Cultural Rights in Motion: Legal Invisibility,Forced Migration,and the Limits of Universality

Abstract

This paper rethinks the place of cultural rights in international human rights law through the lens of forced displacement. While cultural rights are increasingly referenced in legal discourse, they remain fragmented, weakly justiciable, and structurally sidelined, especially in refugee and asylum regimes. Drawing on critical frameworks of intersectionality and epistemic justice, the paper builds on the concept of cultural displacement to capture the loss of collective identity, memory, and belonging resulting from forced mobility. It shows how dominant legal paradigms, anchored in liberal individualism, abstract universality, and Western epistemologies, erase or depoliticize cultural harm by treating displaced persons as atomized rights holders rather than as members of relational and culturally embedded communities. Through a critical reading of judgments issued by international and regional courts, the article exposes the hierarchies of recognition that govern whose culture is rendered legible and whose remains invisible. It argues for a pluralist and situated approach to universality, one that affirms cultural rights as both individual and collective, symbolic and material, and essential to the legal and political agency in contexts of displacement. In doing so, it calls for a reconfiguration of international law's normative foundations, toward more inclusive and decolonial imaginaries of justice.

Introduction

Cultural rights remain among the most invisibilized and underprotected dimensions of human rights, particularly in contexts of forced displacement, including refugeehood, statelessness, and conflict-induced displacement. While international law increasingly recognizes their importance, these rights are still ambiguously defined and weakly enforced, especially when individuals and communities are forcibly displaced from their territory, cultural practices, languages, rituals, and modes of belonging that sustain their identity and dignity. This paper addresses this normative and legal blind spot by asking: how does international law conceptualize the cultural rights of displaced populations, and what does it obscure or silence in doing so?

Despite advances in refugee protection and human rights law, the cultural dimensions of forced displacement remain largely overlooked. The 1951 Refugee Convention limits refugee status to individuals facing persecution based on race, religion, nationality, membership of a particular social group, or political opinion, criteria rooted in civil and political frameworks. As a result, claims based on cultural erasure, suppression of language, or loss of ancestral connection fall outside the scope of legal protection. Resettlement and integration programs similarly operate within assimilationist frameworks that prioritize host-country norms over the preservation of community memory and symbolic practices. These omissions are not neutral: they disproportionately affect Indigenous peoples, stateless persons, and diasporic groups whose cultural identities are non-territorial, relational, and historically situated.

While previous scholarship has addressed cultural rights in legal doctrine (Bennoune, 2018; Blake, 2016; Lenzerini, 2014), this paper advances an in-depth theorization of the concept of cultural displacement as a form of epistemic and relational harm that calls for a situated and pluralist rethinking of universality. It argues that the abstract universalism of international law marginalizes forms of collective and cultural vulnerability, reproducing hierarchies of intelligibility, a normative framework that determines which experience, identities and harms are recognized as worthy of protection. Hence, it silences non-Western, mobile, and subaltern forms of life. Building on critical legal studies, intersectionality (Butler, 2006; Crenshaw, 1989), vulnerability theory (Fineman, 2008; Fineman and Grear, 2013), and epistemologies of the South (Santos, 2015), we conceptualize cultural displacement (the loss or erosion of cultural identity due to forced mobility) as a legally under-theorized but deeply consequential form of harm. This harm is not only material or civil; it is epistemic, symbolic, and collective. It reveals structural asymmetries within human rights discourse that continue to privilege liberal, individualist, and territorially fixed conceptions of personhood and protection. As Koskenniemi (2001) argues, the ostensibly universal language of human rights often conceals its embeddedness in Eurocentric legal traditions that uphold individual autonomy and state-bound sovereignty as normative ideals, thereby marginalizing collective experiences of harm and non-Western ontologies of identity.

The paper is structured in three main sections. First, we revisit the foundations of vulnerability and dignity in international law to explain why cultural identity should be seen as a legally relevant dimension of human vulnerability. Second, we trace how cultural rights are treated across legal instruments and regional case law, highlighting both progress and gaps. Third, we explore how universality can be rethought through the lens of cultural displacement, emphasizing the need to recognize both individual and collective cultural rights, and to address intersectional and epistemic injustices.

By centring cultural rights as both a site of loss and of legal possibility, this paper seeks to rethink the normative architecture of international human rights law. It contributes to the theorization of cultural rights in motion, rights that move, adapt, and resist erasure alongside displaced communities. It calls for a human rights framework capable of accounting for plural, relational, and decolonial imaginaries of dignity.

Reclaiming Vulnerability and Dignity in Forced Displacement

While international human rights law is rooted in abstract ideals of dignity and universality (Smith, 2022), such concepts often overlook the situated realities of displacement and cultural loss. To understand how human rights operate in contexts of forced migration, we must move beyond formalist accounts and attend to the lived experiences of those whose identities, memories, and modes of belonging are dislocated by coercive mobility. Drawing on the notion of ‘situated vulnerability’ (Timmer et al., 2021), this section reframes vulnerability and dignity not as static principles, but as relational conditions (Lajeunesse, 2025) shaped by legal precarity, cultural dislocation, and epistemic erasure. These dynamics expose the need for a more embedded, pluralist understanding of personhood and protection in international law.

Vulnerability, Dignity and the Limits of Legal Personhood

Vulnerability and human dignity are central to understanding how international law frames the human subject. Far from being exceptional, vulnerability is a universal, constant condition of human life, yet one that is unevenly distributed due to structural inequalities (Fineman, 2008; Heri, 2021). In migration contexts, this unevenness becomes particularly acute. Displaced persons face overlapping layers of harm: legal precarity, exposure to violence, denial of services, and the erosion of cultural and relational anchors. These experiences exemplify what scholars call structural, situational, and epistemic vulnerability. Structural vulnerability stems from entrenched systems of exclusion (e.g. statelessness, coloniality), situational vulnerability emerges from precarious contexts such as border zones or detention, and epistemic vulnerability refers to the invalidation of knowledge systems and cultural identities (Butler, 2006; Lajeunesse, 2025; Sachseder et al., 2024; Said, 1979). These dimensions intersect, resulting in what Heri (2021) calls ‘composed vulnerability’: an accumulation of disadvantages that legal regimes often fail to acknowledge.

These limitations become particularly acute in situations of forced displacement, where individuals and communities experience cumulative harms (legal, material, and cultural) under conditions not of their choosing. In fact, forced migration magnifies vulnerability along multiple axes: not only through material dispossession, but through symbolic and cultural displacement. Legal frameworks often recognize physical threats or civil rights violations, but neglect the cultural aspect of vulnerability, or what Novic (2016) frames as the loss of rituals, language, memory, and communal life.

Core human rights instruments such as the 1951 Refugee Convention and the International Covenant on Civil and Political Rights (ICCPR) emphasize protection against persecution, torture, and violations of freedom of expression or religion, but they offer limited recognition of cultural harms that affect collective identity. The 1951 Convention, for instance, makes no reference to language, cultural expression, or heritage as grounds for protection, while the ICCPR frames cultural rights primarily through the lens of individual freedom (e.g. Article 27 on minority rights), often without mechanisms for enforcement. This almost-complete erasure is neither incidental nor purely symbolic. Rather, it challenges the very recognition of displaced persons as rights-bearing subjects. As Arendt (1973) warned, to be stripped of cultural and legal belonging is to lose not only protection, but visibility and personhood.

Intersectionality deepens this analysis. Drawing from Crenshaw (1989), it highlights how race, gender, class, and status interact to intensify vulnerability. In displacement, these factors compound: a stateless queer woman of colour may face legal exclusion, cultural suppression, and gender-based violence simultaneously. Yet, most legal regimes address such harms in siloed categories (refugee, woman, visible minority), thereby overlooking the full complexity of intersecting oppressions (Gilodi et al., 2022; Theilen, 2024). Substantive equality cannot be achieved without addressing these compounded experiences, which require context-sensitive, relational, and pluralist approaches to rights (Atrey, 2020; Fineman, 2008).

Ultimately, vulnerability in forced migration is not just a descriptive condition but a juridico-political challenge. Its structural, relational, and epistemic dimensions expose the limits of legal personhood as framed by liberal individualism. Recognizing cultural vulnerability as a legally significant form of harm demands a reconfiguration of the normative foundations of human rights law, one that affirms dignity not in abstraction, but through embedded, collective, and culturally situated protections.

Beyond Formalism: Toward a Relational Human Rights Paradigm

Human rights frameworks, rooted in the recognition of human vulnerability and dignity, are designed to protect individuals from harm and ensure equal moral worth (Fineman, 2008; Heikkilà and Mustaniemi-Laakso, 2020). While vulnerability exposes susceptibility to harm, it does not negate dignity. On the contrary, it underscores the need for context-sensitive protections. Yet, international legal instruments have historically neglected specific vulnerabilities faced by displaced populations, particularly those related to cultural identity and communal belonging.

This becomes especially evident when contrasting the broader commitments of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) with the narrower scope of the 1951 Refugee Convention. While the ICESCR recognizes the right to participate in cultural life (Article 15) and obliges States to respect the cultural rights of minorities and Indigenous peoples, these provisions are rarely applied within refugee protection regimes. The 1951 Convention, by contrast, defines refugee status based on civil and political categories, such as persecution due to race, religion, nationality, political opinion, or membership in a particular social group, but it remains silent on harms involving the loss of cultural continuity or symbolic recognition. As a result, the cultural dimensions of displacement are effectively excluded from legal protection. This oversight is compounded by the dominance of legal categories that prioritize threats to life, liberty, and political expression over sociocultural entitlements such as language, ritual, or collective memory. Yet, forced displacement often entails precisely these disruptions: ruptures in identity, tradition, and the symbolic frameworks that sustain communal life (Betts, 2013; Zetter, 2015).

While the 1951 Refugee Convention and its 1967 Protocol establish critical safeguards against persecution and refoulement, they remain largely silent on issues of cultural continuity and identity. As Novic (2016) and Donders (2015) argue, the right to cultural identity remains inconsistently recognized, fragmented across instruments, and often overshadowed by civil and political protections. Despite some references to cultural rights within broader frameworks, such as Article 27 of the ICCPR, which protects the rights of minorities to enjoy their culture, or the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, no coherent legal architecture exists to address cultural displacement as a distinct harm. These instruments lack binding enforcement mechanisms and are rarely invoked in the context of asylum or refugee status determination. Moreover, the absence of specific provisions on cultural continuity, language loss, or ritual erasure in refugee law leaves displaced persons without meaningful recourse when cultural reproduction is disrupted. Scholars in forced migration studies have long emphasized that this gap results from a narrow understanding of displacement as merely the loss of territory or legal status, whereas in practice, it often involves a multidimensional erosion of social worlds and cultural reproduction (Long, 2014; Turton, 2005).

Judicial interpretations occasionally engage with vulnerability to refine legal assessments, particularly in cases involving detention, asylum, or minority status. For example, the European Court of Human Rights (ECtHR) considers situational and structural factors, such as disability, age, or statelessness, when assessing violations of Article 3 of the European Convention on Human Rights (ECHR), prohibition of inhuman or degrading treatment, or Article 8, right to private and family life (Heri, 2021). In M.S.S. v. Belgium and Greece (2011), the Court recognized the degrading conditions faced by an asylum seeker due to systemic failures in reception, emphasizing his vulnerability as a migrant. Similarly, in Hirsi Jamaa and Others v. Italy (2012), the Court acknowledged the vulnerability of intercepted migrants returned to Libya, noting the lack of individual assessment and the risk of inhuman treatment. Yet, despite such advances, these assessments rarely capture the full complexity of forced migration, especially when it entails symbolic and cultural erasure.

As Polymenopoulou (2016) observes, dominant legal frameworks treat displaced persons as ‘bare life’ recipients of aid, yet stripped of historical and cultural visibility, hence marginalizing displaced people's agency, including their right to cultural self-determination. Moreover, displaced groups often suffer from epistemic injustice: their knowledge systems, cultural memories, and collective narratives are rendered invisible or invalid under dominant legal and bureaucratic regimes (Hossain, 2016; Santos, 2015). This absence of recognition constitutes more than an oversight: it contributes to misrecognition, forced assimilation, or exclusion from public and political life (Shachar, 2009). Without explicit protections, displaced populations risk being reconstituted as legally present but culturally erased.

Although some international and regional bodies have made strides (e.g. the Inter-American Court and the African Commission have acknowledged the spiritual and cultural dimensions of land, heritage, and identity), these remain fragmented efforts (Donders, 2018; Hausler, 2016). For instance, the Inter-American Court of Human Rights has emphasized the collective cultural significance of ancestral lands in cases such as Yakye Axa Indigenous Community v. Paraguay (2005) and Saramaka People v. Suriname (2007), affirming that displacement and loss of territory constitute violations of cultural integrity and identity. Similarly, the African Commission on Human and Peoples’ Rights, in Endorois v. Kenya (2010), found that the forced displacement of the Endorois people violated their rights to culture, religion, and property under the African Charter.

While these decisions represent promising developments, they remain context-specific and are not reflected in a coherent legal framework applicable to all displaced populations. Lenzerini (2016) suggests that evolutionary treaty interpretation could help embed cultural identity within customary international law. But such evolution requires not only doctrinal expansion, but also a shift in epistemological assumptions: a move from culture as fixed property to culture as relational, living, and shaped by trauma and resistance (Butler, 2010; Fraser, 1997).

Ultimately, this section serves as a critical pivot: human rights law, though rooted in the language of dignity, remains ill-equipped to respond to cultural displacement. It invites a broader reconceptualization of rights that integrates vulnerability, intersectionality, and symbolic belonging as legally relevant concerns in migration contexts. Such a shift aligns with calls from migration scholars to move beyond protectionism and toward frameworks that recognize the cultural and political agency of displaced communities.

Fragmented Protections: Cultural Rights in International Law

While international human rights law increasingly invokes the value of dignity, it remains ambivalent toward the cultural foundations of identity, especially in contexts of displacement. Despite growing references to culture in legal texts, the recognition of cultural identity as a substantive and enforceable right remains partial, fragmented, and subordinated to other legal priorities. This section traces how international and regional legal systems address cultural rights, exposing both structural omissions and asymmetries of recognition that disproportionately affect forcibly displaced populations.

Between Silence and Soft Law: Legal Instruments and Gaps

Cultural rights have historically occupied a marginal and underdeveloped position in international human rights law. While their importance is acknowledged in key instruments such as Article 27 of the ICCPR (minority rights) and Article 15 of the ICESCR (right to take part in cultural life), these provisions offer only partial protection. As previously noted, they do not articulate cultural identity as a free-standing or enforceable right, particularly in contexts of displacement, where the loss of cultural continuity and collective belonging constitutes a distinct form of harm.

Building on these limited foundations, several normative developments have emerged over the past two decades, primarily through non-binding instruments and interpretive practice. The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the work of the UN Special Rapporteur in the field of cultural rights have expanded the conceptual terrain of cultural rights, linking them to identity, memory, and social reproduction (Bennoune, 2018). However, these advances remain fragmented across legal regimes, often lacking binding force or institutional traction in displacement contexts. The absence of a coherent legal framework addressing cultural loss as a rights violation reveals not only a normative gap, but also an epistemic bias: the relegation of culture to a secondary status within a legal order still dominated by liberal-individualist priorities.

This gap is particularly acute for migrants, refugees, and stateless communities, whose claims to cultural identity are often sidelined in favour of security or integration concerns (Bosniak, 2008; Novic, 2016). Despite the presence of cultural references in international treaties, no binding instrument offers a coherent or autonomous framework for the protection of cultural identity (Brems, 2004; Reidel, 2010). These rights are typically derivative, linked to education, participation, or language, rather than affirmed as legal entitlements in their own right.

Regionally, legal instruments have evolved in divergent and revealing ways, as previously mentioned rulings, and others, show. The African Charter on Human and Peoples’ Rights explicitly protects both individual and collective cultural rights, embedding them within a holistic vision of dignity and community (Hausler, 2016; Shyllon, 2016). In Endorois v. Kenya (2010), the African Commission on Human and Peoples’ Rights found that the forced displacement of the Endorois people from their ancestral lands violated their rights to culture, religion, and property, affirming a collective understanding of cultural harm.

The Inter-American system goes further, linking cultural identity to land, autonomy, and Indigenous sovereignty. For instance, in Saramaka People v. Suriname (2007), the Inter-American Court of Human Rights recognized that Indigenous and tribal communities hold a collective right to enjoy and control their traditional territories as a condition for the preservation of their cultural integrity. Similarly, in Yakye Axa v. Paraguay (2005), the Court affirmed that denial of access to ancestral land constituted a violation of the right to life, given its essential role in sustaining the community's cultural and spiritual identity (Lenzerini, 2016).

By contrast, the ECtHR tends to treat culture as a contextual factor, rather than affirming it as a right per se. In Chapman v. the United Kingdom (2001), the Court acknowledged the importance of cultural identity for Roma communities, but ultimately upheld state regulation of land use, deferring to the margin of appreciation. More recently, in Lingurar v. Romania (2019), the Court addressed discriminatory policing against Roma people and recognized the vulnerability linked to ethnic and cultural identity, but still framed cultural factors as circumstantial rather than foundational rights claims (Donders, 2018; Heri, 2021). These cases illustrate how hierarchies of intelligibility operate in jurisprudence: while cultural harms are acknowledged, they are not interpreted as central to legal personhood or dignity. Instead, such claims remain peripheral to dominant civil and political frameworks, reflecting the structural limits of liberal legal reasoning. These variations reveal both a growing pluralism in interpretation and persistent asymmetries in the legibility of cultural claims before the law.

Furthermore, international instruments, such as the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, have also attempted to elevate cultural rights within the international legal order. While the Convention is formally binding upon its State parties as a treaty, it lacks individual justiciability and does not establish adjudicatory or enforcement mechanisms. Its normative commitments are primarily programmatic, focused on cultural policy, diversity promotion, and international cooperation, rather than on the recognition or enforcement of rights in contexts of displacement or cultural erasure (Blake, 2016; Francioni, 2016). This significantly limits its capacity to protect communities experiencing cultural loss through forced mobility.

Taken together, these developments illustrate the deep fragmentation of cultural rights across the legal landscape. References to cultural protections are dispersed across treaties, soft law, and jurisprudence, often without definitional clarity, binding force, or consistent enforcement (Donoho, 1991; Polymenopoulou, 2016; Varennes, 2006). This normative patchwork is particularly detrimental in displacement contexts, where collective identity, memory, and symbolic belonging are central to human dignity. Yet, the architecture of international human rights law, shaped by liberal individualism, continues to prioritize autonomous subjects and discrete harms, often failing to grasp the relational and embedded nature of cultural loss (Lenzerini, 2014).

Ultimately, although the principle of dignity is invoked as a foundational value in international law, its cultural and symbolic dimensions remain under-theorized. Cultural harms, such as the loss of language, ritual, or place-based epistemologies, rarely fall within the scope of enforceable rights (Butler, 2006; Heri, 2021; Vrdoljak, 2014). Bridging this gap requires more than doctrinal expansion: it calls for an epistemological shift, one that recognizes culture as a dynamic, collective, and vulnerable dimension of human life (Fraser, 1997; Santos, 2015).

Refugee Law and the Erasure of Cultural Identity

Refugee law exemplifies these structural silences. While the 1951 Convention Relating to the Status of Refugees provides critical protections, its definition of persecution excludes explicit reference to culture, focusing instead on categories like race, religion, or political opinion. As Novic (2016) argues, this omission reflects a gap between rhetorical commitments to dignity and the functional categories of protection. This gap has been criticized by migration scholars for privileging overt political persecution while sidelining the less visible but equally profound losses tied to cultural identity, memory, and collective continuity (Long, 2014; Zetter, 2015).

Displaced persons are exposed not only to physical and legal precarity, but also to deep cultural dislocation, such as the rupture of intergenerational knowledge or the erosion of language and ritual (Lenzerini, 2014; Logan, 2016). Yet, these forms of existential harm remain invisible within legal categories that reduce forced displacement to material deprivation or immediate danger. Humanitarian and legal responses to displacement often prioritize immediate material needs such as shelter, food, or medical assistance, while relegating cultural rights to a secondary or even optional sphere. As Reidel (2010) argues, the protection of traditions and institutions that embody culture is frequently subordinated to the safeguarding of individual autonomy, which reinforces the perception of cultural rights as less essential. Similarly, Jakubowski (2016) highlights how courts often balance collective cultural claims against individual property rights, thereby revealing a structural hierarchy that sidelines culture. Francioni (2016) observes that cultural rights are often safeguarded only indirectly, through ostensibly more ‘material’ rights such as health, education, or property. As a result, they occupy a subordinate status in international law. This hierarchy renders culture less tangible, even though the loss of language, ritual, or collective memory can generate harms as lasting as material deprivation.

In practice, asylum and resettlement systems impose cultural hierarchies. Displaced persons are often expected to assimilate rapidly, with little space for the preservation of their cultural identities. The protection of cultural traditions and institutions is often subordinated to the primacy of individual autonomy, which effectively tolerates cultural continuity only when it does not conflict with dominant social norms (Reidel, 2010). Particularly within the ECtHR, case laws tend to balance collective cultural claims against individual rights such as property, thereby embedding an assimilationist logic that conditions belonging on conformity (Jakubowski, 2016). As some caution, collective cultural identities may be rigidly fixed in ways that limit individual autonomy. This concern informs integration models, where acknowledgment of culture is often restricted to expressions deemed acceptable by dominant societal norms (O’Keefe and Prott, 2011).

When culture is recognized, it frequently serves bureaucratic or instrumental functions: to assess the credibility of asylum claims, to reinforce gendered or ethnic stereotypes, or to justify exceptional measures like segregation or movement restrictions (Ahmed and Eklund, 2021; Atrey, 2020; Bhabha, 2014; Said, 1979). These practices not only marginalize culture: they repackage it into depoliticized, folkloric, or securitized terms. As Betts (2013) notes, even innovative legal approaches remain chained to a restrictive understanding of vulnerability, one that frames migrants as passive recipients of protection rather than as agents of cultural and political meaning.

Refugee protection thus reproduces a hierarchy of rights: civil and political rights, such as protection from persecution, non-refoulement, and access to asylum procedures, are prioritized, while cultural identity is treated as peripheral, derivative, or discretionary (Brems, 2004; Donders, 2015). This is reflected in the 1951 Refugee Convention itself, which defines eligibility based on persecution linked to civil and political grounds, but makes no mention of cultural dimensions as forms of harm. Even in refugee status determination and resettlement processes, cultural claims are rarely recognized as legally relevant, unless they intersect with religion or political opinion in narrowly defined ways. This reflects a normative bias toward a legal subject imagined as culturally neutral and disembedded, echoing liberal assumptions about autonomy and universality (Bisaz, 2012; Jovanović, 2012). This framing overlooks the centrality of ‘belonging’ as a core dimension of displacement, not merely as access to state territory but as a relational and cultural embeddedness (McMahon and Sigona, 2021; Turton, 2005).

Nevertheless, regional mechanisms such as the Inter-American Court and the African Commission have begun to link cultural loss to legal protection, especially in jurisprudence involving Indigenous communities (Donders, 2018; Hausler, 2016; Shyllon, 2016). For instance, in Saramaka People v. Suriname (2007), the Inter-American Court affirmed that restrictions on land use without free, prior, and informed consent violated the cultural survival of tribal peoples. Similarly, in Endorois v. Kenya (2010), the African Commission concluded that the forced removal of the Endorois people from their ancestral lands infringed upon their rights to culture, religion, and development under the African Charter. In both cases, cultural identity was not only acknowledged but protected as a core legal interest tied to territory, community, and continuity. While promising, these cases remain exceptional and largely confined to Indigenous claims within specific regional human rights systems. They have yet to reshape the dominant logic of international refugee law, which continues to treat culture as a secondary or contextual consideration rather than a protected legal right. This reflects a broader disconnect between refugee law and the empirical realities of displacement, where loss of language, ritual, or communal life often constitutes a profound and enduring harm.

This marginalization stems not only from doctrinal omission, but from epistemic hierarchies embedded in international law itself. Legal categories shaped by Westernized paradigms (such as the autonomous individual, territorial sovereignty, and narrowly defined forms of persecution) fail to capture how cultural dislocation constitutes a central harm of displacement (Fraser, 1997; Santos, 2015; Turner, 2006). As a result, displaced persons are rendered culturally invisible within a legal system that recognizes them only as isolated, rights-bearing individuals. Reframing refugee protection to include cultural rights thus requires more than legal reform. It calls for epistemic justice: restoring recognition, memory, and belonging to those whose identities have been systematically erased (Bhuta, 2012; Vrdoljak, 2014).

Regional Approaches and the Geopolitics of Recognition

While the international human rights framework provides a fragmented and limited recognition of cultural rights, regional human rights systems have developed a more diverse range of approaches, some of which offer stronger protections, others reinforcing existing gaps. This legal pluralism reveals both the potential and the unevenness of cultural rights recognition across geopolitical contexts. It also raises foundational questions about the universality of human rights and the cultural assumptions embedded in international legal systems (Brems, 2004; Kinley, 2012; Petersen, 2011). These questions are especially pressing in the context of forced displacement, where cultural identity and continuity are often at stake.

In Europe, the ECtHR has adopted a cautious and often minimalist approach to cultural rights. While the Court has acknowledged the vulnerability of identity-based groups such as the Roma or asylum seekers (Heri, 2021; Xenos, 2009), it refrains from recognizing cultural loss as a juridically actionable harm. Culture is typically treated as a contextual element in the interpretation of other individual rights, such as the right to private and family life (Article 8 ECHR) or education (Article 2 of Protocol No. 1), rather than as a right in itself. As Donders (2018) observes, although the Court recognizes cultural diversity, it rarely requires states to take positive measures to protect it. This limited scope undermines displaced persons’ claims to cultural continuity, which exceed what civil and political rights frameworks can adequately capture (Polymenopoulou, 2016).

By contrast, the Inter-American human rights system has articulated a more expansive vision of cultural rights. Through landmark cases such as Yakye Axa v. Paraguay, Sawhoyamaxa v. Paraguay, and Awas Tingni v. Nicaragua, the Inter-American Court of Human Rights has recognized culture as a constitutive element of the right to identity, dignity, and territory, especially for Indigenous peoples (Donders, 2018; Lenzerini, 2014). In Awas Tingni v. Nicaragua (2001), the Court held that ‘the close ties of Indigenous peoples with their traditional lands must be recognized and understood as the basis of their cultural existence and survival’. Similarly, in Yakye Axa v. Paraguay (2005), the Court emphasized that the State's failure to provide access to ancestral lands violated not only property rights but also the community's cultural and spiritual integrity. In Sawhoyamaxa v. Paraguay (2006), the Court reaffirmed that forced displacement severs the connection between Indigenous communities and the ‘spatial and symbolic dimensions of their cultural life’. These decisions affirm that cultural loss linked to displacement is not merely symbolic: it is legal harm, requiring restitution and reparation, including land restitution, legal recognition of territory, and the preservation of cultural practices. This articulation bridges the symbolic and juridical dimensions of harm, offering an alternative paradigm where law affirms rather than erases collective memory.

The African human rights system is likewise notable for its communitarian legal foundations. The African Charter on Human and Peoples’ Rights explicitly affirms both individual and collective cultural rights, situating them within a broader framework of human and social development (Hausler, 2016; Shyllon, 2016). African case law often approaches heritage, identity, and land as relational and intergenerational, in contrast to atomistic and property-based conceptions prevalent in Western law (Jovanović, 2012). This orientation allows the African Commission and Court to link cultural claims to broader group-based vulnerabilities, such as those arising from internal displacement, post-conflict restitution, or historical injustices (Bisaz, 2012; Lenzerini, 2016).

In Asia and the Pacific, the absence of a robust regional legal architecture has not precluded significant national or subregional developments. As Logan (2016) notes, many Asian societies emphasize communal, familial, or spiritual identity over individual entitlements, an orientation that can support strong cultural protections but may also constrain dissenting voices within communities (Mahajan, 2005). Legal articulations of cultural rights often draw on civilizational, religious, or customary sources, rather than international human rights treaties. This results in plural and hybrid forms of legal reasoning that challenge the dominance of Eurocentric legal models (Bhuta, 2012; Santos, 2015), while also revealing the geopolitical politics of cultural legitimacy.

Despite this diversity, profound asymmetries persist in the global recognition and enforcement of cultural rights. Western legal traditions, anchored in liberal individualism, positivism, and formal equality, continue to dominate the interpretation and application of human rights norms (Brems, 2004; Donnelly, 2007; Kinley, 2012). These traditions marginalize relational and place-based forms of belonging more prevalent in Indigenous, African, or postcolonial contexts (Said, 1979; Santos, 2015; Shyllon, 2016). Global jurisprudence and treaty-monitoring bodies thus frequently translate collective claims into individual terms or render them illegible altogether (Donders, 2015; Novic, 2016).

Moreover, access to justice remains deeply uneven across regions and populations. While some courts, such as the Inter-American Court, allow collective claims and recognize community standing, others, like the ECHR, restrict access to individuals or state parties (Polymenopoulou, 2016; Vrdoljak, 2014). This reinforces structural hierarchies in legal recognition: stateless persons, undocumented migrants, and diasporic communities are often rendered invisible in both national and regional protections (Bosniak, 2008; Nifosi-Sutton, 2017). Here, legal form itself becomes performative: it does not merely describe who is visible in law. Rather, it actively constitutes what counts as a recognizable harm or subject (Bourdieu, 1986; Butler, 1990; Santos, 2015). These regional asymmetries challenge the presumed neutrality of universal human rights and highlight the need to account for geopolitical and cultural power dynamics in legal interpretation. Cultural identity, far from being consistently or universally protected, is filtered through complex matrices of legal authority, regional norms, and political interest (Krisch, 2005; Lang, 2022; Shelton, 2006).

For forcibly displaced populations, this means that their cultural rights may be recognized or denied not based on principle or harm, but according to their geographic and legal positioning within the uneven terrain of global justice. This unevenness is not incidental but reflects the coloniality of international law itself, a system historically shaped by Western legal cultures that continue to define which norms, actors, and epistemologies are granted legitimacy (Anghie, 2023; Bhuta, 2012).

Rethinking Universality from the Margins

Building on the legal and regional asymmetries previously identified, this section advances a normative and epistemic rethinking of universality from the standpoint of displaced communities. Cultural displacement, understood as the disruption of identity, memory, and relational belonging due to forced mobility, challenges dominant legal assumptions about personhood, rights, and recognition. We explore how the universalist ethos of international law can be reconfigured through plural, situated, and collective understandings of dignity and justice.

From Abstract Norms to Situated Justice

The principle of universality, central to international human rights discourse, affirms that all humans possess inherent rights by virtue of their humanity. However, as critical scholars have shown, this principle often masks Western epistemologies and legal assumptions, particularly liberal individualism and state-centric protection (Bhuta, 2012; Bisaz, 2012; Donnelly, 2007; Goodhart, 2008). This abstraction constructs a decontextualized rights-bearing subject that marginalizes situated forms of vulnerability and identity. Legal frameworks remain ill-equipped to accommodate the cultural and epistemic dimensions of forced displacement (Crenshaw, 1989; Fineman, 2008; Fraser, 1997; Gilodi et al., 2022). As a result, displaced persons face not only legal exclusion but also symbolic erasure. Their identities, shaped by colonial legacies, forced mobility, and relational worldviews, resist reduction to the legal fiction of the autonomous individual.

Despite growing recognition of group harms, international law continues to treat displacement primarily as a humanitarian emergency rather than a rupture of cultural continuity and epistemic survival (Novic, 2016; Santos, 2015). This imbalance is particularly evident in the legal treatment of dignity. Although dignity is frequently invoked as a foundational value (appearing, for instance, in the preambles of the Universal Declaration of Human Rights and the core human rights covenants as the ‘inherent dignity of the human person’), it is rarely defined in substantive terms. It is operationalized as a formal principle underpinning civil and political rights, especially the right to life, freedom from torture, or non-discrimination, without reference to cultural belonging, symbolic loss, or intergenerational harm (Heri, 2021; Lenzerini, 2014; Vrdoljak, 2014). This narrow framing reflects the dominance of liberal legal imaginaries, which privilege individual autonomy over relational and collective dimensions of human worth.

To address this blind spot, a shift toward situated rights is necessary, with rights grounded in lived experience and resistant to assimilation into dominant legal categories (Chapman and Carbonetti, 2011). This requires more than normative expansion. In fact, it calls for a reconfiguration of the epistemic foundations of international law. Rather than treating cultural rights as secondary or discretionary, they must be understood as existential claims tied to recognition, memory, and justice (Logan, 2016; Shyllon, 2016).

Ultimately, reimagining universality ‘from below’ entails centring the epistemologies, ontologies, and normative orders of displaced communities, not as exceptions, rather as starting points for global normativity. It means reversing the dominant gaze from the atomized subject of liberal theory to the vulnerable subject who resists erasure through practices of cultural continuity, all through language, ritual, land, and collective memory (Bhabha, 2014; Jovanović, 2012; Santos, 2015).

Reconciling Individual and Collective Cultural Claims

The normative tension between individual and collective rights is central to debates on cultural rights. While most international instruments emphasize individual dignity, cultural identity is inherently relational and embodied through shared rituals, language, memory, and institutions. This becomes particularly salient in displacement, which disrupts not only individual trajectories but collective cultural reproduction (Fraser, 1997; Lenzerini, 2014). Although Article 27 of the ICCPR protects the rights of individuals ‘in community’, it does not grant legal personality or enforceable status to the community itself, leaving collective claims vulnerable to dismissal. This legal gap is particularly consequential in refugee contexts, where displaced populations often attempt to preserve collective practices under extreme precarity in camps, resettlement zones, or informal urban enclaves (Easton-Calabria and Omata, 2018; Sigona, 2015).

This reflects the deeper bias of international legal systems toward a liberal, atomized subject. Refugee law and resettlement policies prioritize individual adaptation and self-sufficiency, often treating cultural identity as a private enrichment rather than a public good deserving protection (Bosniak, 2008; Kinley, 2012). As a result, community-based practices (language schools, collective rituals, places of worship) are framed as accommodations or expressions of diversity, not as rights rooted in international obligations. This legal framing fails to capture how displaced persons experience cultural belonging not as an optional identity marker but as a condition of survival (Bhabha, 2014; Santos, 2015).

Concerns that collective rights might reinforce hierarchy or silence dissent are valid, but they must be weighed against the erasures produced by assimilationist norms. For many Indigenous or displaced communities, the erosion of collective identity, in relation to language, memory and land, is not a theoretical loss but an existential harm (Anzaldúa, 2007; Novic, 2016). As Castles (2003), Castles et al. (2014) notes, forced migration often leads to a reconstitution of cultural identities in exile, not as nostalgic preservation, rather as adaptive and political acts of community-building. These practices deserve recognition not as cultural ‘extras’ but as fundamental to resilience and justice.

A pluralistic and relational approach to legal protection must therefore reconcile individual dignity with collective continuity. This does not entail abandoning universalism, but rethinking its foundations through lived experiences of vulnerability, displacement, and cultural resilience (Gilodi et al., 2022). Such rethinking also requires engaging displaced communities not only as rights holders but as legal actors who produce normative orders through their own cultural and political practices.

Intersectionality, Epistemic Injustice, and Legal (In)visibility

The marginalization of cultural rights is not merely a gap in doctrine. Rather, it reflects deeper hierarchies of legal recognition. Displaced persons often face multiple vulnerabilities as stateless, racialized, queer, or Indigenous subjects. Intersectionality highlights how these compounded forms of marginalization are often fragmented or erased in law, which tends to isolate harms rather than apprehend them as structurally interrelated (Crenshaw, 1989; Fraser, 2009; Gilodi et al., 2022).

Cultural rights claims illustrate this tension vividly. Dominant legal regimes tend to privilege majority, sedentary, or state-sanctioned cultural expressions, while hybrid, diasporic, or subaltern forms are frequently delegitimized or rendered unintelligible (Anzaldúa, 2007; Jovanović, 2012). These dynamics echo Bourdieu's (1986) concept of symbolic domination, the power to name, recognize, and institutionalize culture. Legal systems become complicit in this process when they selectively protect cultures deemed ‘valuable’ or ‘integrated’, while overlooking those viewed as residual, folkloric, or politically inconvenient (Vrdoljak, 2014). This process is deeply racialized and gendered. Diasporic, racialized, and queer cultural forms are often treated as deviant or unintelligible within dominant legal imaginaries, reinforcing hierarchies of legitimacy that privilege whiteness, heteronormativity, and state-sanctioned cultural scripts (Crenshaw, 1989; Puar, 2007; Theilen, 2024).

This results in epistemic erasure, not only of cultural content, but of the ability of marginalized groups to define legal meaning itself (Novic, 2016). As both Santos (2015) and Spivak (1988) have argued, this erasure reflects deeper hierarchies of intelligibility embedded in law: the mechanisms through which dominant epistemologies define which voices, memories, and worldviews are deemed credible or relevant. By portraying displaced persons as apolitical victims in need of humanitarian aid rather than normative actors with cultural agency and legal regimes disarticulate culture from justice. Subaltern subjects are often structurally prevented from being heard within dominant epistemic frameworks, as the law may grant visibility while denying intelligibility (Spivak, 1988). Hence, liberal legal systems manage difference not by recognizing it fully, but by regulating the conditions under which it becomes speakable (Povinelli, 2011).

While some regional decisions have acknowledged intersectional harms, e.g. in cases involving Indigenous land and identity, the principle of intersectionality remains largely absent from binding international legal doctrine (Donders, 2018; Shyllon, 2016). In Endorois v. Kenya (2010), the African Commission recognized the compounded effects of land dispossession on the Endorois people's cultural, spiritual, and economic life, while in Saramaka People v. Suriname (2007), the Inter-American Court highlighted how intersecting collective and cultural harms can undermine the survival of tribal communities. Yet, despite these advances, international legal discourse continues to rely on abstract universality and formal equality. As a result, intersecting vulnerabilities, rooted in displacement, indigeneity, cultural erasure, or statelessness, remain legally unspoken and politically devalued.

Intersectionality should thus be understood not simply as a framework of visibility, but as a critical epistemology of law. It compels a re-examination of how recognition is structured, who speaks the law, and which knowledges are authorized to define harm. This perspective makes visible the concept of hierarchy of intelligibility, clarifying how displaced communities can be formally present in law, yet substantively misrecognized or silenced. Addressing the cultural dimensions of forced displacement from this angle requires an active confrontation with legal systems’ complicity in reproducing epistemic hierarchies (Bhuta, 2012; Said, 1979).

Rather than simply extending protection to ‘cultural others’, intersectionality invites a rethinking of the normative foundations of rights toward justice that is plural, situated, and responsive to power (Chapman and Carbonetti, 2011; Fraser, 2009).

Conclusion: Toward a Theory of Cultural Displacement

Despite growing recognition of cultural harms in regional jurisprudence and normative instruments, the concept of cultural displacement remains under-theorized in international legal thought. This paper has sought to advance cultural displacement not simply as a consequence of forced migration, but as a distinct and juridically meaningful harm, one that demands recognition within the architectures of international law. The theorization of cultural displacement hence names the rupture of cultural identity that occurs when communities are forcibly uprooted, dislocated, or rendered invisible through mobility regimes that ignore their symbolic, historical, and epistemic attachments.

At its core, cultural displacement encompasses epistemic rupture, symbolic erasure, and relational disembedding. It entails the disruption of language, ritual, land-based knowledge systems, and intergenerational memory, not as passive losses, but as active forms of harm sustained in the encounter with legal frameworks that fail to perceive culture as legally salient. The harm lies not only in material dispossession or exclusion from legal status, but in the legal invisibility of cultural loss itself, which is systematically subordinated to civil and political frameworks of protection. Where law sees territory, status, or persecution, it often fails to see the loss of world, the destruction of ontological continuities that bind people to place, meaning, and collective life.

This paper has argued that the marginalization of cultural displacement in international law is neither accidental nor incidental. It reflects deeper epistemic hierarchies embedded in the liberal legal order: hierarchies that privilege an abstract, individualized, and culturally neutral legal subject. Refugees and displaced persons are imagined as bearers of civil status and discrete vulnerabilities, but not as cultural subjects whose displacement entails an existential rupture in collective identity and symbolic belonging. The legal infrastructure of human rights, despite invoking human dignity as a foundational principle, remains ill-equipped to recognize dignity as culturally and relationally constituted. The result is a structural inability to articulate claims based on cultural erosion, narrative silencing, and dispossession of memory, especially when these intersect with histories of colonialism, racialization, and structural exclusion.

In response to these gaps, this paper advances a deeper theorization of cultural displacement that draws from intersectionality, vulnerability theory, decolonial thought, and critical legal studies. This theory reconceptualizes culture not as fixed heritage or optional identity marker, but as a living, contested, and dynamic field, one shaped by relations of power, collective memory, and survival. It rejects the notion that culture can be accommodated through soft protections or symbolic gestures, and instead insists on its centrality to legal personhood, political belonging, and social repair.

Cultural displacement, thus understood, is not merely about the loss of practices, but about the disruption of the conditions that make those practices meaningful and sustainable. It calls for a legal reorientation that does not reduce culture to folklore, nor defer its protection to non-binding policy domains. Rather, it demands mechanisms of recognition, restitution, and participation that affirm the right of displaced communities to continue, transform, and transmit their cultural lives under conditions of dignity.

Ultimately, theorizing cultural displacement also requires confronting the coloniality of international law, the historical and ongoing processes through which legal regimes have authorized whose culture counts, whose memory matters, and whose loss is grievable or not. Reimagining international law from this vantage point means recovering universality ‘from below’, grounded not in abstraction but in the lived experience of dislocated communities. It requires cultivating an international legal imagination that is plural, situated, and decolonial, one that centres epistemic justice as both a normative horizon and a practical imperative.

Future research and legal developments could investigate ways to better align protection frameworks with both the material and cultural aspects of displacement, and to rethink integration policies so they preserve rather than erode cultural continuity. Moving past purely doctrinal critiques, this requires creating practical mechanisms such as community-driven cultural restitution, safeguarding of languages, or collective participation rights, that recognize cultural survival as a core element of justice. Restoring cultural rights to the core of international human rights law is not only a question of doctrinal consistency. It is a condition for democratic legitimacy, postcolonial accountability, and global justice.