Berlin techno goes intangible cultural heritage: Modern music,the cultural appropriation debate,and the International Convention on the Elimination of All Forms of Racial Discrimination

Abstract

This paper argues that cultural appropriation can – but does not always – constitute a human rights incompatibility precluding a classification as intangible cultural heritage (ICH) pursuant to Art. 2(1) Sentence 3 of the Convention for the Safeguarding of Intangible Cultural Heritage (CSICH). To set up this argument, the paper first addresses whether and in how far the human rights compatibility test is exercised in the realm of the CSICH. Subsequently, it seeks to analyse whether cultural appropriation violates that test. To this end, the paper first develops an understanding of cultural appropriation informed by insights ranging from philosophy to anthropology. It then raises the question in how far cultural appropriation and protection therefrom is covered by the IHRL canon, most importantly the International Convention on the Elimination of All Forms of Racial Discrimination. Using Berlin Techno as an example, the aim of this contribution is to reveal the limits of cultural appropriation in the legal field and to initiate a legally sound discussion on the relationship between culture, appropriation, and human rights that has thus far been absent.

1. INTRODUCTION

When the COVID-19 pandemic hit the world in early 2020, the cultural sector had to face the realistic fear of extinction due to the enforced shutdown of events. Against this background, the Berlin initiative Rave the Planet started the creative endeavour of listing Berlin techno music as intangible cultural heritage (ICH) on the German national ICH inventory. Such a listing is prudent since it entails social and legal benefits. ¹ Socially, the status raises awareness of the importance of the ICH for society. ² Legally, it allows legendary and equally notorious places, such as Tresor and Berghain, to be supported by additional government subsidies and other funding. ³

In the procedural context, a competent body is tasked with the assessment of whether the nominated element, such as techno, can be classified as ICH under the definition enshrined in Article 2(1) of the Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH). ⁴ The provision enlists, inter alia, that the element needs to be recognised as part of a community's, group's, or individual's cultural heritage, transmitted from generation to generation, constantly recreated, and creates a sense of identity and continuity. Assuming for this contribution that techno meets all elements enshrined in the first sentence of Article 2(1) of the CSICH, one last hurdle is imposed by the third sentence of Article 2(1), which requires compatibility with existing international human rights instruments. ⁵

Techno, as a specific example of modern music that initiatives aim to inscribe on a national ICH inventory, has been perceived as the beat of reunification after the 1990 fall of the Berlin Wall, associated with berlinois counterculture and liberation. ⁶ But techno is not a singular phenomenon of Berlin origin. It is rooted in Detroit ⁷ and within this techno community, attempts are made to ‘make techno black again’. ⁸ The slogan carries the connotation of ‘white’ cultural appropriation, which some perceive as one of many forms of racial discrimination. This is a claim modern music has frequently been confronted with in recent times. ⁹ Cultural appropriation is a non-legal term which generally describes the taking of a cultural element by cultural outsiders. ¹⁰ This very conduct potentially carries a human rights issue due to its asserted racial dimension. Especially Western European traditions which include culturally appropriated elements but are nevertheless considered ICH have already come to the attention of the United Nations Committee on the Elimination of all Forms of Racial Discrimination (CERD). ¹¹ Ultimately, cultural appropriation as such could constitute a human rights incompatibility that precludes a classification as ICH under the third sentence of Article 2(1) of the CSICH, leading to non-inclusion on the requested inventory or list. This raises the question of how far cultural appropriation and protection therefrom is covered by the canon of international human rights instruments, most importantly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ¹² as this is the pertinent international human rights instrument. ¹³ Prior to this assessment, however, it must be answered whether and how far the human rights compatibility test is exercised in the realm of the CSICH as a logical premise to the subsequent reflections.

The contribution seeks to answer these questions by using the Berlin techno initiative as an example for the broader modern music sector throughout the paper. In the context of individual identification of ICH, it first explores the required threshold and elements enshrined in Article 2(1) of the CSICH in a cursory manner, followed by an analysis of the human rights compatibility test and its scope. To set the stage for the discussion of cultural appropriation in the context of racial discrimination, anthropological as well as philosophical positions are consulted. This reach to academic disciplines distinct from the legal field is necessary to provide a scholarly definition in light of the subsequent analysis of the cultural appropriation debate within the human rights context. The contribution thereby seeks to provide insight into some preliminary deliberations to initiate a legally sound, and currently missing, discussion of the relationship between culture, appropriation, and human rights. Ultimately, modern music genres – specifically the Berlin techno initiative – are tested against this legal background. Lastly, a conclusion to the initial research questions is drawn, providing critical impulses for future discussion.

2. IDENTIFYING INTANGIBLE CULTURAL HERITAGE: THE (INTER-)NATIONAL THRESHOLD

The CSICH primarily obliges States to develop national inventories of their ICH as an appropriate means of ‘safeguarding’. ¹⁴ In parallel to the national level, the Convention's core is its international inventory system deposited at United Nations Educational, Scientific, and Cultural Organization (UNESCO) and enshrined in the CSICH's Part IV: the Representative List of the Intangible Cultural Heritage of Humanity (hereinafter ‘Representative List’), ¹⁵ the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, ¹⁶ and the Register of Good Safeguarding Practices. ¹⁷ The inscription on a national inventory thereby poses a prerequisite to a subsequent nomination for the Representative List. ¹⁸ Once an ICH has been submitted for inscription on one of the international lists, the Intergovernmental Committee for the Safeguarding of ICH (hereinafter ‘the CSICH Committee’), supported by a Secretariat, is tasked with its assessment. The Committee decides upon these nominations on an annual basis, following the objective selection criteria established by the Committee itself and approved by the UN General Assembly. ¹⁹ The agreed selection criteria for inscribing an ICH on the Representative List include that the ‘[i]nscription of the element will contribute to ensuring visibility and awareness of the significance of the intangible cultural heritage and to encouraging dialogue, thus reflecting cultural diversity worldwide and testifying to human creativity.’ ²⁰ The element must also be protected and promoted by safeguarding measures already elaborated in the nomination ²¹ and its nomination shall be supported by the widest possible participation of the community, group, or individual concerned, based on free, prior, and informed consent. ²²

Most importantly, the element must constitute ICH as defined in Article 2 of the CSICH. ²³ Article 2(1) of the CSICH defines ICH as

the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. ²⁴

Article 2(2) of the CSICH further provides a non-exhaustive list of the domains where ICH manifests, including oral traditions and expressions; performing arts; social practices, rituals, and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship.

When considering the specific elements of Article 2(1) of the CSICH, Francioni, who chaired the first meeting on the debate of a working definition's elements and authored the respective draft proposal, ²⁵ identifies two aspects of ICH as its constituent elements while regarding others as facultative. ²⁶ He refers to the constituent elements as the ‘cultural community’ and the ‘cultural practice’. Considered facultative are, on the other hand, the ‘instruments, objects, artifacts and cultural spaces’ that might be associated with the respective ICH. ²⁷ These facultative elements are all tangible and as such dependent upon the ICH. They derive their meaning from the ICH and not vice versa. ²⁸

Concentrating on the constituent elements, the ‘cultural community’ is, in Francioni's words, both ‘trans-territorial’ and ‘trans-temporal’. ²⁹ It is trans-territorial in the sense that the community concerned may expand beyond State borders. It is trans-temporal because a passing on from generation to generation is required by Article 2(1) of the CSICH. The respective ICH thereby enshrines both an evolutionary and a constant element. It may be developed over time, but while generation to generation passes it creates a sense of continuity within a community. ³⁰ The second element, that of ‘cultural practice,’ describes the prerequisite of manifestation in ‘practices, representations, expressions, knowledge, [and] skills’ ³¹ within the domains non-exhaustively listed in Article 2(2) of the CSICH.

When assessing whether an ICH shall be included in one of the UNESCO lists, only the CSICH Committee is bound by the definition of ICH set out in Article 2(1) of the CSICH. In contrast, the Convention leaves the greatest possible leeway for the establishment and maintenance of the national inventories. No indication can be found within the CSICH whether a national definition of ICH needs to coincide with the definition enshrined in Article 2(1) of the CSICH. In this regard, the 2013 internal UNESCO report on the functioning of the Convention points to the fact that several national inventories ‘focus on ICH elements considered to have “outstanding value” and/or to be “authentic”, while others put an emphasis on ICH that is in danger of extinction’. ³² The report's authors felt urged to stress that the Convention concentrates on living heritage submitted from generation to generation and neither authenticity nor outstanding value are criteria established by the CSICH. ³³ Implicitly, the authors thus refer to the definition of ICH embedded in Article 2(1) of the CSICH and criticise the establishment of criteria distinct from the ones set out in the CSICH definition. Other authors stress that, indeed, many State Parties seek orientation and apply the definition contained in Article 2(1) of the CSICH. ³⁴ From a teleological and systematic point of view, it is furthermore recommendable to apply the criteria set out in Article 2(1) of the CSICH since otherwise the CSICH's two-tier system would be impeded. Once inscribed on the national inventory, an ICH can theoretically be nominated to be adopted on the Representative List ³⁵ or other UNESCO ICH lists. This, however, sets forth compatibility with the requirements set out in Article 2(1) of the CSICH. The German UNESCO committee, for example, potentially driven by these considerations, explicitly requires the submitted culture to comply with the standards displayed in the CSICH, therefore especially Article 2(1) of the CSICH. ³⁶ Thus, Article 2(1) of the CSICH indeed builds the threshold for an ICH, such as Berlin techno, to be included in the national ICH inventory.

When concentrating on Berlin techno and the prerequisites posed by the ICH definition, Rave the Planet regards the genre as fulfilling all requirements of ICH, especially since it describes the Berlin scene as having great influence after the fall of the Berlin Wall that was crucial for the scene's development. ³⁷ Nevertheless, the association acknowledges that Berlin is not the only place where techno culture has emerged and its roots are located elsewhere. ³⁸ This factual circumstance is the crucial point giving rise to the cultural appropriation debate surrounding the modern music sector. For this paper, the research shall therefore concentrate on the element of human rights compatibility as required for safeguarding under the third sentence of Article 2(1) of the CSICH.

3. INSCRIPTION BASED SOLELY UPON COMPATIBILITY WITH HUMAN RIGHTS INSTRUMENTS?

To be considered safeguardable under the Convention beyond the definitional elements discussed above, an ICH must be compatible ‘with existing international human rights instruments.’ ³⁹ Thus, whether a cultural element embodies the constituents of an ICH in the sense of the definition does not depend on its compatibility with human rights instruments, but it does in turn determine its incorporation on the respective international ICH list. ⁴⁰ Whether and to what extent this also results in the prerequisite of human rights compatibility for inclusion in a national inventory will, inter alia, be examined.

As palpable as the human rights compatibility requirement might seem at first glance, upon closer scrutiny it raises many questions. First, one might ask whether all international human rights instruments, particularly regional human rights instruments, are included in the scope of the compatibility test. A practical approach suggests excluding regional human rights instruments from the examination on the international inventory level. However, regional human rights instruments could additionally be taken into account on the national inventorying level. An exclusion on the international level appears advisable due to the diverse array of regional human rights instruments and the fragmentation of the human rights compatibility test that would consequentially result from considering them on the international level. Moreover, the suggested twofold approach would not contravene the system established by the CSICH, since the national inventory sets up the entry point for ICH safeguarding under the Convention with the merely subsequent possibility of nominating national ICH for one of the UNESCO lists. ⁴¹ A potentially broader national assessment would therefore be followed by a potentially narrower international test, depending upon the specific ICH under scrutiny.

Notwithstanding the question of whether all human rights instruments enjoy consideration under the compatibility test, Lenzerini, as one of the only authors commenting on the human rights compatibility requirement, relativises this very requirement. He states that

it is necessary, in particular, for any cultural expression to be consistent with jus cogens norms on human rights. This does not mean, however, that no derogation from internationally recognized human rights can be accepted in the name of cultural diversity. ⁴²

Under the suggested spirit of cultural diversity reflected in the ICH selection criteria, ⁴³ he advocates for a case-by-case assessment, considering certain indicators in the specific case such as the severity of the human rights violation. In his view, only a jus cogens violation or a violation of non-derogable human rights would always fail the severity test. ⁴⁴ When consulting the very scarce literature on ICH and human rights compatibility, one retrieves enumerations of incompatibility like ‘cannibalism, sexual exploitation of infants, human sacrifice, or female genital mutilation’ ⁴⁵ that could potentially meet the jus cogens or non-derogable human rights threshold suggested by Lenzerini. While these are certainly textbook examples of incompatibility with human rights instruments, other, less evident instances of incompatibility might also exist and fall within the scope of human rights incompatibility as provided by the CSICH. The restrictive interpretation put forward by Lenzerini does not fit the wording enshrined in the third sentence of Article 2(1) of the CSICH. The article does not contain any restriction regarding the severity of the specific human rights incompatibility. A look at the travaux préparatoires reveals that the question has been raised during the CSICH's drafting process and the drafters arrived at the conclusion that no restriction to specific human rights norms or norm-theoretical concepts should be drawn. ⁴⁶ In addition, the Preamble to the CSICH suggests that the Convention essentially operates within the context of international human rights, including their applicability when interpreting the Convention. ⁴⁷ Therefore, it must be assumed that any incompatibility with human rights instruments, and thus any hypothetical violation of human rights, would fail the compatibility requirement and therefore preclude an inclusion in the (inter-)national inventories.

Practice shows, however, that the compatibility test has not been strictly followed on the international level. Lixinski refers to the examples of Human Towers in Spain, and the ‘[m]ale-child cleansing ceremony of the Lango of central northern Uganda’, ⁴⁸ both possibly contradicting the rights of the child as set out in the Convention on the Rights of the Child ⁴⁹ as well as gender equality concerns as set out in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women ⁵⁰ in the latter case. ⁵¹ Regardless of these potential incompatibilities, both ICH nominations were approved for inscription on the Representative List by the CSICH Committee. Contrary to this practice, the CSICH Committee recently removed the Belgian Ducasse d’Ath parade from the Representative List. ⁵² NGOs as well as African States complained about the parade because it included the practice of blackfacing ⁵³ by featuring a black-faced white man wearing a nose ring and chains. ⁵⁴ The Committee's contradictory practices and failure to disclose the underlying legal reasoning behind rejections or removals of ICH has left scholars puzzled concerning the exact lines of the human rights compatibility requirement. ⁵⁵ One might even raise doubts whether an in-depth legal analysis is conducted, or whether mere political and public influence tips the scale because of the governmental set-up of the CSICH Committee. Besides these uncertainties on the international level, the human rights compatibility requirement is also largely ignored on the national level. ⁵⁶

In this regard, a pertinent example exists within The Netherlands’ National ICH Inventory. In 2015, the Dutch Centre for Intangible Cultural Heritage inscribed the Sinterklaas festival and Black Pete into their national inventory. Zwarte Piet or ‘Black Pete’ is, of course, controversial. Black Pete is Sinterklaas's ‘helper,’ but from a historical perspective he used to be Sinterklaas's slave. ⁵⁷ On top of this, Black Pete is also the tale's villain. He took care of the naughty children by capturing them in a bag and carrying them to Spain, Sinterklaas's homeland. Evidently, Black Pete is a person of colour. Thus, while this already involves possible blackfacing and is highly problematic from today's perspective, issues concerning slavery and denial or lack of awareness of The Netherlands’ colonial history poses an additional critical concern that is inherent to the blackfacing debate. Furthermore, the tradition reiterates negative stereotypes of people of African descent by – until recently – using ‘dumb speak’ and portraying Black Pete as ‘childlike’ and ‘silly’. ⁵⁸ It is thus not very surprising that the inscription raised the awareness of the CERD, who called upon The Netherlands to revisit the traditional festivity since it carried discriminatory effects. ⁵⁹ Further, the CERD was concerned that peaceful festivity opponents had been denied authorisation to protest and fell victim to violent attacks that were not promptly investigated. ⁶⁰ Contrary to the CERD, the CSICH's Committee remained silent on the matter. Lixinski, however, when applying a literal reading of Article 2(1) of the CSICH as established above, analyses an incompatibility of the Sinterklaas festival and Black Pete with human rights instruments. He would have welcomed a statement by the CSICH Committee, possibly urging The Netherlands to remove the tradition from its inventory. ⁶¹ Whilst the CSICH Committee did not interfere in the national sphere, the Dutch perception of the Sinterklaas festival gradually changed, leading to its removal from the national inventory in July 2022 following a recommendation by the Toetsingscommissie Inventaris Immaterieel Erfgoed Nederland. ⁶² Even though the Sinterklaas festival was classified as violating human rights by the CERD, the official reason for its removal was that it ‘no longer complied with (the ethical principles of) the international UNESCO Convention for Intangible Heritage. An inscribed heritage must not discriminate against population groups and must respect cultural diversity and ethnic identity.’ ⁶³ These elaborations refer in particular to the Ethical Principles for Safeguarding Intangible Cultural Heritage, a set of principles providing a basis for the development of specific codes of ethics and tools adapted to local and sectoral conditions. The anti-discrimination requirement is yet not explicitly enlisted in the ethical principles. It can therefore be questioned whether these principles constitute the genuine reason for the Sinterklaas festival's removal or whether they constitute a mere loophole to avoid admitting any violation of international human rights.

Notwithstanding the equivocal practice on the national and international level, a literal reading of Article 2(1) of the CSICH supported by teleological and systematic considerations demands that any incompatibility with human rights should preempt an ICH from being included on either a national inventory or one of the international lists. This approach promotes the universal effectiveness of international human rights. The recent examples of removals by UNESCO and The Netherlands may be regarded as a hesitant development in this direction.

4. UNDERSTANDING THE PROBLEMATIC TURNS OF CULTURAL APPROPRIATION: PHILOSOPHICAL AND ANTHROPOLOGICAL INSIGHTS

The above examples were removed from the respective lists due to the discriminatory effects they entailed and reinforced. Alongside these discriminatory effects, traditions which involve the practice of blackfacing can be described as cultural appropriation. ⁶⁴ Blackfacing embodies an act of cultural appropriation because it often occurs due to the subconscious desire to access and appropriate the ‘exotic’ and ‘wild roots’ of an allegedly uncivilised culture. ⁶⁵ In positive terms, people engaging in blackfacing admire the ideas associated with this culture. At the same time, however, members of the culture in question face stereotypical, primitive, and therefore hurtful representations of their culture that are appropriated by people not belonging to these communities and who formerly oppressed the respective communities. ⁶⁶ Given the potential link between discrimination and cultural appropriation in these instances, it is warranted to define the concept of cultural appropriation and its potential implications for legal debates in the field of ICH and human rights.

In common parlance, no unanimous comprehension of the term ‘cultural appropriation’ exists. The term is controversial and surfaced in public discussion since 2010. The ordinary meaning of the word ‘appropriation’ describes ‘the act of taking something such as an idea, custom, or style from a group or culture that you are not a member of and using it for yourself.’ ⁶⁷ A normatively nuanced definition reads that cultural appropriation is ‘the act of taking something for your own use, usually without permission.’ ⁶⁸ The definitions can be read to imply a generally negative behaviour, in line with the proponents of the concept who regard it as protecting group identities. Concurrently, opponents of a negative connotation of cultural appropriation defend the benefits of enriching creativity through cultural borrowing, mixing, and hybridity. ⁶⁹

The demonstrated framing of cultural appropriation in the media – reflected by the ordinary meaning of the word ‘appropriation’ – does not necessarily correspond with its usage within academic fields. While cultural appropriation as such is not a legal term and probably for that very reason is under-researched within the sphere of (public international) law, ⁷⁰ the term has been scrutinised and utilised in other academic fields that contribute to an informed legal assessment. The fields chosen for this contribution include philosophy and anthropology. Legal philosophy, amongst other legal theories, builds the foundations of our legal systems and constantly reflects and reassesses its meaning and value. To understand cultural appropriation, it can therefore prove helpful to consider the varying positions in this field that try to assess the term on an ethical level. In addition, the contribution draws on anthropological literature to outline an understanding of cultural appropriation, as the term describes a deeply social behaviour. The chosen definition then paves the way for a subsequent human rights evaluation.

Philosophy has assessed cultural appropriation since the 1990s. ⁷¹ In this regard, one must differentiate between descriptive and normative definitions of cultural appropriation, whereby it is most common to depart from a descriptive definition. ⁷² Applying such a descriptive definition, Young, a philosopher devoted to the topic of cultural appropriation, ⁷³ describes the term as ‘the taking of something produced by members of one culture by members of another’. ⁷⁴ In other words, as ‘any use of something developed in one cultural context by someone who belongs to another culture.’ ⁷⁵ Only subsequently, Young develops a normative framework by trying to distinguish between ‘objectionable and unobjectionable cultural appropriation.’ ⁷⁶ The (un)objectionable dimensions considered and assessed in his oeuvre are cultural appropriation as ‘theft’, ‘assault’, and ‘profound offense’. ⁷⁷ Beyond Young, two mainstream categories developed by scholars depart from a descriptive definition, are observable, and should be considered for this contribution: ‘offense’ and ‘harm’. ⁷⁸

In the offense category, cultural appropriation is considered wrong if the source group feels offended by the taking of the culture by the recipient. The bar is raised by some scholars through the introduction of ‘profound’ offense, meaning ‘an offense to one's moral sensibilities… [that] strikes a person's core values or sense of self’ is needed to render the cultural appropriation wrongful. ⁷⁹ Common to both categories of offense as the separating filter is the fact that they determine the wrongfulness of cultural appropriation following a subjective feeling. At this junction, philosophy and anthropology meet. Folklorists and ethnologists have long discussed the topic of cultural appropriation, set in the wider context of ‘culture change’. ⁸⁰ Appropriation, in comparison to closely related forms of culture change (‘assimilation,’ ‘diffusion,’ and ‘acculturation’), ⁸¹ describes the unidirectional taking of cultural forms from a subordinate group by members of a dominant group, with the aggrievement of members of the subordinate group. ⁸² Accordingly, anthropology applies a normative understanding of cultural appropriation that is reflected in some philosophical positions.

Aggrievement or offense, if transferred onto the legal level, may raise concerns since both factors form part of the psychological human sphere, which is only seldom recognised as a restrictive factor by legal systems. ⁸³ Concisely, the European Court of Human Rights (ECtHR) captured these thoughts in its Vajnai v. Hungary judgment. The Court was concerned with proceedings initiated by the Hungarian national, Mr. Attila Vajnai, against the Hungarian government. Mr. Vajnai alleged that his conviction for having worn the symbol of the international workers’ movement, a five-pointed red star, ⁸⁴ during a lawful demonstration constituted an unjustified interference with his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). ⁸⁵ In Hungary, the five-pointed red star is a symbol of the former communist totalitarian regime that caused great suffering to the Hungarian population in the form of mass violations of human rights. ⁸⁶ The ECtHR, trying to assess the scope of the freedom of expression as a political speech against the potentially hurtful interpretation of a symbol, concluded that:

sentiments, however understandable, cannot alone set the limits of freedom of expression. […] In the Court's view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler's veto. ⁸⁷

The court, therefore, held that Mr. Vajnai's right to freedom of expression was violated ⁸⁸ and provided a coherent reasoning for a wide interpretation of the freedom of expression that, given this specific case, cannot be restricted by hurt sentiments. In this regard, the ECtHR, in the quoted passage, seems to consider sentiments as something distinct from reasonable judgments. As such, the former should not be the determining factor for the exercise of human rights and, thus, cannot serve as the determining factor for a definition applied at the legal level.

On the other hand, the Court developed an enhanced understanding of the protection of ethnic identity from negative stereotyping in the context of Article 8 of the ECHR. ⁸⁹ In Aksu v. Turkey, it held that

any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group's sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group. ⁹⁰

Nevertheless, as can be observed in the Vajnai case above, the Court has to strike a balance between Article 8 of the ECHR and the right to freedom of expression, demanding a case-by-case assessment. ⁹¹ In Budinova and Chaprazov v. Bulgaria, for example, building on the Aksu case, the Court found the negative stereotyping reached ‘a certain level’ in impacting the group's feelings of self-worth and self-confidence. ⁹² In contrast to cultural appropriation, though, the hate speech statements under consideration in this case were intentionally directed to defame the Roma society. ⁹³ Doubtful – but not unthinkable – is whether cultural appropriation would amount to the threshold applied in the realm of hate speech. ⁹⁴

Rejecting a definition based on aggrievement or offense, the second category (harm) shall be analysed. The ‘harm’ approach tries to establish an objective threshold for the wrongfulness. Cultural appropriation is harmful if it occurs ‘without substantive reciprocity, permission, and/or compensation’. ⁹⁵ Arguments could be advanced in favour of permission as the relevant factor given, inter alia, that the ordinary meaning of the term cultural appropriation includes this element. However, declaring permission as the decisive legal factor for the wrongfulness also raises difficulties: Who is entitled to permit on behalf of the source society? How can we define and delineate the respective source society? And who accords the right of permission to this source society?

Considering these impediments, compensation might prove more fruitful as a determining factor, since economic, and thus potentially measurable, considerations come into play. Individual cultural outsiders might profit from the cultural appropriation while cultural insiders are potentially excluded from this effect due to, inter alia, institutionalised or systemic discrimination. ⁹⁶ The fact that the philosophical debate often connects the specific wrongfulness of cultural appropriation with instances of social inequality tied to historical systemic disadvantage between in- and outsiders supports this position. ⁹⁷ In the legal context, this observation can be linked to issues of (racial) discrimination which often stem from systemic disadvantages deeply entrenched in historical forms of discrimination. This has been observed by the Committee on Economic, Social and Cultural Rights in its General Comment No. 20 and taken up by the CERD. ⁹⁸ The two Committees, when referring to systemic discrimination, draw on socio-economic inequality anchored in historic and contemporary forms of discrimination which are ‘deeply entrenched in social behaviour […] [such as] predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups.’ ⁹⁹ Nevertheless, establishing the correlations and causalities in instances that might stem from multiple influences and flaws in the system rather than solely from the act of cultural appropriation can be considerably challenging. Moreover, problems concerning the concept of cultural appropriation and the requirement of power imbalances arise. How should we define power and what is the ‘correct’ understanding of history in cases where power imbalances arise from the historical context? ¹⁰⁰

While a normative definition of cultural appropriation might not overcome these definitional challenges, systemic discrimination as a relevant factor should be retained for the subsequent human rights analysis. Especially when considering different forms of cultural appropriation in the arts, ¹⁰¹ systemic discrimination marks a crucial point for the development of genres and individual careers. To illustrate this, it is worth drawing on two categories of cultural appropriation in the field of art: ‘motif’ and ‘subject’ appropriation.

Motif appropriation describes the influence of art from a culture foreign to the artist adopting the respective motif. ¹⁰² Stravinsky (for instance, in, Piano Rag-Music from 1919), Milhaud (for example, in La Création du Monde from 1923), and other white musicians who perform in a jazz or blues style are pervasive examples of this type of appropriation. ¹⁰³ And indeed, when considering the US history of jazz music, one soon discovers that it originated in Afro-American tradition. Jazz was developed in New Orleans in the 1890s and was highly influenced by black artists such as King Oliver and Louis Armstrong. In subsequent decades, artists such as Benny Goodman appropriated the sound, for example, with songs like Sing, Sing, Sing. Goodman was later declared the ‘King of Jazz’ by the dominant white society. ¹⁰⁴ Swing, ¹⁰⁵ blues, ¹⁰⁶ and hip hop ¹⁰⁷ underwent similar developments. While Elvis Presley is known as the ‘King of Rock’n’roll,’ the development of this music genre can be traced back to the 1940s blues, back then known as ‘race music’. ¹⁰⁸ In the hip hop empire, Eminem entered the world's stage and was more successful than any black hip hop artist preceding him, ¹⁰⁹ even though hip hop was and still is the expression of self-empowerment and resistance against a white, racist society. ¹¹⁰ The successes of white musicians vis-à-vis their counterparts are fuelled by the phenomenon of systemic discrimination. In its extreme form, this can be observed when considering subject appropriation, meaning the entire appropriation of another culture by a cultural outsider through representation. ¹¹¹ One such example could be the German reggae musician Gentleman, one of the most successful reggae musicians alive. He became acquainted with reggae music in his youth, travelled to Jamaica, and coincidently entered a reggae stage while he was backstage at a reggae concert. He usually performs in the traditional language, Jamaican Patois, an English-based creole language with West African influences. ¹¹² The emergence of this musician also demonstrates that certain white musicians benefit from the systemic discrimination that disadvantages other musicians. Caught in the spiral of systematic discrimination, these cultural appropriation processes ultimately entrench systemic disadvantages.

However, one last argument should be advanced which condemns a normative definition of cultural appropriation: culture is fluid, and arguments which object to cultural appropriation build on the premise that culture is hermetically sealed and therefore exclusively belongs to one group or community. ¹¹³ In contrast, the fluidity and ubiquity of culture is ingrained in the CSICH's regime. This is exemplified in the way it encourages multinational submissions ¹¹⁴ and promotes visibility, education, and cooperation with the aim of mutual understanding. ¹¹⁵ A normative definition would therefore also face challenges to be acknowledged by the CSICH regime itself.

Therefore, a descriptive understanding of cultural appropriation meaning ‘the taking of something produced by members of one culture by members of another’ ¹¹⁶ shall be applied to this contribution. Nevertheless, all perspectives reveal that cultural appropriation carries problematic notions in cases of power imbalance resulting from historic contexts that can amount to racially discriminatory effects which are still prevailing and reflected, for example, in systemic discrimination. It is precisely these racially discriminatory effects that can be evaluated in the human rights context.

5. TESTING CULTURAL APPROPRIATION AGAINST THE HUMAN RIGHT TO BE FREE FROM RACIAL DISCRIMINATION

Ultimately, in the legal context, the decisive question is whether some specific conduct is as such prohibited by the law. In this case, cultural appropriation must be tested against international human rights law due to its relevance for ICH. ¹¹⁷ The foregoing analysis revealed that the controversial aspect concerning cultural appropriation is embedded in its possibly discriminatory notions due to the impact of inequalities rooted in historic disadvantage fuelled by, for instance, colonialism, slavery, and economic exploitation. This can be regarded as a minimum common denominator in the examined academic fields ¹¹⁸ and the applicable human rights instrument seems evident: cultural appropriation, when carrying racially discriminatory effects, could conflict with the norms enshrined in the ICERD. The Convention primarily aims to end racial discrimination against people of colour and embodies the principles of anti-discrimination to strive towards formal and de facto equality. ¹¹⁹ To approach a conclusion on the human rights compatibility test, this contribution will draw on the definition of racial discrimination under the ICERD with an emphasis on systemic discrimination. It then provides an overview of State obligations derived from the ICERD that may militate against an inclusion of culturally appropriated ICH on one of the inventories or lists, provided the threshold of systemic discrimination is met.

Racial discrimination is defined as:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ¹²⁰

The Committee on Economic, Social and Cultural Rights, in its General Comment Number 20, stressed the fact that individuals and groups face socio-economic inequality, anchored in historical and contemporary forms of discrimination. ¹²¹ The CERD highlighted these forms of discrimination as ‘structural discrimination’ or ‘structural inequalities,’ which is referred to as systemic discrimination in this contribution. ¹²² As mentioned above, the term systemic discrimination describes a form of discrimination against some groups evident in the public and private sector that is institutionally and intuitively ingrained in social behaviour, creating a de facto trench between a privileged and an unprivileged group. ¹²³ These are ‘persistent or structural disparities and de facto inequalities resulting from the circumstances of history that continue to deny to vulnerable groups and individuals the advantages essential for the full development of the human personality.’ ¹²⁴ The preexisting structural disparities and de facto inequalities are further exacerbated and much more difficult to overcome when, for instance, a State includes an ICH which contains cases of cultural appropriation that carry racially discriminatory issues in its national inventory. The situation might, though, require more diligence in its assessment when the cultural appropriation (understood descriptively) does not infringe upon the ICERD, but an inclusion could potentially further aggravate systemic discrimination. The extent to which State behaviour exacerbates systemic discrimination will be discussed using the example of Black Pete and techno. These two examples, as will be shown, lead to different results in the evaluation.

In the case of Black Pete, a case involving cultural appropriation via the practice of blackfacing, the CERD was concerned the practice was racially discriminatory because it had the effect of nullifying or impairing the human rights of people of African descent in the field of public life. ¹²⁵ The CERD, monitoring the ICERD, therefore directed recommendations toward the Dutch government. It urged the State to promote the elimination of the racially discriminatory features of Black Pete. ¹²⁶ Such instances of cultural appropriation instinctively trigger racially discriminatory concerns as provided for in the definition of racial discrimination. The ritualised portrayal of people of African descent in stereotypical ways in a joyous and festive manner that evokes and reinforces negative associations, and in some cases even refers to slavery, ¹²⁷ cements the position of people of African descent in society. It further ingrains social behaviours which are no longer critically reassessed and leads to entrenched, institutionalised, and accepted discrimination against people of African descent. Thus, the conduct already meets the definition of racial discrimination.

More generally, from an ICERD perspective, as stated above, the inclusion of culturally appropriated ICH in the national inventory of a State or on the UNESCO Representative List is incompatible with human rights if the cultural appropriation constitutes a violation of the obligation to protect the ICERD's beneficiaries from all forms of racial discrimination within the context of ICH. By classifying an ICH as valuable and safeguardable under the auspices of the UN, the inclusion transfers the ICH into a legally legitimised context and thereby bears the potential to perpetuate racially discriminatory effects. The inclusion is typically born out of innocence due to a lack of knowledge, ignorance, or denial. ¹²⁸ Therefore, the inclusion often constitutes a hidden, unintentional case of racial discrimination carrying these specific effects, as showcased by Black Pete, mirroring how deeply ingrained certain systemic discrimination surfaces in society. States could therefore, from an ICH point of view, be obligated to exclude a specific ICH on their inventory to avoid the perpetuation of systemic discrimination. This obligation to protect is reflected in Article 2(1)(b) and (d) of the ICERD, which urges States to ‘undertake[] not to sponsor, defend, or support racial discrimination by any persons or organisations’. Further, they should prohibit and bring racial discrimination to an end by all appropriate means, including through legislation where necessary. In addition, Article 7 of the ICERD contains a duty to fulfil these obligations by positively urging State Parties to adopt immediate and effective measures to combat prejudices that lead to racial discrimination, particularly in the fields of teaching, education, culture, and information, and to promote understanding, tolerance, and friendship among nations and racial or ethnical groups. ¹²⁹ In this regard, the ICERD and the CSICH complement one another.

However, the case of racial discrimination in musical ICH requires more nuanced consideration. It seems problematic to include music such as techno in an ICH inventory given it qualifies as motif or subject appropriation of a whole genre. These cases are particularly interesting from a cultural appropriation point of view because of the systemic discrimination they emerge from and thereby also reinforce, particularly when being included on an ICH inventory or list. Individuals such as Eminem, Goodman, and Presley exemplify this by profiting from the appropriation of a systemically or institutionally suppressed culture. When considering the inequalities present in the music sector, ¹³⁰ systemic discrimination is pertinent and inequalities could be intensified by including certain ICH on a national inventory or one of the UNESCO lists. Once again, the element of profit emerges, which is advantageous to the group that has culturally appropriated a particular element. If it were only a matter of inclusion on an inventory or a list, the profit element could possibly be disregarded. However, one has to take into account what benefits inclusion entails. The legal benefits comprise, inter alia, enhanced support in terms of education, awareness-raising, capacity-building, cooperation in the form of international assistance, and potential access to the intangible cultural heritage fund. ¹³¹ This leads to greater visibility for ICH which are included in an UNESCO list. All these benefits are essential for an ICH to survive and thrive.

Techno is rooted in the black Detroit music scene and subsequently made its way to Germany. ¹³² Black artists such as Alan Oldham and Juan Atkins moved from Detroit to Berlin because it offered better support than the US in terms of art funding, matters such as health care, and availability of spaces to celebrate and develop techno as a music genre. ¹³³ Whilst techno was indeed created in the black community in Detroit and its uptake in Berlin could therefore qualify as motif appropriation, one should also consider that the DJs developing the genre voluntarily made their way to Berlin and collaborated with their German counterparts. In contrast to the case of Black Pete, techno does not perpetuate negative stereotypes of people of colour. The two cases are therefore not congruent. If anything, considering the genesis of techno, one could probably even speak of cultural appreciation, ¹³⁴ a (likewise controversial) term often used to oppose allegations of cultural appropriation with a positively connotated concept.

However, it is questionable whether the economic influence (profit) of adding techno to an ICH list would amplify systemic discrimination against Afro-American communities. In this regard, it needs to be highlighted that a listing of an ICH does not preclude another group that practices a similar or the same ICH from listing. The CSICH specifically encourages multinational nominations on the international level and no ‘single’ ICH rule exists on the national inventorying level. Afro-American techno communities could thus benefit from the same aspects as Berlin techno if inscribed on an inventory if the US became a party to the CSICH. In general, but also when considering submitting a full music genre such as techno, it could even be preferable to submit a multi-national file (for example, jointly with Switzerland, Michigan, and/or the US). According to the Operational Directives for the Implementation of the CSICH, State Parties are encouraged to jointly submit multinational nominations to the UNSECO List of ICH in Need of Urgent Safeguarding and the Representative List when an element is found in the territory of more than one State. ¹³⁵ Those joint submissions are given priority in the biennial examination proceeding. ¹³⁶

Keeping this multinational feature of the CSICH in mind, the development of Berlin techno cannot lead to the loss of techno as rooted in the Detroit community. This is substantiated by merging the multinational feature within the CSICH with considerations flowing from the ICERD. The ICERD aims to protect cultural insiders against discrimination by cultural outsiders by obliging State Parties to take special and concrete measures in the social, economic, cultural, and other fields to ensure the adequate development and protection of certain racial groups or individuals belonging to them. ¹³⁷ The obligation warrants the full and equal enjoyment of human rights and fundamental freedoms in these fields. ¹³⁸ This provision could prima facie be interpreted to entail that States should refrain from listing ICH which involves cultural appropriation. However, Article 2(2) of the ICERD does not require States to aid in the preservation of cultural identity per se, entailing an obligation to fight cultural appropriation in toto. It merely applies to cases of possible distinction of culture via assimilation measures. ¹³⁹ Should a State promote the assimilation of cultural identity (referred to as cultural assimilation in the anthropological field) or refrain from taking special measures (such as affirmative action), potentially leading to a loss of the former, these measures could contravene the “protection” of cultural identity and therefore violate the ICERD. ¹⁴⁰ To the contrary, special measures could meaningfully be used to encourage groups to inscribe their ICH on a national inventory or a UNESCO list. This special measure would in turn be able to prevent the loss of culture and fight systemic discrimination by allowing disadvantaged groups to enjoy the benefits of inscription. Thus, taking all the above into consideration, the appropriation in the specific case of techno does not amplify systemic discrimination and thus does not amount to a human rights incompatibility with the ICERD.

This reasoning also seems consistent from an anthropological point of view. Especially in the music sector, instances of so-called counter-appropriation have been observed. The term counter-appropriation describes the re-acquisition of one's culture that has formerly been appropriated by cultural outsiders. ¹⁴¹ By way of example, Public Enemy, a 1980s hip hop crew, intentionally addressed the cultural appropriation to which the crew and hip hop as a genre were exposed. It did so not only in its texts but also in its sampling technique and music videos, especially in its album Fight the Power. The album illustrated the power imbalances between black and white people, highlighting how cultural traditions are transmitted as being coined by whites, although originally developed by people of colour. ¹⁴² Counter-appropriation can lead to self-empowerment, resistance, and new creative processes through culture change, potentially even altering and developing whole music genres and carrying politically valuable messages. Cultural appropriation then entails a desirable dialogue and productive controversy that should not be prohibited by the law from an anthropological point of view. This approach to culture can also be traced to the CSICH, which supports exchange in the form of education and cooperation.

6. CONCLUSION AND OUTLOOK

In conclusion, a reflection solely on the human rights compatibility requirement enshrined in the third sentence of Article 2(1) of the CSICH does not reveal an impairment of techno in the inclusion of the national German ICH inventory. Nevertheless, whether the other requirements set out in Article 2(1) of the CSICH are met remains open for discussion and is ultimately left to the discretion of the German CSICH Commission.

Cultural appropriation as such, understood descriptively, is compatible with the international human rights framework. Rightfully so since intangible culture is not a legal concept but a living practice that undergoes development and transformation and as such contributes to human creativity. One could question the foundations of the CSICH in this regard. Cultural heritage, in the form reflected in the definition of ICH in Article 2(1) of the CSICH, is home to a notion of exclusivity and preservation. This notion stems from its close ties with cultural property and imposes the premise that culture can be possessed by a group or an individual, isolated from the influence of others. ¹⁴³ The premise thus invokes the concept of ownership that seems to lead to a contradictory relationship with the realities of culture, especially with intangible culture. However, the CSICH intends to counterbalance the exclusivity it forms, at least to some degree, by encouraging multi-national submissions, cooperation, and dialogue. At this intersection, the CSICH can also help counteract the systemic discrimination that is sometimes exacerbated by cultural appropriation in ICH when inscribed on a national inventory or a UNESCO list.

Nevertheless, when cultural appropriation amounts to racially discriminatory forms (see, for example, blackfacing and the Black Pete tradition in The Netherlands) it can be incompatible with human rights instruments and therefore impair an inclusion of the specific ICH in a national ICH inventory or one of the international lists. However, further research is demanded in this regard and the contribution shall merely provide impulses and initiate considerations in relation to cultural appropriation in the public international law context.

In general, the national UNESCO committees tasked with the assessment of applications to the national inventory should align their practice on the national and international level. This especially includes following the criteria set out in Article 2(1) of the CSICH. Deviating State practice could otherwise carve out the requirement of human rights compatibility. Following such practice, Western States could rightfully be confronted with assertions of bigotry and hypocrisy for including questionable ICH on their national inventory while at the same time criticising other States for alleged human rights incompatibilities. ¹⁴⁴ Moreover, State practice can influence the emergence of customary international law as well as inquiries of interpretation. If a legal text requires human rights compatibility, this demand should be followed to avoid fragmenting the landscape and uphold the human rights system as a whole. To this end, the CSICH committee should publish its reasons for the in- or exclusion of specific national ICH nominations to allow for assessment of the definition and requirements set out in Article 2(1) of the CSICH. These publications would enable States and legal scholars to evaluate current State practice in light of international practice.