Deep-lomacy #17

On Rights, Memory and Human Rights

Noam Tirosh / Communication Studies, Ben-Gurion University of the Negev

Seemingly, there is no connection between the past and the story we all tell about it on one hand, and legislative processes, legal procedures and international conventions on the other. It also seems as if there is no common thread between our personal and collective memory, and human rights. However, a deeper investigation will show us that there is a close relationship between memory, laws and rights. In this short text, I will present the relationship between laws and memory processes and discuss what I term “The right to memory”.

Legal-like documents often form historical narratives. For example, in the Israeli Declaration of Independence, the story of the Jewish past is summarized as an historical narrative that begins in the Land of Israel – where the “spiritual, religious and civil” image of the nation is formed – it continues in the Diaspora to which the nation was exiled “by force of arms”, and ends with a renewed salvation with the return to the Land of Israel, “the ancient homeland” of the nation (1). Laws, in many cases, construct frameworks for memory. Laws that determine memorial days, for example, or laws that govern the establishment of memorial sites are clear examples of this. In some cases there are laws that seek to promote the forgetting of stories that arouse controversy... The “Nakba Law”, which makes it possible to deny institutions of public funding if they mark the Israeli Independence Day as a day of mourning, is certainly a clear example of a law that promotes forgetfulness (2). All of these are well-documented in the extensive body of research on the links between law and memory. And yet, less has been written about the relationship between memory and human rights.

Processes of memory construction are significant to our wellbeing as individuals. We formulate our personal identity around our personal and collective memory, and this identity is critical to our development as human beings. As such, we are entitled to a ”right to memory”. By virtue of this right, certain obligations will be imposed on other parties – whether they are the state or other members of our group. In my view, by virtue of the right to memory, individuals (1) are entitled to construct the story of their past as they see fit, and (2) should be given access to a variety of memory aids such as: archives, museums, monuments, and especially media, which in recent years have become the most significant mechanism for circulating the histories of individuals and groups. In many cases, the fulfillment of the right to memory will lead to the official and institutional recognition of a given narrative. Of course, the right to memory is not equivalent to the right to distort the historical truth, nor is it the right to allow embarrassing events from a nation’s past to be forgotten. Memory rights of different individuals and groups are certainly likely to clash with each other and cause bitter conflicts. However, these constraints do not invalidate the necessity and essence of the right.

The right to memory as articulated here and in other places is not yet recognized in international law. Nonetheless, memory protections from treaties and legal documents can be extracted, which, together, make up our memory rights, even if indirectly. A prominent example is the UN declaration from 2007 regarding the rights of indigenous peoples. In this declaration, it was determined, among other things, that indigenous peoples hold the right to “preserve, defend and develop expressions of the past, present and future of their culture.”(3)

Anna Reading, one of the most important memory researchers in the world, analyzed the discourse on memory rights in international treaties and peace treaties, showing that four types of rights are expressed in these documents: the right to national memory, which aims to defend and preserve stories related to the national identity, particularly as a response to genocide wars; the right of victims to memory, which protects those who were harmed by civil violence; the right to “world memory” which deals with the need to protect cultural heritage and historical assets, regardless of the national and geographical contexts; and the right to indigenous memory, which deals with protection of the histories of indigenous nations who struggle to preserve their unique culture (4).

Another example of anchoring a rights discourse in contexts of memory processes is “the right to be forgotten”, which was established following a ruling by the European Court of Justice in 2014 and was confirmed as part of the European “General Data Protection Regulation” (GDPR) in 2018. The right to be forgotten is our right as individuals to demand different content companies to erase personal information they keep about us and their duty to respond to our demand when it is deemed as justified, even if we shared this information voluntarily.

The right to be forgotten is not always perceived as related to processes of memory and forgetting, but as part of the attempt to protect users’ privacy. Yet, it can be understood as part of the attempt to grant us more control over our identities as expressed in the digital spaces, by establishing new (digital) rights. In the digital age, our identity is also comprised of information we upload to different sites. After all, pictures we uploaded onto our Facebook page and our registration on different websites is tracked – all this tells a certain story about us; a story to which others are exposed even without our consent. The right to be forgotten, which, as mentioned, grants a more significant protection of our identity than that reflected in different communicational arenas, is certainly an integral part of the protections which “the right to memory” will grant us once it is officially recognized(5).

It seems that as long as personal and collective memory processes will continue to have a significant place in our lives, the connection between rights and memory will become more accepted. We can hope that countries and international bodies will understand that memory construction processes, which are so significant to our wellbeing as individuals, deserve broad protection within the rights discourse – the same discursive space which has become so effective in the global struggle for justice and prosperity in the last decades.

1. The declaration of independence is available on the Knesset website: https://m.knesset.gov.il/about/occasion/pages/inddeclaration.aspx
2. In a joint article with Prof. Amit Schejter, we offer a deep discussion of the Israeli memory laws. See: Tirosh, N & Schejter, A. (2015). ‘I will perpetuate your memory through all generations’: Institutionalization of Collective memory by Law in Israel. International Journal of Media & Cultural Politics, 11(1), 21-35. https://doi.org/10.1386/macp.11.1.21_1
3. The declaration is available on the UN website: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
4. These findings and others will be published soon in a book co-authored by Anna Reading and myself, which will deal extensively with the right to memory.
5. In an article from the year 2016 I extensively analyzed the Right to be Forgotten, from a broader perspective of Memory rights. Tirosh, N. (2016). Reconsidering the ‘Right to Be Forgotten’ – Memory rights and the right to memory in the new media era. Media, Culture & Society, 39(5), 644-660. https://doi.org/10.1177/0163443716674361