a critical cosmopolitan commitment and which is the place for archaeology within this frame?
According to the philosopher Kwama Anthony Appiah cultural heritage is a concept in which two
different and powerful imagination processes coexist: on one side, heritage can be assumed as a
connection through the identity of a human group, that is the inter-generational aspect enabling
people to feel themselves as the owners of particular objects created according to a frame of
reference established by their ancestors; on the other side, heritage manifests itself as a connection
despite the differences through what is human in humanity that is the starting point for a truly
cosmopolitan approach (Appiah, 2006: 134-135). This is very correlated to the more recent
developments where heritages and rights relationship has been investigated and sought by
archaeologists as a way to foster social justice and well-being among multicultural societies by
referring to the multivocality of heritage and by calling to an effective participation of the
communities involved (Marshall 2002, Colwell-Chanthaphonh 2012, Atalay 2012). Such an ethical
turn leads archaeologists and other heritage practitioners to be more aware of the political and
social outcomes of their disciplinary practice since [they] have been for too long focused on
objects rather than people (Hodder 2010: 879, also see Meskell 2009, 2010, Ireland&Schofield
2015). Community participation is aimed at improving connections despite the differences of
perspectives between the scientific approach to the past and the cultural knowledges spread by
intimate relations (Atalay 2008, Trigger 2008, Colwell-Chanthaphonh et al. 2010): within this
framework archaeologists task is to mediate between the two poles of universalism and cultural
particularism to the extent that they work for local communities being able to have benefits in
political and economical meanings. This is a rooted cosmopolitanism (Appiah 1997) that leads to
a complex stewardship whose commitment is filling the existing gap in terms of capabilities by
giving to specific disenfranchised people the instruments for reaching the highest standard of
conservation and management that suit with the trans-generational desire for cultural integrity and,
at the same time, with the global concern for preserving and accessing the cultural heritage of
humankind (Colwell-Chanthaphonh 2009:160-161). The most recent reviews of the Operational
Guidelines for the implementation of the World Heritage Convention reflect this trend by taking
collaborative and communitarian heritage practices and the free, prior and informed consent into
account for the sake of the very credibility of the World Heritage List (Gfeller 2015, Labadi 2013)9.
However, this approach to cosmopolitan heritage must be extended and supplemented in so far as
the human in humanity may be more difficult to define than the way that Appiah simply puts it
(e.g. Mignolo 2000, 2009, Mendieta 2009), and also because the rooted identity feelings declined
in a patriotic sense are not the only political sentiments enabling people to connect each other
although they dont know each other: indeed, there are also the resistances exercised against them
that has to be considered as a valuable cosmopolitan commitment stemming from below, by those
who were and still are the victims of the authoritative connections of global and national interests
(e.g. Bhabha 2001, Sousa Santos&Rodrguez-Garavito 2005). Edward Said analysing Frantz
Fanons work highlighted how the power of erasing, excluding or assimilating local narratives
permeates both colonial and national imagination (1993: 273). That is way archaeology must
delink (sensu Mignolo 2007) from its modern/colonial roots and national conception about
history and time to be able to promote peoples liberation and self-determination by truly accepting
others values, histories and knowledges as equally participants in the definition and in the social
practices surrounding heritage (Smith&Wobst 2005, Atalay 2006, Verdesio 2013, Gnecco 2013,
Haber 2014). A deeper understanding of the way by which heritage multivocality is activated can
show the criticism of multicultural policies regarding cultural heritage management and its
exploitation as an economic resource, and the ritualised reference to cultural rights on the part of the
States responsible for their implementation, or lack thereof; by doing so it is possible to shed light
on the limits of a liberal cosmopolitan approach to the relationship between heritage and rights.
According to James Clifford (2013: 259) [w]hen they are understood as part of a wider politics of
self-determination, heritage projects are open ended in their significance: thus, the communitarian
based approach to the management of cultural heritage and the social and collaborative
archaeologies might be a decolonising tool, provided that they are aimed at the mutual recognition
of the subjectivity of the Others within the frame of their respective self-determined differences,
which is something more than just discovering the multicultural and neo-colonial diversity by a
univocal subject who acts from an arrogantly supercilious point of view (Angelo, 2011, Menezes et
al. 2014, Rizvi 2015). Referring to the connection between human rights and development
discourses, international legal scholar Balakrishnan Rajagopal stated that the universal is the self-
representation of the metropole while the culture is the description of the periphery (2003: 206):
this seems to me very close to the criticism of a community engagement in heritage practices that
doesnt look critically at the way by which the community is portrayed in relation to cultural
9 Operational Guidelines for the Implementation of World Heritage Convention, paras. 40-123. Doc. WHC-15/0, 8
July 2015. WHC-15/39.COM/19. Available at http://whc.unesco.org/en/guidelines/
rights and by doing so it continues reframing a static view of no European-Western Others as
people without history (Wolf 1982, also see Hernando 2006, Waterton 2015, Gonzlez-Ruibal
2015). Moreover, it looks like that an hegemonic relationship between heritages and rights reflected
in ethical codes is being used to control and silence the political resistances exercised by local and
indigenous movements against the very same logic which now eventually recognizes their cultural
diversity (cf. Hamilakis 2007, Haber&Shepherd 2015). Indeed, if it is true that multicultural
archaeologies opened the practice to local actors and to other interpretations, they also found a path
to broaden the modern logic above the past without discussing the power relations that made it
possible (Gnecco 2015: 4-5). Following Cristobal Gneccos critics of multicultural policies, the
Other is subsumed in the sameness of the ethical code, premised as a liberating cooperation. In the
absence of a thorough discussion about power, capitalism, multiculturalism, and inequalities, []
ethics is meaningless, especially if social justice is at stake (Gnecco 2015:3).
Archaeology is cosmopolitan not just because it mediates between local histories and geographies
and a global concern for cultural diversity in the name of humanity. It is also an element of a dark
cosmopolitanism stemming from the very origin of the archaeological thought as a modern
concern for the past which was implemented for establishing a global colonial classification of
extra-european cultures and peoples due to their alleged primitivism or exoticism (Trigger
1989, Daz-Andreu 2007, Nicholas&Hollowell 2007, Liebmann&Rizvi 2008, Gonzlez-Ruibal
2010). Conversely, for archaeology being part of a critical vernacular cosmopolitanism (Gonzlez-
Ruibal 2009) it must bring the historical modern/colonial connections established between heritages
and rights into question, and in so doing archaeology might create third spaces (milieux de
mmoire), simultaneously in the past and in the present (Gonzlez-Ruibal 2013:15) where
alternative tropes might be engendered out of the authorized discourses of both heritage and right.
As a consequence, archaeologists and heritage practitioners should be aware of the blindness of
their scientific discipline in order to pursue a truly critical, decolonial and social commitment
toward themselves and the people they are working with (Sousa Santos 2001). Quoting Boaventura
de Sousa Santos words, [a]n epistemology of seeing is one that inquires into the validity of a form
of knowledge whose point of ignorance is colonialism and whose point of knowing is solidarity.
While in the hegemonic form of knowledge we know by creating order, the epistemology of seeing
poses the question of whether it is possible to know by creating solidarity. Solidarity as a form of
knowledge is the recognition of the other both as an equal whenever difference makes her or him
inferior and as different whenever equality jeopardizes his or her identity (Sousa Santos 2001:269-
270).
A colonial link between heritages and rights can be found in a project of modernity which is rooted
in the encounter between the European world and the indigenous worlds, that is when the particular
logics, systems of thought and ways of life of the latter served as the basis from which the former
was able to define its universalistic and market-oriented vision on rights (Barreto 2013). That is
why recovering lost memories and revitalizing cultures can be assumed as part of a mutual
decolonial aptitude (cf. Fanon 2004:149; Gnecco 2013:70). Taking the point of view of the
resistances exercised by those who have been excluded from the full enjoyment of universal human
rights implies recovering those other-histories - or following Michel Rolph-Trouillots definition for
the Haitian Revolution the unthinkable events (1995: 73) - which were silenced by the dominant
tropes but which are nevertheless a constituent part of a common relational story (also see Rizvi
2015:162). Coloniality has been defined as a constitutive part of modernity, that is a technology of
power based on the racial and social classification of the Others (e.g. Quijano, 2008). This is an
intellectual frame that allows examining the way by which a modern univocal perspective emerged
in heritage and right paradigms as well as in their relationship. Since indigeneity is a rooted,
historical and diasporical category (Clifford 2013), looking through it entails considering the logic
of inclusion/exclusion as the main feature of a project of modernity that was born in crisis and as
crisis (Barreto 2014:166). Therewith the historical convivencia could be useful for our purpose if
we look at its very end: when under the premises of the universality of Christians belief and way of
life it was established that different people were supposed to dismiss their cultures in order to be
juridically part of a shared territory (Prosperi 2011: 24). This means that entitlement is strictly
linked to cultural belonging, and, whether or not one decides to accept the alleged universal logic of
inclusion, he or she is always in a subordinate position of being almost the same but not quite
(Bhabha 1994: 122-123): in the old as well as in the new world, the inclusion through laws is
constrained by the perceived menace of cultural diversity which is normalized by the exclusion of
other histories and values in the common understanding of living together (Prosperi 2011: 123).
Following Nelson Maldonado-Torres' conceptualization of the coloniality of being as the lived
experience of colonization (2007: 242), the origin of sub-alterity - the sub-ontological difference
classified and ranked by the dominant ego of the European modernity and pos-modernity (cfr.
Dussel 1995, Castro-Gmez 2007) can be reached in the processes which led to the naturalization
of the non-ethic of war within the relations among the European conquistadors, from one side,
and the American indigenous peoples and the African slaves, from the other one (Maldonado-Torres
2007: 255-256). That is exemplified by the sixteenth century Debate of Valladolid on the nature of
the indios which opposed the pro-slavery arguments of Juan Gins de Seplveda and the
assimilation topics of Bartolom de Las Casas who advocated indigenous' humanity and
consequently their deliverance through the Christians' religion. The question of the just war and
the other one about the humanity of the Others were closely linked, and despite the Lascasian
arguments prevailing, the established asymmetrical relation couldn't go beyond the fact that the
Other is a human prejudicially and permanently defeated.
It is known that Tzvetan Todorov, in his work about the cultural dynamics of the Conquest of
America, remarked on Las Casas' arguments as part of an inclusion/exclusion logic in which the
love for the others led to the disappearance of the otherness and to the control of the alterity
(1992: 204-221). Though, the shortcomings of his experiments of the reductions of Indios libres and
his own life lived brought Las Casas to reconsider his position once he retired. Todorov himself
recognizes this evolution identifying Lascasian perspectivism as the highest form of relativism
where the Other is assumed in its very difference (1992: 233). According to Enrique Dussel, in his
last years Bartolom de Las Casas developed a more radical theory about the responsibility that
everyone has to assume towards the freedom of the Other since legitimacy stems from consensus
among people (Dussel, 2005: 46). In fact, in his last works (i.e. De Regia Potestate, De Thesauris,
Tratado sobre las Doce Dudas) Las Casas not only condemned the brutality of the Spanish conquest
and the regime of encomienda which had reduced the natives to a de facto slavery, but he also
pledged to the affirmation of an indigenous sovereignty on their lands. Las Casas considered that
only the true respect for the self-determination of indigenous institutions, cultures and ways of life -
even if he did not understand them completely would have been the way to build a consensus
among people and to live together in the same shared territory. In so doing, the Dominican referred
to the same legal and canonical topics used by other scholars for legitimating Spanish conquest but
he used them in order to entitle indigenous peoples of those rights that conquistadors claimed for
themselves. Already in this primitive phase of globalization, Las Casas seemed to be aware that the
rights of the Others were eclipsed by the same universal paradigm legitimating the rights of the
strongest.
Notably in the De Thesauris, Bartolom de Las Casas explained an argument that brought the right
of indigenous peoples to live and rule according their own logic that is their natural freedom -
together with the capacity to remember through their cultural memory connected to specific places
such as the wak'as, sacred sites or objects that actively interact with the communities. The
Dominican put three reasons forward to his argumentation: first, the aspiration to take pride, honour
and glory from the burial of valuables together with the body is innate in human beings in order to
be remembered by posterity; secondly, this aspiration not only concerns the dead but also the living
who were close for a matter of kinship, friendship or love; finally, the act of burying valuables is
evidence that neither the dead nor the living wished to renounce their right of ownership on those
objects (Ibid.: 21-47). Therefore, such valuables are inappropriately classified as treasures, that is
no one can search and take them without harming the population not only through the material
plunder but also, even more seriously, erasing its memory and that of ancestors (Ibid.: 55). Las
Casas was concerned about the sacredness of the entanglement between a human group and its own
cultural memory mediated by special things, places or events to be transferred to closer people and
next generations: is this not about heritage?
Furthermore, such an argument allowed Las Casas to further his theory on indigenous sovereignty
as the basis for a new inter-cultural convivencia between the Europeans and the Amerindians.
According to the Dominican every human society is free by natural law, and this freedom manifests
itself due the fact that an agreement exists and that is recognized by the sovereign and the people
(Ibid.: 307-315). That is what makes a cession of sovereignty lawful only when people can express
their agreement to the new rulers, and if this is not granted people are entitled to disagree and to
resist even with the force (Ibid.: 211-213). Since the rulers exercise their dominium by natural law
granting the consent of people, thus by the means of the same authority American indigenous
peoples could properly demonstrate that the Spaniards were tyrants who invaded sovereign
kingdoms against the same law of nations they invoked for conquering them (Ibid.: 335).
Whether they be issues of plundering heritage or of imposing a domain without the consent of the
people, what is at stake, according to Las Casas, is peoples capacity and liberty to make a free
choice. Since there is no absolute title applicable outside of a social relationship frame, he fostered
fairer relations among peoples by promoting an argument that seems very close to the debate
around the legal instrument of prior, free and informed consultation and consent which is central to
the contemporary implementation of indigenous peoples rights and, as stated above, also to the
formulation of an autonomous right to heritage. According to Las Casas, even though the Spaniards
might achieve a just title to trade and to predicate Christian religion (Ibid.: 393-397), nevertheless,
they have to respect indigenous authority and institutions through making public and conciliating
notification of their purpose within a reasonable time. Quoting Las Casas words:
la citada notificacin acerca de la causa y el fin de la llegada de los espaoles, que tiene que
hacerse y anuciarse a las gentes y habitantes de aquel mundo de las Indias, debe ser oportuna,
pacfica (esto es: libre de cualquier perturbacin que pueda afectar el entendimiento y la razn),
suave y amistosa, muy moderada y conciliadora de los nimos de los oyentes; finalmente debe
hacerse lentamente, en el transcurso de un cierto tiempo y no de repente (en el momento de la
llegada de los espaoles) (Ibid.: 179).
Las Casass work shows an exceptional awareness on the spiritual relation tying human beings to
special places as a constitutive part of their freedom and self-determination, and, where appropriate,
of their right of resistance against the oppressors. Hence, archaeology should work for recovering
those alternative stories through the material culture resistances that allow to shed light on the
relationship between heritages and rights out of a modern/colonial frame in the very early
modernity as well as in the contemporary past (Gonzlez-Ruibal 2009, 2013, Harrison&Shofield
2009). Thus a peoples right to heritage could be considered as the title of performing and narrating
ones own collective history in order to pursue a self-determined development in relation to ones
relevant other. By granting each peoples capacity of self-identification and narration, another
cosmopolitanism can be achievable, as Homi Bhabha (2001) and Seyla Benhabib (2006) have
pointed out, in which the otherness of the others is recognised in its very difference as well as in its
equal dignity.
As stated by the Brazilian anthropologist Eduardo Viveiros de Castro, assuming the subjectivity of
the Other in its own differences, histories and ways of life could lead to misunderstandings, but they
are the very misunderstandings which highlight the equivocation that is not that which impedes the
relation, but that which founds and impels it: a difference in perspective (2004: 10). The above
briefly summarized work of Las Casas can be thought of as a starting point, because the
equivocation stemming from the plundering of indigenous wakas is correlated to the limits of both
indigenous and Spaniards understanding of each other (also see Bray 2015, Gnecco&Hernndez
2008). The Author acknowledged his place of enunciation and the colonial difference (Mignolo,
2008) and he made an attempt for translating others values and histories into the understandable
conception of the rising European law of nations in order to foster a fairer legal global framework
than the one implemented by the Spaniards. A new inter-cultural convivencia in our societies can be
pursued, then gradually built, through the act of controlling the equivocation to achieve a
translation that is a knowledge presuming a difference (Viveiros de Castro, 2004: 20), inasmuch it
would not avoid the inherent debatability of the past (Appadurai 1981:218) which is constitutive
of the dialectic around cultural heritage in contrast to their naturalization and silencing assumed by
the authorized discourse of multivocality. By conceiving human rights and cultural heritages as a
relationship made of relevant social relations, we prepare the ground for conversations where the
mutual acknowledgement and the honesty with regard of ones own place of enunciation might
create a movement forward a collective disalianation in which two subjects can reflect together on
their experiences and on the perspectives that each has on his/her relevant Other (Rivera
Cusicanqui, 1987: 62).
In conclusion, a relational perspective on cultural heritages and human rights would be considerable
and advisable so that the social practices around them may influence each other. I hope that I have
made clear that archaeologists should move from a logic of recognition of cultural diversity to a
logic of gratitude for differences. Therewith I would like to conclude by quoting the words of judge
A.A. Canado Trindade: Remembrance is a manifestation of gratitude, and gratitude is perhaps the
noblest manifestation of rendering true justice10.

10 Inter-American Court of Human Rights, Case of the Moiwana Community v. Surinam. Separate Opinion of judge
A. A. Canado Trindade. Judgement of June 15, 2005 (Preliminary Objections, Merits, Reparations and Costs),
para. 93. Available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_124_ing.pdf
References:
Anaya, S. J. (2004) International Human Rights and Indigenous Peoples: The Move Toward the
Multicultural State. Arizona Journal of International and Comparative Law 21(1):13-61.
Angelo, D. (2011) Turning Tables in search of Dialogue: The making of indiscrete spaces in Latin
America. In C. Gnecco and P. Ayala (eds.) Indigenous Peoples and Archaeologies in Latin
America. Walnut Creek: Left Coast Press. pp. 89-108.
Anghie, A. (2006) Nationalism, Development and the Postcolonial State: The Legacies of the
League Of Nations. Texas International Law Journal 41: 447-464.
Appadurai, A. (1981) "The past as a scarce resource". Man, 16(2): 201-219.
Appiah, K. A. (1997) Cosmpolitan Patriots. Critical Inquiry 23(3): 617-639.
- (2006) Cosmopolitanism. Ethics in a World of Strangers. New York: W.W. Norton & Company.
Atalay, S. (2006) "Indigenous archaeology as decolonizing practice". The American Indian
Quarterly 30(3): 280-310.
- (2008) Multivocality and indigenous Archaeologies. In J. Habu, C. Fawcett and J.M.
Matsunaga (eds.) Evaluating multiple narratives: beyond nationalist, colonialist, imperialist
archaeologies. New York: Springer. pp. 29-44.
- (2012) Community-based archaeology: Research with, by, and for indigenous and local
communities., Berkeley&Los Angeles: University of California Press.
Barreto, J.M. (2013) Imperialism and Decolonization as Scenarios of Human Rights History. In
J.M. Barreto (ed.) Human Rights from a Third World Perspective: Critique, History and
International Law. Newcastle upon Tyne: Cambridge Scholars Publishing. pp. 140-171.
- (2014) A Universal History of Infamy: human rights, colonialism and modernity as crisis. In P.
Singh, and B. Mayer (eds.) Critical International Law: Post-Realism, Post-Colonialism, and
Transnationalism. Oxford New Dheli: Oxford University Press. pp. 143-166.
Benavides, H. (2009) Translating Ecuadorian Modernities: Pre-Hispanic Archaeology and the
reproduction of Global Difference. In L. Meskell (ed.) Cosmopolitan Archaeologies.
Durham&London: Duke University Press. pp. 228-248.
Benhabib, S. (2002) The Claims of culture: Equality and Diversity in the Global Era. Princeton:
Princeton University Press.
- (2006) Another Cosmopolitanism. Ed. and Intro. By R. Prost. New York: Oxford University
Press.
Bhabha, H. (1994) The Location of Culture. London&New York: Routledge.
- (2001) Unsatisfied: notes on vernacular cosmopolitanism. In G. Castle (ed.) Postcolonial
Discourse: an Anthology. Oxford: Blackwell Publisher. pp. 38-52.
 - (2014) The right to narrate. Harvard Design Magazine 38. Available at
http://www.harvarddesignmagazine.org/issues/38/the-right-to-narrate
Blake, J. (2011) Taking a Human Rights Approach to Cultural Heritage Protection.
Heritage&Society 4(2): 199-238.
- (2015) International Cultural Heritage Law. Oxford&New York: Oxford University Press.
Bray, T. (2015) Andean wak'as and alternative configurations of persons, power and things. In T.
Bray (ed.) The Archaeology of Wak'as. Exploration of the sacred in the Pre-columbian Andes.
Boulder: University Press of Colorado. pp. 3-22.
Castro-Gmez, S. (2007) The Missing Chapter of Empire: Postmodern Reorganization of
Coloniality and Post-Fordist Capitalism. Cultural Studies 21(23): 428448.
Clifford, J. (2014) Returns. Becoming Indigenous in the Twenty-First Century.
Cambridge&London: Harvard University Press.
Colwell-Chanthaphonh, C. (2009) The Archaeologist as a world citizen: on the morals of heritage
preservation and destruction. In L. Meskell (ed.) Cosmopolitan Archaeologies.
Durham&London: Duke University Press.
- (2012) Archaeology and indigenous collaboration. In I. Hodder (ed.) Archaeological Theory
Today (2 nd edition). Cambridge: Polity Books. pp. 267-291.
Colwell-Chanthaphonh, C., Ferguson, T.J., Lippert, D., McGuire, R.H, Nicholas, G.P., Watkins, J.
and Zimmerman, L. (2010) The premise and promise of indigenous archaeology. American
Antiquity, 75(2): 228-238.
Coombe, R. and Baird, M. (2015) The Limits of Heritage: Corporate Interests and Cultural Rights
on Resource Frontiers. In W. Logan, M. N. Craith and U. Kockel (eds.) A Companion to heritage
studies. Chichester: John Wiley & Sons, Inc. pp. 337-354.
Daz-Andreu, M. (2007) A World History of Nineteenth-Century Archaeology.
Nationalism,Colonialism and the Past. Oxford&New York: Oxford University Press.
Dussel, E. (1995) The Invention of the Americas. Eclipse of the Other and the Myth of
Modernity. Translated by Michal D. Barber, New York: Continuum.
- (2005) Origen de la filosofa poltica moderna: Las Casas, Vitoria y Surez (1514-1617).
Carribean Studies, 33(2): 35-80.
Engle, K. (2010) The elusive promises of Indigenous Development: Rights, Culture, Strategy.
Durham: Duke University Press.
Escobar, A. (1995) Encountering Development: the making and unmaking of the Third World.
Princeton: Princeton University Press.
Fanon, F. (2004[1961]) The Wretched of the Earth. Grove Press, New York.
Fraser, N. (1999) Social justice in the age of identity politics: Redistribution, Recognition and
Participation. In L. Ray and A. Sayer (eds.) Culture and Economy after the cultural turn.
London: Sage. pp. 25-52.
Gfeller, A. E. (2015) Anthropologizing and indigenizing heritage: the origins of the UNESCO
Global Strategy for a representative, balanced and credible World Heritage List. Journal of
Social Archaeology 15(3): 366-386.
Gilbert, J. (2010) Custodians of the land: Indigenous peoples, human rights and cultural integrity. In
M. Langfield, W. Logan and M. Nic Craith (eds.) Cultural Diversity, Heritage and Human
Rights: intersections in theory and practice. London&New York: Routledge. pp. 31-44.
Gnecco, C. (2013) Digging alternative archaeologies. In A. Gonzlez-Ruibal (ed.) Reclaiming
Archaeology: beyond the tropes of modernity. London&New York: Routledge. pp. 67-78.
- (2015) An Entanglement of Sorts: Archaeology, Ethics, Praxis, Multiculturalism. In Gnecco C.
and Lippert D. (eds.) Ethics and Archaeological Praxis. New York: Springer. pp. 1-17.
Gnecco, C. and Hernndez, C. (2008) History and its discontents: stone statues, native histories,
and archaeologists. Current Anthropology, 3: 439-466.
Gonzlez-Ruibal, A. (2009) Vernacular cosmopolitanism. An archaeological critique of
universalistic reason. In L. Meskell (ed.) Cosmopolitan archaeologies. Durham: Duke University
Press. pp. 113-139.
- (2010) Colonialism and European archaeology. In J. Lydon and U. Rizvi (eds.) Handbook of
Postcolonial Archaeology. Walnut Creek: Left Coast Press. pp. 37-47.
- (2013) Reclaiming Archaeology. In A. Gonzlez-Ruibal (ed.) Reclaiming Archaeology: beyond
the tropes of modernity. London&New York: Routledge. pp. 1-30.
- (2015) "Malos nativos. Una crtica de las arqueologas indgenas y poscoloniales". Revista de
Arqueologia 27(2): 47-63.
Haber, A. (2014) Interculturality and Political Action in Undisciplined Archaeology. In C. Smith
(ed.) Encyclopedia of Global Archaeology (vol.6). New York: Springer: 3927-3937.
Haber, A. and Shepherd, N. (2015) After Ethics: Ancestral Voices and Post-disciplinary Worlds in
Archaeology: An Introduction. In A. Haber and N. Shepherd (eds.) After Ethcis: ancestral voices
and post-disciplinary worlds in archaeology. New York: Springer. pp 1-10.
Hamilakis, Y. (2007) From ethics to politics. In Y. Hamilakis and P. Duke (eds.) Archaeology and
Capitalism: From ethics to politics. Walnut Creek: Left Coast Press. pp. 1540.
Harrison, R. and Shofield, J. (2009) Archaeo-ethnography, auto-archaeology: introducing
archaeologies of the contemporary past. Archaeologies 5(2): 185-209.
Hernando, A. (2006) Arqueologa y globalizacin: el problema de la definicin del 'otro' en la
postmodernidad. Complutum, 17: 221-234.
Herzfeld, M. (2012) Whose rights to which past? Archaeologists, anthropologists and the Ethics of
Heritage in the Global Hierarchy of Value. In D. Shankland (ed.) Archaeology and
Anthropology: Past, Present and Future. Oxford&New York: Berg. pp. 41-64
Hodder, I. (2010) Cultural heritage Rights: from ownership and descent to justice and well-being.
Anthropological Quarterly 83(4): 861-882.
Ireland, T. and Schofield, J. (2015) The Ethics of Cultural Heritage. In T. Ireland and J. Shoefield
(eds.) The Ethics of Cultural Heritage. New York: Springer. pp. 1-12.
Labadi, S. (2013) UNESCO, Cultural Heritage, and Outstanding Universal Value: value-based
analyses of the World Heritage and Intangible Cultural Heritage Conventions. Lanham:
AltaMira Press.
Las Casas, B. (1992 [1563]) De Thesauris. Fijacin del texto latino, traduccin castellana,
introduccin e ndices (ideolgico y general) por ngel Losada; notas e ndices de fuentes
bblicas, jurdicas y otras por Martn Lassgue, O.P. Obras Completas, vol. 11.1. Madrid: Alianza
Editorial.
Lenzerini, F. (2014) The Culturalization of Human Rights Law. Oxford: Oxford University Press.
Liebmann, M. and Rizvi, U. (eds.) Archaeology and the Postcolonial Critique. Lanham: AltaMira
Press.
Logan, W. (2014) Heritage Rights Avoidance and Reinforcement. Heritage&Society 7(2): 156-
169.
Maldonado-Torres, N. "On the Coloniality of Being. Contribution to the development of a concept".
Cultural Studies 21(2-3): 240-270.
Marshall, Y. (2002) What is community archaeology?. World Archaeology 34(2): 211219.
Mendieta, E. (2009) From imperial to dialogical cosmopolitanism?. Ethics & Global Politics
2(3): 241-258.
Menezes Ferreira, L., Montenegro, M., Rivolta, M.C. y Nastri, J. (2014) Arqueologa,
multivocalidad y activacin patrimonial en Sudamrica: No somos ventrlocuos. In M.C.
Rivolta, M. Montenegro, L. Menezes Ferreira, J. Nastri (eds.) Multivocalidad y activaciones
patrimoniales en arqueologa: perspectivas desde sudamrica. Buenos Aires: Fundacin Azara.
pp. 15-34.
Meskell, L. (2009) Cosmopolitan Heritage Ethics. In L. Meskell (ed.) Cosmopolitan Archaeologies.
Durham&London: Duke University Press. pp. 1-27.
- (2010) Human Rights and Heritage Ethics. Anthropological Quarterly 83(4): 839-860.
Mignolo, Walter. D. (2000) The many faces of cosmo-polis: border thinking and critical
cosmopolitanism. Public Culture 12(3): 721-748.
- (2007) Delinking. Cultural Studies 21(2): 449-514.
 - (2008) The Geopolitics of Knowledge and the Colonial Difference. In M. Moraa, E. Dussel
and C. A. Juregui (eds.) Coloniality at large: Latin America and the Postcolonial Debate.
Durham&London: Duke University Press. pp. 225-258.
- (2009) Who speaks for the 'Human' in Human Rights?. Hispanic Issues On Line 5(1): 724.
Available at
http://spanport.cla.umn.edu/publications/HispanicIssues/pdfs/MIGNOLO_HRLAIC.pdf
Nicholas, G. and Hollowell, J. (2007) Ethical Challenges to a Postcolonial Archaeology: the legacy
of scientific colonialism. In Y. Hamilakis and P. Duke (eds.) Archaeology and Capitalism: From
ethics to politics. Walnut Creek: Left Coast Press. pp. 59-82
Prosperi, A. (2011) Il Seme dellintolleranza. Eretici, ebrei e selvaggi: Granada 1492. Roma&Bari:
Laterza.
Quijano, A. (2008) Coloniality of Power, Eurocentrism and Social Classification. In M. Moraa, E.
Dussel and C. A. Juregui (eds.) Coloniality at large: Latin America and the Postcolonial
Debate. Durham&London: Duke University Press. pp. 181-224.
Rajagopal, B. (2003) International Law from Below: Development, Social Movements and Third
World Resistance. New York: Cambridge University Press.
Rivera Cusicanqui, S. (1987) El Potencial Episatemolgico y Terico de la Historia Oral: de la
lgica instrumental a la descolonizacin de la historia. Temas Sociales 11:49-64.
Rizvi, U. (2015) Decolonizing archaeology: on the global heritage of epistemic laziness. In O.
Kholeif (ed.) Two days after forever: a reader on the choreography of time. Berlin: Sternberg
Press. 154-163.
Rolph-Trouillot, M. (1995) Silencing the past: Power and the production of history. Boston: Beacon
Press.
Said, E. (1993) Culture and Imperialism. New York: Knopf.
Silverman, H. and Ruggles, D.F. (2007) Cultural Heritage and Human Rights. In H. Silverman and
D. Fairchild Ruggles (eds.) Cultural Heritage and Human Rights. New York: Springer. pp. 3-22.
Smith, C. and Wobst, H.M. (eds. 2005) Indigenous Archaeologies: Decolonizing Theory and
Practice. New York: Routledge.
Smith, L. (2007) Empty Gestures? Heritage and the Politics of Recognition. In H. Silverman and D.
Fairchild-Ruggles (eds.) Cultural Heritage and Human Rights. New York: Springer. pp. 159-17.
Sousa Santos, B. (1997) Toward a multicultural conception of human rights. Sociologia del
diritto, 34(1): 27-45.
- (2001) Toward an Epistemology of Blindness. Why the new form of Ceremonial Adequacy
neither Regulate nor Emancipate. European Journal of Social Theory 4(3): 251-279.
Sousa Santos, B. and Rodrguez-Garavito, C.A. (2005) Law, politics, and the subaltern in counter-
hegemonic globalization. In B. de Sousa Santos and C.A. Rodrguez-Garavito (eds.) Law and
Globalization from below: towards a cosmopolitan legality. Cambridge&New York: Cambridge
University Press. pp. 1-26.
Stavenhagen, R. (2001) Cultural Rights: a Social Science Perspective. In A. Eide, C. Krause and A.
Rosas (eds.) Economic, Social and Cultural Rights: a Textbook. Leiden: Brill Nijhoff. pp. 85-
109.
Taylor, C. (1994) The Politics of Recognition. In A. Gutmann (ed.) Multiculturalism: examining the
politics of recognition. Princeton: Princeton University Press. pp. 25-74.
Todorov, T. (1992[1984]) La Conquista dellAmerica. Il problema dellaltro. Translated by A.
Serafini. Torino: Einaudi.
Trigger, B. (1989) A history of Archaeological Thought. Cambridge: Cambridge University Press.
- (2008) Alternative Archaeologies in Historical Perspective. In J. Habu, C. Fawcett and J.M.
Matsunaga (eds.) Evaluating multiple narratives: beyond nationalist, colonialist, imperialist
archaeologies. New York: Springer. 187-195.
Verdesio, G. (2013) Indigeneity and time: towards a decolonization of archaeological temporal
categories and tools. In A. Gonzlez-Ruibal (ed.) Reclaiming Archaeology: beyond the tropes of
modernity. London&New York: Routledge. pp. 168-180.
Viveiros de Castro, E. (2004) Perspectival Anthropology and the method of Controlled
Equivocation. Tipit: Journal of the Society for the Anthropology of Lowland South America
2(1): 3-22.
Vrdoljak, A. F. (2006) International Law, Museums and the Return of Cultural Objects.
Cambridge&New York: Cambridge University Press.
- (2015) Challenges for International Cultural Heritage Law. In W. Logan, M. Nic Craith and U.
Kockel (eds.) A Companion to heritage studies. Chichester: John Wiley & Sons, Inc. pp.541-556.
Waterton, E. (2015) Heritage and Community Engagement. In T. Ireland and J. Shofield (eds.) The
ethics of Cultural Heritage. New York: Springer. pp. 53-68.
Watkins, J. (2005) Cultural Nationalists, Internationalists, and 'Intra-nationalists': who's right and
whose right?. International Journal of Cultural Property, 12: 78-94.
Wolf, E. (1982) Europe and the People without History. Berkeley&Los Angeles: University of
California Press.